<PAGE> 1
Registration No. 333-______
As filed with the Securities and Exchange Commission on December 30, 1997
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------
SULCUS HOSPITALITY TECHNOLOGIES CORP.
(Exact Name of Registrant as Specified in Its Charter)
PENNSYLVANIA 25-1369276
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
41 NORTH MAIN STREET, GREENSBURG, PENNSYLVANIA 15601
(Address of Principal Executive Offices) (Zip Code)
---------------
SULCUS HOSPITALITY TECHNOLOGIES CORP.
1997 EMPLOYEE STOCK PURCHASE PLAN
SULCUS HOSPITALITY TECHNOLOGIES CORP.
1997 LONG-TERM INCENTIVE PLAN
SULCUS HOSPITALITY TECHNOLOGIES CORP.
1997 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full Titles of the Plans)
---------------
JOHN W. RYBA, ESQ.
SENIOR VICE PRESIDENT AND CHIEF LEGAL OFFICER
SULCUS HOSPITALITY TECHNOLOGIES CORP.
41 NORTH MAIN STREET
GREENSBURG, PENNSYLVANIA 15601
(412) 836 - 2000
(Name and Address, Including Zip Code & Telephone Number,
Including Area Code, of Agent for Service)
---------------
COPY TO:
Michael Wager, Esq.
Benesch, Friedlander, Coplan & Aronoff LLP
2300 BP America Bldg., 200 Public Square
Cleveland, Ohio 44114-2378
(216) 363 - 4500
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================= ================== ==================== =========================== ==========================
Proposed
Amount To Be Maximum Proposed Maximum
Title Of Securities To Be Registered(2) Offering Price Aggregate Offering Amount of Registration
Registered(1) Per Share(3) Price(3) Fee
- --------------------------------- ------------------ -------------------- --------------------------- --------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value
per share 1,500,000 $2.59375 $3,890,625 $1,148
================================= ================== ==================== =========================== ==========================
</TABLE>
<PAGE> 2
(1) This Registration Statement covers an indeterminate amount of interests in
the Sulcus Hospitality Technologies Corp. 1997 Employee Stock Purchase
Plan (the "ESPP").
(2) This includes 500,000 shares to be registered pursuant to the ESPP,
500,000 shares to be registered under the Sulcus Hospitality
Technologies Corp. 1997 Long-Term Incentive Plan (the "LTIP") and 500,000
shares to be registered under the Sulcus Hospitality Technologies
Corp. 1997 Non-Employee Directors' Stock Option Plan (the "Directors'
Plan"), collectively, the "Plans." This Registration Statement also
includes an indeterminate number of shares of Common Stock which may be
issued under the anti-dilution provisions of the Plans.
(3) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the registration fee, on
the basis of the average of the high and low prices of Sulcus Hospitality
Technologies Corp. Common Stock of $2.59375 included in the American
Stock Exchange Composite Transactions report for December 24, 1997.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to the participants as specified by Rule 428(b)(1) of
the Securities Act of 1933, as amended. Such documents and the documents
incorporated by reference herein pursuant to Item 3 of Part II hereof, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Sulcus Hospitality Technologies Corp.
("Sulcus" or the "Company") are incorporated herein by reference, except to the
extent that any statement or information therein is modified, superseded or
replaced by a statement or information contained in any other subsequently filed
document incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed with the Securities and
Exchange Commission (the "SEC") on March 31, 1997.
(2) the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997, filed with the SEC on May 15,
1997.
(3) the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997, filed with the SEC on August 14,
1997.
(4) the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1997, filed with the SEC on
November 13, 1997.
(5) the Company's Current Report on Form 8-K, filed with the SEC
on September 3, 1997.
(6) The description of the Common Stock, no par value, of the
Company ("Sulcus Common Stock"), contained in the Company's
Registration Statement No. 33-40466 on Form S-1, filed with
the Securities and Exchange Commission on May 9, 1991.
Until the Company files a post-effective amendment to this Registration
Statement indicating that all securities offered have been sold, or
deregistering all such securities which remain unsold, all documents
subsequently filed by the Company or the 1997 Employee Stock Purchase Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 subsequent to the date hereof and prior to the termination of the
offering of the securities registered pursuant to
<PAGE> 4
this Registration Statement, shall be deemed to be incorporated by reference
into this Registration Statement and to be part hereof from the date of filing
of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 1741 through 1747, along with Section 1713, of the
Pennsylvania Business Corporation Law of 1988 permits indemnification of
officers, directors and employees and agents of a corporation. Article IX of the
Company's By-Laws provides as follows:
"Section 1. A director of the Corporation shall not be
personally liable for monetary damages for any action taken or failure
to take any action unless the director has breached or failed to
perform the duties of his or her office under Sections 1712 and 1715 of
the Pennsylvania Business Corporation Law of 1988 and such breach or
failure to perform constitutes self-dealing, willful misconduct or
recklessness; provided, however, that the foregoing provision shall not
eliminate or limit the liability of a director (i) for any
responsibility or liability of such director pursuant to any criminal
statute, or (ii) for any liability of a director for the payment of
taxes pursuant to local, state or federal law.
Section 2. The Corporation shall indemnify to the full extent
authorized or permitted by law, any person made, or threatened to be
made, a party to or otherwise involved in (as a witness or otherwise)
an action, suit or proceeding (whether civil, criminal, administrative
or investigative, and whether by or in the right of the Corporation or
otherwise) by reason of the fact that the person is or was a director
or officer of the Corporation or while a director or officer of the
Corporation, either serves or served as a director, officer, trustee,
employee or agent of any other related enterprise or in connection with
a related employee benefit plan at the request of the Corporation or
serves or served as a director, officer, trustee, employee or agent of
any other unrelated enterprise at the specific written request of the
Corporation against any expenses and liability actually incurred
including without limitation judgments and amounts paid or to be paid
in settlement of and in actions brought by or in the right of the
Corporation. Expenses incurred by such a person in defending a civil or
criminal action, suit or proceeding or in enforcing any right under
this Article IX shall be paid by the Corporation in advance of the
final disposition of the action, suit or proceeding upon receipt of an
undertaking by or on behalf of such person to repay such amount to the
extent it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation or, in the case of a
criminal action, the majority of the Board of Directors so determines.
The right to indemnification and advancement of
2
<PAGE> 5
expenses conferred in this Section 2 shall not be deemed exclusive of
any other rights to which any person indemnified may be entitled under
any agreement, vote of shareholders or directors or otherwise, the
Corporation having the express authority to enter such agreements as
the Board of Directors deems appropriate for the indemnification of and
advancement of expenses, including the creation of a fund therefor or
equivalent guarantee, to present or future directors and officers of
the Corporation in connection with their service as director or officer
of the Corporation or their service as director, officer, trustee,
employee or agent of any other enterprise or in connection with an
employee benefit plan at the request of the Corporation. The right to
indemnification and the advancement of expenses provided in this
Section 2 shall be a contract right, shall continue as to a person who
has ceased to serve in the capacities described herein, and shall inure
to the benefit of the heirs, executors and administrators of such
person.
Section 3. No amendment, alteration or repeal of this Article
IX, nor the adoption of any provision inconsistent with this Article
IX, shall adversely affect any limitation on the personal liability of
a director or officer, or the rights of a director or officer to
indemnification and advancement of expenses, existing at the time of
such amendment, modification or repeal, or the adoption of such an
inconsistent provision."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Exhibit
Index on Page 7, which Exhibit Index is incorporated herein by this reference.
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;
3
<PAGE> 6
(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 Registration Statement is on Form S-3 or
Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
4
<PAGE> 7
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Greensburg, state of Pennsylvania, on the 19th
day of December, 1997.
SULCUS HOSPITALITY TECHNOLOGIES CORP.
By /s/ Leon Harris
----------------------------------------
Name: Leon Harris
------------------------------
Title: Chairman of the Board and
CEO
----------------------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the individuals whose
signature appears below constitutes and appoints John W. Ryba or Leon D. Harris,
or any of them, his true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact, agent,
or his substitute may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Leon D. Harris Chairman of the Board, Chief December 19, 1997
- ---------------------------- Executive Officer and Director
Leon D. Harris
/s/ Robert D. Gries Vice Chairman of the Board and December 19, 1997
- ---------------------------- Director
Robert D. Gries
/s/ H. Richard Howie Chief Financial Officer December 19, 1997
- ----------------------------
H. Richard Howie
/s/ David H. Adler Director December 19, 1997
- ----------------------------
David H. Adler
/s/ David W. Berkus Director December 19, 1997
- ----------------------------
David W. Berkus
/s/ Christine Hughes Director December 19, 1997
- ----------------------------
Christine Hughes
</TABLE>
5
<PAGE> 8
The Employee Stock Purchase Plan. Pursuant to the requirements of the
Securities Act of 1933, the Stock Option Committee has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Greensburg, state of Pennsylvania, on the 19th
day of December, 1997.
Sulcus Hospitality Technologies Corp.
1997 Employee Stock Purchase Plan
By: /s/ David H. Adler
------------------------------------
David H. Adler, Director
By: /s/ Robert D. Gries
------------------------------------
Robert D. Gries, Vice Chairman of
the Board and Director
By: /s/ Christine Hughes
------------------------------------
Christine Hughes, Director
6
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION OF EXHIBIT NUMBERED PAGE
- ------ ---------------------- -------------
<S> <C> <C>
4.1 The Company's Articles of Incorporation,
as amended 9
4.2 The Company's Amended and Restated
By-Laws 35
4.3 The Company's 1997 Employee Stock Purchase
Plan 57
4.4 The Company's 1997 Long-Term Incentive Plan 75
4.5 The Company's 1997 Non-Employee Directors'
Stock Option Plan 105
5.1 Opinion of John W. Ryba 121
23.1 Consent of John W. Ryba (included in
Exhibit 5.1) _ _
23.2 Consent of Crowe, Chizek and Company 123
24.1 Power of Attorney (included in Part II of _ _
this Registration Statement)
</TABLE>
7
<PAGE> 1
EXHIBIT 4.1
<TABLE>
<S> <C> <C>
AMENDED AND RESTATED
PLEASE INDICATE (CHECK ONE) TYPE CORPORATION:
ARTICLES OF INCORPORATION
(PREPARE IN TRIPLICATE) [X] DOMESTIC BUSINESS CORPORATION
FEE
[ ] DOMESTIC BUSINESS CORPORATION $75.00
COMMONWEALTH OF PENNSYLVANIA A CLOSE CORPORATION - COMPLETE BACK
DEPARTMENT OF STATE - CORPORATION BUREAU
308 NORTH OFFICE BUILDING, HARRISBURG, PA 17120 [ ] DOMESTIC PROFESSIONAL CORPORATION
ENTER BOARD LICENSE NO.
- ------------------------------------------------------------------------------------------------------------------------------------
010 NAME OF CORPORATION (MUST CONTAIN A CORPORATE INDICATOR UNLESS EXEPT UNDER 15 P.S. 2908 B)
Sulcus Computer Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
011 ADDRESS OF REGISTERED OFFICE IN PENNSYLVANIA (P.O. BOX NUMBER NOT ACCEPTABLE)
Bank & Trust Building, Court House Square
- ------------------------------------------------------------------------------------------------------------------------------------
012 CITY O33 COUNTY 013 STATE 064 ZIP CODE
Greensburg Westmoreland PA 15601
- ------------------------------------------------------------------------------------------------------------------------------------
EXPLAIN THE PURPOSE OF THE CORPORATION
The Corporation shall have unlimited power to engage in and do any lawful act
concerning any or all lawful business for which corporations may be incorporated
under the Business Corporation Law, under which Act this Corporation is
incorporated, including without limiting the generality of the foregoing,
manufacturing, printing, processing, research and development.
(ATTACH 8 1/2 X 11 SHEET IF NECESSARY)
- ------------------------------------------------------------------------------------------------------------------------------------
The Aggregate Number Shares, Classes of Shares and Par Value of Shares Which the Corporation Shall have Authority to Issue:
040 Number and Class of Shares
10,050,000 Shares Capital
041 Stated Par Value Per 042 Total Authorized Capital 031 Term of Existence
Share if Any
Stock as set forth on Exhibit "A" Perpetual
attached hereto
- ------------------------------------------------------------------------------------------------------------------------------------
The Name and Address of Each Incorporator, and the Number and Class of Shares Subscribed to by each Incorporator
061, 062
060 Name 063, 064 Address (Street, City, State, Zip Code) Number & Class of Shares
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
(ATTACH 8 1/2 X 11 SHEET IF NECESSARY)
- ------------------------------------------------------------------------------------------------------------------------------------
IN TESTIMONY WHEREOF, THE INCORPORATOR (S) HAS (HAVE) SIGNED AND SEALED THE ARTICLES OF INCORPORATION
THIS 8TH DAY OF MAY 19 84
--------------------------------- ------------------ ---
/s/ Margaret Santone /s/ Jeffrey S. Ratner
- -------------------------------- ----------------------------------------
Secretary President
- -------------------------------- ----------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
--FOR OFFICE USE ONLY--
- ------------------------------------------------------------------------------------------------------------------------------------
030 FILED O02 CODE 003 REV BOX SEQUENTIAL NO. 100 MICROFILM NUMBER
------------------- 8434 691
REVIEWED BY ----------------------------------------------------------------------------
004 SICC AMOUNT 001 CORPORATION NUMBER
-------------------
DATE APPROVED $
----------------------------------------------------------------------------
-------------------
DATE REJECTED CERTIFY TO INPUT BY LOG IN LOG IN (REFILE)
[ ] REV.
Secretary of the Commonwealth ------------------- [ ] L & I -------------------------------------------------------
Department of State MAILED BY DATE VERIFIED BY LOG OUT LOG OUT (REFILE)
Commonwealth of Pennsylvania [ ] OTHER
</TABLE>
<PAGE> 2
EXHIBIT "A"
-----------
The aggregate number of shares, classes of shares, and par value of
shares which the Corporation shall have authority to issue is: 10,050,000 shares
of capital stock consisting of 10,000,000 shares common stock without par value
and 50,000 shares preferred stock with the voting rights, designations,
preferences, qualifications, privileges, limitations, options, conversion
rights, and other special rights as hereinafter set forth.
A. The preferred shares authorized by these Articles of Incorporation
shall be issued from time to time in series. The first series shall be
designated Series A Seven (7%) Per Cent Cumulative Convertible Preferred Stock,
par value $45.00 per share (the "Preferred Stock"), and shall consist of 18,863
shares and shall have the rights, preferences, and privileges hereinafter set
forth.
B. The holders of the preferred stock shall be entitled to receive
dividends out of any funds legally available therefor, as and when declared by
the Board of Directors at the rate of Seven (7%) per cent payable semi-annually
on the last days of December and June, respectively, in each year with respect
to the semiannual period ending on such respective payment date, except that the
first dividend on such initial issue of Series A of the preferred-shares shall
be payable on December 31, 1983. Such dividends shall be cumulative. In no
event, so long as any preferred shares shall be outstanding, shall any dividend,
whether in cash or property, be paid or declared nor shall any distribution be
made on any of the common shares until all dividends on the preferred shares for
all past semiannual dividend periods and for the then current semiannual period
shall have been paid or declared and a sum sufficient for the payment thereof
set apart. The foregoing provision, however, shall not prohibit a dividend on
common shares in exchange for or through application of the proceeds of the sale
of common shares.
<PAGE> 3
C. The preferred shares shall be non-participating.
D. In the event of any involuntary liquidation, voluntary dissolution,
or winding up of the affairs of the corporation, then, before any distribution
or payment shall be made to the holders of the common shares, the holders of the
preferred shares shall be entitled to be paid Twenty-five ($25.00) Dollars per
share, together with accrued dividends to such distribution date, whether or not
earned or declared.
E. In the event that the assets are sufficient to have made payment in
full to the holders of the preferred shares, the remaining assets and funds of
the Corporation shall be distributed equally to all outstanding common shares
and not to preferred shares.
F. Neither the consolidation or merger of the Corporation nor the lease
or conveyance of all or substantially all of its assets shall be deemed a
liquidation, dissolution, or winding up of the affairs of the Corporation within
the meaning of paragraph D.
G. The preferred shares may be redeemed in whole or in part at the
option of the Corporation by the vote of its Board of Directors at any time or
from time to time following the expiration of three (3) years from the date of
issuance at the redemption price of Forty-five ($45.00) Dollars per share,
together with accrued dividends to the redemption date.
The additional conditions of redemption are:
(1) If less than all of the preferred shares are to
be redeemed, redemption shall be made in such amount and by such method, either
by lot or pro rata, and subject to such provisions of convenience as shall, from
time to time, be determined by the Board of Directors.
(2) Notice of any proposed redemption shall be mailed
by the Corporation, postage prepaid, not less than twenty (20) days nor more
than sixty (60) days prior to the date fixed
2
<PAGE> 4
for redemption, to each holder of record of such preferred shares to be redeemed
at his address as the same shall appear on the books of the Corporation.
(3) No redemption or purchase of any shares of
preferred shares shall be made unless full cumulative dividends on all shares of
preferred shares then outstanding, which are not to be redeemed or purchased to
the end of the then current dividend period, shall have been paid or declared
and set apart for payment.
(4) All shares of preferred shares voluntary redeemed
shall be retired, canceled, and none of such shares shall thereafter be
reissued.
H. The holder of any shares of preferred stock, Series A, shall, at his
option, on delivery to the Corporation of his written notice elected to convert
said shares to common shares and on surrender at the office of the Corporation
or office of the transfer agent for such shares of the certificate or
certificates of such preferred shares, duly endorsed to the Corporation, be
entitled to receive common shares in accordance with the following table:
<TABLE>
<CAPTION>
Number of Common Shares
Per 100 Shares of
Year Preferred Converted
---- -------------------
<S> <C>
1 2,300
2 2,185
3 1,955
4 1,725
5 and
subsequent years 1,725
</TABLE>
3
<PAGE> 5
The Corporation shall at all times reserve and keep available out of its
authorized but issued common shares, solely for the purpose of effecting
conversions of its initial series of shares, the full number of common shares
deliverable on conversion of all preferred shares from time to time outstanding.
I. The remaining preferred shares authorized by these Articles of
Incorporation may be issued from time to time in one or more series. The Board
of Directors is hereby authorized to fix or alter the dividend rates, conversion
rights, rights and terms of redemption, including sinking fund provisions, the
redemption price or prices, and the liquidation preferences of any wholly
unissued series or preferred shares and the number of shares constituting any
such series and the designation thereof or any of them.
J. The affirmative vote of the holders of two-thirds of the outstanding
convertible preferred stock voting as a class is required in order to authorize
the creation of any class of stock ranking prior to the preferred stock as to
dividends or distribution of assets, to alter the powers, preferences, or rights
of the convertible preferred stock in any respect adverse to the holders
thereof, or to authorize the merger or consolidation of the company, if such
merger or consolidation would have an effect on the convertible preferred stock
substantially similar to the effects of any of the preceding actions.
4
<PAGE> 6
Filed this 8th day of
July, 1991
Commonwealth of Pennsylvania
Department of State
Secretary of the Commonwealth
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
SULCUS COMPUTER CORPORATION
In compliance with the requirements of Section 1915 of the Business
Corporation Law, act of December 21, 1988 (P.L. 1444, No. 177), the undersigned
corporation desiring to amend its Articles, so as to change the aggregate number
of shares and classes of shares which the Corporation shall have authority to
issue, does hereby certify that:
FIRST: The name of the corporation is SULCUS COMPUTER CORPORATION.
SECOND: The address of its present registered office in this Commonwealth is: 41
North Main Street, Greensburg, Pennsylvania, 15601.
THIRD: The statute under which the corporation was incorporated was the 1933
Business Corporation Law of the Commonwealth of Pennsylvania (P.L. 364, as
amended).
FOURTH: The date of its incorporation is November 5, 1979.
FIFTH: Such change was authorized by resolution duly adopted by at least a
majority of the members of the board of directors of the corporation, and
adopted at the corporation's annual meeting by a vote of a majority of its
shareholders.
SIXTH: These Articles of Amendment are to be effective on July 8, 1991.
SEVENTH: The amendment adopted by the shareholders set forth in full, is as
follows;
RESOLVED, that Paragraph 4 of the Articles of Incorporation be amended
so as to provide as follows:
"The aggregate number of shares which the corporation shall have
authority to issue is: forty million (40,000,000) shares of capital stock
consisting of thirty million (30,000,000) shares of
<PAGE> 7
common stock without par value and ten million (10,000,000) shares of Preferred
Stock without par value.
The preferred stock may be issued from time to time in one or more
series, each of such series to have such designations, relative rights,
preferences and limitations as are stated and expressed in this Paragraph and in
the resolution or resolutions providing for the issue of such series adopted by
the Board of Directors as hereinafter provided. Authority is hereby expressly
granted to the Board of Directors, subject to the provisions of this Paragraph,
to establish and designate one or more series of preferred stock and to fix the
variations in the relative rights, preferences and limitations of each series,
including without limitation:
1. The number of shares to constitute such series and the distinctive
designations thereof;
2. The dividend rate to which such shares shall be entitled and the
restrictions, limitations and conditions upon the payment of such dividends,
whether dividends shall be cumulative, the date or dates from which dividends
(if cumulative) shall accumulate and the dates on which dividends (if declared)
shall be payable;
3. Whether or not the shares of such series shall be redeemable and,
if so, the terms, limitations and restrictions with respect to such redemption,
including without limitation the manner of selecting shares for redemption if
less than all shares are to be redeemed, and the amount, if any, in addition to
any accrued dividends thereon, which the holders of shares of such series shall
be entitled to receive upon the redemption thereof, which amount may vary at
different redemption dates and may be different with respect to shares redeemed
through the operation of any purchase, retirement or sinking fund and with
respect to shares otherwise redeemed;
4. The amount in addition to any accrued dividends thereon which the
holders of shares of such series shall be entitled to receive upon the voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, which
amount may vary at different dates and may vary depending on whether such
liquidation, dissolution or winding up is voluntary or involuntary;
5. Whether or not the shares of such series shall be subject to the
operation of a purchase, retirement or sinking fund and, if so, the terms,
limitations and restrictions with respect thereto, including, without
limitation, whether such purchase, retirement or sinking fund shall be
cumulative or noncumulative, the extent to and the manner in which such fund
shall be applied to the purchase, retirement or redemption of the shares of such
series for retirement or to other corporate purposes and the terms and
provisions relative to the operation thereof;
6. Whether or not the shares of such series shall have conversion
privileges and, if so, prices or rates of conversion and the method, if any, of
adjusting the same;
7. The voting powers, if any, of such series; and
2
<PAGE> 8
8. Any other relative rights, preferences and limitations thereof as
shall not be inconsistent with this Paragraph."
EIGHTH: These Articles of Amendment supersede the original Articles of
Incorporation, as amended, to the extent set forth herein.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles of
Amendment to be signed by a duly authorized officer and its corporate seal, duly
attested by another such officer, to be hereunder affixed this 8th day of July,
1991.
SULCUS COMPUTER CORPORATION
Attest:
/s/ Margaret Santone By: /s/ John W. Ryba
- ---------------------------------- -----------------------------
Margaret Santone, Secretary John W. Ryba, Vice President
3
<PAGE> 9
Filed this 12th day of
July, 1991
Commonwealth of Pennsylvania
Department of State
Secretary of the Commonwealth
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
SULCUS COMPUTER CORPORATION
In compliance with the requirements of Section 1915 of the Business
Corporation Law, act of December 21, 1988 (P.L. 1444, No. 177), the undersigned
corporation desiring to amend its Articles, does hereby certify that:
FIRST: The name of the corporation is SULCUS COMPUTER CORPORATION.
SECOND: The address of its present registered office in this Commonwealth is: 41
North Main Street, Greensburg, Pennsylvania, 15601.
THIRD: The statute under which the corporation was incorporated was the 1933
Business Corporation Law of the Commonwealth of Pennsylvania (P.L. 364, as
amended).
FOURTH: The date of its incorporation is November 5, 1979.
FIFTH: This Amendment was authorized by resolution duly adopted by at least a
majority of the members of the board of directors of the corporation.
SIXTH: These Articles of Amendment are to be effective on July 12, 1991.
SEVENTH: The Articles of Incorporation are hereby amended by the addition of a
provision stating the number, designation, relative rights, preferences, and
limitations of a series of 8,000,000 shares of Series A Redeemable Convertible
Preferred Stock, no par value per share, under authority contained in the
Articles of Incorporation, as follows:
1. DESIGNATION. The Series A Redeemable Convertible Preferred
Stock, no par value per share, is hereinafter called the
"Preferred Stock." The shares of the Preferred Stock shall be
fully-paid and non-assessable.
<PAGE> 10
2. DIVIDENDS. Holders of shares of Preferred Stock will be
entitled to receive dividends and distributions in cash,
common stock or otherwise when, as and if and only to the same
extent declared by the Board of Directors on shares of the
Corporation's Common Stock.
3. LIQUIDATION RIGHTS. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, the holders of shares of Preferred Stock shall be
entitled to receive out of the assets of the Corporation
available for distribution or payment to shareholders, before
any distribution or payment of assets is made with respect to
Common Stock of the Corporation or any other stock of the
Corporation ranking junior upon liquidation to the Preferred
Stock, liquidating distributions in the amount of $3.00 per
share. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the preferential
amounts payable with respect to the Preferred Stock and any
other shares of preferred stock of the Corporation ranking as
to any such liquidation, dissolution or winding up on a parity
with the Preferred Stock are not paid in full, the holders of
the Preferred Stock and of such other shares of preferred
stock will share ratably in any such distribution of assets of
the Corporation in proportion to the full respective
preferential amounts to which they are entitled. After payment
to the holders of the Preferred Stock of the full preferential
amounts to which they are entitled, the holders of shares of
Preferred Stock will not be entitled to any further
participation in any distribution of assets by the
Corporation. None of the sale, conveyance, exchange or
transfer of all or substantially all the property and assets
of the Corporation, the consolidation or merger of the
Corporation with or into any other corporation, or the merger
or consolidation of any other corporation into or with the
Corporation shall be deemed to be a liquidation, dissolution
or winding up of the Corporation within the meaning of this
Section 3; PROVIDED THAT in each case, effective provision is
made in the certificate of incorporation of the resulting and
surviving corporation or otherwise for the protection of the
rights of the holders of Preferred Stock.
4. REDEMPTION AT THE OPTION OF THE CORPORATION. On or after
October 1, 1992, Preferred Stock will be redeemable at the
option of the Corporation in whole, but not in part, for $4.00
per share in cash.
The Corporation will cause notification of any redemption of
shares to be mailed to all record holders of Preferred Stock
to be redeemed, at the address shown on the stock books of the
Corporation, not less than 30 days nor more than 60 days prior
to the date fixed for redemption.
If the notice of redemption issued by the Corporation shall
have been duly given, and if on the date fixed for redemption
funds necessary for the redemption shall be available
therefor, then, notwithstanding that the certificates
evidencing any shares of Preferred Stock so called for
redemption shall not have been surrendered, all rights with
respect to the shares so called for redemption shall forthwith
after such date
2
<PAGE> 11
cease and terminate, except for the right of the holders to
receive the redemption price without interest thereon (unless
the Corporation defaults in the payment of the redemption
price) upon surrender of their certificates therefor.
The respective holders of record of the Preferred Stock to be
redeemed shall be entitled to receive the redemption price
upon actual delivery or certificates for the number of shares
to be redeemed, duly endorsed in blank or accompanied by
proper instruments of assignment and transfer thereof duly
endorsed in blank. Shares of the Preferred Stock redeemed
pursuant to the provisions of this Section 4 shall have the
status of authorized but unissued preferred stock without
designation as to series, but may not thereafter be issued as
shares of Preferred Stock.
5. CONVERSION
(a) Subject to and upon compliance with the provisions of this
Section 5, unless previously redeemed by the Corporation, the
holder of a share of Preferred Stock shall have the right, at
such holder's option, at any time after November 30, 1991, to
convert such share into 1.4375 fully paid and nonassessable
shares of Common Stock of the Corporation, which shall be
equal to $2.09 per share of Common Stock (the "Conversion
Rate"). The right to convert shares called for redemption
pursuant to Section 4 shall terminate at the close of business
on the date fixed for such redemption unless the Corporation
shall default in making payment of the amount payable upon
such redemption. Except as set forth in subparagraph (d)
below, the Conversion Rate shall remain the same throughout
the life of the Preferred Stock.
(b) The holders of shares of Preferred Stock at the close of
business on a dividend payment record date shall be entitled
to receive the dividend payable on such shares on the
corresponding dividend payment date notwithstanding the
conversion thereof or the Corporation's default in payment of
the dividend due on such dividend payment date. A holder of
shares of Preferred Stock on a dividend payment record date
who (or whose transferee) surrenders any of such shares for
conversion into shares of Common Stock on a dividend payment
date will receive the dividend payable by the corporation on
such shares of Preferred Stock on such date, and the
converting holder need not include payment in the amount of
such dividend upon surrender of shares of Preferred Stock for
conversion. Except as provided above, the Corporation shall
make no payment or allowance for unpaid dividends, whether or
not in arrears, on converted shares or for dividends on the
shares of Common Stock issued upon such conversion.
(c) In order to exercise the conversion privilege, the holders
of each share of Preferred Stock to be converted shall
surrender the certificate representing such share at the
office of the Transfer Agent for the Preferred Stock in
Pittsburgh, Pennsylvania, appointed for such purpose by the
Corporation, with the Notice of Election to Convert on the
back of said certificate completed and signed. Unless the
3
<PAGE> 12
shares issuable on conversion are to be issued in the same
name as the name in which such share of Preferred Stock is
registered, each share surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory
to the Corporation, duly executed by the holder or such
holder's duly authorized attorney and an amount sufficient to
pay any transfer or similar tax.
As promptly as practicable after the surrender of the
certificates for shares of Preferred Stock as aforesaid, the
Corporation shall issue and shall deliver at such office to
such holder, or on his written order, a certificate of
certificates for only the number of full shares of Common
Stock issuable upon the conversion of such shares in
accordance with the provisions of this Section 5, no
fractional interest in respect of a share of Common Stock
arising upon such conversion shall be issued nor will cash be
paid in lieu thereof.
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on
which the certificates for shares of Preferred Stock shall
have been surrendered and such notice received by the
Corporation as aforesaid, and the person or persons in whose
name or names any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be
deemed to have become the holder or holders of record of the
shares represented thereby at such time on such date, unless
the stock transfer books of the Corporation shall be closed on
that date, in which event such person or persons shall be
deemed to have become such holder or holders of record at the
close of business on the next succeeding day on which such
stock transfer books are open, and such notice received by the
Corporation. All shares of Common Stock delivered upon
conversion of the Preferred Stock will upon delivery be duly
and validly issued and fully paid and nonassessable, free of
all liens and charges and not subject to any preemptive
rights.
(d) The Conversion Rate shall be adjusted from time to
time as follows:
(i) In case the Corporation shall (A) pay a dividend
or make a distribution on its Common Stock in shares
of its Common Stock, unless the payment thereof would
increase the number of shares of Common Stock
outstanding by less than one percent (1%), provided
however that any adjustments which by reason of this
paragraph (d) are not required to be made shall be
carried forward and taken into account in any
subsequent adjustment, and further provided that all
calculations under this paragraph (d) shall be made
to the nearest cent or to the nearest one-hundredth
of a share, as the case may be, (B) subdivide or
reclassify its outstanding shares of Common Stock
into a greater number of shares, or (C) combine its
outstanding shares of Common Stock into a smaller
number of shares, the conversion Rate in effect at
the time of the record date for such dividend or
distribution or the effective date of such
subdivision, classification or reclassification shall
be adjusted so that the holder of any share of
Preferred
4
<PAGE> 13
Stock thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common
Stock of the corporation which such holder would have
owned or have been entitled to receive after the
happening of any of the events described above had
such share of Common Stock been converted immediately
prior to the happening of such event and had such
Common Stock received such dividend or other
distribution or participated in such subdivision,
combination or reclassification. An adjustment made
pursuant to this subparagraph (i) shall become
effective immediately, except as provided in
subparagraph (x) below, after the payment record date
in the case of a dividend or distribution and shall
become effective immediately after the effective date
in the case of subdivision, combination or
reclassification.
(ii) In case the Corporation shall issue rights or
warrants to all holders of its Common Stock entitling
them to subscribe for or purchase shares of Common
Stock at a price per share less than the current
market price (as defined in subparagraph (vii) below)
at the record date for the determination of
shareholders entitled to receive such rights or
warrants, the Conversion Rate in effect at the
opening of business of the day following the date
fixed for such determination shall be reduced by
multiplying the Conversion Rate in effect immediately
prior to the date of issuance of such rights or
warrants by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such
determination plus the number of shares of Common
Stock which the aggregate offering price of the total
number of shares of Common Stock so offered for
subscription or purchase would purchase at such
current market price of the Common Stock, and of
which the denominator shall be the number of shares
of Common Stock outstanding on the date fixed for
such determination plus the number of additional
shares of Common Stock offered for subscription or
purchase. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and
shall become effective immediately, except as
provided in subparagraph (x) below, after such
determination. For purposes of determining under this
paragraph the number of shares of Common Stock
outstanding at any time, there shall be excluded all
shares of Common Stock held in the treasury of the
Corporation. In the event that any or all such rights
or warrants are not so issued or expire or terminate
before being exercised, the conversion price then in
effect shall be appropriately readjusted.
(iii) In case the Corporation shall distribute to all
holders of its Common Stock evidence of its
indebtedness or assets (including Securities but
excluding cash dividends or a distribution referred
to in subparagraph (i) above) or subscription rights
or warrants to subscribe for or purchase any of its
securities (excluding those referred to in
subparagraph (ii) above) the
5
<PAGE> 14
Conversion Rate shall be adjusted so that it shall
equal the price determined by multiplying the
Conversion Rate in effect immediately prior to the
close of business on the date fixed for the
determination of shareholders entitled to receive
such distribution by a fraction of which the
numerator shall be the current market price per share
of the Common Stock on the date fixed for such
determination less the then fair market value (as
determined by the Board of Directors of the
Corporation, in good faith and in the exercise of its
reasonable business judgment) of the portion of the
assets or evidences of indebtedness so distributed
applicable to one share of Common Stock and the
denominator shall be such current market price per
share of the Common Stock as determined by
subparagraph (v). Such adjustment shall become
effective immediately prior to the opening of
business on the date following the date fixed for the
determination of shareholders entitled to receive
such distribution, except as provided in subparagraph
(x) below.
(iv) In case the Company is a participant in a
consolidation, merger or combination with another
corporation (other than with a wholly owned
subsidiary of the Company and other than a merger
which does not result in any reclassification,
conversion, exchange or cancellation of the Common
Stock) or in case of any sale or transfer of all or
substantially all of the assets of the Company, as a
result of which holders of Common Stock shall be
entitled to receive stock, securities or other
property or assets (including cash) with respect to
or in exchange for such Common Stock, or any share
exchange whereby the Common Stock is converted into
other securities or property of the Company, then the
holder of each share of Preferred Stock then
outstanding shall have the right to convert such
shares to receive stock, other securities or property
or assets (including cash) or any combination
thereof, having a value equal to the value of the
stock, other securities, property and assets
(including cash) which such holder would have been
entitled to receive upon such consolidation, merger,
combination, sale or transfer, or exchange, if he had
held the Common Stock issuable upon the conversion of
such shares of Preferred Stock immediately prior to
such consolidation, merger, combination, sale or
transfer, or exchange.
(v) In case the Corporation shall hereafter issue or
sell any shares of Common Stock (except as provided
in subparagraph (viii) below or except in connection
with a firm commitment underwritten public offering
of Common Stock registered under applicable
securities laws) for a consideration per share less
than the current market price per share (as
determined pursuant to subparagraph (vii) below) on
the date of such issuance or sale, the Conversion
Rate of the shares of Common Stock shall be adjusted
so that the same shall equal the price determined by
multiplying the Conversion Rate in effect immediately
prior to the date of such issuance or sale by a
fraction of which the numerator shall be the sum of
(i) the
6
<PAGE> 15
number of shares of Common Stock outstanding
immediately prior to such issuance or sale multiplied
by the current market price immediately prior to such
issuance or sale and (ii) the consideration received
by the Corporation upon such issuance or sale, and of
which the denominator shall be the total number of
shares of Common Stock outstanding after such
issuance or sale multiplied by the current market
price immediately prior to such issuance or sale.
(vi) In case the Corporation shall hereafter issue or
sell any securities convertible into Common Stock
entitling the holders thereof to convert such
securities into Common Stock at a price per share
less than the current market price per share of
Common Stock (as determined pursuant to subparagraph
(vii) below) on the date of such issuance or sale,
the Conversion Rate of the shares of Common Stock
shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Rate
in effect immediately prior to the date of such
issuance or sale of such securities by a fraction the
numerator of which shall be the number of shares of
Common Stock outstanding on the date of such issuance
or sale plus the number of shares of Common Stock
which the aggregate consideration which would be
received by the Corporation upon conversion of such
securities would purchase at such current market
price, and of which the denominator shall be the
number of shares of Common Stock outstanding on the
date of such issuance or sale plus the number of
additional shares of Common Stock issuable upon
conversion of such securities.
(vii) For the purpose of any computation under
subparagraphs (ii), (iii), (v), (vi) and paragraph 2
above, the current market price per share of Common
Stock on any date shall be deemed to be the average
of the daily closing prices per shares of Common
Stock for the twenty consecutive business days
selected by the Corporation ending within fifteen
days of the date in question. The closing price for
each day shall be the last reported sales prices
regular way, or, in case no such reported sales takes
place on such day, the average of the reported
closing bid and asked prices regular way in either
case, on the New York or American Stock Exchange, or,
if the Common Stock is not listed or admitted to
trading on such Exchanges or no such quotations are
available, the average of the closing bid and asked
prices in the over-the-counter market as furnished by
any member of the National Association of Securities
Dealers, Inc. selected from time to time by the
Corporation for that purpose, or, if no such
quotations are available, the fair market value of
the Common Stock as determined in good faith in the
exercise of their reasonable business judgment by the
Board of Directors of the Corporation.
7
<PAGE> 16
(viii) No adjustment in the Conversion Rate shall be
required in the case of (i) the grant by the
Corporation of stock options to officers, directors
or employees of the Corporation or any Subsidiary,
(ii) the issuance of shares of Common Stock pursuant
to the exercise of such stock options, whether
granted prior to or subsequent to the date hereof, or
(iii) the issuance of such additional shares of
Common Stock as may be issuable upon the exercise of
such stock options as a result of adjustment in the
number of shares covered by such options for stock
dividends, stock splits or other changes in the
capitalization of the Corporation.
(ix) No adjustment in the Conversion Rate shall be
required unless such adjustment would require an
increase or decrease of at least 1/100th of a share
in the conversion ratio resulting from the Conversion
Rate then in effect, provided however that any
adjustments which by reason of this paragraph (d) are
not required to be made shall be carried forward and
taken into account in any subsequent adjustment and
all calculations shall be made to the nearest cent or
to the nearest one-hundredth of a share as the case
may be.
(x) Whenever the Conversion Rate is adjusted, as
herein provided, the Corporation shall promptly file
with any conversion agent an officer's certificate
setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the
facts requiring such adjustment, which certificate
shall be conclusive evidence of the correctness of
such adjustment. Promptly after delivery of such
certificate, the Corporation shall prepare a notice
of such adjustment of the Conversion Price setting
forth the adjusted Conversion Price and the date on
which such adjustment becomes effective and shall
mail such notice of such adjustment of the conversion
Number to the holder of each share of Preferred Stock
at the last address of such holder as shown on the
stock books of the Corporation.
(xi) In any case in which this subsection (d)
provides that an adjustment shall become effective
immediately after a record date for an event, the
Corporation may defer until the occurrence of such
event (A) issuing to the holder of any share of
Preferred Stock converted after such record date and
before the occurrence of such event the additional
shares of Common Stock issuable upon such conversion
by reason of the adjustment required by such event
over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment
and (B) paying to such holder any amount in cash in
lieu of any fraction pursuant to subsection (c) of
this Section 5.
(e) The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights, out
of the aggregate of its authorized but unissued shares
8
<PAGE> 17
of Common Stock or its issued shares of Common Stock held in
it treasury, or both, for the purposes of effecting
conversions of the Preferred Stock, the full number of shares
of Common Stock deliverable upon the conversion of all
outstanding shares of Preferred Stock not theretofore
converted. For purposes of this subsection (e), the number of
shares of Common Stock which shall be deliverable upon the
conversion of all outstanding shares of Series A Preferred
Stock shall be computed as if at the time of computation all
such outstanding shares were held by a single holder.
6. VOTING RIGHTS. Except as may be otherwise specifically
provided in the Articles of Incorporation, as amended, or by
statute, each holder of shares of Preferred Stock shall in all
matters that alter or change the powers, preferences or rights
given to the Preferred Stock be entitled to one vote for each
share of Preferred Stock owned by such holder and the holders
of the Preferred Stock shall vote together as one class on any
matter that may be brought before any meeting of the
shareholders of the corporation relating to such matters.
Holders of Preferred Stock shall not have voting rights with
respect to any other matters.
So long as any shares of Preferred Stock shall be outstanding,
the Corporation shall not, without the affirmative vote or
consent of the holders of at least two-thirds of the aggregate
number of shares of Preferred Stock at the time outstanding,
voting as a class, alter or change the powers, preferences or
rights given to the holders of the Preferred Stock herein so
as to affect the holders of the Preferred Stock adversely.
7. SINKING FUND. The Corporation is not required to provide for
the retirement or redemption of the Preferred Stock through
the operation of a sinking fund.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles of
Amendment to be signed by a duly authorized officer and its corporate seal, duly
attested by another such officer, to be hereunto affixed this 12th day of July,
1991.
SULCUS COMPUTER CORPORATION
Attest:
/s/ Margaret Santone By: /s/ John W. Ryba
- --------------------------------- ------------------------------
Margaret Santone, Secretary John W. Ryba, Vice President
9
<PAGE> 18
Microfilm Number __________ Filed this 17th day of
December, 1997
Entity Number __________ Commonwealth of Pennsylvania
Department of State
Secretary of the Commonwealth
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
SULCUS HOSPITALITY TECHNOLOGIES CORP.
In compliance with the requirements of Section 1915 of the Business
Corporation Law of 1988 (P.L. 1444, No. 177), the undersigned corporation
desiring to amend its Articles of Incorporation, does hereby certify that:
FIRST: The name of the corporation is SULCUS HOSPITALITY TECHNOLOGIES CORP.
SECOND: The address of the corporation's current registered office in this
Commonwealth is: 41 North Main Street, Greensburg, Pennsylvania 15601.
THIRD: The statute under which the corporation was incorporated was the 1933
Business Corporation Law of the Commonwealth of Pennsylvania (P.L. 364, as
amended).
FOURTH: The date of its incorporation is November 5, 1979.
FIFTH: The amendments shall be effective upon filing these Articles of Amendment
in the Department of State.
SIXTH: The amendment on Exhibit "A" attached hereto and made a part hereof was
authorized by resolution duly adopted by at least a majority of the members of
the board of directors of the corporation. The amendments on Exhibit "B"
attached hereto and made a part hereof were adopted by at least a majority of
the members of the board of directors and by the shareholders pursuant to 15 Pa.
C.S. Section 1914(a) and (b).
SEVENTH: The Articles of Incorporation are hereby amended by the addition of a
provision stating the number, designation, relative rights, preferences, and
limitations of a series of 300,000 shares of Series B Junior Participating
Preferred Stock, no par value per share, under authority contained in the
Articles of Incorporation, as set forth on Exhibit "A" attached hereto and made
a part hereof.
<PAGE> 19
The Articles of Incorporation are hereby amended by the addition of the
provisions on Exhibit "B" attached hereto and made a part hereof describing
election of directors and filling vacancies on the Corporation's Board of
Directors, removal of directors, amendment to the corporation's By-laws and
actions taken by the shareholders.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these
Articles of Amendment to be signed by a duly authorized officer and its
corporate seal, duly attested by another such officer, to be hereunder affixed
this 11th day of December, 1997.
SULCUS HOSPITALITY TECHNOLOGIES CORP.
Attest:
/s/ John W. Ryba By: /s/ Leon D. Harris
- ---------------------------- ----------------------------------------
John W. Ryba, Secretary Leon D. Harris, Chief Executive Officer
<PAGE> 20
EXHIBIT "A"
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series B Junior Participating Preferred Stock" (the "Series B
Preferred Stock") and the number of shares constituting the Series B Preferred
Stock shall be 300,000. 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 B Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series B Preferred Stock.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares of any series of
preferred stock (or any similar stock) ranking prior and superior to the Series
B Preferred Stock with respect to dividends, the holders of shares of Series B
Preferred Stock, in preference to the holders of Common Stock, no par value (the
"Common Stock"), of the Corporation, and of any other junior stock, shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in cash on
the first day of March, June, September and December in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series B Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1 or (b)
subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series B Preferred Stock. In the event the Corporation shall at any time declare
or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend or distribution on the
Series B 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
<PAGE> 21
Dividend Payment Date, a dividend of $1 per share on the Series B 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 B 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 B Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series B 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 B 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 B Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series B Preferred Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the shareholders of the Corporation. In
the event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of shares of Series B
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 amendment to the
Articles of Incorporation creating a series of preferred stock or any similar
stock, or by law, the holders of shares of Series B Preferred Stock and the
holders of shares of Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all matters
submitted to a vote of shareholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series B Preferred Stock shall have no special voting rights and
their consent shall not be required (except to
2
<PAGE> 22
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 B 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 B Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B 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 B
Preferred Stock, except dividends paid ratably on the Series B
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 B Preferred
Stock, provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the Series
B Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series B Preferred Stock, or any shares of stock ranking
on a parity with the Series B Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined
by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Series B Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become
3
<PAGE> 23
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 or in any other amendment to the Articles of
Incorporation creating a series of preferred stock or any similar stock or as
otherwise required by law.
Section 6. LIQUIDATION. DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series B
Preferred Stock unless, prior thereto, the holders of shares of Series B
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 B
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series B Preferred Stock, except distributions made ratably on the Series B
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series B Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series B Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series B 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
4
<PAGE> 24
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 8. NO REDEMPTION. The shares of Series B Preferred Stock shall
not be redeemable.
Section 9. RANK. The Series B Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to all series
of any other class of the Corporation's preferred stock.
Section 10. AMENDMENT. The Articles of Incorporation of the Corporation
shall not be amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series B Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series B Preferred Stock, voting
together as a single class.
5
<PAGE> 25
EXHIBIT "B"
-----------
The new paragraphs shall read in their entirety as follows:
ELECTION OF DIRECTORS. The number of directors shall be fixed from time
to time exclusively by the Board of Directors pursuant to a resolution adopted
by a majority of the total number of authorized directors (whether or not there
exist any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board of Directors for adoption). At the 1997
annual meeting of shareholders, the directors were divided into three classes,
as nearly equal in number as possible, with the directors of the first class
elected for a term of one year, the directors of the second class elected for a
term of two years, and the directors of the third class elected for a term of
three years. At each annual meeting of shareholders following such initial
classification and election, directors elected to succeed those directors whose
terms expire shall be elected for a term of office to expire at the third
succeeding annual meeting of shareholders after their election.
VACANCIES ON THE BOARD. Subject to the rights of the holders of any
class or series of the capital stock of the Corporation entitled to vote
generally in the election of directors (hereinafter referred to as the "Voting
Stock") then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office, or other cause may be filled only by a majority vote of the
directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the annual meeting of shareholders at
which the term of office of the class to which they have been elected expires.
No decrease in the number of authorized directors constituting the entire Board
of Directors shall shorten the term of any incumbent director.
REMOVAL OF DIRECTORS. Subject to the rights of the holders of any class
or series of the Voting Stock then outstanding, any director, or the entire
Board of Directors, may be removed from office at any time, but only for cause
and only by the affirmative vote of the holders of at least 80% of the voting
power of all of the then outstanding shares of the Voting Stock, voting together
as a single class (it being understood that, for all purposes of this paragraph
and the following three paragraphs of these Articles of Incorporation and the
provisions of the By-Laws of the Corporation which require the affirmative vote
of the holders of at least 80% of the voting power of all of the then
outstanding shares of the Voting Stock, voting together as a single class, to
alter, amend or repeal any provision of the By-Laws which is to the same effect
as the provisions of these Articles of Incorporation, each share of the Voting
Stock shall have the number of votes granted to it pursuant to these Articles of
Incorporation or any designation of the rights, powers and preferences of any
class or series of Preferred Stock made pursuant to these Articles of
Incorporation (a "Preferred Stock Designation")).
Notwithstanding any other provisions of these Articles of Incorporation
or any provision of law which might otherwise permit a lesser vote or no vote,
but in addition to any affirmative vote of the holders of any particular class
or series of the Voting Stock required by law, these Articles of Incorporation
or any Preferred Stock Designation, the affirmative vote of the holders of at
least 80%
<PAGE> 26
of the voting power of all of the then outstanding shares of the Voting Stock,
voting together as a single class, shall be required to alter, amend or repeal
this paragraph of these Articles of Incorporation.
AMENDMENTS TO BY-LAWS. The Corporation's Board of Directors is hereby
expressly authorized, at any time or from time to time, to make, alter, amend
and repeal the By-Laws as set forth in the By-Laws.
ACTION OF SHAREHOLDERS. Any action required or permitted to be taken by
the shareholders of the Corporation must be effected at an annual or special
meeting of shareholders of the Corporation and may not be effected by any
consent in writing by such shareholders. Special meetings of shareholders of the
Corporation may be called only by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously authorized directorships
at the time any such resolution is presented to the Board of Directors for
adoption). Notwithstanding any other provisions of these Articles of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, these Articles
of Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least 80% of the voting power of all of the then outstanding
shares of the Voting Stock, voting together as a single class, shall be required
to alter, amend or repeal this paragraph of these Articles of Incorporation.
2
<PAGE> 1
Exhibit 4.2
SULCUS HOSPITALITY TECHNOLOGIES CORP.
(FORMERLY KNOWN AS SULCUS COMPUTER CORPORATION)
AMENDED AND RESTATED
BY-LAWS
(ADOPTED ON NOVEMBER 14, 1997)
ARTICLE I
OFFICES
Section 1. The registered office shall be located in the City of
Greensburg, Commonwealth of Pennsylvania.
Section 2. The Corporation may also have offices at such other places
both within and without the Commonwealth of Pennsylvania as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. All meetings of the shareholders shall be held at such place
within or without the Commonwealth, as may be from time to time fixed or
determined by the Board of Directors.
One or more shareholders may participate in a meeting of the
shareholders by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting may hear
each other.
Section 2. An annual meeting of the shareholders, commencing with the
year 1998, shall be held within 120 days of the close of the Corporation's
fiscal year, on such day and at such hour as the Board of Directors may
designate, when the shareholders shall elect by a plurality vote Directors
<PAGE> 2
to serve on the Board of Directors, and shall transact such other business as
may properly be brought before the meeting.
Section 3. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Articles of
Incorporation, may be called pursuant to a resolution adopted by at least a
majority of the Board of Directors (whether or not there exist any vacancies on
the Board of Directors at the time such resolution is presented for adoption).
The Board of Directors shall deliver a written request to the Secretary of the
Corporation to call the special meeting. Such request shall state the purpose or
purposes of the proposed meeting. Upon receipt of any such request, it shall be
the duty of the Secretary to call a special meeting of the shareholders to be
held at such time, not more than sixty (60) days thereafter, as the Secretary
may fix. If the Secretary shall neglect to issue such call, the person or
persons making the request may issue the call.
Section 4. Written notice of every meeting of the shareholders,
specifying the place, date and hour and the general nature of the business of
the meeting, shall be served upon or mailed, postage prepaid, at least five days
prior to the meeting, unless a greater period of notice is required by statute,
to each shareholder entitled to vote thereat.
Section 5. Except as otherwise provided by law the officer having charge
of the transfer books for shares of the Corporation shall prepare and make a
complete list of the shareholders entitled to vote at the meeting, arranged in
alphabetical order, with the address and the number of shares held by each. Such
list shall be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder during the whole time of
the meeting.
Section 6. Business transacted at all special meetings of shareholders
shall be limited to the purposes stated in the notice.
2
<PAGE> 3
Section 7. The holders of a majority of the issued and outstanding
shares entitled to vote, present in person or represented by proxy, shall be
requisite and shall constitute a quorum at all meetings of the shareholders for
the transaction of business, except as otherwise provided by statute or by the
Articles of Incorporation of the Corporation or by these By-Laws. If, however,
any meeting of shareholders cannot be organized because a quorum has not
attended, the shareholders entitled to vote thereat, present in person or by
proxy, shall have power, except as otherwise provided by statute, to adjourn the
meeting to such time and place as they may determine, but in the case of any
meeting called for the election of directors such meeting may be adjourned only
from day to day or for such longer periods not exceeding fifteen (15) days each
as the holders of a majority of the shares present in person or by proxy shall
direct. Those shareholders entitled to vote who attend a meeting called for the
election of directors that has been previously adjourned for lack of a quorum,
although less than a quorum, shall nevertheless constitute a quorum for the
purpose of electing directors.
Those shareholders entitled to vote who attend a meeting of shareholders
that has been previously adjourned for one or more periods aggregating at least
fifteen (15) days because of an absence of a quorum, although less than a
quorum, shall nevertheless constitute a quorum for the purpose of acting upon
any matter set forth in the notice of the meeting if the notice states that
those shareholders who attend the adjourned meeting shall nevertheless
constitute a quorum for the purpose of acting upon the matter. At any adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 8. When a quorum is present or represented at any meeting, the
vote of the holders of a majority of the shares having voting powers, present in
person or represented by proxy, shall
3
<PAGE> 4
decide any question brought before such meeting, unless the question is one upon
which, by express provision of the statutes or of the Articles of Incorporation
or of these By-Laws, a different vote is required in which case such express
provision shall govern and control the decision of such question.
Section 9. Each shareholder shall at every meeting of the shareholders
be entitled to one vote in person or by proxy for each share having voting power
held by such shareholder. A proxy, unless coupled with an interest, shall be
revocable at will, notwithstanding any other agreement or any provision in the
proxy to the contrary, but the revocation of a proxy shall not be effective
until written notice thereof has been given to the Secretary of the Corporation.
An unrevoked proxy shall not be valid after three years from the date of its
execution unless a longer time is expressly provided therein. A proxy shall not
be revoked by the death or incapacity of the maker unless, before the vote is
counted or the authority is exercised, written notice of the death or incapacity
is given to the Secretary of the Corporation.
Section 10. In advance of any meeting of shareholders, the Board of
Directors may appoint judges of election, who need not be shareholders, to act
at such meeting or any adjournment thereof. If judges of election be not so
appointed, the chairman of any such meeting may, and on the request of any
shareholder or his proxy, shall make such appointment at the meeting. The number
of judges shall be one or three. If appointed at a meeting on the request of one
or more shareholders or proxies, the majority of shares present and entitled to
vote shall determine whether one or three judges are to be appointed. No person
who is a candidate for office shall act as a judge. The judges of election shall
do all such acts as may be proper to conduct the election or vote with fairness
to all share holders, and shall make a written report of any matter determined
by them and execute a certificate of any fact found by them, if requested by the
chairman of the meeting or any shareholder
4
<PAGE> 5
or his proxy. If there be three judges of election the decision, act or
certificate of a majority, shall be effected in all respects as the decision,
act or certificate of all.
Section 11. Any action required or permitted to be taken by the
shareholders of the Corporation must be effected at a duly called annual or
special meeting of shareholders of the Corporation and may not be effected by
any consent in writing by such shareholders.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than one nor more than seven, the exact number of which
shall be fixed from time to time exclusively by the Board of Directors pursuant
to a resolution adopted by a majority of the total number of directors (whether
or not there exist any vacancies in previously authorized directorships at the
time any such resolution is presented to the Board of Directors for adoption).
The directors shall be elected at the annual meeting of the shareholders, except
as provided in Section 2 of this Article III, and each director shall hold
office until his successor is elected and qualified. Directors need not be
shareholders.
Section 2. At the 1997 annual meeting of shareholders, the directors
shall be divided into three classes, as nearly equal in number as possible, with
the directors of the first class elected for a term of one year, the directors
of the second class elected for a term of two years, and the directors of the
third class elected for a term of three years. At each annual meeting of
shareholders following such initial classification and election, directors
elected to succeed those directors whose terms expire shall
5
<PAGE> 6
be elected for a term of office to expire at the third succeeding annual meeting
of shareholders after their election.
Section 3. A resignation from the Board of Directors shall be deemed to
take effect immediately upon its being received by any incumbent corporate
officer other than an officer who is also the resigning Director, unless some
other time is specified therein.
Section 4. Subject to the rights of the holders of any class or series
of the capital stock of the Corporation entitled to vote generally in the
election of directors (hereinafter in these By-Laws referred to as the "Voting
Stock") then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause may be filled only by a majority vote of the
directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the annual meeting of shareholders at
which the term of office of the class to which they have been elected expires.
No decrease in the authorized number of directors constituting the entire Board
of Directors shall shorten the term of any incumbent director.
Section 5. Subject to the rights of the holders of any class or series
of the Voting Stock then outstanding, any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least 80% of the voting power of
all of the then outstanding shares of the Voting Stock, voting together as a
single class (it being understood that, for all purposes of these By-Laws, each
share of the Voting Stock shall have the number of votes granted to it pursuant
to the Articles of Incorporation of the Corporation or any
6
<PAGE> 7
designation of the rights, powers and preferences of any class or series of the
Preferred Stock of the Corporation made pursuant to the Articles of
Incorporation (a "Preferred Stock Designation")).
Section 6. The business of the Corporation shall be managed by its Board
of Directors which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the Corporation's
Articles of Incorporation or by these By-Laws, directed or required to be
exercised and done by the shareholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 7. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the Commonwealth of
Pennsylvania.
One or more directors may participate in a meeting of the Board of
Directors or of a committee of the Board of Directors by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other.
Section 8. The first meeting of each newly elected Board of Directors
shall be held at such time and place as shall be fixed by the shareholders at
the meeting at which such directors were elected and no notice of such meeting
shall be necessary to the newly elected directors in order legally to constitute
the meeting, provided a majority of the whole Board shall be present. In the
event of the failure of the shareholders to fix the time or place of such first
meeting of the newly elected Board of Directors, or in the event such meeting is
not held at the time and place so fixed by the shareholders, the meeting may be
held at such time and place as shall be specified in a notice given as
hereinafter provided for such meetings of the Board of Directors, or as shall be
specified in a written waiver signed by all of the directors.
7
<PAGE> 8
Section 9. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be
determined by resolution of at least a majority of the Board of Directors at a
duly convened meeting, or by unanimous written consent.
Section 10. Special meetings of the Board of Directors may be called by
the Chief Executive Officer on five days' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
Chief Executive Officer or Secretary in like manner and on like notice on the
written request of a majority of the directors then in office.
Section 11. At all meetings of the Board a majority of the directors in
office shall be necessary to constitute a quorum for the transaction of
business, and the acts of a majority of the directors present at a meeting at
which a quorum is present shall be the acts of the Board of Directors, except as
may be otherwise specifically provided by statute or by the Articles of
Incorporation. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 12. If all the directors shall severally or collectively consent
in writing to any action to be taken by the Corporation, such action shall be as
valid a corporate action as though it had been authorized at a meeting of the
Board of Directors.
COMMITTEES
Section 13. The Board of Directors may, by resolution adopted by a
majority of the whole Board of Directors, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as
8
<PAGE> 9
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. Any such committee, to the extent
provided in such resolution or in these By-Laws, shall have and exercise the
authority of the Board of Directors in the management of the business and
affairs of the Corporation except that a committee shall not have any power or
authority as to the following: (a) the submission to shareholders of any action
requiring approval of shareholders under this subpart; (b) the creation or
filling of vacancies in the Board of Directors; (c) the adoption, amendment or
repeal of the By-Laws; (d) the amendment or repeal of any resolution of the
Board of Directors that by its terms is amendable or repealable only by the
Board of Directors; and (e) action on matters committed by the By-Laws or
resolution of the Board of Directors to another committee of the Board of
Directors. In the absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another director to act at the meeting in the place of any
such absent or disqualified member. The committees shall keep regular minutes of
the proceedings and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 14. Directors shall not receive any salary for their services,
but by resolution of the Board of Directors, a fixed sum and expenses of
attendance, if any, may be allowed for attendance at any meeting of the Board of
Directors. This shall not preclude any director from serving the Corporation in
any other capacity and receiving compensation therefor.
9
<PAGE> 10
Any payments made to a director of the Corporation such as a salary,
commission, bonus, interest or rent, or entertainment expense incurred by him,
which shall be disallowed in whole or in part as a deductible expense by the
Internal Revenue Service, shall be reimbursed by such director to the
Corporation to the full extent of such disallowance. It shall be the duty of the
directors, as a Board of Directors, to enforce payment of each such amount
disallowed. In lieu of payment by the director, subject to the determination of
the directors, proportionate amounts may be withheld from his future
compensation and/or expense reimbursements until the amount owed to the
Corporation has been recovered.
ARTICLE IV
NOTICES
Section 1. Notices to directors and shareholders shall be given to the
person either personally or by sending a copy thereof by first class or express
mail, postage prepaid, or by telegram (with messenger service specified), telex
or TWX (with answerback received) or courier service, charges prepaid, or by
telecopier, to his address (or to his telex, TWX, telecopier or telephone
number) appearing on the books of the Corporation or, in the case of directors,
supplied by him to the Corporation for the purpose of notice. If the notice is
sent by mail, telegraph or courier service, it shall be deemed to have been
given to the person entitled thereto when deposited in the United States mail or
with a telegraph office or courier service for delivery to that person or, in
the case of telex or TWX, when dispatched. A notice of meeting shall specify the
place, day and hour of the meeting and any other information required by law.
When a meeting of shareholders is adjourned, it shall not be necessary to give
any notice of the adjourned meeting or of the business to be transacted at an
10
<PAGE> 11
adjourned meeting, other than by announcement at the meeting at which the
adjournment is taken, unless the Board of Directors fixes a new record date for
the adjourned meeting.
Section 2. Whenever any written notice is required to be given under the
provisions of law or the Articles of Incorporation or By-Laws, a waiver thereof
in writing, signed by the person or persons entitled to the notice, whether
before or after the time stated therein, shall be deemed equivalent to the
giving of the notice. Except as otherwise required by this Section 2, neither
the business to be transacted at, nor the purpose of, a meeting need be
specified in the waiver of notice of the meeting. In the case of a special
meeting of shareholders, the waiver of notice shall specify the general nature
of the business to be transacted. Attendance of a person at any meeting shall
constitute a waiver of notice of the meeting except where a person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting was not lawfully called
or convened.
ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board
of Directors and shall be a President or Chief Executive Officer, a Secretary
and a Treasurer. The President or Chief Executive Officer and the Secretary
shall be natural persons of full age; the Treasurer may be a corporation but, if
a natural person, shall be of full age. The Board of Directors may also choose
Vice Presidents and one or more Assistant Secretaries and Assistant Treasurers.
Any number of the aforesaid offices may be held by the same person.
11
<PAGE> 12
Section 2. The Board of Directors, immediately after each annual meeting
of shareholders, shall elect a President or Chief Executive Officer, who may,
but need not be, a director, and the Board of Directors shall also annually
choose a Secretary and a Treasurer who need not be members of the Board of
Directors.
Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board of Directors.
Section 4. The salaries of all officers and agents of the Corporation
shall be fixed by the Board of Directors. Any payments made to an officer of the
Corporation such as a salary, commission, bonus, interest or rent, or
entertainment expense incurred by him, which shall be disallowed in whole or in
part as a deductible expense by the Internal Revenue Service, shall be
reimbursed by such officer to the Corporation to the full extent of such
disallowance. It shall be the duty of the directors, as a Board of Directors, to
enforce payment of each such amount disallowed. In lieu of payment by the
officer, subject to the determination of the directors, proportionate amounts
may be withheld from his future compensation and/or expense reimbursements until
the amount owed to the Corporation has been recovered.
Section 5. The officers of the Corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the Board
of Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors.
Section 6. If required by the Board of Directors, an officer shall give
the Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the
12
<PAGE> 13
faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
THE PRESIDENT
Section 7. The President (or Chief Executive Officer) shall be the chief
executive officer of the Corporation, shall preside at all meetings of the
shareholders and the Board of Directors, shall have general and active
management of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect.
Section 8. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation.
THE VICE-PRESIDENTS
Section 9. The Vice President, or if there shall be more than one, the
Vice Presidents in the order determined by the Board of Directors, shall, in the
absence or disability of the President or Chief Executive Officer, as the case
may be, perform the duties and exercise the powers of the President, and shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
13
<PAGE> 14
THE SECRETARY AND ASSISTANT SECRETARIES
Section 10. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the shareholders and record all the proceedings of
the meetings of the Corporation and of the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the executive committee,
if there is an executive committee, when required. He shall give, or cause to be
given, notice of all meetings of the shareholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or President (or Chief Executive Officer), under whose
supervision he shall be. He shall keep in safe custody the seal of the
Corporation and, when authorized by the Board of Directors, affix the same to
any instrument requiring it and, when so affixed, it shall be attested by his
signature or by the signature of an Assistant Secretary.
Section 11. The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors, shall,
in the absence or disability of the Secretary, perform the duties and exercise
the powers of the Secretary and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 12. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors.
14
<PAGE> 15
Section 13. He shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President or Chief Executive Officer and
the Board of Directors, at its regular meetings, or when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation.
Section 14. The Assistant Treasurer, or if there shall be more than one,
the Assistant Treasurers in the order determined by the Board of Directors,
shall, in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
ARTICLE VI
CERTIFICATES OF SHARES
Section 1. The shares of the Corporation shall be represented by a
certificate or certificates. The certificates of shares of the Corporation shall
be numbered and registered in a share register as they are issued. They shall
exhibit the name of the registered holder and the number and class of shares and
the series, if any, represented thereby and the par value of each share or a
statement that such shares are without par value, as the case may be. If more
than one class of shares is authorized, the certificate shall state that the
Corporation will furnish to any shareholder, upon request and without charge a
full or summary statement of the designations, preferences, limitations and
relative rights of the shares of each class authorized to be issued, and the
variations thereof between the shares of each series, and the authority of the
Board of Directors to fix and determine the relative rights and preferences of
subsequent series.
15
<PAGE> 16
Section 2. Every share certificate shall be signed by the Chief
Executive Officer and the Secretary. Where a certificate is signed by a transfer
agent or an assistant transfer agent or a registrar, the signature of any such
Chief Executive Officer or Secretary may be facsimile. In case any officer or
officers who have signed, or whose facsimile signature or signatures have been
used on, any such certificate or certificates shall cease to be such officer or
officers of the Corporation, whether because of death, resignation or otherwise,
before such certificate or certificates have been delivered by the Corporation,
such certificate or certificates may nevertheless be adopted by the Corporation
and be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the Corporation.
LOST CERTIFICATES
Section 3. The Board of Directors shall direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, destroyed or
wrongfully taken, upon the making of an affidavit of that fact by the person
claiming the share certificate to be lost, destroyed or wrongfully taken. 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, destroyed or wrongfully taken,
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and give the Corporation a bond in such sum
as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate or certificates alleged to have been
lost, destroyed or wrongfully taken.
16
<PAGE> 17
TRANSFERS OF SHARES
Section 4. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 5. The Board of Directors may fix a time, not more than ninety
(90) days, prior to the date of any meeting of shareholders or the date fixed
for the payment of any dividend or distribution or the date for the allotment of
rights or the date when any change or conversion or exchange of shares will be
made or go into effect, as a record date for the determination of the
shareholders entitled to notice of and to vote at any such meeting or entitled
to receive payment of any such dividend or distribution or to receive any such
allotment of rights or to exercise the rights in respect to any such change,
conversion or exchange of shares. In such case only such shareholders as shall
be shareholders of record on the date so fixed shall be entitled to notice of
and to vote at such meeting or to receive payment of such dividend or to receive
such allotment of rights or to exercise such rights, as the case may be,
notwithstanding any transfer of any shares on the books of the Corporation after
any record date so fixed. The Board of Directors may close the books of the
Corporation against transfers of shares during the whole or any part of such
period and in such case written or printed notice thereof shall be mailed at
least ten (10) days before the closing thereof to each shareholder of record at
the address appearing on the records of the Corporation or supplied by him to
the Corporation for the purpose of notice.
17
<PAGE> 18
REGISTERED SHAREHOLDERS
Section 6. The Corporation shall be entitled to treat the holder of
record of any share or shares as the holder in fact thereof and shall not be
bound to recognize any equitable or other claim to or interest in such share on
the part of any other person, and shall not be liable for any registration or
transfer of shares which are registered or to be registered in the name of a
fiduciary or the nominee of a fiduciary unless made with actual knowledge that a
fiduciary or nominee of a fiduciary is committing a breach of trust in
requesting such registration or transfer, or with knowledge of such facts that
its participation therein amounts to bad faith.
ARTICLE VII
GENERAL PROVISIONS
DISTRIBUTIONS
Section 1. Distributions upon the shares of the Corporation, subject to
the provisions of the Articles of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, pursuant to law.
Distributions may be paid in cash, in property, or in its shares, subject to the
provisions of the Articles of Incorporation.
Section 2. Before payment of any distributions, there may be set aside
out of any funds of the Corporation available for distributions such sum or sums
as the directors from time to time, in their absolute discretion, think proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
18
<PAGE> 19
FINANCIAL REPORT TO SHAREHOLDERS
Section 3. The directors shall cause to be sent to the shareholders,
within 120 days after the close of the fiscal year, a financial statement as of
the closing date of the preceding fiscal year. Such financial statement shall
include a balance sheet as of the close of such year, together with statements
of income and expenses for such year, prepared so as to present fairly the
Corporation's financial condition and the results of its operations.
CHECKS
Section 4. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of
the Corporation and the year and state of its organization. The seal may be used
by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
19
<PAGE> 20
ARTICLE VIII
AMENDMENTS
Unless otherwise provided in the Articles of Incorporation, these
By-Laws may be amended by a vote of at least a majority of the members of the
Board of Directors at any regular or special meeting duly convened after the
notice of that purpose, subject always to the power of shareholders under law
and in accordance with the Articles of Incorporation to change such action.
ARTICLE IX
LIMITATION ON DIRECTORS' PERSONAL LIABILITY;
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. A director of the Corporation shall not be personally liable
for monetary damages for any action taken or failure to take any action unless
the director has breached or failed to perform the duties of his or her office
under Sections 1712 and 1715 of the Pennsylvania Business Corporation Law of
1988 and such breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness; provided, however, that the foregoing provision
shall not eliminate or limit the liability of a director (i) for any
responsibility or liability of such director pursuant to any criminal statute,
or (ii) for any liability of a director for the payment of taxes pursuant to
local, state or federal law.
Section 2. The Corporation shall indemnify to the full extent authorized
or permitted by law, any person made, or threatened to be made, a party to or
otherwise involved in (as a witness or otherwise) an action, suit or proceeding
(whether civil, criminal, administrative or investigative, and whether by or in
the right of the Corporation or otherwise) by reason of the fact that the person
is
20
<PAGE> 21
or was a director or officer of the Corporation or while a director or officer
of the Corporation, either serves or served as a director, officer, trustee,
employee or agent of any other related enterprise or in connection with a
related employee benefit plan at the request of the Corporation or serves or
served as a director, officer, trustee, employee or agent of any other unrelated
enterprise at the specific written request of the Corporation against any
expenses and liability actually incurred including without limitation judgments
and amounts paid or to be paid in settlement of and in actions brought by or in
the right of the Corporation. Expenses incurred by such a person in defending a
civil or criminal action, suit or proceeding or in enforcing any right under
this Article IX shall be paid by the Corporation in advance of the final
disposition of the action, suit or proceeding upon receipt of an undertaking by
or on behalf of such person to repay such amount to the extent it shall
ultimately be determined that such person is not entitled to be indemnified by
the Corporation or, in the case of a criminal action, the majority of the Board
of Directors so determines. The right to indemnification and advancement of
expenses conferred in this Section 2 shall not be deemed exclusive of any other
rights to which any person indemnified may be entitled under any agreement, vote
of shareholders or directors or otherwise, the Corporation having the express
authority to enter such agreements as the Board of Directors deems appropriate
for the indemnification of and advancement of expenses, including the creation
of a fund therefor or equivalent guarantee, to present or future directors and
officers of the Corporation in connection with their service as director or
officer of the Corporation or their service as director, officer, trustee,
employee or agent of any other enterprise or in connection with an employee
benefit plan at the request of the Corporation. The right to indemnification and
the advancement of expenses provided in this Section 2 shall be a contract
right, shall continue as to a
21
<PAGE> 22
person who has ceased to serve in the capacities described herein, and shall
inure to the benefit of the heirs, executors and administrators of such person.
Section 3. No amendment, alteration or repeal of this Article IX, nor
the adoption of any provision inconsistent with this Article IX, shall adversely
affect any limitation on the personal liability of a director or officer, or the
rights of a director or officer to indemnification and advancement of expenses,
existing at the time of such amendment, modification or repeal, or the adoption
of such an inconsistent provision.
22
<PAGE> 1
Exhibit 4.3
EMPLOYEE STOCK PURCHASE PLAN
OF
SULCUS HOSPITALITY TECHNOLOGIES CORP.
1. PURPOSE OF THE PLAN. This Sulcus Hospitality Technologies Corp.
Employee Stock Purchase Plan adopted on this 13th day of October, 1997, is
intended to encourage eligible employees of the Company and its Subsidiaries to
acquire or increase their ownership of common stock of the Company on reasonable
terms. The opportunity so provided is intended to foster in participants a
strong incentive to put forth maximum effort for the continued success and
growth of the Company and its Subsidiaries, to aid in retaining individuals who
put forth such efforts, and to assist in attracting the best available
individuals to the Company and its Subsidiaries in the future. It is the
Company's intention that this Employee Stock Purchase Plan qualify as an
"employee stock purchase plan" under Section 423 of the Code. Accordingly, the
provisions of the Plan shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code.
2. DEFINITIONS. When used herein, the following terms shall have the
meanings set forth below:
2.1 "ACCOUNT" means the funds accumulated with respect to an
Employee as a result of deductions from his paycheck for the purpose of
purchasing Shares under the Plan. The funds allocated to an Employee's
Account shall remain the property of the Employee at all times but may
be commingled with the general funds of the Company.
2.2 "BOARD" means the Board of Directors of Sulcus Hospitality
Technologies Corp.
1
<PAGE> 2
2.3 "CHANGE IN CONTROL" means a change in control of the
Company of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Exchange Act (as in effect on the date the Plan is adopted by the
Board), whether or not the Company is then subject to such reporting
requirement; provided, that, without limitation, such a change in
control shall be deemed to have occurred if:
(a) any "person" (as defined in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company
representing twenty percent (20%) or more of the combined
voting power of the Company's then outstanding securities; or
(b) During any period of two (2) consecutive years
(not including any period prior to the date the Plan is
adopted by the Board) there shall cease to be a majority of
the Board comprised of Continuing Directors; or
(c) (i) the shareholders of the Company approve a
merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) at least eighty percent
(80%) of the combined voting power of the voting securities of
the Company or such surviving entity outstanding immediately
after such merger or consolidation; or
2
<PAGE> 3
(ii) the shareholders of the Company approve
a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or
substantially all of the Company's assets.
2.4 "CODE" means the Internal Revenue Code of 1986, as in
effect at the time of reference, or any successor revenue code which
may hereafter be adopted in lieu thereof, and reference to any specific
provisions of the Code shall refer to the corresponding provisions of
the Code as it may hereafter be amended or replaced.
2.5 "COMMITTEE" means the Stock Option Committee of the Board
or any other committee appointed by the Board which is invested by the
Board with responsibility for the administration of the Plan and whose
members meet the requirements for eligibility to serve as set forth in
the Plan.
2.6 "COMPANY" means Sulcus Hospitality Technologies Corp.
2.7 "CONTINUING DIRECTORS" means individuals who at the
beginning of any period of two (2) consecutive years (not including any
period prior to the adoption of this Plan) constitute the Board and any
new director(s) whose election by the Board or nomination for election
by the Company's shareholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved.
2.8 "ELIGIBLE COMPENSATION" means the regular compensation
(i.e., straight time earnings or draw) earned by an Employee during a
payroll period, before deductions or withholdings, but shall exclude,
unless the Committee determines otherwise, all other amounts,
including, but not limited to, (i) amounts paid as bonuses, for
overtime, as the reimbursement of expenses and other additional
compensation, (ii) all amounts contributed
3
<PAGE> 4
by the Company or any Subsidiary under any profit-sharing, pension,
retirement, group insurance or other employee welfare benefit plan or
trust whether now in existence or hereinafter adopted and (iii) any
income from stock option exercises or other equity based compensation.
2.9 "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as in effect at the time of reference, or any successor law which may
hereafter be adopted in lieu thereof, and any reference to any specific
provisions of the Exchange Act shall refer to the corresponding
provisions of the Exchange Act as it may hereafter be amended or
replaced.
2.10 "EMPLOYEES" means persons employed by the Company or any
of its Subsidiaries; provided, however, that no person shall be
considered an Employee unless he (i) is customarily employed by the
Company or any of its Subsidiaries for more than twenty (20) hours per
week and more than five (5) months in a calendar year and (ii) has been
employed by the Company or any of its Subsidiaries for at least twelve
(12) consecutive months as of the Offering Commencement Date of any
such offering.
2.11 "FAIR MARKET VALUE" means, with respect to the Shares,
the closing price of the Shares on the American Stock Exchange or other
national securities exchange, on the last business day prior to the
date on which the value is to be determined, as reported in THE WALL
STREET JOURNAL or such other source of quotations for, or reports of
trading of, the Shares as the Committee may reasonably select from time
to time; provided, however, if the Shares are not then traded on such
an exchange, but are then traded on the over-the-counter market, Fair
Market Value means the mean between the high and the low bid and asked
prices for the Shares on the over-the-counter market on the last
business day prior to the date on which the value is to be determined
(or the next preceding day on which sales occurred if there were no
4
<PAGE> 5
sales on such date); provided further, however, if no sales have
occurred in the over-the-counter market during the three week period
preceding the date on which the value is to be determined, Fair Market
Value means the average of the mean between the high and low bid and
asked prices for the Shares on the over-the-counter market for the
three (3) month period ending on the last business day prior to the
date on which the value is to be determined; provided, further,
however, if the Shares are reported in the National Market List of the
National Association of Securities Dealers, Inc. Automated Quotation
System, the closing price shall be substituted above for the mean of
the high and the low bid and asked prices.
2.12 "OFFERING COMMENCEMENT DATE" means January 1 or July 1,
as the case may be, or any other date determined by the Committee, on
which a particular offering begins.
2.13 "OFFERING TERMINATION DATE" means the June 30 or December
31, as the case may be, or any other date determined by the Committee,
on which a particular offering terminates.
2.14 "OPTION" means the right granted to an Employee to
purchase Shares pursuant to an offering made under the Plan and
pursuant to such Employee's election to purchase Shares in such
offering, at a price, and subject to such limitations and restrictions
as the Plan and the Committee may impose.
2.15 "PARENT" means any corporation, other than the employer
corporation, in an unbroken chain of corporations ending with the
employer corporation if each of the corporations other than the
employer corporation owns stock possessing fifty percent (50%) or more
of the total combined voting power of all classes of stock in one of
the other corporations in such chain.
5
<PAGE> 6
2.16 "PLAN" means Sulcus Hospitality Technologies Corp.
Employee Stock Purchase Plan.
2.17 "PURCHASE PERIOD" means the period commencing on the
Offering Commencement Date and ending on the Offering Termination Date
during which installment payments for Shares purchased pursuant to
Options granted pursuant to an offering made under the Plan shall be
made.
2.18 "RULE 16b-3" means Rule 16b-3 of the General Rules and
Regulations of the Exchange Act, as in effect at the time of reference,
or any successor rules or regulations which may hereafter be adopted in
lieu thereof, and any reference to any specific provisions of Rule
16b-3 shall refer to the corresponding provisions of Rule 16b-3 as it
may hereafter be amended or replaced.
2.19 "SHARES" means shares of the Company's no par value
common stock or, if by reason of the adjustment provisions contained
herein, any rights under the Plan pertain to any other security, such
other security.
2.20 "SUBSIDIARY" or "SUBSIDIARIES" means any corporation or
corporations other than the employer corporation in an unbroken chain
of corporations beginning with the employer corporation if each of the
corporations other than the last corporation in the unbroken chain owns
stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations
in such chain.
2.21 "SUCCESSOR" means the legal representative of the estate
of a deceased Employee or the person or persons who shall acquire the
right to exercise or receive an Option by bequest or inheritance or by
reason of the death of the Employee.
6
<PAGE> 7
3. STOCK SUBJECT TO THE PLAN. There will be reserved for use, upon the
exercise of Options to be granted from time to time pursuant to offerings made
under the Plan, an aggregate of 500,000 Shares, which Shares may be, in whole or
in part, as the Board shall from time to time determine, authorized but unissued
Shares, or issued Shares which shall have been reacquired by the Company. The
number of Shares reserved under the Plan may be issued pursuant to the exercise
of Options granted pursuant to one or more offerings made under the Plan. Any
Shares subject to issuance upon exercise of Options but which are not issued
because of a surrender, lapse, expiration or termination of any such Option
prior to issuance of the Shares shall once again be available for issuance in
satisfaction of Options.
4. ADMINISTRATION OF THE PLAN. The Board shall appoint the Committee to
administer the Plan. Subject to the provisions of the Plan, the Committee shall
have full authority, in its discretion, to determine when offerings will be made
under the Plan, the number of Shares available for purchase in any such
offering, and the terms and conditions of any such offering; to amend or cancel
options (subject to Section 25 of the Plan); to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to the Plan; and
generally to interpret and determine any and all matters whatsoever relating to
the administration of the Plan, including the designation of individuals
responsible for the day-to-day operation of the Plan. All decisions,
determinations and interpretations made by the Committee shall be binding and
conclusive on all participants in the Plan and on their legal representatives,
heirs and beneficiaries. The Board may from time to time appoint members to the
Committee in substitution for or in addition to members previously appointed and
may fill vacancies, however caused, in the Committee. No member of the Committee
shall be liable, in the absence of bad faith, for any act or omission with
respect to his service on the Committee.
7
<PAGE> 8
5. OFFERINGS. Unless the Committee, in its discretion, determines
otherwise, the Plan will be implemented by up to twenty (20) consecutive six (6)
month offerings. The first offering under the Plan shall commence on October 13,
1997 and terminate on December 31, 1997. Thereafter, offerings shall commence on
each subsequent January 1 and July 1 and terminate on the following June 30 and
December 31, respectively, of such year until the Plan is terminated or no
additional Shares are available for purchase under the Plan.
6. ELIGIBILITY TO PARTICIPATE IN OFFERINGS. All Employees shall be
eligible to participate in the Plan; provided, however, that the Committee may
exclude the Employees of any specified Subsidiary from any offering made under
the Plan; and provided further, that the Committee may determine that any
offering of Shares made under the Plan will not be extended to highly
compensated Employees (within the meaning of Section 414(q) of the Code).
7. PARTICIPATION. An eligible Employee may become a participant in the
Plan by completing, signing and filing a subscription agreement ("Subscription
Agreement") which shall designate a whole percentage of his Eligible
Compensation, not to exceed ten percent (10%), to be withheld during the
Purchase Period of any offering in which he participates, and any other
necessary papers, including, but not limited to, any forms required to establish
a brokerage account at a brokerage firm designated by the Committee in the
Employee's name for the purpose of holding any Shares purchased pursuant to the
Plan, with such person as the Committee may designate at least ten (10) days
prior to the Offering Commencement Date of the first offering in which he wishes
to participate. After completing, signing and filing a Subscription Agreement
and any other necessary papers in accordance with the preceding sentence, an
Employee shall be deemed to have become a participant in the Plan for each
subsequent offering until the Employee withdraws from the Plan in accordance
with Section 14 hereof, is deemed to have withdrawn from the Plan in accordance
with
8
<PAGE> 9
Section 19 hereof, or otherwise gives written notice of his intent to withdraw
to such person as the Committee may designate. Except as otherwise provided in
Section 14, if an Employee desires to change the percentage of his Eligible
Compensation to be withheld and applied to the purchase of Shares, or if an
Employee who withdraws from the Plan desires to re-enter the Plan, he must file
a new Subscription Agreement in accordance with this Section 7 at least ten (10)
days prior to the Offering Commencement Date of the particular offering to which
such change or re-entry is intended to apply. An Employee's re-entry into the
Plan cannot become effective before the beginning of the next offering following
his withdrawal; provided, however, if an Employee is subject to Section 16(b) of
the Exchange Act, his re-entry into the Plan must comply with the requirements
of Rule 16b-3 for all transactions under the Plan to be exempt from Section
16(b) of the Exchange Act. Participation in one offering under the Plan shall
neither limit nor require participation in any other offering.
8. GRANT OF OPTIONS. Subject to the limitations set forth in Sections 6
and 9 of the Plan, on the Offering Commencement Date of each offering made under
the Plan, each Employee who has previously elected to participate in the Plan
shall automatically be granted an Option for as many full Shares as he will be
able to purchase with the payroll deductions credited to his Account during the
Purchase Period of that offering. In the event the total maximum number of
Shares resulting from all elections to purchase under any offering of Shares
made under the Plan exceeds the number of Shares offered, the Company reserves
the right to reduce the maximum number of Shares which Employees may purchase
pursuant to their elections to purchase, to allot the Shares available in such
manner as it shall determine (subject to the requirements of Section 423 of the
Code), but generally pro rata to subscriptions received, and to grant Options to
purchase only for such reduced number of Shares. Notice of any such reduction
shall be given to each participating Employee, in a uniform and
nondiscriminatory manner determined by the Committee in its sole discretion. In
the event an
9
<PAGE> 10
Employee's election to purchase Shares pursuant to an offering made under the
Plan is canceled, in whole or in part, pursuant to the provisions of the Plan, a
proportionate portion of the Option granted to such Employee shall automatically
terminate.
9. LIMITATIONS OF NUMBER OF SHARES WHICH MAY BE PURCHASED. The
following limitations shall apply with respect to the number of Shares which may
be purchased by each Employee who elects to participate in an offering made
under the Plan:
(a) No Employee may purchase, or elect to purchase, Shares
during any one offering pursuant to the Plan for an aggregate purchase
price in excess of ten percent (10%) of his Eligible Compensation
during the Purchase Period applicable to such offering.
(b) No Employee shall be granted an Option to purchase Shares
under the Plan if such Employee immediately after such Option is
granted, owns stock (within the meaning of Section 424(d) of the Code,
and including stock subject to purchase under any outstanding options)
possessing five percent (5%) or more of the total combined voting power
or value of all classes of stock of the Company or, if applicable, any
Subsidiary or, if applicable, a Parent.
(c) No Employee shall be granted an Option to purchase Shares
which permits his right to purchase stock under the Plan and all other
employee stock purchase plans of the Company and, if applicable, a
Subsidiary, and, if applicable, a Parent, to accrue (as determined
under Section 423(b)(8) of the Code) at a rate which exceeds ($25,000)
of fair market value of such stock (determined on the date the Option
to purchase is granted) for each calendar year in which such Option is
outstanding at any time.
10
<PAGE> 11
10. EXERCISE PRICE. Unless the Committee, in its discretion, determines
to set a higher per Share exercise price, the per Share exercise price for
Shares subject to purchase under Options granted pursuant to an offering made
under the Plan shall be an amount equal to the lesser of (a) eighty-five percent
(85%) of the Fair Market Value of the Shares on the Offering Commencement Date,
and (b) eighty-five percent (85%) of the Fair Market Value of the Shares on the
Offering Termination Date.
11. METHOD OF PAYMENT. Payment of the exercise price of any Option
granted pursuant to the Plan shall be made in installments through payroll
deductions, with no right of prepayment. Each Employee electing to participate
in an offering of Shares made under the Plan shall authorize the Company
pursuant to Section 7 of the Plan to withhold a designated amount from his
regular weekly, bi-weekly, semimonthly or monthly pay for each payroll period
during the Purchase Period, which amount, expressed as a percentage, may not
exceed ten percent (10%) of his Eligible Compensation. All such payroll
deductions made for an Employee shall be credited to his Account. An Employee
may not make any separate cash payments into his Account, nor may payment for
Shares be made other than by payroll deduction. No interest shall accrue on the
amounts credited to an Employee's Account pursuant to this Section 11.
12. EXERCISE OF OPTIONS. As of the close of business on the Offering
Termination Date of any offering of Shares made under the Plan, each outstanding
Option shall automatically be exercised. Subject to the limitations in Sections
6, 8 and 9 of the Plan, upon the exercise of an Option, the aggregate amount of
the payroll deductions credited to the Account of each Employee as of that date
will automatically be applied to the exercise price for the purchase of that
number of Shares, rounded to the nearest whole share, equal to the Account
balance divided by the exercise price. A certificate representing the Shares so
purchased shall be delivered to the Employee or the
11
<PAGE> 12
Employee's Successor, or, in the Committee's discretion, to a brokerage account
established for the benefit of the Employee or the Employee's Successor (which
contains such terms and conditions as the Committee may designate), as soon as
reasonably practicable after the exercise of the Option. Unless an Employee
notifies the Company in writing not to carry over the balance of his Account to
the next offering, the Company shall carry over the balance of his Account to
the next offering. Upon termination of the Plan, the balance of each Employee's
Account shall be returned to him.
13. RIGHTS AS SHAREHOLDER. An Employee will become a shareholder of the
Company with respect to Shares for which payment has been received at the close
of business on the Offering Termination Date. An Employee will have no rights as
a shareholder with respect to Shares under an election to purchase Shares until
he has become a shareholder as provided above.
14. CANCELLATION OF ELECTION TO PURCHASE. An Employee who has elected
to purchase Shares pursuant to any offering made under the Plan may cancel his
election in its entirety or may partially cancel his election (as set forth in
his Subscription Agreement) by reducing the percentage amount which he has
authorized the Company to withhold from his Eligible Compensation for each
payroll period during the Purchase Period. Any such full or partial cancellation
shall be effective upon the delivery by the Employee of written notice of
cancellation to such person as the Committee may designate. Such notice of
cancellation must be so delivered before the close of business on the third to
last business day of the Purchase Period. If an Employee partially cancels his
original election by reducing the amount authorized to be withheld from his pay,
he shall continue to make installment payments at the reduced rate for the
remainder of the Purchase Period, and for any subsequent offering in which he
participates unless he files a new Subscription Agreement in accordance with
Section 7 hereof.
12
<PAGE> 13
An Employee's rights upon the full or partial cancellation of his
election to purchase Shares shall be limited to the following:
(a) He may receive in cash, as soon as practicable after
delivery of the notice of cancellation, the amount then credited to his
Account, except that, in the case of a partial cancellation, he must
retain in his Account an amount equal to the amount of his new payroll
deduction times the number of payroll periods in the Purchase Period
through the date of cancellation, or
(b) He may have the amount credited to his Account at the time
the cancellation becomes effective applied to the purchase of the
number of Shares such amount will then purchase. The purchase of Shares
will become effective at the close of business on the Offering
Termination Date.
In the case of a full cancellation, the Employee shall be deemed to
have withdrawn from the Plan. To re-enter the Plan, the Employee must file a new
Subscription Agreement in accordance with Section 7.
15. LEAVE OF ABSENCE OR LAYOFF. An Employee purchasing Shares under the
Plan who is granted a leave of absence (including a military leave) or is laid
off during the Purchase Period may at that time elect to suspend payments during
the leave of absence, or, in the case of a layoff, he may suspend payments for
not more than ninety (90) days (or such other period as determined by the
Committee in its sole discretion), but, in either case, not beyond the last day
of the Purchase Period. Any such suspension shall be treated as a partial
cancellation of his election to purchase Shares.
If the Employee does not return to active service upon the expiration
of his leave of absence or within ninety (90) days (or such other period as
determined by the Committee in its sole discretion)
13
<PAGE> 14
from the date of his layoff, his election to purchase shall be deemed to have
been canceled at that time, and the Employee's only right will be to receive in
cash the amount credited to his Account.
16. EFFECT OF FAILURE TO MAKE PAYMENTS WHEN DUE. If in any payroll
period an Employee who has filed an election to purchase Shares under the Plan
has no pay or his pay is insufficient (after other authorized deductions) in any
payroll period to permit deduction of his installment payment, the amount of
such deficiency shall be treated as a partial cancellation of his election to
purchase Shares.
17. RETIREMENT. If an Employee who retires in a manner entitling him to
early, normal or late retirement benefits under the provisions of any retirement
plan of the Company or a Subsidiary in which the Employee participates (or if no
such plan then exists, at or after age sixty-five (65)) has an election to
purchase Shares in effect at the time of his retirement, he may, within three
(3) months after the date of his retirement (but in no event later than the
close of business on the third to last business day of the Purchase Period), by
delivering written notice to such person as the Committee may designate, elect
to:
(a) Receive in cash, as soon as practicable after delivery of
such notice, the amount then credited in his Account, or
(b) Have the amount credited to his Account at the time of the
termination of his employment by reason of retirement applied to the
purchase of the number of Shares such Account will then purchase, such
purchase to be effective as of the Offering Termination Date.
If no such notice is given within such period, the election will be
deemed canceled as of the date of retirement and the only right of the Employee
will be to receive in cash the amount credited to his Account.
14
<PAGE> 15
18. DEATH. If an Employee, including a retired Employee, dies and has
an election to purchase Shares in effect at the time of his death, the
Employee's Successor may, within three (3) months from the date of death (but in
no event later than the close of business on the third to last business day of
the Purchase Period), by delivering written notice to such person as the
Committee may designate, elect to:
(a) Receive in cash, as soon as practicable after delivery of
such notice, the amount then credited in the Employee's Account, or
(b) Have the amount credited to the Employee's Account at the
time of the Employee's death applied to the purchase of the number of
Shares such Account will then purchase, such purchase to be effective
as of the Offering Termination Date.
If no such notice is given within such period, the election will be
deemed canceled as of the date of death, and the only right of such Successor
will be to receive in cash the amount credited to the Employee's Account.
19. TERMINATION OF EMPLOYMENT OTHER THAN FOR RETIREMENT OR DEATH. If an
Employee's employment is terminated for any reason other than retirement or
death prior to the end of the Purchase Period of any offering, the Employee's
rights under the Plan will terminate at such time. A notice to withdraw from the
Plan will be considered as having been received from the Employee on the day his
employment ceases, and the only right of the Employee will be to receive the
cash then credited to his Account.
20. NONTRANSFERABILITY OF OPTIONS. An Option, or an Employee's right to
any amounts held for his Account under the Plan, shall not be transferable,
other than (a) by will or the laws of descent and distribution, and an Option
may be exercised, during the lifetime of the holder of the Option, only by the
holder or in the event of death, the holder's Successor or (b) if permitted
pursuant
15
<PAGE> 16
to the Code and the Regulations thereunder without affecting the Option's
qualification under Section 423 of the Code, pursuant to a qualified domestic
relations order.
21. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of changes
in all of the outstanding Shares by reason of stock dividends, stock splits,
recapitalizations, mergers, consolidations, combinations, or exchanges of
shares, separations, reorganizations or liquidations, or similar events, or in
the event of extraordinary cash or non-cash dividends being declared with
respect to the Shares, or similar transactions or events, the number and class
of Shares available under the Plan in the aggregate, the number and class of
Shares subject to Options theretofore granted, applicable purchase prices and
all other applicable provisions, shall, subject to the provisions of the Plan,
be equitably adjusted by the Committee. The foregoing adjustment and the manner
of application of the foregoing provisions shall be determined by the Committee
in its sole discretion. Any such adjustment may provide for the elimination of
any fractional Share which might otherwise become subject to an Option.
22. CHANGE IN CONTROL. Notwithstanding anything to the contrary herein,
in the case of a Change in Control of the Company, the Board may, in its sole
discretion, elect to terminate the Purchase Period of any offering then in
effect as of the last day of the month during which the Change in Control
occurs, with the effect that such day will be the Offering Termination Date of
such offering.
23. TAXES. The Employee, or his Successor, shall promptly notify the
Company of any disposition of Shares acquired pursuant to the exercise of an
Option under the Plan and the Company shall have the right to deduct any taxes
required by law to be withheld as a result of such disposition from any amounts
otherwise payable then or at any time thereafter to the Employee. The Company
shall also have the right to require a person entitled to receive Shares
pursuant to the exercise of an
16
<PAGE> 17
Option to pay the Company the amount of any taxes which the Company is or will
be required to withhold with respect to the Shares before the certificate for
such Shares is delivered pursuant to the Option.
24. TERMINATION OF THE PLAN. The Plan shall terminate ten (10) years
from the date the Plan becomes effective, and an Option shall not be granted
under the Plan after that date although the terms of any Options may be amended
at any date prior to the end of its term in accordance with the Plan. Any
Options outstanding at the time of termination of the Plan shall continue in
full force and effect according to the terms and conditions of the Option and
this Plan.
25. AMENDMENT OF THE PLAN. The Plan may be amended at any time and from
time to time by the Board, but no amendment without the approval of the
shareholders of the Company shall be made if shareholder approval under Section
423 of the Code or Rule 16b-3 would be required. Notwithstanding the
discretionary authority granted to the Committee in Section 4 of the Plan, no
amendment of the Plan or any Option granted under the Plan shall impair any of
the rights of any holder, without the holder's consent, under any Option
theretofore granted under the Plan.
26. DELIVERY OF SHARES ON EXERCISE. Delivery of certificates for Shares
to or for the benefit of an Employee pursuant to the exercise of an Option may
be postponed by the Company for such period as may be required for it with
reasonable diligence to comply with any applicable requirements of any federal,
state or local law or regulation or any administrative or quasi-administrative
requirement applicable to the sale, issuance, distribution or delivery of such
Shares. The Committee may, in its sole discretion, require an Employee to
furnish the Company with appropriate representations and a written investment
letter prior to the exercise of an Option or the delivery of any Shares pursuant
to the exercise of an Option.
17
<PAGE> 18
27. FEES AND COSTS. The Company shall pay all original issue taxes on
the exercise of any Option granted under the Plan and all other fees and
expenses necessarily incurred by the Company in connection therewith.
28. NO CONTRACT OF EMPLOYMENT. Neither the adoption of this Plan nor
the grant of any Option shall be deemed to obligate the Company or any
Subsidiary to continue the employment of any Employee.
29. EFFECTIVENESS OF THE PLAN. The Plan shall become effective on
October 13, 1997. Notwithstanding the foregoing, unless the Plan is approved by
the Company's shareholders either (i) at a meeting duly held in accordance with
Pennsylvania law within twelve (12) months after being adopted by the Board, or
(ii) by a written consent in accordance with Pennsylvania law within twelve (12)
months after being adopted by the Board, the Plan and all Options made under it
shall be void and of no force and effect.
30. OTHER PROVISIONS. As used in the Plan, and in other documents
prepared in implementation of the Plan, references to the masculine pronoun
shall be deemed to refer to the feminine or neuter, and references in the
singular or the plural shall refer to the plural or the singular, as the
identity of the person or persons or entity or entities being referred to may
require. The captions used in the Plan and in such other documents prepared in
implementation of the Plan are for convenience only and shall not affect the
meaning of any provision hereof or thereof.
18
<PAGE> 1
Exhibit 4.4
SULCUS HOSPITALITY TECHNOLOGIES CORP.
1997 LONG-TERM INCENTIVE PLAN
1. PURPOSE OF THE PLAN. This Sulcus Hospitality Technologies Corp. 1997
Long-Term Incentive Plan adopted on this 13th day of October, 1997, is intended
to enable officers and key employees of the Company and its Subsidiaries to
acquire or increase their ownership of common stock of the Company on reasonable
terms. The opportunity so provided is intended to foster in participants an
incentive to put forth maximum effort for the continued success and growth of
the Company and its Subsidiaries, to aid in retaining individuals who put forth
such efforts, and to assist in attracting the best available individuals to the
Company and its Subsidiaries in the future.
2. DEFINITIONS. When used herein, the following terms shall have the
meaning set forth below:
2.1 "AWARD" means an Option, an Option granted in tandem with
an SAR, a Performance Plan Award, a Reload Option, a Restricted Stock
Award, a Restricted Stock Award granted in tandem with an Option, an
SAR or a Stock Bonus Award.
2.2 "AWARD AGREEMENT" means a written agreement in such form
as may be, from time to time, hereafter approved by the Committee,
which shall be duly executed by the Company and the Employee and which
shall set forth the terms and conditions of an Award under the Plan.
2.3 "BOARD" means the Board of Directors of Sulcus Hospitality
Technologies Corp.
<PAGE> 2
2.4 "CHANGE IN CONTROL" means a change in control of the
Company of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Exchange Act (as in effect on the date the Plan is adopted by the
Board), whether or not the Company is then subject to such reporting
requirement; provided, that, without limitation, a Change in Control
shall be deemed to have occurred if:
(a) any "person" (as defined in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company
representing twenty percent (20%) or more of the combined
voting power of the Company's then outstanding securities; or
(b) during any period of two (2) consecutive years
(not including any period prior to the adoption of this Plan)
there shall cease to be a majority of the Board comprised of
Continuing Directors; or
(c) (i) the shareholders of the Company approve a
merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) more than eighty percent
(80%) of the combined voting power of the voting securities of
the Company or such surviving entity outstanding immediately
after
- 2 -
<PAGE> 3
such merger or consolidation, or (ii) the shareholders of the
Company approve a plan of complete liquidation of the Company
or an agreement for the sale or disposition by the Company of
all or substantially all the Company's assets.
2.5 "CODE" means the Internal Revenue Code of 1986, as in
effect at the time of reference, or any successor revenue code which
may hereafter be adopted in lieu thereof, and reference to any specific
provisions of the Code shall refer to the corresponding provisions of
the Code as it may hereafter be amended or replaced.
2.6 "COMMITTEE" means the Stock Option Committee of the Board
or any other committee appointed by the Board which is invested by the
Board with responsibility for the administration of the Plan and whose
members meet the requirements for eligibility to serve as set forth in
Rule 16b-3 and in the Plan.
2.7 "COMPANY" means Sulcus Hospitality Technologies Corp.
2.8 "CONTINUING DIRECTORS" means individuals who at the
beginning of any period of two (2) consecutive years (not including any
period prior to the adoption of this Plan) and any new director(s)
whose election by the Board or nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
was previously so approved.
2.9 "EMPLOYEE SHAREHOLDER" means an Employee who, at the time
an Incentive Stock Option is granted owns, as defined in Section 424 of
the Code, stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of: (a) the Company; or
(b) if applicable, a Subsidiary or a Parent.
- 3 -
<PAGE> 4
2.10 "EMPLOYEES" means officers (including officers who are
members of the Board) and other key employees of the Company or any of
its Subsidiaries.
2.11 "ERISA" means the Employee Retirement Income Security Act
of 1974, as in effect at the time of reference, or any successor law
which may hereafter be adopted in lieu thereof, and any reference to
any specific provisions of ERISA shall refer to the corresponding
provisions of ERISA as it may hereafter be amended or replaced.
2.12 "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as in effect at the time of reference, or any successor law which may
hereafter be adopted in lieu thereof, and any reference to any specific
provisions of the Exchange Act shall refer to the corresponding
provisions of the Exchange Act as it may hereafter be amended or
replaced.
2.13 "EXERCISED OPTION" has the meaning ascribed to it in
Section 2.24 hereof.
2.14 "FAIR MARKET VALUE" means, with respect to the Shares,
the closing price of the Shares on the American Stock Exchange or other
national securities exchange, on the last business day prior to the
date on which the value is to be determined, as reported in THE WALL
STREET JOURNAL or such other source of quotations for, or report of
trading of, the Shares as the Committee may reasonably select from time
to time; provided, however, if the Shares are not then traded on such
an exchange, but are then traded on the over-the-counter market, Fair
Market Value means the mean between the high and the low bid and asked
prices for the Shares on the over-the-counter market on the last
business day prior to the date on which the value is to be determined
(or the next preceding day on which sales occurred if there were no
sales on such date); provided further, however, if no sales have
occurred in the over-the-counter market during the three week period
preceding the
- 4 -
<PAGE> 5
date on which the value is to be determined, Fair Market Value means
the average of the mean between the high and low bid and asked prices
for the Shares on the over-the-counter market for the three (3) month
period ending on the last business day prior to the date on which the
value is to be determined; provided further, however, if the Shares are
reported in the National Market List of the National Association of
Securities Dealers, Inc. Automated Quotation System, the closing price
shall be substituted above for the mean of the high and the low bid and
asked prices.
2.15 "INCENTIVE STOCK OPTION" means an Option meeting the
requirements and containing the limitations and restrictions set forth
in Section 422 of the Code.
2.16 "NON-QUALIFIED STOCK OPTION" means an Option other than
an Incentive Stock Option.
2.17 "OPTION" means the right to purchase the number of Shares
specified by the Committee, at a price and for a term fixed by the
Committee, in accordance with the Plan, and subject to such other
limitations and restrictions as the Plan and the Committee may impose.
2.18 "PARENT" means any corporation, other than the employer
corporation, in an unbroken chain of corporations ending with the
employer corporation if, at the time of the granting of the Option,
each of the corporations other than the employer corporation owns stock
possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such
chain.
2.19 "PERFORMANCE GOALS" has the meaning ascribed to it in
Section 11 of the Plan.
- 5 -
<PAGE> 6
2.20 "PERFORMANCE PERIOD" has the meaning ascribed to it in
Section 11 of the Plan.
2.21 "PERFORMANCE PLAN AWARD" means the right to receive
Options, Reload Options, Restricted Stock Awards, SARs, Shares, Stock
Bonus Awards or units (representing such monetary amount as designated
by the Committee and payable in cash or in Shares) pursuant to Section
11 of the Plan, which right is based on, or subject to, in whole or in
part, the achievement of certain performance criteria specified by the
Committee.
2.22 "PLAN" means the Sulcus Hospitality Technologies Corp.
1997 Long-Term Incentive Plan.
2.23 "REGULATION T" means Part 220, chapter II, title 12 of
the Code of Federal Regulations, issued by the Board of Governors of
the Federal Reserve System pursuant to the Exchange Act, as amended
from time to time, or any successor regulation which may hereafter be
adopted in lieu thereof.
2.24 "RELOAD OPTION" means, with respect to an Employee who
exercises an Option or Reload Option (the "Exercised Option") with
Shares, an Incentive Stock Option or Non-Qualified Stock Option to
purchase a number of Shares equal to the number of Shares transferred
to the Company upon exercise of the Exercised Option, on terms similar
to those set forth in the Award Agreement evidencing such Exercised
Option, except that the option price per Share shall equal the Fair
Market Value of the Shares subject to the Reload Option on the date the
Reload Option is granted, and subject to such other terms,
- 6 -
<PAGE> 7
limitations and restrictions as the Plan and the Committee may impose.
All provisions in the Plan applicable to Options shall also apply to
Reload Options.
2.25 "RESTRICTED STOCK AWARD AGREEMENT" means an Award
Agreement executed in connection with a Restricted Stock Award.
2.26 "RESTRICTED STOCK AWARD" means the right to receive
Shares, but subject to forfeiture and/or other restrictions set forth
in the related Restricted Stock Award Agreement and the Plan.
2.27 "RULE 16b-3" means Rule 16b-3 of the General Rules and
Regulations of the Securities and Exchange Commission as in effect at
the time of reference, or any successor rules or regulations which may
hereafter be adopted in lieu thereof, and any reference to any specific
provisions of Rule 16b-3 shall refer to the corresponding provisions of
Rule 16b-3 as it may hereafter be amended or replaced.
2.28 "SAR" means a stock appreciation right, which is a right
to receive an amount in cash, or Shares, or a combination of cash and
Shares, as determined or approved by the Committee, no greater than the
excess, if any, of (i) the Fair Market Value of a Share on the date the
SAR is exercised, over (ii) the SAR Base Price.
2.29 "SAR BASE PRICE" means the Fair Market Value of a Share
on the date an SAR was granted, or if the SAR was granted in tandem
with an Option (whether or not the Option was granted on a different
date than the SAR), in the Committee's discretion, the option price of
a Share subject to the Option.
- 7 -
<PAGE> 8
2.30 "SHARES" means shares of the Company's no par value
common stock or, if by reason of the adjustment provisions contained
herein, any rights under an Award under the Plan pertain to any other
security, such other security.
2.31 "STOCK BONUS AWARD" means the right to receive Shares as
provided in Section 10 of the Plan.
2.32 "SUBSIDIARY" or "SUBSIDIARIES" means any corporation or
corporations other than the employer corporation in an unbroken chain
of corporations beginning with the employer corporation if each of the
corporations other than the last corporation in the unbroken chain owns
stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations
in such chain.
2.33 "SUCCESSOR" means the legal representative of the estate
of a deceased Employee or the person or persons who shall acquire the
right to exercise or receive an Award by bequest or inheritance or by
reason of the death of the Employee.
2.34 "TERM" means the period during which a particular Award
may be exercised.
2.35 "WINDOW PERIOD" means the period beginning on the third
business day following the date of release of the financial data
specified in paragraph (e)(1)(ii) of Rule 16b-3 and ending on the
twelfth business day following such date.
- 8 -
<PAGE> 9
3. STOCK SUBJECT TO THE PLAN. There will be reserved for use, upon the
issuance, vesting or exercise of Awards to be granted from time to time under
the Plan, an aggregate of five hundred thousand (500,000) Shares, which Shares
may be, in whole or in part, as the Board shall from time to time determine,
authorized but unissued Shares, or issued Shares which shall have been
reacquired by the Company. Any Shares subject to issuance upon exercise of
Options or SARs, or vesting of Performance Plan Awards, but which are not issued
because of a surrender, lapse, expiration, forfeiture or termination of any such
Option, SAR or Performance Plan Award prior to issuance of the Shares shall once
again be available for issuance in satisfaction of Awards. Similarly, any Shares
issued pursuant to a Restricted Stock Award which are subsequently forfeited
pursuant to the terms of the related Restricted Stock Award Agreement shall once
again be available for issuance in satisfaction of Awards.
4. ADMINISTRATION OF THE PLAN. The Board shall appoint the Committee,
which shall consist of not less than two (2) disinterested directors as defined
in Rule 16b-3. Subject to the provisions of the Plan, the Committee shall have
full authority, in its discretion, to determine the Employees to whom Awards
shall be granted, the number of Shares to be covered by each of the Awards, and
the terms of any such Award; to amend or cancel Awards (subject to Section 23 of
the Plan), to accelerate the vesting of Awards; to require the cancellation or
surrender of any previously granted awards under this Plan or any other plans of
the Company as a condition to the granting of an Award, to interpret the Plan;
and to prescribe, amend, and, rescind rules and regulations relating to the
Plan, and generally to interpret and determine any and all matters whatsoever
relating to the administration of the Plan and the granting of Awards hereunder,
including the designation of individuals responsible for the day-to-day
operation of the Plan. The
- 9 -
<PAGE> 10
Board may from time to time appoint members to the Committee in substitution for
or in addition to members previously appointed and may fill vacancies, however
caused, in the Committee. The Committee shall select one of its members as its
chairman and shall hold its meetings at such times and places as it shall deem
advisable. A majority of its members shall constitute a quorum. Any action of
the Committee may be taken by a written instrument signed by all of the members,
and any action so taken shall be fully as effective as if it had been taken by a
vote of a majority of the members at a meeting duly called and held. The
Committee shall make such rules and regulations for the conduct of its business
as it shall deem advisable and shall appoint a Secretary who shall keep minutes
of its meetings and records of all action taken in writing without a meeting. No
member of the Committee shall be liable, in the absence of bad faith, for any
act or omission with respect to his or her service on the Committee.
5. EMPLOYEES TO WHOM AWARDS MAY BE GRANTED. Awards may be granted in
each calendar year or portion thereof while the Plan is in effect to such of the
Employees as the Committee, in its discretion, shall determine. In determining
the Employees to whom Awards shall be granted and the number of Shares to be
issued or subject to purchase or issuance under such Awards, the Committee shall
take into account the recommendations of the Company's management as to the
duties of the respective Employees, their present and potential contributions to
the success of the Company and its Subsidiaries, and such other factors as the
Committee shall deem relevant in connection with accomplishing the purposes of
the Plan. No Award shall be granted to any member of the Committee so long as
his or her membership on the Committee continues or to any member of the Board
who is not also an officer or key employee of the Company or any Subsidiary.
- 10 -
<PAGE> 11
6. STOCK OPTIONS.
-------------
6.1 TYPES OF OPTIONS. Options granted under the Plan may be
(i) Incentive Stock Options, (ii) Non-Qualified Stock Options, (iii) a
combination of the foregoing or (iv) Reload Options. The Award
Agreement shall designate whether an Option is an Incentive Stock
Option or a Non-Qualified Stock Option and separate Award Agreements
shall be issued for each type of Option when a combination of an
Incentive Stock Option and a Non-Qualified Stock Option are granted on
the same date to the same Employee. Any Option which is designated as a
Non-Qualified Stock Option shall not be treated by the Company or the
Employee to whom the Option is granted as an Incentive Stock Option for
federal income tax purposes.
6.2 OPTION PRICE. The option price per Share of any
Non-Qualified Stock Option granted under the Plan shall be the Fair
Market Value of the Shares covered by the Option on the date the Option
is granted unless the Committee, in its sole discretion, determines to
set the option price at an amount less than or greater than the Fair
Market Value of the Shares on such date. The option price per Share of
any Incentive Stock Option granted under the Plan shall not be less
than the Fair Market Value of the Shares covered by the Option on the
date the Option is granted.
Notwithstanding anything herein to the contrary, the option
price per Share of any Incentive Stock Option granted to an Employee
Shareholder shall not be less than one hundred ten percent (110%) of
the Fair Market Value of the Shares covered by the Option on the date
the Option is granted.
- 11 -
<PAGE> 12
6.3 TERM OF OPTIONS. Options granted hereunder shall be
exercisable for a Term of not more than ten (10) years from the date of
grant thereof, but shall be subject to earlier termination as
hereinafter provided. Each Award Agreement issued hereunder shall
specify the Term of the Option, which shall be determined by the
Committee in accordance with its discretionary authority hereunder. No
Option in tandem with an SAR shall be exercisable during the first six
(6) months following the date of grant of the SAR, except that this
limitation shall not apply in the event that it is permissible under
Rule 16b-3 to exercise the Option prior to the expiration of the six
(6) month period.
Notwithstanding anything herein to the contrary, if an
Incentive Stock Option is granted to an Employee Shareholder, then such
Incentive Stock Option shall not be exercisable more than five (5)
years from the date of grant thereof, but shall be subject to earlier
termination as hereinafter provided.
7. LIMIT ON FAIR MARKET VALUE OF INCENTIVE STOCK OPTIONS. No Employee
may be granted an Incentive Stock Option hereunder to the extent that the
aggregate Fair Market Value (such Fair Market Value being determined as of the
date of grant of the option in question) of the stock with respect to which
Incentive Stock Options are first exercisable by such Employee during any
calendar year (under all such plans of the Employee's employer corporation, its
Parent, if any, and its Subsidiaries, if any) exceeds One Hundred Thousand
Dollars ($100,000). For purposes of the preceding sentence, Options shall be
taken into account in the order in which they were granted. Any Option granted
under the Plan which is intended to be an Incentive Stock Option, but which
exceeds the limitation set forth in this Section 7, shall be a Non-Qualified
Stock Option.
- 12 -
<PAGE> 13
8. STOCK APPRECIATION RIGHTS.
--------------------------
8.1 GRANT OF SAR. The Committee, in its discretion, may grant
an Employee an SAR in tandem with an Option or may grant an Employee an
SAR on a stand alone basis. The Committee, in its discretion, may grant
an SAR in tandem with an Option either at the time the Option is
granted or at any time after the Option is granted, but no later than
six (6) months and one (1) day prior to the end of the Term of the
Option, so long as the grant of the SAR is made during the period in
which grants of SARs may be made under the Plan. The Committee, in its
discretion, may grant an SAR in tandem with an Option which is
exercisable either in lieu of, or in addition to, the exercise of the
related Option.
8.2 LIMITATIONS ON EXERCISE. Each SAR granted in tandem with
an Option shall be exercisable to the extent, and only to the extent,
the related Option is exercisable and shall be for such Term as the
Committee may determine (which Term, which is not to exceed ten (10)
years, may expire prior to the Term of the related Option). Each SAR
granted on a stand alone basis shall be exercisable to the extent, and
for such Term, as the Committee may determine. No SAR or any related
Option shall be exercisable during the first six (6) months following
the date of grant of the SAR, except that this limitation will not
apply in the event it is permissible under Rule 16b-3 to exercise the
SAR prior to the expiration of the six (6) month period. If, and to the
extent, an Employee who is subject to Section 16(b) of the Exchange Act
is to receive cash in exchange for an SAR, the SAR and any related
Option are exercisable only during a Window Period and the right of the
Employee to request to be paid in cash may only be made during a Window
Period. The
- 13 -
<PAGE> 14
SARs shall be subject to such other terms and conditions as the
Committee, in its discretion, shall determine, which are not otherwise
inconsistent with the Plan. The terms and conditions may include
Committee approval of the exercise of the SAR, limitations on the time
within which and the extent to which such SAR shall be exercisable,
limitations, if any, on the amount of appreciation in value which may
be recognized with regard to such SAR, and specification of what
portion, if any, of the amount payable to the Employee upon exercise of
such SAR shall be payable in cash and what portion, if any, shall be
payable in Shares. If, and to the extent, that Shares are issued in
satisfaction of amounts payable on exercise of an SAR, the Shares shall
be valued at their Fair Market Value on the date of exercise.
8.3 SARs IN TANDEM WITH INCENTIVE STOCK OPTIONS. With respect
to SARs granted in tandem with Incentive Stock Options, the following
shall apply:
(a) No SAR shall be exercisable unless the Fair
Market Value of the Shares on the date of exercise exceeds the
option price of the related Incentive Stock Option.
(b) In no event shall any amounts paid pursuant to
the SAR exceed the difference between the Fair Market Value of
the Shares on the date of exercise and the option price of the
related Incentive Stock Option.
8.4 SURRENDER OF OPTION OR SAR GRANTED IN TANDEM. If the Award
Agreement related to the grant of an SAR in tandem with an Option
provides that the SAR can only be exercised in lieu of the related
Option, then, upon exercise of such SAR, the related Option or portion
thereof with respect to which such SAR is exercised shall be deemed
- 14 -
<PAGE> 15
surrendered and shall not thereafter be exercisable and, similarly,
upon exercise of the Option, the related SAR or portion thereof with
respect to which such Option is exercised shall be deemed surrendered
and shall not thereafter be exercisable. If the Award Agreement related
to the grant of an SAR in tandem with an Option provides that the SAR
can be exercised in addition to the related Option, then, upon exercise
of such SAR, the related Option or portion thereof with respect to
which such SAR is exercised shall not be deemed surrendered and shall
continue to be exercisable and, similarly, upon exercise of the Option,
the related SAR or portion thereof with respect to which such Option is
exercised shall not be deemed surrendered and shall continue to be
exercisable.
9. RESTRICTED STOCK AWARDS. Restricted Stock Awards granted under the
Plan shall be subject to such terms and conditions as the Committee may, in its
discretion, determine and set forth in the related Restricted Stock Award
Agreements. The Committee, in its discretion, may grant an Employee a Restricted
Stock Award on a stand alone basis or in tandem with an Option. Restricted Stock
Awards shall be granted in accordance with, and subject to, the provisions set
forth below.
9.1 ISSUANCE OF SHARES. Each Restricted Stock Award shall be
evidenced by a Restricted Stock Award Agreement which shall set forth
the number of Shares issuable under the Restricted Stock Award. Subject
to the restrictions in Section 9.3 of the Plan, and subject further to
such other restrictions or conditions established by the Committee, in
its discretion, and set forth in the related Restricted Stock Award
Agreement (such as requiring the Employee to pay an amount equal to the
aggregate par value of the Shares to be issued thereunder), the number
of Shares granted under a Restricted Stock Award
- 15 -
<PAGE> 16
shall be issued in the recipient Employee's name on the date of grant
of such Restricted Stock Award or as soon as reasonably practicable
thereafter.
9.2 RIGHTS OF RECIPIENT EMPLOYEES. Shares received pursuant to
Restricted Stock Awards shall be duly issued or transferred to the
Employee, and a certificate or certificates for such Shares shall be
issued in the Employee's name. Subject to the restrictions in Section
9.3 of the Plan, and subject further to such other restrictions or
conditions established by the Committee, in its discretion, and set
forth in the related Restricted Stock Award Agreement, the Employee
shall thereupon be a shareholder with respect to all the Shares
represented by such certificate or certificates and shall have all the
rights of a shareholder with respect to such Shares, including the
right to vote such Shares and to receive dividends and other
distributions paid with respect to such Shares. In aid of the
restrictions in Section 9.3 of the Plan and in the related Restricted
Stock Award Agreement, the certificate or certificates for Shares
awarded hereunder, together with a suitably executed stock power signed
by such recipient Employee, shall be held by the Company in its control
for the account of such Employee (i) until the restrictions in Section
9.3 of the Plan and in the related Restricted Stock Award Agreement
lapse pursuant to the Plan or the Restricted Stock Award Agreement, at
which time a certificate for the appropriate number of Shares (free of
all restrictions imposed by the Plan or the Restricted Stock Award
Agreement) shall be delivered to the Employee, or (ii) until such
Shares are forfeited to the Company and canceled as provided by the
Plan or the Restricted Stock Award Agreement.
- 16 -
<PAGE> 17
9.3 RESTRICTIONS. Except as otherwise determined by the
Committee in its sole discretion, each Share issued pursuant to a
Restricted Stock Award Agreement shall be subject, in addition to any
other restrictions set forth in the related Restricted Stock Award
Agreement, to the following restrictions until such restrictions have
lapsed pursuant to Section 9.4 of the Plan:
(a) DISPOSITION. The Shares awarded to an Employee
and held by the Company pursuant to Section 9.2 of the Plan,
and the right to vote such Shares or receive dividends on such
Shares, may not be sold, exchanged, transferred, pledged,
hypothecated or otherwise disposed of; provided, however, that
such Shares may be transferred upon the death of the Employee
to the Employee's Successor. Any transfer or purported
transfer of such Shares in violation of the restrictions
outlined in this Section 9.3 shall be null and void and shall
result in the forfeiture of the Shares transferred or
purportedly transferred to the Company without notice and
without consideration.
(b) FORFEITURE. The Shares awarded to an Employee and
held by the Company pursuant to Section 9.2 of the Plan shall
be forfeited to the Company without notice and without
consideration therefor immediately upon the termination of the
Employee's employment with the Company and all Subsidiaries of
the Company for any reason other than (i) death, (ii)
disability, (iii) retirement, (iv) the Employee's attainment
of age sixty-five (65), (v) Good Reason (as defined in the
related Restricted Stock Award Agreement) if by the Employee,
or (vi) other
- 17 -
<PAGE> 18
than for Cause (as defined in the related Restricted Stock
Award Agreement) if by the Company.
9.4 LAPSE OF RESTRICTIONS. Except as otherwise determined by
the Committee in its sole discretion, the restrictions set forth in
Section 9.3 of the Plan on Shares issued under a Restricted Stock Award
shall lapse on, and certificates for the Shares held for the account of
the Employee in accordance with Section 9.2 of the Plan hereof shall be
appropriately distributed to the Employee as soon as reasonably
practical after, the earliest of:
(a) the Employee's death;
(b) the termination of the Employee's employment by
reason of the Employee being "disabled" as defined in Section
22(e)(3) of the Code;
(c) the Employee's early, normal or late retirement
pursuant to the retirement plans of the Company or any of its
Subsidiaries;
(d) the Employee's attainment of age sixty-five (65);
(e) the termination of the Employee's employment by
the Employee for Good Reason (as defined in the related
Restricted Stock Award Agreement) or by the Company other than
for Cause (as defined in the related Restricted Stock Award
Agreement); or
(f) (i) the first anniversary of the date of grant
with respect to one-third (1/3) of the Shares originally
awarded,
(ii) the second anniversary of the date of
grant with respect to an additional one-third (1/3)
of the Shares originally awarded, and
- 18 -
<PAGE> 19
(iii) the third anniversary of the date of
grant with respect to the balance of the Shares
originally awarded.
9.5 SURRENDER OF OPTIONS OR RESTRICTED STOCK GRANTED IN
TANDEM. If the Restricted Stock Award Agreement related to the grant of
a Restricted Stock Award in tandem with an Option provides that the
Option can only be exercised in lieu of the scheduled vesting of the
Restricted Stock Award, then, upon vesting of the Shares subject to the
Restricted Stock Award, the related Option or portion thereof with
respect to which such Restricted Stock Award becomes vested shall be
deemed surrendered and shall not thereafter be exercisable and,
similarly, upon exercise of the Option, the Shares subject to the
related Restricted Stock Award or portion thereof with respect to which
such Option is exercised shall be deemed forfeited to the Company and
shall be canceled as provided by the Plan or the Restricted Stock Award
Agreement.
10. STOCK BONUS AWARDS. Stock Bonus Awards may be granted under the
Plan with respect to Shares, and shall be granted, subject to the provisions of
the Plan, upon such terms and conditions as the Committee may determine in its
discretion. The Committee, in its discretion, may require the Employees to whom
Stock Bonus Awards are granted to pay the Company an amount equal to the
aggregate par value of the Shares to be issued to such Employees. Subject to the
Employee delivering in cash or by check the amounts, if any, required to be paid
pursuant to this Section 10 or pursuant to Section 21 of the Plan (relating to
taxes), a certificate or certificates for such Shares shall be issued in the
Employee's name as soon as reasonably practicable following the date of grant,
or if such payments are required, following the date of such payments. The
Company shall deliver such certificate or certificates to the Employee and
- 19 -
<PAGE> 20
the Employee shall thereupon be a shareholder with respect to all Shares
represented by such certificate or certificates and shall have all the rights of
a shareholder with respect to such Shares.
11. PERFORMANCE PLAN AWARDS.
------------------------
(a) PERFORMANCE PLAN AWARDS. Performance Plan Awards may be
granted under the Plan in such form as the Committee may from time to
time approve. Performance Plan Awards may be granted alone, in addition
to or in tandem with other Awards under the Plan. Subject to the terms
of the Plan, including the terms of the Plan applicable to any
underlying type of Award that is the subject of a Performance Plan
Award (i.e., an Option, an Option granted in tandem with an SAR, a
Reload Option, a Restricted Stock Award, a Restricted Stock Award
granted in tandem with an Option, an SAR or a Stock Bonus Award, as the
case may be), the Committee shall determine the number of Performance
Plan Awards to be granted to an Employee, the terms and conditions
applicable to any particular Performance Plan Award made to an Employee
and, in the case of a Performance Plan Award of units, the monetary
amount represented by each such unit.
(b) PERFORMANCE GOALS AND PERFORMANCE PERIODS. A Performance
Plan Award shall provide that in order for an Employee to vest, in
whole or in part, in such Performance Plan Award the Company and/or the
Employee must achieve certain individual and/or aggregate performance
criteria ("Performance Goals") over a designated performance period
("Performance Period"). The Performance Goals and Performance Period
shall be established by the Committee, in its sole discretion. The
Committee may also establish a schedule or schedules for any such
Performance Period setting forth the
- 20 -
<PAGE> 21
portion of the Performance Plan Award which will be earned or forfeited
based on the degree of achievement of the Performance Goals actually
achieved or exceeded. In setting Performance Goals, the Committee may
use such measures as cumulative or non-cumulative return on equity,
earnings growth, revenue growth or such other individual and/or
aggregate measure or measures of performance in such manner as it deems
appropriate. During the Performance Period, the Committee, except as
provided otherwise in the Award Agreement evidencing the Performance
Plan Award, shall have the authority to adjust upward or downward the
Performance Goals in such manner as it deems appropriate.
(c) PAYMENT OF UNITS. An Employee who has been granted a
Performance Plan Award of units shall be entitled to receive a payment
with respect to such units in an amount equal to the number of units
earned at the conclusion of the respective Performance Period times the
dollar value of each unit. Payment in settlement of such unit shall be
made in cash, in Shares, or in any combination thereof, as the
Committee in its sole discretion shall determine, and shall be made as
soon as practicable following the conclusion of the respective
Performance Period and the calculation of the dollar value of such
units.
12. CASH PAYMENTS FOR TAXES. The Committee may, in its sole discretion,
provide in an Award Agreement that the Company will make a cash payment to the
Employee covered thereby equal to the aggregate of the amount of federal, state
and local income taxes which such Employee would be required to pay to each such
taxing authority attributable to the realization of taxable income, if any, as a
result of the receipt of Shares pursuant to any Award (other than
- 21 -
<PAGE> 22
an Incentive Stock Option) granted under the Plan. The Committee may, in its
discretion, require the Employee to make an election to be taxed immediately
under Section 83(b) of the Code as a condition to receiving such payment. In
computing the amount of such payment, it shall be assumed that every Employee
granted an Award under the Plan is subject to tax by each taxing authority at
the highest marginal tax rate in the respective taxing jurisdiction of such
Employee (provided that the highest marginal tax rate for federal income tax
purposes shall be determined under Section 1 of the Code), taking into account
the city and state in which such Employee resides, but giving effect to the tax
benefit, if any, which such Employee may enjoy to the extent that any such tax
is deductible in determining the tax liability of any other taxing jurisdiction
(disregarding the effects of Code Section 68 in determining deductibility for
federal income tax purposes). Likewise, the Committee may, in its sole
discretion, provide in an Award Agreement that the Company will make a cash
payment to the Employee covered thereby equal to the amount of excise taxes
(i.e., an "excise tax gross-up payment") which such Employee would be required
to pay pursuant to Section 4999 of the Code as a result of all or any part of
such Employee's Award being treated as an "excess parachute payment" within the
meaning of Section 280G(b) of the Code. In addition to the foregoing, the
Committee may, in its discretion, increase each cash payment due to an Employee
hereunder, such that each Employee who receives Shares and/or an excise tax
gross-up payment pursuant to any Award granted under this Plan shall receive
such Shares and/or excise tax gross-up payment net of all income and/or excise
taxes imposed on such Employee on account of the receipt of such Shares and/or
excise tax gross-up payment.
13. DATE OF GRANT. The date of grant of an Award granted hereunder
shall be the date on which the Committee acts in granting the Award.
- 22 -
<PAGE> 23
14. EXERCISE OF RIGHTS UNDER OPTIONS OR SARs.
-----------------------------------------
14.1 NOTICE OF EXERCISE. An Employee entitled to exercise an
Option or SAR shall do so by delivery of a written notice to that
effect specifying the number of Shares with respect to which the Option
or SAR is being exercised and any other relevant information the
Committee may require. The notice shall be accompanied by payment in
full of the purchase price of any Shares to be purchased, which payment
may be made in cash or, with the Committee's approval (which in the
case of Incentive Stock Options must be given at the time of grant), in
Shares valued at Fair Market Value at the time of exercise or a
combination thereof. No Shares shall be issued upon exercise of an
Option until full payment has been made therefor. An Employee
exercising an SAR or an Option granted in tandem with an SAR may, if
the terms and conditions of the Award so provide, state in the notice
of exercise what percentage of the SAR the Employee desires to be paid
in cash or Shares, in which event the Committee may honor the request
so made or satisfy the SAR in cash or Shares or some combination of
each, as the Committee may determine in its sole discretion. All
notices or requests provided for herein shall be delivered to the
Company's Secretary, or such other person as the Committee may
designate.
14.2 CASHLESS EXERCISE PROCEDURES. The Company, in its sole
discretion, may establish procedures whereby an Employee, subject to
the requirements of Rule 16b-3, Regulation T, federal income tax laws,
and other federal, state and local tax and securities laws, can
exercise an Option or a portion thereof without making a direct payment
of the Option price to the Company; provided, however, that these
cashless exercise procedures shall not apply to Incentive Stock Options
which are outstanding on the date the Company
- 23 -
<PAGE> 24
establishes such procedures unless the application of such procedures
to such Options is permitted pursuant to the Code and the regulations
thereunder without affecting the Options' qualification under Code
Section 422 as Incentive Stock Options. If the Company so elects to
establish a cashless exercise program, the Company shall determine, in
its sole discretion, and from time to time, such administrative
procedures and policies as it deems appropriate and such procedures and
policies shall be binding on any Employee wishing to utilize the
cashless exercise program.
15. AWARD TERMS AND CONDITIONS. Each Award or each agreement setting
forth an Award shall contain such other terms and conditions not inconsistent
herewith as shall be approved by the Committee. For example, an Award Agreement
evidencing an Option may provide for the automatic grant of a Reload Option to
an Employee who exercises an Option with Shares.
16. RIGHTS OF AWARD HOLDER. The holder of an Award shall not have any
of the rights of a shareholder with respect to the Shares subject to purchase or
receipt under the Award, except that (a) an Award holder's rights with respect
to a Restricted Stock Award shall be as prescribed in Section 9.2 and (b)
shareholder rights with respect to any other Award shall arise at the time and
to the extent that one or more certificates for such Shares shall be delivered
to the holder upon the due exercise or grant of the Award.
17. NONTRANSFERABILITY OF AWARDS. An Award shall not be transferable
other than: (a) by will or the laws of descent and distribution, and an Award
subject to exercise may be exercised, during the lifetime of the holder of the
Award, only by the holder or in the event of death, the holder's Successor, or
in the event of disability, the holder's personal representative, or (b)
pursuant to a qualified domestic relations order, as defined in the Code or
ERISA or the
- 24 -
<PAGE> 25
rules thereunder; provided, however, that an Incentive Stock Option may not be
transferred pursuant to a qualified domestic relations order unless such
transfer is otherwise permitted pursuant to the Code and the regulations
thereunder without affecting the Option's qualification under Code Section 422
as an Incentive Stock Option.
18. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of changes
in all of the outstanding Shares by reason of stock dividends, stock splits,
reclassifications, recapitalizations, mergers, consolidations, combinations, or
exchanges of shares, separations, reorganizations or liquidations, or similar
events, or in the event of extraordinary cash or non-cash dividends being
declared with respect to the Shares, or similar transactions or events, the
number and class of Shares available under the Plan in the aggregate, the number
and class of Shares subject to Awards theretofore granted, applicable purchase
prices and all other applicable provisions, shall, subject to the provisions of
the Plan, be equitably adjusted by the Committee (which adjustment may, but need
not, include payment to the holder of an Option or SAR, in cash or in Shares, in
an amount equal to the difference between the price at which such Option or SAR
may be exercised and the then current Fair Market Value of the Shares subject to
such Option or SAR as equitably determined by the Committee). The foregoing
adjustment and the manner of application of the foregoing provisions shall be
determined by the Committee, in its sole discretion. Any such adjustment may
provide for the elimination of any fractional Share which might otherwise become
subject to an Award.
- 25 -
<PAGE> 26
19. CHANGE IN CONTROL. Notwithstanding anything to the contrary in the
Plan or any Award Agreement, in the case of a Change in Control of the Company,
the Committee may, in its discretion, taking into account the purposes of this
Plan, determine, on a case by case basis, that each Award granted under the Plan
shall, subject to the following provisions, terminate ninety (90) days after the
occurrence of such Change in Control but, in the event of any such termination:
(a) An Option or SAR holder (not including the holder of an
Option in tandem with a Restricted Stock Award) shall have the right,
commencing at least five (5) days prior to such Change in Control and
subject to any other limitation on the exercise of such Option or SAR
in effect on the date of exercise, (i) to immediately exercise any
Options not in tandem with SARs or Restricted Stock Awards in full,
without regard to any vesting limitations, to the extent they shall not
have been theretofore exercised, and (ii) to exercise at any time after
the sixth (6th) month anniversary of the date of the grant of the
respective SAR (but subject to the restrictions of Rule 16b-3), any
SARs or Options in tandem with SARs in full, without regard to any
vesting limitations, to the extent they shall not have been theretofore
exercised, provided, however, that no SAR or Option in tandem with an
SAR shall terminate prior to the end of the first Window Period
following the occurrence of such Change in Control;
(b) All restrictions on Restricted Stock Awards shall
immediately lapse, certificates for the affected Shares shall be
appropriately distributed and any Options in tandem with Restricted
Stock Awards will be deemed to have been surrendered; and
- 26 -
<PAGE> 27
(c) All vesting limitations with respect to Performance Plan
Awards shall be deemed satisfied and any Option, Reload Option,
Restricted Stock Award, SAR, Share or Stock Bonus Award issuable
thereunder shall, subject to (a) and (b) above, be appropriately
issued, and any cash payment required to be made with respect to a unit
shall be appropriately made.
20. FORMS OF AWARDS. Nothing contained in the Plan nor any resolution
adopted or to be adopted by the Board or by the shareholders of the Company
shall constitute the granting of any Award. An Award shall be granted hereunder
only by action taken by the Committee in granting an Award. Whenever the
Committee shall designate an Employee for the receipt of an Award, the Company's
Secretary, or such other person as the Committee may designate, shall forthwith
send notice thereof to the Employee, in such form as the Committee shall
approve, stating the number of Shares subject to the Award, its Term, and the
other terms and conditions thereof. The notice shall be accompanied by a written
Award Agreement in such form as may from time to time hereafter be approved by
the Committee, which shall have been duly executed by or on behalf of the
Company. If the surrender of previously issued Awards is made a condition of the
grant, the notice shall set forth the pertinent details of such condition.
Execution by the Employee to whom such Award is granted of said Award Agreement
in accordance with the provisions set forth in this Plan shall be a condition
precedent to the exercise or receipt of any Award.
- 27 -
<PAGE> 28
21. TAXES.
------
21.1 RIGHT TO WITHHOLD REQUIRED TAXES. The Company shall have
the right to require a person entitled to receive Shares pursuant to
the receipt, vesting or exercise of an Award under the Plan to pay the
Company the amount of any taxes which the Company is or will be
required to withhold with respect to such Shares before the certificate
for such Shares is delivered pursuant to the Award. Furthermore, the
Company may elect to deduct such taxes from any other amounts then
payable in cash or in Shares or from any other amounts payable any time
thereafter to the Employee. The Company shall also have the right to
deduct from any cash payment payable to a person pursuant to an Award
the amount of any taxes which the Company is required by law to
withhold with respect to such cash payment. If the Employee disposes of
Shares acquired pursuant to an Incentive Stock Option in any
transaction considered to be a disqualifying disposition under Sections
421 and 422 of the Code, the Employee shall notify the Company of such
transfer and the Company shall have the right to deduct any taxes
required by law to be withheld from any amounts otherwise payable then
or at any time thereafter to the Employee.
21.2 EMPLOYEE ELECTION TO WITHHOLD SHARES. Subject to
Committee approval (which in the case of Incentive Stock Options must
be given at the time of grant), an Employee may elect to satisfy the
tax liability with respect to the exercise of an Option by having the
Company withhold Shares otherwise issuable upon exercise of the Option;
provided, however, that if an Employee is subject to Section 16(b) of
the Exchange Act at the time the Option is exercised, such election
must satisfy the requirements of Rule 16b-3.
- 28 -
<PAGE> 29
22. TERMINATION OF THE PLAN. The Plan shall terminate ten (10) years
from the date hereof, and an Award shall not be granted under the Plan after
that date although the terms of any Awards may be amended at any date prior to
the end of its Term in accordance with the Plan. Any Awards outstanding at the
time of termination of the Plan shall continue in full force and effect
according to the terms and conditions of the Award and this Plan.
23. AMENDMENT OF THE PLAN. The Plan may be amended at any time and from
time to time by the Board, but no amendment without the approval of the
shareholders of the Company shall be made if shareholder approval under Section
422 of the Code or Rule 16b-3 would be required. Notwithstanding the
discretionary authority granted to the Committee in Section 4 of the Plan, no
amendment of the Plan or any Award granted under the Plan shall impair any of
the rights of any holder, without the holder's consent, under any Award
theretofore granted under the Plan.
24. DELIVERY OF SHARES ON EXERCISE OR GRANT. Delivery of certificates
for Shares pursuant to the grant or exercise of an Award may be postponed by the
Company for such period as may be required for it with reasonable diligence to
comply with any applicable requirements of any federal, state or local law or
regulation or any administrative or quasi-administrative requirement applicable
to the sale, issuance, distribution or delivery of such Shares. The Committee
may, in its sole discretion, require an Employee to furnish the Company with
appropriate representations and a written investment letter prior to the
exercise of an Award or the delivery of any Shares pursuant to an Award.
- 29 -
<PAGE> 30
25. FEES AND COSTS. The Company shall pay all original issue taxes on
the issuance or exercise of any Award granted under the Plan and all other fees
and expenses necessarily incurred by the Company in connection therewith.
26. EFFECTIVENESS OF THE PLAN. The Plan shall become effective when
approved by the Board. The Plan shall thereafter be submitted to the Company's
shareholders for approval and unless the Plan is approved by the affirmative
votes of the holders of Shares having a majority of the voting power of all
Shares either (i) represented at a meeting duly held in accordance with
Pennsylvania law within twelve (12) months after being approved by the Board, or
(ii) obtained by a written consent in accordance with Pennsylvania law within
twelve (12) months after being approved by the Board, the Plan and all Awards
made under it shall be void and of no force and effect. In aid of this
provision, any Award granted prior to the approval of the Plan by the Company's
shareholders shall be conditioned upon receipt of such approval.
27. OTHER PROVISIONS. As used in the Plan, and in Awards and other
documents prepared in implementation of the Plan, references to the masculine
pronoun shall be deemed to refer to the feminine or neuter, and references in
the singular or the plural shall refer to the plural or the singular, as the
identity of the person or persons or entity or entities being referred to may
require. The captions used in the Plan and in such Awards and other documents
prepared in implementation of the Plan are for convenience only and shall not
affect the meaning of any provision hereof or thereof.
28. PENNSYLVANIA LAW TO GOVERN. This Plan shall be governed by and
construed in accordance with the laws of the State of Pennsylvania.
- 30 -
<PAGE> 1
Exhibit 4.5
SULCUS HOSPITALITY TECHNOLOGIES CORP.
1997 NON-EMPLOYEE DIRECTORS'
STOCK OPTION PLAN
1. PURPOSE OF THE PLAN. This Sulcus Hospitality Technologies Corp. 1997
Non-Employee Directors' Stock Option Plan adopted on this 13th day of October,
1997, is intended to encourage Directors of the Company who are not officers or
key employees of the Company or any of its subsidiaries to acquire or increase
their ownership of common stock of the Company. The opportunity so provided is
intended to foster in participants an incentive to put forth maximum effort for
the continued success and growth of the Company and its subsidiaries, to aid in
retaining individuals who put forth such efforts, and to assist in attracting
the best available individuals to the Company in the future.
2. DEFINITIONS. When used herein, the following terms shall have the
meaning set forth below:
2.1 "AFFILIATE" means an "affiliate" within the meaning of
Rule 12b-2 of the General Rules and Regulations under the Exchange Act
(as in effect on the date the Plan is adopted by the Board).
2.2 "ASSOCIATE" means an "associate" within the meaning of
Rule 12b-2 of the General Rules and Regulations under the Exchange Act
(as in effect on the date the Plan is adopted by the Board).
2.3 "BENEFICIAL OWNER" means with respect to any Person, and a
Person shall be deemed to "beneficially own" and be the beneficial
owner of, any securities (i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
1
<PAGE> 2
indirectly; (ii) which such Person or any of such Person's Affiliates
or Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities), or upon the
exercise of conversion rights, exchange rights, rights, warrants or
options, or otherwise; PROVIDED, HOWEVER, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own, securities
tendered pursuant to a tender or exchange offer made by or on behalf of
such Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange; or (B) the
right to vote pursuant to any agreement, arrangement or understanding;
PROVIDED, HOWEVER, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, any security if the agreement,
arrangement or understanding to vote such security (1) arises solely
from a revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations promulgated under
the Exchange Act and (2) is not also then reportable on Schedule 13D
under the Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates
or Associates has any agreement, arrangement or understanding (other
than customary agreements with and between underwriters and selling
group members with respect to a bona fide public offering of
securities) for the purpose of acquiring, holding, voting (except to
the extent contemplated by the proviso to (ii)(B) above) or disposing
of any securities of the Company. Notwithstanding anything in this
definition
2
<PAGE> 3
of beneficial ownership to the contrary, the phrase "then outstanding,"
when used with reference to a Person's beneficial ownership of
securities of the Company, shall mean the number of such securities
then issued and outstanding together with the number of such securities
not then actually issued and outstanding which such Person would be
deemed to own beneficially hereunder.
2.4 "BOARD" means the Board of Directors of Sulcus Hospitality
Technologies Corp.
2.5 "CHANGE IN CONTROL" means a change in control of the
Company of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Exchange Act (as in effect on the date the Plan is adopted by the
Board), whether or not the Company is then subject to such reporting
requirement; provided, that, without limitation, such a change in
control shall be deemed to have occurred if:
(a) any "person" (as defined in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company
representing twenty percent (20%) or more of the combined
voting power of the Company's then outstanding securities; or
(b) During any period of two (2) consecutive years
(not including any period prior to the date the Plan is
adopted by the Board) there shall cease to be a majority of
the Board comprised of Continuing Directors; or
3
<PAGE> 4
(c) (i) the shareholders of the Company approve a
merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) at least eighty percent
(80%) of the combined voting power of the voting securities of
the Company or such surviving entity outstanding immediately
after such merger or consolidation; or
(ii) the shareholders of the Company approve
a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or
substantially all of the Company's assets.
2.6 "CODE" means the Internal Revenue Code of 1986, as in
effect at the time of reference, or any successor revenue code which
may hereafter be adopted in lieu thereof, and any reference to any
specific provisions of the Code shall refer to the corresponding
provisions of the Code as it may hereafter be amended or replaced.
2.7 "COMMITTEE" means the Compensation Committee of the Board
or any other committee appointed by the Board which is invested by the
Board with responsibility for the administration of the Plan.
2.8 "COMPANY" means Sulcus Hospitality Technologies Corp.
2.9 "CONTINUING DIRECTORS" means individuals who at the
beginning of any period of two (2) consecutive years (not including any
period prior to the adoption of this Plan) constitute the Board and any
new director(s) whose election by the Board or nomination
4
<PAGE> 5
for election by the Company's shareholders was approved by a vote of at
least two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or
nomination for election was previously so approved.
2.10 "DIRECTORS" means directors who serve on the Board and
who are not officers or key employees of the Company or any of its 50%
or more direct or indirect subsidiaries.
2.11 "EFFECTIVE DATE" means October 13, 1997.
2.12 "ERISA" means the Employee Retirement Income Security Act
of 1974, as in effect at the time of reference, or any successor law
which may hereafter be adopted in lieu thereof, and any reference to
any specific provisions of ERISA shall refer to the corresponding
provisions of ERISA as it may hereafter be amended or replaced.
2.13 "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as in effect at the time of reference, or any successor law which may
hereafter be adopted in lieu thereof, and any reference to any specific
provisions of the Exchange Act shall refer to the corresponding
provisions of the Exchange Act as it may be amended or replaced.
2.14 "EXEMPT PERSON" means the Company, any subsidiary of the
Company, any employee benefit plan of the Company or any subsidiary of
the Company, any entity holding Shares for or pursuant to the terms of
any such plan, any director of the Company holding office as of the
close of business on the Effective Date who are also officers of the
Company on such date, any immediate family member of or Person
controlled by any such director.
2.15 "FAIR MARKET VALUE" means, with respect to the Shares,
the closing price of the Shares on the American Stock Exchange or other
national securities exchange, on the last business day prior to the
date on which the value is to be determined, as reported
5
<PAGE> 6
in THE WALL STREET JOURNAL or such other source of quotations for, or
reports of trading of, the Shares as the Committee may reasonably
select from time to time; provided, however, if the Shares are not then
traded on such an exchange, but are then traded on the over-the-counter
market, Fair Market Value means the mean between the high and the low
bid and asked prices for the Shares on the over-the-counter market on
the last business day prior to the date on which the value is to be
determined (or the next preceding day on which sales occurred if there
were no sales on such date); provided further, however, if no sales
have occurred in the over-the-counter market during the three week
period preceding the date on which the value is to be determined, Fair
Market Value means the average of the mean between the high and low bid
and asked prices for the Shares on the over-the-counter market for the
three (3) month period ending on the last business day prior to the
date on which the value is to be determined; provided, further,
however, if the Shares are reported in the National Market List of the
National Association of Securities Dealers, Inc. Automated Quotation
System, the closing price shall be substituted above for the mean of
the high and the low bid and asked prices.
2.16 "INITIAL GRANT DATE" means the first business day
following the date a Director joins the Board, but only if the Director
was not a Director on the Effective Date.
2.17 "OPTION" means the right to purchase the number of Shares
specified by the Plan at a price and for a term fixed by the Plan, and
subject to such other limitations and restrictions as the Plan and the
Committee imposes.
6
<PAGE> 7
2.18 "OPTION AGREEMENT" means a written agreement in such form
as may be, from time to time, hereafter approved by the Committee,
which shall be duly executed by the Company and the Director and which
shall set forth the terms and conditions of an Option under the Plan.
2.19 "PERSON" means any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) of
such entity.
2.20 "PLAN" means the Sulcus Hospitality Technologies Corp.
1997 Non-Employee Directors' Stock Option Plan.
2.21 "REGULATION T" means Part 220, chapter II, title 12 of
the Code of Federal Regulations, issued by the Board of Governors of
the Federal Reserve System pursuant to the Exchange Act, as amended
from time to time.
2.22 "RULE 16b-3" means Rule 16b-3 of the General Rules and
Regulations under the Exchange Act as in effect at the time of
reference, or any successor rules or regulations which may hereafter be
adopted in lieu thereof, and any reference to any specific provisions
of Rule 16b-3 shall refer to the corresponding provisions of Rule 16b-3
as it may hereafter be amended or replaced.
2.23 "SHARES" means shares of the Company's no par value
common stock or, if by reason of the adjustment provisions contained
herein, any rights under an Option under the Plan pertain to any other
security, such other security.
2.24 "SUCCESSOR" means the legal representative of the estate
of a deceased Director or the person or persons who shall acquire the
right to exercise or receive an Option by bequest or inheritance or by
reason of the death of the Director.
7
<PAGE> 8
2.25 "TERM" means the period during which a particular Option
may be exercised.
3. STOCK SUBJECT TO THE PLAN. There will be reserved for use, upon the
exercise of Options to be granted from time to time under the Plan, an aggregate
of five hundred thousand (500,000) Shares, which Shares may be, in whole or in
part, as the Board shall from time to time determine, authorized but unissued
Shares, or issued Shares which shall have been reacquired by the Company. Any
Shares subject to issuance upon exercise of Options but which are not issued
because of a surrender, lapse, expiration or termination of any such Option
prior to issuance of the Shares shall once again be available for issuance in
satisfaction of Options.
4. ADMINISTRATION OF THE PLAN. The Board shall select the Committee,
which shall consist of not less than two (2) disinterested directors as defined
in Rule 16b-3. Subject to the provisions of the Plan, the Committee shall have
full authority, in its discretion, to interpret the Plan, to prescribe, amend
and rescind rules and regulations relating to the Plan, and generally to
interpret and determine any and all matters whatsoever relating to the
administration of the Plan and the granting of Options hereunder. The Board may,
from time to time, appoint members to the Committee in substitution for or in
addition to members previously appointed and may fill vacancies, however caused,
in the Committee. The Committee shall select one of its members as its chairman
and shall hold its meetings at such times and places as it shall deem advisable.
A majority of its members shall constitute a quorum. Any action of the Committee
may be taken by a written instrument signed by all of the members, and any
action so taken shall be fully as effective as if it had been taken by a vote of
a majority of the members at a meeting duly called and held. The Committee shall
make such rules and regulations for the conduct of its business as it shall deem
advisable and shall appoint a Secretary who shall keep minutes of its meetings
and records of all action taken in
8
<PAGE> 9
writing without a meeting. No member of the Committee shall be liable, in the
absence of bad faith, for any act or omission with respect to his service on the
Committee.
5. GRANT OF OPTIONS.
-----------------
5.1 EXISTING DIRECTORS. Each Director who is a Director on the
Effective Date shall be granted an Option on such date to purchase
5,000 Shares without further action by the Board or the Committee. On
the second anniversary date of the Effective Date, each such Director
who is still a Director on such anniversary date shall be granted an
additional Option to purchase 5,000 Shares without further action by
the Board or the Committee.
5.2 FUTURE DIRECTORS. Each Director who joins the Board after
the Effective Date shall be granted an Option on the Initial Grant Date
to purchase 5,000 Shares without further action by the Board or the
Committee. On the second anniversary of the Initial Grant Date, if the
Director is still a Director on such anniversary date, such Director
shall be granted an additional Option to purchase 5,000 Shares without
further action by the Board or the Committee.
5.3 LIMITATIONS. If the number of Shares available to grant
under the Plan on a scheduled date of grant is insufficient to make all
automatic grants required to be made pursuant to the Plan on such date,
then each eligible Director shall receive an Option to purchase a pro
rata number of the remaining Shares available under the Plan; provided
further, however, that if such proration results in fractional Shares,
then such Option shall be rounded down to the nearest number of whole
Shares.
9
<PAGE> 10
6. BASIC STOCK OPTION PROVISIONS.
------------------------------
6.1 OPTION PRICE. The option price per Share of any Option
granted under the Plan shall be the Fair Market Value of the Shares
covered by the Option on the date the Option is granted.
6.2 TERMS OF OPTIONS.
(a) Options granted hereunder shall be exercisable
for a Term of ten (10) years from the date of grant thereof,
but shall be subject to earlier termination as hereinafter
provided, and
(b) Except as otherwise provided in the Plan, prior
to its expiration or termination, any Option granted hereunder
may be exercised within the following time limitations:
(i) After one (1) year from the date of
grant, it may be exercised as to not more than
one-third (1/3) of the Shares originally subject to
the Option.
(ii) After two (2) years from the date of
grant, it may be exercised as to not more than an
aggregate of two-thirds (2/3) of the Shares
originally subject to the Option.
(iii) After three (3) years from the date of
grant, it may be exercised as to any part or all of
the Shares originally subject to the Option.
6.3 TERMINATION OF DIRECTORSHIP. In the event a Director
ceases to be a member of the Board (other than by reason of death or
disability), then (a) an Option may be exercised by the Director (to
the extent that the Director was entitled to do so at the termination
of his
10
<PAGE> 11
directorship) at any time within the later of (i) three (3) months
after he ceases to be a member of the Board, and (ii) nine (9) months
after the most recent grant of an Option to the Director pursuant to
the Plan, but not beyond the Term of the Option, and (b) the portion of
any Option that has not vested as of the date the Director ceases to be
a member of the Board shall automatically terminate.
6.4 DEATH OR DISABILITY OF DIRECTOR. If a Director dies or
becomes disabled while he is a member of the Board, an Option may be
exercised in full, by his Successor in the event of death, or by him or
his personal representative, as the case may be, in the event of
disability, at any time within twelve (12) months after he ceases to be
a member of the Board on account of such death or disability, but not
beyond the Term of the Option; provided, however, in the event of
disability, the Option may not be exercised prior to the six month
anniversary of the date the Option was granted. If a Director,
following the termination of his directorship, shall die within the
later of (i) three (3) months after the date he ceases to be a member
of the Board, and (ii) nine (9) months after the most recent grant of
an Option to the Director pursuant to the Plan, an Option may be
exercised (to the extent the Director shall have been entitled to do so
at the time of his death), by his Successor, at any time within twelve
(12) months after his death, but not beyond the Term of the Option.
7. EXERCISE OF RIGHTS UNDER AWARDS.
--------------------------------
7.1 NOTICE OF EXERCISE. A Director entitled to exercise an
Option may do so by delivery of a written notice to that effect
specifying the number of Shares with respect to which the Option is
being exercised and any other information the Committee may require.
The notice shall be accompanied by payment in full of the purchase
price of any Shares to be
11
<PAGE> 12
purchased, which payment shall be made in cash or by certificates of
Shares held for more than six (6) months, duly endorsed in blank, equal
in value to the purchase price of the Shares to be purchased based on
their Fair Market Value at the time of exercise or a combination
thereof. No Shares shall be issued upon exercise of an Option until
full payment has been made therefor. All notices or requests provided
for herein shall be delivered to the Company's Secretary, or such other
person as the Committee may designate. No fractional Shares shall be
issued.
7.2 CASHLESS EXERCISE PROCEDURES. The Company, in its sole
discretion, may establish procedures whereby a Director, subject to the
requirements of Regulation T, federal income tax laws, and other
federal, state and local tax and securities laws, can exercise an
Option or a portion thereof without making a direct payment of the
option price to the Company. If the Company elects to establish a
cashless exercise program, a Director may utilize such program but only
in accordance with such administrative procedures and policies as the
Company deems appropriate and such procedures and policies shall be
binding on any Director wishing to utilize the cashless exercise
program.
8. RIGHTS OF OPTION HOLDER. The holder of an Option shall not have any
of the rights of a shareholder with respect to the Shares subject to purchase or
receipt under his Option, except to the extent that one or more certificates for
such Shares shall be issuable to the holder upon the due exercise of the Option
and the payment in full of the purchase price therefor.
9. NONTRANSFERABILITY OF OPTIONS. An Option shall not be transferable,
other than: (a) by will or the laws of descent and distribution, and an Option
may be exercised, during the lifetime of the holder of the Option, only by the
holder, or in the event of death, the holder's Successor, or
12
<PAGE> 13
in the event of disability, the holder's personal representative, or (b)
pursuant to a qualified domestic relation order, as defined in the Code or ERISA
or the rules thereunder.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of changes
in all of the outstanding Shares by reason of stock dividends, stock splits,
reclassifications, recapitalizations, mergers, consolidations, combinations, or
exchanges of shares, separations, reorganizations or liquidations, or similar
events, or in the event of extraordinary cash or non-cash dividends being
declared with respect to the Shares, or similar transactions or events, the
number and class of Shares available under the Plan in the aggregate, the number
and class of Shares subject to Options theretofore granted, applicable purchase
prices and all other applicable provisions, shall, subject to the provisions of
the Plan, be equitably adjusted by the Committee (which adjustment may, but need
not, include payment to the holder of an Option, in cash or in Shares, in an
amount equal to the difference between the price at which such Option may be
exercised and the then current Fair Market Value of the Shares subject to such
Option as equitably determined by the Committee). The foregoing adjustment and
the manner of application of the foregoing provisions shall be determined by the
Committee, in its sole discretion. Any such adjustment may provide for the
elimination of any fractional Share which might otherwise become subject to an
Option.
11. CHANGE IN CONTROL. Notwithstanding anything to the contrary herein
or in any Option Agreement, in the case of a Change in Control of the Company,
each Option granted under the Plan shall terminate on the later of (i) ninety
(90) days after the occurrence of such Change in Control, and (ii) seven (7)
months following the date of grant of each such Option, and an Option
13
<PAGE> 14
holder shall have the right, commencing at least five (5) days prior to such
Change in Control and subject to any other limitation on exercise of an Option
in effect on the date of exercise, to immediately exercise any Option in full,
without regard to any vesting limitations, to the extent it shall not have been
previously exercised.
12. FORMS OF OPTIONS. An Option shall be granted hereunder on the date
or dates specified in the Plan. Whenever the Plan provides for the receipt of an
Option by a Director, the Secretary of the Company, or such other person as the
Committee shall appoint, shall forthwith send notice thereof to the Director, in
such form as the Committee shall approve, stating the number of Shares subject
to the Option, its Term, and the other terms and conditions thereof. The notice
shall be accompanied by a written Option Agreement, in such form as may from
time to time hereafter be approved by the Committee, which shall have been duly
executed by or on behalf of the Company. Execution by the Director to whom such
Option is granted of said Option Agreement in accordance with the provisions set
forth in this Plan shall be a condition precedent to the exercise of any Option.
13. TAXES. The Company shall have the right to require a person
entitled to receive Shares pursuant to the exercise of an Option under the Plan
to pay the Company the amount of any taxes which the Company is or will be
required to withhold, if any, with respect to such Shares before the certificate
for such Shares is delivered pursuant to the Option.
14. TERMINATION OF THE PLAN. The Plan shall terminate ten (10) years
from the date the Plan is adopted by the Board, and an Option shall not be
granted under the Plan after that date although the terms of any Option may be
amended at any date prior to the end of its Term in accordance with the Plan.
Any Option outstanding at the time of termination of the Plan shall continue in
full force and effect according to the terms and conditions of the Option and
this Plan.
14
<PAGE> 15
15. AMENDMENT OF THE PLAN. The Plan may be amended at any time and from
time to time by the Board, but no amendment without the approval of the
shareholders of the Company shall be made if shareholder approval under Rule
16b-3 would be required. Notwithstanding the foregoing, the Plan may not be
amended more than once every six (6) months to change the Plan provisions listed
in section (c)(2)(ii)(A) of Rule 16b-3, other than to comport with changes in
the Code, ERISA or Rule 16b-3. Notwithstanding any discretionary authority
granted to the Committee in Section 4 of the Plan, no amendment of the Plan or
any Option granted under the Plan shall impair any of the rights of any holder,
without the holder's consent, under any Option theretofore granted under the
Plan.
16. DELIVERY OF SHARES ON EXERCISE. Delivery of certificates for Shares
pursuant to an Option exercise may be postponed by the Company for such period
as may be required for it with reasonable diligence to comply with any
applicable requirements of any federal, state or local law or regulation or any
administrative or quasi-administrative requirement applicable to the sale,
issuance, distribution or delivery of such Shares. The Committee may, in its
sole discretion, require a Director to furnish the Company with appropriate
representations and a written investment letter prior to the exercise of an
Option or the delivery of any Shares pursuant thereto.
17. FEES AND COSTS. The Company shall pay all original issue taxes on
the exercise of any Option granted under the Plan and all other fees and
expenses necessarily incurred by the Company in connection therewith.
18. EFFECTIVENESS OF THE PLAN. The Plan was approved by the Board on
October 13, 1997, and shall become effective on the Effective Date.
15
<PAGE> 16
19. OTHER PROVISIONS. As used in the Plan, and in Option Agreements and
other documents prepared in implementation of the Plan, references to the
masculine pronoun shall be deemed to refer to the feminine or neuter, and
references in the singular or the plural shall refer to the plural or the
singular, as the identity of the person or persons or entity or entities being
referred to may require. The captions used in the Plan and in such Option
Agreements and other documents prepared in implementation of the Plan are for
convenience only and shall not affect the meaning of any provision hereof or
thereof.
20. PENNSYLVANIA LAW TO GOVERN. This Plan shall be governed by and
construed in accordance with the laws of the State of Pennsylvania.
16
<PAGE> 1
Exhibit 5.1
December 19, 1997
Securities and Exchange Commission
450 Fifth Street, NW
Washington, D.C. 20549
RE: Sulcus Computer Corporation
Registration Statement on Form S-8
----------------------------------
Gentlemen:
I refer to the Registration Statement on Form S-8 (the "Registration
Statement") filed by Sulcus Hospitality Technologies Corp., a Pennsylvania
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission"), relating to:
500,000 Shares of Common Stock (no par value) under the Sulcus
Hospitality Technologies Corp. 1997 Employee Stock Purchase Plan; and
500,000 Shares of Common Stock (no par value) under the Sulcus
Hospitality Technologies Corp. 1997 Long-Term Incentive Plan; and
500,000 Shares of Common Stock (no par value) under the Sulcus
Hospitality Technologies Corp. 1997 Non-Employee Director Stock Option Plan
(collectively, the "Plans").
I have reviewed the Articles of Incorporation and By-Laws of the
Company, as amended, the Registration Statement and the related prospectus
which are part of the Registration Statement, records of certain of the
Company's corporate proceedings as reflected in the Company's minute books, the
Plans and have examined such authorities and statutes as I have deemed
relevant to the opinions set forth hereinafter.
<PAGE> 2
Securities and Exchange Commission
Page 2
December 19, 1997
Based upon the foregoing, it is in my opinion that the shares of Common
Stock, when and if issued under the Plans will, when duly issued in accordance
with the terms and conditions of the Plans, be validly issued, fully paid and
non-assessable.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to me in the exhibit list to the
Prospectus in the Prospectus which forms a part thereof.
Sincerely,
/s/ John W. Ryba
John W. Ryba
Sr. Vice President
and Chief Legal Officer
JWR/tt
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation, by reference, in this Registration
Statement of Sulcus Hospitality Technologies Corp. (formerly Sulcus Computer
Corporation) on Form S-8 of our report dated March 5, 1997, on the financial
statements of Sulcus Hospitality Technologies Corp., included in its Annual
Report (Form 10-K), for the year ended December 31, 1996.
/s/ Crowe, Chizek and Company LLP
CROWE, CHIZEK AND COMPANY LLP
Columbus, Ohio
December 19, 1997
8
