As filed with the Securities and Exchange Commission on August 17, 1995
Registration No. 33-_________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------------
INTELLIGENT ELECTRONICS, INC.
(Exact Name of Registrant as Specified in its Charter)
PENNSYLVANIA 23-2208404
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification No.)
Organization)
411 Eagleview Boulevard
Exton, Pennsylvania 19341
(610) 458-5500
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
1991 STOCK OPTION AND STOCK INCENTIVE PLAN
1991 DIRECTOR STOCK OPTION PLAN
AND
1994 STOCK OPTION and STOCK INCENTIVE PLAN
(Full Title of the Plan)
Richard D. Sanford,
Chairman of the Board and
Chief Executive Officer
Intelligent Electronics, Inc.
411 Eagleview Boulevard
Exton, Pennsylvania 19341
(Name and Address of Agent For Service)
(610) 458-5500
(Telephone Number, Including Area Code, of Agent for Service)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed Maximum
Title of Shares Amount to be Proposed Maximum Offering Aggregate Offering Amount of
to be Registered Registered Price Per Share Price (1) Registration Fee
--------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
($.01 par value) 323,454 -- $6,269,415.54 $2,161.87
====================================================================================================================
(1) Pursuant to Rule 457(h) under the Securities Act of 1933, the aggregate offering price and the amount of the
fee are computed with respect to the shares for which options have been granted (323,454 shares) upon the
basis of the aggregate price at which such shares may be purchased by the optionees ($6,269,415.54).
</TABLE>
PAGE
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Intelligent
Electronics, Inc. ("registrant" or the "Company") with the Securities and
Exchange Commission (the "Commission") are incorporated by reference into
this Registration Statement:
(a) the Company's Annual Report on Form 10-K for the year ended
January 28, 1995;
(b) the Company's Quarterly Report on Form 10-Q for the quarter
ended April 29, 1995;
(c) the Company's Current Reports on Form 8-K dated March 6,
1995 and April 28, 1995; and
(d) the description of the Common Stock, par value $.01 per
share (the "Common Stock"), of the Company contained in the Company's
Registration Statement on Form 8-A, dated June 24, 1987, including any
amendments or reports filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") after the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered pursuant to this
Registration Statement have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
The Common Stock, which is the class of securities offered
pursuant to this Registration Statement, is registered under the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock registered hereunder has been
passed upon for the Company by Pepper, Hamilton & Scheetz, Philadelphia,
Pennsylvania. Barry M. Abelson, a director and a member of the Executive
Committee of the Board of Directors of the Company, is a partner of Pepper,
Hamilton & Scheetz. Mr. Abelson owns 42,900 shares of the Company Common
Stock and options to purchase an additional 40,000 shares.
Item 6. Indemnification of Directors and Officers.
Sections 513 and 1741-1750 of the Pennsylvania Business
Corporation Law of 1988 (the "BCL"), Section 8365 of Title 42 of the
Pennsylvania Consolidated Statutes ("Section 8365") and the Company's By-Laws
provide for indemnification of the Company's directors and officers and certain
other persons. Under Sections 1741-1750 of the BCL, directors and officers of
the Company may be indemnified by the Company against all expenses incurred
in connection with actions (including, under certain circumstances, derivative
actions) brought against such director or officer by reason of his or her
status as a representative of the Company, or by reason of the fact that such
director or officer serves or served as a representative of another entity at
the Company's request, so long as the director or officer acted in good faith
and in a manner he or she reasonably believed to be in, or not opposed to,
the best interests of the Company. As permitted under Section 1741-1750 of
the BCL and Section 8365, the Company's By-Laws provide that the Company
shall indemnify directors and officers against all expenses incurred in
connection with actions (including derivative actions) brought against such
director or officer by reason of the fact that he or she is or was a director
or officer of the Company, or by reason of the fact that such director or
officer serves or served as an employee or agent of any entity at the
Company's request, unless the act or failure to act on the part of the
director or officer giving rise to the claim for indemnification is
determined by a court in a final, binding adjudication to have constituted
willful misconduct or recklessness.
Item 7. Exemption from Registration Claimed.
No restricted securities are being reoffered or resold pursuant to
this Registration Statement.
Item 8. Exhibits.
Exhibit No. Description
4.1 1991 Stock Option and Stock Incentive Plan*
4.2 1991 Director Stock Option Plan*
4.3 1994 Stock Option and Stock Incentive Plan*
5 Opinion of Pepper, Hamilton & Scheetz
23.1 Consent of Independent Accountants
23.2 Consent of Pepper, Hamilton & Scheetz (Included in
Exhibit 5)
24 Power of Attorney (See pages 5-6)
___________________
* Each of the marked Plans was adopted by The Future Now, Inc. ("TFN").
The options outstanding under each such Plan immediately prior to the
acquisition by the registrant of the outstanding capital stock of TFN
(pursuant to the Agreement and Plan of Merger, dated as of April 28,
1995, as amended by Amendment No. 1, dated as of July 6, 1995) (the
"Merger Agreement") have been converted pursuant to the Merger Agreement
into options to acquire shares of common stock, par value $.01, of the
registrant.
Item 9. Undertakings
The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are
being made pursuant to this Registration Statement, a post-effective amendment
to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration State-
ment or any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
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.
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
PAGE
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Exton, State of Pennsylvania, on this 17th day of
August, 1995.
INTELLIGENT ELECTRONICS, INC.
By: /s/ Richard D. Sanford
-----------------------------------
Richard D. Sanford, Chief Executive
Officer and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Richard D. Sanford and Thomas J.
Coffey, and each or any of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or
their, his or her substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Dated: August 17, 1995 /s/ Richard D. Sanford
-----------------------------------
Richard D. Sanford, Chief Executive
Officer and Chairman of the Board
(principal executive officer)
Dated: August 17, 1995 /s/ Gregory A. Pratt
-----------------------------------
Gregory A. Pratt, President, Chief
Operating Officer and Director
Dated: August 17, 1995 /s/ Thomas J. Coffey
-----------------------------------
Thomas J. Coffey, Chief Financial
Officer and Vice President
(principal financial and accounting
officer)
<PAGE>
Dated: August 17, 1995 /s/ Arnold S. Hoffman
-----------------------------------
Arnold S. Hoffman, Director
Dated: August 17, 1995 /s/ William L. Rulon-Miller
-----------------------------------
William L. Rulon-Miller, Director
Dated: August 17, 1995 /s/ Barry M. Abelson
-----------------------------------
Barry M. Abelson, Director
Dated: August 17, 1995 /s/ Roger J. Fritz
-----------------------------------
Roger J. Fritz, Director
Dated: August 17, 1995 /s/ James M. Ciccarelli
-----------------------------------
James M. Ciccarelli, Director
Dated:
-----------------------------------
Christopher T.G. Fish, Director
Dated: August 17, 1995 /s/ Alex A.C. Wilson
-----------------------------------
Alex A.C. Wilson, Director
Dated: August 17, 1995 /s/ William E. Johnson
-----------------------------------
William E. Johnson, Director
Dated: August 17, 1995 /s/ John A. Porter
-----------------------------------
John A. Porter, Director
EXHIBIT 4.1
1991 STOCK OPTION
AND STOCK INCENTIVE PLAN
(1) ESTABLISHMENT OF THE PLAN
The Future Now, Inc., an Ohio corporation, herein sets forth the
terms of its 1991 Stock Option and Stock Incentive Plan (hereinafter referred
to as the "Plan").
(2) DEFINITIONS
For purposes of the Plan, the following terms shall have the
following meanings:
(a) "Board" means the Board of Directors of the Company.
(b) "Committee" means the Committee described in paragraph
(4) which shall administer the Plan.
(c) "Common Stock" or "Shares" means shares of the no par
value Common Stock of the Company.
(d) "Company" means The Future Now, Inc., an Ohio
corporation.
(e) "Fair Market VaLue," when used in reference to Shares of
the Company's Common Stock, shall mean the average of the high bid and low
asked prices per share of the Company's Common Stock in the over-the-counter
market as reported on the NASDAQ System on the date the Fair Market Value is
being determined.
(f) "Participant" means an officer or employee of the Company
who has been granted an option or award under the Plan.
(3) PURPOSES OF THE PLAN
The purposes of the Plan are to provide the Company's officers and
employees with additional incentive and motivation to contribute to the
Company's future growth and continued success, by providing them with the
opportunity to obtain a stock ownership interest in the Company, and to
enable the Company to attract and retain the services of qualified officers
and employees. The Plan is also intended to reinforce the commonality of
interest between the Company's shareholders and the officers and employees
eligible to participate in the Plan.
(4) ADMINISTRATION
(a) The Plan shall be administered by a Committee of the Board
of Directors (hereinafter referred to as the "Committee"). The Committee shall
consist of not fewer than three (3) members of the Company's Board of Directors,
who shall be appointed by the Board. The members of the Committee shall serve
at the pleasure of the Board, which may remove members from, add members to, or
fill vacancies on the Committee. Provided, however, that no director shall
serve or be appointed to serve on the Committee unless that director is a
"Disinterested Person" as hereinafter defined.
For purposes of this Plan, the term "Disinterested Person" shall mean
a director of the Company who, during the one (1) year prior to his service as
a member of the Committee, has not been granted or awarded any options, awards
or equity securities pursuant to the Plan (or pursuant to any other plan of the
Company or its affiliates entitling the participants therein to acquire equity
securities), except that:
(i) Participation in a plan that satisfies all of the
following requirements will not disqualify a director from being a Disinterested
Person: (A) the plan by its terms states the amount and price of securities to
be awarded to designated officers and directors and specifies the timing of the
grants for all participants, or the plan sets forth a formula that determines
the amount, price and timing using objective criteria; (B) awards under the plan
are not subject to the discretion of any person; and (C) the plan provides that
the previously described provisions and requirements cannot be amended more than
once every six (6) months, other than to comply with changes in the Internal
Revenue Code or the rules thereunder;
(ii) an election to receive an annual retainer or director's
fee in either cash or an equivalent amount of equity securities, or partly in
cash and partly in securities, shall not disqualify a director from being a
Disinterested Person; and
(iii) participation in a plan shall not disqualify a director
from being a Disinterested Person for the purpose of administering another plan
that does not permit participation by directors.
(b) Subject to any specific limitations contained in the Plan,
the Committee shall have the sole and complete authority: (i) to select the
officers and employees who shall participate in the Plan; (ii) to make awards
in such forms and amounts as it shall determine and to cancel or suspend awards;
(iii) to impose such limitations, restrictions or conditions upon awards as it
shall deem appropriate; (iv) to interpret the Plan and to adopt, amend and
rescind administrative guidelines and other rules and regulations relating to
the Plan; and (v) to make all other determinations and to take all other actions
necessary or advisable for the proper administration of the Plan. The
Committee's interpretation and construction of any provision of the Plan, or of
any award granted under it, and any actions taken by the Committee under the
Plan, shall be final and conclusive upon the Company and all other parties.
(c) A majority of the Committee shall constitute a quorum, and
the acts of a majority of the members present at any meeting of the Committee
at which a quorum is present, or acts approved in writing by a majority of the
Committee, shall be considered as valid actions by the Committee. The Committee
in its discretion may appoint a Chairman, may hold meetings at such times and
places as it may determine, and may make such rules and regulations for the
conduct of its business as it shall deem advisable. The Committee may desig-
nate one or more officers or employees of the Company to execute documents on
its behalf or to perform such other non-discretionary, ministerial duties as
the Committee may determine.
(5) TYPES OF AWARDS
The following kinds or types of awards may be granted under the Plan:
(a) Incentive Stock Options; (b) Non-Qualified Stock Options; and (c) Restricted
Stock. In connection with any award or any deferred award granted under the
Plan, payments may also be made representing dividends, interest, or their
equivalent.
(6) ELIGIBILITY TO PARTICIPATE
Only persons who are officers or full-time employees of the Company
shall be eligible to participate in and to receive awards under the Plan. An
individual participant may hold more than one award under the Plan or under any
similar plans adopted by the Company. Neither the members of the Committee nor
any member of the Company's Board of Directors who is not also an officer or
full-time employee of the Company shall be eligible to participate in or to
receive an award under the Plan.
(7) SHARES SUBJECT TO THE PLAN
(a) The Shares to be issued and delivered by the Company upon
the exercise of options or the payment of other awards granted under the Plan
shall be Shares of the Company's no par value Common Stock, which may be either
authorized but unissued shares or treasury shares as determined by the
Committee.
(b) The maximum number of Shares of Common Stock which may be
issued under the Plan shall be Three Hundred Sixty Thousand (360,000) Shares.
In the event of a change in the number or nature of the Company's Shares of
outstanding common stock by reason of a stock dividend, stock split,
recapitalization, reorganization, merger, exchange of shares, or other similar
capital adjustments: (i) equitable proportionate adjustments may be made by
the Committee in the number or kind of shares reserved for issuance pursuant to
awards granted under the Plan; and (ii) with respect to any outstanding options
or other awards granted under the Plan, equitable proportionate adjustments
shall be made by the Committee to the number, class, option price, or other
price of Shares subject to such outstanding options or awards as the Committee
shall deem to be appropriate in order to maintain the purpose of the original
grant. The determination of the Committee as to any such adjustment shall be
final, binding and conclusive.
(c) If any option granted under the Plan shall expire or
terminate for any reason without having been exercised in full, the Shares
subject to such option shall again be available for issuance in connection with
the grant of any type of award under the Plan. If any Shares subject to any
other award are forfeited, or the award is terminated without issuance of the
Shares or other consideration, the Shares subject to such award shall again be
available for issuance in connection with the grant of any type of award under
the Plan.
(8) STOCK OPTIONS
All Stock Options granted under the Plan shall be subject to the
following terms and conditions:
(a) The Committee may, from time to time in its discretion,
subject to the provisions of the Plan, grant to any Participant options to
purchase Shares of the Company's Common Stock in such amounts as it shall
determine, which options may be "Incentive Stock Options" (as defined in Section
422 of the U.S. Internal Revenue Code and hereinafter referred to as "ISOs")
or "Non-Qualified Stock Options" (all other options granted hereunder). All
options granted pursuant to the Plan shall be evidenced by a written Stock
Option Agreement between the Company and the Participant. The Stock Option
Agreement shall be in such form and shall contain such terms and conditions as
the Committee shall determine. The Stock Option Agreement shall indicate
whether the option is an ISO or a Non-Qualified Stock Option.
(b) The purchase price per share payable by a Participant upon
the exercise of each option granted under the Plan shall be determined by the
Committee at the time of the grant of the option, provided, however: (i) the
exercise or purchase price per share of each Non-Qualified Stock Option shall
not be less than Eighty-Five (85%) percent of the Fair Market Value of the
Shares on the date of the grant; and (ii) the exercise or purchase price per
share of each ISO shall not be less than One Hundred (100%) percent of the Fair
Market Value of the Shares on the date of the grant, except as hereinafter
provided. The exercise or purchase price per share of each ISO granted to a
Participant who, at the time of the grant, owns more than Ten (10%) percent of
the total combined voting power of all classes of stock of the Company, shall
not be less than One Hundred Ten (110%) percent of the Fair Market Value of the
Shares on the date of the grant. An option shall be considered granted on the
effective date of the Stock Option Agreement, or on such later date as the
Committee shall specify in the Stock Option Agreement.
(c) The term during which each option granted under the Plan may
be exercised shall be determined by the Committee at the time of the grant of
the option; provided, however, in no event shall an ISO granted under the Plan
be exercisable in whole or in part more than ten (10) years from the date it is
granted. In addition, in the case of the grant of an ISO to a participant who,
at the time of the grant, owns more than Ten (10%) percent of the total combined
voting power of all classes of stock of the Company, in no event shall such ISO
be exercisable in whole or in part more than five (5) years from the date it
is granted. Each Stock Option Agreement shall set forth a termination date on
which the option shall expire in all events.
The date(s) on which each option granted under the Plan shall become
exercisable shall be determined by the Committee at the time of the grant of the
option. Except as hereinafter provided, options granted under the Plan may be
exercisable immediately, or after some specified period of time, or according
to some specified schedule of exercise, as determined by the Committee. Except
as hereinafter provided, the Committee may, in its sole discretion, accelerate
the date(s) on which an option may be exercised. No option granted under the
Plan to a Participant who is an officer of the Company shall be exercisable
during the first twelve (12) months following the date of its grant, except in
the case of such Participant's death or permanent disability upon such terms and
conditions as the Committee may determine.
(d) More than one (1) option may be granted to any individual
Participant under the Plan, and the terms and conditions of options may differ.
Other than the overall limit on the number of Shares reserved for issuance under
the Plan, there is no specific limitation on the number of Shares for which
options may be granted to any individual Participant except as hereinafter
provided. No option which is intended to be an ISO shall be granted to a
Participant during any calendar year if the aggregate fair market value
(determined at the time the option is granted) of Shares with respect to which
ISOs are exercisable for the first time by such Participant during that
calendar year under this or any other stock option plan of the Company exceeds
One Hundred Thousand ($100,000.00) Dollars.
(e) An option granted under the Plan shall be exercised by the
Participant, or by such other person as may be entitled to exercise the option,
by sending or delivering a written notice to the Committee, or to such officer
or other person as the Committee shall designate. The written notice shall
state the number of Shares with respect to which the option is being exercised,
and shall be accompanied by the payment of the full exercise or purchase price
for such Shares. The exercise or purchase price for the Shares may be paid in
cash, or in the discretion of the Committee, in Shares of the Company's Common
Stock, or in any combination thereof. Any Shares of the Company's Common Stock
that are delivered in total or partial payment of the exercise or purchase price
shall be valued at the Shares' Fair Market Value on the date of the exercise of
the option. A stock certificate(s) for the Shares purchased by the exercise of
an option shall be issued in the regular course of the Company's business,
subsequent to the exercise of the option and the payment of the purchase price.
No Participant entitled to exercise an option granted under the Plan shall have
any of the rights or privileges of a shareholder of the Company with respect to
any Shares issuable upon exercise of such option, until certificates
representing such Shares shall have been issued and delivered and the
participant's name entered as a shareholder of record on the books of the
Company.
(f) Options granted under the Plan shall not be assigned,
transferred, pledged or otherwise encumbered in any way, except in the event of
the death of a Participant, by the Participant's will or by the applicable laws
of descent and distribution. In the event of the death of a Participant, the
Participant's estate, personal representative, or the person or persons who
acquire (by bequest or inheritance) the rights to exercise any options granted
under the Plan, may exercise any available options or parts thereof, prior to
the expiration of the exercise period described in Paragraph (8)(g) of the
Plan. Each option granted under the Plan shall be exercisable during the
Participant's lifetime only by the Participant or, if permissible under
applicable law, by the Participant's guardian or legal representative.
(g) (i) Except as hereinafter provided, options granted under
the Plan shall expire in all events upon the date determined by the Committee
at the time of the grant of the option and specified in the Stock Option
Agreement, which date shall not exceed the periods described in Paragraph
(8)(c) of the Plan.
(ii) Unless otherwise specified in the Stock Option
Agreement between the Company and the participant, if a Participant's employment
with the Company is terminated for any reason, other than the Participant's
permanent disability or death, any outstanding vested options may be exercised,
to the extent such options were exercisable on the date the Participant's
employment was terminated, for a period of six (6) months following the date of
such termination. If not exercised within such six (6) month period, such
options shall terminate. Any options which were not vested or exercisable on
the date the Participant's employment was terminated shall terminate immediately
on that date. The Committee may, in its sole discretion, grant options under
the Plan which survive, either in whole or in part, the termination of a
Participant's employment with the Company for a period longer than six (6)
months, upon such terms and conditions as the Committee may determine. In
addition, the Committee may, in its sole discretion, at the time of the
termination of a Participant's employment with the Company, extend the exercise
period of any option that would otherwise have terminated. In no event,
however, shall any option granted under the Plan survive beyond the date
described in Paragraph (8)(g)(i) above.
(iii) Unless otherwise specified in the Stock Option
Agreement between the Company and the Participant, if a Participant's employ-
ment with the Company is terminated by reason of the Participant's permanent
disability or death, any outstanding vested options may be exercised, to the
extent such options were exercisable on the date of the Participant's permanent
disability or death, for a period of twelve (12) months following the date of
permanent disability or death. If not exercised within such twelve (12) month
period, such options shall terminate. Any options which were not vested or
exercisable on the date of the Participant's death or permanent disability shall
terminate immediately on that date. The Committee may, in its sole discretion,
grant options under the Plan which survive, either in whole or in part, the
permanent disability or death of a participant for a period of up to thirty-six
(36) months, upon such terms and conditions as the Committee may determine. In
no event, however, shall any option granted under the Plan survive beyond the
date described in Paragraph (8)(g)(i) above.
(9) RESTRICTED STOCK
All awards of Restricted Stock made under the Plan shall be subject
to the following terms and conditions:
(a) The Committee may, from time to time in its discretion,
subject to the provisions of the Plan, award Shares of Restricted Stock to any
Participant in such amounts as it shall determine. The Company shall issue and
deliver to a Participant to whom an award of Restricted Stock has been made, the
number of Shares specified by the Committee. A Participant to whom an award of
Restricted Stock has been made shall not be required to provide any
consideration for the Shares, other than the rendering of services or the
payment of any minimum amount required by applicable law, unless otherwise
determined by the Committee. Each award of Restricted Stock made under the Plan
shall be evidenced by a written Restricted Stock Agreement between the Company
and the Participant. The Restricted Stock Agreement shall be in such form and
shall contain such terms and conditions as the Committee shall determine. More
than one (1) award of Restricted Stock may be granted to an individual
Participant under the Plan, and the terms and conditions of Restricted Stock
Awards may differ.
(b) Except as hereinafter provided, Shares of Restricted Stock
may not be sold, assigned, transferred, pledged or otherwise encumbered by a
Participant during the "Restricted Period." The Restricted Period is the period
of time, determined by the Committee in its discretion, during which the
Participant may not sell, assign, transfer, pledge, or otherwise encumber the
Shares and during which the Shares are subject to forfeiture back to the
Company. The Committee may impose such additional limitations on the ownership
of Restricted Stock during the Restricted Period as it may determine. The
Restricted Period shall commence upon the date of the award of the Restricted
Stock to the Participant and shall terminate on the date(s) determined by the
Committee in its discretion. The termination date(s) of the Restricted Period
may be a single date on which all of the Shares subject to the award are
released from the transfer and other restrictions or may be several dates on
which a specified percentage of such Shares are released from such restrict-
ions. Except as hereinafter provided, the Committee may, in its sole dis-
cretion, accelerate the date(s) on which the Restricted Period will terminate.
The Restricted Period for any award of Restricted Stock made to a Participant
who is an officer of the company shall be at least twelve (12) months from the
date of the award, subject to such exceptions, if any, as are authorized by the
Committee with respect to such Participant's death or permanent disability.
Except for the restrictions on transfer and unless otherwise determined by the
Committee, any Participant who owns Shares of Restricted Stock shall have all
of the rights of a shareholder with respect to such Shares, including but not
limited to, the right to vote and the right to receive dividends.
(c) Each stock certificate issued by the Company evidencing
Shares of Restricted Stock awarded under the Plan shall be registered in the
name of the Participant and shall bear the following or a similar legend: "The
shares of stock represented by this Certificate are subject to the terms and
conditions (including forfeiture) contained in The Future Now, Inc. 1991 Stock
Option and Stock Incentive Plan and may not be sold, assigned, transferred,
pledged or otherwise encumbered in any manner until ____________, ____."
(d) If a Participant's employment with the Company is terminated
during the Restricted Period, all of the Shares of Restricted Stock shall be
forfeited back to the Company, subject to such exceptions, if any, as are
authorized by the Committee with respect to the termination of a Participant's
employment due to normal retirement, permanent disability, death or other
special circumstances. Awards of Restricted Stock made under the Plan shall not
be assigned, transferred, pledged or otherwise encumbered in any way, except in
the event of the death of a Participant, by the Participant's Will or by the
applicable laws of descent and distribution.
(e) Upon the lapse of the Restricted Period, the Shares of
Restricted Stock shall no longer be subject to the restrictions described in
this Paragraph (9) and the Company shall issue new stock certificates for the
Shares registered in the name of the Participant without the legend described
in Paragraph (9)(c) hereof.
(f) Any shares of the Company's Common Stock issued to a
Participant with respect to Restricted Stock as a result of a stock split, stock
dividend or similar transaction shall be restricted to the same extent as such
Restricted Stock, unless otherwise determined by the Committee.
(g) All other terms and conditions of an award of Restricted
Stock shall be determined by the Committee.
(10) DEFERRALS OF AWARDS
The Committee may permit Participants to defer the distribution of all
or any part of any award made under the Plan in accordance with such terms and
conditions as the Committee shall establish.
(11) EFFECT OF PLAN ON EMPLOYMENT STATUS
The fact that the Participant has been granted an option or award
under the Plan shall not affect the right of the Company to terminate his or her
employment at any time, subject to the provisions of any written employment
agreement between the Company and such Participant.
(12) AMENDMENT, MODIFICATION OR TERMINATION OF THE PLAN
The Board of Directors of the Company may terminate, amend or modify
the Plan in its discretion, at any time; provided, however, that no amendment,
modification or termination of the Plan shall affect any outstanding options or
awards theretofore granted under the Plan in any manner, without the consent of
the Participant or his or her successor-in-interest. In addition, any amendment
or modification that would materially increase the benefits accruing to
Participants under the Plan, materially increase the number of Shares reserved
for issuance under the Plan, or materially modify the requirements as to
eligibility for participation in the Plan, must also be approved by the holders
of a majority of the Company's issued and outstanding Shares of Common Stock.
(13) WITHHOLDING
Upon the transfer of Common Stock as a result of the exercise of a
stock option or the payment of a Restricted Stock award, the Company shall have
the right to retain or sell without notice, sufficient Shares to cover the
amount of any tax required by any governmental authority to be withheld or
otherwise deducted and paid with respect to such payment, remitting any balance
to the Participant; provided, however, that the Participant shall have the
option to provide the Company with the funds, including previously acquired
Shares of the Company's Common Stock, to enable it to pay any such tax.
(14) TERM OF THE PLAN
The Plan shall become effective on May 10, 1991, the date of its
adoption by the Company's shareholders. The Plan shall terminate on May 10,
2001, or on such earlier date as may be determined by the Company's Board of
Directors. No option shall be granted or other award made under the Plan
following the Plan's termination. The termination of the Plan shall not affect
the rights of Participants under outstanding options or awards previously
granted under the Plan, and all of such unexpired options and awards shall
continue in full force and effect after termination of the Plan, except as they
may lapse or be terminated under the terms and conditions of each individual
grant or award.
REFERENCE DATE: PLAN AS ADOPTED MAY 10, 1992; AS AMENDED JUNE 12, 1992.
EXHIBIT 4.2
THE FUTURE NOW, INC.
1991 DIRECTOR STOCK OPTION PLAN
<PAGE>
TABLE OF CONTENTS
-----------------
Article Description Page
------- ----------- ----
1. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4. COMMON STOCK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5. REQUIRED TERMS AND CONDITIONS OF OPTIONS. . . . . . . . . . . . . . . 2
6. EXPIRATION OF OPTION. . . . . . . . . . . . . . . . . . . . . . . . . 3
7. METHOD OF EXERCISE. . . . . . . . . . . . . . . . . . . . . . . . . . 4
8. ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
9. OPTION AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 5
10. LEGAL AND OTHER REQUIREMENTS. . . . . . . . . . . . . . . . . . . . . 5
11. NONTRANSFERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . 5
12. INDEMNIFICATION OF COMMITTEE. . . . . . . . . . . . . . . . . . . . . 6
13. TERMINATION AND AMENDMENT OF PLAN . . . . . . . . . . . . . . . . . . 6
14. EFFECTIVE DATE OF THE PLAN. . . . . . . . . . . . . . . . . . . . . . 7
<PAGE>
THE FUTURE NOW, INC.
1991 Director Stock Option Plan
1. PURPOSE
The purpose of THE FUTURE NOW, INC., 1991 Director Stock Option
plan (the "Plan"), as hereinafter set forth, is to enable THE FUTURE NOW,
INC., an Ohio corporation (the "Company"), or any successor corporation, to
attract, retain and reward non-employee Directors; to foster a wide-spread
sense of ownership and commitment by offering them an opportunity to have
long-term compensation, a greater proprietary interest in and closer identity
with the Company and with its financial success; provided, however, that the
exercise of Options shall be subject to the restrictions of Section 6.
Proceeds of cash or property received by the Company from the sale of Common
Stock pursuant to Options granted under the Plan will be used for general
corporate purposes.
2. ADMINISTRATION
The Plan shall be administered by the Compensation Committee (the
"Committee") of the Board of Directors of the Company (the "Board"). Subject
to the express provisions of the Plan, the Committee may interpret the Plan,
prescribe, amend and rescind rules and regulations relating to it, provide
for the terms of the Option Agreements, and make such other determinations as
it deems necessary or advisable for the administration of the Plan. The
decisions of the Committee on matters within their jurisdiction under the
Plan shall be conclusive and binding. No member of the Board or the
Committee shall be liable for any action taken or determination made in good
faith.
3. ELIGIBILITY
Options are granted under this Plan only to non-employee Directors
of the Company or its subsidiaries (referred to as "Participants"), who are
current and active members of the Board of Directors of the Company or a
subsidiary on or after the Effective Date of the Plan. Beginning in 1992,
Participants are eligible for Additional Options if they are non-employee
Directors of the Company following the adjournment of the Company's Annual
Meeting of Shareholders for that year (the "Annual Meeting"), and will
continue to participate each year thereafter so long as they are a Director
immediately preceding such Annual Meeting and have been reelected or
otherwise remain as a Director immediately thereafter.
4. COMMON STOCK
Options may be granted under the Plan for a number of shares not to
exceed, in the aggregate, 50,000 shares of Common Stock of the Company,
except as such number of shares shall be adjusted in accordance with the
provisions of Section 8 hereof. Such shares may be either authorized but
unissued shares or treasury shares. In the event that any Option granted
under the Plan expires unexercised, or is surrendered by a Participant for
cancellation, or is terminated, or ceases to be exercisable for any other
reason without having been fully exercised prior to the end of the period
during which Options may be granted under the Plan, the shares theretofore
subject to such Option, or to the unexercised portion thereof, shall again
become available for new Options to be granted under the Plan to any eligible
Participant (including the holder of such former Option) at an Option price
determined in accordance with Sections 5(a) and (b) hereof, which price may
then be greater or less than the Option price of such former Option.
5. REQUIRED TERMS AND CONDITIONS OF OPTIONS
The Options granted under the Plan shall be in the following form:
(a) Shares Under Options
--------------------
Each Participant on the effective date of this Plan shall
automatically be granted Options for 5,000 Shares. Each individual first
elected to serve as a Director of the Company after the effective date of
this Plan shall, upon such election, automatically be granted Options for
5,000 Shares. In addition, commencing immediately after the adjournment of
the Company's Annual Meeting in calendar 1992 and continuing on an annual
basis immediately following the adjournment of each Annual Meeting through
and including 1996, each Participant whose term did not expire at that Annual
Meeting and who has then served as a Director of the Company continuously
since the previous Annual Meeting shall automatically be granted an
additional Option for 1,000 Shares ("Additional Options").
The exercise price per share of each Option to purchase Common
Stock shall be equal to the Fair Market Value of the stock on the day of
grant.
(b) Maximum Term
------------
No Option shall be exercisable after the expiration of ten (10)
years from the date it is granted.
(c) Time of Exercise
----------------
All Options granted under the Plan shall be immediately
exercisable.
(d) Fair Market Value
-----------------
If the Company's Common Stock is listed on a national securities
exchange at the date of grant, Fair Market Value per share shall mean the
average of the highest and lowest selling price of a share on such exchange
on such date or, if there were no sales on said date, then on the next prior
business day on which there were sales.
If the Company's Common Stock is traded other than on a national
securities exchange at the date of the grant of the Option, Fair Market Value
per share shall mean an amount not less than the average between the bid and
asked price of a share on the Option date, as reported by NASDAQ or, if there
is no bid and asked price on said date, then on the next prior business day
on which there was a bid and asked price. If no such bid and asked price is
available, then the Committee shall make a good faith determination of the
Fair Market Value of a share, using any reasonable method of valuation.
6. EXPIRATION OF OPTION
(a) General Rule
------------
Each Option shall expire on the earlier of the date set forth in
the Option agreement (which shall not exceed the maximum term permitted by
this Plan) or, if earlier on the applicable date specified in the following
subsection of this Section 6.
(b) Expiration Upon Termination of Directorship
-------------------------------------------
Each Option shall expire on the date that the directorship of the
optionee with the Company terminates for any reason other than disability,
death, retirement or death following retirement; provided, however, that the
Committee, in its sole discretion, may permit such Participant to exercise
the Option during a period of up to ninety (90) days following his/her
directorship termination.
(c) Expiration Upon Disability or Death
-----------------------------------
If the Participant ceases to be a Director of the Company by reason
of disability (as determined by the Committee) or by reason of death, his/her
Options, if any, shall expire on the first anniversary of such termination of
directorship.
(d) Expiration Upon Retirement
--------------------------
If the Participant ceases to be a Director of the Company due to
retirement with the consent of the Company, his/her Options, if any, shall
expire ninety (90) days after the date of such termination of directorship.
If an optionee who has so retired dies prior to exercising in full an Option
which has not expired pursuant to the preceding sentence, then
notwithstanding the preceding sentence, his/her Options shall expire on the
first anniversary of the date of the optionee's death.
(e) Expiration for Cause
--------------------
If the Participant ceases to be a Director of the Company for
cause, his/her Options, if any, shall expire on the date of termination. For
purposes of the Plan, termination "for cause" shall mean termination because
the optionee engaged in dishonest or fraudulent conduct in the performance of
his/her duties for the Company or its subsidiaries.
7. METHOD OF EXERCISE
Subject to any restrictions contained herein, Options may be
exercised by the Participant giving written notice to the Secretary of the
Company stating the number of shares of Common Stock with respect to which
the Option is being exercised and tendering payment therefor. Payment for
Common Stock, whether in cash, other shares of Common Stock or other
property, shall be made in full at the time that an Option, or any part
thereof, is exercised.
8. ADJUSTMENTS
(a) The aggregate number of shares of Common Stock with
respect to which Options may be granted hereunder, the number of shares of
Common Stock subject to each outstanding Option and the Option price per
share for each such Option may all be appropriately adjusted, as the
Committee may determine, for any increase or decrease in the number of shares
of issued Common Stock of the Company resulting from a subdivision or
consolidation of shares whether through merger, consolidation,
recapitalization, reorganization, payment of a share dividend or other
increase or decrease in the number of such shares outstanding effected
without receipt of consideration by the Company.
(b) On the basis of information known to the Company, the
Board or the Committee shall make all determinations under this Section 8,
including whether a transaction involves a sale of substantially all the
Company's assets, and all such determinations shall be conclusive and
binding.
9. OPTION AGREEMENTS
Each Participant shall agree to such terms and conditions in
connection with the exercise of an Option, including restrictions on the
disposition of the Common Stock acquired upon the exercise thereof, as the
Committee may deem appropriate. The certificates evidencing the shares of
Common Stock acquired upon exercise of an Option may bear a legend referring
to the terms and conditions contained in the respective Option agreement and
the Plan, and the Company may place a stop transfer order with its transfer
agent against the transfer of such shares. If requested to do so by the
Committee at the time of exercise of an Option, each Participant shall
execute a certificate indicating that the Participant is purchasing the
Common Stock under such Option for investment and not with any present
intention to sell the same. Upon the exercise of an Option, the Company
shall have the right to deduct from any cash payments otherwise due to the
Participant any amounts required to be withheld under any Federal, state or
local income tax laws.
10. LEGAL AND OTHER REQUIREMENTS
The obligation of the Company to grant any Option or to sell and
deliver Common Stock under any Option granted under the Plan shall be subject
to all applicable laws, regulations, rules and approvals, including, but not
by way of limitation, securities laws, rules and regulations and the
effectiveness of a registration statement under the Securities Act of 1933,
if deemed necessary or appropriate by the Board, of the Common Stock reserved
for issuance upon exercise of Options. A Participant shall have no rights as
a stockholder with respect to any shares covered by an Option granted to or
exercised by the Participant until the date of delivery of a stock
certificate for such shares. No adjustment other than pursuant to Section 8
hereof shall be made for dividends or other rights for which the record date
is prior to the date such stock certificate is delivered.
11. NONTRANSFERABILITY
During the lifetime of a Participant, any Option granted shall be
exercisable only by the Participant or the Participant's guardian or legal
representative. No Option shall be assignable or transferable by the
Participant, except by will or by the laws of descent or distribution. The
granting of an Option shall impose no obligation upon the Participant to
exercise such Option or right.
12. INDEMNIFICATION OF COMMITTEE
In addition to such other rights of indemnification as they may
have as Directors or as members of the Committee, the members of the
Committee shall be indemnified by the Company against the reasonable
expenses, including attorneys' fees actually and necessarily incurred with
the defense of any action, suit or proceeding (or in connection with any
appeal therein), to which they or any of them may be a party by reason of any
action taken or failure to act under or in connection with the Plan or any
Option granted hereunder, and against all amounts paid by them in settlement
thereof or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, so long as such Committee member acted in good faith,
received no improper benefit, believed his/her conduct was in the best
interests of the Company and, in the case of a criminal proceeding, had no
reasonable cause to believe his/her conduct was unlawful. Indemnification
may take the form of paying attorneys' fees and expenses as they accrue and
advancing attorneys' fees and expenses to the affected Committee member.
13. TERMINATION AND AMENDMENT OF PLAN
No Option shall be granted under the Plan more than five (5) years
after the effective date of the Plan. The Board, acting by a majority of its
members without further action on the part of the stockholders, may from time
to time alter, amend or suspend the Plan or any Option granted hereunder or
may at any time terminate the Plan; provided, however, the Board may not:
(1) (Except as provided in Section 8 hereof) change the total
number of shares of Common Stock available for Options under the Plan;
(2) Extend the duration of the Plan;
(3) Increase the maximum term of any Option;
(4) Decrease the minimum Option price or otherwise materially
increase the benefits accruing to Participants under the Plan;
(5) Materially modify the eligibility requirements of the
Plan; or
(6) Otherwise amend any provision of the Plan relating to the
amount and price of securities to be awarded to Participants, or relating to
the timing of awards to Participants, more than once every six (6) months,
other than to comport with changes in the Internal Revenue Code, the Employee
Retirement Income Security Act, or the rules thereunder;
and provided further that no such action shall materially and adversely
affect any outstanding Options without the consent of the respective
optionees.
14. EFFECTIVE DATE OF THE PLAN
The Plan shall not become effective and no Options shall be granted
unless and until (i) the Plan is approved by the Board; (ii) the Plan is
approved by the holders of a majority of the outstanding Common Shares of the
Company; and (iii) a public offering of the Company's Common Stock becomes
effective with the Securities and Exchange Commission pursuant to the
Securities Act of 1933. The Effective Date of the Plan shall be the date on
which the last of these three conditions is fulfilled.
EXHIBIT 4.3
The Future Now, Inc.
1994 Stock Option and Stock Incentive Plan
The Future Now, Inc. (the "Company") does hereby establish this
1994 Stock Option and Stock Incentive Plan (the "Plan") for employees of the
Company and its subsidiaries.
1. Purposes.
--------
This Plan is designed to enable the Company to provide (i)
incentive to, and encourage stock ownership by, key employees of the Company,
and (ii) a means to compete with other organizations in attracting,
motivating and retaining highly qualified management employees.
2. Administration.
--------------
This Plan will be administered by the Compensation Committee of the
Board of Directors of the Company (the "Committee"), each of whom shall be
ineligible to receive Stock Options, Restricted Stock or Stock Appreciation
Rights, as hereinafter defined, under the Plan and shall have been so
ineligible for at least one year. The membership of the Committee shall at
all times be constituted so as to permit the Plan to comply with Rule 16b-3
promulgated under the Securities Exchange Act of 1934 or any successor rule
("Rule 16b-3").
The Committee shall have all of the powers and duties set forth
herein, as well as such additional powers and duties as the Board of
Directors may delegate to it; provided, however, that the Board of Directors
expressly retains the right (i) to appoint the members of the Committee, and
(ii) to terminate or amend this Plan. The Committee shall, in its sole
discretion, (i) determine the eligible persons to whom a grant of a Stock
Option, Restricted Stock, or Stock Appreciation Right (together "Stock
Awards") under the Plan will be made and, subject to the provisions of this
Plan, the terms thereof; (ii) interpret the Plan and prescribe, amend and
rescind rules and regulations relating to it; (iii) accelerate or otherwise
modify outstanding Stock Awards providing such acceleration or modification
does not conflict with the express provisions of this Plan nor adversely
affects the interest of any grantee if a Change of Control has occurred; and
(iv) make all other determinations which the Committee shall deem necessary
or advisable for the administration of the Plan.
3. Eligibility.
-----------
All full time management employees, including elected officers, of the
Company shall be eligible to receive Stock Awards under the Plan.
4. Shares Reserved for Plan.
------------------------
There is hereby reserved for issuance under this Plan an aggregate of
750,000 shares of common stock of the Company which may be authorized but
unissued shares or treasury shares ("Stock"). Any shares subject to Stock
Options or Stock Appreciation Rights which terminate without being exercised,
or any shares of Restricted Stock which revert to the Company, shall again be
available for issuance in connection with the grant of subsequent Stock Awards.
In the event of a reclassification, recapitalization, merger, consolidation,
reorganization, issuance of warrants, rights or debentures, stock dividend,
stock split or reverse stock split, cash dividend, property dividend,
combination or exchange of shares, repurchase of shares or any other change in
corporate structure which in the judgment of the Committee materially affects
the value of shares, the Committee may determine the appropriate adjustments,
if any, to the maximum number and class of shares with respect to which a Stock
Award may be granted under this Plan and the number and class of shares and the
exercise price per share set forth in any Stock Award theretofore granted.
5. Acceleration.
------------
Stock Awards shall, to the extent permitted by law, become immediately
exercisable in full, and any and all restrictions thereupon shall lapse if, at
any time after the grant and before the exercise of the Stock Award or before
the lapse of all restrictions on Restricted Stock, a Change of Control, as
hereinafter defined, has occurred irrespective of the applicability of any
restriction or limitation on the number of shares then exercisable. In any such
event, all other terms of the Stock Award shall remain unchanged.
A Change of Control will be deemed to have occurred if any entity or
person or group of entities or persons succeeds to the Company's business by
means of a merger, consolidation, exchange offer, tender offer, share exchange,
acquisition of all or substantially all of the Company's assets or other
corporate transaction; or acquires beneficial ownership, as such is defined in
the Securities Exchange Act of 1934, as amended, of more than one third of the
Company's then issued and outstanding stock or the Company dissolves or
liquidates its business.
6. Awards under the Plan.
---------------------
The following Stock Awards may be granted under the Plan:
(a) Stock Options: These are options to purchase shares of
Stock of the Company. The following terms and conditions shall apply to any
Stock Option ("Options") granted by the Committee:
(i) The option price per share for shares subject to
Options shall be the mean between the highest ad lowest prices for such shares
as reported on the NASDAQ System on the date of grant or, if no sales are made
on such date, the nearest prior date on which a sale is reported.
(ii) Options shall be exercisable in cash or, if so provided
therein, by the delivery of certificates for shares of stock of the Company
fully endorsed, valued at the mean of the highest and lowest prices reported for
the day of exercise on the NASDAQ System or, if no sales are made on such date,
on the most recent prior date for which sales are reported.
(iii) Options shall be exercisable in such installments and
during such periods as may be fixed by the Committee, but (notwithstanding any
other provision herein) no Option shall be exercisable after the expiration of
ten years from the date such Option is granted.
(iv) Options are not transferable by the optionee otherwise
than by will or the law of descent and distribution; are exercisable; during or
after the optionee's lifetime, only by the optionee or the optionee's legal
representative; and are not subject, in whole or in part, to attachment, levy
or execution.
(v) Options may be exercised, if at all, no later than one
year following termination of employment. No Option, however, may be exercised
more than 10 years after the date of grant.
(vi) Each optionee shall be entitled to the privileges of
stock ownership only as to such shares of stock as are actually Purchased by
the optionee pursuant to an Option.
(b) Incentive Stock Options: All Incentive Stock Options
granted under the Plan shall comply with the provisions of the Internal Revenue
Code, as amended from time to time, governing incentive stock options and with
all other applicable rules and regulations.
(c) Restricted Stock: Restricted Stock awards under this Plan
shall consist of shares of Common Stock of the Company (the "Restricted Shares"
or "Restricted Stock") that are granted to an employee and that are restricted
against transfer, subject to forfeiture, and subject to such other terms and
conditions intended to further the purpose of the Plan as may be determined by
the Committee. Restricted Stock awards shall be evidenced by agreements
containing provisions setting forth the terms and conditions governing such
awards. Each such Agreement shall contain the following:
(i) Prohibition against the sale, assignment, transfer,
exchange, pledge, hypothecation, or other encumbrance of (a) the Restricted
Shares awarded, (b) the right to vote the Restricted Shares, or (c) the right
to receive dividends thereon during the restriction period applicable to the
Restricted Shares; provided, however, that the grantee shall have all the other
rights of a shareholder including, but not limited to, the right to receive
dividends and the right to vote the Restricted Shares;
(ii) At least one term, condition or restriction
constituting a "substantial risk of forfeiture" as defined in Section 83(c) of
the Internal Revenue Code;
(iii) Such other terms, conditions and restrictions as the
committee in its discretion may choose to apply to the Restricted Shares,
including, without limitation, provisions creating additional substantial risks
of forfeiture; and
(iv) A requirement that each certificate representing
Restricted Shares shall be deposited with the Company, or its designee, and
shall bear the following legend:
"This certificate and the shares of stock represented hereby
are subject to the terms and conditions (including
forfeiture and restrictions against transfer) contained in
The Future Now, Inc. 1994 Stock Option and Stock Incentive
and an Agreement entered into between the registered owner
and the Company. Release from such terms and conditions
shall be made only in accordance with the provisions of the
Plan and the Agreement, a copy of each of which is on file
in the office of the Secretary of the Company."
The Committee may include in an Agreement a requirement that in the
event of a grantee's termination of employment for any reason prior to the lapse
of restrictions, all Restricted Shares shall be forfeited by the grantee to the
Company, and neither the grantee nor any successor, heir, assign or personal
representative of the grantee shall thereafter have any further rights or
interest in the Restricted Shares.
(d) Stock Appreciation Rights: A stock appreciation right is
the right of the holder of an unexercised Option to receive a number of shares
or, under certain circumstances, cash, based on the increase the value of the
shares subject to an Option. An Option granted under this Plan may include a
Stock Appreciation Right, either at the time of grant or by amendment attaching
the same to an existing Option. A Stock Appreciation Right shall be subject to
such terms and conditions not inconsistent with this Plan as the Committee shall
impose, including the following:
(i) A Stock Appreciation Right shall be exercisable to the
extent, and only to the extent, that the related Option is exercisable and by
the person who might have exercised it.
(ii) Notwithstanding the foregoing, no Stock Appreciation
Right shall be exercisable within six months of its grant or attachment to an
existing Option, or prior to such later date as may be specified in the grant
thereof (including its attachment to an existing Option), except that such
limitations shall not apply in the event that death or disability of the grantee
occurs prior to the expiration of such period.
(iii) A Stock Appreciation Right, subject to any additional
limitations which are included in the grant, shall entitle the grantee to
surrender to the Company unexercised the Option in which it is included or to
which it is attached, or any portion thereof, and to receive from the Company
in exchange therefor that number of shares having an aggregate value equal (to
the highest whole number of shares) to the excess of the value of one share over
the purchase price per share specified in such Option times the number of shares
called for by the Option, or portion thereof, which is so surrendered. If the
grantee so elects pursuant to the terms of this paragraph, and the Company
consents thereto, the Company shall settle its obligation arising out of the
exercise of a Stock Appreciation Right by the payment of cash equal to the
aggregate value of the shares it would otherwise be obligated to deliver upon
such exercise, subject to the limitations set forth below in this paragraph and
subject to any further limitations specified in the grant of the Stock
Appreciation Right. The value of a share shall be equal for these purposes to
the mean between the highest and lowest prices for such shares as reported on
the NASDAQ System on the trading day next preceding the date on which the Stock
Appreciation Right is exercised or, if no sales are made on such date, on the
most recent prior date on which sales are reported. All determinations as to
whether to consent to a grantees election that an obligation shall be settled
in cash shall be made by the Committee and the Committee shall not consent to
any such election for settlement in cash unless the conditions required by Rule
16b-3 are met.
The Committee may consent to, or disapprove, such election at any time
thereafter, or within such period for taking such action as is specified in such
election; and failure to give such consent shall be disapproval. Such consent
may be given in whole or as to a portion of the Option, surrendered by the
grantee. If such election to receive cash is disapproved in whole or in part,
the Stock Appreciation Right shall be deemed to have been exercised for stock,
or not to have been exercised, as specified in such notice of exercise and
election, to the extent such election to receive cash is not approved.
7. Compliance with Law and Regulations.
-----------------------------------
The obligation of the Company to sell and deliver any shares of Stock
or any cash under this Plan shall be subject to all applicable laws, rules and
regulations, and the obtaining of all approvals by governmental agencies deemed
necessary or appropriate by the Committee. Except as otherwise provided herein,
the Committee may make such changes in the Plan and include such terms in any
Stock Award agreement as may be necessary or appropriate, in the opinion of
counsel to the Company, to comply with all applicable laws, rules and
regulations or to obtain, for the Company or any employee granted a Stock
Award, any tax benefits under the applicable provisions of the Code and the
regulations thereunder.
8. Tax Withholding.
---------------
The Company shall have the right to deduct or otherwise effect a
withholding of any amount required by federal or state law to be withheld or
otherwise deducted and paid with respect to the grant or exercise of any Stock
Award or in order for the Company to obtain a tax deduction otherwise available
as a consequence of such grant, exercise or sale, as the case may be.
9. Nonexclusivity of the Plan.
--------------------------
Neither the adoption of this Plan by the Board of Directors nor the
submission of this Plan to the shareholders of the Company for approval shall
he construed as having any impact on existing qualified or nonqualified plans
of the Company, or as creating any limitations on the power of the Board of
Directors to adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting of Stock Awards otherwise than under
this Plan.
10. Amendment of Plan.
-----------------
The Board of Directors of the Company may amend this Plan from time
to time, including any amendment which would cause any Stock Award issued or
to be issued hereunder to comply with all then applicable laws, rules and
regulations, including without limitation, Rule 16b-3, or to receive the most
favorable treatment permitted by the Code or other laws, provided that no
amendment adverse to the interests of any grantee of a Stock Award or to the
terms of any issued Stock Award shall be effective after a Change of Control,
as defined in Section 5 hereof, has occurred.
11. Term of Plan.
------------
The Plan shall become effective upon approval by the vote of the
holders of a majority of the shares of the Company present, or represented and
entitled to vote at a meeting duly held. The Plan shall terminate on and no
Stock Award may be granted under the Plan after May 25, 2004. This Plan shall
remain in effect, however, so long as any Stock Award remains outstanding. No
holder of any Stock Award granted during the term of this Plan shall be
adversely affected by the termination of this Plan.
12. Continuation of Employment.
--------------------------
Nothing contained in this Plan, or in any written Stock Award
agreement, shall obligate the Company to continue for any period to employ an
employee to whom a Stock Award has been granted, or interfere with the right of
the Company to vary the terms of such person's employment or compensation.
Exhibit 5
Exhibit 23.2
PEPPER, HAMILTON & SCHEETZ
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103
(215)981-4000
August 17, 1995
Securities and Exchange Commission
Division of Corporation Finance
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8
Dear Sir or Madam:
Reference is made to a Registration Statement on Form S-8 (the
"Registration Statement") of Intelligent Electronics, Inc. (the "Company") to
be filed with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act").
Pursuant to the Agreement and Plan of Merger, dated as of April 28,
1995, as amended by Amendment No. 1, dated as of July 6, 1995 (the "Merger
Agreement") among the Company, a subsidiary of the Company and The Future
Now, Inc. ("TFN"), each option to purchase shares of common stock, no par
value, of TFN granted under TFN's (i) 1991 Stock Option and Stock Incentive
Plan, (ii) 1991 Director Stock Option Plan and (iii) 1994 Stock Option and
Stock Incentive Plan (each, a "Plan") which was outstanding immediately prior
to the effective time of the Merger (as defined in the Merger Agreement) has
been converted into an option (each, an "IE Option") to purchase shares of
common stock, par value $.01, of the Company ("IE Common Stock").
As counsel to the Company, we have examined the Registration
Statement, including the exhibits thereto, the originals or copies, certified
or otherwise identified to our satisfaction, of the Articles of Incorporation
and the By-Laws of the Company, as amended to date, and such other documents
and corporate records relating to the Company as we have deemed appropriate
for the purpose of rendering the opinion expressed herein. The opinion
expressed herein is based exclusively on laws of the Commonwealth of
Pennsylvania and federal securities laws as in effect on the date hereof.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to any facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon statements and representations
of officers and other representatives of the Company.
On the basis of the foregoing, we are of the opinion that the IE
Common Stock, when issued upon exercise of the IE Options and paid for in
accordance with the applicable Plan, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement. Such consent does not constitute a consent under
Section 7 of the Act, since we have not certified any part of the
Registration Statement and do not otherwise come within the categories of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission promulgated thereunder.
Sincerely,
PEPPER, HAMILTON & SCHEETZ
By: /s/ Pepper, Hamilton & Scheetz/
-------------------------------
A Partner
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporate by reference in this Registration
Statement on Form S-8 of our report dated April 12, 1995, which appears
on page 12 of Intelligent Electronics, Inc.'s Annual Report on Form 10-K
for the year ended January 28, 1995.
PRICE WATERHOUSE LLP
Philadelphia, PA
August 17, 1995
