<PAGE>
As filed with the Securities and Exchange Commission on July 22, 1997.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------------------
Corporate Express, Inc.
-----------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Colorado 84-0978360
- ------------------------------ -------------------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1 Environmental Way
Broomfield, Colorado 80021-3416
- ------------------------------ ------------------
(ADDRESS OF PRINCIPAL EXECUTIVE (ZIP CODE)
OFFICES)
Corporate Express, Inc.
1996 Stock Option Plan for Outside Directors
Corporate Express, Inc.
Supplemental Stock Option Plan
Distribution Resources Company
Stock Option Plan
Computer Software Inc.
Incentive Stock Option Plan
--------------------------------------------
(FULL TITLE OF THE PLANS)
Jirka Rysavy
Chief Executive Officer
Corporate Express, Inc.
1 Environmental Way
Broomfield, Colorado 80021-3416
-------------------------------
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(303) 664-2000
--------------
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
with a copy to:
Rhonda R. Cohen, Esquire
Ballard Spahr Andrews & Ingersoll
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103-7599
(215) 665-8500
CALCULATION OF REGISTRATION FEE
-------------------------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share(1) Price(1) Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.0002
per share 10,721,790(2) $13.59 $145,709,126 $44,154.28
- --------------------------------------------------------------------------------
</TABLE>
(1) Calculated in accordance with Rule 457(c) and (h), on the basis of the
average of the high and low prices of Corporate Express, Inc. Common Stock
on July 18, 1997, as reported on the Nasdaq National Market.
(2) Such number represents the number of shares of Common Stock initially
issuable upon exercise of all options available for grant under the Plan
and, pursuant to Rule 416 under the Securities Act of 1933, as amended,
such indeterminate number of shares of Common Stock as may be issued from
time to time upon exercise of options issued or issuable under the Plans by
reason of adjustments to prevent dilution resulting from stock splits,
stock dividends and similar transactions as described in the Plans.
<PAGE>
PART I - INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement will be given or sent to all individuals who participate
in the Corporate Express, Inc. 1996 Stock Option Plan for Outside Directors, the
Corporate Express, Inc. Supplemental Stock Option Plan, the Distribution
Resources Company Stock Option Plan and the Computer Software Inc. Incentive
Stock Option Plan as specified by Rule 428 under the Securities Act of 1933, as
amended.
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
------------------------------------------------
The following documents filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act") by Corporate Express, Inc. (the "Company") (File
No. 0-24642) are incorporated herein by reference:
(i) The Company's Annual Report on Form 10-K for the fiscal year
ended March 1, 1997.
(ii) The Company's Quarterly Report on Form 10-Q for the quarter
ended May 31, 1997.
(iii) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed with the
Commission on August 4, 1994.
All documents subsequently filed by the Company after the date hereof
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
hereby have been sold or which deregisters all securities remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and shall be part hereof from the date of filing of such documents.
II-1
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
Section 7-109-101, et seq., of the Colorado Business Corporation Act
generally provides that a corporation may indemnify its directors, officers,
employees, fiduciaries and agents against liabilities and reasonable expenses
incurred in connection with any threatened, pending, or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal (a "Proceeding"), by reason of being or having been a
director, officer, employee, fiduciary or agent of the corporation, if such
person acted in good faith and reasonably believed that his conduct, in his
official capacity, was in the best interests of the corporation (or, with
respect to employee benefit plans, was in the best interests of the participants
of the plan), and in all other cases his conduct was at least not opposed to the
corporation's best interests. In the case of a criminal proceeding, the
director, officer, employee, fiduciary or agent must have had no reasonable
cause to believe his conduct was unlawful. Under Colorado law, the corporation
may not indemnify a director, officer, employee, fiduciary or agent in
connection with a Proceeding by or in the right of the corporation if the
director is adjudged liable to the corporation, or in a proceeding in which the
director, officer, employee or agent is adjudged liable for an improper personal
benefit.
The Company's Articles of Amendment and Restatement to the Articles of
Incorporation and By-Laws provide that the Company shall indemnify its officers
and directors to the full extent permitted by the law. The indemnification
provisions in the Company's By-Laws are substantially similar to the provisions
of Section 7-109-101, et seq. The Company has entered into agreements to
provide indemnification for its directors and certain officers consistent with
its Articles of Amendment and Restatement to the Articles of Incorporation and
By-Laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
II-2
<PAGE>
ITEM 8. EXHIBITS.
--------
4.1 Specimen copy of Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to Registration Statement on Form
S-1, Reg. No. 33-81924)
5.1 Opinion of Ballard Spahr Andrews & Ingersoll
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Ballard Spahr Andrews & Ingersoll (contained in
Exhibit 5.1)
24.1 Power of Attorney (included on signature page of
Registration Statement)
99.1 Corporate Express, Inc. 1996 Stock Option Plan for Outside
Directors
99.2 Corporate Express, Inc. Supplemental Stock Option Plan (the
"Supplemental Plan") (Exhibit A to the Supplemental Plan,
the 1994 Stock Option and Incentive Plan, is incorporated by
reference to Exhibit 10.5 to the Company's Annual Report on
Form 10-K for the fiscal year ended March 1, 1997)
99.3 Distribution Resources Company Stock Option Plan.
99.4 Computer Software Inc. Incentive Stock Option Plan.
II-3
<PAGE>
ITEM 9. UNDERTAKINGS.
------------
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:
(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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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 (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and 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.
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)
II-4
<PAGE>
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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Broomfield, State of Colorado, on July 17, 1997.
CORPORATE EXPRESS, INC.
By /s/ Jirka Rysavy
-------------------------------------
Jirka Rysavy, Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
----------- ----- ----
<S> <C> <C>
/s/Jirka Rysavy Chairman of the Board July 17, 1997
- ----------------- and Chief Executive
Jirka Rysavy Officer (Principal
executive officer)
/s/ Robert L. King President, Chief July 17, 1997
- -------------------- Operating Officer and
Robert L. King Director
</TABLE>
II-6
<PAGE>
<TABLE>
<S> <C> <C>
/s/Sam R. Leno Executive Vice President July 17, 1997
- ------------------------- and Chief Financial
Sam R. Leno Officer (Principal
financial officer)
/s/ Joanne C. Farver Vice President and July 17, 1997
- ------------------------- Controller (Principal
Joanne C. Farver accounting officer)
/s/ Janet A. Hickey Director July 17, 1997
- -------------------------
Janet A. Hickey
/s/James P. Argyropoulos Director July 17, 1997
- -------------------------
James P. Argyropoulos
/s/ Mo Siegel Director July 17, 1997
- -------------------------
Mo Siegel
</TABLE>
II-7
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION PAGE
- ------ ----------- ----
4.1 Specimen copy of Common Stock Certificate (incorporated
by reference to Exhibit 4.1 to Registration Statement on
Form S-1, Reg. No. 33-81924)
5.1 Opinion of Ballard Spahr Andrews & Ingersoll
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Ballard Spahr Andrews & Ingersoll
(contained in Exhibit 5.1)
24.1 Power of Attorney (included on signature page of
Registration Statement)
99.1 Corporate Express, Inc. 1996 Stock Option Plan for Outside
Directors
99.2 Corporate Express, Inc. Supplemental Stock Option Plan (the
"Supplemental Plan") (Exhibit A to the Supplemental Plan, the
1994 Stock Option and Incentive Plan, is incorporated by
reference to Exhibit 10.5 to the Company's Annual Report on
Form 10-K for the fiscal year ended March 1, 1997)
99.3 Distribution Resources Company Stock Option Plan
99.4 Computer Software Inc. Incentive Stock Option Plan
<PAGE>
EXHIBIT 5.1
[Ballard Spahr Andrews & Ingersoll Letterhead Appears Here]
July 21, 1997
Corporate Express, Inc.
1 Environmental Way
Broomfield, CO 80021
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have acted as special counsel to Corporate Express, Inc. (the
"Company") in connection with the registration under the Securities Act of 1933,
as amended, of 10,721,790 shares of common stock of the Company, par value
$.0002 per share (the "Shares"), issuable upon the exercise of options granted
under the Corporate Express, Inc. 1996 Stock Option Plan for Outside Directors,
the Corporate Express, Inc. Supplemental Stock Option Plan, the Distribution
Resources Company Stock Option Plan and the Computer Software Inc. Incentive
Stock Option Plan (collectively, the "Plans").
In rendering our opinion, we have reviewed such certificates,
documents, corporate records and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below. In
giving this opinion, we are assuming the authenticity of all instruments
presented to us as originals, the conformity with the originals of all
instruments presented to us as copies and the genuineness of all signatures.
Based on the foregoing, we are of the opinion that the Shares, when
issued upon exercise of options granted under the Plans, in accordance with the
terms thereof, will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement on Form S-8 being filed with respect to the offering of
the Shares.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll
Ballard Spahr Andrews & Ingersoll
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Corporate Express, Inc. on Form S-8 (the "Registration Statement") of our report
dated April 18, 1997 on our audits of the consolidated financial statements and
financial statement schedule of Corporate Express, Inc. as of March 1, 1997 and
March 2, 1996, and for the years ended March 1, 1997, March 2, 1996 and February
25, 1995.
/s/ Coopers & Lybrand L.L.P.
Denver, Colorado
July 21, 1997
<PAGE>
EXHIBIT 99.1
CORPORATE EXPRESS, INC.
1996 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
ARTICLE I
PURPOSE
The purpose of the 1996 Stock Option Plan for Outside Directors (the
"Plan") is to enable Corporate Express, Inc. (the "Company") to attract and
retain outside directors and to strengthen the mutuality of interests between
such directors and the Company's stockholders.
ARTICLE II
DEFINITIONS
For purposes of the Plan, the following terms shall have the following
meanings:
2.1 "BOARD" shall mean the Board of Directors of the Company.
-----
2.2 "CHANGE OF CONTROL" shall mean the occurrence of any one of the
-----------------
following: (i) the Company enters into an agreement of reorganization, merger
or consolidation pursuant to which it is not the surviving corporation, other
than a transaction that is accounted for as a pooling of interests, (ii) the
Company sells all or substantially all its assets, or (iii) in excess of 50% of
the issued and outstanding shares of Common Stock is acquired by a single
purchaser or group of related purchasers (other than the Company, a subsidiary
of the Company or an employee benefit plan sponsored by the Company or a
subsidiary).
2.3 "CODE" shall mean the Internal Revenue Code of 1986, as amended,
----
and rules and regulations under the Internal Revenue Code of 1986, as amended.
2.4 "COMMON STOCK" shall mean the Common Stock, par value $.0002 per
------------
share, of the Company.
<PAGE>
2.5 "DISABILITY" shall mean a disability due to any medically
----------
determinable physical or mental impairment that prevents a director from
fulfilling his or her duties as a director, as determined in the reasonable
judgment of the Board.
2.6 "EFFECTIVE DATE" shall mean the date on which the Plan is
--------------
approved by the affirmative vote of the holders of a majority of the outstanding
shares of Common Stock present, or represented, and entitled to vote at a duly
held meeting of the stockholders of the Company.
2.7 "ELIGIBLE DIRECTOR" shall mean any member of the Board who, on
-----------------
the date on which Options are to be granted, is not an officer or employee of
the Company or any of the Company's subsidiaries, but shall exclude any such
member of the Board who advises the Company in writing of his or her desire not
to participate in the Plan.
2.8 "FAIR MARKET VALUE" for purposes of the Plan, unless otherwise
-----------------
required by the Code, shall mean, as of any date, the average of the high and
low sales prices of a share of Common Stock as reported on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading, or, if not listed or traded on any such exchange, on the Nasdaq Stock
Market, or, if not so listed or traded, the fair market value as determined by
the Board, which determination shall be conclusive.
2.9 "OPTIONEE" shall mean an individual to whom a Stock Option has
--------
been granted under the Plan.
2.10 "STOCK OPTION" or "OPTION" shall mean any option to purchase
------------ ------
shares of Common Stock granted pursuant to Article VI.
ARTICLE III
ADMINISTRATION
3.1 ADMINISTRATION. The Plan shall be administered and interpreted
--------------
by the Board.
3.2 GUIDELINES. Subject to Article VII, the Board shall have the
----------
authority to adopt, alter and repeal administrative rules, guidelines and
practices governing the Plan as it, from time to time, deems advisable; to
interpret the terms and provisions of the Plan and any Option granted under the
Plan (and any related agreements); and to otherwise supervise the administration
of the Plan. The Board may correct any defect, supply any omission, conform the
Plan to any change in law or regulation, or reconcile any inconsistency or
ambiguity in the Plan or in any Option in the manner and to the extent it shall
deem necessary to carry the Plan into effect. Notwithstanding the foregoing, no
action of the Board under this Section 3.2 shall impair the rights of any
Optionee without such person's consent, unless otherwise required by law.
<PAGE>
3.3 DECISIONS FINAL. Any decision, interpretation or other action
---------------
made or taken in good faith by the Board in accordance with the Plan shall be
final, binding and conclusive on the Company, all members of the Board and their
respective heirs, executors, administrators, successors and assigns.
3.4 DELEGATION. The Board may delegate any or all of its
----------
administrative responsibilities under the Plan to officers or employees of the
Company.
ARTICLE IV
SHARE LIMITATION
4.1 SHARES. The maximum aggregate number of shares of Common Stock
------
that may be issued under the Plan shall be 375,000 shares of Common Stock
(subject to any increase or decrease pursuant to Section 4.2), which may be
either authorized and unissued shares of Common Stock or issued shares of Common
Stock that have been reacquired by the Company. If any Option granted under the
Plan shall expire, terminate or be cancelled for any reason without having been
exercised in full, the number of unpurchased shares shall again be available for
the purposes of the Plan.
4.2 CHANGES. In the event of any merger, reorganization,
-------
consolidation, recapitalization, dividend (other than a regular cash dividend),
stock split, or other change in the capital structure of the Company affecting
the Common Stock, such substitution or adjustment shall be made in the maximum
aggregate number of shares that may be issued under the Plan, in the number of
shares for which Stock Options are to be granted to Eligible Directors pursuant
to Section 6.2 and in the number of shares subject to, and the option price of,
outstanding Options as may be determined to be appropriate by the Board, in its
sole discretion, provided that the number of shares subject to any Option shall
always be a whole number.
ARTICLE V
ELIGIBILITY
5.1 ELIGIBLE DIRECTORS. Only Eligible Directors shall be granted
------------------
Options under the Plan.
<PAGE>
ARTICLE VI
STOCK OPTIONS
6.1 OPTIONS. All Stock Options granted under the Plan shall be non-
-------
qualified stock options (i.e., options that do not qualify as incentive stock
----
options under Section 422 of the Code).
6.2 GRANTS. On the Effective Date, each Eligible Director shall
------
automatically be granted Stock Options to purchase 25,000 shares of Common Stock
and each Eligible Director who first becomes a member of the Board after the
Effective Date shall automatically be granted Stock Options to purchase 25,000
shares of Common Stock on the date of his or her selection or election to the
Board. For as long as the Plan remains in effect, each Eligible Director shall
also automatically be granted Stock Options to purchase 10,000 shares of Common
Stock on each anniversary of the date of such initial grant (beginning on the
second such anniversary), provided such person is an Eligible Director on such
date.
6.3 TERMS OF OPTIONS. Options granted under the Plan shall be
----------------
subject to the following terms and conditions and shall contain such additional
terms and conditions, not inconsistent with the terms of the Plan, as the Board
shall, in its discretion, determine:
(a) STOCK OPTION CERTIFICATE. Each Stock Option shall be
------------------------
evidenced by, and subject to the terms of, a Stock Option Certificate executed
by the Company. The Stock Option Certificate shall specify the number of shares
of Common Stock subject to the Stock Option, the option price, the option term,
and the other terms and conditions applicable to the Stock Option.
(b) OPTION PRICE. The option price per share of Common Stock
------------
purchasable upon exercise of a Stock Option shall be equal to the Fair Market
Value of a share of Common Stock on the date the Option is granted.
(c) OPTION TERM. The term of each Stock Option shall be ten
-----------
years from the date of grant.
(d) EXERCISABILITY. Stock Options granted on the Effective Date
--------------
or to Eligible Directors upon their first becoming members of the Board shall
become exercisable as follows: 40% on the first anniversary of the date of
grant, 40% on the second anniversary of the date of grant and 20% on the third
anniversary of the date of grant. All other Stock Options granted pursuant to
Section 6.2 shall become exercisable as follows: 50% on the first anniversary of
the date of grant and 50% on the second anniversary of the date of grant.
(e) METHOD OF EXERCISE. Stock Options may be exercised in whole
------------------
or in part at any time during the option term by giving written notice of
exercise to the
<PAGE>
Secretary or Assistant Secretary of the Company, specifying the number of shares
of Common Stock to be purchased. Such notice shall be accompanied by payment in
full of the option price and, if requested, by the representation described in
Section 9.2. The option price may be paid in cash or by check payable to the
Company or in such other form as the Board deems acceptable. Unless otherwise
determined by the Board, in its sole discretion, at the time of grant, payment
in full or in part may be made in the form of Common Stock owned beneficially
and of record by the Optionee (and for which the Optionee has good title free
and clear of any liens and encumbrances) or by reduction in the number of shares
issuable upon such exercise, based, in either case, on the Fair Market Value of
the Common Stock on the exercise date. Upon payment in full of the option
price, as provided herein, a stock certificate or stock certificates
representing the number of shares of Common Stock to which the Optionee is
entitled shall be issued and registered in the name of and delivered to the
Optionee. An Optionee shall not be deemed to be the holder of Common Stock, or
to have the rights of a holder of Common Stock, with respect to shares subject
to the Option, unless and until a stock certificate representing such shares of
Common Stock is issued to such Optionee.
(f) DEATH. If an Optionee ceases to be a member of the Board by
-----
reason of death, one-half of the Optionee's Stock Options that were not
exercisable on the date of such Optionee's death shall become immediately
exercisable and the legal representative of the Optionee's estate shall be
entitled, for a period of 90 days after the date of the Optionee's death or
until the expiration of the stated term of the Stock Option, whichever is
shorter, to exercise any of the Optionee's Stock Options that were exercisable
on the date of death and any Stock Options as to which the exercisability was
accelerated pursuant to this subsection (f).
(g) DISABILITY. If an Optionee ceases to be a member of the
----------
Board by reason of Disability, one-half of the Optionee's Stock Options that
were not exercisable on the date on which the Optionee ceased to be a member of
the Board shall become immediately exercisable and the Optionee shall be
entitled, for a period of 90 days after such date or until the expiration of the
stated term of the Stock Option, whichever is shorter, to exercise any Stock
Options that were exercisable on the date on which the Optionee ceases to be a
member of the Board and any Stock Options as to which the exercisability was
accelerated pursuant to this subsection (g); provided, however, that if the
Optionee dies during such 90-day period, any unexercised Stock Options shall
thereafter be exercisable by the legal representative of the Optionee's estate,
to the extent it was exercisable by the Optionee at the date of death, for a
period of 90 days after the date of the Optionee's death or until the expiration
of the stated term of the Stock Option, whichever is shorter.
(h) OTHER TERMINATION. If an Optionee ceases to be a member of
-----------------
the Board by reason of retirement or for any reason other than death or
Disability, all Stock Options held by such Optionee shall terminate on the date
on which the Optionee ceases to be a member of the Board.
(i) CHANGE OF CONTROL. In the event of a Change of Control,
-----------------
one-half of all outstanding Stock Options shall immediately become fully
exercisable, and upon
<PAGE>
payment by the Optionee of the option price (and, if requested, delivery of the
representation described in Section 9.2), a stock certificate representing the
Common Stock covered thereby shall be issued and registered in the name of and
delivered to the Optionee as soon as practicable.
(j) NON-TRANSFERABILITY OF OPTION. No Stock Option shall be
-----------------------------
transferable by an Optionee otherwise than by will or by the laws of descent and
distribution, to the extent consistent with the terms of the Plan and the
Option, and all Stock Options shall be exercisable, during an Optionee's
lifetime, only by the Optionee.
ARTICLE VII
TERMINATION OR AMENDMENT
7.1 TERMINATION OR AMENDMENT OF THE PLAN. The Board may at any time
------------------------------------
amend, discontinue or terminate the Plan in whole or in part (including any
amendment deemed necessary to ensure that the Company may comply with any
regulatory requirement referred to in Article IX); provided, however, that,
unless otherwise required by law, the rights of an Optionee with respect to
Options granted prior to such amendment, discontinuance or termination, may not
be impaired without the consent of such Optionee and, provided further, without
the approval of the Company's stockholders, no amendment may be made that would
(i) materially increase the aggregate number of shares of Common Stock that may
be issued under the Plan (except by operation of Section 4.2); (ii) materially
modify the requirements as to eligibility to participate in the Plan; or (iii)
materially increase the benefits accruing to participants under the Plan.
Notwithstanding the foregoing, the provisions of Articles V and VI may not be
amended more than once every six months, other than to comport with changes in
the Code, the Employee Retirement Income Security Act, or the rules thereunder.
7.2 AMENDMENT OF OPTIONS. The Board may amend the terms of any
--------------------
Stock Options, prospectively or retroactively, but, subject to Article IV, no
such amendment or other action by the Board shall impair the rights of any
Optionee without the Optionee's consent.
ARTICLE VIII
UNFUNDED PLAN
8.1 UNFUNDED STATUS OF PLAN. The Plan is intended to constitute an
-----------------------
"unfunded" plan for incentive compensation. With respect to any payment not yet
made to an Optionee by the Company, nothing contained herein shall give any such
individual any rights that are greater than those of a general creditor of the
Company.
<PAGE>
ARTICLE IX
GENERAL PROVISIONS
9.1 NONASSIGNMENT. Except as otherwise provided in the Plan,
-------------
Options granted hereunder and the rights and privileges conferred thereby shall
not be transferred, assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise), and shall not be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of such Option, right or privilege contrary to
the provisions hereof, or upon the levy of any attachment or similar process
thereon, such Option and the rights and privileges conferred thereby shall
immediately terminate and the Option shall immediately be forfeited to the
Company.
9.2 LEGEND. The Board may require each person purchasing shares
------
upon exercise of an Option to represent to the Company in writing that the
Optionee is acquiring the shares for investment only and not for resale or with
a view to distribution and to make such other representations as the Board may
require. The stock certificates representing such shares may include any legend
which the Board deems appropriate to reflect any restrictions on transfer.
All certificates representing shares of Common Stock delivered under
the Plan shall be subject to such stock transfer orders and other restrictions
as the Board may deem advisable under the rules, regulations and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which the Common Stock is then listed or traded or the Nasdaq Stock Market, any
applicable Federal or state securities law, and any applicable corporate law,
and the Board may cause a legend or legends to be put on any such certificates
to make appropriate reference to such restrictions.
9.3 OTHER PLANS. Nothing contained in the Plan shall prevent the
-----------
Board from adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required; and such arrangements may be
either generally applicable or applicable only in specific cases.
9.4 NO RIGHT TO CONTINUE RELATIONSHIP. Neither the Plan nor the
---------------------------------
grant of any Option under the Plan shall confer upon any person any right to
continue as a director of the Company or obligate the Company to nominate any
director for reelection by the Company's stockholders.
9.5 LISTING AND OTHER CONDITIONS.
----------------------------
(a) The issuance of any shares of Common Stock upon exercise of
an Option shall be conditioned upon such shares being listed on a national
securities exchange or on the Nasdaq Stock Market. The Company shall have no
obligation to issue
<PAGE>
such shares unless and until such shares are so listed, and the right to
exercise any Option shall be suspended until such listing has been effected.
(b) If at any time counsel to the Company shall be of the
opinion that any sale or delivery of shares of Common Stock upon exercise of an
Option is or may in the circumstances be unlawful or result in the imposition of
a material amount of excise taxes under the statutes, rules or regulations of
any applicable jurisdiction, the Company shall have no obligation to make such
sale or delivery, or to make any application or to effect or to maintain any
qualification or registration under the Securities Act of 1933, as amended, or
otherwise with respect to shares of Common Stock, and the right to exercise any
Option shall be suspended until, in the opinion of such counsel, such sale or
delivery shall be lawful or shall not result in the imposition of a material
amount of excise taxes.
(c) Upon termination of any period of suspension under this
Section 9.5, any Option affected by such suspension which shall not then have
expired or terminated shall be reinstated as to all shares available before such
suspension and as to shares which would otherwise have become available during
the period of such suspension, but no such suspension shall extend the term of
any Option.
9.6 GOVERNING LAW. The Plan and actions taken in connection
-------------
herewith shall be governed and construed in accordance with the laws of the
State of Colorado.
9.7 CONSTRUCTION. Wherever any words are used in the Plan in the
------------
masculine gender they shall be construed as though they were also used in the
feminine gender in all cases where they would so apply, and wherever any words
are used herein in the singular form they shall be construed as though they were
also used in the plural form in all cases where they would so apply.
9.8 LIABILITY OF THE BOARD. No member of the Board nor any employee
----------------------
of the Company or any of its subsidiaries shall be liable for any act or action
hereunder, whether of omission or commission, by any other member of the Board
or employee or by any agent to whom duties in connection with the administration
of the Plan have been delegated or, except in circumstances involving bad faith,
gross negligence or fraud, for anything done or omitted to be done by himself.
9.9 COSTS. The Company shall bear all expenses incurred in
-----
administering the Plan, including expenses of issuing Common Stock upon the
exercise of Options.
9.10 SEVERABILITY. If any part of the Plan shall be determined to be
------------
invalid or void in any respect, such determination shall not affect, impair,
invalidate or nullify the remaining provisions of the Plan which shall continue
in full force and effect.
9.11 SUCCESSORS. The Plan shall be binding upon and inure to the
----------
benefit of any successor or successors of the Company.
<PAGE>
9.12 HEADINGS. Article and section headings contained in the Plan
--------
are included for convenience only and are not to be used in construing or
interpreting the Plan.
ARTICLE X
TERM OF PLAN
10.1 EFFECTIVE DATE. The Plan shall be effective as of the Effective
--------------
Date.
10.2 TERMINATION. Unless sooner terminated, the Plan shall terminate
-----------
ten years after the Effective Date and no Options shall be granted thereafter.
Termination of the Plan shall not affect Options granted before such date, which
shall continue to be exercisable, in accordance with the terms of the Plan,
after the Plan terminates.
<PAGE>
CORPORATE EXPRESS, INC.
STOCK OPTION CERTIFICATE
This certifies that, pursuant to the Corporate Express, Inc. 1996
Stock Option Plan for Outside Directors, an option to purchase shares of Common
Stock of Corporate Express, Inc. has been granted as follows:
Name and Address
of Optionee:
Position of
Optionee: Non-Employee Director
Date of Grant:
Type of Option: Non-Qualified
Number of shares
subject to Option:
Exercise Price:
Vesting Date:
Expiration Date:
The option is subject to all the terms and conditions of the
aforementioned Plan, a copy of which is attached to this certificate.
Date: CORPORATE EXPRESS, INC.
______________________________
By:
Title:
<PAGE>
EXHIBIT 99.2
CORPORATE EXPRESS, INC.
SUPPLEMENTAL STOCK OPTION PLAN
ARTICLE I
Purpose
The purpose of this Supplemental Stock Option Plan (this "Supplemental
Plan") is to enable Corporate Express, Inc. (the "Company") to offer officers,
key employees, directors and consultants of the Company and its subsidiaries
equity interests in the Company and other incentive awards on substantially
identical terms and conditions as those set forth in the Company's 1994 Stock
Option and Incentive Plan (the "1994 Plan"), a copy of which is attached hereto
as Exhibit A. Capitalized terms used herein but not defined shall have the
meanings set forth in the 1994 Plan.
ARTICLE II
Terms and Conditions
Except as otherwise provided herein, all of the terms and conditions of
the 1994 Plan are hereby incorporated into and made a part of this Supplemental
Plan, with the same force and effect as if such terms had been expressly set
forth in this Supplemental Plan. This Supplemental Plan shall be identical to
the 1994 Plan, except for the following features:
a. Composition of Committee. The Committee shall consist
------------------------
entirely of individuals who satisfy the definition of "non-employee director"
under Section 16 of the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder, and the definition of "outside
director" under Section 162(m) of the Internal Revenue Code of 1986, as
amended, and regulations promulgated thereunder.
b. Delegation of Authority. The Committee may delegate its
-----------------------
responsibilities relating to the selection of Participants or decisions
concerning the timing, pricing and amount of an Award under this Supplemental
Plan to an Administrative Committee of the Company's Board of Directors
appointed by the Company's Board of Directors, provided that the Administrative
Committee shall not have the authority to grant Awards under this Supplemental
Plan to any person who is subject to the reporting requirements under Section 16
of the Securities Exchange Act of 1934, as amended. Awards to such persons may
be made only by the Committee or, in the sole discretion of the Board of
Directors, by the Board of Directors. The Committee or the Board of Directors
(or the Administrative Committee, to the extent of its delegation) may also
authorize the grant of stock options on a date that is within 90 days after the
date of such authorization, provided that the method for determining the date of
grant shall be
<PAGE>
specified at the time of the authorization. The date of grant of any such stock
option shall be the date on which the option is actually granted and not the
date of the authorization.
c. Shares Available for Issuance. The maximum aggregate
-----------------------------
number of shares of Common Stock which may be issued under this Supplemental
Plan shall not exceed a share limit (the "Share Limit") of 10,000,000 shares of
Common Stock (subject to any increase or decrease as contemplated by Section 4.2
of the 1994 Plan). Forfeited or terminated awards under this Supplemental Plan
will be available for future grant to the same extent as set forth in the 1994
Plan.
d. Incentive Stock Options. Stock options granted under
-----------------------
this Supplemental Plan may be treated as incentive stock options (within the
meaning of Section 422 of the Code) only if this Supplemental Plan is approved
by the Company's shareholders within twelve (12) months following the adoption
of this Supplemental Plan.
e. Amendments to this Supplemental Plan. This
------------------------------------
Supplemental Plan may be amended, including but not limited to amendments which
materially increase the Share Limit, materially modify the requirements as to
eligibility to participate in this Supplemental Plan, or materially increase the
benefits accruing to Participants, by the Company's Board of Directors, and
shall not require the approval of the Company's shareholders unless otherwise
required by law.
f. Effective Date and Term. This Supplemental Plan shall
-----------------------
be effective as of the date this Supplemental Plan is approved by the Company's
Board of Directors and no awards may be granted under this Supplemental Plan
after the tenth anniversary of such approval.
ARTICLE III
Effect on 1994 Plan
Nothing herein shall be construed to in any way alter, amend or
modify the 1994 Plan and the 1994 Plan shall continue in full force and effect
until amended or terminated in accordance with its terms.
Adopted by the Company's Board of
Directors on December 5, 1996.
2
<PAGE>
EXHIBIT 99.3
DISTRIBUTION RESOURCES COMPANY
STOCK OPTION PLAN
Section 1. Purpose of the Plan. This Stock Option Plan (the "Plan")
-------------------
for Distribution Resources Company, a Colorado corporation (the "Company"), is
intended to advance the interests of the Company by providing employees with
additional incentive for them to promote the success of the business. This aim
will be effectuated through the granting of certain stock options with respect
to the common stock of the Company having a par value of $.0005 per share
("Stock"). It is not intended that options issued under the Plan will be
qualified options under any provision of the Internal Revenue Code of 1986, as
amended (the "Code").
Section 2. Administration of the Plan. The Plan shall be administered
--------------------------
by the Board of Directors of the Company (the "Board"). The Board may appoint a
committee which may be authorized to administer the Plan on behalf of the Board
and to take any action with respect to the Plan that could be exercised by the
Board subject, however, to ratification by the Board. The Board shall be
authorized, subject to the provisions of the Plan, to establish such rules and
regulations as it deems necessary or advisable for the proper administration of
the Plan and to take such other action in connection with or in relation to the
Plan as it deems necessary or advisable. The interpretation and construction of
any provision of the Plan by the Board shall, unless otherwise determined by the
Board, be final and conclusive on all persons having any interest thereunder.
Without limiting the generality of the foregoing, the Board shall have
authority, in its discretion: (a) to determine from among the employees of the
Company those to whom options shall be granted; (b) to determine the time or
times at which options shall be granted; (c) to determine the number of shares
of Stock covered by each option; (d) to determine the option price of the
shares subject to each option; (e) to determine the time or times when each
option shall become exercisable and the duration of the period during which each
option shall be exercisable. The Board may consult with counsel, who may be
counsel to the Company, and shall not incur any liability for any action taken
in good faith in reliance upon the advice of such counsel.
Section 3. Eligibility. Options shall be granted only to employees of
-----------
the Company. The persons who are eligible to receive options may be members of
the Board.
Section 4. Grant of Options. The Board may grant options on the
----------------
Company's behalf at any time and from time to time (the effective date of grant
being hereinafter referred to as the "Date of Grant"), to any one or more
persons who at such Date of Grant are eligible employees of the Company. The
Board shall determine the number of shares of Stock to be allocated to each
option. The number of shares allocated to an option as of the Date
of Grant of the option may thereafter be adjusted pursuant to the provisions of
Section 9 to reflect a change in the capitalization
<PAGE>
of the Company. The Company shall effect the grant of options under the Plan in
accordance with determinations made by the Board pursuant to the provisions of
the Plan by execution and delivery of written instruments in a form approved by
the Board.
Notwithstanding any other provision of the Plan, (1) any option granted
under the Plan shall be granted within ten years from the effective date of the
Plan and (2) any grant or offer of grant of an option to or acceptance of the
grant of an option by an employee shall be made in person at the principal
offices of the Company in Colorado and any offer, grant or acceptance not made
in person in Colorado shall be null and void and of no effect whatsoever.
Section 5. Stock Subject to the Plan. Subject to the provisions of
-------------------------
Section 9, the aggregate number of shares of Stock which may be issued pursuant
to options granted under this Plan shall not exceed the total amount of the
authorized, but unissued shares of Stock as of the relevant time. Any shares
subject to an option which expires for any reason or is terminated unexercised
as to such shares may again be subject to an option under the Plan.
Section 6. Option Price. The purchase price under each option issued
------------
shall be determined by the Board at the time the option is granted, but in no
event shall such purchase price per share of Stock subject to the option be less
than the par value of a share of Stock on the Date of Grant of the option.
The purchase price per share which is determined as of the Date of Grant
of the option may thereafter be adjusted pursuant to the provisions of Section 9
to reflect a change in the capitalization of the Company.
Section 7. Period of Option and Certain Limitations on Right to
----------------------------------------------------
Exercise.
- --------
(a) Date Exercisable. The date or dates when an option or
----------------
portion or portions of an option shall be exercisable shall be determined by the
Board, in its sole discretion, as of the Date of Grant of the option. If any
option is exercisable in installments, the date or dates on which any
installment becomes exercisable may be accelerated pursuant to the provisions of
Section 8(b).
(b) Duration of Option. All options issued under the Plan shall
------------------
be exercisable for such period as the Board shall determine, but for not more
than ten years from the Date of Grant of such option.
The period of the option, once it is granted, may be reduced as
provided for in Section 8(c) in connection with the termination of employment of
the optionee. Furthermore, the Board may, at any time, in its sole discretion,
accelerate the expiration
- 2 -
<PAGE>
date and the dates on which any part of the option shall be exercisable for all
or any part of the shares covered thereby.
(c) Termination of Employment. In the event that the optionee's
-------------------------
employment with the Company is terminated (whether by reason of death,
retirement, resignation, discharge, permanent and total disability or
otherwise), any option or options granted to such optionee under the Plan, to
the extent not theretofore exercised, shall be deemed cancelled and optionee
shall have no further rights with respect thereto, as of the date of such
termination, except that:
(i) If the optionee's employment with the Company is
terminated by reason of permanent and total disability or retirement, in good
standing as determined by the Board in its reasonable discretion, then on or
prior to the date which is ninety days after the date of such termination of
employment, the optionee may exercise any option or portion thereof, if, and to
the extent that, such option or portion thereof was exercisable on the date of
such termination and remains exercisable in accordance with its terms; and
(ii) If the optionee's employment with the Company is
terminated by reason of the death of the optionee, then the optionee's estate
may exercise any option or portion thereof, if, and to the extent that, such
option or portion thereof was exercisable on the date of death and remains
exercisable in accordance with its terms, on or prior to the date which is
ninety days after the date of death.
(d) No Part Shares. Options may be exercised in whole or in
--------------
part, but only with respect to whole shares of Stock.
(e) Exercise and Payment. The purchase price for shares acquired
--------------------
pursuant to the options shall at the time of purchase be paid in full. To the
extent that the right to purchase shares has accrued thereunder, options may be
exercised from time to time by notice given by delivery by the optionee in
person at the principal offices of the Company in Colorado to the Company
stating the number of shares with respect to which the option is being
exercised, and the time of the delivery thereof, which time shall be at least 15
days after the giving of such notice unless an earlier date shall have been
mutually agreed upon. At the time specified in such notice or mutually agreed
upon, the optionee shall appear in person at the principal offices of the
Company in Colorado to close the transaction. The Company shall, without
transfer or issue tax to the optionee, cause a certificate or certificates for
such shares to be issued in the optionee's name and recorded in the Company's
stock records out of theretofore authorized but unissued or reacquired common
shares as the Company may elect, against payment of the option price in full for
the number of shares to be acquired by certified or bank cashier's check or the
equivalent thereof acceptable to the Company; provided, however, that the time
of this transaction may be
- 3 -
<PAGE>
postponed by the Company for such period as may be required for it with
reasonable diligence to comply with any applicable law or regulation or any
applicable listing requirements of any national securities exchange. If the
optionee fails to pay for all or any part of the number of shares specified in
such notice, his right to exercise the option with respect to such unpaid for
shares may be terminated by the Company. Any attempt to exercise the option by
any method other than appearance in person at the principal offices of the
Company in Colorado shall be null and void and of no effect whatsoever.
Section 8. Dilution and Other Adjustments. In the event of any change
------------------------------
in the Stock subject to the Plan, by reason of any stock dividend or split,
recapitalization, combination or exchange of shares of Stock, or other similar
changes in the Stock, the Board will make appropriate adjustments to (i) the
aggregate number of shares of Stock subject to the Plan and (ii) the number of
shares of Stock and the price per share of Stock subject to outstanding options.
Section 9. Rights as Shareholder. The optionee shall have no rights as
---------------------
a shareholder with respect to any shares covered by any option granted under the
Plan until the date of exercise of the option. After the option is exercised,
the Company shall retain physical possession of the stock certificate at its
principal offices in Colorado. However, the person who exercised the option
shall be a shareholder in all other respects. No adjustment shall be made for
dividends or other rights for which the record date is prior to the date of
exercise of the option. Notwithstanding any other provision of the Plan or
applicable law, if a stock certificate is to be delivered for any reason to the
optionee, such delivery shall only be made to the optionee in person at the
principal offices of the Company in Colorado.
Section 10. Non-Transferability of Option. The terms of any option
-----------------------------
granted under this Plan shall include a provision making such option
non-transferable by the optionee (other than to the optionee's estate in the
event of termination of employment with the Company by reason of death) and
exercisable during the optionee's lifetime only by the optionee.
Section 11. Restriction on Transfers; Company's Right to Redeem and
-------------------------------------------------------
Securities Law Requirements. As a condition of participation in the Plan, the
- ---------------------------
employee shall agree in the option or such other documents as the Company deems
necessary or advisable that (i) any Stock acquired pursuant to or by reason of
the Plan shall be subject to restrictions on transferability, (ii) the Company
shall have a right to redeem the Stock acquired pursuant to or by reason of the
Plan, and (iii) the employee shall cooperate with the Company to comply with
securities law requirements, all in accordance with the following:
(i) Restrictions on Transfers. The employee shall agree not to
-------------------------
sell, transfer, pledge, hypothecate, assign, or
-4-
<PAGE>
otherwise, in any manner, dispose of any of the employee's Stock acquired
pursuant to the Plan, or any Stock acquired with respect to such Stock, whether
by dividend, stock split or otherwise, or any right or interest therein or under
the Plan, whether voluntarily or by operation of law, or by gift, or otherwise,
without the prior written consent of the Company. Any purported sale, transfer,
pledge, hypothecation, assignment, or other disposition of the shares by the
employee, shall be null and void and without effect and shall not vest any
interest or title in the purported transferee. No dividends shall be paid to the
holder of any of the Stock sold, transferred, assigned, hypothecated, pledged,
or otherwise disposed of in breach of this covenant, nor shall the holder of
such shares be entitled to vote or to exercise any rights of a shareholder for
any purpose whatsoever.
The foregoing restrictions shall not apply (1) in the case of a Sale of
the Company or (2) in the case of a sale of the Stock or after Stock is sold by
the Company or by the shareholders of the Company pursuant to a public offering
registered under the Securities Act of 1933, as amended (other than our offering
primarily to employees). The foregoing also shall not apply to any transfer at
death to an executor, personal representative or other person duly authorized by
a court of competent jurisdiction to represent the estate of a deceased
participant, and any transfer to a beneficiary or other distributee of the
estate of a deceased participant, but the distributee shall be bound by the
restrictions on the transferability of the shares and the Company's right to
redeem.
(ii) Company's Right to Redeem. If the employee's employment
-------------------------
by the Company is terminated (whether by reason of death, retirement,
disability, resignation, discharge or any other reason), then, within 1 year
after such termination of employment, the Company may, in its sole discretion,
redeem all shares of the employee's Stock acquired pursuant to the Plan or any
Stock acquired with respect to such Stock, whether by dividend, stock split or
otherwise, for the total amount that the employee paid for such shares. Upon
payment by the Company, the Company may return the stock certificate to the
Company. The Company will be empowered to act as the employee's
attorney-in-fact to make such endorsements and execute such stock powers as may
be necessary to effect the redemption contemplated under this Section 11(ii).
The foregoing right to redeem shall not apply (1) in the case of a sale
of Stock or after Stock is sold by the Company or the shareholders of the
Company pursuant to a public offering registered under the Securities Act of
1933, as amended (other than our offering primarily to employees) or (2) in
the case of a Sale of the Company.
(iii) Securities Requirements. At the time of grant of the
-----------------------
option or at the time of the exercise of the option or at any other time, the
Company may require the employee to execute any documents or take any action
which may be then
- 5 -
<PAGE>
necessary to comply with the Securities Act of 1933 and the rules and
regulations adopted thereunder, or any other applicable federal or state laws
regulating the sale and issuance of securities, and the Company may, if it deems
necessary, include provisions in the option or any other agreements to ensure
such compliance. The Company may, from time to time, change its requirements
with respect to enforcing compliance with the federal and state securities laws,
including the request for and enforcement of letters of investment intent, such
requirements to be determined by the Company in its judgment as necessary to
assure employee compliance with said laws. The Board shall consult with legal
counsel to ensure compliance with all applicable securities laws.
Each employee will also agree that in the event the Company sells its
stock pursuant to a registration statement filed under the Securities Act of
1933, the employee will not sell any of his shares during such period of time
as is requested by the Company pursuant to a request or recommendation by the
underwriters of such offering or any state's Blue Sky Commission. In addition,
the employee will agree to escrow his shares in connection with a public
offering if requested by the Company pursuant to a request or recommendation by
the underwriter or any state's Blue Sky Commission.
For purposes of this Section "Sale of the Company" shall mean (a) any
sale or other transfer by the Company of all or substantially all of its assets
or business, (b) a merger, consolidation or other combination to which the
Company is a party other than the Company's acquisition of another business, (c)
any distribution of a material portion of the assets of the Company to its
shareholders, (d) any sale or transfer of ownership of more than 50% of the
outstanding shares of Common Stock of the Company, or (e) any other transaction
which effectively results in the transfer of the assets or business of the
Company or of the beneficial ownership of more than 50% of the outstanding
Common Stock of the Company.
Section 12. Effective Date of Plan. The Plan is effective as of the
----------------------
date of adoption of the Plan by the Board and will continue from year to year,
but may be modified or discontinued by the Board at any time as provided in
Section 13.
Section 13. Amendment and Termination of the Plan. The Board may at
-------------------------------------
any time terminate the Plan or may make such amendment of the Plan effective in
such date subsequent to the taking of such Board action, as the Board may deem
proper and in the best interests of the Company, in each case without the assent
of any employee or action by the Company's shareholders; provided, however, that
no amendment shall be made in any year without the approval of the Company's
shareholders which (i) materially increases the benefits accruing to employees
under the Plan, (ii) materially increases the number of securities which may be
issued under the Plan or (iii) materially modifies the requirements as to
eligibility for participation in the Plan.
- 6 -
<PAGE>
Section 14. No Right to Continued Employment. Nothing contained
--------------------------------
in this Plan shall confer upon any eligible employee any right to continued
employment by the Company or limit in any way whatsoever the right of the
Company to terminate any such employee's employment at any time for any reason
whatsoever.
Section 15. Governing Law. The Plan and all determinations made and
-------------
actions taken pursuant thereto shall be governed by the laws of the State of
Colorado and construed in accordance therewith.
- 7 -
<PAGE>
EXHIBIT 99.4
COMPUTER SOFTWARE INC.
INCENTIVE STOCK OPTION PLAN
1. Purpose and Effect of the Plan. This Incentive Stock Option Plan
------------------------------
(the "Plan") is intended to promote the interests of Computer Software Inc. (the
"Corporation") and its shareholders by encouraging certain key employees who
will be responsible for the future growth and continued development of the
Corporation to increase their equity ownership in the Corporation through the
purchase of the Corporation's Class B Non-Voting Common Stock thereby giving
them, as shareholders, an increased personal interest in, and a greater concern
for, the Corporation's continued success and progress. The Plan is also intended
to aid the Corporation in competing with other enterprises for the services of
new executives and key employees needed to help insure continued development.
2. Name. The Plan shall be known as the "Computer Software Inc.
----
Incentive Stock Option Plan."
3. Definition of Terms. In addition to words and terms that may be
-------------------
defined elsewhere in the Plan, the following words and terms as used in the Plan
shall have the following meanings unless the context or use fairly indicates
another or different meaning or intent, which definitions shall be equally
applicable to both the singular and plural forms of such words and terms.
A. "Board" shall mean the Board of Directors of the Corporation.
B. "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
C. "Common Stock" shall mean the Class B Non-Voting Common Stock
of the Corporation having a par value of One Cent ($0.01) per share.
D. "Participant" shall mean the officer or employee of the
Corporation to whom an option is granted under the Plan.
E. "Parent" shall mean any corporation which at the time
qualifies as a parent of the Corporation under the definition of
"parent corporation" contained in Code Section 424(e).
F. "Subsidiary" shall mean any corporation which at the time
qualifies as a subsidiary of the Corporation under the definition of
"subsidiary corporation" contained in Code Section 424(f).
4. Incentive Stock Options. Options granted in
-----------------------
<PAGE>
accordance with the terms hereof are to be incentive stock options as
provided in Code Section 422.
5. Administration. The Plan shall be administered by the Board. The
--------------
Board may interpret the Plan, prescribe, amend and rescind any rules and
regulations necessary or appropriate for the administration of the Plan and make
such other determinations and take such other action as it deems necessary or
desirable (i) to assure that all options granted under the Plan constitute
"incentive stock options" under Code Section 422, (ii) for the administration of
the Plan, and (iii) for the protection of the Corporation except as otherwise
all reserved to the shareholders of the Corporation. Without limiting the
generality of the foregoing, the Board, in its discretion, may treat all or any
part of any period not in excess of ninety (90) days during which a Participant
is on military duty or on an approved leave of absence from the Corporation as a
period of employment of such Participant by the Corporation for purposes of
accrual of his or her rights under his or her option. In addition, the Board
shall have the specific authority to grant options with different terms to
different Participants, and shall further have the specific authority to require
a minimum holding period between the grant and time of exercise of all or any
portion of any options as well as the time of disposition of any common stock
acquired through the exercise of any option and to determine that the options
granted to a Participant may be exercised only in installments or pursuant to
any vesting schedule. Any interpretation, determination or other action made or
taken by the Board shall be final, binding and conclusive. No member of the
Board shall be liable for any action taken or omitted or determination made in
good faith with respect to the Plan or any option granted under the Plan.
6. Shares Subject to Plan. As of June 1, 1995, the Corporation is
----------------------
authorized to issue 20,000 shares of Class A voting common stock (the "Class A
Stock") and 1,980,000 total shares of Common Stock of which 5,000 shares of
Class A Stock and 550,000 shares of Common Stock are issued and outstanding.
Options may be granted by the Corporation from time to time to purchase an
aggregate of 530,000 shares of Common Stock, subject to adjustment as provided
in Item 11 below. The shares issued upon exercise of options granted under the
Plan may be authorized and unissued shares or shares held by the Corporation as
treasury stock. If any option granted under the Plan shall terminate, expire
or, with the consent of the Participant, be cancelled as to any shares, new
options may thereafter be granted covering any such shares.
7. Eligibility. Options may be granted to those employees of the
-----------
Corporation (including officers, whether or not they are directors) selected by
the Board from time to time who have and exercise key management functions and
responsibilities for the Corporation. The granting of an option to any employee
shall neither entitle such employee to, nor disqualify such employee from,
participation in any future option grants.
8. Grant of Options. The Board shall have the authority, subject to
----------------
the terms of the Plan, to: (a) determine and designate from time to time those
employees of the Corporation to whom options are to be granted provided that no
director of the Corporation who is not also an employee of the Corporation shall
be entitled to receive any option under the Plan; (b) determine
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the number of shares subject to each option; (c) determine the duration of the
exercise period for any option; and (d) determine that the options granted to a
Participant may be exercised only in installments. The date of grant of an
option under the Plan will be the date on which the option is awarded by the
Board.
9. Terms and Conditions of Options. Each option shall be evidenced
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by an option agreement which shall contain such terms and conditions consistent
with the provisions of the Plan as may be approved by the Board and shall be
signed by the President of the Corporation and the Participant. Each option
granted under the Plan shall be subject to the terms and conditions contained in
Paragraph A through F below and to such other terms and conditions as the Board
may deem appropriate; provided, however, that no option shall be subject to any
condition that is inconsistent with the provisions of Code Section 422. In the
event that any condition imposed hereunder on an option is at any time
determined by the Internal Revenue Service or a court of competent jurisdiction
to be inconsistent with Code Section 422, then each option shall be deemed to
have been granted without such condition and such option shall continue in
effect under such remaining terms and conditions as may be applicable as if the
invalid condition had not been included.
A. Option Period. Each option agreement shall specify (i) the period
-------------
during which all or any identifiable portion of the option thereunder
is exercisable (which period shall not exceed ten (10) years from the
date of grant but may be shorter than said ten year period if so
determined by the Board) and (ii) shall provide that the option shall
expire at the end of such period.
B. Option Price. The option price per share shall be determined by
------------
the Board at the time any option is granted, and shall not be less
than one hundred (100%) percent of the fair market value of a share of
Common Stock on the day that the option is granted. Such price shall
be subject to adjustment as hereinafter provided under this Item 9 and
as provided in Item 11. In the event that the Corporation's Common
Stock is listed upon an established stock exchange, such fair market
value shall be deemed to be the closing price of the Corporation's
Common Stock on such stock exchange on the day the option is granted
or, if no sale of the Corporation's Common Stock shall have been made
on any stock exchange on that day, the fair market value shall be
determined as such price for the next preceding day upon which a sale
shall have occurred. In the event that the Corporation's Common Stock
is not listed upon an established exchange but is quoted on the
National Association of Securities Dealers Automated Quotation System
("NASDAQ"), the fair market value shall be deemed to be the mean
between the closing dealer "bid" and "asked" prices for the
Corporation's Common Stock as quoted on NASDAQ for the day of the
grant, and if no "bid" and "asked" prices are quoted for the day of
the grant, the fair market value shall be determined by reference to
such prices on the next preceding day on which such prices are
quoted. In the event that the Corporation's Common Stock is neither
listed on an
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established stock exchange nor quoted on NASDAQ, the fair market value
on the day the option is granted shall be determined in good faith by
the Board.
C. Ten Percent Shareholders. Options shall not be granted to any
------------------------
employee who, immediately before the option is granted, owns stock
possessing more than ten (10%) percent of the total combined voting
power of all classes of capital stock of the Corporation or of its
Parent or Subsidiary; provided, however, that this prohibition shall
not apply if at the time such option is granted the option price is at
least one hundred ten (110%) percent of the fair market value of the
Common Stock and such option is not exercisable after the expiration
of five (5) years from the date such option is granted.
D. Maximum Option Exercise. The aggregate value of the shares
-----------------------
(valued at time of grant in accordance with Paragraph B above) for
which any Participant may exercise incentive stock options for the
first time in any calendar year (under all incentive stock option
plans of the Corporation and any Parent and Subsidiary) shall not
exceed $100,000.
E. Termination of Employment. The option of any Participant who
-------------------------
shall cease to be an employee of the Corporation shall immediately
terminate upon such cessation of employment, except as otherwise
provided in an Option Agreement signed by the President of the
Corporation and the Participant or except when such cessation of
employment is caused by the death or the permanent and total
disability of the Participant. The personal representative of the
Participant (in the event of his or her death or permanent and total
disability resulting in his or her incapacity) or the Participant (in
the event of his or her permanent and total disability not resulting
in his or her incapacity) may, subject to the provisions hereof and
before the earlier of the option's expiration date or the expiration
of three (3) months after the date of such death or permanent and
total disability, exercise the option granted to such Participant to
the same extent that the Participant might have exercised such option
on the date of his or her death or permanent and total disability, but
not further or otherwise. To the extent that any option is not
exercisable at the date of the death or permanent or total disability
of a Participant or is not exercised in accordance herewith, it shall
terminate at the earlier of the option's expiration date or the
expiration of the three (3) month period following such death or
permanent and total disability. For purposes of this Paragraph, (i) a
Participant shall be considered to be subject to a permanent and total
disability when such Participant is determined to be permanently and
totally disabled under the applicable terms and provisions of any
Option Agreement entered into between said Participant and the
Corporation or, in the event such Option Agreement fails to so
provide, then within the meaning of Code Section 22(e)(3), and (ii)
the date of any such total and permanent disability shall be deemed to
be the day following the last day the Participant performed services
for the Corporation. Nothing in the Plan
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shall be construed as imposing any obligation on the Corporation to
continue the employment of any Participant.
F. Period of Exercise Option. Any option granted hereunder may, prior
-------------------------
to its expiration or termination, be exercised from time to time, in
whole or in part, up to the total number of shares with respect to which
it shall have then become exercisable. An option granted hereunder may
become exercisable in installments or pursuant to vesting schedule all as
determined by the Board; provided, however, that if the Board grants an
option or options exercisable in more than one installment or pursuant to
any vesting schedule, and if the employment of a Participant holding such
option is terminated by death or permanent and total disability as
provided in Paragraph E above, then the option shall be exercisable in
accordance with the terms of Paragraph E only as to such number of shares
as to which the Participant had the right to exercise the option on the
day immediately preceding the date of death or permanent and total
disability.
10. Exercise of Option. The exercise of any option under the Plan
------------------
shall be subject to the provisions of paragraphs A, B and C below.
A. Method of Exercising Option. Any option granted hereunder or any
--------------------------
portion thereof may be exercised by the Participant by delivering to the
Corporation at its main office (attention of its President) written
notice of the number of shares with respect to which the option rights
are being exercised and by paying in full the purchase price of the
shares purchased. Upon receipt of such notice and payment, the
Corporation shall issue and deliver to the Participant a certificate for
the number of shares of Common Stock with respect to which options were
so exercised.
B. Payment of Purchase Price. The purchase price of the shares as to
-------------------------
which an option is exercised shall be paid in full to the Corporation at
the time of exercise. The payment may be made either in credit or its
equivalent, or, if acceptable and agreed to by the Board at the time of
such exercise, with stock of the Corporation previously acquired by the
Participant; provided, however, that the Board, in its discretion, may
refuse, suspend or terminate the right of Participants to pay with stock
of the Corporation should the Board deem such action to be in the best
interests of the Corporation.
C. Withholding. The Corporation's obligation to deliver shares on the
-----------
exercise of any option shall be subject to any applicable federal, state
and local tax withholding requirements.
11. Capital Adjustments. The number and price of shares of Common
-------------------
Stock covered by each option and the total number of shares that may be optioned
and sold under the Plan shall be proportionately adjusted to reflect any stock
dividend, stock split or share
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combination of the Common Stock or any recapitalization of the Corporation
occurring on or after May 1, 1995. In the event of any merger, consolidation,
reorganization, liquidation or dissolution of the Corporation, or any exchange
of shares involving the Common Stock, any option granted under the Plan shall
automatically be deemed to pertain to the securities and other property to which
a holder of the number of shares of Common Stock covered by the option would
have been entitled to receive in connection with any such event. No option
granted pursuant to this Plan shall be adjusted in a manner that causes the
option to fail to qualify as an incentive stock option within the meaning of
Code Section 422A. Except as expressly provided in this Item 11, the Participant
shall have no rights by reason of any change in stock in the Corporation or any
subsequent issuance of additional options covering additional shares of Common
Stock by the Corporation. The grant of an option pursuant to this Plan shall not
affect in any way the right of power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge, consolidate, dissolve, liquidate, sell or transfer all or
any part of its business or assets. The Board shall have the sole discretion to
make all interpretations and determinations required under this Item to the
extent it deems equitable and appropriate.
12. Reservation of Shares. The Corporation, during the term of any
---------------------
options granted hereunder, will at all times reserve and keep available, and
will seek to obtain from any regulatory body having jurisdiction any requisite
authority in order to issue and sell such number of shares of Common Stock as
shall be sufficient to satisfy the requirements of the options granted under the
Plan. If, in the opinion of the Corporation's counsel, the issuance or sale of
any shares of the Corporation's stock hereunder shall not be lawful for any
reason, including the inability of the Corporation to obtain from any regulatory
body having jurisdiction authority deemed by such counsel to be necessary for
such issuance of sale, the Corporation shall not be obligated to issue or sell
any such shares.
13. Securities Laws. Upon the exercise of an option at a time when
---------------
there is not in effect under the Securities Act of 1933, as amended (the "Act"),
a current registration statement relating to the shares of Common Stock to be
received upon such exercise, the Participant shall represent and warrant in
writing to the Corporation that the shares purchased are being acquired for
investment and not with a view to the distribution thereof and shall agree to
the imposition of a legend on the certificate or certificates representing said
shares in substantially the following form and such other restrictive legends as
are required or advisable under the provisions of any applicable laws:
This stock certificate and the shares represented hereby have not been
registered under the Securities Act of 1933, as amended (the "Act"),
nor under any state securities laws and shall not be transferred at
any time in the absence of (i) an effective registration statement
under the Act with respect to such shares at such time; or (ii) an
opinion of counsel satisfactory to the Corporation and its counsel,
to the effect that such transfer at such time will not violate the
Act or any applicable state
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securities laws; or (iii) a "no action" letter from the Securities and
Exchange Commission and a comparable ruling from any applicable state
agency with respect to such state's securities laws.
No shares of Common Stock shall be issued or sold upon the
exercise of any option unless and until (i) the full amount of the purchase
price has been paid as provided in Item 10 hereof and (ii) the then applicable
requirements of the Act, the applicable securities laws of any other
jurisdiction, as any of the same may be amended, the rules and regulations of
the Securities and Exchange Commission and any other regulations of any
securities exchange on which the Common Stock may be listed shall have been
fully complied with and satisfied.
14. Transferability of Options. No option shall be assignable or
--------------------------
transferable by a Participant except by will or by the laws of descent and
distribution. Any distributee by will or by the laws of descent and
distribution shall be bound by the provisions of the Plan. During the life of a
Participant, the option shall be exercisable only by such Participant. Any
attempt to assign, pledge, transfer, hypothecate or otherwise dispose of an
option and any levy of execution, attachment or similar process on an option
shall be null and void ab initio.
15. No Rights as Shareholders. A Participant shall not have any
-------------------------
rights as a shareholder with respect to any shares covered by any option granted
hereunder until the exercise of such option and the issuance of a stock
certificate for such shares. No adjustment shall be made on the issuance of a
stock certificate to a Participant as to any dividends or other rights for
which the record date occurred prior to the date of issuance of such
certificate.
16. Indemnification and Exculpation. Each person who is or shall have
-------------------------------
been a member of the Board shall be indemnified and held harmless by the
Corporation against and from any and all loss, cost, liability or expense that
may be imposed upon or reasonably incurred by him or her in connection with or
resulting from any claim, action, suit or proceeding to which he or she may be
or become involved by reason of any action taken or failure to act under the
Plan and against and from any and all amounts paid by him or her in settlement
thereof (with the Corporation's written approval) or paid by him or her in
satisfaction of a judgment in any such action, suit or proceeding, except a
judgment in favor of the Corporation based upon a finding of his or her lack of
good faith; subject, however, to the condition that upon the institution of any
claim, action, suit or proceeding against him or her, he or she shall in writing
give the Corporation an opportunity, at its expense, to handle and defend the
same before he or she undertakes to handle and defend it on his or her own
behalf. The foregoing right of indemnification shall not be exclusive of any
other right to which such person may be entitled as a matter of law or
otherwise, or any power that the Corporation may have to indemnify him or her or
hold him or her harmless. Each member of the Board, and each officer and
employee of the Corporation shall be fully justified in relying or acting in
good faith upon any information furnished in connection with the administration
of the Plan by any appropriate person or persons other than himself or herself.
In no event shall any person who is or shall have been a member of the Board, or
an officer or employee of the Corporation, be held liable for any determination
7
<PAGE>
made, or other action taken, or any omission to act in reliance upon any such
information as referred to in the preceding sentence, or for any action
(including the furnishing of information) taken, or any omission to act, when
any such determination, action or omission is made in good faith.
17. Use of Proceeds. Proceeds from the sale of stock pursuant to
---------------
options granted under the Plan shall constitute general funds of the
Corporation.
18. Amemdment and Discontinuance. The Board or the shareholders of the
----------------------------
Corporation may terminate or amend the Plan in any respect at any time, except
that no action of the Board or the shareholders may alter or impair a
Participant's rights under any outstanding option without such Participant's
consent and, without the prior approval of the shareholders: (i) the total
number of shares that may be optioned and sold under the Plan may not be
increased beyond 530,000 (except by adjustment pursuant to Item 11), (ii) the
price at which shares may be purchased pursuant to options granted hereunder may
not be reduced (except by adjustment pursuant to Item 11), (iii) the expiration
date of the Plan may not be extended, (iv) the Plan may not be changed in such a
manner that the options granted hereunder would fail to qualify as incentive
stock options under Code Section 422, and (v) the provisions of this Item 18 may
not be changed.
19. Term of Plan. The Plan shall be effective as of the date of the
------------
adoption of the Plan by the Board and the stockholders of the Corporation (the
"Adoption Date") and shall expire on the date which is one day prior to the ten
(10) year anniversary of the Adoption Date, unless sooner terminated as provided
in Item 18 hereof.
20. General. Except as the same may be governed by the Code and any
-------
applicable federal securities laws, the Plan and any options granted hereunder
shall be governed by and construed in accordance with the laws of the State of
Georgia. The granting of an option shall impose no obligation upon the optionee
to exercise such option. As herein used, the singular number shall include the
plural, the plural the singular, and the use of any gender shall be applicable
to all genders, unless the context or use shall fairly require a different
construction. Section or paragraph headings are employed herein solely for
convenience of reference, and such headings shall not affect the validity,
meaning or enforceability of any provision of the Plan. All references herein
to "Item" or "paragraph" shall mean the appropriately numbered Item or paragraph
of the Plan except where reference is made to the Code or any other specified
law or instrument.
AS APPROVED BY THE STOCKHOLDERS OF THE CORPORATION EFFECTIVE
JUNE 1, 1995.
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