As filed with the Securities and Exchange Commission on December 5, 1995
Registration No. 33-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
THE SOFTWARE DEVELOPER'S COMPANY, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-2911320
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
90 Industrial Park Road, Hingham, Massachusetts 02043
(Address of principal executive offices) (Zip Code)
1994 STOCK PLAN
(Full title of the plans)
--------------------------
BARRY N. BYCOFF
President and Chief Executive Officer
THE SOFTWARE DEVELOPER'S COMPANY, INC.
90 Industrial Park Road
Hingham, Massachusetts 02043
(617) 740-0101
(Name, address including zip code and telephone number,
including area code, of agent for service)
--------------------------
Copy to:
JOHN HESSION, ESQ.
Testa, Hurwitz & Thibeault
High Street Tower
125 High Street
Boston, MA 02110
(617) 248-7000
================================================================================
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Title of Amount Maximum Proposed
Securities to be Offering Maximum Amount of
to be Registered Price Per Aggregate Registration
Registered Share Price Fee
- ------------------------------ ----------------------- ----------------- ------------------------- -------------------
<S> <C> <C> <C> <C>
1994 Stock Plan Common
Stock, 775,190 shares $1.284(1) $995,485.00(1) $343.27
(Par Value $.01) 724,810 shares $2.688(2) $1,947,926.88(2) $671.70
Total: 1,500,000 shares $1,014.97
=========
</TABLE>
================================================================================
(1) Such shares are issuable upon exercise of outstanding options with
fixed exercise prices. Pursuant to Rule 457(h), the aggregate offering
price and the fee have been computed upon the basis of the price at
which the options may be exercised. The offering price per share set
forth for such shares is the weighted average exercise price per share
at which such options are exercisable.
(2) The price of $2.688 per share, which is the average of the high and low
prices reported on the Nasdaq SmallCap Market on November 30, 1995, is
set forth solely for purposes of calculating the filing fee pursuant to
Rule 457(c) and is used only for those shares without a fixed exercise
price.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in this Item 1 will be
sent or given to employees, directors or others as specified by Rule 428(b)(1).
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions to Form S-8, such documents
are not being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in this Item 2 will be
sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1995 (the "Annual Report"), incorporating
audited financial statements for the fiscal year ended March
31, 1995. The audited financial statements included in the
Annual Report were examined and reported on by Coopers &
Lybrand, L.L.P., independent certified public accountants.
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1995.
(c) The Company's Current Report on Form 8-K filed on November 16,
1995.
(d) The section entitled "Description of Registrant's Securities
to be Registered": contained in the Registrant's Registration
Statement No. 33-24446-B on Form
<PAGE>
S-18, and incorporating by reference the information contained
in the Registrant's Final Prospectus dated January 19, 1989,
filed under Section 424(b) under the Securities Exchange Act
of 1933, as amended.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereby will be passed
upon for the Registrant by Testa, Hurwitz & Thibeault, Boston, Massachusetts.
Mr. John Hession, an attorney with Testa, Hurwitz & Thibeault, and an Assistant
Secretary of the Registrant, owns a total of 2,000 shares of Common Stock of the
Registrant.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law and the Registrant's Restated
Certificate of Incorporation and Amended By-Laws provide for indemnification of
the Registrant's directors and officers for liabilities and expenses that they
may incur in such capacities. In general, directors and officers are indemnified
with respect to actions taken in good faith in a manner reasonably believed to
be in, or not opposed to, the best interests of the Registrant, and with respect
to any criminal action or proceeding, actions that the indemnitee had no
reasonable cause to believe were unlawful. Reference is made to the Registrant's
Restated Certificate of Incorporation, as amended, filed as Exhibit 3.01 to the
Registrant's Registration Statement on Form S-18 (File No. 33-24446-B) and
incorporated by reference and the Registrant's Amended By-Laws filed as Exhibit
3.03 to the Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 1991, and incorporated by reference.
The Registrant maintains directors and officers liability insurance for the
benefit of its directors and certain of its officers.
Item 7. Exemption From Registration Claimed.
Not applicable.
<PAGE>
Item 8. Exhibits
Exhibit No. Description of Exhibit
Exhibit 4.1 Specimen certificate for shares of Common Stock
of the Registrant (filed as Exhibit 4.01 to
Registrant's Registration Statement on Form S-18
(File No. 33-24446-B) and incorporated by
reference).
Exhibit 4.2 Restated Certificate of Incorporation, as amended,
of the Registrant (filed as Exhibit 3.01 to
Registrant's Registration Statement on Form S-18
(File No. 33-24446-B) and incorporated by
reference).
Exhibit 4.3 Amended By-laws of the Registrant (filed as
Exhibit 3.03 to Annual Report on Form 10-K for the
fiscal year ended March 31, 1991, and incorporated
by reference).
Exhibit 4.4 Certificate of Designations, Preferences and Rights
of the Series C Preferred Stock of the Registrant
(filed as Exhibit 7.03 to Report on Form 8-K filed
on November 12, 1993 and incorporated by reference).
Exhibit 4.8 1994 Stock Plan (filed as Exhibit 10.13 to
Annual Report on Form 10-K for the fiscal year ended
March 31, 1994 and incorporated by reference).
Exhibit 4.9 Form of Non-Qualified Stock Option Agreement under
the 1994 Stock Option Plan of the Registrant (filed
herewith).
Exhibit 4.10 Form of Incentive Stock Option Agreement under the
1994 Stock Option Plan of the Registrant (filed
herewith).
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault (filed
herewith).
Exhibit 23.1 Consent of Coopers & Lybrand, L.L.P. (filed
herewith).
Exhibit 23.3 Consent of Testa, Hurwitz & Thibeault (included in
Exhibit 5.1).
Exhibi 24.1 Power of Attorney (included as part of the
signature page to this Registration Statement).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
<PAGE>
(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;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the
information required to be included in a
post-effective amendment by those paragraphs
is contained in periodic reports filed by
the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
provisions described in Item 6, 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 of 1933 and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses
<PAGE>
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 questions
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
The Software Developer's Company, Inc., 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 Boston, State of
Massachusetts, on this 30th day of November, 1995.
THE SOFTWARE DEVELOPER'S COMPANY, INC.
By: /s/ Barry N. Bycoff
____________________
Barry N. Bycoff
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature
appears below constitutes and appoints, jointly and severally, Barry N. Bycoff
his attorney-in-fact, with the power of substitution, for him in any and all
capacities, to sign any amendments to this Registration Statement on Form S-8
(including post-effective amendments), and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange commission, hereby ratifying and confirming all that said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
<PAGE>
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.
<TABLE>
<CAPTION>
Signature Title(s) Date
<S> <C> <C>
/s/ Barry N. Bycoff President, Chief Executive November 30, 1995
Barry N. Bycoff Officer and Director
(Principal Executive Officer)
/s/ James O'Connor, Jr. Chief Financial Officer November 30, 1995
- --------------------------- (Principal Financial and Accounting
James O'Connor, Jr. Officer)
/s/ Aaron Kleiner Director November 30, 1995
Aaron Kleiner
/s/ Gustav H. Koven III Director November 30, 1995
- ---------------------------
Gustav H. Koven III
/s/ Michael L. Mark Director November 30, 1995
- ------------------------------------
Michael L. Mark
/s/ Milton J. Pappas Director November 30, 1995
- ------------------------------------
Milton J. Pappas
/s/ Robert B. Wagner Director November 30, 1995
- ------------------------------------
Ralph B. Wagner
/s/ Stephen L. Watson Director November 30, 1995
- ------------------------------------
Stephen L. Watson
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Description of Exhibit Numbered Page
- ------- ---------------------- -------------
<S> <C> <C>
Exhibit 4.1 Specimen certificate Specimen certificate for shares of Common Stock
of the Registrant (filed as Exhibit 4.01 to Registrant's
Registration Statement on Form S-18 (File No. 33-24446-B) and
incorporated by reference).
Exhibit 4.2 Restated Certificate of Incorporation, as amended, of the Registrant
(filed as Exhibit 3.01 to Registrant's Registration Statement on
Form S-18 (File No. 33-24446-B) and incorporated by reference).
Exhibit 4.3 Amended By-laws of the Registrant (filed as Exhibit 3.03 to Annual
Report on Form 10-K for the fiscal year ended March 31, 1991, and
incorporated by reference).
Exhibit 4.4 Certificate of Designations, Preferences and Rights of the Series C
Preferred Stock of the Registrant (filed as Exhibit 7.03 to Report on
Form 8-K filed on November 12, 1993 and incorporated by reference).
Exhibit 4.8 1994 Stock Plan (filed as Exhibit 10.13 to Annual Report on Form
10-K for the fiscal year ended March 31, 1994 and incorporated by
reference).
Exhibit 4.9 Form of Non-Qualified Stock Option Agreement under the 1994 Stock Option
Plan of the Registrant (filed herewith).
Exhibit 4.10 Form of Incentive Stock Option Agreement under the 1994 Stock Option
Plan of the Registrant (filed herewith).
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault (filed herewith).
<PAGE>
Exhibit 23.1 Consent of Coopers & Lybrand, L.L.P. (filed herewith).
Exhibit 23.3 Consent of Testa, Hurwitz & Thibeault (included in Exhibit 5.1).
Exhibit 24.1 Power of Attorney (included as part of the signature page to this
Registration Statement).
</TABLE>
Exhibit 4.9
THE SOFTWARE DEVELOPER'S COMPANY, INC.
Non-Qualified Stock Option Agreement
Under 1994 Stock Plan
THE SOFTWARE DEVELOPER'S COMPANY, INC., a Delaware corporation (the
"COMPANY"), hereby grants this ____ day of _________, 199_, to
_____________________ (the "OPTIONEE"), an option to purchase a maximum of
__________ shares (the "OPTION SHARES") of Common Stock, $.01 par value (the
"COMMON STOCK"), at the price of $____ per share, on the following terms and
conditions:
1. GRANT UNDER 1994 STOCK PLAN. This Option is granted pursuant to and is
governed by the Company's 1994 Stock Plan (the "Plan") and, unless the context
otherwise requires, terms used herein shall have the same meaning as in the
Plan. Determinations made in connection with this Option pursuant to the Plan
shall be governed by the Plan as it exists from time to time.
2. GRANT AS NON-QUALIFIED OPTION; OTHER OPTIONS. This Option is intended to
be a Non-Qualified Option (rather than an incentive stock option), and the Board
of Directors intends to take appropriate action, if necessary, to achieve this
result. This Option is in addition to any other options heretofore or hereafter
granted to the Optionee by the Company, but a duplicate original of this
instrument shall not affect the grant of another option.
3. EXPIRATION AND EXTENT OF OPTION. The Optionee may exercise this Option
for the number of Option Shares set opposite the applicable date:
Less than one year - -0- Option Shares
from [Start Date for Vesting]
One year but less than - 30% of the total
two years from [Start Date for Vesting] Option Shares
Two years but less than three - an additional 20% of
years from [Start Date for Vesting] the total Option
Shares
Three years but less than four - an additional 20% of
years from [Start Date for Vesting] the total Option
Shares
Four years but less than five - an additional 20% of
years from [Start Date for Vesting] the total Option
Shares
<PAGE>
More than five years from - an additional 10% of
[Start Date for Vesting] the total Option
Shares
The foregoing rights are cumulative and may be exercised up to and including the
date which is ten (10) years from the date this Option is granted by the
Optionee or, in the event of the death or disability of the Optionee, by the
Optionee's heirs, estate or legal representatives.
4. TERMINATION OF EMPLOYMENT. If the Optionee ceases to be employed by the
Company, other than by reason of death or disability as defined in Section 5, no
further installments of this Option shall become exercisable and this Option
shall terminate after the passage of ninety (90) days from the date employment
ceases, but in no event later than the scheduled expiration date. In such a
case, the Optionee's only rights hereunder shall be those which are properly
exercised before the termination of this Option.
5. DEATH; DISABILITY. If the Optionee dies while in the employ of the
Company, this Option may be exercised, to the extent of the number of Option
Shares with respect to which the Optionee could have exercised it on the date of
his death, by his estate, personal representative or beneficiary to whom this
Option has been assigned pursuant to Section 10, at any time within 180 days
after the date of death, but not later than the scheduled expiration date. If
the Optionee ceases to be employed by the Company by reason of his disability
(as defined in the Plan), this Option may be exercised, to the extent of the
number of Option Shares with respect to which he could have exercised it on the
date of the termination of his employment, at any time within 180 days after
such termination, but not later than the scheduled expiration date. At the
expiration of such 180-day period or the scheduled expiration date, whichever is
the earlier, this Option shall terminate and the only rights hereunder shall be
those as to which the Option was properly exercised before such termination.
6. PARTIAL EXERCISE. Exercise of this Option up to the extent above stated
may be made in part at any time and from time to time within the above limits,
except that this Option may not be exercised for a fraction of a share unless
such exercise is with respect to the final installment of stock subject to this
Option and a fractional share (or cash in lieu thereof) must be issued to permit
the Optionee to exercise completely such final installment. Any fractional share
with respect to which an installment of this Option cannot be exercised because
of the limitation contained in the preceding sentence shall remain subject to
this Option and shall be available for later purchase by the Optionee in
accordance with the terms hereof.
7. PAYMENT OF PRICE. The option exercise price is payable in United States
dollars and may be paid:
(a) in cash or by check, or any combination of the foregoing, equal
in amount to the option exercise price; or
<PAGE>
(b) in the discretion of the Board of Directors, in cash, by check, by
delivery of shares of the Company's Common Stock having a fair market value (as
determined by the Board of Directors) equal as of the date of exercise to the
option exercise price, or by any combination of the foregoing, equal in amount
to the option exercise price.
If the Optionee delivers shares of Common Stock held by the Optionee (the
"Old Stock") to the Company in full or partial payment of the option exercise
price, and the Old Stock so delivered is subject to restrictions or limitations
imposed by agreement between the Optionee and the Company, the Common Stock
received by the Optionee on the exercise of this Option shall be subject to all
restrictions and limitations applicable to the Old Stock to the extent that the
Optionee paid for such Common Stock by delivery of Old Stock, in addition to any
restrictions or limitations imposed by this Agreement.
8. AGREEMENT TO PURCHASE FOR INVESTMENT. By acceptance of this Option, the
Optionee agrees that a purchase of Option Shares under this Option will not be
made with a view to their distribution, as that term is used in the Securities
Act of 1933, as amended (the "Securities Act"), unless in the opinion of counsel
to the Company such distribution is in compliance with or exempt from the
registration and prospectus requirements of the Securities Act and applicable
state securities laws, and the Optionee agrees to sign a certificate to such
effect at the time of exercising this Option and agrees that the certificate for
the Option Shares so purchased may be inscribed with a legend to ensure
compliance with the Securities Act and applicable state securities laws.
9. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of this
Agreement, this Option may be exercised by written notice to the Company, at the
principal executive office of the Company, or to such transfer agent as the
Company shall designate. Such notice shall state the election to exercise this
Option and the number of Option Shares in respect of which it is being exercised
and shall be signed by the person so exercising this Option. Such notice shall
be accompanied by payment of the full exercise price of such Option Shares, and
the Company shall deliver a certificate representing such Option Shares as soon
as practicable after the notice shall be received. The certificate for the
Option Shares as to which this Option shall have been so exercised shall be
registered in the name of the person so exercising this Option (or, if this
Option shall be exercised by the Optionee and if the Optionee shall so request
in the notice exercising this Option, shall be registered in the name of the
Optionee and another person jointly, with right of survivorship) and shall be
delivered as provided above to or upon the written order of the person
exercising this Option. In the event this Option shall be exercised, pursuant to
Section 3 hereof, by any person other than the Optionee, such notice shall be
accompanied by appropriate proof of the right of such person to exercise this
Option. All Option Shares that shall be purchased upon the exercise of this
Option as provided herein shall be fully paid and nonassessable.
10. OPTION NOT TRANSFERABLE. This Option is not transferable or assignable
except by will or by the laws of descent and distribution. During the Optionee's
lifetime only the Optionee can exercise this Option.
<PAGE>
11. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of this
Option imposes no obligation on the Optionee to exercise it.
12. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Optionee shall have no
rights as a stockholder with respect to the Option Shares subject to this
Agreement until a stock certificate therefor has been issued to the Optionee and
is fully paid for by the Optionee. Except as is expressly provided in the Plan
with respect to certain changes in the capitalization of the Company, no
adjustment shall be made for dividends or similar rights for which the record
date is prior to the date such stock certificate is issued.
13. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. In the event of any stock
dividend, stock split, combination, recapitalization or other change in the
capital structure of the Company, this Option and the Option price shall be
equitably adjusted and, in lieu of issuing fractional shares upon exercise
thereof, this Option (and the corresponding Option Shares) shall be rounded
upward or downward to the nearest whole share (rounding upward for all amounts
equal to or in excess of .51).
14. WITHHOLDING TAXES. The Optionee hereby agrees that the Company may
withhold from the Optionee's wages or other remuneration the appropriate amount
of federal, state and local taxes attributable to the Optionee's exercise of any
installment of this Option. At the Company's discretion, the amount required to
be withheld may be withheld in cash from such wages or other remuneration, or in
kind from the Common Stock otherwise deliverable to the Optionee on exercise of
this Option. The Optionee further agrees that, if the Company does not withhold
an amount from the Optionee's wages or other remuneration sufficient to satisfy
the Company's withholding obligation, the Optionee will reimburse the Company on
demand, in cash, for the amount underwithheld.
15. COMPANY'S RIGHT OF FIRST REFUSAL. [This Section Intentionally Omitted].
16. NO EXERCISE OF OPTION IF EMPLOYMENT TERMINATED FOR MISCONDUCT. If the
employment or engagement of the Optionee is terminated for "Misconduct", this
Option shall terminate on the date of such termination and this Option shall
thereupon not be exercisable to any extent whatsoever. "Misconduct" is conduct,
as determined by the Board of Directors, involving one or more of the following:
(i) disloyalty, gross negligence, dishonesty or breach of fiduciary duty to the
Company; or (ii) the commission of an act of embezzlement, fraud or deliberate
disregard of the rules or policies of the Company which results in loss, damage
or injury to the Company; or (iii) the unauthorized disclosure of any trade
secret or confidential information of the Company; or (iv) the commission of an
act which constitutes unfair competition with the Company or which induces any
customer of the Company to break a contract with the Company whether before of
after any employment by the Company. In making such determination, the Board of
Directors shall act fairly and in utmost good faith.
17. Company's Right of Repurchase. (a) Rights of Repurchase: If any of the
events specified in Section 15(b) below occur, then, (i) with respect to Option
Shares acquired upon exercise of this Option prior to the occurrence of such
event, within 90 days after the Company receives actual knowledge of the event,
and (ii)with respect to Option Shares acquired
<PAGE>
upon exercise of this Option after the occurrence of such event, within 90 days
following the date of such exercise, (in either case, the "Repurchase Period"),
the Company shall have the option, but not the obligation, to repurchase any or
all the Option Shares from the Optionee, or his or her legal representatives, as
the case may be (the "Repurchase Option"). The Repurchase Option shall be
exercised by the Company by giving the Optionee, or his or her legal
representative, written notice of its intention to exercise the Repurchase
Option on or before the last day of the Repurchase Period, and, together with
such notice, tendering to the Optionee, or his or her legal representative, an
amount equal to the higher of the option price or the fair market value of the
Option Shares. The Company may, in exercising the Repurchase Option, designate
one or more nominees to purchase the Option Shares either within or without the
Company. Upon timely exercise of the Repurchase Option in the manner provided in
this Section 15(a), Optionee, or his or her legal representative, shall deliver
to the Company the stock certificate or certificates representing the Option
Shares, duly endorsed and free and clear of any and all liens, charges and
encumbrances.
If the Option Shares are not purchased under the Repurchase Option, the
Optionee and his or her successor in interest, if any, will hold any of the
Option Shares in his or her possession subject to all of the provisions of this
Agreement.
Notwithstanding anything contained herein to the contrary, in the event of
any termination for "Misconduct" (as defined in Section 14), the Company at its
election may repurchase the Option Shares at the lesser of the option price or
the fair market value of the option shares.
(b) COMPANY'S RIGHT TO EXERCISE REPURCHASE OPTION: The Company shall have
the Repurchase Option in the event that any of the following events shall occur:
(i) The receivership, bankruptcy or other creditor's proceeding
regarding the Optionee or the taking of any of Optionee's Option Shares by legal
process, such as a levy of execution;
(ii) Distribution of shares held by the Optionee to his or her
spouse as such spouse's joint or community interest pursuant to a decree of
dissolution, operation of law, divorce, property settlement agreement or for any
other reason, except as may be otherwise permitted by the Company;
(iii) A determination of "Misconduct" as determined by the
Optionee (as defined in Section 14); or
(iv) The termination of the Optionee for "Misconduct" (as
defined in Section 14).
(c) DETERMINATION OF FAIR MARKET VALUE: The fair market value of the Option
Shares, as used in this Section 15, shall be an amount per share determined on
the basis of the price at which shares of the Common Stock could reasonably be
expected to be sold in an arms-length transaction, for cash, other than on an
installment basis, to a person not employed by,
<PAGE>
controlled by, in control of or under common control with the Company. Fair
market value shall be determined by the Board of Directors, giving due
consideration to recent grants of incentive stock options for shares of Common
Stock, recent transactions involving shares of the Common Stock, if any,
earnings of the Company to the date of such determination, projected earnings of
the Company, the effect of the transfer restrictions to which the Option Shares
are subject under law and this Agreement, the absence of a public market for the
Common Stock and such other matters as the Board of Directors deems pertinent.
If the Common Stock of the Company is traded on any national securities exchange
or the NASDAQ Interdealer Quotation System, fair market value shall be (i) the
average of the high and low closing sale prices, or (ii) the average of the last
reported sale price on the NASDAQ National Market System, or (iii) the average
of the closing bid prices for the twenty (20) consecutive trading days preceding
the date the Company exercises its Repurchase Option and tenders payment for the
Option Shares. The determination by the Board of Directors of the fair market
value shall be conclusive and binding. The fair market value of the Option
Shares shall be determined as of the day on which the event occurs.
18. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the State of Delaware.
19. EXPRESS CONSIDERATION FOR OPTION GRANT. This Option is being granted to
the Optionee on the express condition and for the express consideration that the
Optionee has previously executed, or will immediately execute and deliver in
connection with this Option grant, a form of nondisclosure, assignment of
inventions and/or noncompetition agreement (or any combination thereof)
satisfactory to the Company. If such agreement has not been executed, or if the
Optionee refuses to execute such agreement, this Option may be canceled by the
Company in its sole and absolute discretion.
IN WITNESS WHEREOF the Company and the Optionee have caused this instrument
to be executed, and the Optionee whose signature appears below acknowledges
receipt of a copy of the Plan and acceptance of an original copy of this
Agreement.
THE SOFTWARE DEVELOPER'S
COMPANY, INC.
____________________________ By:____________________________
Signature of Optionee
____________________________ Title:_________________________
Name of Optionee
Exhibit 4.10
THE SOFTWARE DEVELOPER'S COMPANY, INC.
Incentive Stock Option Agreement
for
1994 Stock Plan
THE SOFTWARE DEVELOPER'S COMPANY, INC., a Delaware corporation (the
"COMPANY"), hereby grants this day of , , to (the "EMPLOYEE"), an option to
purchase a maximum of shares (the "OPTION SHARES") of its Common Stock, $.01 par
value (the "COMMON STOCK"), at the price of per share, on the following terms
and conditions:
1. GRANT UNDER 1994 STOCK PLAN. This Option is granted pursuant to and is
governed by the Company's 1994 Stock Plan (the "Plan") and, unless the context
otherwise requires, terms used herein shall have the same meaning as in the
Plan. Determinations made in connection with this Option pursuant to the Plan
shall be governed by the Plan as it exists on this date.
2. GRANT AS INCENTIVE STOCK OPTION; OTHER OPTIONS. This Option is intended
to qualify as an incentive stock option under Section 422A of the Internal
Revenue Code of 1986 (the "Code"). This Option is in addition to any other
options heretofore or hereafter granted to the Employee by the Company, but a
duplicate original of this instrument shall not effect the grant of another
option.
3. EXTENT OF OPTION IF EMPLOYMENT CONTINUES. If the Employee has continued
to be employed by the Company on the following dates, the Employee may exercise
this Option for the number of shares set opposite the applicable date:
Less than one year - -0- Option Shares
from
One year but less than two years from - 30% of the total Option Shares
Two years but less than three years from - an additional 20% of the total
Option Shares
Three years but less than four years - an additional 20% of the total
from Option Shares
Four years but less than five years from - an additional 20% of the total
Option Shares
<PAGE>
More than five years from - an additional 10% of the total
Option Shares
The foregoing rights are cumulative and, while the Employee continues to be
employed by the Company, may be exercised up to and including the date which is
ten (10) years from the date this Option is granted. All of the foregoing rights
are subject to Sections 4 and 5, as appropriate, if the Employee ceases to be
employed by the Company or dies or becomes disabled while in the employ of the
Company.
4. TERMINATION OF EMPLOYMENT. If the Employee ceases to be employed by the
Company, other than by reason of death or disability as defined in Section 5, no
further installments of this Option shall become exercisable and this Option
shall terminate after the passage of ninety (90) days from the date employment
ceases, but in no event later than the scheduled expiration date. In such a
case, the Employee's only rights hereunder shall be those which are properly
exercised before the termination of this Option.
5. DEATH; DISABILITY. If the Employee dies while in the employ of the
Company, this Option may be exercised, to the extent of the number of Option
Shares with respect to which the Employee could have exercised it on the date of
his death, by his estate, personal representative or beneficiary to whom this
Option has been assigned pursuant to Section 10, at any time within 180 days
after the date of death, but not later than the scheduled expiration date. If
the Employee ceases to be employed by the Company by reason of his disability
(as defined in the Plan), this Option may be exercised, to the extent of the
number of Option Shares with respect to which he could have exercised it on the
date of the termination of his employment, at any time within 180 days after
such termination, but not later than the scheduled expiration date. At the
expiration of such 180-day period or the scheduled expiration date, whichever is
the earlier, this Option shall terminate and the only rights hereunder shall be
those as to which the Option was properly exercised before such termination.
6. PARTIAL EXERCISE. Exercise of this Option up to the extent above stated
may be made in part at any time and from time to time within the above limits,
except that this Option may not be exercised for a fraction of a share unless
such exercise is with respect to the final installment of Option Shares subject
to this Option and a fractional share (or cash in lieu thereof) must be issued
to permit the Employee to exercise completely such final installment. Any
fractional share with respect to which an installment of this Option cannot be
exercised because of the limitation contained in the preceding sentence shall
remain subject to this Option and shall be available for later purchase by the
Employee in accordance with the terms hereof.
7. PAYMENT OF PRICE. The option price is payable in United States dollars
and may be paid:
(a) in cash or by check, or any combination of the foregoing, equal in
amount to the Option price; or
(b) in the discretion of the Board of Directors, in cash, by check, by
delivery of shares of the Company's Common Stock having an aggregate fair market
value as determined by
<PAGE>
the Board of Directors equal to the Option exercise price as of the date of
exercise, or by any combination of the foregoing, equal in amount to the Option
price.
Notwithstanding the foregoing, the Employee may not pay any part of the
exercise price for the Option by transferring shares of Common Stock to the
Company if such Common Stock is both subject to a substantial risk of forfeiture
and not transferable within the meaning of Section 83 of the Code.
8. AGREEMENT TO PURCHASE FOR INVESTMENT. By acceptance of this Option, the
Employee agrees that a purchase of Option Shares under this Option will not be
made with a view to their distribution, as that term is used in the Securities
Act of 1933, as amended (the "Securities Act"), unless in the opinion of counsel
to the Company such distribution is in compliance with or exempt from the
registration and prospectus requirements of the Securities Act and applicable
state securities laws, and the Employee agrees to sign a certificate to such
effect at the time of exercising this Option and agrees that the certificate for
the Option Shares so purchased may be inscribed with a legend to ensure
compliance with the Securities Act and applicable state securities laws.
9. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of this
Agreement, this Option may be exercised by written notice to the Company, at the
principal executive office of the Company, or to such transfer agent as the
Company shall designate. Such notice shall state the election to exercise this
Option and the number of Option Shares in respect of which it is being exercised
and shall be signed by the person or persons so exercising this Option. Such
notice shall be accompanied by payment of the full purchase price of such Option
Shares, and the Company shall deliver a certificate or certificates representing
such Option Shares as soon as practicable after the notice shall be received.
The certificate or certificates for the Option Shares as to which this Option
shall have been so exercised shall be registered in the name of the person or
persons so exercising this Option (or, if this Option shall be exercised by the
Employee and if the Employee shall so request in the notice exercising this
Option, shall be registered in the name of the Employee and another person
jointly, with right of survivorship) and shall be delivered as provided above to
or upon the written order of the person or persons exercising this Option. In
the event this Option shall be exercised, pursuant to Section 5 hereof, by any
person or persons other than the Employee, such notice shall be accompanied by
appropriate proof of the right of such person or persons to exercise this
Option. All Option Shares that shall be purchased upon the exercise of this
Option as provided herein shall be fully paid and non-assessable.
10. OPTION NOT TRANSFERABLE. This Option is not transferable or assignable
except by will or by the laws of descent and distribution. During the Employee's
lifetime only the Employee can exercise this Option.
11. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of this
Option imposes no obligation on the Employee to exercise it.
<PAGE>
12. NO OBLIGATION TO CONTINUE EMPLOYMENT. The Company and any Related
Corporations (as defined in the Plan) are not by the Plan or this Option
obligated in any manner to continue the Employee in its employment.
13. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Employee shall have no
rights as a stockholder with respect to Option Shares subject to this Agreement
until a stock certificate therefor has been issued to the Employee and is fully
paid for by the Employee. Except as is expressly provided in the Plan with
respect to certain changes in the capitalization of the Company, no adjustment
shall be made for dividends or similar rights for which the record date is prior
to the date such stock certificate is issued.
14. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. In the event of any stock
dividend, stock split, recapitalization or other change in the capital structure
of the Company, this Option and the Option price shall be equitably adjusted
and, in lieu of issuing fractional shares upon exercise thereof, this Option
(and the corresponding Option Shares) shall be rounded upward or downward to the
nearest whole share (rounding upward for all amounts equal to or in excess of
.51). In particular, without affecting the generality of the foregoing, it is
understood that for the purposes of Sections 3 through 5 hereof, both inclusive,
employment by the Company includes employment by a Related Corporation (as
defined in the Plan).
15. DISQUALIFYING DISPOSITION. The Employee agrees to notify the Company in
writing immediately after the Employee makes a Disqualifying Disposition of any
Option Shares received pursuant to the exercise of this Option. A Disqualifying
Disposition is any disposition (including any sale) of such Option Shares before
the later of (a) two years after the date the Employee was granted this Option,
or (b) one year after the date the Employee acquired Option Shares by exercising
this Option. If the Employee has died before such Option Shares are sold, these
holding period requirements do not apply and no Disqualifying Disposition can
occur thereafter. The Employee also agrees to provide the Company with any
information which it shall request concerning any such disposition. The Employee
acknowledges that he or she will forfeit the favorable income tax treatment
otherwise available with respect to the exercise of an incentive stock option if
he or she makes a Disqualifying Disposition of the Option Shares received on
exercise of this Option.
16. WITHHOLDING TAXES. If the Company in its discretion determines that it
is obligated to withhold tax with respect to a Disqualifying Disposition (as
defined in Section 15) of Common Stock received by the Employee on exercise of
this Option, the Employee hereby agrees that the Company may withhold from the
Employee's wages the appropriate amount of federal, state and local withholding
taxes attributable to such Disqualifying Disposition. If any portion of this
Option is treated as a Non-Qualified Option, the Employee hereby agrees that the
Company may withhold from the Employee's wages the appropriate amount of
federal, state and local withholding taxes attributable to the Employee's
exercise of such Non-Qualified Option. At the Company's discretion, the amount
required to be withheld may be withheld in cash from such wages, or in kind
(with respect to compensation income attributable to the exercise of this
Option) from the Common Stock otherwise deliverable to the Optionee on exercise
of this Option. The Employee further agrees that, if the Company does not
withhold an amount from the Employee's
<PAGE>
wages sufficient to satisfy the Company's withholding obligation, the Employee
will reimburse the Company on demand, in cash, for the amount underwithheld.
17. COMPANY'S RIGHT OF FIRST REFUSAL. [This Section Intentionally Omitted.]
18. NO EXERCISE OF OPTION IF EMPLOYMENT TERMINATED FOR MISCONDUCT. If the
employment of the Employee is terminated for "Misconduct", this Option shall
terminate on the date of such termination of employment and this Option shall
thereupon not be exercisable to any extent whatsoever. "Misconduct" is conduct,
as determined by the Board of Directors, involving one or more of the following:
(i) disloyalty, gross negligence, dishonesty or breach of fiduciary duty to the
Company; or (ii) the commission of an act of embezzlement, fraud or deliberate
disregard of the rules or policies of the Company which results in loss, damage
or injury to the Company, whether directly or indirectly; or (iii) the
unauthorized disclosure of any trade secret or confidential information of the
Company; or (iv) the commission of an act which constitutes unfair competition
with the Company or which induces any customer of the Company to break a
contract with the Company. In making such determination, the Board of Directors
shall act fairly and in utmost good faith. For the purposes of this Section 18,
termination of employment shall be deemed to occur when the Employee receives
notice that his employment is terminated.
19. COMPANY'S RIGHT OF REPURCHASE. (a) Rights of Repurchase. If any of the
events specified in Section 19(b) below occur, then,
(i) with respect to Option Shares acquired upon exercise of this Option
prior to the occurrence of such event, within 90 days after the Company receives
actual knowledge of the event, and
(ii) with respect to Option Shares acquired upon exercise of this
Option after the occurrence of such event, within 90 days following the date of
such exercise, (in either case, the "Repurchase Period"), the Company shall have
the option, but not the obligation, to repurchase all, but not a portion of, the
Option Shares from the Employee, or his or her legal representatives, as the
case may be (the "Repurchase Option"). The Repurchase Option shall be exercised
by the Company by giving the Employee, or his or her legal representative,
written notice of its intention to exercise the Repurchase Option on or before
the last day of the Repurchase Period, and, together with such notice, tendering
to the Employee, or his or her legal representative, an amount equal to the
higher of the option price or the fair market value of the Option Shares. The
Company may, in exercising the Repurchase Option, designate one or more nominees
to purchase the Option Shares either within or without the Company. Upon timely
exercise of the Repurchase Option in the manner provided in this Section 19(a),
Employee, or his or her legal representative, shall deliver to the Company the
stock certificate or certificates representing the Option Shares, duly endorsed
and free and clear of any and all liens, charges and encumbrances.
If the Option Shares are not purchased under the Repurchase Option, the
Employee and his or her successor in interest, if any, will hold any of the
Option Shares in his or her possession subject to all of the provisions of this
Agreement.
<PAGE>
Notwithstanding anything contained herein to the contrary, in the event of
any termination for "Misconduct" (as defined in Section 18), the Company at its
election may repurchase the Option Shares at the lesser of the option price or
the fair market value of the Option Shares.
(b) COMPANY'S RIGHT TO EXERCISE REPURCHASE OPTION. The Company shall
have the Repurchase Option in the event that any of the following events shall
occur:
(i) The receivership, bankruptcy or other creditor's proceeding
regarding the Employee or the taking of any of Employee's Option Shares by legal
process, such as a levy of execution; or
(ii) Distribution of shares held by the Employee to his or her
spouse as such spouse's joint or community interest pursuant to a decree of
dissolution, operation of law, divorce, property settlement agreement or for any
other reason, except as may be otherwise permitted by the Company; or
(iii) The termination of the Employee's employment with the
Company or any related corporation, whether voluntarily or involuntarily, for
any reason, prior to the time this Option shall be fully vested in Section 3
hereof; or
(iv) The termination of the Employee for "misconduct" (as defined
in Section 18).
(c) DETERMINATION OF FAIR MARKET VALUE. The fair market value of the
Option Shares, as used in this Section 19, shall be an amount per share
determined on the basis of the price at which shares of the Common Stock could
reasonably be expected to be sold in an arms-length transaction, for cash, other
than on an installment basis, to a person not employed by, controlled by, in
control of or under common control with the Company. Fair market value shall be
determined by the Board of Directors, giving due consideration to recent grants
of incentive stock options for shares of Common Stock, recent transactions
involving shares of the Common Stock, if any, earnings of the Company to the
date of such determination, projected earnings of the Company, the effect of the
transfer restrictions to which the Option Shares are subject under law and this
Agreement, the absence of a public market for the Common Stock and such other
matters as the Board of Directors deems pertinent. If the Common Stock of the
Company is traded on any national securities exchange or the NASDAQ Interdealer
Quotation System, fair market value shall be (i) the average of the high and low
closing sale prices, or (ii) the average of the last reported sale price on the
NASDAQ National Market System, or (iii) the average of the closing bid prices
for the twenty (20) consecutive trading days preceding the date the Company
exercises its Repurchase Option and tenders payment for the Option Shares. The
determination by the Board of Directors of the fair market value shall be
conclusive and binding. The fair market value of the Option Shares shall be
determined as of the day on which the event occurs.
20. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the internal laws of the State of Delaware.
<PAGE>
21. EXPRESS CONSIDERATION FOR OPTION GRANT. This Option is being granted to
the Employee on the express condition and for the express consideration that the
Employee has previously executed, or will immediately execute in connection with
this Option grant, the Company's standard form of nondisclosure, assignment of
inventions and/or noncompetition agreement (or any combination thereof) in a
form satisfactory to the Company. If such agreement has not been executed, or if
the Employee refuses to execute such agreement, this Option may be canceled by
the Company in its sole and absolute discretion.
IN WITNESS WHEREOF the Company and the Employee have caused this instrument
to be executed, and the Employee whose signature appears below acknowledges
receipt of a copy of the Plan and acceptance of an original copy of this
Agreement.
_____________________________ THE SOFTWARE DEVELOPER'S
Signature of Employee COMPANY, INC.
By:____________________________
______________________________ Title:___________________________
Name of Employee
Exhibit 5.1
TESTA, HURWITZ & THIBEAULT
ATTORNEYS AT LAW
HIGH STREET TOWER, 125 HIGH STREET
OFFICE (617) 248-7000 BOSTON, MASSACHUSETTS 02110 FAX (617) 248-7100
December 1, 1995
The Software Developer's Company, Inc.
90 Industrial Park Road
Hingham, Massachusetts 020343
Re: Registration Statement on Form S-8 Relating to the 1994 Stock
Plan (the "Plan") of The Software Developer's Company, Inc.
(the "Company").
Dear Sir or Madam:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by the Company on or about December 3,
1995 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, relating to an aggregate of 1,500,000 shares of Common Stock,
$.01 par value per share, of the Company issuable pursuant to the Plan (the
"Shares").
We have examined, are familiar with, and have relied as to factual
matters solely upon, copies of the Plans, the Restated Certificate of
Incorporation and Amended By-Laws of the Company, the minute books and stock
records of the Company and originals of such other documents, certificates and
proceedings as we have deemed necessary for the purpose of rendering this
opinion.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the terms of
the Plan, the terms of any option or purchase right granted thereunder duly
authorized by the Company's Board of Directors or Compensation Committee and/or
any related agreements with the Company, will be validly issued, fully paid and
nonassessable.
We consent to the filing of this opinion as exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault
______________________________
TESTA, HURWITZ & THIBEAULT
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion by reference in this registration statement on Form
S-8 (Registration No. _____________), of our report dated July 14, 1995, on our
audits of the consolidated financial statements of The Software Developer's
Company, Inc. as of March 31, 1995 and 1994, and for the years ended March 31,
1995, 1994 and 1993.
/s/ Coopers & Lybrand L.L.P.
____________________________
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
November 30, 1995
