As filed with the Securities and Exchange Commission
on November 3, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF1933
ATS MONEY SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Nevada 13-3442314
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
25 Rockwood Place, Englewood, New Jersey 07631
(Address, including zip code of registrant'sprincipal executive offices)
ATS MONEY SYSTEMS, INC. 1995 DIRECTOR STOCK PLAN
ATS MONEY SYSTEMS, INC. COMMON STOCK INCENTIVE PLAN
(Full title of the plan)
Gerard F. Murphy
President
ATS Money Systems, Inc.
25 Rockwood Place
Englewood, New Jersey 07631
(201) 894-1700
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
With a copy to:
Warshaw Burstein Cohen Schlesinger & Kuh, LLP
555 Fifth Avenue
New York, New York 10017
(212) 984-7700
Attention: Arthur A. Katz, Esq.
CALCULATION OF REGISTRATION FEE
Title of each class ofsecurities to be registered:
Common Stock $.001 par value.
Amount to be registered: 350,000 shares(1)
Proposed maximum offering price per share(2): $1.16
Proposed maximum aggregate offering price(2): $406,000
Amount of registration fee(3): $123.03
(1) Consists of (a) 150,000 shares issuable
pursuant to the ATS Money Systems, Inc. 1995 Director Stock
Plan (the "1995 Plan"), including upon exercise of options
granted and to be granted pursuant to the 1995 Plan, and
(b) 200,000 additional shares issuable upon exercise
of options granted and to be granted pursuant to the ATS Money
Systems, Inc. Common Stock Incentive Plan, in each case subject
to adjustment for antidilution as provided therein. This
Registration Statement is intended to constitute compliance with
the registrant's undertaking set forth in Registration
Statement 33-64460, which relates to the balance of the
securities covered by the ATS Money Systems, Inc. Common Stock
Incentive Plan.
(2) Calculated solely for the purposes of
determining the amount of the registration fee pursuant to Rule
457(h)(1) under the Securities Act of 1993. The proposed
maximum offering price is based upon the average high and low
bid prices of the Common Stock as reported in the "pink sheets"
on October 24, 1997.
(3) The registration fee has been calculated,
pursuant to Sction 6(b) of the Securities Act of 1933, as
follows: one thirty-third of one percent of the proposed maximum
aggregate offering price of the shares of Common Stock being
registered hereby.
___________________
This Registration Statement, including all exhibits,
contains 18 pages. The exhibit index may be found on page 5 of
the consecutively numbered pages of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by
ATS Money Systems, Inc. with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act") are incorporated by
reference into this Registration Statement:
(a) The registrant's Annual Report on Form 10-KSB
for the fiscal year ended December 31, 1996.
(b) The registrant's Quarterly Report on Form
10-QSB for the fiscal quarter ended March 31, 1997.
(c) The registrant's Quarterly Report on Form
10-QSB for the fiscal quarter ended June 30, 1997.
(d) The description of the registrant's Common
Stock contained in the registrant's Registration Statement on
Form 8-A dated May 16, 1989.
(e) The registrant's Registration Statement on
Form S-8 filed with the Commission on June 16, 1993 (Reg. No.
33-65560).
All documents subsequently filed by the Issuer with
the Commission after the date of this Registration Statement
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange
Act and prior to the filing of a post-effective amendment to
this Registration Statement, which indicates that all securities
offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and
to be part hereof from the date of filing such documents;
provided, however, that the documents enumerated above or
subsequently filed by the Issuer pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act in each fiscal year
during which the offering made by this Registration Statement is
in effect and prior to the filing with the Commission of the
registrant's Annual Report on Form 10-KSB covering such fiscal
year, shall not be deemed to be incorporated by reference in
this Registration Statement or be a part hereof from and after
the filing of such Annual Report on Form 10-KSB.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained
herein, or in any other subsequently filed document that also is
or is deemed to be incorporated by reference herein, modifies
or supersedes such statement. Any statement contained in this
Registration Statement shall be deemed to be modified or
superseded to the extent that a statement contained in a
subsequently filed document, which is or is deemed to be
incorporated by reference herein, modifies or supersedes such
statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 78.751 of the Nevada General Corporation Law
("NRS 78.751") provides that, under certain circumstances, "a
corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the
right of the corporation, by reason of the fact that he is or
was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses, including attorney's fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by
him in connection with the action, suit or proceeding if he
acted in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful."
Section 78.752 of the Nevada General Corporation Law
also provides that "a corporation may purchase and maintain
insurance or make other financial arrangements on behalf of any
person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another corporation, partnership, partnership, joint venture,
trust or other enterprise for any liability asserted against
him and liability and expenses incurred by him in his capacity
as a director, officer, employee or agent, or arising out of
his status as such, whether or not the corporation has the
authority to indemnify him against such liability and expense."
Article Tenth of the registrant's Articles of
Incorporation provides for indemnification by the registrant of
its directors and officers to the full extent allowed under
Nevada law, and reads as follows:
"TENTH. Section 1. Pursuant to the provisions of
NRS 78.751, the corporation will indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding
whether civil, criminal, administrative or investigative except
an action by or in the right of the corporation, by reason of
the fact that he was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with the action, suit
or proceeding if he acted in good faith and in a manner which
he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the corporation, and
that, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
Section 2. The corporation will indemnify any
person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses,
including amounts paid in settlement and attorneys' fees
actually and reasonably incurred by him in connection with the
defense or settlement of the action or suit if he acted in good
faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the corporation.
Indemnification may not be for any claim, issue or matter as to
which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the corporation or for amounts paid in settlement to
the corporation, unless and only to the extent that the court
in which the action or suit was brought or other court of
competent jurisdiction determines upon application that in view
of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such expenses as the court
will deem improper.
Section 3. To the extent that a director, officer,
employee or agent of a corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding
referred to in Sections 1 and 2, or in defense of any claim,
issue or matter therein, he must be indemnified by the
corporation against expenses, including attorneys' fees,
actually and reasonably incurred by him in connection with the
defense.
Section 4. Any indemnification under Sections 1 and
2, unless ordered by a court or advanced pursuant to Section 5
herein, must be made by the corporation only as authorized in
the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the
circumstances. The determination must be made:
(a) By the stockholders;
(b) By the board of directors by a majority vote
of a quorum consisting of directors who were not parties to the
act, suit or proceeding;
(c) If a majority vote of a quorum consisting of
directors who were not parties to the act, suit or proceeding
so ordered, by independent legal counsel in a written opinion; or
(d) If a quorum consisting of directors who were
not parties to the act, suit or proceeding cannot be obtained,
by independent legal counsel in a written opinion.
Section 5. The expenses of officers and directors
incurred in defending a civil or criminal action, suit or
proceeding must be paid by the corporation as they are incurred
and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not
entitled to be indemnified by the corporation. The provisions
of this Section do not affect any rights to advancement of
expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
Section 6. The indemnification and advancement of
expenses authorized in or ordered by a court pursuant to this
Section:
(a) Does not include any other rights to which a
person seeking indemnification or advancement of expenses may
be entitled under the certificate or articles of incorporation
or any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official
capacity or an action in another capacity while holding his
office, except that indemnification, unless ordered by a court
pursuant to Section 2 or for the advancement of expenses made
pursuant to Section 5, may not be made to or on behalf of any
director or officer if a final adjudication establishes that his
acts or omissions involved intentional misconduct, fraud or a
knowing violation of the law and was material to the cause of
action.
(b) Continues for a person who has ceased to be a
director, officer, employee or agent and inures to the benefit
of the heirs, executors and administrators of such a person."
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
4 Instruments defining the rights of security holders, including
indentures
4.1 ATS Money Systems, Inc. Amended and Restated Common Stock
Incentive Plan*
4.2 Form of Incentive Stock Option Agreement (incorporated herein by
reference to Exhibit 4.2 to Registration Statement on Form S-8
(File No.33-64460).
4.3(a) Articles of Incorporation of ATS Money Systems, Inc. (formerly
known as More Creative Mergers, Inc.) filed with the Secretary
of State of the State of Nevada on August 28, 1987 -
incorporated herein by reference to Exhibit 8 to Registration
Statement on Form S-18 (No. 33-19657-NY)
4.3(b) Agreement of Merger of ATS Money Systems,Inc. into More Creative
Mergers, Inc., dated July 25, 1988, as filed with the Secretary
of State of the State of Nevada on September 6, 1988 -
incorporated herein by reference to Exhibit 12 to
Post-effective Amendment No. 1 to Registration Statement on
Form S-18 (No. 33-19657-NY)
4.3(c) By-Laws of ATS Money Systems, Inc.incorporated herein by
reference to Exhibit 3.2 to Form 10QSB of ATS Money Systems,Inc.
for the fiscal quarter ended September 30, 1995.
4.4 Form of Common Stock certificate of ATS Money Systems, Inc. -
incorporated herein by reference to Exhibit 5 to Amendment No.
1 to Registration Statement on Form S-18 (No. 33-19657-NY)
4.5 ATS Money Systems, Inc. 1995 Director Stock Plan - incorporated
herein by reference to Exhibit 10(i) to Annual Report on Form
10-KSB of ATS Money Systems, Inc. for the fiscal year ended
December 31, 1996
5 Opinion re legality
5.1 Opinion of Warshaw Burstein Cohen Schlesinger & Kuh, LLP*
15 Letter on unaudited interim financial information -
not applicable
*Filed herewith
23 Consent of experts and counsel
23.1 Consent of Warshaw Burstein Cohen Schlesinger & Kuh, LLP
(contained in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP*
24 Power of attorney (contained in the signature page to this
registration statement)
28 Information from reports furnished to state insurance regulatory
authorities - not applicable.
99 Additional exhibits - not applicable
*Filed herewith
Item 9. Undertakings.
The registrant will:
(1) File, during any period in which it offers or
sells securities, a post-effective amendment to this
registration statement to include any additional or changed
material information on the plan of distribution;
(2) For determining liability under the Securities
Act of 1933 (the "Securities Act"), treat each post-effective
amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be
the initial bona fide offering.
(3) File a post-effective amendment to remove from
registration any of the securities that remain unsold at the
end of the offering.
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
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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Englewood, State of
New Jersey, on October 30, 1997.
ATS MONEY SYSTEMS, INC.
By /s/ Gerard F. Murphy
Gerard F. Murphy
President and Chief
Executive Officer
Each person whose signature appears below hereby
constitutes and appoints Gerard F. Murphy and Joseph M. Burke,
and each of them, his true and lawful attorney-in-fact, with
full power of substitution and resubstitution, for him 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 under the Securities
Act of 1933, hereby ratifying and confirming all that either
such attorneys-in-fact or substitutes, 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 below by
the following persons in the capacities indicated and on the
dates indicated.
Signature Title Date
/s/ Gerard F. Murphy President, Chief Executive
Gerard F. Murphy Officer and Director
(Principal Executive Officer) October 30, 1997
/s/ A. Paul Cox, Jr.
A. Paul Cox, Jr. Director October 30, 1997
/s/ Fred Den
Fred Den Director October 30, 1997
/s/ Thomas J. Carey
Thomas J. Carey Director October 30, 1997
/s/ Joseph M. Burke
Joseph M. Burke Vice President - Finance
(Principal Accounting
and Financial Officer) October 30, 1997
EXHIBIT INDEX
Exhibit No. Description Page No.
4.1 ATS Money Systems, Inc. Amended and Restated Common Stock
Incentive Plan 9
5.1 Opinion of Warshaw Burstein Cohen Schlesinger & Kuh, LLP 16
23.1 Consent of Warshaw Burstein Cohen Schlesinger & Kuh, LLP
(contained in Exhibit 5.1) __
23.2 Consent of Deloitte & Touche LLP 18
24 Power of attorney (contained in the signature page to the
registration statement) __
Exhibit 4.(1)
ATS MONEY SYSTEMS, INC.
AMENDED AND RESTATED COMMON STOCK INCENTIVE PLAN
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in the
Plan, the following terms shall have the respective meanings
set forth in this Section 1.1.
Affiliate means any "subsidiary corporation" or
"parent corporation", as such terms are defined in Section 424
of the Code, of the Company.
Agreement means a written agreement (including any
amendment or supplement thereto) between the Company and a
Participant specifying the terms and conditions of an Option
granted under the Plan to such Participant.
Associate means a person who is associated with the
Company as a Director, or as a consultant, advisor or other
service provider, but who is not an Employee.
Board means the Board of Directors of the Company.
Code means the Internal Revenue Code of 1986.
Committee means the Board, provided, however, that
if a committee has been delegated authority by the Board
pursuant to Article III to manage and administer the Plan, then
Committee means such committee.
Common Stock means the common stock, $.001 par
value, of the Company.
Company means ATS Money Systems, Inc.
Date of Exercise means, with respect to an Option,
the date that the Option price is received by the Company.
Director means a member of the Board.
Employee means a person who performs services as an
employee (within the meaning of Section 3401(c)(6) of the Code)
of the Company or of an Affiliate.
Exchange Act means the Securities Exchange Act of
1934, or any corresponding provisions of any subsequent Federal
securities law.
Fair Market Value means, on any given date, the
closing price of the Common Stock on the principal national
securities exchange on which the Common Stock is traded on the
day immediately preceding the date as of which Fair Market
Value is being determined, or on the next preceding date on
which the Common Stock is traded if no Common Stock was traded
on such immediately preceding day. If the Common Stock is not
traded on a national securities exchange, but is reported by
the National Association of Securities Dealers, Inc. Automated
Quotation System and market information is published on a
regular basis in The New York Times or The Wall Street Journal,
then Fair Market Value shall be deemed to be the average of the
published high and low sales price or the published daily bid
and asked prices of the Common Stock, as so published, on the
day immediately preceding the date as of which Fair Market
Value is being determined or on the next preceding date on which
such prices were published. If market information is not so
published on a regular basis, then Fair Market Value shall be
deemed to be the average of the high bid and low asked prices
of the Common Stock in the over-the-counter market on the day
immediately preceding the date as of which Fair Market Value is
being determined or on the next preceding date on which such
high bid and low asked prices were recorded as reported by the
National Association of Securities Dealers Automated Quotation
System, or, if not so reported, by a generally accepted
reporting service. If the Common Stock is not publicly traded,
Fair Market Value shall be determined by the Committee or the
Board. In no case shall Fair Market Value be less than the par
value of a share of Common Stock.
Non-Employee Director means a Director who comes
within the definition of "non-employee director" under Rule
16b-3(b)(3) promulgated under the Exchange Act.
Option means a stock option that entitles the holder
to purchase from the Company a stated number of shares of
Common Stock at the price set forth in an Agreement.
Participant means an Employee or an Associate who
receives an Option.
Plan means the ATS Money Systems, Inc. Amended and
Restated Common Stock Incentive Plan.
Ten Percent Shareholder means any individual owning
more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or of an Affiliate at the
time any Option is granted to such individual. An individual
shall be considered to own any voting stock owned (directly or
indirectly) by or for his or her brothers, sisters, spouse,
ancestors or lineal descendants and shall be considered to own
proportionately any voting stock owned (directly or indirectly)
by or for a corporation, partnership, estate or trust, of which
such individual is a shareholder, partner or beneficiary.
Section 1.2 Rules of Construction. Unless the
context otherwise requires or unless otherwise defined herein,
(i) a term shall have the meaning assigned to it in Section 1.1,
(ii) all references to section numbers shall be to sections of
the Plan, (iii) all references to the "Company" shall include
any successor thereto, (iv) all references to "employment" or
"association" of a Participant shall be to his or her status as
an "Employee" or "Associate," respectively, of one or more of
the Company and its Affiliates, (v) "or" shall not be exclusive,
(vi) words in the singular shall include the plural, and
vice-versa, and (vii) words in the masculine gender shall
include the feminine and neuter, and vice-versa.
ARTICLE II
PURPOSES
The Company has established the Plan in order to
encourage the acquisition of a proprietary interest in the
Company by certain key Employees of the Company and its
Affiliates, and by certain consultants, advisors and other
persons who provide services to the Company and its Affiliates.
Such a proprietary interest in the Company will provide such
persons with a direct stake in the future welfare of the Company
and strengthen their commitment to remain employed by or
associated with the Company and its Affiliates. It is also
expected that the Plan will encourage qualified persons to seek
and accept employment by or association with the Company and its
Affiliates. To accomplish the foregoing, the Plan contemplates
the grant of both Options qualifying under Section 422 of the
Code ("incentive stock options") and Options not so qualifying.
No Option that is intended to be an incentive stock option
shall be invalid for failure to qualify as an incentive stock
option. The proceeds received by the Company from the sale of
Common Stock pursuant to the Plan shall be used for general
corporate purposes.
ARTICLE III
ADMINISTRATION
Section 3.1 Administration. The Plan shall be
administered by the Committee, which may be the Compensation
Committee of the Board or such other committee of the Board,
comprised only of Non-Employee Directors and consisting of at
least two Directors, to which the Board may delegate the
authority to administer the Plan. In the absence of any such
appointment, the Board shall perform the duties of, and
constitute, the Committee. The Committee shall have authority
to grant Options upon such terms (not inconsistent with the
provisions of the Plan) as the Committee may consider
appropriate. Such terms may include conditions (in addition to
those contained in the Plan) on the exercisability of all or
any part of an Option. The Committee may, in its discretion,
accelerate the time at which any Option may be exercised. In
addition, the Committee shall have complete authority to
interpret all provisions of the Plan; to prescribe the form of
any Agreement; to adopt, amend, and rescind rules and
regulations pertaining to the administration of the Plan; and
to make all other determinations necessary or advisable for the
administration of the Plan. The express grant in the Plan of
any specific power to the Committee shall not be construed as
limiting any power or authority of the Committee. Any decision
made, or action taken, by the Committee or in connection with
the Administration of the Plan shall be final and conclusive.
No member of the Committee shall be liable for any act done in
good faith with respect to the Plan or any Agreement or Option.
All expenses of administering the Plan shall be borne by the
Company.
Section 3.2 Compliance with Section 16 of the
Exchange Act. It is the intent of the Company that any Options
granted hereunder be interpreted in a manner so that such
Options, to the maximum extent, satisfy the applicable
requirements of Rule 16b-3 promulgated under the Exchange Act,
so that each Participant, to the maximum extent practicable,
will be entitled to the benefits of Rule 16b-3 or other
exemptions provided pursuant to the rules adopted under Section
16 of the Exchange Act, and will not be subjected to the
"short-swing" liability provisions of Section 16 of the
Exchange Act. If any provision of any Option granted hereunder
would otherwise frustrate or conflict with the intent expressed
in this Section 3.2, that provision to the extent possible shall
be interpreted and deemed amended so as to avoid such conflict.
To the extent of any remaining irreconcilable conflict with such
intent, such provision shall be deemed void as applicable to
such persons.
ARTICLE IV
ELIGIBILITY
Section 4.1 General. Employees and Associates are
eligible to participate in the Plan, without regard to length of
employment or association; provided, however, that an Associate
shall not be eligible to receive incentive stock options. The
Committee shall determine whether and when an Employee or
Associate shall become a Participant and shall determine the
number of Shares for which Options shall be granted to such
person; provided, however, that if such person is a Director
and the Committee does not consist of the Board, then the Board
shall ratify such grant and the terms thereof in order for such
grant to become effective. An Employee or Associate shall be a
Participant with respect to any Shares subject to an Option
only if he or she executes an Agreement with respect to such
Shares in such form as the Committee may prescribe.
Section 4.2 Grants. The Committee will designate
individuals to whom Options are to be granted and will specify
the number of shares of Common Stock subject to each grant. All
Options granted under the Plan shall be evidenced by Agreements
which shall be subject to applicable provisions of the Plan and
to such other provisions as the Committee may adopt. No
Participant may be granted incentive stock options (under all
incentive stock option plans of the Company and its Affiliates)
which are first exercisable in any calendar year for Common
Stock having an aggregate Fair Market Value (determined as of
the date an option is granted) exceeding $100,000. The
preceding annual limitation shall not apply with respect to
Options that are not incentive stock options.
ARTICLE V
STOCK SUBJECT TO THE PLAN
Section 5.1 Source of Shares. Upon the exercise of
any Option, the Company may deliver to the Participant
authorized but unissued shares of Common Stock.
Section 5.2 Maximum Number of Shares. The maximum
aggregate number of shares of Common Stock that may be issued
pursuant to the exercise of Options is 480,000, subject to
increases and adjustments as provided in this Article V and
Article IX.
Section 5.3 Forfeitures, Etc.. If an Option is
terminated, in whole or in part, the number of shares of Common
Stock allocated to the Option or portion thereof may be
reallocated to other Options to be granted under the Plan.
ARTICLE VI
OPTION PRICE
The price per share for Common Stock purchased on
the exercise of an Option shall be determined by the Committee
on the date of grant. The price per share for Common Stock
purchased on the exercise of any Option that is an incentive
stock option shall not be less than the Fair Market Value on the
date the Option is granted; provided, however, that the price
per share shall not be less than 110% of the Fair Market Value
in the case of an incentive stock option that is granted to a
Ten Percent Shareholder.
ARTICLE VII
EXERCISE OF OPTIONS
Section 7.1 Ability to Exercise. An Option shall
be exercisable commencing on the date of grant or an any other
date thereafter established by the Committee, subject to such
limitations as are set forth in the Agreement; provided,
however, that the Participant must be an employee of the Company
or an Affiliate on the Date of Exercise of an incentive stock
option, except in the event of death, disability, termination of
employment without cause or a "change in control" (as defined
in any change in control agreement to which the Company and any
such Participant are parties), in which case such Participant
must exercise such Option within the time periods set forth in
the Agreement.
Section 7.2 Maximum Exercise Period. The maximum
period in which an Option may be exercised shall be determined
by the Committee on the date of grant except that no Option that
is an incentive stock option shall be exercisable after the
expiration of ten years from the date such option was granted,
or after the expiration of five years from the date such Option
was granted to a Ten Percent Shareholder. The terms of any
Option may provide that it is exercisable for a period less
than such maximum period. All Options which are incentive stock
options shall terminate on the date the Participant's
employment with the Company or an Affiliate terminates, except
as provided in the Agreement with respect to death, disability,
termination of employment without cause or a "change in control"
(as described in Section 7.1 above).
Section 7.3 Nontransferability. Unless otherwise
determined by the Committee, either at or after the grant of an
Option, an Option granted under the Plan shall be
nontransferable except by will or by the laws of descent and
distribution. Unless otherwise determined by the Committee,
either at or after the grant of an Option, in the event of any
such transfer, the entire Option must be transferred to the same
person or entity. During the lifetime of the Participant to
whom the Option is granted, the Option may be exercised only by
the Participant. No right or interest of a Participant in any
Option shall be liable for, or subject to, any lien, obligation
or liability of such Participant.
Section 7.4 Employee Status. For purposes of
determining the applicability of Section 422 of the Code
(relating to incentive stock options), or in the event that the
terms of any Option provide that it may be exercised only during
employment or association with the Company or an Affiliate or
within a specified period of time after termination of
employment or such association, the Committee may decide to what
extent leaves of absence for governmental or military service,
illness, temporary disability, or other reasons shall not be
deemed interruptions of employment or such association.
ARTICLE VIII
METHOD OF EXERCISE
Section 8.1 Exercise. An Option granted under the
Plan shall be deemed to have been exercised on the Date of
Exercise. Subject to the provisions of Articles VII and X, an
Option may be exercised in whole at any time or in part from
time to time at such times and in compliance with such
requirements as the Committee shall determine. An Option
granted under the Plan may be exercised with respect to any
number of whole shares less than the full number of whole shares
for which the Option could be exercised. A partial exercise of
an Option shall not affect the right to exercise the Option
from time to time in accordance with the Plan and the applicable
Agreement with respect to the remaining shares subject to the
Option.
Section 8.2 Payment. Unless otherwise provided by
the Agreement, payment of the Option price shall be made in
cash, a cash equivalent, Common Stock or any other consideration
acceptable to the Committee. If the Agreement provides,
payment of all or part of the Option price may be made by
surrendering shares of Common Stock to the Company; provided,
however, that shares of Common Stock may be surrendered by a
Participant who is subject to the reporting and other
provisions of Section 16 of the Exchange Act in payment of all
or part of the Option price only if the surrendered shares have
been held by the Participant for at least six months prior to
the Date of Exercise. If Common Stock is used to pay all or
part of the Option price, the shares surrendered must have a
Fair Market Value (determined as of the day preceding the Date
of Exercise) that is not less than such price or part thereof.
Section 8.3 Loans. The Company, in accordance with
the requirements of Regulation G of the Federal Reserve Board
regulations ("Regulation G"), may lend a Participant all or part
of the Option price as determined in accordance with Article VI
hereof, provided that the maximum loan amount shall not exceed
the current market value at the time of purchase by the
Participant of the shares of Common Stock acquired with the loan
proceeds. The principal amount of the loan shall be repayable
in not more than five annual installments. The Participant
shall pay interest on the unpaid principal balance at such rate
as the Committee shall determine, which shall be no less than
the minimum rate necessary to avoid imputed interest or
original issue discount under the Code. All shares of Common
Stock acquired with cash borrowed from the Company shall be
pledged to the Company as security for the repayment thereof.
In the discretion of the Board, shares of Common Stock may be
released from such pledge proportionately as payments of the
note (together with interest) are made; provided, however, that
the Company, in accordance with the requirements of Regulation
G, shall not release any shares of Common Stock which would
cause the amount outstanding under a loan to exceed the
"maximum loan value" of the remaining shares pledged by the
Participant, determined at the time of such release. While
such shares are so pledged, and so long as there has been no
default in the installment payments, such shares shall remain
registered in the name of the Participant, and he or she shall
have the right to vote such shares and to receive all dividends
thereon.
Section 8.4 Shareholder Rights. No Participant
shall have any rights as a shareholder with respect to shares
subject to his or her Option until the Date of Exercise of such
Option.
ARTICLE IX
ADJUSTMENT UPON CHANGE IN COMMON STOCK
The maximum number and kind of shares as to which
Options may be granted under the Plan shall be proportionately
adjusted, and the terms of outstanding Options shall be adjusted
by way of increase or decrease, as the Committee in the
exercise of its reasonable judgment shall determine to be
equitably required, in the event that (a) the Company (i)
effects one or more stock dividends, stock splits, reverse stock
splits, subdivisions, consolidations or other similar events or
(ii) engages in a transaction to which Section 424 of the Code
applies or (b) there occurs any other event which in the
judgment of the Committee necessitates such action. Any
determination made under this Article IX by the Committee shall
be final and conclusive.
The issuance by the Company of shares of stock of
any class, or securities convertible into shares of stock of
any class, for cash or property, or for labor or services
rendered, either upon direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares
or obligations of the Company convertible into such shares or
other securities, shall not affect, and no adjustment by reasons
thereof shall be made with respect to, outstanding Options.
ARTICLE X
COMPLIANCE WITH LAW AND APPROVAL OF REGULATORY BODIES
No Option shall be exercisable, no Common Stock
shall be issued, no certificates for shares of Common Stock
shall be delivered, and no payment shall be made, under the Plan
except in compliance with all federal and state laws and
regulations (including, without limitation, withholding tax
requirements), federal and state securities laws and
regulations and the rules of all national securities exchanges
or self-regulatory organizations on which the Company's shares
may be listed. The Company shall have the right to rely on an
opinion of its counsel as to such compliance. Any certificate
issued to evidence shares of Common Stock for which an Option is
exercised may bear such legends and statements as the Committee
upon advice of counsel may deem advisable to assure compliance
with federal and state laws and regulations. No Option shall
be exercisable, no Common Stock shall be issued, no certificates
for shares of Common Stock shall be delivered, and no payment
shall be made, under the Plan until the Company has obtained
such consent or approval as the Committee may deem advisable
from any regulatory bodies having jurisdiction over such
matters.
ARTICLE XI
GENERAL PROVISIONS
Section 11.1 Effect on Employment. Neither the
adoption of the Plan or its operation, nor any documents
describing or referring to the Plan (or any part thereof) shall
confer upon any person any right to continue as an Employee or
Associate of the Company or an Affiliate or in any way affect
any right and power of the Company or an Affiliate to terminate
the employment of any Employee or the association of any
Associate at any time without assigning a reason therefor.
Section 11.2 Unfunded Plan. The Plan, insofar as it
provides for grants, shall be unfunded, and the Company shall
not be required to segregate any assets that may at any time be
represented by grants under the Plan. Any liability of the
Company to any person with respect to any grant under the Plan
shall be based solely upon any contractual obligations that may
be created pursuant to the Plan. No such obligation of the
Company shall be deemed to be secured by any pledge of, or
other encumbrance on, any property of the Company.
Section 11.3 Rules of Construction. Headings are
given to the articles and sections of the Plan solely as a
convenience to facilitate reference. The reference to any
statute, regulation or other provision of law shall be construed
to refer to any amendment to or successor of such provision of
law.
Section 11.4 Rights as a Shareholder. A
Participant shall have no rights with respect to any share of
Common Stock until the Participant shall have become a holder
of record of such share of Common Stock, and the Participant
shall not be entitled to any dividends or distributions or
other rights in respect of such share of Common Stock for which
the record date is prior to the date on which the Participant
shall have become the holder of record therefor, except as
otherwise provided in Article IX.
Section 11.5 Applicable Law. The Plan shall be
governed and construed in accordance with the internal laws (and
not the law of conflicts) of the State of New Jersey.
ARTICLE XII
AMENDMENT
The Board may amend or terminate the Plan at any
time or from time to time, subject to such approvals as may be
required pursuant to (i) the Code, (ii) the laws of the State of
Nevada, the Company's jurisdiction of incorporation, and (iii)
the Exchange Act and the rules promulgated thereunder. Any
provision of the Plan to the contrary notwithstanding, no
termination or amendment of the Plan may, without the consent of
the individual to whom an Option shall have been previously
granted, adversely affect the rights conferred by such Option.
The Board may amend the terms of any Option at any time or from
time to time with the consent of the holder of such Option.
ARTICLE XIII
DURATION OF THE PLAN
No Option may be granted under the Plan more than
ten years after the earlier of the date that the Plan is
adopted by the Board or the date that the Plan is approved by
shareholders as provided in Article XIV. Options granted
before that date shall remain valid in accordance with their
terms.
ARTICLE XIV
EFFECTIVE DATE OF THE PLAN
Options may be granted under the Plan upon its
adoption by the Board; provided, however, that no Option will
be effective unless the Plan is approved by shareholders holding
a majority of the Company's outstanding voting stock, voting
either in person or by proxy at a duly held shareholders'
meeting within twelve months of such adoption.
The Plan was originally adopted by the Board in
January 1993, and duly approved by the shareholders of the
Company on May 26, 1993. The Board of Directors amended and
restated the Plan, subject to shareholder approval, on March
13, 1997.
____________________
Exhibit 5.(1)
WARSHAW BURSTEIN COHEN
SCHLESINGER & KUH, LLP
555 Fifth Avenue
New York, New York 10017
212-984-7700
October 30, 1997
ATS Money Systems, Inc.
25 Rockwood Place
Englewood, New Jersey 07631
Re: Registration Statement on Form S-8
Gentlemen:
You have requested our opinion, as securities
counsel for ATS Money Systems, Inc., a Nevada corporation (the
"Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement"), under the Securities
Act of 1933 (the "Act"), filed by the Company with the
Securities and Exchange Commission (the "Commission"). The
Registration Statement relates to the registration of 350,000
shares (the "Shares") of the Company's common stock, $.001 par
value per share, issuable (i) pursuant to the ATS Money Systems,
Inc. 1995 Director Stock Plan (the "Director Plan"), including
upon the exercise of options granted or to be granted under the
1995 Plan, and (ii) upon the exercise of options granted or to
be granted under the ATS Money Systems, Inc. Common Stock
Incentive Plan (the "Incentive Plan").
In the preparation of our opinion, we have examined
(1) the Certificate of Incorporation of the Company, as amended
to date, (2) the By-Laws of the Company, in effect on the date
hereof, (3) the records of corporate proceedings of the Company
as delivered to us by the executive officers of the Company, (4)
the Registration Statement, (5) the Director Plan, and (6) the
Incentive Plan. In our examinations, we have assumed the
genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to the
originals of all documents submitted to us as certified,
photostatic or conformed copies, and the authenticity of the
originals of all such latter documents.
Based upon the foregoing, we are of the opinion
that the Shares, when issued in accordance with the terms of
the Directors Plan and the Incentive Plan, as the case may be,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of our opinion as
an exhibit to the Registration Statement. In so doing, we do
not admit that we are in the category of persons whose consent
is required under Section 7 of the Act or the rules and
regulations of the Commission promulgated thereunder.
Sincerely yours,
WARSHAW BURSTEIN COHEN
SCHLESINGER & KUH, LLP
AAK/IBS
EXHIBIT 23.(2)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of ATS Money Systems, Inc. on Form S-8 of our report dated March 21, 1997
appearing in the Annual Report on Form 10-KSB of ATS Money Systems, Inc. for
the year ended December 31, 1996.
Deloitte & Touche LLP
Parsippany, New Jersey
October 30, 1997
