Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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POMEROY COMPUTER RESOURCES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 31-1227808
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1020 Petersburg Road, Hebron, KY 41048
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(Address of Principal Executive Offices) (Zip Code)
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1998 EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
__________
Stephen E. Pomeroy
Chief Financial Officer and Treasurer
Pomeroy Computer Resources, Inc.
1020 Petersburg Road, Hebron, KY 41048
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(Name and address of agent for service)
(606) 586-0600
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(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum Amount of
Securities To Be Amount To Be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price Fee(1)
<S> <C> <C> <C> <C>
Common Stock, 100,000 shares $ 18.25 $ 1,825,000 $ 507.35
$.01 par value
<FN>
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(1) Pursuant to Rule 457(h)and Rule 457(c), the proposed maximum offering price is
estimated, solely for purposes of calculating the registration fee, on the basis of the
average of the high and low price of the Common Stock reported on the NASDAQ National
Market on March 18, 1999.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION
Omitted pursuant to the instructions and provisions of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN INFORMATION
Omitted pursuant to the instructions and provisions of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Pomeroy Computer Resources, Inc. (the
"Registrant" or the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated by reference in this registration statement:
(a) The Company's Annual Report on Form 10-K for the year ended
January 5, 1998, as amended;
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended April 5, 1998, July 5, 1998 and October 5, 1998;
(c) The Company's Current Reports on Form 8-K filed on February 26,
1998, March 2, 1998, March 16, 1998, April 7, 1998 and January
29, 1999;
(d) The description of the Registrant's common stock, par value $.01
per share (the "Common Stock"), contained in the Registrant's
Registration Statement on Form S-1, as amended, dated April 2,
1992 (Registration No, 33-45728).
All documents subsequently filed 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 have been
sold or which deregisters all of such 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, except as to any
portion of any future annual or quarterly report to stockholders or document
that is not deemed filed under such provisions. For the purposes of this
Registration statement, any statement in a document incorporated by reference
shall be deemed to be modified or superseded to the extent that a statement
contained in this Registration Statement modifies or supersedes a statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Stock being offered hereby will be passed
upon for the Company by Lindhorst & Dreidame Co., L.P.A., Cincinnati, Ohio. Mr.
James H. Smith, III, a stockholder in the firm, is a Director of the Company.
Mr. Smith beneficially owns 14,798 shares of Common Stock of the initial
cap company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
Delaware corporation to indemnify present and former directors, officers,
employees or agents of the corporation. The Company's Certificate of
Incorporation and Bylaws provide for indemnification of directors and officers
of the Company to the fullest extent permitted by the DGCL. The Company's
Certificate of Incorporation provides that the Company shall indemnify to the
fullest extent authorized under the DGCL each person who was or is made a party
to, or is threatened to be made a party to, or is involved in, any action, suit
or proceeding by reason of the fact such person is or was a director or officer
of the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or enterprise, including
service with respect to employee benefit plans, against all expense, liability
and loss (including attorney's fees, judgments, fines, ERISA excise taxes and
penalties, and amounts paid in settlement) reasonably incurred by such person in
connection therewith provided that the applicable standards of conduct under the
DGCL are satisfied. These standards are, with respect to civil proceedings, that
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Company or its stockholders
and, with respect to criminal proceedings, such person had no reasonable cause
to believe his or her conduct was unlawful. However, under the DGCL, with
respect to claims by or in the right of the Company, no indemnification may be
made in respect of any such claim, issue or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct in the performance
of his or her duty to the Company except to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine that despite such adjudication and in view of all the circumstances of
the case, such person is fairly and reasonably entitled to such indemnity as
such court deems proper.
The Company has in effect an insurance policy that covers any negligent act,
error or omission of a director or officer, subject to certain exclusions. The
limit of liability under the policy is $5,000,000 in the aggregate annually for
coverage in excess of deductibles and covers only 30% of securities claims.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration
Statement:
<TABLE>
<CAPTION>
Number Description
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<C> <S>
4.1 Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 to the Company's Annual Report on Form 10-K for
the fiscal year ended January 5, 1998)
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4.2 Bylaws (incorporated by reference to Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the fiscal year ended
January 5, 1998)
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4.3 1998 Employee Stock Purchase Plan
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5.1 Opinion of Lindhorst & Dreidame, L.P.A.
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23.1 Consent of Lindhorst & Dreidame, L.P.A. (included in Exhibit
5.1 hereto)
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23.2 Consent of Grant Thornton LLP, independent auditors
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24.1 Power of Attorney (included on signature page)
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</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes that:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement 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;
(2) That, for 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 the
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's or the Plan's annual report
to Section 13(a) or Section 15(d) of the Exchange Act 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
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefor,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Hebron, Commonwealth of Kentucky, on the 23rd day of March,
1999.
POMEROY COMPUTER RESOURCES, INC.
By: /s/ Stephen E. Pomeroy
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Stephen E. Pomeroy
Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Pomeroy Computer
Resources, Inc., do hereby make, constitute and appoint Stephen E. Pomeroy our
true and lawful attorneys-in-fact and agent, with power to act without any other
and with full power of substitution, to do any and all acts and things in our
name and behalf in our capacities as directors and officers, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
or any related Registration Statement that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to
file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
Chairman of the Board of
Directors, President and
* Chief Executive Officer
DAVID B. POMEROY, II
* Director
Richard C. Mills
Director, Chief Financial
/s/ Stephen E. Pomeroy Officer and Treasurer March 23, 1999
Stephen E. Pomeroy
* Director
James H. Smith, III
* Director
David W. Rosenthal
* Director
Michael E. Rohrkemper
* Director
William Lomicka
</TABLE>
*By: /s/ Stephen E. POMEROY
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Stephen E. Pomeroy
ATTORNEY-IN-FACT
EXHIBIT INDEX
Exhibit
Number Description
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4.3 1998 Employee Stock Purchase Plan.
5.1 Opinion of Lindhorst & Dreidame.
23.2 Consent of Grant Thornton LLP, independent auditors.
24.1 Power of Attorney (included on the signature page).
<PAGE>
Exhibit 4.3
POMEROY COMPUTER RESOURCES, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1998 Employee Stock Purchase
Plan of Pomeroy Computer Resources, Inc.
I. Purpose. The purpose of the Plan is to provide employees of the
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Company and its Designated Subsidiaries with an opportunity to purchase shares
of Common Stock of the Company. It is the intention of the Company to have the
Plan qualify as an "Employee Stock Purchase Plan" under Section 423 of the
Internal Revenue Code of 1986, as amended. The provisions of the Plan shall,
accordingly, be construed so as to extend and limit participation in a manner
consistent with the requirements of that section of the Code.
2. Definitions.
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(a) "Board" shall mean the Board of Directors of the Company.
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(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
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(c) "Common Stock" shall mean the common stock, par value $.01, of
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the Company.
(d) "Company" shall mean Pomeroy Computer Resources, Inc., a Delaware
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corporation.
(e) "Compensation" shall mean all regular straight time gross
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earnings and commissions, and shall not include payments for
overtime, shift premium, incentive compensation, incentive
payments, bonuses and other compensation.
(f) "Continuous Status as an Employee" shall mean the absence of any
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interruption or termination of service as an Employee. Continuous
Status as an Employee shall not be considered interrupted in the
case of a leave of absence agreed to in writing by the Company,
provided that such leave is for a period of not more than 90 days
or reemployment upon the expiration of such leave is guaranteed
by contract or statute.
(g) "Contributions" shall mean all amounts credited to the account of
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a participant pursuant to the Plan.
(h) "Designated Subsidiaries" shall mean the Subsidiaries which have
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been designated by the Board from time to time in its sole
discretion as eligible to participate in the Plan.
(i) "Employee" shall mean any person. including an Officer, who is
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customarily employed for at least twenty (20) hours per week and
more than five (5) months in a calendar year by the Company or
one of its Designated Subsidiaries.
(j) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended.
(k) "Exercise Date" shall mean the last day of each offering period
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of the Plan.
(I) "Offering Date" shall mean the first business day of each
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Offering Period of the Plan.
(m) "Offering Period" shall mean a period of six (6) months
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commencing on January 1 and July 1 of each year.
(n) "Officer" shall mean a person who is an officer of the Company
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within the meaning of Section 16 of the Exchange Act and the
rules and regulations promulgated thereunder.
(o) "Plan" shall mean the 1998 Employee Stock Purchase Plan of
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Pomeroy Computer Resources, Inc.
(p) "Subsidiary" shall mean a corporation, domestic or foreign, of
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whichnot less than 50% of the voting shares are held by the
Company or a Subsidiary, whether or not such corporation now
exists or is hereafter organized or acquired by the Company or a
Subsidiary.
3. Eligibility.
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(a) Any person who is an Employee as of the Offering Date of a given
Offering Period shall be eligible to participate in such Offering
Period under the Plan, subject to the requirements of Section
5(a) and the limitations imposed by Section 423(b) of the Code.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) if,
immediately after the grant, such Employee (or any other person
whose stock would be attributed to such Employee pursuant to
Section 424(d) of the Code) would own stock and/or hold
outstanding options to purchase stock possessing five percent
(5%) or more of the total combined voting power or value of all
classes of stock of the Company or of any subsidiary of the
Company, or (ii) if such option would permit his or her rights to
purchase stock under all employee stock purchase plans (described
in Section 423 of the Code) of the Company and its Subsidiaries
to accrue at a rate which exceeds Twenty-Five Thousand Dollars
($25,000) of fair market value of such stock (determined at the
time such option is granted) for each calendar year in which such
option is outstanding at any time.
4. Offering Periods.
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(a) The Plan shall be implemented by a series of Offering Periods of
six (6) months duration, other than the first Offering Period,
with new Offering Periods commencing on or about January 1 and
July 1 of each year (or at such other time or times as may be
determined by the Board of Directors). The Plan shall continue
until terminated in accordance with Section 19 hereof. The Board
of Directors of the Company shall have the power to change the
duration and/or the frequency of Offering Periods with respect to
future offerings without stockholder approval if such change is
announced at least fifteen (15) days prior to the scheduled
beginning of the first Offering Period to be affected. Eligible
employees may not participate in more than one Offering Period at
a time.
5. Participation.
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(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement on the form provided by the
Company and filing it with the Company's payroll office prior to
the applicable Offering Date, unless a later time for filing the
subscription agreement is set by the Board for all eligible
Employees with respect to a given offering. The subscription
agreement shall set forth the percentage of the participant's
Compensation (which shall be not less than 1% and not more than
15%) to be paid as Contributions pursuant to the Plan.
(b) Payroll deductions shall commence on the first payroll following
the Offering Date and shall end on the last payroll paid on or
prior to the Exercise Date of the Offering Period to which the
subscription agreement is applicable unless sooner terminated by
the participant as provided in Section 10.
6. Method of Payment of Contributions.
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(a) The participant shall elect to have payroll deductions made on
each payday during the Offering Period in an amount not less than
one percent (1%) and not more than fifteen percent (15%) of such
participant's Compensation on each such payday. All payroll
deductions made by a participant shall be credited to his or her
account under the Plan. A participant may not make any additional
payments into such account.
(b) A participant may discontinue his or her participation in the
Plan as provided in Section 10, or, on one occasion only during
the Offering Period, may decrease the rate of his or her
Contributions during the Offering Period by completing and filing
with the Company a new subscription agreement. The change in rate
shall be effective as of the beginning of the next calendar month
following the date of filing of the new subscription agreement,
if the agreement is filed at least ten (10) business days prior
to such date and, if not, as of the beginning of the next
succeeding calendar month.
(c) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and Section 3(b) herein, a
participants payroll deductions may be decreased to 0% at such
time during any Offering Period which is scheduled to end during
the current calendar year that the aggregate of all payroll
deductions accumulated with respect to such Offering Period and
any other Offering Period ending within the same calendar year
equal $21,250. Payroll deductions shall re-commence at the rate
provided in such participant's subscription Agreement at the
beginning of the first Offering Period which is scheduled to end
in the following calendar year, unless terminated by the
participant as provided in Section 10.
7. Grant of Option.
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(a) On the Offering Date of each Offering Period, each eligible
Employee participating in such Offering Period shall be granted
an option to purchase on the Exercise Date a number of shares of
the Company's Common Stock determined by dividing such Employee's
Contributions accumulated prior to such Purchase Date and
retained in the participant's account as of the Exercise Date by
the lower of (i) eighty-five percent (85%) of the fair market
value of a share of the Company's Common Stock on the Offering
Date, or (ii) eighty-five percent (85%) of the fair market value
of a share of the Company's Common Stock on the Exercise Date;
provided however, that the maximum number of shares an Employee
may purchase during each Offering Period shall be 1,000 shares,
and provided further that such purchase shall be subject to the
limitations set forth in Sections 3(b) and 13. The fair market
value of a share of the Company's Common Stock shall be
determined as provided in Section 7(b).
(b) The option price per share of the shares offered in a given
Offering Period shall be the lower of: (i) 85% of the fair market
value of a share of the Common Stock of the Company on the
Offering Date; or (ii) 85% of the fair market value of a share of
the Common Stock of the Company on the Exercise Date. The fair
market value of the Company's Common Stock on a given date shall
be determined by the Board in its discretion based on the closing
price of the Common Stock for such date (or, in the event that
the Common Stock is not traded on such date, on the immediately
preceding trading date), as reported by the National Association
of Securities Dealers Automated Quotation (NASDAQ) National
Market or, if such price is not reported, the mean of the bid and
asked prices per share of the Common Stock as reported by NASDAQ
or, in the event the Common Stock is listed on a stock exchange,
the fair market value per share shall be the closing price on
such exchange on such date (or, in the event that the Common
Stock is not traded on such date, on the immediately preceding
trading date), as reported in The Wall Street Journal.
8. Exercise of Option. Unless a participant withdraws from the Plan as
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provided in paragraph 10, his or her option for the purchase of shares
of common stock will be exercised automatically on the Exercise Date
of the Offering Period, and the maximum number of full shares subject
to the option will be purchased at the applicable option price with
the accumulated Contributions in his or her account. The shares
purchased upon exercise of an option hereunder shall be deemed to be
transferred to the participant on the Exercise Date. During his or her
lifetime, a participant's option to purchase shares hereunder is
exercisable only by him or her.
<PAGE>
9. Delivery. As promptly as practicable after the Exercise Date of each
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Offering Period, the Company shall arrange the delivery to each
participant, as appropriate, of a certificate representing the shares
of common stock purchased upon exercise of his or her option. Any cash
remaining to the credit of a participant's account under the Plan
after a purchase by him or her of shares at the termination of each
Offering Period which is insufficient to purchase a share of Common
Stock of the Company shall be carried over to the next Offering Period
if the Employee continues to participate in the Plan, or if the
Employee does not continue to participate, shall be returned to said
participant. Any other monies left over in a participant's account
after an Exercise Date shall be returned to the Employee.
10. Voluntary Withdrawal; Termination of Employment.
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(a) A participant may withdraw all but not less than all of the
Contributions credited to his or her account under the Plan at
any time prior to the Exercise Date of the Offering Period by
giving written notice to the Company. All of the participant's
Contributions credited to his or her account will be paid to him
or her promptly after receipt of his or her notice of withdrawal
and his or her option for the current period will be
automatically terminated, and no further Contributions for the
purchase of shares will be made during the Offering Period.
(b) Upon termination of the participant's Continuous Status as an
Employee prior to the Exercise Date of an Offering Period for any
reason, including retirement or death, the Contributions credited
to his or her account will be returned to him or her or, in the
case of his or her death, to the person or persons entitled
thereto under Section 14, and his or her option will be
automatically terminated.
(c) In the event an Employee fails to remain in Continuous Status as
an Employee of the Company for at least twenty (20) hours per
week during the Offering Period in which the employee is a
participant, he or she will be deemed to have elected to withdraw
from the Plan and the Contributions credited to his or her
account will be returned to him or her and his or her option
terminated.
(d) A participant's withdrawal from an offering will not have any
effect upon his or her eligibility to participate in a succeeding
offering or in any similar plan which may hereafter adopted by
the Company.
11. Interest. No interest shall accrue on the Contributions of a
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participant in the Plan.
12. Common Stock.
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(a) The maximum number of shares of the Company's Common Stock which
shall be made available for sale under the Plan shall be 100,000
shares, subject to adjustment upon changes in capitalization of
the Company as provided in Section 18. If the total number of
shares which would otherwise be subject to options granted
pursuant to Section 7(a) on the Offering Date of an Offering
Period exceeds the number of shares then available under the Plan
(after deduction of all shares for which options have been
exercised or are then outstanding), the Company shall make a pro
rata allocation of the shares remaining available for option
grant in as uniform a manner as shall be practicable and as it
shall determine to be equitable. In such event, the Company shall
give written notice of such reduction of the number of shares
subject to the option to each Employee affected thereby and shall
similarly reduce the rate of Contributions, if necessary.
(b) The participant will have no interest or voting right in shares
of common stock covered by his or her option until such option
has been exercised.
(c) Shares of common stock to be delivered to a participant under the
Plan will be registered in the name of the participant or in the
name of the participant and his or her spouse.
13. Administration. The Board, or a Committee named by the Board, shall
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supervise and administer the Plan and shall have full power to adopt, amend
and rescind any rules deemed desirable and appropriate for the
administration of the Plan and not inconsistent with the Plan, to construe
and interpret the Plan, and to make all other determinations necessary or
advisable for the administration of the Plan. The composition of the
committee shall be in accordance with the requirements to obtain or retain
any available exemption from the operation of Section 16(b) of the Exchange
Act pursuant to Rule 16b-3 promulgated thereunder.
14. Designation of Beneficiary.
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(a) A participant may file a written designation of a beneficiary who is to
receive any shares of common stock and cash, if any, from the participant's
account under the Plan in the event of such participant's death subsequent
to the end of an Offering Period but prior to delivery to him or her of
such shares and cash. In addition, a participant may file a written
designation of a beneficiary who is to receive any cash from the
participant's account under the Plan in the event of such participant's
death prior to the Exercise Date of an Offering Period. If a participant is
married and the designated beneficiary is not the spouse, spousal consent
shall be required for such designation to be effective.
(b) Such designation of beneficiary may be changed by the participant (and
his or her spouse, if any) at any time by written notice. In the event of
the death of a participant and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such participant's
death, the Company shall deliver such shares of common stock and/or cash to
the executor or administrator of the estate of the participant, or if no
such executor or administrator has been appointed (to the knowledge of the
Company), the Company, in its discretion, may deliver such shares and/or
cash to the spouse or to any one or more dependents or relatives of the
participant, or if no spouse, dependent or relative is known to the
Company, then to such other person as the Company may designate.
15. Transferability. Neither Contributions credited to a participant's account
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nor any rights with regard to the exercise of an option or to receive
shares of common stock under the Plan may be assigned, transferred, pledged
or otherwise disposed of in any way (other than by will, the laws of
descent and distribution, or as provided in Section 13) by the participant.
Any such attempt at assignment, transfer, pledge or other disposition shall
be without effect, except that the Company may treat such act as an
election to withdraw funds in accordance with Section 10.
16. Use of Funds. All Contributions received or held by the Company under the
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Plan may be used by the Company for any corporate purpose, and the Company
shall not be obligated to segregate such Contributions.
I7. Reports. Individual accounts will be maintained for each participant in the
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Plan. Statements of account will be given to participating Employees
promptly following the Exercise Date. These statements will set forth the
amounts of Contributions, the per share purchase price, the number of
shares purchased and the remaining cash balance, if any.
18. Adjustments Upon Changes in Capitalization: Corporate Transactions.
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(a) Adjustment. Subject to any required action by the stockholders of the
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Company, the number of shares of Common Stock covered by each option
under the Plan which has not yet been exercised and the number of
shares of Common Stock which have been authorized for issuance under
the Plan but have not yet been placed under option (collectively, the
"Reserves"), as well as the price per share of Common Stock covered by
each option under the Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of the
Common Stock, or any other increase or decrease in the number of
shares of Common Stock effected without receipt of consideration by
the Company; provided, however, that conversion of any convertible
securities of the Company shall not be deemed to have been "effected
without receipt of consideration". Such adjustment shall be made by
the Board, whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no issue by the
Company of shares of stock of any class, or securities convertible
into shares of stock of any class, shall affect, and no adjustment by
reason thereof shall be made with respect to, the number or price of
shares of Common Stock subject to an option.
(b) Corporate Transactions. In the event of the proposed dissolution or
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liquidation of the Company, the Offering Period will terminate
immediately prior to the consummation of such proposed action, unless
otherwise provided by the Board. In the event of a proposed sale of
all or substantially all of the assets of the Company, or the merger
of the Company with or into another corporation, each option under the
Plan shall be assumed or an equivalent option shall be substituted by
such successor corporation or a parent or subsidiary of such successor
corporation, unless the Board determines, in the exercise of its sole
discretion and in lieu of such assumption or substitution, to shorten
the Offering Period then in progress by setting a new Exercise Date
(the "New Exercise Date"). If the Board shortens the Offering Period
then in progress in lieu of assumption or substitution in the event of
a merger or sale of assets, the Board shall notify each participant in
writing, at least ten (10) days prior to the New Exercise Date, that
the Exercise Date for his or her option has been changed to the New
Exercise Date and that his or her option will be exercised
automatically on the New Exercise Date, unless prior to such date he
or she has withdrawn from the Offering Period as provided in Section
10. For purposes of this paragraph, an option granted under the Plan
shall be deemed to be assumed if, following the sale of assets or
merger, the option confers the right to purchase, for each share of
option stock subject to the option immediately prior to the sale of
assets or merger the consideration (whether stock, cash or other
securities or property) received in the sale of assets or merger by
holders of Common Stock for each share of Common Stock held on the
effective date of the transaction (and if such holders were offered a
choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares of Common Stock);
provided, however, that if such consideration received in the sale of
assets or merger was not solely common stock of the successor
corporation or its parent (as defined in Section 424(e) of the Code),
the Board may, with the consent of the successor corporation and the
participant, provide for the consideration to be received upon
exercise of the option to be solely common stock of the successor
corporation or its parent equal in fair market value to the per share
consideration received by holders of Common Stock and the sale of
assets or merger.
(c) The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as
the price per share of Common Stock covered by each outstanding
option, in the event that the Company effects one or more
reorganizations, recapitalizations, rights offerings or other
increases or reductions of shares of its outstanding Common Stock, and
in the event of the Company being consolidated with or merged into any
other corporation.
19. Amendment or Termination.
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(a) The Board of Directors of the Company may at any time terminate or
amend the Plan. Except as provided in Section 18, no such termination may
affect options previously granted, nor may an amendment make any change in
any option theretofore granted which adversely affects the rights of any
participant. In addition, to the extent necessary to comply with Rule 16b-3
under the Exchange Act, or under Section 423 of the Code (or any successor
rule or provision or any applicable law or regulation), the Company shall
obtain stockholder approval in such a manner and to such a degree as so
required.
(b) Without stockholder consent and without regard to whether any
participant rights may be considered to have been adversely affected, the
Board (or its committee) shall be entitled to change the Offering Periods
and Purchase Periods, limit the frequency and/or number of changes in the
amount withheld during an Offering Period, establish the exchange ratio
applicable to amounts withheld in a currency other than U.S. dollars,
permit payroll withholding in excess of the amount designated by a
participant in order to adjust for delays or mistakes in the Company's
processing of properly completed withholding elections, establish
reasonable waiting and adjustment periods and/or accounting and crediting
procedures to ensure that amounts applied toward the purchase of Common
Stock for each participant properly correspond with amounts withheld from
the participant's Compensation, and establish such other limitations or
procedures as the Board (or its committee) determines in its sole
discretion advisable which are consistent with the Plan.
20. Notices. All notices or other communications by a participant to the
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Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company at the
location, or by the person, designated by the Company for the receipt
thereof.
21. Conditions Upon Issuance of Shares. Shares of common stock shall not be
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issued with respect to an option unless the exercise of such option and the
issuance and delivery of such shares pursuant thereto shall comply with all
applicable provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Exchange Act, the
rules and regulations promulgated thereunder, and the requirements of any
stock exchange upon which the shares may then be listed and shall be
further subject to the approval of counsel for the Company with respect to
such compliance.
As a condition to the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any
such exercise that the shares of common stock are being purchased only for
investment and without any present intention to sell or distribute such
shares if, in the opinion of counsel for the Company, such a representation
is required by any of the aforementioned applicable provisions of law.
22. Term of Plan; Effective Date. The Plan shall become effective upon the
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earlier to occur of its adoption by the Board of Directors or its approval
by the stockholders of the Company. It shall continue in effect for a term
of twenty (20) years unless sooner terminated under Section 19.
23. Additional Restrictions of Rule 16b-3. The terms and conditions of options
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granted to and the purchase of shares of common stock by persons subject to
Section 16 of the Exchange Act shall comply with the applicable provisions
of Rule 16b-3. This Plan shall be deemed to contain, and such options shall
contain, and the shares issued upon exercise thereof shall be subject to
such additional conditions and restrictions as may be required by Rule
16b-3 to qualify for the maximum exemption from Section 16 of the Exchange
Act with respect to Plan transactions.
<PAGE>
Exhibit 5.1
(513) 345-5767
March 22, 1999
Pomeroy Computer Resources, Inc.
1020 Petersburg Road
Hebron, Kentucky 41048
Gentlemen:
Reference is made to your Registration Statement on Form S-8 filed with the
Securities and Exchange Commission with respect to the 1998 Employee Stock
Purchase Plan (the "Plan") and the potential sale of certain authorized but
unissued common shares, par value $.01, reserved for issuance under the Plan by
Pomeroy Computer Resources, Inc. (the "Company"). We have examined the
proceedings taken to organize the Company, its Certificate of Incorporation, its
By-laws, the Proceedings of its Directors and Shareholders and the applicable
provisions of the corporation laws of the State of Delaware under which the
Company was incorporated and such other documents as we have deemed necessary to
render this Opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and in good standing
under the laws of the State of Delaware, having an authorized capital stock
consisting of fifteen million (15,000,000) common shares, par value $.01 and two
million (2,000,000) preferred shares, par value $.01.
2. The Company has reserved for issuance under the 1998 Employee Stock
Purchase Plan 100,000 common shares, par value $.01. Upon proper exercise of
any rights granted under the Plan, such shares, when issued, will be validly
issued and outstanding, fully paid and non-assessable.
3. The Company has full right, power and authority to issue and deliver
the common shares issuable upon exercise of all rights under the Plan.
4. We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8.
Very truly yours,
LINDHORST & DREIDAME
s/ James H. Smith, III
--------------------------
James H. Smith III
<PAGE>
Exhibit 23.2
Consent of Independent Certified Public Accountants
We have issued our report dated February 6, 1998, accompanying the financial
statements and schedules of Pomeroy Computer Resources, Inc. appearing in the
Annual Report on Form 10-K for the year ended January 5, 1998, incorporated by
reference in the Registration Statement on Form S-8. We consent to the use of
the aforementioned report in the Registration Statement.
GRANT THORNTON LLP
S/ Grant Thornton LLP
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Cincinnati, Ohio
March 4, 1999
