<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 27, 1996
REGISTRATION NO. 33-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ASA INTERNATIONAL LTD.
------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 02-0398205
- ------------------------------- -------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
10 SPEEN STREET, FRAMINGHAM, MASSACHUSETTS 01701
- ------------------------------------------ --------
(Address of Principal Executive Offices) Zip Code
ASA INTERNATIONAL LTD.
1986 STOCK OPTION PLAN
1988 STOCK OPTION PLAN
1993 STOCK OPTION PLAN
1995 STOCK OPTION PLAN
AND
CERTAIN INDIVIDUALLY NEGOTIATED COMPENSATION PLANS
-------------------------
(Full Title of the Plans)
ALFRED C. ANGELONE
CHIEF EXECUTIVE OFFICER
10 SPEEN STREET
FRAMINGHAM, MASSACHUSETTS 01701
(508) 626-9010
---------------------------------------------------------
(Name, Address and Telephone Number of Agent for Service)
Copies to:
PAUL D. BROUDE, ESQUIRE
MARK J. TARALLO, ESQUIRE
O'CONNOR, BROUDE & ARONSON
950 WINTER STREET, SUITE 2300
WALTHAM, MASSACHUSETTS 02154
(617) 890-6600
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
1986 STOCK OPTION PLAN
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Title of Each Class Amount to be Proposed Proposed Amount of
of Securities to be Registered(1) Maximum Maximum Registration
Registered Offering Price Aggregate Fee
per Share(2) Offering Price(2)
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 2,942 $0.88 $ 2,588.96 $ 0.89
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 5,685 $0.89 $ 5,059.65 $ 1.74
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 825 $0.92 $ 759.00 $ 0.26
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 5,817 $1.06 $ 6,166.02 $ 2.12
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 7,000 $1.44 $10,080.00 $ 3.48
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 20,000 $1.56 $31,200.00 $10.76
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 25,000 $1.75 $43,750.00 $15.09
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 6,558 $2.63 $17,247.54 $ 5.94
$.01 par value
- ----------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
1988 STOCK OPTION PLAN
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Title of Each Class Amount to be Proposed Proposed Amount of
of Securities to be Registered(1) Maximum Maximum Registration
Registered Offering Price Aggregate Fee
per Share(2) Offering Price(2)
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,000 $1.19 $1,190.00 $0.41
$.01 par value
- ----------------------------------------------------------------------------------------------------
</TABLE>
-1-
<PAGE> 3
<TABLE>
1993 PLAN
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Title of Each Class Amount to be Proposed Proposed Amount of
of Securities to be Registered(1) Maximum Maximum Registration
Registered Offering Price Aggregate Fee
per Share(2) Offering Price(2)
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 200,000 $1.44 $288,000.00 $99.31
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 100,000 $1.47 $147,000.00 $50.69
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 20,000 $2.66 $ 53,200.00 $18.34
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 1,000 $1.57 $ 1,570.00 $ 0.54
$.01 par value
- ----------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
STOCK OPTIONS EXERCISED - STOCK OPTION PLANS
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Title of Each Class Amount to be Proposed Proposed Amount of
of Securities to be Registered(1) Maximum Maximum Registration
Registered Offering Price Aggregate Fee
per Share(2) Offering Price(2)
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 85,516 $0.89 $76,109.24 $26.24
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 1 $1.56 $ 1.56 $ 0.00
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 638 $1.06 $ 676.28 $ 0.23
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 394 $2.63 $ 1,036.22 $ 0.36
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 458 $0.88 $ 403.04 $ 0.14
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 470 $3.91 $ 1,837.70 $ 0.63
$.01 par value
- ----------------------------------------------------------------------------------------------------
</TABLE>
-2-
<PAGE> 4
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 50 $0.92 $ 46.00 $ 0.02
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 23,998 $9.375 $224,981.25 $77.58
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 3,000 $1.07 $ 3,210.00 $ 1.11
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 2,000 $1.57 $ 3,140.00 $ 1.08
$.01 par value
- ----------------------------------------------------------------------------------------------------
Common Stock, 23,500 $1.44 $ 33,840.00 $11.67
$.01 par value
- ----------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
TOTAL
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered(1) Share(2) Price(2) Registration Fee(3)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01
par value per share
(the "Common Stock").......... 1,191,477 $ 9.375 $1,772,773.39 $611.30
- -----------------------------------------------------------------------------------------------------------------------------
<FN>
(1) Pursuant to Rule 416, there are also being registered such additional
shares of Common Stock as may become issuable pursuant to stock splits
or similar transactions.
(2) The offering price for shares subject to options outstanding on the
date hereof is the actual exercise price of such options. The offering
price for options exercised as of the date hereof is the exercise price
of such options.
(3) The total Registration Fee includes $215.93 payable in respect of
435,625 shares reserved under the 1988 Stock Option Plan, the 1993
Stock Option Plan and the 1995 Stock Option Plan that have not been
made subject to options, plus $67.51 payable in respect of 220,000
shares reserved for issuance pursuant to individually negotiated
compensation plans at an exercise price of $0.89 per share. The
offering price for shares not subject to options on the date hereof has
been estimated solely for the purpose of determining the registration
fee pursuant to Regulation C, Rule 457(h) on the basis of the average
of the high and low prices of the Company's Common Stock, as reported
in the consolidated reporting system of the NASDAQ SmallCap Market on
September 25, 1996 as $1.4375.
</TABLE>
-3-
<PAGE> 5
PROSPECTUS
ASA INTERNATIONAL LTD.
1,191,477 SHARES OF COMMON STOCK,
$.01 PAR VALUE PER SHARE
This Prospectus relates to 1,191,477 shares (the "Shares") of common
stock, $.01 par value per share (the "Common Stock"), of ASA International Ltd.,
a Delaware corporation (the "Company"), issued or reserved for issuance pursuant
to the granting of options under the Company's 1986 Stock Option Plan (the "1986
Plan"), 1988 Stock Option Plan (the "1988 Plan"), 1993 Stock Option Plan (the
"1993 Plan"), 1995 Stock Option Plan (the "1995 Plan"), and certain
individually negotiated compensation plans, and for reoffer or
resale from time to time by the selling stockholders (the "Selling
Stockholders"). See "Selling Stockholders." Collectively, the 1986 Plan, the
1988 Plan, the 1993 Plan and the l995 Plan are sometimes referred to as the
"Stock Option Plans." The Registration Statement of which this Prospectus is a
part also registers shares of Common Stock that may be sold by employees of the
Company who purchased such Common Stock upon the exercise of options granted
under the Stock Option Plans.
This offering (the "Offering") is not being underwritten. The Shares
being offered hereunder may be sold by the Selling Stockholders and/or their
registered representatives from time to time at prices to be determined at the
time of such sales. See "Plan of Distribution." The Company will not receive any
proceeds of any sale of the Common Stock made by the Selling Stockholders. The
Company will receive the exercise price upon the exercise of any options granted
pursuant to the Stock Option Plans. See "Use of Proceeds."
The sale of the Shares being offered hereby, when made, will be made
through customary brokerage channels either through broker-dealers acting as
agents or brokers for the Selling Stockholders or through broker-dealers acting
as principals who may then resell the Shares on The NASDAQ SmallCap Market
("NSCM") or otherwise, or by private sales on NSCM or otherwise, at negotiated
prices related to prevailing market prices at the time of the sales, or by a
combination of such methods of offering. Thus, the distribution of such Shares
may occur over an extended period of time. The Selling Stockholders may effect
these transactions by selling Shares to or through broker-dealers or by pledges
of the Shares to broker-dealers who may, from time to time, themselves effect
distributions of the Shares in their capacity as broker-dealers. See "Plan of
Distribution."
The Selling Stockholders and any broker-dealer who acts in connection
with the sale of Shares hereunder may be deemed to be "underwriters" as that
term is defined in the Securities Act of 1933, as amended (the "Securities
Act"), and any commission received by them and profit on any resale of the
Shares as principal might be deemed to be underwriting discounts and commissions
under the Securities Act. The Selling Stockholders will pay or assume brokerage
commissions or underwriting discounts incurred in connection with the sale of
their Shares, which commissions or discounts will not be paid or assumed by the
Company. See "Plan of Distribution."
<PAGE> 6
The Company's Common Stock is traded on NSCM under the symbol "ASAA".
The shares of Common Stock to be offered for sale pursuant to this Prospectus
may be offered for sale on NSCM or in privately negotiated transactions. On
September 26, 1996, the closing bid price of the Company's Common Stock on NSCM
was $1.375 per share.
------------------
THE SECURITIES OFFERED HEREBY INVOLVE CERTAIN RISKS TO THE PURCHASERS
OF SUCH SECURITIES. SEE "RISK FACTORS."
------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION NOR HAS
THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------
THE DATE OF THIS PROSPECTUS IS SEPTEMBER 27, 1996.
-2-
<PAGE> 7
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copies thereof may be
obtained, at prescribed rates, at the public reference facilities maintained by
the Commission at the Public Reference Section, Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's Regional Offices located
at 7 World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained at prescribed rates by writing to the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
The Company's Common Stock is listed for trading on NSCM. Reports and
other information concerning the Company can be inspected at the offices of The
NASDAQ Stock Market located at 1735 K Street, N.W. Washington, D.C. 20006.
The Company has filed a Registration Statement on Form S-8 under the
Securities Act covering the Common Stock included in this Prospectus. This
Prospectus does not contain all the information set forth in or annexed as
exhibits to the Registration Statement filed by the Company with the Commission
and reference is made to such Registration Statement and the exhibits thereto
for the complete text thereof. For further information with respect to the
Company and the securities offered hereby, reference is made to the Registration
Statement, including the exhibits filed as part thereof, copies of which may be
obtained at prescribed rates upon request to the Commission in Washington, D.C.
Any statements contained herein concerning the provisions of any documents are
not necessarily complete, and, in each instance, such statements are qualified
in their entirety by reference to such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission.
NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR THE SELLING STOCKHOLDERS. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER BY THE SELLING STOCKHOLDERS TO SELL ANY OF THE SECURITIES OFFERED
HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL FOR THE SELLING
STOCKHOLDERS TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF
THIS PROSPECTUS, NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCE,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOF.
-3-
<PAGE> 8
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 are not required to be filed with the Securities and Exchange Commission as
part of this Registration Statement on Form S-8. Such documents and the
documents incorporated by reference in this Registration Statement on Form S-8
pursuant to Item 3 of Part II hereof, as described below, taken together,
constitute a prospectus (the "Section 10(a) Prospectus") that meets the
requirements of Section 10(a) of the Securities Act of 1933, as amended (the
"Securities Act").
-4-
<PAGE> 9
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been previously filed by the
Company with the Commission under the Exchange Act, are incorporated by
reference in this Prospectus:
(1) Annual Report on Form 10-K for the fiscal year ended December
31, 1995 ("Fiscal 1995");
(2) Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 1996;
(3) Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 1996;
(4) Proxy Statement, dated April 15, 1996;
(5) Current Report on Form 8-K dated September 20, 1996; and
(6) Description of the Company's Common Stock in the Company's
Form S-18 Registration Statement, declared effective on June
25, 1986.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the Offering described herein shall be deemed to be
incorporated by reference into this Prospectus from the respective dates those
documents are filed.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of the Registration Statement and this Prospectus to the
extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
The Company will provide, without charge, to each person who receives
this Prospectus, upon the written or oral request of any such person, a copy of
any or all of the documents which have been incorporated herein by reference,
and the documents constituting a part of the Section 10(a) Prospectus, other
than exhibits to such documents (unless such exhibits are specifically
incorporated by reference). Requests should be directed to MaryAnn Bishop at the
Company's address or telephone number set forth below.
-5-
<PAGE> 10
THE COMPANY
THE BUSINESS
ASA International Ltd. (the "Registrant" or the "Company") provides
networked automation systems and ongoing monthly support to approximately 950
businesses in the United States and Canada. The Company designs and develops
proprietary enterprise and point solution software for the electronic time and
labor recording market, for catalog direct marketers, and for the legal,
international trade, and tire dealer markets. The Company installs this software
on a variety of computers and networks, including Digital Equipment Corporation
("DEC"), IBM Corporation ("IBM"), Hewlett Packard ("HP"), and Unix/Open Systems
hardware platforms and provides implementation, training, and long-term software
and hardware support to its clients.
The Company is comprised of five operating groups and a corporate
services group. The International Trade and Transportation Systems Group
provides integrated hardware and software solutions to customs house brokers,
freight forwarders, and other companies involved in international trade. The
Company believes it is now the leading supplier of computer solutions to customs
house brokers and freight forwarders in the United States. The Company's
Business Systems Group provides electronic time recording solutions for payroll
and pay rules for companies of over 500 employees and over $10 million in sales.
The Tire Systems Group provides integrated hardware and software solutions to
independent tire dealers, wholesalers, and retreaders. The Legal Systems Group
provides integrated accounting and practice management solutions to law firms.
The Direct Marketing Systems Group, acquired in August 1993, specializes in
delivering turnkey management systems to consumer and business direct marketing
firms.
The Company, founded in 1969, was organized as a Massachusetts
corporation on December 15, 1982 and was reincorporated as a Delaware
corporation on May 5, 1986. As used in this Prospectus, the term "Company"
includes ASA International Ltd. and its two wholly-owned subsidiaries, ASA
Properties, Inc. ("Properties") and ASA International Ventures, Inc.
("Ventures"). In 1995, two wholly-owned subsidiaries, ASA Incorporated ("ASA
Inc.") and ASA Legal Systems Company, Inc. ("Legal"), were merged into their
parent corporation, ASA International Ltd.
The Company's consulting and general business systems operations began
in 1969 under the direction of the Company's founder and Chief Executive
Officer, Alfred C. Angelone. The Company is a Value-Added Reseller for Digital,
and its International Trade and Transportation Systems, Business Systems, and
Direct Marketing Systems Group are IBM Authorized Industry Remarketers for the
international trade, data collection, and catalog direct marketing industry
segments.
-6-
<PAGE> 11
Except as set forth above, during the past year, there have been no
bankruptcy proceedings, receivership, or similar proceedings with respect to the
Company, nor has there been any merger or consolidation of the Company, and
there has been no disposition of any material amount of the Company's assets.
The Company's principal offices are located at 10 Speen Street,
Framingham, Massachusetts, 01701. Its telephone number is (508) 626-2727.
-7-
<PAGE> 12
RISK FACTORS
The Common Stock offered hereby involves a high degree of risk. In
addition to the information in this Prospectus, the following information should
be considered carefully by potential purchasers in evaluating the Company, its
business and the securities offered hereby.
FLUCTUATIONS IN EARNINGS. While the gross revenues of the Company have
increased over the last three years, the Company has not been able to maintain
consistent earnings growth. Although the Company has operated profitably on a
yearly basis during the last three years, the Company has not operated on a
profitable basis in each quarter. No assurance can be given that the Company
will be able to increase earnings in the future on a consistent basis, or will
continue to operate profitably in the future.
COMPETITION. Competition is substantial for the Company's products and
services. Competitors in the United States and elsewhere are numerous and many
of these companies have substantially greater research and development,
marketing, financial and human resources than the Company. Such companies may
succeed in developing new or enhanced products or services that are more
effective than any that may be developed by the Company, and such companies may
also prove to be more successful than the Company in marketing such products or
services.
TECHNOLOGICAL CHANGE. The business computer systems market in which the
Company competes has undergone and can be expected to continue to undergo rapid
and significant technological change. No assurance can be given that
technological developments will not render the Company's technology or products
incorporating such technology either uneconomical or obsolete.
DEPENDENCE ON KEY PERSONNEL. The Company's future success depends on
the continued contributions of certain key management personnel. The Company's
success to date has depended in large part on the skills and efforts of Alfred
C. Angelone, the Company's Chairman and Chief Executive Officer. The loss of Mr.
Angelone's services could have a material adverse effect on the Company. In
addition, the Company's ability to provide services to its customers depends in
large part on its ability to attract, train and retain qualified personnel. No
assurance can be given that the Company will be able to attract, train and
retain such personnel.
SIGNIFICANT CONTROL BY PRINCIPAL STOCKHOLDERS. As of the date of this
Prospectus, Alfred C. Angelone, the Company's Chairman and Chief Executive
Officer, and Christopher J. Crane, beneficially own or control an aggregate of
1,307,226 shares of Common Stock, representing approximately 32.8% of the total
voting power of the Common Stock. As a result, they will be able to
significantly influence and probably control all matters requiring approval by
the stockholders of the Company, including the election of directors. As a
result, potential acquirors may be
-8-
<PAGE> 13
discouraged from seeking to acquire control of the Company through the purchase
of Common Stock, which could have a depressive effect on the price of the
Company's securities.
LIEN ON SUBSTANTIALLY ALL OF THE COMPANY'S ASSETS; RESTRICTIONS OF BANK
DEBT. The Company has significant outstanding indebtedness and substantially all
of the Company's assets have been pledged to secure its current bank debt. In
addition, the terms of the loan agreements relating to the Company's bank debt
require the Company to maintain certain financial ratios and restrict certain
activities of the Company without the lenders' prior written consent. The
failure to repay this indebtedness or to comply with the terms of the loan
agreements would have a materially adverse effect on the Company's operations.
PATENTS AND PROPRIETARY TECHNOLOGY. The Company relies primarily upon
unpatented proprietary know-how, and does not believe that patents are material
to the Company's business. There can be no assurance that others will not
develop substantially equivalent proprietary information or otherwise obtain
access to the Company's know-how, or that others may not hold or obtain rights
which require licensing by the Company for the pursuit of its business.
POTENTIAL ISSUANCE OF ADDITIONAL SHARES. The Company has authorized
6,000,000 shares of Common Stock, of which 3,854,118 shares of Common Stock are
issued and outstanding plus 129,799 shares of Common Stock held as treasury
stock. The Company's Board of Directors has authority, without action or vote of
the stockholders, to issue all or part of the authorized but unissued shares.
Also, there are a total of 1,051,452 shares of Common Stock which may be issued
pursuant to exercise of stock options granted under the Stock Option Plans. Any
such issuance will dilute the percentage ownership interest of stockholders and
may further dilute the book value of the Common Stock. In addition, the Company
is authorized to issue up to 1,000,000 shares of Preferred Stock, $.01 par value
per share (the "Preferred Stock"), none of which is currently outstanding. The
Preferred Stock may be issued in one or more series, the terms of which may be
determined at the time of issuance by the Board of Directors, without further
action by stockholders, and may include voting rights (including the right to
vote as a series on particular matters), preferences as to dividends and
liquidation, conversion and redemption rights and sinking fund provisions. The
issuance of any Preferred Stock could adversely affect the rights of the holders
of Common Stock, and therefore reduce the value of the Common Stock. In
particular, specific rights granted to future holders of Preferred Stock could
be used to restrict the Company's ability to merge with or sell its assets to a
third party, thereby preserving control of the Company by its then owners.
POSSIBLE LACK OF PUBLIC MARKET AND MARKET ILLIQUIDITY. Although the
Common Stock is quoted on NSCM, no assurance can be given that an active market
in such securities will be sustained.
POSSIBLE DELISTING OF SECURITIES FROM NSCM MARKET. Although the
Company's Common Stock meets the current NSCM listing requirements and is
included on the NSCM, for continued
-9-
<PAGE> 14
inclusion on NSCM (i) the Company will have to maintain at least $2,000,000 in
net tangible assets, (ii) the minimum bid price of the Common Stock will have to
be $1.00 per share, unless the Company has a public float of at least $1,000,000
and stockholders' equity of at least $2,000,000, (iii) at least 100,000 shares
of Common Stock must be publicly held with a market value of at least $200,000,
(iv) the Common Stock will have to have at least two active market makers, and
(v) the Common Stock will have to be held by at least 300 holders. If the
Company is unable to satisfy NSCM's maintenance requirements, its securities may
be delisted from NSCM. In such event, trading if any, in the Common Stock would
thereafter be conducted in the over-the-counter markets in the so-called "pink
sheets" or the NASD's "Electronic Bulletin Board." Consequently, the liquidity
of the Company's securities could be impaired, not only in the number of
securities which could be bought and sold, but also through delays in the timing
of the transactions, reductions in security analysts' and the news media's
coverage of the Company, and lower prices for the Company's securities than
might otherwise be attained.
Additionally, if the Company's securities were to be delisted from
NSCM, they could become subject to Rule 15g-9 under the Exchange Act, which
imposes additional sales practice requirements on broker-dealers which sell such
securities to persons other than established customers and "accredited
investors" (generally, individuals with net worths in excess of $1,000,000 or
annual incomes exceeding $200,000, or $300,000 together with their spouses). For
transactions covered by this rule, a broker-dealer must make a special
suitability determination for the purchaser and have received the purchaser's
written consent to the transaction prior to sale. Consequently, the rule may
adversely affect the ability of broker-dealers to sell the Company's securities
and may adversely affect the ability of purchasers to sell any of the securities
acquired hereby in the secondary market.
NO DIVIDENDS. The Company has not paid dividends to its stockholders
since its inception and does not plan to pay dividends in the foreseeable
future. In addition, the terms of a loan agreement relating to a portion of the
Company's bank debt prohibit the payment of dividends without the lender's prior
written consent. The Company intends to reinvest earnings, if any, in the
development and expansion of its business.
LIMITATION ON OFFICERS' AND DIRECTORS' LIABILITIES UNDER DELAWARE LAW.
Pursuant to the Company's Certificate of Incorporation, as amended, as
authorized under applicable Delaware law, directors of the Company are not
liable for monetary damages for breach of fiduciary duty, except in connection
with a breach of the duty of loyalty, for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, for dividend
payments or stock repurchases illegal under Delaware law or for any transaction
in which a director has derived an improper personal benefit. In addition, the
Company's bylaws provide that the Company must indemnify its officers and
directors to the fullest extent permitted by Delaware law for all expenses
incurred in the settlement of any actions against such persons in connection
with their having served as officers or directors of the Company.
-10-
<PAGE> 15
USE OF PROCEEDS
The Company will not receive any part of the proceeds of any sale or
transactions made by the Selling Stockholders. The Company will receive the
proceeds from the exercise of any options exercised pursuant to the Stock Option
Plans. Any proceeds received by the Company will be used by the Company for
general working capital purposes.
SELLING STOCKHOLDERS
<TABLE>
The following table sets forth, as of September 25, 1996, the name of
certain Selling Stockholders, the nature of his position, office, or other
material relationship with the Company within the past three years; the number
of shares subject to stock options granted to certain of the Selling
Stockholders which may be sold pursuant to this offering; and the number of
shares of Common Stock owned by them other than by means of stock options
represented by those shares. Some Selling Stockholders may be restricted in the
number and amount of shares of Common Stock they may sell and by the timing of
such sales. Certain persons not named below who are not affiliates of the
Company and who hold less than 1,000 shares of Common Stock acquired through the
exercise of stock options issued under one of the Stock Option Plans may reoffer
and resell their Common Stock under this Prospectus and the Registration
Statement of which this Prospectus is a part, and are considered to be Selling
Stockholders.
<CAPTION>
Common
Stock Common Stock Percentage of
Beneficially Common Beneficially Class Beneficially
Owned Stock Owned After Owned After
Name and Relationship Prior to Being Completion of Completion of
of Selling Stockholders Offering Offered Offering Offering
- ----------------------- ------------ ------- ------------- ------------------
<S> <C> <C> <C> <C>
Alfred C. Angelone(1)(2) 916,629 275,000 641,629 16.1%
Christopher J. Crane(1)(3) 910,597 245,000 665,597 16.7%
Terrence C. McCarthy(4) 7,087 7,073 14 *
William Kulok(5) 20,000 20,000 0 *
James P. O'Halloran(6) 27,000 25,000 2,000 *
Gordon J. Rollert(7) 31,785 20,000 11,785 *
Wayne C. Croswell(8) 5,586 5,586 0 *
Robert Fabrizio(9) 2,000 2,000 0 *
Eugene F. Mehr, Jr. (10) 14,527 14,527 0 *
Katpady U. Shenoy(11) 3,280 3,280 0 *
Eli Szklanka(12) 37,936 20,000 17,936 *
<FN>
- --------------------
*Less than one percent (1%).
</TABLE>
-11-
<PAGE> 16
(1) Includes 24,535 shares of Common Stock owned by ASA Investment
Partnership, of which Messrs. Angelone and Crane are general partners.
(2) Includes 275,000 shares of Common Stock underlying unexercised stock
options held by Mr. Angelone. Mr. Angelone is Chairman and Chief
Executive Officer of the Company.
(3) Includes 245,000 shares of Common Stock underlying unexercised stock
options held by Mr. Crane. Mr. Crane is the President of the Company.
(4) Includes 7,073 shares of Common Stock underlying unexercised stock
options held by Mr. McCarthy. Mr. McCarthy is a Vice President and
Controller of the Company.
(5) Includes 20,000 shares of Common Stock underlying unexercised stock
options held by Mr. Kulok. Mr. Kulok is a director of the Company.
(6) Includes 25,000 shares of Common Stock underlying unexercised stock
options held by Mr. O'Halloran. Mr. O'Halloran is a director of the
Company.
(7) Includes 20,000 shares of Common Stock underlying unexercised stock
options held by Mr. Rollert. Mr. Rollert is a director of the Company.
(8) Includes 5,586 shares of Common Stock underlying unexercised stock
options held by Mr. Croswell. Mr. Croswell is an employee of the
Company.
(9) Includes 2,000 shares of Common Stock acquired upon the exercise of
stock options held by Mr. Fabrizio. Mr. Fabrizio is an employee of the
Company.
(10) Includes 14,500 shares of Common Stock acquired upon the exercise of
stock options by Mr. Mehr. Mr. Mehr is an employee of the Company.
(11) Includes 2,000 shares of Common Stock acquired upon the exercise of
stock options by Mr. Shenoy. Mr. Shenoy is an employee of the Company.
(12) Includes 20,000 shares of Common Stock acquired upon the exercise of
stock options by Mr. Szklanka. Mr. Szklanka is a former Vice President
of the Company.
-12-
<PAGE> 17
PLAN OF DISTRIBUTION
The Shares are being registered to permit public secondary trading of
the Shares from time to time by the Selling Stockholders. The Shares being
offered hereby were issued, or will be issued, by the Company as a result of
participation by the Selling Stockholders in the Company's Stock Option Plans.
Such securities are being registered at the expense of the Company, exclusive of
fees and expenses of the Selling Stockholders' attorneys or other
representatives and selling or brokerage commissions, if any, as the result of
the sale of the Shares.
The Selling Stockholders are not restricted as to the price or prices
at which they may sell the Shares and sales of the Shares at less than the
market price may depress the market price of the Common Stock. It is anticipated
that the sale of the Shares, when made, will be made through customary channels
either through broker-dealers acting as agents or brokers for the seller, or
through broker-dealers acting as principals, who may then resell the Shares in
the over-the-counter market, or at private sales in the over-the-counter market
or otherwise, at negotiated prices related to prevailing market prices at the
time of the sales, or by a combination of such methods. Thus, the sale of such
Shares by the Selling Stockholders may occur over an extended period of time.
The Selling Stockholders will act independently of the Company in making
decisions with respect to the timing, market, or otherwise at prices related to
the then current market price or in negotiated transactions.
The Shares may be sold from time to time by the Selling Stockholders,
or by pledgees, donees, transferees or other successors in interest. The Shares
may be sold by the Selling Stockholders in one or more transactions on NSCM, or
otherwise at prices and at terms then prevailing or at prices related to the
then current market price, or in negotiated transactions. The Shares may be sold
by one or more of the following: (a) a block trade in which the broker or dealer
so engaged will attempt to sell the Shares as agent but may position and resell
a portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; and (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers. In effecting sales,
broker-dealers engaged by the Selling Stockholders may arrange for other
broker-dealers to participate. Usual and customary or specifically negotiated
brokerage fees or commissions may be paid by the Selling Stockholders in
connection with such sales. The Company will not receive any proceeds from any
sales of the Common Stock by the Selling Stockholders.
In offering the Shares, the Selling Stockholders and any broker-dealers
and any other participating broker-dealers who execute sales for the Selling
Stockholders may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales, and any profits realized by the
Selling Stockholders and the compensation of such broker-dealer may be deemed to
be underwriting discounts and commissions. In addition, any shares covered by
this
-13-
<PAGE> 18
Prospectus which qualify for sale pursuant to Rule 144 may be sold under Rule
144 rather than pursuant to this Prospectus.
The Company has advised the Selling Stockholders that during such time
as they may be engaged in a distribution of the Shares they are required to
comply with Rules 10b-6 and 10b-7 under the Exchange Act (as those Rules are
described in more detail below) and, in connection therewith, that they may not
engage in any stabilization activity, except as permitted under the Exchange
Act, are required to furnish each broker-dealer through which Common Stock
included herein may be offered copies of this Prospectus, and may not bid for or
purchase any securities of the Company or attempt to induce any person to
purchase any securities except as permitted under the Exchange Act.
Rule 10b-6 under the Exchange Act prohibits, with certain exceptions,
participants in a distribution from bidding for or purchasing, for an account in
which the participant has a beneficial interest, any of the securities that are
the subject of the distribution. Rule 10b-7 governs bids and purchases made in
order to stabilize the price of a security in connection with a distribution of
the security.
RECENT DEVELOPMENTS
No material changes in the Company's affairs have occurred since the
end of Fiscal 1995, which have not been described in a report on an Annual
Report on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form
8-K filed by the Company under the Exchange Act.
INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
Delaware General Corporation Law, Section 102(b)(7), enables a
corporation in its original certificate of incorporation or an amendment thereto
validly approved by stockholders to eliminate or limit personal liability of
members of its Board of Directors for violations of a director's fiduciary duty
of care. However, the elimination or limitation shall not apply where there has
been a breach of the duty of loyalty, failure to act in good faith, engaging in
intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase which is deemed illegal or obtaining an improper
personal benefit. The Company's Certificate of Incorporation includes the
following language:
-14-
<PAGE> 19
To the maximum extent permitted by Section 102(b)(7) of the
General Corporation Law of Delaware, a director shall not be liable to
the Corporation or its stockholders, for monetary damages for breach of
fiduciary duty as a director, except with respect to (a) any breach of
the director's duty of loyalty to the corporation or its stockholders,
(b) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) the provisions of Section
174 of Title 8, or (d) any transaction from which the director derived
an improper personal benefit.
Delaware General Corporation Law, Section 145, permits a corporation
organized under Delaware law to indemnify directors and officers with respect to
any matter in which the director or officer acted in good faith and in a manner
he reasonably believed to be not opposed to the best interests of the Company,
and, with respect to any criminal action, had reasonable cause to believe his
conduct was lawful. The Bylaws of the Company include the following provision:
Reference is made to Section 145 and any other relevant
provisions of the General Corporation Law of the State of Delaware.
Particular reference is made to the class of persons, hereinafter
called "Indemnitees," who may be indemnified by a Delaware corporation
pursuant to the provisions of such Section 145, namely, any person, or
the heirs, executors, or administrators of such person, who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, by reason of the fact that such
person is or was a director, officer, employee, or agent of such
corporation or is or was serving at the request of such corporation as
a director, officer, employee or agent of such corporation or is or was
serving at the request of such corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise. The Corporation may indemnify the
Indemnitees, and each of them, in each and every situation where the
Corporation is permitted to make such indemnification pursuant to the
aforesaid statutory provisions. The Corporation may indemnify the
Indemnitees, and each of them, in each and every situation where, under
the aforesaid statutory provisions, the Corporation is not obligated,
but is nevertheless permitted or empowered, to make such
indemnification, it being understood that, before making such
indemnification, with respect to any situation covered under this
sentence, (i) the Corporation shall promptly make or cause to be made,
by any of the methods referred to in Subsection (d) of such Section
145, a determination as to whether each Indemnitee acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Corporation, and, in the case of any criminal
action or proceeding, had no reasonable cause to believe that his
conduct was unlawful, and (ii) that no such indemnification shall be
made unless it is determined that such indemnification shall be made
unless it is determined that such Indemnitee acted in good faith and in
a manner he reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and, in the case of any criminal action
or proceeding, had no reasonable cause to believe that his conduct was
unlawful.
-15-
<PAGE> 20
================================================================================
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH
THIS OFFERING TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN
THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION IN
WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING
SUCH OFFER A SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT
IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE CIRCUMSTANCES OF THE COMPANY OR
THE FACTS HEREIN SET FORTH SINCE THE DATE HEREOF.
-----------
<TABLE>
TABLE OF CONTENTS
<CAPTION>
PAGE
----
<S> <C>
Available Information ................................................... 3
Information Required in the Section 10(a) Prospectus .................... 4
Incorporation of Documents by Reference ................................. 5
The Company ............................................................. 6
Risk Factors ............................................................ 8
Use of Proceeds ......................................................... 11
Selling Stockholders .................................................... 11
Plan of Distribution .................................................... 13
Recent Developments ..................................................... 14
Indemnification ......................................................... 14
</TABLE>
-----------
================================================================================
1,191,477 SHARES
OF COMMON STOCK,
$.01 PAR VALUE PER SHARE
ASA INTERNATIONAL LTD.
-----------
PROSPECTUS
-----------
September 27, 1996
================================================================================
<PAGE> 21
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
Delaware General Corporation Law, Section 102(b)(7), enables a
corporation in its original certificate of incorporation or an amendment thereto
validly approved by stockholders to eliminate or limit personal liability of
members of its Board of Directors for violations of a director's fiduciary duty
of care. However, the elimination or limitation shall not apply where there has
been a breach of the duty of loyalty, failure to act in good faith, engaging in
intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase which is deemed illegal or obtaining an improper
personal benefit. The Company's Certificate of Incorporation includes the
following language:
To the maximum extent permitted by Section 102(b)(7) of the
General Corporation Law of Delaware, a director shall not be liable to
the Corporation or its stockholders, for monetary damages for breach of
fiduciary duty as a director, except with respect to (a) any breach of
the director's duty of loyalty to the corporation or its stockholders,
(b) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) the provisions of Section
174 of Title 8, or (d) any transaction from which the director derived
an improper personal benefit.
II-1
<PAGE> 22
Delaware General Corporation Law, Section 145, permits a corporation
organized under Delaware law to indemnify directors and officers with respect to
any matter in which the director or officer acted in good faith and in a manner
he reasonably believed to be not opposed to the best interests of the Company,
and, with respect to any criminal action, had reasonable cause to believe his
conduct was lawful. The Bylaws of the Company include the following provision:
Reference is made to Section 145 and any other relevant
provisions of the General Corporation Law of the State of Delaware.
Particular reference is made to the class of persons, hereinafter
called "Indemnitees," who may be indemnified by a Delaware corporation
pursuant to the provisions of such Section 145, namely, any person, or
the heirs, executors, or administrators of such person, who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, by reason of the fact that such
person is or was a director, officer, employee, or agent of such
corporation or is or was serving at the request of such corporation as
a director, officer, employee or agent of such corporation or is or was
serving at the request of such corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise. The Corporation may indemnify the
Indemnitees, and each of them, in each and every situation where the
Corporation is permitted to make such indemnification pursuant to the
aforesaid statutory provisions. The Corporation may indemnify the
Indemnitees, and each of them, in each and every situation where, under
the aforesaid statutory provisions, the Corporation is not obligated,
but is nevertheless permitted or empowered, to make such
indemnification, it being understood that, before making such
indemnification, with respect to any situation covered under this
sentence, (i) the Corporation shall promptly make or cause to be made,
by any of the methods referred to in Subsection (d) of such Section
145, a determination as to whether each Indemnitee acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Corporation, and, in the case of any criminal
action or proceeding, had no reasonable cause to believe that his
conduct was unlawful, and (ii) that no such indemnification shall be
made unless it is determined that such indemnification shall be made
unless it is determined that such Indemnitee acted in good faith and in
a manner he reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and, in the case of any criminal action
or proceeding, had no reasonable cause to believe that his conduct was
unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
With respect to restricted securities (the "Reoffer Securities") to be
reoffered or resold pursuant to this Registration Statement and the accompanying
Prospectus, the Company states that all Reoffer Securities were acquired under
an exemption from registration pursuant to Section 4(2) of the Securities Act,
and that no general solicitation, advertising, or offer to the general public
was made with respect to the Reoffer Securities.
II-2
<PAGE> 23
ITEM 8. EXHIBITS.
--------
(a) The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit
No. Description
------- -----------
4a 1986 Stock Option Plan.
4b 1988 Stock Option Plan.
4c 1993 Stock Option Plan.
4d 1995 Stock Option Plan.
4e Certificate of Incorporation.
4f Bylaws.
5 Opinion Letter of O'Connor, Broude & Aronson as to legality
of shares being registered.
23a Consent of O'Connor, Broude & Aronson (contained in Opinion
filed as Exhibit 5).
23b Consent of BDO Seidman, LLP
ITEM 9. UNDERTAKINGS.
------------
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales
are made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(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;
II-3
<PAGE> 24
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change in such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
2. That, for the purpose of determining any liability
under the Securities Act, 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, each filing of
the registrant's annual reports pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities
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 Securities
Act and will be governed by the final adjudication of such issue.
II-4
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Framingham, Commonwealth of Massachusetts on
this 27th day of September, 1996.
ASA INTERNATIONAL LTD.
By:/s/ Alfred C. Angelone
--------------------------------
Alfred C. Angelone
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>
Name Capacity Date
- ---- -------- ----
<S> <C> <C>
/s/ Alfred C. Angelone Chairman of the Board September 27, 1996
- --------------------------------- and Chief Executive Officer
Alfred C. Angelone (principal executive
officer)
/s/ Christopher J. Crane President and Director September 27, 1996
- ---------------------------------
Christopher J. Crane
/s/ Terrence C. McCarthy Controller September 27, 1996
- --------------------------------- (principal financial and
Terrence C. McCarthy accounting officer)
/s/ William A. Kulok Director September 27, 1996
- ---------------------------------
William A. Kulok
/s/ James P. O'Halloran Director September 27, 1996
- ---------------------------------
James P. O'Halloran
/s/ Gordon J. Rollert Director September 27, 1996
- ---------------------------------
Gordon J. Rollert
</TABLE>
II-5
<PAGE> 26
EXHIBIT INDEX
-------------
Exhibit Sequentially Numbered
No. Description Page Number
------- ----------- ---------------------
4a 1986 Stock Option Plan
4b 1988 Stock Option Plan.
4c 1993 Stock Option Plan
4d 1995 Stock Option Plan
4e Certificate of Incorporation.
4f Bylaws.
5 Opinion Letter of O'Connor, Broude &
Aronson as to legality of shares being registered
23a Consent of O'Connor, Broude & Aronson
(contained in Opinion filed as Exhibit No. 5)
23b Consent of BDO Seidman, LLP
<PAGE> 1
Exhibit 4A
ASA INTERNATIONAL LTD.
1986 STOCK OPTION PLAN
ARTICLE I
PURPOSE OF THE PLAN
The purpose of this Plan is to encourage and enable employees,
consultants, directors and others who are in a position to make significant
contributions to the success of ASA INTERNATIONAL LTD. and of its affiliated
corporations upon whose judgment, initiative and efforts the Corporation depends
for the successful conduct of its business, to acquire a closer identification
of their interests with those of the Corporation by providing them with a more
direct stake in its welfare, thereby stimulating their efforts on behalf of the
Corporation and strengthening their desire to remain with the Corporation.
ARTICLE II
DEFINITIONS
2.1 "Affiliated Corporation" means any stock corporation of which
a majority of the voting common or capital stock is owned directly or indirectly
by the Corporation.
2.2 "Award" means an Option granted under Article V.
2.3 "Board" means the Board of Directors of the Corporation.
2.4 "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
2.5 "Corporation" means ASA INTERNATIONAL LTD., a Delaware
corporation, or its successor.
<PAGE> 2
2.6 "Employee" means any person who is a regular full-time or
part-time employee of the Corporation or an Affiliated Corporation on or after
May 1, 1986.
2.7 "Option" means an Incentive Stock Option or Non-Qualified
Option granted by the Board under Article V of this Plan in the form of a right
to purchase Stock evidenced by an instrument containing such provisions as the
Board may establish.
2.8 "Plan" means this 1986 Stock Option Plan.
2.9 "Incentive Stock Option" means an option which qualifies as an
incentive stock option as defined in Section 422A of the Code, as amended.
2.10 "Non-Qualified Option" means any option not intended to
qualify as an Incentive Stock Option.
2.11 "Stock" means the Common Stock, $.0001 par value, of the
Corporation or any successor, including any adjustments in the event of changes
in capital structure of the type described in Article IX.
ARTICLE III
ADMINISTRATION OF THE PLAN
3.1 ADMINISTRATION BY BOARD. This Plan shall be administered by
the Board of Directors of the Corporation. The Board may, from time to time,
delegate any of its functions under this plan to one or more committees.
3.2 POWERS. The Board of Directors shall have full and final
authority to operate, manage and administer the Plan on behalf of the
Corporation. This authority includes, but is not limited to:
2
<PAGE> 3
(a) The power to grant Awards conditionally or unconditionally,
(b) The power to prescribe the form or forms of any instruments
evidencing Awards granted under this Plan,
(c) The power to interpret the Plan,
(d) The power to provide regulations for the operation of the
incentive features of the Plan, and otherwise to prescribe and
rescind regulations for interpretation, management and
administration of the Plan,
(e) The power to delegate responsibility for Plan operation,
management and administration on such terms, consistent with
the Plan, as the Board may establish,
(f) The power to delegate to other persons the responsibility of
performing ministerial acts in furtherance of the Plan's
purpose, and
(g) The power to engage the services of persons, companies, or
organizations in furtherance of the Plan's purpose, including
but not limited to, banks, insurance companies, brokerage
firms and consultants.
3.3 ADDITIONAL POWERS. In addition, as to each Option to buy Stock
of the Corporation, the Board shall have full and final authority in its
discretion: (a) to determine the number of shares of Stock subject to each
Option, (b) to determine the time or times at which Options will be granted, (c)
to determine the option price of the shares of Stock subject to each Option,
which price shall be not less than the minimum price specified in Article V of
this Plan, and (d) to determine the time or times when each Option shall become
exercisable and the duration of the exercise period (including the acceleration
of any exercise period), which shall not exceed the maximum period specified in
Article V.
3
<PAGE> 4
In no event may the Corporation grant an Employee any Incentive Stock
Option that is first exercisable during any one calendar year to the extent the
aggregate fair market value of the shares which may first be exercised in any
one calendar year exceeds $100,000.
ARTICLE IV
ELIGIBILITY
4.1 ELIGIBLE EMPLOYEES. All Employees (including Directors who
are Employees) are eligible to be granted Incentive Stock Option Awards under
this Plan.
4.2 CONSULTANTS, DIRECTORS AND OTHER NON-EMPLOYEES. Any
Consultant, Director (who is not an Employee) or any other non-employee is
eligible to be granted Non-Qualified Option Awards under the Plan.
4.3 RELEVANT FACTORS. In selecting individual Employees,
Consultants, Directors and other Non-Employees to whom Awards shall be granted,
the Board shall weigh such factors as are relevant to accomplish the purpose of
the Plan as stated in Article I. An Employee, consultant, Director or other
Non-Employee who has been granted an Award may be granted one or more additional
Awards, if the Board so determines.
ARTICLE V
STOCK OPTION AWARDS
5.1 NUMBER OF SHARES. Subject to the provisions of Article IX of
this Plan, the aggregate number of shares of Stock for which Options may be
granted under his Plan shall not exceed 6,500,000 shares. The shares to be
delivered upon exercise of Options under this Plan shall be made available, at
the discretion of the Board, either from authorized but unissued shares or from
4
<PAGE> 5
previously issued and reacquired shares of Stock held by the Corporation as
treasury shares, including shares purchased in the open market.
Stock issuable upon exercise of an option granted under the Plan may be
subject to such restrictions on transfer, repurchase rights or other
restrictions as shall be determined by the Board of Directors.
5.2 EFFECT OF EXPIRATION, TERMINATION OR SURRENDER. If an Option
under this Plan shall expire or terminate unexercised as to any shares covered
thereby, such shares shall thereafter be available for the granting of other
Options under this Plan.
5.3 TERM OF OPTIONS. The full term of each Option granted
hereunder shall be for such period as the Board shall determine. In the case of
Incentive Stock Options granted hereunder, the term shall not exceed ten (10)
years from the date of granting thereof. Each Option shall be subject to earlier
termination as provided in Sections 6.3 and 6.4.
5.4 OPTION PRICE. The Option price shall be determined by the
Board at the time any Option is granted. In the case of Incentive Stock Options,
the exercise price shall not be less than 100% of the fair market value of the
shares covered thereby at the time the Incentive Stock Option is granted (but in
no event less than par value), provided that no Incentive Stock Option shall be
granted hereunder to any Employee if at the time of grant the Employee, directly
or indirectly, owns Stock possessing more than 10% of the combined voting power
of all classes of stock of the Corporation and its Affiliated Corporations
unless the Incentive Stock Option price equals not less than 110% of the fair
market value of the shares covered thereby at the time the Incentive Stock
Option is granted.
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<PAGE> 6
5.5 NON-TRANSFERABILITY OF OPTIONS. No Option granted under this
Plan shall be transferable by the grantee otherwise than by will or the laws of
descent and distribution, and such Option may be exercised during the grantee's
lifetime only by the grantee.
ARTICLE VI
EXERCISE OF OPTION
6.1 EXERCISE. Each Option granted under this Plan shall be
exercisable on such date or dates and during such period and for such number of
shares as shall be determined pursuant to the provisions of the instrument
evidencing such Option.
6.2 NOTICE OF EXERCISE. A person electing to exercise an Option
shall give written notice to the Corporation of such election and of the number
of shares he or she has elected to purchase and shall at the time of exercise
tender the full purchase price of the shares he or she has elected to purchase.
The purchase price can be paid partly or completely in shares of the
Corporation's stock. Until such person has been issued a certificate or
certificates for the shares so purchased he or she shall possess no rights of a
record holder with respect to any of such shares.
6.3 OPTION UNAFFECTED BY CHANGE IN DUTIES. No Incentive Stock
Option (and, unless otherwise determined by the Board of Directors, no
Non-Qualified Option granted to a person who is, on the date of the grant, an
Employee of the Corporation or an Affiliated Corporation) shall be affected by
any change of duties or position of the optionee (including transfer to or from
an Affiliated Corporation), so long as he or she continues to be an Employee. If
the optionee shall cease to be an Employee for any reason other than death, such
Option shall thereafter be exercisable only to the extent of the purchase
rights, if any, which have accrued as of the date of such cessation; provided
that (i) the Board may provide in the instrument evidencing any Option that the
Board may
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<PAGE> 7
in its absolute discretion, upon any such cessation of employment, determine
(but be under no obligation to determine) that such accrued purchase rights
shall be deemed to include additional shares covered by such Option; and (ii)
unless the Board shall otherwise provide in the instrument evidencing any
Option, upon any such cessation of employment, such remaining rights to purchase
shall in any event terminate upon the earlier of (A) the expiration of the
original term of the Option; or (B) where such cessation of employment is on
account of disability, the expiration of one year from the date of such
cessation of employment and, otherwise, the expiration of three months from such
date.
6.4 DEATH OF OPTIONEE. Should an optionee die while in possession
of the legal right to exercise an Option or Options under this Plan, such
persons as shall have acquired, by will or by the laws of descent and
distribution (the "personal representative"), the right to exercise any Options
theretofore granted, may, unless otherwise provided by the Board in any
instrument evidencing any Option, exercise such Options at any time prior to one
year from the date of death; provided, that such Option or Options shall expire
in all event no later than the last day of the original term of such Option;
provided, further, that any such exercise shall be limited to the purchase
rights which have accrued as of the date when the optionee ceased to be an
Employee, whether by death or otherwise, unless the Board provides in the
instrument evidencing such Option that, in the discretion of the Board,
additional shares covered by such Option may become subject to purchase
immediately upon the death of the optionee.
7
<PAGE> 8
ARTICLE VII
BENEFIT PLANS
Awards under the Plan are discretionary and are not a part of regular
salary. Awards may not be used in determining the amount of compensation for any
purpose under the benefit plans of the Corporation, or an Affiliated
Corporation, except as the Board may from time to time expressly provide.
Neither the Plan, an Option or any instrument evidencing an Option confers upon
any Employee the right to continued employment with the Corporation or an
Affiliated Corporation.
ARTICLE VIII
AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN
The Board may suspend the Plan or any part thereof at any time or may
terminate the Plan in its entirety. Awards shall not be granted after Plan
termination.
The Board may also amend the Plan from time to time, except that
amendments which affect the following subjects must be approved by stockholders
of the Corporation:
(a) Except as provided in Article IX relative to capital changes,
the number of shares as to which Options may be granted
pursuant to Article V;
(b) The maximum term of Options granted;
(c) The minimum price at which Options may be granted;
(d) The term of the Plan; and
(e) The requirements as to eligibility for participation in the
Plan.
Awards granted prior to suspension or termination of the Plan may not
be canceled solely because of such suspension or termination, except with the
consent of the grantee of the Award.
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<PAGE> 9
ARTICLE IX
CHANGES IN CAPITAL STRUCTURE
The instruments evidencing Options granted hereunder shall be subject
to adjustment in the event of changes in the outstanding Stock of the
Corporation by reason of Stock dividends, Stock splits, recapitalizations,
reorganizations, mergers, consolidations, combinations, exchanges or other
relevant changes in capitalization occurring after the date of an Award to the
same extent as would affect an actual share of Stock issued and outstanding on
the effective date of such change. Such adjustment to outstanding Options shall
be made without change in the total price applicable to the unexercised portion
of such options, and a corresponding adjustment in the applicable option price
per share shall be made. In the event of any such change, the aggregate number
and classes of shares for which Options may thereafter be granted under Section
5.1 of this Plan may be appropriately adjusted as determined by the Board so as
to reflect such change.
ARTICLE X
EFFECTIVE DATE AND TERM OF THE PLAN
The Plan shall become effective on May 1, 1986. The Plan shall continue
until such time as it may be terminated by action of the Board; provided,
however, that no Options may be granted under this Plan on or after the tenth
anniversary of the effective date hereof.
9
<PAGE> 1
Exhibit 4B
ASA INTERNATIONAL LTD.
1988 STOCK OPTION PLAN
ARTICLE I
PURPOSE OF THE PLAN
The purpose of this Plan is to encourage and enable employees,
consultants, directors and others who are in a position to make significant
contributions to the success of ASA INTERNATIONAL LTD. and of its affiliated
corporations upon whose judgment, initiative and efforts the Corporation depends
for the successful conduct of its business, to acquire a closer identification
of their interests with those of the Corporation by providing them with
opportunities to purchase stock in the Corporation pursuant to options granted
hereunder, thereby stimulating their efforts on behalf of the Corporation and
strengthening their desire to remain involved with the Corporation.
ARTICLE II
DEFINITIONS
2.1 "Affiliated Corporation" means any stock corporation of which
a majority of the voting common or capital stock is owned directly or indirectly
by the Corporation.
2.2 "Award" means an Option granted under Article V.
2.3 "Board" means the Board of Directors of the Corporation.
2.4 "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
2.5 "Corporation" means ASA INTERNATIONAL LTD., a Delaware
corporation, or its successor.
<PAGE> 2
2.6 "Employee" means any person who is a regular full-time or
part-time employee of the Corporation or an Affiliated Corporation on or after
November 1, 1988.
2.7 "Option" means an Incentive Stock Option or Non-Qualified
Option granted by the Board under Article V of this Plan in the form of a right
to purchase Stock evidenced by an instrument containing such provisions as the
Board may establish.
2.8 "Plan" means this 1988 Stock Option Plan.
2.9 "Incentive Stock Option" ("ISO") means an option which
qualifies as an incentive stock option as defined in Section 422 of the Code, as
amended.
2.10 "Non-Qualified Option" means any option not intended to
qualify as an Incentive Stock Option.
2.11 "Stock" means the Common Stock, $.01 par value, of the
Corporation or any successor, including any adjustments in the event of changes
in capital structure of the type described in Article XI.
ARTICLE III
ADMINISTRATION OF THE PLAN
3.1 ADMINISTRATION BY BOARD. This Plan shall be administered by
the Board of Directors of the Corporation. The Board may, from time to time,
delegate any of its functions under this plan to one or more Committees. All
references in this Plan to the Board shall also include the Committee or
Committees, if one or more have been appointed by the Board. From time to time
the Board may increase the size of the Committee or committees and appoint
additional members thereto, remove members (with or without cause) and appoint
new members in substitution therefor, fill vacancies however caused, or remove
all members of the Committee or committees and
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thereafter directly administer the Plan. No member of the Board or a committee
shall be liable for any action or determination made in good faith with respect
to the Plan or any options granted under it.
3.2 POWERS. The Board of Directors and/or any committee appointed
by the Board shall have full and final authority to operate, manage and
administer the Plan on behalf of the Corporation. This authority includes, but
is not limited to:
(a) The power to grant Awards conditionally or unconditionally;
(b) The power to prescribe the form or forms of any instruments
evidencing Awards granted under this Plan;
(c) The power to interpret the Plan;
(d) The power to provide regulations for the operation of the
incentive features of the Plan, and otherwise to prescribe and
rescind regulations for interpretation, management and
administration of the Plan;
(e) The power to delegate responsibility for Plan operation,
management and administration on such terms, consistent with
the Plan, as the Board may establish;
(f) The power to delegate to other persons the responsibility of
performing ministerial acts in furtherance of the Plan's
purpose; and
(g) The power to engage the services of persons, companies, or
organizations in furtherance of the Plan's purpose, including
but not limited to, banks, insurance companies, brokerage
firms and consultants.
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<PAGE> 4
3.3 ADDITIONAL POWERS. In addition, as to each Option to buy Stock
of the Corporation, the Board shall have full and final authority in its
discretion: (a) to determine the number of shares of Stock subject to each
Option; (b) to determine the time or times at which Options will be granted; (c)
to determine the option price of the shares of Stock subject to each Option,
which price shall be not less than the minimum price specified in Article V of
this Plan; (d) to determine the time or times when each Option shall become
exercisable and the duration of the exercise period (including the acceleration
of any exercise period), which shall not exceed the maximum period specified in
Article V; and (e) to determine whether each Option granted shall be an
Incentive Stock Option or a Nonqualified Option.
In no event may the Corporation grant an Employee any Incentive Stock
Option that is first exercisable during any one calendar year to the extent the
aggregate fair market value of the Stock (determined at the time the options are
granted) exceeds $100,000 (under all stock option plans of the Corporation and
any Affiliated Corporation); provided, however, that this paragraph shall have
no force and effect if its inclusion in the Plan is not necessary for Incentive
Stock Options issued under the Plan to qualify as such pursuant to Section
422(A)(b)(7) of the Code.
ARTICLE IV
ELIGIBILITY
4.1 ELIGIBLE EMPLOYEES. All Employees (including Directors who
are Employees) are eligible to be granted Incentive Stock Option and
Non-Qualified Option Awards under this Plan.
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<PAGE> 5
4.2 CONSULTANTS, DIRECTORS AND OTHER NON-EMPLOYEES. Any
Consultant, Director (whether or not an Employee) and any other Non-Employee is
eligible to be granted Non-Qualified Option Awards under the Plan.
4.3 RELEVANT FACTORS. In selecting individual Employees,
Consultants, Directors and other Non-Employees to whom Awards shall be granted,
the Board shall weigh such factors as are relevant to accomplish the purpose of
the Plan as stated in Article I. An individual who has been granted an Award may
be granted one or more additional Awards, if the Board so determines. The
granting of an Award to any individual shall neither entitle that individual to,
nor disqualify him from, participation in any other grant of Awards.
ARTICLE V
STOCK OPTION AWARDS
5.1 NUMBER OF SHARES. Subject to the provisions of Article IX of
this Plan, the aggregate number of shares of Stock for which Options may be
granted under this Plan shall not exceed 10,000,000 shares. The shares to be
delivered upon exercise of Options under this Plan shall be made available, at
the discretion of the Board, either from authorized but unissued shares or from
previously issued and reacquired shares of Stock held by the Corporation as
treasury shares, including shares purchased in the open market.
Stock issuable upon exercise of an option granted under the Plan may be
subject to such restrictions on transfer, repurchase rights or other
restrictions as shall be determined by the Board of Directors.
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<PAGE> 6
5.2 EFFECT OF EXPIRATION, TERMINATION OR SURRENDER. If an Option
under this Plan shall expire or terminate unexercised as to any shares covered
thereby, or shall cease for any reason to be exercisable in whole or in part, or
if the Corporation shall reacquire any unvested shares issued pursuant to
Options under the Plan, such shares shall thereafter be available for the
granting of other Options under this Plan.
5.3 TERM OF OPTIONS. The full term of each Option granted
hereunder shall be for such period as the Board shall determine. In the case of
Incentive Stock Options granted hereunder, the term shall not exceed ten (10)
years from the date of granting thereof. Each Option shall be subject to earlier
termination as provided in Sections 6.3 and 6.4. Notwithstanding the foregoing,
the term of options intended to qualify as "Incentive Stock Options" may not
exceed five (5) years from the date of granting hereof if such option is granted
to any employee who at the time such option is granted owns more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Corporation unless such option is not exercisable after the expiration of five
(5) years from the date such option is granted.
5.4 OPTION PRICE. The Option price shall be determined by the
Board at the time any Option is granted. In the case of Incentive Stock Options,
the exercise price shall not be less than 100% of the fair market value of the
shares covered thereby at the time the Incentive Stock Option is granted (but in
no event less than par value), provided that no Incentive Stock Option shall be
granted hereunder to any Employee if at the time of grant the Employee, directly
or indirectly, owns Stock possessing more than 10% of the combined voting power
of all classes of stock of the Corporation and its Affiliated Corporations
unless the Incentive Stock Option price equals not less
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<PAGE> 7
than 110% of the fair market value of the shares covered thereby at the time the
Incentive Stock Option is granted.
5.5 FAIR MARKET VALUE. If, at the time an Option is granted under the
Plan, the Corporation's Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such Option is granted and
shall mean (i) the average (on that date) of the high and low prices of the
Stock on the principal national securities exchange on which the Stock is
traded, if the Stock is then traded on a national securities exchange; or (ii)
the last reported sale price (on that date) of the Stock on the NASDAQ National
Market List, if the Stock is not then traded on a national securities exchange;
or (iii) the closing bid price (or average of bid prices) last quoted (on that
date) by an established quotation service for over-the-counter securities, if
the Stock is not reported on the NASDAQ National Market List. However, if the
Stock is not publicly traded at the time an Option is granted under the Plan,
"fair market value" shall be deemed to be the fair value of the Stock as
determined by the Board after taking into consideration all factors which it
deems appropriate, including, without limitation, recent sale and offer prices
of the Stock in private transactions negotiated at arm's length.
5.6 NON-TRANSFERABILITY OF OPTIONS. No Option granted under this Plan
shall be transferable by the grantee otherwise than by will or the laws of
descent and distribution, and such Option may be exercised during the grantee's
lifetime only by the grantee.
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<PAGE> 8
ARTICLE VI
EXERCISE OF OPTION
6.1 EXERCISE. Each Option granted under this Plan shall be exercisable
on such date or dates and during such period and for such number of shares as
shall be determined pursuant to the provisions of the instrument evidencing such
Option. The Board shall have the right to accelerate the date of exercise of any
option, provided that, the Board shall not accelerate the exercise date of any
Incentive Stock Option granted if such acceleration would violate the annual
vesting limitation contained in Section 422(A)(b)(7) of the Code.
6.2 NOTICE OF EXERCISE. A person electing to exercise an Option shall
give written notice to the Corporation of such election and of the number of
shares he or she has elected to purchase and shall at the time of exercise
tender the full purchase price of the shares he or she has elected to purchase.
The purchase price can be paid partly or completely in shares of the
Corporation's stock valued at Fair Market Value as defined in Section 5.5
hereof. Until such person has been issued a certificate or certificates for the
shares so purchased and has fully paid the purchase price for such shares, he or
she shall possess no rights of a record holder with respect to any of such
shares.
6.3 OPTION UNAFFECTED BY CHANGE IN DUTIES. No Incentive Stock Option
(and, unless otherwise determined by the Board of Directors, no Non-Qualified
Option granted to a person who is, on the date of the grant, an Employee of the
Corporation or an Affiliated Corporation) shall be affected by any change of
duties or position of the optionee (including transfer to or from an Affiliated
Corporation), so long as he or she continues to be an Employee. Employment shall
be considered as continuing uninterrupted during any bona fide leave of absence
(such as those attributable to illness, military obligations or governmental
service) provided that the period of such
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<PAGE> 9
leave does not exceed 90 days or, if longer, any period during which such
optionee's right to reemployment is guaranteed by statute. A bona fide leave of
absence with the written approval of the Board shall not be considered an
interruption of employment under the Plan, provided that such written approval
contractually obligates the Corporation or any Affiliated Corporation to
continue the employment of the optionee after the approved period of absence.
If the optionee shall cease to be an Employee for any reason other than
death, such Option shall thereafter be exercisable only to the extent of the
purchase rights, if any, which have accrued as of the date of such cessation;
provided that (i) the Board may provide in the instrument evidencing any Option
that the Board may in its absolute discretion, upon any such cessation of
employment, determine (but be under no obligation to determine) that such
accrued purchase rights shall be deemed to include additional shares covered by
such Option; and (ii) unless the Board shall otherwise provide in the instrument
evidencing any Option, upon any such cessation of employment, such remaining
rights to purchase shall in any event terminate upon the earlier of (A) the
expiration of the original term of the Option; or (B) where such cessation of
employment is on account of disability, the expiration of one year from the date
of such cessation of employment and, otherwise, the expiration of three months
from such date. For purposes of the Plan, the term "disability" shall mean
"permanent and total disability" as defined in Section 22(e)(3) of the Code.
6.4 DEATH OF OPTIONEE. Should an optionee die while in possession of
the legal right to exercise an Option or Options under this Plan, such persons
as shall have acquired, by will or by the laws of descent and distribution, the
right to exercise any Options theretofore granted, may, unless otherwise
provided by the Board in any instrument evidencing any Option, exercise such
Options at any time prior to one year from the date of death; provided, that
such Option or Options shall
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<PAGE> 10
expire in all events no later than the last day of the original term of such
Option; provided, further, that any such exercise shall be limited to the
purchase rights which have accrued as of the date when the optionee ceased to be
an Employee, whether by death or otherwise, unless the Board provides in the
instrument evidencing such Option that, in the discretion of the Board,
additional shares covered by such Option may become subject to purchase
immediately upon the death of the optionee.
ARTICLE VII
TERMS AND CONDITIONS OF OPTIONS
Options shall be evidenced by instruments (which need not be identical)
in such forms as the Board may from time to time approve. Such instruments shall
conform to the terms and conditions set forth in Articles 5 and 6 hereof and may
contain such other provisions as the Board deems advisable which are not
inconsistent with the Plan, including restrictions applicable to shares of Stock
issuable upon exercise of Options. In granting any Non-Qualified Option, the
Board may specify that such Non-Qualified Option shall be subject to the
restrictions set forth herein with respect to Incentive Stock Options, or to
such other termination and cancellation provisions as the Board may determine.
The Board may from time to time confer authority and responsibility on one or
more of its own members and/or one or more officers of the Corporation to
execute and deliver such instruments. The proper officers of the Corporation are
authorized and directed to take any and all action necessary or advisable from
time to time to carry out the terms of such instruments.
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ARTICLE VIII
BENEFIT PLANS
Awards under the Plan are discretionary and are not a part of regular
salary. Awards may not be used in determining the amount of compensation for any
purpose under the benefit plans of the Corporation, or an Affiliated
Corporation, except as the Board may from time to time expressly provide.
Neither the Plan, an Option or any instrument evidencing an Option confers upon
any Employee the right to continued employment with the Corporation or an
Affiliated Corporation.
ARTICLE IX
AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN
The Board may suspend the Plan or any part thereof at any time or may
terminate the Plan in its entirety. Awards shall not be granted after Plan
termination. The Board may also amend the Plan from time to time, except that
amendments which affect the following subjects must be approved by stockholders
of the Corporation:
(a) Except as provided in Article X relative to capital changes,
the number of shares as to which Options may be granted
pursuant to Article V;
(b) The maximum term of Options granted;
(c) The minimum price at which Options may be granted;
(d) The term of the Plan; and
(e) The requirements as to eligibility for participation in the
Plan.
Awards granted prior to suspension or termination of the Plan may not
be cancelled solely because of such suspension or termination, except with the
consent of the grantee of the Award.
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ARTICLE X
CHANGES IN CAPITAL STRUCTURE
The instruments evidencing Options granted hereunder shall be subject
to adjustment in the event of changes in the outstanding Stock of the
Corporation by reason of Stock dividends, Stock splits, recapitalizations,
reorganizations, mergers, consolidations, combinations, exchanges or other
relevant changes in capitalization occurring after the date of an Award to the
same extent as would affect an actual share of Stock issued and outstanding on
the effective date of such change. Such adjustment to outstanding Options shall
be made without change in the total price applicable to the unexercised portion
of such options, and a corresponding adjustment in the applicable option price
per share shall be made. In the event of any such change, the aggregate number
and classes of shares for which Options may thereafter be granted under Section
5.1 of this Plan may be appropriately adjusted as determined by the Board so as
to reflect such change.
Notwithstanding the foregoing, any adjustments made pursuant to this
Article X with respect to Incentive Stock Options shall be made only after the
Board, after consulting with counsel for the Corporation, determines whether
such adjustments would constitute a "modification" of such Incentive Stock
Options (as that term is defined in Section 425 of the Code) or would cause any
adverse tax consequences for the holders of such Incentive Stock Options. If the
Board determines that such adjustments made with respect to Incentive Stock
Options would constitute a modification of such Incentive Stock Options, it may
refrain from making such adjustments.
In the event of the proposed dissolution or liquidation of the
Corporation, each Option will terminate immediately prior to the consummation of
such proposed action or at such other time and subject to such other conditions
as the Board shall determine.
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Except as expressly provided herein, no issuance by the Corporation of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares subject to Options. No adjustments
shall be made for dividends paid in cash or in property other than securities of
the Corporation.
No fractional shares shall be issued under the Plan and the optionee
shall receive from the Corporation cash in lieu of such fractional shares.
ARTICLE XI
EFFECTIVE DATE AND TERM OF THE PLAN
The Plan shall become effective on November 1, 1988. The Plan shall
continue until such time as it may be terminated by action of the Board;
provided, however, that no Options may be granted under this Plan on or after
the tenth anniversary of the effective date hereof.
ARTICLE XII
CONVERSION OF ISOS INTO NON-QUALIFIED
OPTIONS; TERMINATION OF ISOS
The Board, at the written request of any optionee, may in its
discretion take such actions as may be necessary to convert such optionee's
Incentive Stock Options, that have not been exercised on the date of conversion,
into Non-Qualified Options at any time prior to the expiration of such Incentive
Stock Options, regardless of whether the optionee is an employee of the
Corporation or an Affiliated Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of such Options. At the time of such conversion, the
Board or the Committee (with the consent of the optionee) may impose such
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<PAGE> 14
conditions on the exercise of the resulting Non-Qualified Options as the Board
or the Committee in its discretion may determine, provided that such conditions
shall not be inconsistent with the Plan. Nothing in the Plan shall be deemed to
give any optionee the right to have such optionee's Incentive Stock Options
converted into Non-Qualified Options, and no such conversion shall occur until
and unless the Board or the Committee takes appropriate action. The Board, with
the optionee's consent, may also terminate any portion of any Incentive Stock
Option that has not been exercised at the time of such termination.
ARTICLE XIII
APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of shares
pursuant to Options granted under the Plan shall be used for general corporate
purposes.
ARTICLE XIV
GOVERNMENTAL REGULATION
The Corporation's obligation to sell and deliver shares of Stock under
this Plan is subject to the approval of any governmental authority required in
connection with the authorization, issuance or sale of such shares.
ARTICLE XV
WITHHOLDING OF ADDITIONAL INCOME TAXES
Upon the exercise of a Non-Qualified Option or the making of a
Disqualifying Disposition (as defined in Article XVI) the Corporation, in
accordance with Section 3402(a) of the Code, may require the optionee to pay
additional withholding taxes in respect of the amount that is considered
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compensation includible in such person's gross income. The Board in its
discretion may condition the exercise of an Option on the payment of such
additional withholding taxes.
ARTICLE XVI
NOTICE TO CORPORATION OF DISQUALIFYING DISPOSITION
Each employee who receives an Incentive Stock Option must agree to
notify the Corporation in writing immediately after the employee makes a
Disqualifying Disposition of any Stock acquired pursuant to the exercise of an
Incentive Stock Option. A Disqualifying Disposition is any disposition
(including any sale) of such Stock before the later of (a) two years after the
date the employee was granted the Incentive Stock Option or (b) one year after
the date the employee acquired Stock by exercising the Incentive Stock Option.
If the employee has died before such stock is sold, these holding period
requirements do not apply and no Disqualifying Disposition can occur thereafter.
ARTICLE XVIII
GOVERNING LAW; CONSTRUCTION
The validity and construction of the Plan and the instruments
evidencing Options shall be governed by the laws of the Commonwealth of
Massachusetts (without regard to the conflict of law principles thereof). In
construing this Plan, the singular shall include the plural and the masculine
gender shall include the feminine and neuter, unless the context otherwise
requires.
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Exhibit 4C
ASA INTERNATIONAL LTD.
1993 STOCK OPTION PLAN
ARTICLE I
PURPOSE OF THE PLAN
The purpose of this Plan is to encourage and enable employees,
consultants, directors and others who are in a position to make significant
contributions to the success of ASA INTERNATIONAL LTD. and of its affiliated
corporations upon whose judgment, initiative and efforts the Corporation depends
for the successful conduct of its business, to acquire a closer identification
of their interests with those of the Corporation by providing them with
opportunities to purchase stock in the Corporation pursuant to options granted
hereunder, thereby stimulating their efforts on behalf of the Corporation and
strengthening their desire to remain involved with the Corporation. Any
employee, consultant or advisor designated to participate in the Plan is
referred to as a "Participant."
ARTICLE II
DEFINITIONS
2.1 "Affiliated Corporation" means any stock corporation of which
a majority of the voting common or capital stock is owned directly or indirectly
by the Corporation.
2.2 "Award" means an Option granted under Article V.
2.3 "Board" means the Board of Directors of the Corporation or, if
one or more has been appointed, a Committee of the Board of Directors of the
Corporation.
<PAGE> 2
2.4 "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
2.5 "Committee" means a Committee of not less than two members of
the Board appointed by the Board to administer the Plan.
2.6 "Corporation" means ASA INTERNATIONAL LTD., a Delaware
corporation, or its successor.
2.7 "Employee" means any person who is a regular full-time or
part-time employee of the Corporation or an Affiliated Corporation on or after
February 8, 1993.
2.8 "Incentive Stock Option" ("ISO") means an option which
qualifies as an incentive stock option as defined in Section 422 of the Code, as
amended.
2.9 "Non-Qualified Option" means any option not intended to
qualify as an Incentive Stock Option.
2.10 "Option" means an Incentive Stock Option or Non-Qualified
Option granted by the Board under Article V of this Plan in the form of a right
to purchase Stock evidenced by an instrument containing such provisions as the
Board may establish. Except as otherwise expressly provided with respect to an
Option grant, no Option granted pursuant to the Plan shall be an Incentive Stock
Option.
2.11 "Participant" means a person selected by the Committee to
receive an award under the Plan.
2.12 "Plan" means this 1993 Stock Option Plan.
2.13 "Reporting Person" means a person subject to Section 16 of the
Securities Exchange Act of 1934 or any successor provision.
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2.14 "Restricted Period" means the period of time selected by the
Committee during which an award may be forfeited by the person.
2.15 "Stock" means the Common Stock, $.01 par value, of the Corporation
or any successor, including any adjustments in the event of changes in capital
structure of the type described in Article IX.
ARTICLE III
ADMINISTRATION OF THE PLAN
3.1 ADMINISTRATION BY BOARD. This Plan shall be administered by the
Board of Directors of the Corporation. The Board may, from time to time,
delegate any of its functions under this plan to one or more Committees. All
references in this Plan to the Board shall also include the Committee or
Committees, if one or more have been appointed by the Board. From time to time
the Board may increase the size of the Committee or committees and appoint
additional members thereto, remove members (with or without cause) and appoint
new members in substitution therefor, fill vacancies however caused, or remove
all members of the Committee or committees and thereafter directly administer
the Plan. No member of the Board or a committee shall be liable for any action
or determination made in good faith with respect to the Plan or any options
granted hereunder.
If a Committee is appointed by the Board, a majority of the members of
the Committee shall constitute a quorum, and all determinations of the Committee
under the Plan may be made without notice or meeting of the Committee by a
writing signed by a majority of Committee members. The Board may delegate the
power to select directors and officers to receive Awards under the Plan, and
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the timing, pricing and amount of such Awards to a Committee, all members of
which shall be "disinterested persons" within the meaning of Rule 16b-3 under
that Act.
3.2 POWERS. The Board of Directors and/or any committee appointed
by the Board shall have full and final authority to operate, manage and
administer the Plan on behalf of the Corporation. This authority includes, but
is not limited to:
(a) The power to grant Awards conditionally or unconditionally,
(b) The power to prescribe the form or forms of any instruments
evidencing Awards granted under this Plan,
(c) The power to interpret the Plan,
(d) The power to provide regulations for the operation of the
incentive features of the Plan, and otherwise to prescribe and
rescind regulations for interpretation, management and
administration of the Plan,
(e) The power to delegate responsibility for Plan operation,
management and administration on such terms, consistent with
the Plan, as the Board may establish,
(f) The power to delegate to other persons the responsibility of
performing ministerial acts in furtherance of the Plan's
purpose, and
(g) The power to engage the services of persons, companies, or
organizations in furtherance of the Plan's purpose, including
but not limited to, banks, insurance companies, brokerage
firms and consultants.
3.3 ADDITIONAL POWERS. In addition, as to each Option to buy
Stock of the Corporation, the Board shall have full and final authority in its
discretion: (a) to determine the number of shares of Stock subject to each
Option; (b) to determine the time or times at which Options will be granted;
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(c) to determine the option price of the shares of Stock subject to each Option,
which price shall be not less than the minimum price specified in Article V of
this Plan; (d) to determine the time or times when each Option shall become
exercisable and the duration of the exercise period (including the acceleration
of any exercise period), which shall not exceed the maximum period specified in
Article V; (e) to determine whether each Option granted shall be an Incentive
Stock Option or a Nonqualified Option; and (f) to waive compliance by a
Participant with any obligation to be performed by him under an Option, to waive
any condition or provision of an Option, and to amend or cancel any Option (and
if an Option is cancelled, to grant a new Option on such terms as the Board may
specify), except that the Board may not take any action with respect to an
outstanding option that would adversely affect the rights of the Participant
under such Option without such Participant's consent. Nothing in the preceding
sentence shall be construed as limiting the power of the Board to make
adjustments required by Article XI.
In no event may the Company grant an Employee any Incentive Stock
Option that is first exercisable during any one calendar year to the extent the
aggregate fair market value of the Stock (determined at the time the options are
granted) exceeds $100,000 (under all stock option plans of the Corporation and
any Affiliated Corporation); provided, however, that this paragraph shall have
no force and effect if its inclusion in the Plan is not necessary for Incentive
Stock Options issued under the Plan to qualify as such pursuant to Section
422(d)(1) of the Code.
ARTICLE IV
ELIGIBILITY
4.1 ELIGIBLE EMPLOYEES. All Employees (including Directors who
are Employees) are eligible to be granted Incentive Stock Option and
Non-Qualified Option Awards under this Plan.
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4.2 CONSULTANTS, DIRECTORS AND OTHER NON-EMPLOYEES. Any Consultant,
Director (whether or not an Employee) and any other Non-Employee is eligible to
be granted Non-Qualified Option Awards under the Plan, provided the person has
not irrevocably elected to be ineligible to participate in the Plan.
4.3 RELEVANT FACTORS. In selecting individual Employees, Consultants,
Directors and other Non-Employees to whom Awards shall be granted, the Board
shall weigh such factors as are relevant to accomplish the purpose of the Plan
as stated in Article I. An individual who has been granted an Award may be
granted one or more additional Awards, if the Board so determines. The granting
of an Award to any individual shall neither entitle that individual to, nor
disqualify him from, participation in any other grant of Awards.
ARTICLE V
STOCK OPTION AWARDS
5.1 NUMBER OF SHARES. Subject to the provisions of Article IX of this
Plan, the aggregate number of shares of Stock for which Options may be granted
under this Plan shall not exceed 350,000 shares. The shares to be delivered upon
exercise of Options under this Plan shall be made available, at the discretion
of the Board, either from authorized but unissued shares or from previously
issued and reacquired shares of Stock held by the Corporation as treasury
shares, including shares purchased in the open market.
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Stock issuable upon exercise of an option granted under the Plan may be
subject to such restrictions on transfer, repurchase rights or other
restrictions as shall be determined by the Board of Directors.
5.2 EFFECT OF EXPIRATION, TERMINATION OR SURRENDER. If an Option under
this Plan shall expire or terminate unexercised as to any shares covered
thereby, or shall cease for any reason to be exercisable in whole or in part, or
if the Company shall reacquire any unvested shares issued pursuant to Options
under the Plan, such shares shall thereafter be available for the granting of
other Options under this Plan.
5.3 TERM OF OPTIONS. The full term of each Option granted hereunder
shall be for such period as the Board shall determine. In the case of Incentive
Stock Options granted hereunder, the term shall not exceed ten (10) years from
the date of granting thereof. Each Option shall be subject to earlier
termination as provided in Sections 6.3 and 6.4. Notwithstanding the foregoing,
the term of options intended to qualify as "Incentive Stock Options" shall not
exceed five (5) years from the date of granting hereof if such option is granted
to any employee who at the time such option is granted owns more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company.
5.4 OPTION PRICE. The Option price shall be determined by the Board at
the time any Option is granted. In the case of Incentive Stock Options, the
exercise price shall not be less than 100% of the fair market value of the
shares covered thereby at the time the Incentive Stock Option is granted (but in
no event less than par value), provided that no Incentive Stock Option shall be
granted hereunder to any Employee if at the time of grant the Employee, directly
or indirectly, owns Stock possessing more than 10% of the combined voting power
of all classes of stock of the
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Corporation and its Affiliated Corporations unless the Incentive Stock Option
price equals not less than 110% of the fair market value of the shares covered
thereby at the time the Incentive Stock Option is granted.
5.5 FAIR MARKET VALUE. If, at the time an Option is granted under the
Plan, the Corporation's Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such Option is granted and
shall mean (i) the average (on that date) of the high and low prices of the
Stock on the principal national securities exchange on which the Stock is
traded, if the Stock is then traded on a national securities exchange; or (ii)
the last reported sale price (on that date) of the Stock on the NASDAQ National
Market List, if the Stock is not then traded on a national securities exchange;
or (iii) the closing bid price (or average of bid prices) last quoted (on that
date) by an established quotation service for over-the-counter securities, if
the Stock is not reported on the NASDAQ National Market List. However, if the
Stock is not publicly traded at the time an Option is granted under the Plan,
"fair market value" shall be deemed to be the fair value of the Stock as
determined by the Board after taking into consideration all factors which it
deems appropriate, including, without limitation, recent sale and offer prices
of the Stock in private transactions negotiated at arm's length.
5.6 NON-TRANSFERABILITY OF OPTIONS. No Option granted under this Plan
shall be transferable by the grantee otherwise than by will or the laws of
descent and distribution, and such Option may be exercised during the grantee's
lifetime only by the grantee.
5.7 FOREIGN NATIONALS. Awards may be granted to Participants who are
foreign nationals or employed outside the United States on such terms and
conditions different from those specified
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in the Plan as the Committee considers necessary or advisable to achieve the
purposes of the Plan or comply with applicable laws.
ARTICLE VI
EXERCISE OF OPTION
6.1 EXERCISE. Each Option granted under this Plan shall be exercisable
on such date or dates and during such period and for such number of shares as
shall be determined pursuant to the provisions of the instrument evidencing such
Option. The Board shall have the right to accelerate the date of exercise of any
option, provided that, the Board shall not accelerate the exercise date of any
Incentive Stock Option granted if such acceleration would violate the annual
vesting limitation contained in Section 422(d)(1) of the Code.
6.2 NOTICE OF EXERCISE. A person electing to exercise an Option shall
give written notice to the Corporation of such election and of the number of
shares he or she has elected to purchase and shall at the time of exercise
tender the full purchase price of the shares he or she has elected to purchase.
The purchase price can be paid partly or completely in shares of the
Corporation's stock valued at Fair Market Value as defined in Section 5.5
hereof, or by any such other lawful consideration as the Board may determine.
Until such person has been issued a certificate or certificates for the shares
so purchased and has fully paid the purchase price for such shares, he or she
shall possess no rights of a record holder with respect to any of such shares.
In the event that the Corporation elects to receive payment for such shares by
means of a promissory note, such note, if issued to an officer, director or
holder of 5% or more of the Company's outstanding Common Stock, shall provide
for payment of interest at a rate no less than the interest rate then payable by
the Company to its principal commercial lender, or if the Company has no loan
outstanding to a
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commercial lender, then the interest rate payable shall equal the prevailing
prime rate of interest then charged by commercial banks headquartered in
Massachusetts (as determined by the Board of Directors in its reasonable
discretion) plus two percent.
6.3 OPTION UNAFFECTED BY CHANGE IN DUTIES. No Incentive Stock Option
(and, unless otherwise determined by the Board of Directors, no Non-Qualified
Option granted to a person who is, on the date of the grant, an Employee of the
Corporation or an Affiliated Corporation) shall be affected by any change of
duties or position of the optionee (including transfer to or from an Affiliated
Corporation), so long as he or she continues to be an Employee. Employment shall
be considered as continuing uninterrupted during any bona fide leave of absence
(such as those attributable to illness, military obligations or governmental
service) provided that the period of such leave does not exceed 90 days or, if
longer, any period during which such optionee's right to reemployment is
guaranteed by statute. A bona fide leave of absence with the written approval of
the Board shall not be considered an interruption of employment under the Plan,
provided that such written approval contractually obligates the Corporation or
any Affiliated Corporation to continue the employment of the optionee after the
approved period of absence.
If the optionee shall cease to be an Employee for any reason other than
death, such Option shall thereafter be exercisable only to the extent of the
purchase rights, if any, which have accrued as of the date of such cessation;
provided that (i) the Board may provide in the instrument evidencing any Option
that the Board may in its absolute discretion, upon any such cessation of
employment, determine (but be under no obligation to determine) that such
accrued purchase rights shall be
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deemed to include additional shares covered by such Option; and (ii) unless the
Board shall otherwise provide in the instrument evidencing any Option, upon any
such cessation of employment, such remaining rights to purchase shall in any
event terminate upon the earlier of (A) the expiration of the original term of
the Option; or (B) where such cessation of employment is on account of
disability, the expiration of one year from the date of such cessation of
employment and, otherwise, the expiration of three months from such date. For
purposes of the Plan, the term "disability" shall mean "permanent and total
disability" as defined in Section 22(e)(3) of the Code.
In the case of a Participant who is not an employee, provisions
relating to the exercisability of an Option following termination of service
shall be specified in the award. If not so specified, all Options held by such
Participant shall terminate on termination of service to the Corporation.
6.4 DEATH OF OPTIONEE. Should an optionee die while in possession of
the legal right to exercise an Option or Options under this Plan, such persons
as shall have acquired, by will or by the laws of descent and distribution, the
right to exercise any Options theretofore granted, may, unless otherwise
provided by the Board in any instrument evidencing any Option, exercise such
Options at any time prior to one year from the date of death; provided, that
such Option or Options shall expire in all events no later than the last day of
the original term of such Option; provided, further, that any such exercise
shall be limited to the purchase rights which have accrued as of the date when
the optionee ceased to be an Employee, whether by death or otherwise, unless the
Board provides in the instrument evidencing such Option that, in the discretion
of the Board, additional shares covered by such Option may become subject to
purchase immediately upon the death of the optionee.
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ARTICLE VII
REPORTING PERSON LIMITATIONS
To the extent required to qualify for the exemption provided by Rule
16b-3 under the Securities Exchange Act of 1934, and any successor provision, at
least six months must elapse from the date of acquisition of an Option by a
Reporting Person to the date of disposition of such Option (other than upon
exercise) or its underlying Common Stock.
ARTICLE VIII
TERMS AND CONDITIONS OF OPTIONS
Options shall be evidenced by instruments (which need not be identical)
in such forms as the Board may from time to time approve. Such instruments shall
conform to the terms and conditions set forth in Articles V and VI hereof and
may contain such other provisions as the Board deems advisable which are not
inconsistent with the Plan, including restrictions applicable to shares of Stock
issuable upon exercise of Options. In granting any Non-Qualified Option, the
Board may specify that such Non-Qualified Option shall be subject to the
restrictions set forth herein with respect to Incentive Stock Options, or to
such other termination and cancellation provisions as the Board may determine.
The Board may from time to time confer authority and responsibility on one or
more of its own members and/or one or more officers of the Corporation to
execute and deliver such instruments. The proper officers of the Corporation are
authorized and directed to take any and all action necessary or advisable from
time to time to carry out the terms of such instruments.
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ARTICLE IX
BENEFIT PLANS
Awards under the Plan are discretionary and are not a part of regular
salary. Awards may not be used in determining the amount of compensation for any
purpose under the benefit plans of the Corporation, or an Affiliated
Corporation, except as the Board may from time to time expressly provide.
Neither the Plan, an Option or any instrument evidencing an Option confers upon
any Participant any right to continue as an employee of, or consultant or
advisor to, the Company or an Affiliated Corporation or affect the right of the
Corporation or any Affiliated Corporation to terminate them at any time. Except
as specifically provided by the Board in any particular case, the loss of
existing or potential profits granted under this Plan shall not constitute an
element of damages in the event of termination of the relationship of a
Participant even if the termination is in violation of an obligation of the
Corporation to the Participant by contract or otherwise.
ARTICLE X
AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN
The Board may suspend the Plan or any part thereof at any time or may
terminate the Plan in its entirety. Awards shall not be granted after Plan
termination. The Board may also amend the Plan from time to time, except that
amendments which affect the following subjects must be approved by stockholders
of the Corporation:
(a) Except as provided in Article XI relative to capital changes,
the number of shares as to which Options may be granted
pursuant to Article V;
(b) The maximum term of Options granted;
(c) The minimum price at which Options may be granted;
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(d) The term of the Plan; and
(e) The requirements as to eligibility for participation in the
Plan.
Awards granted prior to suspension or termination of the Plan may not
be cancelled solely because of such suspension or termination, except with the
consent of the grantee of the Award.
ARTICLE XI
CHANGES IN CAPITAL STRUCTURE
The instruments evidencing Options granted hereunder shall be subject
to adjustment in the event of changes in the outstanding Stock of the
Corporation by reason of Stock dividends, Stock splits, recapitalizations,
reorganizations, mergers, consolidations, combinations, exchanges or other
relevant changes in capitalization occurring after the date of an Award to the
same extent as would affect an actual share of Stock issued and outstanding on
the effective date of such change. Such adjustment to outstanding Options shall
be made without change in the total price applicable to the unexercised portion
of such options, and a corresponding adjustment in the applicable option price
per share shall be made. In the event of any such change, the aggregate number
and classes of shares for which Options may thereafter be granted under Section
5.1 of this Plan may be appropriately adjusted as determined by the Board so as
to reflect such change.
Notwithstanding the foregoing, any adjustments made pursuant to this
Article XI with respect to Incentive Stock Options shall be made only after the
Board, after consulting with counsel for the Corporation, determines whether
such adjustments would constitute a "modification" of such Incentive Stock
Options (as that term is defined in Section 424 of the Code) or would cause any
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adverse tax consequences for the holders of such Incentive Stock Options. If the
Board determines that such adjustments made with respect to Incentive Stock
Options would constitute a modification of such Incentive Stock Options, it may
refrain from making such adjustments.
In the event of the proposed dissolution or liquidation of the
Corporation, each Option will terminate immediately prior to the consummation of
such proposed action or at such other time and subject to such other conditions
as the Board shall determine.
Except as expressly provided herein, no issuance by the Corporation of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares subject to Options. No adjustments
shall be made for dividends paid in cash or in property other than securities of
the Corporation.
No fractional shares shall be issued under the Plan and the optionee
shall receive from the Corporation cash in lieu of such fractional shares.
ARTICLE XII
EFFECTIVE DATE AND TERM OF THE PLAN
The Plan shall become effective on April 30, 1993. The Plan shall
continue until such time as it may be terminated by action of the Board or the
Committee; provided, however, that no Options may be granted under this Plan on
or after the tenth anniversary of the effective date hereof.
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ARTICLE XIII
CONVERSION OF ISOS INTO NON-QUALIFIED
OPTIONS; TERMINATION OF ISOS
The Board, at the written request of any optionee, may in its
discretion take such actions as may be necessary to convert such optionee's
Incentive Stock Options, that have not been exercised on the date of conversion,
into Non-Qualified Options at any time prior to the expiration of such Incentive
Stock Options, regardless of whether the optionee is an employee of the
Corporation or an Affiliated Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of such Options. At the time of such conversion, the
Board or the Committee (with the consent of the optionee) may impose such
conditions on the exercise of the resulting Non-Qualified Options as the Board
or the Committee in its discretion may determine, provided that such conditions
shall not be inconsistent with the Plan. Nothing in the Plan shall be deemed to
give any optionee the right to have such optionee's Incentive Stock Options
converted into Non-Qualified Options, and no such conversion shall occur until
and unless the Board or the Committee takes appropriate action. The Board, with
the optionee's consent, may also terminate any portion of any Incentive Stock
Option that has not been exercised at the time of such termination.
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ARTICLE XIV
APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of shares
pursuant to Options granted under the Plan shall be used for general corporate
purposes.
ARTICLE XV
GOVERNMENTAL REGULATION
The Corporation's obligation to sell and deliver shares of Stock under
this Plan is subject to the approval of any governmental authority required in
connection with the authorization, issuance or sale of such shares.
ARTICLE XVI
WITHHOLDING OF ADDITIONAL INCOME TAXES
Upon the exercise of a Non-Qualified Option or the making of a
Disqualifying Disposition (as defined in Article XVI) the Corporation, in
accordance with Section 3402(a) of the Code, may require the optionee to pay
additional withholding taxes in respect of the amount that is considered
compensation includible in such person's gross income. The Board in its
discretion may condition the exercise of an Option on the payment of such
additional withholding taxes.
ARTICLE XVII
NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION
Each employee who receives an Incentive Stock Option must agree to
notify the Corporation in writing immediately after the employee makes a
Disqualifying Disposition of any Stock acquired pursuant to the exercise of an
Incentive Stock Option. A Disqualifying Disposition is any disposition
(including any sale) of such Stock before the later of (a) two years after the
date the employee was
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granted the Incentive Stock Option or (b) one year after the date the employee
acquired Stock by exercising the Incentive Stock Option. If the employee has
died before such stock is sold, these holding period requirements do not apply
and no Disqualifying Disposition can occur thereafter.
ARTICLE XVIII
GOVERNING LAW; CONSTRUCTION
The validity and construction of the Plan and the instruments
evidencing Options shall be governed by the laws of the Commonwealth of
Massachusetts (without regard to the conflict of law principles thereof). In
construing this Plan, the singular shall include the plural and the masculine
gender shall include the feminine and neuter, unless the context otherwise
requires.
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Exhibit 4d
ASA INTERNATIONAL LTD.
1995 STOCK OPTION PLAN
ARTICLE I
PURPOSE OF THE PLAN
The purpose of this Plan is to encourage and enable employees,
consultants, directors and others who are in a position to make significant
contributions to the success of ASA INTERNATIONAL LTD. and of its affiliated
corporations upon whose judgment, initiative and efforts the Corporation depends
for the successful conduct of its business, to acquire a closer identification
of their interests with those of the Corporation by providing them with
opportunities to purchase stock in the Corporation pursuant to options granted
hereunder, thereby stimulating their efforts on behalf of the Corporation and
strengthening their desire to remain involved with the Corporation. Any
employee, consultant or advisor designated to participate in the Plan is
referred to as a "Participant."
ARTICLE II
DEFINITIONS
2.1 "Affiliated Corporation" means any stock corporation of which
a majority of the voting common or capital stock is owned directly or indirectly
by the Corporation.
2.2 "Award" means an Option granted under Article V.
2.3 "Board" means the Board of Directors of the Corporation or, if
one or more has been appointed, a Committee of the Board of Directors of the
Corporation.
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2.4 "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
2.5 "Committee" means a Committee of not less than two members of
the Board appointed by the Board to administer the Plan.
2.6 "Corporation" means ASA INTERNATIONAL LTD., a Delaware
corporation, or its successor.
2.7 "Employee" means any person who is a regular full-time or
part-time employee of the Corporation or an Affiliated Corporation on or after
February 1, 1995.
2.8 "Incentive Stock Option" ("ISO") means an option which
qualifies as an incentive stock option as defined in Section 422 of the Code, as
amended.
2.9 "Non-Qualified Option" means any option not intended to
qualify as an Incentive Stock Option.
2.10 "Option" means an Incentive Stock Option or Non-Qualified
Option granted by the Board under Article V of this Plan in the form of a right
to purchase Stock evidenced by an instrument containing such provisions as the
Board may establish. Except as otherwise expressly provided with respect to an
Option grant, no Option granted pursuant to the Plan shall be an Incentive Stock
Option.
2.11 "Participant" means a person selected by the Committee to
receive an award under the Plan.
2.12 "Plan" means this 1995 Stock Option Plan.
2.13 "Reporting Person" means a person subject to Section 16 of the
Securities Exchange Act of 1934 or any successor provision.
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2.14 "Restricted Period" means the period of time selected by the
Committee during which an award may be forfeited by the person.
2.15 "Stock" means the Common Stock, $.01 par value, of the
Corporation or any successor, including any adjustments in the event of changes
in capital structure of the type described in Article XI.
ARTICLE III
ADMINISTRATION OF THE PLAN
3.1 ADMINISTRATION BY BOARD. This Plan shall be administered by
the Board of Directors of the Corporation. The Board may, from time to time,
delegate any of its functions under this plan to one or more Committees. All
references in this Plan to the Board shall also include the Committee or
Committees, if one or more have been appointed by the Board. From time to time
the Board may increase the size of the Committee or committees and appoint
additional members thereto, remove members (with or without cause) and appoint
new members in substitution therefor, fill vacancies however caused, or remove
all members of the Committee or committees and thereafter directly administer
the Plan. No member of the Board or a committee shall be liable for any action
or determination made in good faith with respect to the Plan or any options
granted hereunder.
If a Committee is appointed by the Board, a majority of the members of
the Committee shall constitute a quorum, and all determinations of the Committee
under the Plan may be made without notice or meeting of the Committee by a
writing signed by a majority of Committee members. On
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or after registration of the Stock under the Securities Exchange Act of 1934,
the Board shall delegate the power to select directors and officers to receive
Awards under the Plan, and the timing, pricing and amount of such Awards to a
Committee, all members of which shall be "disinterested persons" within the
meaning of Rule 16b-3 under that Act.
3.2 POWERS. The Board of Directors and/or any committee appointed
by the Board shall have full and final authority to operate, manage and
administer the Plan on behalf of the Corporation. This authority includes, but
is not limited to:
(a) The power to grant Awards conditionally or unconditionally,
(b) The power to prescribe the form or forms of any instruments
evidencing Awards granted under this Plan,
(c) The power to interpret the Plan,
(d) The power to provide regulations for the operation of the
incentive features of the Plan, and otherwise to prescribe and
rescind regulations for interpretation, management and
administration of the Plan,
(e) The power to delegate responsibility for Plan operation,
management and administration on such terms, consistent with
the Plan, as the Board may establish,
(f) The power to delegate to other persons the responsibility of
performing ministerial acts in furtherance of the Plan's
purpose, and
(g) The power to engage the services of persons, companies, or
organizations in furtherance of the Plan's purpose, including
but not limited to, banks, insurance companies, brokerage
firms and consultants.
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3.3 ADDITIONAL POWERS. In addition, as to each Option to buy Stock of
the Corporation, the Board shall have full and final authority in its
discretion: (a) to determine the number of shares of Stock subject to each
Option; (b) to determine the time or times at which Options will be granted; (c)
to determine the option price of the shares of Stock subject to each Option,
which price shall be not less than the minimum price specified in Article V of
this Plan; (d) to determine the time or times when each Option shall become
exercisable and the duration of the exercise period (including the acceleration
of any exercise period), which shall not exceed the maximum period specified in
Article V; (e) to determine whether each Option granted shall be an Incentive
Stock Option or a Nonqualified Option; and (f) to waive compliance by a
Participant with any obligation to be performed by him under an Option, to waive
any condition or provision of an Option, and to amend or cancel any Option (and
if an Option is cancelled, to grant a new Option on such terms as the Board may
specify), except that the Board may not take any action with respect to an
outstanding option that would adversely affect the rights of the Participant
under such Option without such Participant's consent. Nothing in the preceding
sentence shall be construed as limiting the power of the Board to make
adjustments required by Article XI.
In no event may the Corporation grant an Employee any Incentive Stock
Option that is first exercisable during any one calendar year to the extent the
aggregate fair market value of the Stock (determined at the time the options are
granted) exceeds $100,000 (under all stock option plans of the Corporation and
any Affiliated Corporation); provided, however, that this paragraph shall have
no force and effect if its inclusion in the Plan is not necessary for Incentive
Stock Options issued under the Plan to qualify as such pursuant to Section
422(d)(1) of the Code.
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ARTICLE IV
ELIGIBILITY
4.1 ELIGIBLE EMPLOYEES. All Employees (including Directors who are
Employees) are eligible to be granted Incentive Stock Option and Non-Qualified
Option Awards under this Plan.
4.2 CONSULTANTS, DIRECTORS AND OTHER NON-EMPLOYEES. Any Consultant,
Director (whether or not an Employee) and any other Non-Employee is eligible to
be granted Non-Qualified Option Awards under the Plan, provided the person has
not irrevocably elected to be ineligible to participate in the Plan.
4.3 RELEVANT FACTORS. In selecting individual Employees, Consultants,
Directors and other Non-Employees to whom Awards shall be granted, the Board
shall weigh such factors as are relevant to accomplish the purpose of the Plan
as stated in Article I. An individual who has been granted an Award may be
granted one or more additional Awards, if the Board so determines. The granting
of an Award to any individual shall neither entitle that individual to, nor
disqualify him from, participation in any other grant of Awards.
ARTICLE V
STOCK OPTION AWARDS
5.1 NUMBER OF SHARES. Subject to the provisions of Article XI of this
Plan, the aggregate number of shares of Stock for which Options may be granted
under this Plan shall not exceed 300,000 shares. The shares to be delivered upon
exercise of Options under this Plan shall be made
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<PAGE> 7
available, at the discretion of the Board, either from authorized but unissued
shares or from previously issued and reacquired shares of Stock held by the
Corporation as treasury shares, including shares purchased in the open market.
Stock issuable upon exercise of an option granted under the Plan may be
subject to such restrictions on transfer, repurchase rights or other
restrictions as shall be determined by the Board of Directors.
5.2 EFFECT OF EXPIRATION, TERMINATION OR SURRENDER. If an Option under
this Plan shall expire or terminate unexercised as to any shares covered
thereby, or shall cease for any reason to be exercisable in whole or in part, or
if the Corporation shall reacquire any unvested shares issued pursuant to
Options under the Plan, such shares shall thereafter be available for the
granting of other Options under this Plan.
5.3 TERM OF OPTIONS. The full term of each Option granted hereunder
shall be for such period as the Board shall determine. In the case of Incentive
Stock Options granted hereunder, the term shall not exceed ten (10) years from
the date of granting thereof. Each Option shall be subject to earlier
termination as provided in Sections 6.3 and 6.4. Notwithstanding the foregoing,
the term of options intended to qualify as "Incentive Stock Options" shall not
exceed five (5) years from the date of granting hereof if such option is granted
to any employee who at the time such option is granted owns more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Corporation.
5.4 OPTION PRICE. The Option price shall be determined by the Board at
the time any Option is granted. In the case of Incentive Stock Options, the
exercise price shall not be less than 100% of the fair market value of the
shares covered thereby at the time the Incentive Stock Option
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<PAGE> 8
is granted (but in no event less than par value), provided that no Incentive
Stock Option shall be granted hereunder to any Employee if at the time of grant
the Employee, directly or indirectly, owns Stock possessing more than 10% of the
combined voting power of all classes of stock of the Corporation and its
Affiliated Corporations unless the Incentive Stock Option price equals not less
than 110% of the fair market value of the shares covered thereby at the time the
Incentive Stock Option is granted.
5.5 FAIR MARKET VALUE. If, at the time an Option is granted under the
Plan, the Corporation's Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such Option is granted and
shall mean (i) the average (on that date) of the high and low prices of the
Stock on the principal national securities exchange on which the Stock is
traded, if the Stock is then traded on a national securities exchange; or (ii)
the last reported sale price (on that date) of the Stock on the NASDAQ National
Market List, if the Stock is not then traded on a national securities exchange;
or (iii) the closing bid price (or average of bid prices) last quoted (on that
date) by an established quotation service for over-the-counter securities, if
the Stock is not reported on the NASDAQ National Market List. However, if the
Stock is not publicly traded at the time an Option is granted under the Plan,
"fair market value" shall be deemed to be the fair value of the Stock as
determined by the Board after taking into consideration all factors which it
deems appropriate, including, without limitation, recent sale and offer prices
of the Stock in private transactions negotiated at arm's length.
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5.6 NON-TRANSFERABILITY OF OPTIONS. No Option granted under this Plan
shall be transferable by the grantee otherwise than by will or the laws of
descent and distribution, and such Option may be exercised during the grantee's
lifetime only by the grantee.
5.7 FOREIGN NATIONALS. Awards may be granted to Participants who are
foreign nationals or employed outside the United States on such terms and
conditions different from those specified in the Plan as the Committee considers
necessary or advisable to achieve the purposes of the Plan or comply with
applicable laws.
ARTICLE VI
EXERCISE OF OPTION
6.1 EXERCISE. Each Option granted under this Plan shall be exercisable
on such date or dates and during such period and for such number of shares as
shall be determined pursuant to the provisions of the instrument evidencing such
Option. The Board shall have the right to accelerate the date of exercise of any
option, provided that, the Board shall not accelerate the exercise date of any
Incentive Stock Option granted if such acceleration would violate the annual
vesting limitation contained in Section 422(d)(1) of the Code.
6.2 NOTICE OF EXERCISE. A person electing to exercise an Option shall
give written notice to the Corporation of such election and of the number of
shares he or she has elected to purchase and shall at the time of exercise
tender the full purchase price of the shares he or she has elected to purchase.
The purchase price can be paid partly or completely in shares of the
Corporation's stock valued at Fair Market Value as defined in Section 5.5
hereof, or by any such other lawful consideration as the Board may determine.
Until such person has been issued a certificate or
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certificates for the shares so purchased and has fully paid the purchase price
for such shares, he or she shall possess no rights of a record holder with
respect to any of such shares. In the event that the Corporation elects to
receive payment for such shares by means of a promissory note, such note, if
issued to an officer, director or holder of 5% or more of the Corporation's
outstanding Common Stock, shall provide for payment of interest at a rate no
less than the interest rate then payable by the Corporation to its principal
commercial lender, or if the Corporation has no loan outstanding to a commercial
lender, then the interest rate payable shall equal the prevailing prime rate of
interest then charged by commercial banks headquartered in Massachusetts (as
determined by the Board of Directors in its reasonable discretion) plus two
percent.
6.3 OPTION UNAFFECTED BY CHANGE IN DUTIES. No Incentive Stock Option
(and, unless otherwise determined by the Board of Directors, no Non-Qualified
Option granted to a person who is, on the date of the grant, an Employee of the
Corporation or an Affiliated Corporation) shall be affected by any change of
duties or position of the optionee (including transfer to or from an Affiliated
Corporation), so long as he or she continues to be an Employee. Employment shall
be considered as continuing uninterrupted during any bona fide leave of absence
(such as those attributable to illness, military obligations or governmental
service) provided that the period of such leave does not exceed 90 days or, if
longer, any period during which such optionee's right to reemployment is
guaranteed by statute. A bona fide leave of absence with the written approval of
the Board shall not be considered an interruption of employment under the Plan,
provided that such written approval contractually obligates the Corporation or
any Affiliated Corporation to continue the employment of the optionee after the
approved period of absence.
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<PAGE> 11
If the optionee shall cease to be an Employee for any reason other than
death, such Option shall thereafter be exercisable only to the extent of the
purchase rights, if any, which have accrued as of the date of such cessation;
provided that (i) the Board may provide in the instrument evidencing any Option
that the Board may in its absolute discretion, upon any such cessation of
employment, determine (but be under no obligation to determine) that such
accrued purchase rights shall be deemed to include additional shares covered by
such Option; and (ii) unless the Board shall otherwise provide in the instrument
evidencing any Option, upon any such cessation of employment, such remaining
rights to purchase shall in any event terminate upon the earlier of (A) the
expiration of the original term of the Option; or (B) where such cessation of
employment is on account of disability, the expiration of one year from the date
of such cessation of employment and, otherwise, the expiration of three months
from such date. For purposes of the Plan, the term "disability" shall mean
"permanent and total disability" as defined in Section 22(e)(3) of the Code.
In the case of a Participant who is not an employee, provisions
relating to the exercisability of an Option following termination of service
shall be specified in the award. If not so specified, all Options held by such
Participant shall terminate on termination of service to the Corporation.
6.4 DEATH OF OPTIONEE. Should an optionee die while in possession of
the legal right to exercise an Option or Options under this Plan, such persons
as shall have acquired, by will or by the laws of descent and distribution, the
right to exercise any Options theretofore granted, may, unless otherwise
provided by the Board in any instrument evidencing any Option, exercise such
Options at any time prior to one year from the date of death; provided, that
such Option or Options shall expire in all events no later than the last day of
the original term of such Option; provided, further,
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that any such exercise shall be limited to the purchase rights which have
accrued as of the date when the optionee ceased to be an Employee, whether by
death or otherwise, unless the Board provides in the instrument evidencing such
Option that, in the discretion of the Board, additional shares covered by such
Option may become subject to purchase immediately upon the death of the
optionee.
ARTICLE VII
REPORTING PERSON LIMITATIONS
To the extent required to qualify for the exemption provided by Rule
16b-3 under the Securities Exchange Act of 1934, and any successor provision, at
least six months must elapse from the date of acquisition of an Option by a
Reporting Person to the date of disposition of such Option (other than upon
exercise) or its underlying Common Stock.
ARTICLE VIII
TERMS AND CONDITIONS OF OPTIONS
Options shall be evidenced by instruments (which need not be identical)
in such forms as the Board may from time to time approve. Such instruments shall
conform to the terms and conditions set forth in Articles V and VI hereof and
may contain such other provisions as the Board deems advisable which are not
inconsistent with the Plan, including restrictions applicable to shares of Stock
issuable upon exercise of Options. In granting any Non-Qualified Option, the
Board may specify that such Non-Qualified Option shall be subject to the
restrictions set forth herein with respect to Incentive Stock Options, or to
such other termination and cancellation provisions as the Board may determine.
The Board may from time to time confer authority and responsibility on one or
more of its own members and/or one or more officers of the Corporation to
execute and deliver
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<PAGE> 13
such instruments. The proper officers of the Corporation are authorized and
directed to take any and all action necessary or advisable from time to time to
carry out the terms of such instruments.
ARTICLE IX
BENEFIT PLANS
Awards under the Plan are discretionary and are not a part of regular
salary. Awards may not be used in determining the amount of compensation for any
purpose under the benefit plans of the Corporation, or an Affiliated
Corporation, except as the Board may from time to time expressly provide.
Neither the Plan, an Option or any instrument evidencing an Option confers upon
any Participant any right to continue as an employee of, or consultant or
advisor to, the Corporation or an Affiliated Corporation or affect the right of
the Corporation or any Affiliated Corporation to terminate them at any time.
Except as specifically provided by the Board in any particular case, the loss of
existing or potential profits granted under this Plan shall not constitute an
element of damages in the event of termination of the relationship of a
Participant even if the termination is in violation of an obligation of the
Corporation to the Participant by contract or otherwise.
ARTICLE X
AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN
The Board may suspend the Plan or any part thereof at any time or may
terminate the Plan in its entirety. Awards shall not be granted after Plan
termination. The Board may also amend the Plan from time to time, except that
amendments which affect the following subjects must be approved by stockholders
of the Corporation:
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(a) Except as provided in Article XI relative to capital changes,
the number of shares as to which Options may be granted
pursuant to Article V;
(b) The maximum term of Options granted;
(c) The minimum price at which Options may be granted;
(d) The term of the Plan; and
(e) The requirements as to eligibility for participation in the
Plan.
Awards granted prior to suspension or termination of the Plan may not
be cancelled solely because of such suspension or termination, except with the
consent of the grantee of the Award.
ARTICLE XI
CHANGES IN CAPITAL STRUCTURE
The instruments evidencing Options granted hereunder shall be subject
to adjustment in the event of changes in the outstanding Stock of the
Corporation by reason of Stock dividends, Stock splits, recapitalizations,
reorganizations, mergers, consolidations, combinations, exchanges or other
relevant changes in capitalization occurring after the date of an Award to the
same extent as would affect an actual share of Stock issued and outstanding on
the effective date of such change. Such adjustment to outstanding Options shall
be made without change in the total price applicable to the unexercised portion
of such options, and a corresponding adjustment in the applicable option price
per share shall be made. In the event of any such change, the aggregate number
and classes of shares for which Options may thereafter be granted under Section
5.1 of this Plan may be appropriately adjusted as determined by the Board so as
to reflect such change.
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<PAGE> 15
Notwithstanding the foregoing, any adjustments made pursuant to this
Article XI with respect to Incentive Stock Options shall be made only after the
Board, after consulting with counsel for the Corporation, determines whether
such adjustments would constitute a "modification" of such Incentive Stock
Options (as that term is defined in Section 424 of the Code) or would cause any
adverse tax consequences for the holders of such Incentive Stock Options. If the
Board determines that such adjustments made with respect to Incentive Stock
Options would constitute a modification of such Incentive Stock Options, it may
refrain from making such adjustments.
In the event of the proposed dissolution or liquidation of the
Corporation, each Option will terminate immediately prior to the consummation of
such proposed action or at such other time and subject to such other conditions
as the Board shall determine.
Except as expressly provided herein, no issuance by the Corporation of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares subject to Options. No adjustments
shall be made for dividends paid in cash or in property other than securities of
the Corporation.
No fractional shares shall be issued under the Plan and the optionee
shall receive from the Corporation cash in lieu of such fractional shares.
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<PAGE> 16
ARTICLE XII
EFFECTIVE DATE AND TERM OF THE PLAN
The Plan shall become effective on February 1, 1995. The Plan shall
continue until such time as it may be terminated by action of the Board or the
Committee; provided, however, that no Options may be granted under this Plan on
or after the tenth anniversary of the effective date hereof.
ARTICLE XIII
CONVERSION OF ISOS INTO NON-QUALIFIED
OPTIONS; TERMINATION OF ISOS
The Board, at the written request of any optionee, may in its
discretion take such actions as may be necessary to convert such optionee's
Incentive Stock Options, that have not been exercised on the date of conversion,
into Non-Qualified Options at any time prior to the expiration of such Incentive
Stock Options, regardless of whether the optionee is an employee of the
Corporation or an Affiliated Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of such Options. At the time of such conversion, the
Board or the Committee (with the consent of the optionee) may impose such
conditions on the exercise of the resulting Non-Qualified Options as the Board
or the Committee in its discretion may determine, provided that such conditions
shall not be inconsistent with the Plan. Nothing in the Plan shall be deemed to
give any optionee the right to have such optionee's Incentive
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<PAGE> 17
Stock Options converted into Non-Qualified Options, and no such conversion shall
occur until and unless the Board or the Committee takes appropriate action. The
Board, with the optionee's consent, may also terminate any portion of any
Incentive Stock Option that has not been exercised at the time of such
termination.
ARTICLE XIV
APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of shares
pursuant to Options granted under the Plan shall be used for general corporate
purposes.
ARTICLE XV
GOVERNMENTAL REGULATION
The Corporation's obligation to sell and deliver shares of Stock under
this Plan is subject to the approval of any governmental authority required in
connection with the authorization, issuance or sale of such shares.
ARTICLE XVI
WITHHOLDING OF ADDITIONAL INCOME TAXES
Upon the exercise of a Non-Qualified Option or the making of a
Disqualifying Disposition (as defined in Article XVI) the Corporation, in
accordance with Section 3402(a) of the Code, may require the optionee to pay
additional withholding taxes in respect of the amount that is considered
compensation includible in such person's gross income. The Board in its
discretion may condition the exercise of an Option on the payment of such
additional withholding taxes.
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ARTICLE XVII
NOTICE TO CORPORATION OF DISQUALIFYING DISPOSITION
Each employee who receives an Incentive Stock Option must agree to
notify the Corporation in writing immediately after the employee makes a
Disqualifying Disposition of any Stock acquired pursuant to the exercise of an
Incentive Stock Option. A Disqualifying Disposition is any disposition
(including any sale) of such Stock before the later of (a) two years after the
date the employee was granted the Incentive Stock Option or (b) one year after
the date the employee acquired Stock by exercising the Incentive Stock Option.
If the employee has died before such stock is sold, these holding period
requirements do not apply and no Disqualifying Disposition can occur thereafter.
ARTICLE XVIII
GOVERNING LAW; CONSTRUCTION
The validity and construction of the Plan and the instruments
evidencing Options shall be governed by the laws of the Commonwealth of
Massachusetts (without regard to the conflict of law principles thereof). In
construing this Plan, the singular shall include the plural and the masculine
gender shall include the feminine and neuter, unless the context otherwise
requires.
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<PAGE> 1
Exhibit 4e
CERTIFICATE OF INCORPORATION
OF
ASA INTERNATIONAL LTD.
1. The name of the corporation is ASA International Ltd.
2. The address of its registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation
shall have authority to issue is two hundred ten million (210,000,000) of which
two hundred million (200,000,000) shall be Common Stock of the par value of
$.0001 per share and ten million (10,000,000) shall be Preferred Stock of the
par value of $.0001 per share, amounting in the aggregate to Twenty-One Thousand
and 00/100 Dollars ($21,000.00).
Additional designations and powers, preferences and rights and
qualifications, limitations or restrictions thereof of the shares of each class
shall be determined by the Board of Directors of the corporation from time to
time.
5. The name and mailing address of the corporation's sole
incorporator is Alfred C. Angelone, 303 Hillside Street, Milton, Massachusetts
02186.
6. The name of the person who is to serve as the sole director
until the first annual meeting of the stockholders or until his successor is
elected and qualified is Alfred C. Angelone, 303 Hillside Street, Milton,
Massachusetts 02186.
7. The corporation is to have perpetual existence.
8. In furtherance and not in limitation of the powers conferred
by statute, the board of directors is expressly authorized:
To make, alter or repeal the bylaws of the corporation.
To authorize and cause to be executed mortgages and liens upon
the real and personal property of the corporation.
<PAGE> 2
To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper purpose and to
abolish any such reserve in the manner in which it was created.
By a majority of the whole board, to designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. The bylaws may provide that in the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such agent or disqualified
member. Any such committee, to the extent provided in the resolution of the
board of directors, or in the bylaws of the corporation, shall have and may
exercise all of the powers and authority of the board of directors in the
management of the business and affairs of the corporation, and may authorize the
seal of the corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
certificate of incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease, or exchange of all or
substantially all of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the bylaws of the corporation; and, unless the resolution or bylaws
expressly so provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
When and as authorized by the stockholders in accordance with
statute, to sell, lease or exchange all or substantially all of the property and
assets of the corporation, including its goodwill and its corporate franchises,
upon such terms and conditions and for such consideration, which may consist in
whole or in part of money or property, including its goodwill and its corporate
franchises, upon such terms and conditions and for such consideration, which may
consist in whole or in part of money or property, including shares of stock in,
and/or other securities of, any other corporation or corporations, as its board
of directors shall deem expedient and for the best interests of the corporation.
9. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may
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<PAGE> 3
be, agree to any compromise or arrangement to any reorganization of this
corporation as consequences of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders of this corporation, as the case may be, and also on this
corporation.
10. Meetings of the stockholders may be held within or without
the State of Delaware, as the bylaws may provide. The books of the corporation
may be kept (subject to any provision contained in the statutes) outside the
State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the bylaws of the corporation. Elections
of directors need not be by written ballot unless the bylaws of the corporation
shall so provide.
11. The corporation reserves the right to amend, alter, change, or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
THE UNDERSIGNED, being the incorporator named hereinbefore, for the
purposes of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring and certifying
that this is his act and deed and the facts herein stated are true, and,
accordingly, has hereunto set his hand this 25th day of March 1986.
/s/ Alfred C. Angelone
-----------------------------------
Alfred C. Angelone
[THIS SPACE INTENTIONALLY LEFT BLANK]
3
<PAGE> 4
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
ASA INTERNATIONAL LTD.
ASA International Ltd. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That by unanimous consent of the Board of Directors of ASA
International Ltd., dated February 20, 1987, the following resolution, which
sets forth a proposed amendment of the Certificate of Incorporation of said
Corporation, was duly adopted and declared to be advisable. The resolution
setting forth the proposed amendment is as follows:
RESOLVED: That the Certificate of Incorporation of the Corporation be,
and hereby is, amended as follows:
That Articles 8 through 11 be, and hereby are, renumbered as
Articles 9 through 12;
Further, that a new Article 8 relating to personal liability
of Directors of the Corporation be, and hereby is, created as
follows:
"8. To the maximum extent permitted by Section
102(b)(7) of the General Corporation Law of Delaware, a
director shall not be liable to the Corporation or its
stockholders, for monetary damages for breach of fiduciary
duty as a director, except with respect to (a) any breach of
the director's duty of loyalty to the corporation or its
stockholders, (b) acts of omissions not in good faith or which
involve intentional misconduct or a knowing violation of law,
(c) the provisions of Section 174 of Title 8, or (d) any
transaction from which the director derived any improper
benefit."
SECOND: That in accordance with Section 211 of the General Corporation
Law of the State of Delaware, the Annual Meeting of the Stockholders of the
Corporation was held and the holders of the outstanding stock of the Corporation
required to amend said Certificate voted to approve such
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<PAGE> 5
amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said ASA International Ltd. has caused its
corporate seal to be hereunto affixed and this certificate to be signed by
Christopher J. Crane, President, and John A. Piccione, Secretary, this 9th day
of May, 1987.
ATTEST: ASA INTERNATIONAL LTD.
/s/ John A. Piccione /s/ Christopher J. Crane
- ---------------------------------- ----------------------------------------
John A. Piccione Christopher J. Crane
Secretary President
(Corporate Seal)
5
<PAGE> 6
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ASA INTERNATIONAL LTD.
ASA International Ltd. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That by unanimous vote of the Board of Directors of ASA
International Ltd., dated June 8, 1987, the following resolution, which sets
forth a proposed amendment of the Certificate of Incorporation of said
Corporation, was duly adopted and declared to be advisable. The resolution
setting forth the proposed amendment is as follows:
RESOLVED: That the Certificate of Incorporation of the Corporation be
amended by changing the first paragraph of the article thereof
numbered "4" so that, as amended, the first paragraph of said
article "4" shall be and read, in its entirety, as follows:
"4. The total number of shares of stock which the corporation
shall have authority to issue is three hundred ten million
(310,000,000) of which three hundred million (300,000,000)
shall be Common Stock of the par value of $.0001 per share and
ten million (10,000,000) shall be Preferred Stock of the par
value of $.0001 per share, amounting in the aggregate to
Thirty-One Thousand and 00/100 Dollars ($31,000.00)."
SECOND: That in accordance with Section 211 of the General Corporation
Law of the State of Delaware, a Special Meeting of the Stockholders of the
Corporation was held and the holders of the outstanding stock of the Corporation
required to amend said Certificate voted to approve such amendment.
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<PAGE> 7
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said ASA International Ltd. has caused its
corporate seal to be hereunder affixed and this certificate to be signed by
Perry L. Solomon, Vice President and Paul D. Broude, Assistant Secretary, this
3rd day of August, 1987.
ATTEST: ASA INTERNATIONAL LTD.
/s/ Paul D. Broude By: /s/ Perry L. Solomon
- ---------------------------------- ------------------------------------
Paul D. Broude Perry L. Solomon
Assistant Secretary Vice President
7
<PAGE> 8
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ASA INTERNATIONAL LTD.
ASA INTERNATIONAL LTD., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That by unanimous written consent dated March 16,
1990, all of the directors of ASA INTERNATIONAL LTD. and that at a meeting held
on May 4, 1990, a majority of the stockholders of ASA INTERNATIONAL LTD. adopted
the following resolution amending the Certificate of Incorporation said
Corporation:
RESOLVED: That the First paragraph of Article 4 of the Certificate of
Incorporation be, and hereby is deleted in its entirety and
the following be, and hereby is, inserted in place thereof:
"4. The total number of shares of all
classes which the Corporation shall have authority to
issue is eleven million (11,000,000), of which one
million (1,000,000) shares are to be Preferred Stock
(hereinafter called the "Preferred Stock"), of the
par value of one cent ($.01) each, and ten million
(10,000,000) shares are to be Common Stock
(hereinafter called the "Common Stock"), of the par
value of one cent ($.01) each, amounting in the
aggregate to one hundred ten thousand and 00/100
dollars ($110,000.00).
At the effective time of this amendment, each share
of Common Stock authorized immediately prior to this amendment
shall be split and changed into one fiftieth of a share of
Common Stock. Each holder of Common Stock whose aggregate
shares of Common Stock held in one name or account number
fewer than 50 shall receive cash from the Corporation for his
fractional share interest resulting from the reverse split in
the amount of the higher of (i) the average of the closing bid
and asked prices of the Common Stock on the National
Association of Securities Dealers Automated Quotation System
("NASDAQ") on the date of the effective time
8
<PAGE> 9
and (ii) the average of the daily closing bid and asked prices
of the Common Stock on NASDAQ for the ten trading days ending
on the date of the effective time per one fiftieth of a share
of Common Stock (the "Purchase Price"). Each holder of Common
Stock whose aggregate shares of Common Stock held in one name
or account number 50 or more shall retain his proportionate
interest in the Corporation; provided, however, that if after
such one-for-fifty reverse stock split there exist any
fractional share interests, such interests shall not represent
any ownership in this Corporation, but shall represent a right
to receive, upon surrender of outstanding stock certificates,
cash for each one-fiftieth of a share of Common Stock in the
amount of the higher of (i) the average closing bid and asked
prices of the Common Stock on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") on
the date of the effective time and (ii) the average of the
daily closing bid and asked prices for the Common Stock on
NASDAQ, for the ten trading days ending on the date of the
effective time. In determining the number of shares of Common
Stock held by any holder, the Corporation will look to the
beneficial owner of such shares where such information can
reasonably and practicably be determined. This amendment and
the reverse split effected hereby shall be effective at 4:15
P.M. on the date that such amendment is filed with the
Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the said ASA INTERNATIONAL LTD. has caused its
corporate seal to be hereunto affixed and this Certificate of Amendment to be
signed by its Chief Executive Officer and Assistant Secretary this 4th day of
May, 1990.
ASA INTERNATIONAL LTD.
By:/s/ Alfred C. Angelone
-------------------------------------
Alfred C. Angelone
Chief Executive Officer
/s/ Paul D. Broude
- ----------------------------------
Paul C. Broude
Assistant Secretary
9
<PAGE> 10
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER ("Merger Agreement"), dated as of March 30,
1989, is between ASA INTERNATIONAL LTD., a Delaware corporation ("ASA") and
OMTOOL CORPORATION, a Delaware corporation ("Omtool"). Omtool and ASA are
hereafter sometimes collectively referred to as the "Constituent Corporations").
WHEREAS, Omtool is a corporation duly organized and existing under the
laws of the State of Delaware;
WHEREAS, ASA is a corporation duly organized and existing under the
laws of the State of Delaware;
WHEREAS, on the date of this Merger Agreement, Omtool has authority to
issue shares of Common Stock, $.01 par value per share ("Omtool Common Stock"),
285,725 of which shares are issued and outstanding and 300,000 shares of
Preferred Stock, $.01 par value per share, no shares of which are issued and
outstanding;
WHEREAS, on the date of this Merger Agreement, ASA has authority to
issue 300,000,000 shares of Common Stock, $.0001 par value per share ("ASA
Common Stock"), 193,523,918 of which shares are issued and outstanding, and
10,000,000 shares of Preferred Stock, $.0001 par value per share ("ASA Preferred
Stock"), no shares of which are issued and outstanding.
WHEREAS, the respective Boards of Directors of Omtool and ASA have
determined that it is advisable and in the best interests of each of such
corporations that Omtool merge with and into ASA upon the terms and subject to
the conditions of this Merger Agreement; and
WHEREAS, the respective Board of Directors of Omtool and ASA have, by
resolutions duly adopted, approved this Merger Agreement, and the shareholders
of Omtool have duly approved this Merger Agreement by a written consent dated
January 1, 1989;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Omtool and ASA hereby agree as follows:
1. MERGER. Omtool shall be merged with and into ASA (the "Merger"), and
ASA shall be the surviving corporation (hereinafter sometimes referred to as the
"Surviving Corporation"). The Merger shall become effective upon the time and
date of the filing of such documents as may be required under applicable law
("Effective Time").
2. GOVERNING DOCUMENTS. The Certificate of Incorporation of ASA, as in
effect immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation without change or amendment until
thereafter amended in accordance with the provisions thereof and applicable
laws, and the Bylaws of ASA, as in effect immediately prior to the
10
<PAGE> 11
Effective Time shall be the Bylaws of the Surviving Corporation without change
or amendment until thereafter amended in accordance with the provisions thereof
and applicable laws.
3. SUCCESSION. At the Effective Time, the separate corporation
existence of Omtool shall cease, and ASA shall possess all the rights,
privileges, powers and franchises of a public and private nature and be subject
to all the restrictions, disabilities and duties of Omtool; and all and
singular, the rights, privileges, powers and franchises of Omtool, and all
property, real, personal and mixed, and all debts due to Omtool on whatever
account, as well as for share subscriptions and all other things in action or
belonging to Omtool, shall be vested in the Surviving Corporation; and all
property, rights, privileges, powers and franchises, and all and every other
interest shall be thereafter as effectually the property of the Surviving
Corporation as they were of Omtool, and the title to any real estate vested by
deed or otherwise, under the laws of the State of Delaware, in Omtool, shall not
revert or be in any way impaired by reason of the General Corporation Law of the
State of Delaware; but all rights of creditors and all liens upon any property
of Omtool shall be preserved unimpaired; and all debts, liabilities and duties
of Omtool shall thenceforth attach to the Surviving Corporation and may be
enforced against ti to the same extent as if such debts, liabilities and duties
had been incurred or contracted by it. All corporate acts, plans, policies,
agreements, arrangements, approvals and authorizations of Omtool, its
shareholders, Board of Directors and committees thereof, officers and agents
which were valid and effective immediately prior to the Effective Time, shall be
taken for all purposes as the acts, plans, policies, agreements, arrangements,
approvals and authorizations of ASA and shall be as effective and binding
thereon as the same were with respect to Omtool. The employees and agents of
Omtool shall become the employees and agents of ASA and continue to be entitled
to the same rights and benefits which they enjoyed as employees of Omtool.
4. FURTHER ASSURANCES. From time to time, as and when required by ASA,
or by its successors and assigns, there shall be executed and delivered on
behalf of Omtool such deeds and other instruments, and there shall be taken or
caused to be taken by it all such further and other action, as shall be
appropriate or necessary in order to vest, perfect or confirm, of record or
otherwise, in ASA the title to and possession of all property, interest, assets,
rights, privileges, immunities, powers, franchises and authority of Omtool, and
otherwise to carry out the purposes of this Merger Agreement, and the officers
and directors of ASA are fully authorized in the name and on behalf of Omtool to
take any and all such action and to execute and deliver any and all deeds and
other instruments.
5. CONVERSION OF SHARES. At the Effective Time, by virtue of the Merger
and without any action on the part of the holder thereof, each share of Omtool
Common Stock outstanding immediately prior to the Effective Time shall be
changed and converted into and shall be 3.499868755 fully-paid and
non-assessable shares, of ASA Common Stock. No fractional shares of ASA Common
Stock shall be issued to any stockholder of Omtool.
6. STOCK CERTIFICATES. At and after the Effective Time, all of the
outstanding certificates which immediately prior to the Effective Time
represented shares of Omtool Common Stock shall be presented to the Surviving
Corporation to be exchanged for certificates representing shares of
11
<PAGE> 12
ASA Common Stock as converted as herein provided. The registered owner of any
such outstanding certificate, until such certificate shall have been surrendered
for transfer or otherwise accounted for to ASA or its transfer agents, shall
have and be entitled to exercise any voting and other rights with respect to and
to receive any dividends and other distributions upon the shares of ASA Common
Stock evidenced by such outstanding certificate as above provided. All
certificates representing shares of Omtool and ASA immediately prior to the
Effective Time, the shares represented by such certificates shall be deemed to
be cancelled whether or not the certificates have been surrendered or otherwise
accounted for.
7. EMPLOYEE BENEFIT PLANS. As of the Effective Time, ASA hereby assumes
all obligations of Omtool under any and all employee benefit plans in effect as
of the Effective Time or with respect to which employee rights or accrued
benefits are outstanding as of the Effective Time.
8. AMENDMENT. Subject to applicable law, this Merger Agreement may be
amended, modified or supplemented by written agreement of the parties hereto at
any time prior to the Effective Time with respect to any of the terms contained
herein.
9. ABANDONMENT. At any time prior to the Effective Time, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either of Omtool of ASA, or both of them, notwithstanding approval
of this Merger Agreement by the stockholders of any of said corporations if
circumstances arise which, in the opinion of the Board of Directors of Omtool or
ASA, make the Merger inadvisable.
10. COUNTERPARTS. In order to facilitate the filing and recording of
this Merger Agreement, the same may be executed in two or more counterparts,
each of which shall be deemed to be an original and the same agreement.
12
<PAGE> 13
IN WITNESS WHEREOF, Omtool and ASA have caused this Merger Agreement to
be signed by their respective duly authorized officers as of the date first
above written.
OMTOOL CORPORATION
a Delaware corporation
ATTEST: By:/s/ Martin Schultz
-------------------------------------
Martin Schultz
President
/s/ Michael J. Hudson
- ----------------------------------
Michael J. Hudson
Secretary
ASA INTERNATIONAL LTD.
a Delaware Corporation
ATTEST: By:/s/ Alfred C. Angelone
-------------------------------------
Alfred C. Angelone
Chief Executive Officer
/s/ Paul D. Broude
- ----------------------------------
Paul D. Broude
Assistant Secretary
13
<PAGE> 14
Certificate of
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER ("Merger Agreement"), dated as of December 31,
1990 is between ADVANCED SYSTEMS ASSOCIATES, INC., a Massachusetts corporation
("Advanced") and ASA INTERNATIONAL LTD., a Delaware corporation ("ASA").
Advanced and ASA are hereafter sometimes collectively referred to as the
"Constituent Corporations".
WHEREAS, Advanced is a corporation duly organized and existing under
the laws of the Commonwealth of Massachusetts;
WHEREAS, ASA is a corporation duly organized and existing under the
laws of the State of Delaware;
WHEREAS, on the date of this Merger Agreement Advanced has authority to
issue 300,000 shares of Common Stock, $.01 par value per share ("Advanced Common
Stock"), 300,000 of which shares are issued and outstanding;
WHEREAS, on the date on this Merger Agreement, ASA has authority to
issue 10,000,000 shares of Common Stock, $.01 par value per share ("ASA Common
Stock"), 3,902,140 of which shares are issued and outstanding, and 1,000,000
shares of Preferred Stock, $.01 par value per share ("ASA Preferred Stock"), no
shares of which are issued and outstanding.
WHEREAS, the respective Boards of Directors of Advanced and ASA have
determined that it is advisable and in the best interests of each of such
corporations that Advanced merge with and into ASA upon the terms and subject to
the conditions of this Merger Agreement for the purpose of effecting the
reincorporation of Advanced in the State of Delaware; and
WHEREAS, the respective Boards of Directors of Advanced and ASA have,
by resolutions duly adopted, approved this Merger Agreement, and the
shareholders of Advanced have duly approved this Merger Agreement at a meeting
held on December 26, 1990;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Advanced and ASA hereby agree as follows:
1. MERGER. Advanced shall be merged with and into ASA (the "Merger"),
and ASA shall be the surviving corporation (hereinafter sometimes referred to as
the "Surviving Corporation"). The Merger shall become effective on January 1,
1991.
2. GOVERNING DOCUMENTS. The Certificate of Incorporation of ASA, as in
effect
14
<PAGE> 15
immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation without change or amendment until
thereafter amended in accordance with the provisions thereof and applicable
laws, and the Bylaws of ASA, as in effect immediately prior to the Effective
Time shall be the Bylaws of the Surviving Corporation without change or
amendment until thereafter amended in accordance with the provisions thereof and
applicable laws.
3. SUCCESSION. At the Effective Time, the separate corporate existence
of Advanced shall cease, and ASA shall possess all the rights, privileges,
powers and franchises of a public and private nature and be subject to all the
restrictions, disabilities and duties of Advanced; and all and singular, the
rights, privileges, powers and franchises of Advanced, and all property, real,
personal and mixed, and all debts due to Advanced on whatever account, as well
as for share subscriptions and all other things in action or belonging to
Advanced, shall be vested in the Surviving Corporation; and all property,
rights, privileges, powers and franchises, and all and every other interest
shall be thereafter as effectually the property of the Surviving Corporation as
they were of Advanced, and the title to any real estate vested by deed or
otherwise, under the laws of the State of Delaware, in Advanced, shall not
revert or be in any way impaired by reason of the General Corporation Law of the
State of Delaware; but all rights or creditors and all liens upon any property
of Advanced shall be preserved unimpaired; and all debts, liabilities and duties
of Advanced shall thenceforth attach to the Surviving Corporation and may be
enforced against it to the same extent as if such debts, liabilities and duties
had been incurred or contracted by it. All corporate acts, plans, policies,
agreements, arrangements, approvals and authorizations of Advanced, its
shareholders, Board of Directors and committees thereof, officers and agents
which were valid and effective immediately prior to the Effective Time, shall be
taken for all purposes as the acts, plans, policies, agreements, arrangements,
approvals and authorizations of ASA and shall be as effective and binding
thereon as the same were with respect to Advanced. The employees and agents of
Advanced shall become the employees and agents of ASA and continue to be
entitled to the same rights and benefits which they enjoyed as employees of
Advanced.
4. FURTHER ASSURANCES. From time to time, as and when required by ASA,
or by its successors and assigns, there shall be executed and delivered on
behalf of Advanced such deeds and other instruments, and there shall be taken or
caused to be taken by it all such further and other action, as shall be
appropriate or necessary in order to vest, perfect or confirm, of record or
otherwise, in ASA the title to and possession of all property, interest, assets,
rights, privileges, immunities, powers, franchises and authority of Advanced,
and otherwise to carry out the purposes of this Merger Agreement, and the
officers and directors of ASA are fully authorized in the name and on behalf of
Advanced to take any and all such action and to execute and deliver any and all
deeds and other instruments.
5. STOCK CERTIFICATES. At and after the Effective Time, all of the
outstanding certificates which immediately prior to the Effective Time
represented shares of Advanced Common Stock shall be presented to the Surviving
Corporation for cancellation and the shares represented by said certificates
will be returned to the status of authorized but unissued.
15
<PAGE> 16
6. EMPLOYEE BENEFIT PLANS. As of the Effective Time, ASA hereby assumes
all obligations of Advanced under any and all employee benefit plans in effect
as of the Effective Time or with respect to which employee rights or accrued
benefits are outstanding as of the Effective Time.
7. AMENDMENT. Subject to applicable law, this Merger Agreement may be
amended, modified or supplemented by written agreement of the parties hereto at
any time prior to the Effective Time with respect to any of the terms contained
herein.
8. ABANDONMENT. At any time prior to the Effective Time, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either of Advanced or ASA, or both of them, notwithstanding
approval of this Merger Agreement by the stockholders of any of said
corporations if circumstances arise which, in the opinion of the Board of
Directors of Advanced or ASA, make the Merger inadvisable.
9. COUNTERPARTS. In order to facilitate the filing and recording of
this Merger Agreement, the same may be executed in two or more counterparts,
each of which shall be deemed to be an original and the same agreement.
IN WITNESS WHEREOF, Advanced and ASA have caused this Merger Agreement
to be signed by their respective duly authorized officers as of the date first
above written.
ADVANCED SYSTEMS ASSOCIATES, INC.
a Massachusetts corporation
ATTEST: By:/s/ Alfred C. Angelone
------------------------------------
Alfred C. Angelone
Chief Executive Officer
/s/ Alfred C. Angelone
- ----------------------------------
Alfred C. Angelone
Clerk
ASA INTERNATIONAL LTD.,
a Delaware Corporation
ATTEST:
By:/S/ ALFRED C. ANGELONE
------------------------------------
Alfred C. Angelone
Chief Executive Officer
/s/ Paul D. Broude
- ----------------------------------
Paul D. Broude
Assistant Secretary
16
<PAGE> 17
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ASA INTERNATIONAL LTD.
*****
ASA INTERNATIONAL LTD., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: That by unanimous written consent dated March 31, 1993, all of
the directors of ASA INTERNATIONAL LTD. and that at a meeting held on April 30,
1993, a majority of the stockholders of ASA INTERNATIONAL LTD. adopted the
following resolution amending the Certificates of Incorporation of said
Corporation:
RESOLVED: That the First paragraph of Article 4 of the Certificate of
Incorporation be, and hereby is deleted in its entirety and
the following be, and hereby is, inserted in place thereof:
"4. The total number of shares of all classes which
the Corporation shall have authority to issue is seven million
(7,000,000), of which one million (1,000,000) shares are to be
Preferred Stock (hereinafter called "Preferred Stock"), of the
par value of one cent ($.01) each, and six million (6,000,000)
shares are to be Common Stock (hereinafter called "Common
Stock"), of the par value of one cent ($.01) each, amounting
in the aggregate to seventy thousand and 00/100 dollars
($70,000.00).
IN WITNESS WHEREOF, the said ASA INTERNATIONAL LTD. has caused its
corporate seal to be hereunto affixed and this Certificate of Amendment to be
signed by its Chief Executive Officer and Assistant Secretary this 30th day of
April, 1993.
ASA INTERNATIONAL LTD.
By:/s/ Alfred C. Angelone
-------------------------------------
Alfred C. Angelone
Chief Executive Officer
/s/ Paul D. Broude, Assistant Secretary
- ---------------------------------------
Paul D. Broude
Assistant Secretary
17
<PAGE> 18
CERTIFICATE OF OWNERSHIP AND MERGER
MERGER
ASA INCORPORATED
AND
ASA LEGAL SYSTEMS COMPANY, INC.
INTO
ASA INTERNATIONAL LTD.
*****
ASA INTERNATIONAL LTD., a corporation organized and existing under the
laws of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That this Corporation was incorporated on the 1st day of
April, 1986, pursuant to the General Corporation Law of the
State of Delaware.
SECOND: That this Corporation owns all of the outstanding shares of
the stock of ASA INCORPORATED, a corporation incorporated on
the 16th day of July, 1976 pursuant to the Business
Corporation Laws of the Commonwealth of Massachusetts.
THIRD: That this Corporation owns all of the outstanding shares of
the stock of ASA LEGAL SYSTEMS COMPANY, INC., a corporation
incorporated on the 1st day of February, 1984 pursuant to the
Business Corporation Laws of the Commonwealth of
Massachusetts.
FOURTH: That this Corporation, by the following resolutions of its
Board of Directors by unanimous written consent of dated
December 22, 1995, determined and did merge into itself said
ASA INCORPORATED and ASA LEGAL SYSTEMS, INC.;
18
<PAGE> 19
RESOLVED: That ASA International Ltd. merge, and it hereby does merge
into itself said ASA Incorporated and ASA Legal Systems
Company, Inc. and assumes all its obligations.
FURTHER
RESOLVED: That the merger shall be effective upon the date of filing
with the Secretary of State of Delaware.
FIFTH: Anything herein or elsewhere to the contrary notwithstanding,
this merger may be amended or terminated and abandoned by the
Board of Directors of ASA INTERNATIONAL LTD. at any time prior
to the date of filing the merger with the Secretary of State.
IN WITNESS WHEREOF, said ASA INTERNATIONAL LTD. has caused this
Certificate to be signed by Terrence C. McCarthy, its Vice President this 28th
day of December, 1995.
/s/ Terrence C. McCarthy
-----------------------------------
Terrence C. McCarthy
Vice President
19
<PAGE> 20
CERTIFICATE OF CORRECTION FILED TO CORRECT
A CERTAIN CERTIFICATE OF AMENDMENT OF
ASA INTERNATIONAL LTD. FILED IN THE OFFICE OF THE
DELAWARE SECRETARY OF STATE ON JULY 8, 1987
ASA INTERNATIONAL LTD.
[Pursuant to Section 103]
ASA INTERNATIONAL LTD. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law, DOES HEREBY
CERTIFY:
1. The name of the corporation is ASA INTERNATIONAL LTD.
2. That a Certificate of Amendment of Certificate of
Incorporation was filed by the Secretary of State of Delaware
on July 1, 1987, and that said Certificate requires correction
as permitted by Section 103 of the General Corporation Law of
the State of Delaware.
3. The correction of said Certificate is as follows:
The third paragraph of the first resolution shall be corrected
as follows:
"8. To the maximum extent permitted by Section
102(b)(7) of the General Corporation Law of Delaware,
a director shall not be liable to the Corporation or
its stockholders, for monetary damages for breach of
fiduciary duty as a director, except with respect to
(a) any breach of the director's duty of loyalty to
the corporation of its stockholders, (b) acts or
omissions not in good faith or which involve
intentional misconduct or a knowing violation of
laws, (c) the provisions of Section 174 of Title 8,
or (d) any transaction from which the director
derived an improper benefit."
IN WITNESS WHEREOF, the said ASA INTERNATIONAL LTD. has caused its
corporate seal to be hereunto affixed and this Certificate of Correction to be
signed by Terrence C. McCarthy, its Vice President, this 9th day of SEPTEMBER,
1996.
ASA INTERNATIONAL LTD.
By:/s/ Terrence C. McCarthy
--------------------------------
Terrence C. McCarthy
Vice President
20
<PAGE> 1
Exhibit 4f
BYLAWS
OF
ASA INTERNATIONAL LTD.
Article I. Offices.
--------
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
shall be at The Corporation Trust Company, 1209 Orange Street, in the City of
Wilmington, County of New Castle, State of Delaware 19801.
SECTION 2. ADDITIONAL OFFICES. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II. Meetings of Stockholders.
-------------------------
SECTION 1. TIME AND PLACE. A meeting of stockholders for any purpose
may be held at such time and place within or without the State of Delaware as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
SECTION 2. ANNUAL MEETING. Annual meetings of stockholders, commencing
with the year 1987, shall be held on the third Friday in March, if not a legal
holiday, or, if a legal holiday, then on the next secular day following, at
10:00 a.m., or at such other date and time as shall, from time to time, be
designated by the Board of Directors and stated in the notice of the meeting. At
such annual meetings, the stockholders shall elect a Board of Directors and
transact such other business as may properly be brought before the meetings.
SECTION 3. NOTICE OF ANNUAL MEETING. Written notice of the annual
meeting, stating the place, date, and time thereof, shall be given to each
stockholder entitled to vote at such meeting not less than ten (unless a longer
period is required by law) nor more than sixty days prior to the meeting.
SECTION 4. SPECIAL MEETINGS. Special meetings of the stockholders may
be called for any purpose or purposes, unless otherwise prescribed by statute or
by the Certificate of Incorporation, by the Chairman of the Board, if any, or
the President, and shall be called by the President or Secretary at the request,
in writing, of a majority of the Board of Directors or of the stockholders
owning a majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote. Such request shall state the purpose of the
proposed meeting.
-1-
<PAGE> 2
SECTION 5. NOTICE OF SPECIAL MEETING. Written notice of a special
meeting, stating the place, date, and time thereof and the purpose or purposes
for which the meeting is called, shall be given to each stockholder entitled to
vote at such meeting not less than ten (unless a longer period is required by
law) nor more than sixty days prior to the meeting.
SECTION 6. LIST OF STOCKHOLDERS. The transfer agent or the officer in
charge of the stock ledger of the Corporation shall prepare and make, at least
ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, at a
place within the city where the meeting is to be held, which place, if other
than the place of the meeting, shall be specified in the notice of the meeting.
The list shall also be produced and kept at the place of the meeting during the
whole time thereof and may be inspected by any stockholder who is present in
person thereat.
SECTION 7. PRESIDING OFFICER AND ORDER OF BUSINESS.
(a) Meetings of stockholders shall be presided over by the
Chairman of the Board. If he is not present or there is none, they shall be
presided over by the President, or, if he is not present or there is none, by a
Vice President, or, if he is not present or there is none, by a person chosen by
the Board of Directors, or, if no such person is present or has been chosen, by
a chairman to be chosen by the stockholders owning a majority of the shares of
capital stock of the Corporation issued and outstanding and entitled to vote at
the meeting and who are present in person or represented by proxy. The Secretary
of the Corporation, or, if he is not present, an Assistant Secretary, or, if he
is not present, a person chosen by the Board of Directors, shall act as
Secretary at meetings of stockholders; if no such person is present or has been
chosen, the stockholders owning a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote at the meeting who are
present in person or represented by proxy shall choose any person present to act
as secretary of the meeting.
(b) The following order of business, unless otherwise determined
at the meeting, shall be observed as far as practicable and consistent with the
purposes of the meeting:
(1) Call of the meeting to order.
(2) Presentation of proof of mailing of the notice of the
meeting and, if the meeting is a special meeting, the
call thereof.
(3) Presentation of proxies.
(4) Announcement that a quorum is present.
(5) Reading and approval of the minutes of the previous
meeting.
(6) Reports, if any, of officers.
(7) Election of directors, if the meeting is an annual
meeting or a meeting called for that purpose.
-2-
<PAGE> 3
(8) Consideration of the specific purpose or purposes,
other than the election of directors, for which the
meeting has been called, if the meeting is a special
meeting.
(9) Transaction of such other business as may properly
come before the meeting.
(10) Adjournment.
SECTION 8. QUORUM AND ADJOURNMENTS. The presence in person or
representation by proxy of the holders of a majority of the shares of the
capital stock of the Corporation issued and outstanding and entitled to vote
shall be necessary to, and shall constitute a quorum for, the transaction of
business at all meetings of the stockholders, except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, a quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat who are present in person or represented by proxy shall
have the power to adjourn the meeting from time to time until a quorum shall be
present or represented. If the time and place of the adjourned meeting are
announced at the meeting at which the adjournment is taken, no further notice of
the adjourned meeting need be given. Even if a quorum shall be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat who are present in person or represented by proxy shall have the
power to adjourn the meeting from time to time for good cause to a date that is
not more than thirty days after the date of the original meeting. Further notice
of the adjourned meeting need not be given if the time and place thereof are
announced at the meeting at which the adjournment is taken. At any adjourned
meeting at which a quorum is present in person or represented by proxy, any
business may be transacted that might have been transacted at the meeting as
originally called. If the adjournment is for more than thirty days, or if, after
the adjournment, a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote thereat.
Section 9. Voting.
---------- -------
(a) At any meeting of the stockholders, every stockholder having
the right to vote shall be entitled to vote in person or by proxy. Except as
otherwise provided by law or the Certificate of Incorporation, each stockholder
of record shall be entitled to one vote for each share of capital stock
registered in his name on the books of the Corporation.
(b) All elections shall be determined by a plurality vote, and,
except as otherwise provided by law or the Certificate of Incorporation, all
other matters shall be determined by a vote of a majority of the shares present
in person or represented by proxy and voting on such other matters.
SECTION 10. ACTION BY CONSENT. Any action required or permitted by law
or the Certificate of Incorporation to be taken at any meeting of stockholders
may be taken without a meeting, without prior notice if a written consent,
setting forth the action so taken, shall be signed by the holders of
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<PAGE> 4
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present or represented by proxy and voted. Such
written consent shall be filed with the minutes of the meetings of stockholders.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing thereto.
Article III. Directors.
- ------------ ----------
SECTION 1. GENERAL POWERS, NUMBER, AND TENURE. The business of the
Corporation shall be managed by its Board of Directors, which may exercise all
powers of the Corporation and perform all lawful acts that are not by law, the
Certificate of Incorporation, or these Bylaws directed or required to be
exercised or performed by the stockholders. The number of directors shall be
determined by the Board of Directors; if no such determination is made, the
number of directors shall be one. The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 2 of this Article,
and each director elected shall hold office until the next annual meeting and
until his successor is elected and shall qualify. Directors need not be
stockholders.
SECTION 2. VACANCIES. If any vacancies occur in the Board of Directors,
or if any new directorships are created, they may be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. Each director so chosen shall hold office until the next annual
meeting of stockholders and until his successor is duly elected and shall
qualify. If there are no directors in office, any officer or stockholder may
call a special meeting of stockholders in accordance with the provisions of the
Certificate of Incorporation or these Bylaws, at which meeting such vacancies
shall be filled.
Section 3. Removal or Resignation.
---------- -----------------------
(a) Except as otherwise provided by law or the Certificate of
Incorporation, any director or the entire Board of Directors may be removed,
with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
(b) Any director may resign at any time by giving written notice to the
Board of Directors, the Chairman of the Board, if any, or the President or
Secretary of the Corporation. Unless otherwise specified in such written notice,
a resignation shall take effect on delivery thereof to the Board of Directors or
the designated officer. It shall not be necessary for a resignation to be
accepted before it becomes effective.
SECTION 4. PLACE OF MEETINGS. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
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<PAGE> 5
SECTION 5. ANNUAL MEETING. The annual meeting of each newly elected
Board of Directors shall be held immediately following the annual meeting of
stockholders, and no notice of such meeting shall be necessary to the newly
elected directors in order to constitute the meeting legally, provided a quorum
shall be present.
SECTION 6. REGULAR MEETINGS. Additional regular meetings of the Board
of Directors may be held without notice of such time and place as may be
determined from time to time by the Board of Directors.
SECTION 7. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President, or by two or more
directors on at least two days' notice to each director, if such notice is
delivered personally or sent by telegram, or on at least three days' notice if
sent by mail. Special meetings shall be called by the Chairman of the Board,
President, Secretary, or two or more directors in like manner and on like notice
on the written request of one-half or more of the number of directors then in
office. Any such notice need not state the purpose or purposes of such meeting,
except as provided in Article XI.
SECTION 8. QUORUM AND ADJOURNMENTS. At all meetings of the Board of
Directors, a majority of the directors then in office shall constitute a quorum
for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board
of Directors, except as may be otherwise specifically provided by law or the
Certificate of Incorporation. If a quorum is not present at any meeting of the
Board of Directors, the directors present may adjourn the meeting from time to
time, without notice other than announcement at the meeting at which the
adjournment is taken, until a quorum shall be present.
SECTION 9. COMPENSATION. Directors shall be entitled to such
compensation for their services as directors and to such reimbursement for any
reasonable expenses incurred in attending directors' meetings as may from time
to time be fixed by the Board of Directors. The compensation of directors may be
on such basis as is determined by the Board of Directors. Any director may waive
compensation for any meeting. Any director receiving compensation under these
provisions shall not be barred from serving the Corporation in any other
capacity and receiving compensation and reimbursement for reasonable expenses
for such other services.
SECTION 10. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting,
and without prior notice, if a written consent to such action is signed by all
members of the Board of Directors and such written consent is filed with the
minutes of its proceedings.
SECTION 11. MEETINGS BY TELEPHONE OR SIMILAR COMMUNICATIONS EQUIPMENT.
The Board of Directors may participate in a meeting by conference telephone or
similar communications equipment by means of which all directors participating
in the meeting can hear each other, and participation in such a meeting shall
constitute presence in person by any such director at such meeting.
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<PAGE> 6
Article IV. Committees.
- ----------- -----------
SECTION 1. EXECUTIVE COMMITTEE. The Board of Directors, by resolution
adopted by a majority of the whole Board, may appoint an Executive Committee
consisting of one or more directors, one of whom shall be designated as Chairman
of the Executive Committee. Each member of the Executive Committee shall
continue as a member thereof until the expiration of his term as a director or
his earlier resignation, unless sooner removed as a member or as a director.
SECTION 2. POWERS. The Executive Committee shall have and may exercise
those rights, powers, and authority of the Board of Directors as may from time
to time be granted to it by the Board of Directors to the extent permitted by
law, and may authorize the seal of the Corporation to be affixed to all papers
that may require it.
SECTION 3. PROCEDURE AND MEETINGS. The Executive Committee shall fix
its own rules of procedure and shall meet at such times and at such place or
places as may be provided by such rules or as the members of the Executive
Committee shall fix. The Executive Committee shall keep regular minutes of its
meetings, which it shall deliver to the Board of Directors from time to time.
The Chairman of the Executive Committee or, in his absence, a member of the
Executive Committee chosen by a majority of the members present, shall preside
at meetings of the Executive Committee; and another member chosen by the
Executive Committee shall act as Secretary of the Executive Committee.
SECTION 4. QUORUM. A majority of the Executive Committee shall
constitute a quorum for the transaction of business, and the affirmative vote of
a majority of the members present at any meeting at which there is a quorum
shall be required for any action of the Executive Committee; provided, however,
that when an Executive Committee of one member is authorized under the
provisions of Section 1 of this Article, that one member shall constitute a
quorum.
SECTION 5. OTHER COMMITTEES. The Board of Directors, by resolutions
adopted by a majority of the whole Board, may appoint such other committee or
committees as it shall deem advisable and with such rights, power, and authority
as it shall prescribe. Each such committee shall consist of one or more
directors.
SECTION 6. COMMITTEE CHANGES. The Board of Directors shall have the
power at any time to fill vacancies in, to change the membership of, and to
discharge any committee.
SECTION 7. COMPENSATION. Members of any committee shall be entitled to
such compensation for their services as members of the committee and to such
reimbursement for any reasonable expenses incurred in attending committee
meetings as may from time to time be fixed by the Board of Directors. Any member
may waive compensation for any meeting. Any committee member receiving
compensation under these provisions shall not be barred from serving the
Corporation in any other capacity and from receiving compensation and
reimbursement of reasonable expenses for such other services.
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<PAGE> 7
SECTION 8. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of any committee of the Board of Directors may be taken
without a meeting if a written consent to such action is signed by all members
of the committee and such written consent is filed with the minutes of its
proceedings.
SECTION 9. MEETINGS BY TELEPHONE OR SIMILAR COMMUNICATIONS EQUIPMENT.
The members of any committee designated by the Board of Directors may
participate in a meeting of such committee by conference telephone or similar
communications equipment by means of which all persons participating in such
meeting can hear each other, and participation in such a meeting shall
constitute presence in person by any such committee member at such meeting.
Article V. Notices.
- ---------- --------
SECTION 1. FORM AND DELIVERY. Whenever a provision of any law, the
Certificate of Incorporation, or these Bylaws requires that notice be given to
any director or stockholder, it shall not be construed to require personal
notice unless so specifically provided, but such notice may be given in writing,
by mail addressed to the address of the director or stockholder as it appears on
the records of the Corporation, with postage prepaid. These notices shall be
deemed to be given when they are deposited in the United States mail. Notice to
a director may also be given personally or by telephone or by telegram sent to
his address as it appears on the records of the Corporation.
SECTION 2. WAIVER. Whenever any notice is required to be given under
the provisions of any law, the Certificate of Incorporation, or these Bylaws, a
written waiver thereof signed by the person entitled to said notice, whether
before or after the time stated therein, shall be deemed to be equivalent to
such notice. In addition, any stockholder who attends a meeting of stockholders
in person or is represented at such meeting by proxy, without protesting at the
commencement of the meeting the lack of notice thereof to him, or any director
who attends a meeting of the Board of Directors without protesting at the
commencement of the meeting of the lack of notice, shall be conclusively deemed
to have waived notice of such meeting.
Article VI. Officers.
- ----------- ---------
SECTION 1. DESIGNATIONS. The officers of the Corporation shall be
chosen by the Board of Directors. The Board of Directors may choose a Chairman
of the Board, a President, a Vice President or Vice Presidents, a Secretary, a
Treasurer, one or more Assistant Secretaries and/or Assistant Treasurers, and
other officers and agents that it shall deem necessary or appropriate. All
officers of the Corporation shall exercise the powers and perform the duties
that shall from time to time be determined by the Board of Directors. Any number
of offices may be held by the same person, unless the Certificate of
Incorporation or these Bylaws provide otherwise.
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<PAGE> 8
SECTION 2. TERM OF, AND REMOVAL FROM, OFFICE. At its first regular
meeting after each annual meeting of stockholders, the Board of Directors shall
choose a President, a Secretary, and a Treasurer. It may also choose a Chairman
of the Board, a Vice President or Vice Presidents, one or more Assistant
Secretaries and/or Assistant Treasurers, and such other officers and agents as
it shall deem necessary or appropriate. Each officer of the Corporation shall
hold office until his successor is chosen and shall qualify. Any officer elected
or appointed by the Board of Directors may be removed, with or without cause, at
any time by the affirmative vote of a majority of the directors then in office.
Removal from office, however, shall not prejudice the contract rights, if any,
of the person removed. Any vacancy occurring in any office of the Corporation
may be filled for the unexpired portion of the term by the Board of Directors.
SECTION 3. COMPENSATION. The salaries of all officers of the
Corporation shall be fixed from time to time by the Board of Directors, and no
officer shall be prevented from receiving a salary because he is also a director
of the Corporation.
SECTION 4. THE CHAIRMAN OF THE BOARD. The Chairman of the Board, if
any, shall be an officer of the Corporation and, subject to the direction of the
Board of Directors, shall perform such executive, supervisory, and management
functions and duties as may be assigned to him from time to time by the Board of
Directors. He shall, if present, preside at all meetings of stockholders and of
the Board of Directors.
Section 5. The President.
---------- --------------
(a) The President shall be the chief executive officer of the
Corporation and, subject to the direction of the Board of Directors, shall have
general charge of the business, affairs, and property of the Corporation and
general supervision over its other officers and agents. In general, he shall
perform all duties incident to the office of President and shall see that all
orders and resolutions of the Board of Directors are carried into effect.
(b) Unless otherwise prescribed by the Board of Directors, the
President shall have full power and authority to attend, act, and vote on behalf
of the Corporation at any meeting of the security holders of other corporations
in which the Corporation may hold securities. At any such meeting, the President
shall possess and may exercise any and all rights and powers incident to the
ownership of such securities that the Corporation might have possessed and
exercised if it had been present. The Board of Directors may from time to time
confer like powers upon any other person or persons.
SECTION 6. THE VICE PRESIDENT. The Vice President, if any, or in the
event there be more than one, the Vice Presidents in the order designated, or in
the absence of any designation, in the order of their election, shall, in the
absence of the President or in the event of his disability, perform the duties
and exercise the powers of the President and shall generally assist the
President and perform such other duties and have such other powers as may from
time to time be prescribed by the Board of Directors.
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<PAGE> 9
SECTION 7. THE SECRETARY. The Secretary shall attend all meetings of
the Board of Directors and the stockholders and record all votes and the
proceedings of the meetings in a book to be kept for that purpose. He shall
perform like duties for the Executive Committee or other committees, if
required. He shall give, or cause to be given, notice of all meetings of
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may from time to time be prescribed by the Board of
Directors, the Chairman of the Board, or the President, under whose supervision
he shall act. He shall have custody of the seal of the Corporation, and he, or
an Assistant Secretary, shall have authority to affix it to any instrument
requiring it, and, when so affixed, the seal may be attested by his signature or
by the signature of the Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing thereof by his signature.
SECTION 8. THE ASSISTANT SECRETARY. The Assistant Secretary, if any, or
in the event there be more than one, the Assistant Secretaries in the order
designated, or in the absence of any designation, in the order of their
election, shall, in the absence of the Secretary or in the event of his
disability, perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as may from time to
time be prescribed by the Board of Directors.
SECTION 9. THE TREASURER. The Treasurer shall have custody of the
corporate funds and other valuable effects, including 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 from time
to time be designated by the Board of Directors. He shall disburse the funds of
the Corporation in accord with the orders of the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the Chairman of the
Board, if any, the President, and the Board of Directors, whenever they may
require it or at regular meetings of the Board, an account of all his
transactions as Treasurer and of the financial condition of the Corporation.
SECTION 10. THE ASSISTANT TREASURER. The Assistant Treasurer, if any,
or in the event there shall be more than one, the Assistant Treasurers in the
order designated, or in the absence of any designation, in the order of their
election, shall, in the absence of the Treasurer or in the event of his
disability, perform such other duties and have such other powers as may from
time to time be prescribed by the Board of Directors.
Article VII. Indemnification.
- ------------ ----------------
Reference is made to Section 145 and any other relevant provisions of
the General Corporation Law of the State of Delaware. Particular reference is
made to the class of persons, hereinafter called "Indemnitees", who may be
indemnified by a Delaware corporation pursuant to the provisions of such Section
145, namely, any person, or the heirs, executors, or administrators of such
person, who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, by
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<PAGE> 10
reason of the fact that such person is or was a director, officer, employee, or
agent of such corporation or is or was serving at the request of such
corporation as a director, officer, employee, or agent of such corporation or is
or was serving at the request of such corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise. The Corporation may indemnify the Indemnitees, and each of
them, in each and every situation where the Corporation is permitted to make
such indemnification pursuant to the aforesaid statutory provisions. The
Corporation may indemnify the Indemnitees, and each of them, in each and every
situation where, under the aforesaid statutory provisions, the Corporation is
not obligated, but is nevertheless permitted or empowered, to make such
indemnification, it being understood that, before making such indemnification
with respect to any situation covered under this sentence, (i) the Corporation
shall promptly make or cause to be made, by any of the methods referred to in
Subsection (d) of such Section 145, a determination as to whether each
Indemnitee acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Corporation, and, in the case of
any criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful, and (ii) that no such indemnification shall be made unless
it is determined that such Indemnitee acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, in the case of any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful.
Article VIII. Affiliated Transactions and Interested Directors.
- ------------- -------------------------------------------------
SECTION 1. AFFILIATED TRANSACTIONS. No contract or transaction between
the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates
in the meeting of the Board of Directors or committee thereof that authorizes
the contract or transaction or solely because his or their votes are counted for
such purpose if:
(a) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or
(b) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by the vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation as of the
time it is authorized, approved, or ratified by the Board of Directors, a
committee thereof, or the stockholders.
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<PAGE> 11
SECTION 2. DETERMINING QUORUM. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee thereof which authorizes the contract or
transaction.
Article IX. Stock Certificates.
- ----------- -------------------
Section 1. Form and Signatures.
---------- --------------------
(a) Every holder of stock of the Corporation shall be entitled to a
certificate stating the number and class, and series, if any, of shares owned by
him, signed by the Chairman of the Board, if any, or the President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation, and bearing the seal of the Corporation. The signatures and
the seal may be facsimiles. A certificate may be signed, manually or by
facsimile, by a transfer agent or registrar other than the Corporation or its
employee. In case any officer who has signed, or whose facsimile signature was
placed on, a certificate shall have ceased to be such officer before the
certificate is issued, it may nevertheless be issued by the Corporation with the
same effect as if he were such officer at the date of its issue.
(b) All stock certificates representing shares of capital stock that
are subject to restrictions on transfer or to other restrictions may have
imprinted thereon any notation to that effect determined by the Board of
Directors.
SECTION 2. REGISTRATION OF TRANSFER. Upon surrender to the Corporation
or any transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment, or
authority to transfer, the Corporation or its transfer agent shall issue a new
certificate to the person entitled thereto, cancel the old certificate, and
record the transaction upon the books of the Corporation.
Section 3. Registered Stockholders.
---------- ------------------------
(a) Except as otherwise provided by law, the Corporation shall be
entitled to recognize the exclusive right of a person who is registered on its
books as the owner of shares of its capital stock to receive dividends or other
distributions and to vote or consent as such owner, and to hold liable for calls
and assessments any person who is registered on its books as the owner of shares
of its capital stock. The Corporation shall not be bound to recognize any
equitable or legal claim to, or interest in, such shares on the part of any
other person.
(b) If a stockholder desires that notices and/or dividends shall be
sent to a name or address other than the name or address appearing on the stock
ledger maintained by the Corporation, or its transfer agent or registrar, if
any, the stockholder shall have the duty to notify the Corporation, or its
transfer agent or registrar, if any, in writing of his desire and specify the
alternate name or address to be used.
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<PAGE> 12
SECTION 4. RECORD DATE. In order that the Corporation may determine the
stockholders of record who are entitled to receive notice of, or to vote at, any
meeting of stockholders or any adjournment thereof or to express consent to
corporate action in writing without a meeting, to receive payment of any
dividend or other distribution or allotment of any rights, or to exercise any
rights in respect of any change, conversion, or exchange of stock or for the
purpose of any lawful action, the Board of Directors may, in advance, fix a date
as the record date for any such determination. Such date shall not be more than
sixty nor less than ten days before the date of such meeting, nor more than
sixty days prior to the date of any other action. A determination of
stockholders of record entitled to notice of, or to vote at, a meeting of
stockholders shall apply to any adjournment of the meeting taken pursuant to
Section 8 of Article II; provided, however, that the Board of Directors may fix
a new record date for the adjourned meeting.
SECTION 5. LOST, STOLEN, OR DESTROYED CERTIFICATES. The Board of Directors
may direct that a new certificate be issued to replace any certificate
theretofore issued by the Corporation that, it is claimed, has been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate to be lost, stolen, or destroyed. When authorizing the
issue of a new certificate, the Board of Directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of the lost,
stolen, or destroyed certificate, or his legal representative, to advertise the
same in such manner as it shall require, and/or to give the Corporation a bond
in such sum, or other security in such form, as it may direct as indemnity
against any claims that may be made against the Corporation with respect to the
certificate claimed to have been lost, stolen, or destroyed.
Article X. General Provisions.
- ---------- -------------------
SECTION 1. DIVIDENDS. Subject to the provisions of law and the
Certificate of Incorporation, dividends upon the outstanding capital stock of
the Corporation may be declared by the Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or in shares of the
Corporation`s capital stock.
SECTION 2. RESERVES. The Board of Directors shall have full power,
subject to the provisions of law and the Certificate of Incorporation, to
determine whether any, and, if so, what part, of the funds legally available for
the payment of dividends shall be declared as dividends and paid to the
stockholders of the Corporation. The Board of Directors, in its sole discretion,
may fix a sum that may be set aside or reserved over and above the paid-in
capital of the Corporation as a reserve for any proper purpose, and may, from
time to time, increase, diminish, or vary such amount.
SECTION 3. FISCAL YEAR. Except as from time to time otherwise provided
by the Board of Directors, the fiscal year of the Corporation shall end on
December 31 in each year.
SECTION 4. SEAL. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its incorporation, and the words "Corporate
Seal" and "Delaware".
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<PAGE> 13
Article XI. Amendments.
- ----------- -----------
The Board of Directors shall have the power to alter and repeal these
Bylaws and to adopt new Bylaws by an affirmative vote of a majority of the whole
Board, provided that notice of the proposal to alter or repeal these Bylaws or
to adopt new Bylaws must be included in the notice of the meeting of the Board
of Directors at which such action takes place.
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<PAGE> 1
Exhibit 5
September 24, 1996
Board of Directors
ASA International Ltd.
10 Speen Street
Natick, Massachusetts 01701
Ladies and Gentlemen:
This firm has represented ASA International Ltd., A Delaware corporation
(hereinafter called the "Corporation"), in connection with the filing of the
Registration Statement described below.
In our capacity as counsel to the Corporation, we are familiar with the
Certificate of Incorporation, as amended, and the By-Laws of the Corporation. We
are also familiar with the corporate proceedings taken by the Corporation in
connection with the preparation and filing of a Registration Statement on Form
S-8 (the "Registration Statement") covering the registration of 1,191,477 shares
of Common Stock, $.01 par value per share (the "Common Stock"), issuable upon
exercise of options (the "Options") issued in connection with the Corporation's
1986, 1988, 1993 and 1995 Stock Option Plans (collectively, the "Plans") and in
connection with certain individually negotiated compensation agreements.
Based upon the foregoing, we are of the opinion that:
1. The Corporation is duly organized and validly existing under the laws
of the State of Delaware.
2. The 1,191,477 shares of Common Stock to be registered have been duly
authorized and reserved for issuance upon exercise of the Options, and
such shares, when paid for and issued upon exercise in accordance with
the terms of the Options, will be legally issued, fully paid and
non-assessable.
<PAGE> 2
Board of Directors
ASA International Ltd.
September 24, 1996
Page 2
This opinion is provided solely for the benefit of the addressee hereof and
is not to be relied upon by any other person or party. Nevertheless, we hereby
consent to the use of this opinion and to all references to our firm in or made
part of the Registration Statement.
Very truly yours,
O'CONNOR, BROUDE & ARONSON
By: /s/ Lawrence H. Gennari
-------------------------------
Lawrence H. Gennari
LHG/MJT:anr
c: Alfred C. Angelone, Chief Executive Officer
<PAGE> 1
Exhibit 23(b)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
ASA International Ltd.
10 Speen Street
Framingham, Massachusetts 01701
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated March 15,
1996, relating to the consolidated financial statements of ASA International
Ltd. appearing in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
BDO Seidman, LLP
Boston, Massachusetts
September 24, 1996
