As filed with the Securities and Exchange
Commission on
July 18, 1994
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
KOGER EQUITY, INC.
(Exact name of issuer as specified in its charter)
FLORIDA 59-2898045
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3986 BOULEVARD CENTER DRIVE, JACKSONVILLE, FLORIDA 32207
(Address of principal executive office)
____________________
KOGER EQUITY, INC. 1988 STOCK OPTION PLAN
KOGER EQUITY, INC. 1993 STOCK OPTION PLAN
(Full title of the Plans)
____________________
VICTOR A. HUGHES, JR. W. LAWRENCE JENKINS
Senior Vice President and Secretary
Chief Financial Officer KOGER EQUITY, INC.
KOGER EQUITY, INC. 3986 Boulevard Center Drive
3986 Boulevard Center Drive Jacksonville, Florida 32207
Jacksonville, Florida 32207 904/398-3403
904/398-3403
(Name, address and telephone number, including area code of
agents for service)
Copies to:
HAROLD F. McCART, Jr., ESQUIRE
Boling & McCart
(a professional association)
Suite 700, 76 South Laura Street
Jacksonville, Florida 32202
____________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
Common
Stock, Par
Value $.01 286,250(1) $5.125(1) $1,467,031(1) $ 505.88(1)
Per Share
Table continued on following page.
<PAGE>
Common
Stock, Par
Value $.01 973,282(1) $7.625(1) $7,421,275(1) $2,559.06(1)
Per Share
Common
Stock, Par
Value $.01 240,468(2) $9.25(2) $2,224,329(2) $ 767.01(2)
Per Share
Total . . . $3,831.95
(1) Pursuant to Rule 457(h), based on the exercise price of the
options granted under the Registrant's 1988 and 1993 Stock
Option Plan.
(2) Pursuant to Rule 457(c) based on $9.25 (the average of the high
and low prices of the shares reported for July 12, 1994 by the
American Stock Exchange) for shares issuable pursuant to options
to be granted under these Plans.
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The documents containing the information specified in this
Part I will be sent or given to the employees of Koger Equity,
Inc. (the "Company") and its affiliates who are granted options
to purchase shares pursuant to the Koger Equity, Inc. 1988 and
1993 Stock Option Plans as specified by Rule 428I(b)(1) as
promulgated under the Securities Act of 1933, as amended.
Such documents will include information required by Items 1
and 2 to Form S-8. Pursuant to instructions in Part I of Form S-
8, such documents are not filed with the Commission. These
documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form
S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933, as
amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are incorporated herein by
reference as of their respective dates:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993, filed pursuant to Section
13 of the Exchange Act (File No. 1-9997).
(2) The Company's Quarterly Report on Form 10-Q for the
period ended March 31, 1994, filed pursuant to Section
13 of the Exchange Act (File No. 1-9997).
(3) The Company's definitive proxy statement, dated April
8, 1994, filed pursuant to Section 14 of the Exchange
Act (File No. 1-9997) relating to its Annual Meeting of
Shareholders held on May 10, 1994.
(4) Description of the shares of Common Stock contained in
the Company's registration statement filed pursuant to
Section 12(b) of the Exchange Act and any amendment
thereto or reports filed for the purpose of updating
such description (File No. 1-9997).
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to
the filing of a post-effective amendment indicating that all
securities offered 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. Any statement contained in a
document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that such a
statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement as 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.
The Company's Articles of Incorporation provide that the
Company shall indemnify its officers and directors to the fullest
extent permitted by the General Corporation Law of the State of
Florida as now or hereafter in force, including the advance of
expenses and reasonable counsel fees.
Section 93 of the Florida Business Corporation Act (Florida
Statutes Section 607.0850) provides that a director, officer,
agent and employee of a corporation or its subsidiaries or other
affiliates may be indemnified under certain conditions by the
corporation against expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or
settlement of an action, suit or proceeding, whether civil,
criminal, administrative or investigative, to which he becomes a
party because he was such director, officer, agent or employee,
including expenses reasonably incurred in settlement of any of
the aforesaid matters, if the board of directors by a majority
vote of a quorum consisting of directors who were not parties to
the proceeding determine that the person seeking indemnification
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation.
Section 607.0850 also provides that the indemnification
provided pursuant to above provisions is not exclusive, and a
corporation may make any other further indemnification of any of
its directors, officers, employees, or agents, under any by-laws,
agreements, vote of shareholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. However,
indemnification shall not be made to or on behalf of any
director, officer, employee, or agent if a judgment or other
final adjudication establishes that his actions, or omissions to
act, were material to the cause of action so adjudicated and
constitute:
(a) A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to
believe his conduct was lawful or had no reasonable
cause to believe his conduct was unlawful;
(b) A transaction from which the director, officer,
employee or agent derived an improper personal benefit;
(c) In the case of a director, a circumstance under which
certain liability provisions relating to the payment of
dividends and asset distributions are applicable; or
(d) Willful misconduct or a conscious disregard for the
best interests of the corporation in a proceeding by or
in the right of the corporation to procure a judgment
in its favor or in a proceeding by or in the right of a
shareholder.
In addition, the Company carries directors and officers
liability insurance.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits
Exhibit Number Description
4(a) Amended and Restated Articles of Incorporation.
Incorporated by reference to Exhibit 3 of the
Report on Form 8-K, dated May 10, 1994, filed
by the Registrant (File No. 1-9997).
4(b) Koger Equity, Inc. By Laws, as Amended and
Restated on May 5, 1992. Incorporated by
reference to Exhibit 3 of the Form 10-Q filed
by the Registrant for the quarter ended March
31, 1992 (File No. 1-9997).
4(c) Common Stock Certificate of Koger Equity, Inc.
See Exhibit 4(a) to Registration Statement on
Form S-11 (Registration No. 33-22890) which
Exhibit is herein incorporated by reference.
4(d)(1)(A) Koger Equity, Inc. Rights Agreement (the
"Rights Agreement") dated as of September 30,
1990 between the Company and Wachovia Bank and
Trust Company, N.A. as Rights Agent
("Wachovia"). See Exhibit 1 to a Registration
Statement on Form 8-A, dated October 3, 1990,
(File No. 1-9997) which Exhibit is herein
incorporated by reference.
4(d)(1)(B) First Amendment to the Rights Agreement, dated
as of March 22, 1993, between the Company and
First Union National Bank of North Carolina, as
Rights Agent ("First Union"), entered into for
purpose of replacing Wachovia. Incorporated by
reference to Exhibit 4(b)(4) of the Form 10-Q
filed by the Registrant for the quarter ended
March 31, 1993 (File No. 1-9997).
4(d)(1)(C) Second Amendment to the Rights Agreement, dated
as of December 21, 1993, between the Company
and First Union. See Exhibit 5 to an Amendment
on Form 8-A/A to a Registration Statement on
Form 8-A, dated December 21, 1993, (File No. 1-
9997) which Exhibit is herein incorporated by
reference.
4(d)(2) Form of Common Stock Purchase Rights
Certificate (attached as Exhibit A to the
Rights Agreement). Pursuant to the Rights
Agreement, printed Common Stock Purchase Rights
Certificates will not be mailed until the
Distribution Date (as defined in the Rights
Agreement).
4(d)(3) Summary of Common Stock Purchase Rights
(attached as Exhibit B to the Rights
Agreement).
5 Opinion of Boling & McCart.*
15 Letter Re: Unaudited Interim Financial Information.*
23(a) The consent of Deloitte & Touche, independent
public accountant to the Registrant (See page
9).*
23(b) The Consent of Boling & McCart (See Exhibit 5
hereof).*
25 Powers of Attorney (See signature page
hereof).*
28(a) Amended and Restated Koger Equity, Inc. 1988
Stock Option Plan*
28(b) Koger Equity, Inc. 1993 Stock Option Plan
See Exhibit II to Registrant's Proxy Statement
dated June 30, 1993 (File No. 1-9997) which is
incorporated herein by reference.
*Filed with this report.
<PAGE>
Item 9. Undertakings.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors and officers
and controlling persons of the Company pursuant to the provisions
referred to in Item 6 of this Registration Statement or
otherwise, the Company has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim against the Company for
indemnification against such liability (other than the payment by
the Company of expenses incurred or paid by a director or officer
of the Company in the successful defense of any action, suit or
proceeding) is asserted by a director or officer or controlling
person in connection with the securities being registered, the
Company 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 of whether or not such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
and
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement; provided, however, that the registrant need
not file a post-effective amendment to include the
information required to be included by subsection (i)
or (ii) if the information is contained in periodic
reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934
which are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining any liability
under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(5) The undersigned registrant hereby undertakes to
deliver or cause to be delivered with the prospectus to each
employee to whom the prospectus is sent or given a copy of
the registrant's annual report to stockholders for its last
fiscal year, unless such employee otherwise has received a
copy of such report, in which case the registrant shall
state in the prospectus that it will promptly furnish,
without charge, a copy of such report on written request of
the employee. If the last fiscal year of the registrant has
ended within 120 days prior to the use of the prospectus,
the annual report of the registrant for the preceding fiscal
year may be so delivered, but within such 120 day period the
annual report for the last fiscal year will be furnished to
each such employee.
(6) The undersigned registrant hereby undertakes to
transmit or cause to be transmitted to all employees
participating in the plan who do not otherwise receive such
material as stockholders of the registrant, at the time and
in the manner such material is sent to its stockholders,
copies of all reports, proxy statements and other
communications distributed to its stockholders generally.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of
Jacksonville, State of Florida, the 13 day of July, 1994.
KOGER EQUITY, INC.
By:
IRVIN H. DAVIS
Irvin H. Davis
President and Director
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Each person whose signature appears below hereby authorized S. D.
Stoneburner, Irvin H. Davis and Victor A. Hughes, Jr., and each
of them, as Attorneys-in-Fact, to sign on his behalf individually
and in each capacity stated below, and to file any amendments,
including Post Effective Amendments, to this Registration
Statement.
Signature Title Date
S. D. STONEBURNER Chairman of the Board of
(S. D. Stoneburner) Directors and Director
IRVIN H. DAVIS President and Director
(Irvin H. Davis) (Chief Executive Officer)
VICTOR A. HUGHES, JR. Senior Vice President and
(Victor A. Hughes, Jr.) Director (Chief Financial
Officer)
JAMES L. STEPHENS Treasurer (Chief Accounting
(James L. Stephens) Officer) July 13, 1994
D. PIKE ALOIAN Director
(D. Pike Aloian)
BENHAMIN C. BISHOP, JR. Director
(Benjamin C. Bishop, Jr.)
CHARLES E. COMMANDER, III Director
(Charles E. Commander, III)
DAVID B. HILEY Director
(David B. Hiley)
G. CHRISTIAN LANTZSCH Director
(G. Christian Lantzsch)
THOMAS J. SMITH, JR. Director
(Thomas K. Smith, Jr.)
GEORGE F. STAUDTER Director
(George F. Staudter)
Exhibit 5
July 13, 1994
Board of Directors
Koger Equity, Inc.
3986 Boulevard Center Drive
Jacksonville, FL 32207
Re: Koger Equity, Inc.
1988 and 1993 Stock Option Plans
Registration Statement on Form S-8
Dear Sirs:
We have acted as counsel for Koger Equity, Inc., a Florida
corporation (the "Company"), in connection with the preparation
and filing with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, of the above-captioned
Registration Statement (the "Registration Statement") for the
purpose of registering 1,500,000 shares of the Company's commons
stock, par value $.01 per share (the "Shares"), issuable upon the
exercise of stock options by key employees of the Company
pursuant to its 1988 Stock Option Plan and its 1993 Stock Option
Plan (the "Option Plans").
In so acting as such counsel, we have examined and relied upon
the originals or copies, certified or otherwise identified to our
satisfaction, of such Company records, documents, certificates,
and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below.
Based upon the foregoing, and such examination of law as we have
deemed necessary, we are of the opinion that:
1. The Company has been incorporated and is existing as a
corporation and its status is active under the laws of the State
of Florida.
2. The Shares have been authorized and, when issued and sold as
contemplated in the Registration Statement, and in accordance
with the terms of the Option Plans which are Exhibits 28(a) and
28(b) to the Registration Statement, will be validly issued,
fully paid and non-assessable.
We consent to the use of this letter as an Exhibit to the
Registration Statement.
Very truly yours,
Boling & McCart
Exhibit 15
July 13, 1994
Koger Equity, Inc.
Jacksonville, Florida
We have made a review, in accordance with standards established
by the American Institute of Certified Public Accountants, of the
unaudited interim financial information of Koger Equity, Inc.
and Subsidiaries for the periods ended March 31, 1994 and 1993,
as indicated in our report dated May 6, 1994 which includes an
explanatory paragraph relating to uncertainties pertaining to
pending litigation and an indemnity agreement with certain former
directors of Koger Properties, Inc.; because we did not perform
an audit, we expressed no opinion on that information.
We are aware that our report referred to above, which was
included in your Quarterly Report on Form 10-Q for the
quarter ended March 31, 1994, is being used in this Registration
Statement.
We also are aware that the aforementioned report, pursuant
to Rule 436(c) under the Securities Act of 1933, is not
considered a part of the Registration Statement prepared or
certified by an accountant or a report prepared or certified by an
accountant within the meaning of Section 7 and 11 of that Act.
DELOITTE & TOUCHE
Exhibit 23(a)
INDEPENDENT AUDITOR'S CONSENT
Koger Equity, Inc.
We hereby consent to the incorporation by reference in this
Registration Statement of Koger Equity, Inc. on Form S-8 of our
report, dated March 4, 1994, which expresses an unqualified opinion
and includes an explanatory paragraph relating to uncertainties
pertaining to pending litigation and an indemnity agreement
with certain former directors of Koger Properties, Inc.;
appearing in the Annual Report on Form 10-K of Koger Equity, Inc.
for the year ended December 31, 1993.
DELOITTE & TOUCHE
Jacksonville, Florida
July 13, 1994
Exhibit 28(2)
01/27/94
AMENDED AND RESTATED
KOGER EQUITY, INC.
1988 Stock Option Plan
1. PURPOSE
Koger Equity, Inc. 1988 Stock Option Plan (the "Plan") is hereby
amended and restated this 5th day of February, 1992, in
accordance with Section 7 of the Plan having been, adopted by the
Board of Directors and shareholders of Koger Equity, Inc., (the
"Company"), a Florida corporation, on the 15th day of August,
1988. The purpose of this Plan is to provide an incentive to
persons of ability to use their best efforts to promote the
interests of the Company by granting stock options to certain key
employees of the Company and its subsidiaries who will have an
opportunity to participate in the increased value of the Company
which their efforts, initiative, and skill will help to produce.
The stock options granted under this Plan are not intended to
qualify as incentive stock options within the meaning of Section
422A of the Internal Revenue Code of 1986, as amended (the
"Code"), and accordingly shall not be treated as such.
2. ADMINISTRATION
(a) The Plan shall be administered by the Executive Compensation
Committee (the "Company Committee") of the Board of Directors of
the Company (the "Company Board") as such Company Committee may
be constituted from time to time. The Company Committee shall
consist of at least two (2) members of the Company Board selected
by the Company Board, all of whom shall be Disinterested Persons.
A Disinterested Person for the purposes of the Plan shall be
defined to mean one who is not at the time he exercises
discretion in administering the Plan or at any time within one
(1) year prior thereto eligible for participation or
participating in the Plan or any other plan of the Company which
would entitle him to acquire stock, stock options or stock
appreciation rights of the Company or any of its subsidiaries.
(b) A majority of the members of the Company Committee shall
determine those employees of the Company who shall be granted
stock options under the Plan.
(c) A majority of the members of the Company Committee shall
constitute a quorum. All determinations of the Company Committee
shall be made by a majority of its members. Any decision or
determination reduced to writing and signed by all of the members
of the Company Committee shall be fully effective as if it has
been made by a majority voice at a meeting duly called and held.
(d) Subject to the express provisions of the Plan, the Company
Committee shall have complete authority to interpret the Plan, to
grant stock options (the "Options") (which term shall be deemed to
include stock appreciation rights with respect to the shares of
stock subject to this Plan, as set forth in Section 3 hereof as
exercisable in accordance with Section 5(b)(iv) and (v) hereof)
under the Plan, to prescribe, amend and rescind rules and
regulations relating to the Plan, to make all other
determinations necessary or advisable for the administration of
the Plan and to discontinue the Plan. The transactions
contemplated by the Plan are intended to qualify for the
exemption provided in Rule 16b-3 as promulgated under the
Securities and Exchange Act of 1934, as amended. The Company
Committee may from time to time make amendments to the Plan as
it, in its sole discretion, determines are necessary in order to
preserve such exemption under such rule or other similar rule
which might be in effect. The determinations of the Company
Committee on the matters referred to in this Section 2 shall be
final, binding, and conclusive.
3. ELIGIBLE PARTICIPANTS AND SHARES SUBJECT TO PLAN
Options may be granted by the Company, by action of the Company
Committee, from time to time to certain key employees of the
Company and its affiliates (the "Participants") to purchase an
aggregate of S00,000 shares of common stock ($.01 par value) of
the Company (the "Common Stock"), and such amount of shares shall
be reserved for Options granted under the Plan (subject to
adjustment as provided in Section 5(e)).
Upon the expiration or terminations of any Option granted under
the Plan which has not been fully exercised, the number of shares
subject to such Option which have not been exercised shall become
available for future grant under the Plan, except that if an
Option is terminated as a result of the exercise of rights
granted pursuant to Section 5(b)(iv) or Section 5(b)(v) hereof,
the underlying shares shall not again become so available. The
shares of Common Stock issued upon exercise of Options granted
under the Plan shall be authorized and unissued shares or
previously issued shares reacquired and held by the Company.
4. GRANT OF OPTIONS
Subject to the provisions of the Plan, the Company Committee
shall: (a) determine and designate from time to time those
Participants to which Options are to be granted, (b) determine
the number of shares of Common Stock subject to each Option, (c)
determine the time when and the manner in which each Option shall
be exercisable, and (d) if the shares of Common Stock issued upon
the exercise of each Option are not registered under the
Securities Act of 1933, as amended, determine the time when
Common Stock issued by the Company pursuant to the exercise of an
Option may be sold by the Participant; provided, however, no
Option shall be granted after the expiration of ten (10) years
from the effective date of the Plan specified in Section 8 below.
5. TERMS AND CONDITIONS OF OPTIONS
Each Option granted under the Plan shall be evidenced by a
written agreement, in a form approved by the Company Committee.
Such agreement shall specify the number of shares of Common Stock
subject to the Option an shall be subject to the following
express terms and conditions and to such other terms and
conditions as the Company Committee may deem appropriate:
(a) Option Price
The Option price per share of the Common Stock of the Company
shall be determined by the Company Committee at the time the
Option is granted; provided, however, in no event
shall such Option price per share be less than 100 of the fair
market value of one share of Common Stock on the date of the
grant of the Options. The term "fair market value" shall mean the
closing price at which shares of Common Stock of the Company
shall have been traded as reported by the American Stock Exchange
composite transaction listing (or other standard daily index or
trading on such exchange) or, if the Common Stock of the Company
is not so listed, any other stock exchange on which the Company's
share are tradable on the date of grant of such Option. In the
event that any Option shall be granted on a date on which there
were no such sales of such stock on such exchange, the fair
market value of such stock on such date shall be determined by
the Company Committee. Unless the Company Committee shall by
resolution otherwise expressly provide, the date upon which the
Company Committee acts to grant an Option for all purposes of
this Plan, shall be deemed the date on which such Option is
granted. From and after such date the Participant to who such
Option is granted shall have all rights of an Option holder as
provided in this Plan, without regard to the date upon which a
formal written agreement evidencing the grant shall be executed
and delivered.
(b) Exercise of Option: Payment of Purchase Price Upon Exercise.
(i) An option granted under the Plan shall not be exercised prior
to six (6) months after the Date of Grant and thereafter shall be
exercisable, in whole or in part in accordance with the terms of
the Option. Subject to Section 5(e) below, the Option shall
terminate seven (7) years after the date of grant, or such
earlier date as provided in the Plan.
(ii) In the event a Participant dies or becomes totally disabled,
at any time after having been granted an Option, the Options
granted to the Participant shall immediately become fully
exercisable by the Participant's estate or heirs in the case of
death for the time period specified in Section 5(d)(i)(B) below
of this Agreement and by the Participant or the Participant's
legal guardian in the case of total disability for the time
period specified in Section 5(b)(i) above.
(iii) A Participant shall exercise an Option by written notice to
the Company, which notice shall specify the number of shares to
be purchased and the date of exercise (the "Date of Exercise"),
which shall be not more than seven (7) days after the date of the
mailing of such notice. On or before the Date of Exercise, the
Participant shall deliver to the Company, at the office
designated in the stock option agreement, a certified or
cashier's check, cash or Common Stock previously acquired and
currently owned by the Participant having a total fair market
value, as determined as aforesaid, by the Company Committee,
equal to the Option price for such shares, or in combination of
cash and Common Stock having a total fair market value equal to
the option price for such shares. The Participant shall have no
rights in the optioned stock until such payment is made. In the
event of any failure to pay for the number of shares specified in
the notice of election by a certified or cashier's check, cash,
previously acquired shares or a combination of previously
acquired shares and cash, the Option shall become inoperative and
lapse as to such number of shares, but shall continue with
respect to any remaining shares subject to the Option as to which
exercise has not yet been made.
(iv) Alternatively, by written notice the Participant may elect
to exercise the Option by receiving the number of shares
represented by the difference between the aggregate fair market
value of the shares exercised on the Date of Exercise by the
Participant and the aggregate exercise price of such shares,
divided by the fair market value of the Company's Common Stock on
the Date of Exercise.
(v) Alternatively, by written notice a Participant may elect to
exercise the Option on the Date of Exercise in part by receiving
for such Participant's benefit cash equal to the minimum amount
required to be withheld for payroll tax purposes as described in
Section 5(g) below and the balance by receiving shares in the
manner prescribed in Section 5(b)(iii) above. The Company Committee
shall have sole discretion to consent to or disapprove any election
of a Participant pursuant to this Section 5(b)(v), provided that the
Company Committee shall, in the exercise of such discretion, be
subject to such limitations as may be imposed on the administrators
of a plan by Rule 16b3, as amended and adopted by the Securities and
Exchange Commission under Section 16(b) of the Securities Exchange Act
of 1934 as in effect on the date hereof, and as the same may be
hereafter further amended, as a condition to the exemption from
the operation of Section 16(b) of transactions substantially
identical to that permitted by this Section 5(b)(v). Neither the
Company Committee nor the Company shall be under any liability to
any person by reason of the Company Committee's disapproval of
such election.
(vi) Within fifteen (15) days after the Date of Exercise, the
Company shall deliver, or cause to be delivered to the
Participant stock certificate(s) for the number of shares of
Common Stock with respect to which the Option is being exercised,
if the Company has received the certification described in
Section 5(f) below. Delivery of the shares may be made at the
office of the Company or at the offices of a transfer agent
appointed for the transfer of the shares of Common Stock of the
Company, as the Company shall determine. Shares shall be
registered in the name of the Participant. A Participant shall
not have any of the rights of a stockholder until the shares are
issued as herein provided.
Anything herein to the contrary notwithstanding, if any law or
any regulation of the Securities and Exchange Commission or of
any other body having jurisdiction shall require the Company or
the Participant to take any action in connection with the shares
specified in a notice of election before such shares can be
delivered to such Participant, then the date stated therein for
the delivery of the shares shall be postponed until the fifth
business day next following the completion of such action.
(c) Nontransferability of Option
An Option shall not be assigned, pledged, or hypothecated in any
way, shall not be subject to execution and shall not be
transferable by a Participant other than by will or by the laws
of descent and distribution.
(d) Termination of OPtions
(i) Exercise in the Event of Termination of Employment with the
Company or with one of its subsidiaries.
(A) In the event of termination of the employment of the
Participant for any cause, other than death, retirement or total
disability of the Participant, whether by reason of resignation
or discharge, this Option shall terminate immediately; provided,
however, with the consent of the Committee, which shall be a
matter of its sole discretion, such Participant (if the
Participant shall voluntarily terminate the Participant's
employment with the Company) may, within the ninety (90) days
immediately following such voluntary termination of employment
and subject to the provisions of Section 5(d) above, exercise any
unexercised Option which could have been exercised on the date of
such voluntary termination.
(B) This Option shall terminate twelve months from the date of
the Participant's death, provided the Participant at the time of
his death was in the employ of the Company or retired from such
employment, either as the result of age or total disability, as
determined by the Company's employee policy manual,
(notwithstanding Section 5(b) above). In such event, the
Participant's personal representative(s) may exercise any
unexercised Option which the Participant held at the time of the
Participant's death, provided that such exercise must be
accomplished prior to the expiration of such Option as provided
by Section 5(b) above and within said twelve-month period after
the Participant's death.
(C) Retirement, either as the result of age or total disability
as determined in accordance with the Company's employee policy
manual, shall not cause an early termination of an Option.
(ii) Exercise in the event of the termination of services by the
Company or by one of its subsidiaries.
If one of the employees' services to the Company or one of its
subsidiaries is terminated, any such employees who hold
outstanding options granted under this Plan shall have the right,
during the period ending thirty (30) days after such termination
to exercise any such Option which could have been exercised on
the date of such termination. Following such thirty (30) day
period, any option held by any employee of the Company or one of
its subsidiaries who is not then an employee of the Company or
one of its subsidiaries shall terminate.
(e) Recapitalization and Reorganization
(i) If any change is made in the stock subject to this Plan by
reason of stock dividends, stock split-up, reverse stock split,
or other recapitalization or reclassification of the Company's
Common Stock, appropriate action consistent with such change
shall be taken by the Company Committee as to the number of
shares and price per share of the stock subject to this Plan or
to any Option granted hereunder in order to prevent substantial
dilution or enlargement of the rights granted to, or available
for, Participants in the Plan.
(ii) In the case of a reorganization, consolidation, spinoff,
merger or other similar corporate transaction affecting the
Common Stock of the Company, the Company and the spun-off
corporation or the surviving corporation, as the case may be,
shall assume without cost to any Participant all Options
outstanding under this Plan or issue equivalent new Options based
upon consideration distributed in the transaction to shareholders
of the Company in respect of the Common Stock and the Company
Board shall take any appropriate action required to effectuate
the intent of this Section 5(e)(ii).
(iii) Notwithstanding the foregoing, all such Options may be
canceled by the Company as of the effective date of any such
reorganization, merger, consolidation or spin-off or of any
dissolution or liquidation of the Company by action of the
Company Committee, by giving notice to each Participant or his or
her personal representatives(s) or legal guardian(s) of its
intention to do so and by permitting, during the thirty (30) day
period next preceding the effective date of any such event, the
exercise in whole or in part of each Option outstanding under the
Plan, without regard to any installment provisions hereof, but
subject to any other limitation on the exercise of such Option in
effect on the Date of Exercise. Appropriate action shall be taken
by the Company Committee as to the number of shares and price per
share of the Stock subject to this Plan or to any Option granted
hereunder in order to prevent substantial dilution or enlargement
or the rights granted to, or available for, Participants in the
Plan.
(iv) The Company Committee may make such additional adjustments
in the price and number of shares subject to Options as it deems
appropriate to prevent dilution on account of any issuance of shares
of the Company's Common Stock in a merger or similar corporate transaction.
(f) Securities Registration
Prior to the delivery of a certificate(s) representing the shares
specified on any notice of election to exercise any Option, the
Participant or the Participant's personal representative(s) or
legal guardian(s) shall certify to the Company in such, form as it
shall require that such Participant or personal representative(s)
or legal guardian(s) will receive and hold such shares for
investment and not with a view to resale or distribution thereof
to the public, if in the opinion of the counsel of the Company
such certification is necessary or desirable to comply with
Federal and/or state securities laws.
The Company shall not be required, upon the exercise of any
Option, to issue or deliver any shares of stock prior to (a) the
authorization of such shares for listing on any stock exchange on
which the Company's Common Stock may then be listed, and (b) the
completion of such registration or other qualification as the
Company shall determine to be necessary or desirable. The Company
may at any time prepare and file, at its own expense and without
the consent of any Participant, a registration statement under
the Securities Act of 1933, as amended, or any similar or
superseding statute or statutes as then in effect, with respect
to all or any shares reserved for or transferred under this Plan,
either separately or together with other Common Stock or
securities of the Company. In such event, any Participant or
personal representative(s) or legal guardian(s) who shall have
given the certification referred to in the first sentence of this
Section shall be determined to be released therefrom upon the
effective date of such registration statement. Nothing in this
Plan shall give any Participant the right to request the Company
to prepare of file such a registration statement at any time.
(g) Withholding
With respect to any amount, a Participant must recognize as
compensation for income tax purposes in connection with the
exercise of an Option, the Company or its subsidiary, as the case
may be, will file the necessary payroll tax returns to
governmental agencies, to remit timely to such agencies the
necessary minimum payroll taxes and employee withholding taxes,
and to file timely the required calendar year-end payroll
information returns to the applicable governmental agencies and
the Participant. The Participant must agree to provide the
Company in a timely manner the funds necessary to meet the
minimum withholding requirements (including FICA and Federal,
state or local income taxes or other taxes with respect to the
Option) of the applicable governmental agencies at the time(s)
such taxes must be paid, as determined by the Company.
(h) No Rights to Continued Employment
The Plan and any Option granted under the Plan shall not confer
upon any Participant the right to continue in the employ of the
Company of any of its subsidiaries solely by reason of the grant,
acceptance or exercise of an Option nor shall it interfere in any
way with the right of the Company or any of its subsidiaries to
terminate the Participant's employment at any time.
(i) Stockholder's Rights
No Participant shall have any rights of a stockholder by virtue
of the grant of an Option except with respect to shares actually
issued to him and the issuance of shares shall confer no
retroactive right to dividends or other distributions.
6. COMPLIANCE WITH OTHER LAWS AND REGULATIONS
The Plan, the grant and exercise of Options thereunder and the
obligation of the Company to sell and deliver shares under such
Options, shall be subject to all applicable Federal and state
laws, rules and regulations and to such approvals by any
government, regulatory agency or stock exchange as may be
required.
7. AMENDMENT OR TERMINATION OF THE PLAN
The Company Committee may amend, suspend, or terminate this Plan
at any time, provided however, that no unexercised Option granted
under this Plan may be altered or canceled, except in accordance
with its terms or as provided herein, without the written consent
of the Participant to whom such Option was granted, and provided
further that no amendment may change (except as provided in
Section 5(e) above) the aggregate number of shares of Option
price per share with respect to shares which may be issued under
the Plan or the Participants eligible to reeive Options as
provided in the Plan. No amendment of this Plan shall be
effective without shareholder approval of such amendment if such
approval is required by Rule 16b-3.
8. EFFECTIVE DATE
The Plan became effective upon approval thereof by the Board of
Directors of the Company and the affirmative vote of the holders
of a majority of the outstanding shares of Common Stock of the
Company, which approvals occurred on the 15th day of August,
1988.
9. TERM
No Option shall be granted hereunder after the expiration of ten
(10) years from the effective date of the Plan.
