<PAGE> 1
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
-------------
BROADWAY & SEYMOUR, INC.
(Exact name of registrant, as specified in its charter)
DELAWARE 41-1522214
(State or other jurisdiction of (I.R.S. Employer)
incorporation or organization) Identification No.)
128 South Tryon Street
Charlotte, North Carolina 28202
(704) 372-4281
(Address of principal executive officers)
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BROADWAY & SEYMOUR, INC.
1996 STOCK OPTION PLAN
(Full title of the plan)
-------------
LILLIAN N. WILSON
128 South Tryon Street
Charlotte, North Carolina 28202
(Name and address of agent for service)
(704) 372-4281
(Telephone number, including area code, of agent for service)
-------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Title of securities Amount to be Proposed Proposed Amount of
to be registered registered maximum maximum registration fee
offering price per aggregate offering
unit price
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 875,000 shs. $12.5625(1) $10,992,187.50(1) $3,330.97
(including options under the
Broadway & Seymour, Inc.
1996 Stock Option Plan)
=====================================================================================================================
</TABLE>
(1) In accordance with Rule 457(h)(1) of Regulation C, the price for the shares
is computed on the basis of the average high and low prices for Common
Shares on June 16, 1997 as reported on the NASDAQ National Market System.
================================================================================
<PAGE> 2
PART II INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference into this
registration statement:
(a) The Company's latest annual report on Form 10-K filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 containing financial statements for the Company's latest fiscal
year for which a Form 10-K was required to have been filed;
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the annual report referred to in (2) above; and
(c) The description of securities contained in the
Corporation's registration statement filed under the Securities
Exchange Act of 1934 on Form 8-A, (SEC Registration No. 0-20034),
including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment indicating that all securities offered by this
registration statement have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into the
registration statement and to be part thereof from the date of filing of such
documents.
Item 6. Indemnification of Directors and Officers.
The Corporation's Restated Certificate of Incorporation contains
certain provisions permitted under the General Corporation Law of Delaware
relating to the liability of directors. These provisions eliminate a director's
liability for monetary damages for a breach of fiduciary duty, except in certain
circumstances involving wrongful acts such as the breach of a director's duty of
loyalty or acts or omissions involving intentional misconduct or a knowing
violation of law. The Corporation's Restated Certificate of Incorporation also
contains provisions indemnifying the Corporation's directors and officers to the
fullest extent permitted by the Delaware General Corporation Law.
Item 8. Exhibits.
Exhibit Number Description
- -------------- -----------
4 Broadway & Seymour, Inc. 1996 Stock Option Plan
5 Opinion of Robinson, Bradshaw & Hinson, P.A.
23.1 Consent of Robinson, Bradshaw & Hinson, P.A. (contained in
Exhibit 5)
23.2 Consent of Price Waterhouse LLP
24.1 Power of Attorney of Steven S. Elbaum, dated May 27, 1997
II-1
<PAGE> 3
24.2 Power of Attorney of David A. Finley, dated May 27, 1997
24.3 Power of Attorney of Robert J. Kelly, dated May 27, 1997
24.4 Power of Attorney of Robert J. Levenson, dated May 27, 1997
24.5 Power of Attorney of George L. McTavish, dated May 27, 1997
24.6 Power of Attorney of Roger Noall, dated May 27, 1997
24.7 Power of Attorney of William G. Seymour, dated May 27, 1997
24.8 Power of Attorney of Alan C. Stanford, dated May 27, 1997
Item 9. Undertakings.
The undersigned registrant hereby undertakes as follows:
(1) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment involving a fundamental change in the
information set forth in this 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;
(2) The registrant shall remove from registration by means of a
post-effective amendment any of the securities being registered that remain
unsold at the termination of the offering;
(3) For purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this 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; and
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in such 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.
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<PAGE> 4
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe it
meets all 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 Charlotte, State of North Carolina on May 27,
1997.
BROADWAY & SEYMOUR, INC.
By: /s/ Alan C. Stanford
------------------------------------
Alan C. Stanford
Chairman and Chief Executive Officer
By: /s/ David A. Finley
------------------------------------
David A. Finley
Executive Vice President and Chief Financial Officer
(principal accounting officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Alan C. Stanford Chairman, Chief Executive Officer and May 27, 1997
- ------------------------------- Director
Alan C. Stanford
/s/ David A. Finley Executive Vice President, Chief Financial May 27, 1997
- ------------------------------- Officer and Director
David A. Finley
/s/ Steven S. Elbaum * Director May 27, 1997
- -------------------------------
Steven S. Elbaum
/s/ Robert J. Kelly * Director May 27, 1997
- -------------------------------
Robert J. Kelly
/s/ Robert J. Levenson * Director May 27, 1997
- -------------------------------
Robert J. Levenson
/s/ George L. McTavish * Director May 27, 1997
- -------------------------------
George L. McTavish
/s/ Roger Noall * Director May 27, 1997
- -------------------------------
Roger Noall
/s/ William G. Seymour * Director May 27, 1997
- -------------------------------
William G. Seymour
* By: /s/ Lilian N. Wilson
------------------------------------
(Lilian N. Wilson, Attorney-in-Fact)
</TABLE>
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<PAGE> 5
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
4 Broadway & Seymour, Inc.
1996 Stock Option Plan
5 Opinion of Robinson, Bradshaw & Hinson, P.A.
23.1 Consent of Robinson, Bradshaw & Hinson, P.A.
(contained in Exhibit 5)
23.2 Consent of Price Waterhouse LLP
24.1 Power of Attorney of Steven S. Elbaum, dated May 27, 1997
24.2 Power of Attorney of David A. Finley, dated May 27, 1997
24.3 Power of Attorney of Robert J. Kelly, dated May 27, 1997
24.4 Power of Attorney of Robert J. Levenson, dated May 27, 1997
24.5 Power of Attorney of George L. McTavish, dated May 27, 1997
24.6 Power of Attorney of Roger Noall, dated May 27, 1997
24.7 Power of Attorney of William G. Seymour, dated May 27, 1997
24.8 Power of Attorney of Alan C. Stanford, dated May 27, 1997
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<PAGE> 1
EXHIBIT 4
BROADWAY & SEYMOUR, INC.
1996 STOCK OPTION PLAN
1. PURPOSE
The purpose of the Broadway & Seymour, Inc. 1996 Stock Option Plan (the
"Plan") is to promote the growth and profitability of Broadway & Seymour, Inc.
(the "Company") and its subsidiaries ("Subsidiaries") from time to time by
increasing the personal participation of officers, key employees and directors
in the financial performance of the Company, by enabling the Company to attract
and retain officers, key employees and directors of outstanding competence and
by providing such officers, key employees and directors with an equity
opportunity in the Company. This purpose will be achieved through the grant of
stock options ("Options") to purchase shares of common stock of the Company, no
par value per share (the "Common Stock") subject to such restrictions as the
administrators of the Plan may determine.
2. ADMINISTRATION
The Plan will be administered by the Company's Board of Directors (the
"Board"); provided, however, that if the Board includes members who are not
"non-employee directors" (as defined in Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended, or any applicable successor rule or
regulation ("Rule 16b-3")) or "outside directors" (as defined in Section 162(m)
of the Internal Revenue Code of 1986, as amended, and the regulations thereunder
("Section 162(m)")), then all authority of the Board under the Plan shall be
exercised by a committee of the Board (the "Committee") composed solely of
members thereof who are both "non-employee directors" and "outside directors"
(as so defined).
The Board or Committee shall have complete authority to: (i) interpret
all terms and provisions of the Plan consistent with law; (ii) select from the
group of officers and key employees eligible to participate in the Plan the
officers and key employees to whom Options shall be granted; (iii) within the
limits established herein, determine the number of shares to be subject to, the
exercise price of, and the term of each Option, granted to each of such officers
and key employees; (iv) prescribe the form of instrument(s) evidencing Options
granted under this Plan; (v) determine the time or times at which Options shall
be granted to officers or key employees; (vi) make special grants of Options to
officers or key employees when determined to be appropriate; (vii) provide, if
appropriate, for the exercisability of Options granted to officers or key
employees in installments or subject to specified conditions; (viii) determine
the method of exercise of Options granted to officers or key employees under the
Plan; (ix) adopt, amend and rescind general and special rules and regulations
for the Plan's administration; and (x) make all other determinations necessary
or advisable for the administration of this Plan.
Any action which the Board or Committee is authorized to take may be
taken without a meeting if all the members of the Board or Committee sign a
written document authorizing such
<PAGE> 2
action to be taken, unless different provision is made by the By-Laws of the
Company or by resolution of the Board or Committee.
The Board or Committee may designate selected Board or Committee
members or certain employees of the Company to assist the Board or Committee in
the administration of the Plan and may grant authority to such persons to
execute documents, including Options, on behalf of the Board or Committee,
subject in each such case to the requirements of Rule 16b-3.
No member of the Board or Committee or employee of the Company
assisting the Board or Committee pursuant to the preceding paragraph shall be
liable for any action taken or determination made in good faith.
3. STOCK SUBJECT TO PLAN
The stock to be offered under this Plan shall be authorized but
unissued shares of Common Stock, shares of Common Stock previously issued and
thereafter acquired by the Company, or any combination thereof. An aggregate of
875,000 shares of Common Stock are reserved for Option grants under this Plan,
of which an aggregate of 825,000 shares may be the subject of Options granted
under Section 4 hereof and an aggregate of 50,000 shares may be the subject of
Options granted under Section 5 hereof. Any or all of the Options granted under
Section 4 hereof may, at the Board's or Committee's discretion, be intended to
qualify as incentive stock options ("Incentive Stock Options") under Section 422
of the Internal Revenue Code of 1986, as amended (the "Code"). The number of
shares reserved under this Plan may be adjusted to reflect any change in the
capitalization of the Company as contemplated by Section 10 hereof and occurring
after the adoption of this Plan. The Board or Committee will maintain records
showing the cumulative total of all shares subject to Options outstanding under
this Plan.
4. OPTIONS FOR OFFICERS AND KEY EMPLOYEES
a. Eligibility and Factors to be Considered in Granting Options
The grant of Options under this Section 4 shall be limited to those
officers and key employees of the Company or any of its Subsidiaries who have
the greatest impact on the Company's long-term performance and are selected by
the Board or Committee. Members of the Company's Board of Directors who are also
officers or employees of the Company are eligible to receive Options under this
Section 4. In making any determination as to the officer(s) and key employee(s)
to whom Options shall be granted under this Section 4 and as to the number of
shares to be subject thereto, the Board or Committee shall take into account, in
each case, the level and responsibility of the person's position, the level of
the person's performance, the person's level of compensation, the assessed
potential of the person and such additional factors as the Board or Committee
shall deem relevant to the accomplishment of the purposes of the Plan.
Options may be granted under this Section 4 only for a reason connected
with an officer's or key employee's employment by the Company or any Subsidiary.
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<PAGE> 3
b. Allotment of Shares
The Board or Committee may, in its sole discretion and subject to the
provisions of this Plan, grant to participants eligible under this Section 4, on
or after the date hereof, Options to purchase shares of Common Stock. Options
granted under this Section 4 may, at the discretion of the Board or Committee,
be: (i) Options that are intended to qualify as Incentive Stock Options; or (ii)
Options that are not intended to be Incentive Stock Options or (iii) both of the
foregoing, if granted separately, and not in tandem. Each Option granted under
this Plan must be clearly identified as to its status as an Incentive Stock
Option or not.
Options granted under this Section 4 may be allotted to participants in
such amounts, subject to the limitations specified in this Plan, as the Board or
Committee, in its sole discretion, may from time to time determine, provided
that in any fiscal year no participant may be granted Options with respect to
more than 500,000 shares of Common Stock.
In the case of Options intended to be Incentive Stock Options, the
aggregate fair market value (determined at the time of such Incentive Stock
Options' respective grants) of the shares with respect to which Incentive Stock
Options are exercisable for the first time by a participant hereunder during any
calendar year (under all plans taken into account pursuant to Section 422(d) of
the Code) shall not exceed $100,000. Options under this Section 4 not intended
to qualify as Incentive Stock Options may be granted to any Plan participant
without regard to the Section 422(d) limitations.
c. Time of Granting Options
The date of grant of an Option under this Section 4 shall, for all
purposes, be the date on which the Board or Committee makes the determination of
granting such Option (each such date, a "Grant Date"). Notice of the
determination shall be given to each officer or key employee to whom an Option
is so granted under this Section 4 within a reasonable time after the Grant Date
for such Option.
d. Exercise Price for Options
The price per share at which each Option granted under this Section 4
may be exercised shall be such price as shall be determined by the Board or
Committee at the time of grant based on such criteria as may be adopted by the
Board or Committee at the time of grant in good faith, taking into account, in
each case, the market price of the Common Stock, the level and responsibility of
the person's position, the level of the person's performance, the person's level
of compensation, the assessed potential of the person, and such additional
factors as the Board or Committee shall deem relevant to the accomplishment of
the purposes of the Plan; provided, however, that in no event shall the exercise
price per share of an Option be less than 100% of the fair market value of the
Company's shares of Common Stock on the Grant Date for such Option. In the case
of an Option intended to qualify as an Incentive Stock Option, the price per
share shall not be less than 100% (or 110% for owners of more than 10% of the
total combined voting power of all classes of stock of the Company or any
Subsidiary) of the fair market value of the Common Stock on the Grant Date for
such Option.
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<PAGE> 4
If the Company's shares of Common Stock are:
(1) actively traded on any national securities exchange or NASDAQ
system that reports their sales prices, fair market value shall be the average
of the high and low sales prices per share on any Grant Date;
(2) otherwise traded over the counter, fair market value shall be the
average of the final bid and asked prices for the shares of Common Stock as
reported for any Grant Date;
(3) not traded, the Board or Committee shall consider any factor or
factors that it believes affects fair market value, and shall determine fair
market value without regard to any restriction other than a restriction that by
its terms will never lapse.
e. Term of Options
The term of each Option granted under this Section 4 shall be
established by the Board or Committee, but shall not exceed 10 years (or 5 years
for owners of more than 10% of the total combined voting power of all classes of
stock of the Company or of a Subsidiary) from the Grant Date for such Option.
f. Repricing and Replacement of Options Prohibited
Notwithstanding any other provision of the Plan, the Board or Committee
may not grant Options to the holder of outstanding Options either conditioned
upon or under an arrangement contemplating the voluntary surrender by such
holder of any such outstanding Options granted under this Section 4.
5. OPTIONS FOR DIRECTORS WHO ARE NEITHER OFFICERS NOR EMPLOYEES
a. Initial Director Options
On June 25, 1996, each member of the Board of Directors who is not an
officer or employee of the Company or any Subsidiary (an "Eligible Director")
shall receive, as of such date, subject to subsequent approval of this Plan by
the Company's stockholders to the extent required by Section 162(m) and the
rules of the NASDAQ Stock Market, an option to purchase 5,000 shares of Common
Stock, and thereafter upon the initial election of a member of the Board of
Directors who is an Eligible Director such Eligible Director shall receive, on
the date of such election, subject to subsequent approval of this Plan by the
Company's stockholders to the extent required by Section 162(m) and the rules of
the NASDAQ Stock Market, an option to purchase 5,000 shares of Common Stock.
b. Annual Director Options
Subject to subsequent approval of this Plan by the Company's
stockholders to the extent required by Section 162(m) and the rules of the
NASDAQ Stock Market, on January 5 of each year following the adoption of this
Plan the Company shall grant to each Eligible Director an Option to
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<PAGE> 5
purchase 5,000 shares of Common Stock (subject to reduction as described below)
if the average of the daily fair market value (as determined in accordance with
Section 4(d)) of a share of Common Stock over the immediately preceding month of
December is ten percent (10%) greater than the average of the daily fair market
value (as determined in accordance with Section 4(d)) of a share of Common Stock
over the month of December of the next preceding year. Notwithstanding the
foregoing, if the product of the exercise price per share under such Option
multiplied by 5,000 exceeds $100,000, then such Option shall be granted to
purchase the number of shares of Common Stock equal to the quotient of $100,000
divided by the exercise price per share under such Option (rounded down to the
nearest whole share).
c. Exercise Price
Each Option granted pursuant to this Section 5 shall have an exercise
price per share equal to the fair market value (as defined in Section 4(d)) of a
share of Common Stock on the date of grant (the "Director Grant Date") or, if
such date is not a business day, then on the next preceding business day.
d. Exercisability and Term
Each Option granted pursuant to this Section 5 shall become exercisable
as set forth below:
Aggregate Percentage of
Shares under such Option
Date Exercisable on such Date
---- ------------------------
Director Grant Date 20%
First Anniversary of 40%
Director Grant Date
Second Anniversary of 60%
Director Grant Date
Third Anniversary of 80%
Director Grant Date
Fourth Anniversary of 100%
Director Grant Date
The term of each Option granted pursuant to this Section 5 shall be ten years
from the Director Grant Date for such Option.
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<PAGE> 6
e. Insufficient Shares
In the event that any award of options to Outside Directors as set
forth in this Section 5 would exceed the remaining number of shares of Common
Stock authorized for awards under this Section 5, then the amount of options to
be awarded at such time shall be reduced to an amount equal to the quotient of
the remaining shares authorized under this Section 5 divided by the number of
Outside Directors then entitled to receive such award.
f. Amendments to Section 5
This Section 5 may not be amended more frequently than once every six
months, other than to comport with changes in the Internal Revenue Code, the
Employee Retirement Income Security Act or the rules thereunder.
6. NON-TRANSFERABILITY
An Option granted to a participant under this Plan shall not be
transferable by him or her except: (i) by will; (ii) by the laws of descent and
distribution; or (iii) pursuant to a qualified domestic relations order as
defined by the Code or in Title I of the Employee Retirement Income Security
Act, or the rules thereunder. In the case of an Option intended to be an
Incentive Stock Option, such Option shall not be transferable by a participant
other than by will or the laws of descent and distribution and during the
optionee's lifetime shall be exercisable only by him or her.
Notwithstanding anything to the contrary contained herein, for a period
of six months commencing on the Grant Date for any Option granted hereunder to a
participant subject to reporting requirements under Section 16 of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), such participant may not sell
any share(s) of Common Stock acquired upon exercise of such Option.
7. EXERCISABILITY OF OPTIONS
Subject to the provisions of this Plan, Options granted under Section 4
hereof shall be exercisable at such time or times after the Grant Date for such
Options according to such schedule and upon such conditions as may be determined
by the Board or Committee at the time of grant, and an Option granted under
Section 5 hereof shall be exercisable in accordance with the provisions of
Section 5 hereof.
Any Option granted under Section 5 of this Plan and, unless otherwise
determined by the Board or the Committee at the time of grant or thereafter, any
Option granted under Section 4 of this Plan, shall terminate in full (whether or
not previously exercisable) prior to the expiration of its term on the date the
optionee ceases to be a director of the Company or an employee of the Company or
any Subsidiary of the Company, unless the optionee shall (a) die while a
director of the Company or an employee of the Company or such Subsidiary, in
which case the participant's legatee(s) under his or her last will or the
participant's personal representative or representatives may exercise all or
part of the previously unexercised portion of such Option at any time within one
year, but not beyond the expiration of its term, after the participant's death
to the extent the optionee could have exercised the Option immediately prior to
his or her death or in the amount purchasable under the
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<PAGE> 7
Option immediately after the death of the optionee, whichever is greater, (b)
become permanently or totally disabled within the meaning of section 22(e)(3) of
the Code (or any successor provision) while a director of the Company or an
employee of the Company or such Subsidiary, in which case the participant or his
or her personal representative may exercise the previously unexercised portion
of such Option at any time within one year, but not beyond the expiration of its
term, after termination of his or her employment or directorship to the extent
the optionee could have exercised the Option immediately prior to such
termination, or (c) resign or retire with the consent of the Company or have his
or her employment with the Company or any Subsidiary terminated by the Company
or any Subsidiary other than for cause (as defined below), in which case the
participant may exercise the previously unexercised portion of such Option at
any time within six months, but not beyond the expiration of its term, after the
participant's resignation, retirement or employment termination to the extent
the optionee could have exercised the Option immediately prior to such
resignation, retirement or employment termination.
For purposes of this Section 7, employment termination for "cause"
means termination of employment by reason of gross misconduct as determined by
the Board or Committee, which will include but not be limited to the following:
(i) the commission of dishonest acts involving the Company, (ii) disclosure of
confidential information of the Company, (iii) obvious intoxication (whether due
to alcohol, drugs or other substance abuse) on the job or possession of any
alcoholic substance or illegal drugs on the premises of the Company or any
Subsidiary, (iv) misuse of Company or Subsidiary assets (which shall include but
be limited to cash, equipment, and/or other assets), (v) repeated disregard for
the lawful policies of the Company as may be established from time to time and
communicated to the employee, or (vi) any misconduct specified in any employment
agreement to which the participant is a party that would justify the termination
of such participant's employment with the Company or any Subsidiary "for cause."
In no event may an Option be exercised after the expiration of its
fixed term.
8. METHOD OF EXERCISE
Each Option granted under the Plan shall be deemed exercised when the
holder (a) shall indicate the decision to do so in writing delivered to the
Company, (b) shall at the same time tender to the Company payment in full of the
exercise price for the shares for which the Option is exercised, which payment
may be made in (i) cash, (ii), shares of the Common Stock, the total market
value of which equals the total option price of the shares with respect to which
the option is being exercised, or (iii) any combination of cash and shares of
the Common Stock, the total market value of which equals the total option price
of the shares with respect to which the option is being exercised, and (c) shall
comply with such other reasonable requirements as the Board or Committee may
establish; provided that in order to enable an optionee (including but not
limited to members of the Board and officers) to exercise options granted under
this Plan, the Board or the Committee may determine, in the exercise of its
discretion, to (i) grant such optionee permission to pay the exercise price in
installments or (ii) grant such optionee permission to pay the exercise price by
delivering for cancellation Options having an aggregate value (calculated by
subtracting the exercise price per share from the fair market value of a share
of Common Stock) equal to the total amount of the exercise price. The exercise
of any option granted under this Plan may be made subject to the condition that,
if at any time the Board or the Committee shall determine, in its discretion,
that
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<PAGE> 8
the satisfaction of withholding tax or other withholding liabilities under any
state or federal law is necessary or desirable as a condition of, or in
connection with, such exercise or the delivery or purchase of shares pursuant
thereto, then in such event, the exercise of the option shall not be effective
unless such withholding tax or other withholding liabilities shall have been
satisfied in a manner acceptable to the Company, which may include the
withholding by the Company of shares of Common Stock to be issued upon exercise
of an Option having a fair market value equal to the required withholding
amount. With respect to the foregoing sentences, the value of the shares of
Common Stock shall be the fair market value determined in accordance with
Section 4(d) of this Plan as of the day of such payment or withholding.
No person, estate or other entity shall have any of the rights of a
shareholder with reference to shares subject to an Option until a certificate
for the shares has been delivered.
An Option granted under this Plan may be exercised for any lesser
number of shares than the full amount for which it could be exercised. Such a
partial exercise of an Option shall not affect the right to exercise the Option
from time to time in accordance with this Plan for the remaining shares subject
to the Option.
9. TERMINATION OF OPTIONS
An Option granted under this Plan shall be considered terminated in
whole or in part, to the extent that, in accordance with the provisions of this
Plan and such Option, it can no longer be exercised for any shares originally
subject to the Option. The shares subject to any terminated Option or portion
thereof shall no longer be charged against the applicable limitation or
limitations provided in Section 3 of this Plan and may again become shares
available for the purposes, and subject to the same applicable limitations, of
this Plan.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
In the event of any change in the outstanding Common Stock of the
Company by reason of a stock dividend, stock split, stock consolidation,
recapitalization, reorganization, merger, split up or the like, the shares
available for purposes of this Plan, the shares to be covered by subsequent
grants under Section 5 hereof and the number and kind of shares under option in
outstanding option agreements pursuant to this Plan (and the option price under
such agreements) shall be appropriately adjusted so as to preserve, but not
increase, the benefits of this Plan to the Company and the benefits to the
holders of such Options; provided, however, that for any Incentive Stock
Options, in the case of a corporate merger, consolidation, acquisition of
property or stock, separation, reorganization or liquidation, the excess of the
aggregate fair market value of the shares subject to any Options immediately
after such event over the aggregate option price of such shares is not more than
the excess of the aggregate fair market value of all shares subject to such
Options immediately before such event over the aggregate option price of such
shares.
Adjustments under this Section shall be made by the Board or Committee,
whose determination as to what adjustments shall be made and the extent thereof,
shall be final, binding and conclusive.
-8-
<PAGE> 9
11. COMPLIANCE WITH SECURITIES LAWS AND OTHER REQUIREMENTS
No certificate(s) for shares shall be executed and delivered upon
exercise of an Option until the Company shall have taken such action, if any, as
is then required to comply with the provisions of the Securities Act of 1933, as
amended, the 1934 Act, the North Carolina Uniform Securities Act, as amended,
any other applicable state securities law(s) and the requirements of any
exchange on which the Common Stock may, at the time, be listed.
In the case of the exercise of an Option by a person or estate
acquiring the right to exercise the Option by bequest or inheritance, the Board
or Committee may require reasonable evidence as to the ownership of the Option
and may require such consents and releases of taxing authorities as it may deem
advisable.
12. NO RIGHT TO EMPLOYMENT
Neither the adoption of the Plan nor its operation, nor any document
describing or referring to the Plan, or any part thereof, shall confer upon any
employee participant under the Plan any right to continue in the employ of the
Company, or upon any director participant under the Plan any right to continue
as a director of the Company, or shall in any way affect the right and power of
the Company to terminate the employment or position with the Company of any
participant under this Plan at any time with or without assigning a reason
therefor, to the same extent as the Company might have done if this Plan had not
been adopted.
13. AMENDMENT AND TERMINATION
Subject to Section 5 hereof, the Board or Committee may at any time
suspend, amend, or terminate this Plan. Except as provided in Section 4(f) of
this Plan, the Board or Committee may make such modifications of the terms and
conditions of a holder's Option as it shall deem advisable; provided, however,
that an Option granted under Section 5 of this Plan may not be modified by the
Board or Committee with respect to any term or condition thereof required by
Section 5 hereof. No Option may be granted during any suspension of the Plan or
after such termination. Notwithstanding the foregoing provisions of this
Section, no amendment, suspension or termination shall, without the consent of
the holder of an Option, alter or impair any rights or obligations under any
Option theretofore granted under the Plan.
In addition to Board or Committee approval of an amendment, if the
amendment would: (i) materially increase the benefits accruing to participants;
(ii) increase the number of securities issuable under this Plan (other than an
increase pursuant to Section 10 hereof); (iii) change the class or classes of
individuals eligible to receive Options; or (iv) otherwise materially modify the
requirements for eligibility, then such amendment must be approved by the
holders of a majority of the Company's outstanding capital stock present or
represented by proxy and entitled to vote at a meeting duly held of the
shareholders of the Company.
-9-
<PAGE> 10
14. USE OF PROCEEDS
The proceeds received by the Company from the sale of shares pursuant
to the exercise of Options granted under the Plan shall be used for general
corporate purposes as determined by the Board.
15. INDEMNIFICATION OF BOARD OR COMMITTEE
In addition to such other rights of indemnification as they may have as
members of the Board, the members of the Board or Committee shall to the fullest
extent permitted by law be indemnified by the Company against the reasonable
expenses, including attorney's fees, actually and necessarily incurred in
connection with the defense of any action, suit or proceeding, or in connection
with any appeal therein, to which they or any of them may be a party by reason
of any action taken or failure to act under or in connection with the Plan or
any Option granted thereunder, and against all amounts paid by them in
settlement thereof (provided the settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a judgment
in any such action, suit or proceeding, except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that such Board
member or Committee member is liable for gross negligence or misconduct in the
performance of his duties; provided, however, that within 60 days after
institution of any such action, suit or proceeding the Board member or Committee
member shall in writing offer the Company the opportunity, at its own expense,
to handle and defend the same.
16. EFFECTIVE DATE OF THE PLAN
This Plan was adopted by the Board of the Company on June 25, 1996, and
shall be effective until June 25, 2006, subject to its approval by the
appropriate stockholder vote at a special meeting called for such purpose or at
the next ensuing annual meeting of stockholders of the Company.
17. DURATION OF THE PLAN
Unless previously terminated by the Board or Committee, this Plan shall
terminate at the close of business on June 25, 2006, and no Option shall be
granted under it thereafter, but such termination shall not affect any Option
previously granted under this Plan.
18. COMPLIANCE WITH RULE 16b-3
With respect to any Plan participant who is subject to Section 16 of
the 1934 Act, transactions under the Plan are intended to comply with all
applicable conditions of Rule 16b-3 or its successors under the 1934 Act. To the
extent that any provision of the Plan or action by the Board or Committee fails
to so comply, such provision or action shall be deemed null and void to the
extent permitted by law and deemed advisable by the Board or Committee.
-10-
<PAGE> 11
19. CHANGE OF CONTROL
In the event of a change of control of the Company, all vesting
requirements in respect of Options granted under this Plan shall be terminated
and all outstanding Options shall become immediately exercisable at their stated
exercise prices. From and after the date of such change of control, all such
Options shall be deemed fully vested. For the purposes of this Section, a change
of control shall include the following:
a. A tender offer or exchange offer is made whereby the effect
of such offer is to take over and control the affairs of the Company
and such offer is consummated for the ownership of securities of the
Company representing 25% or more of the combined voting powers of the
Company's then outstanding voting securities.
b. The adoption by the Company's stockholders of a plan of
merger or consolidation providing for the merger or consolidation of
the Company with another corporation and, as a result of such merger or
consolidation, less than 75% of the outstanding voting securities of
the surviving or resulting corporation would then be owned in the
aggregate by the former stockholders of the Company, other than
affiliates within the meaning of the 1934 Act or any party to such
merger or consolidation.
c. The Company transfers substantially all of its assets to
another corporation or entity which is not a wholly owned subsidiary of
the Company.
d. Any "person" (as such term is used in Sections 3(a)(9) and
13(d)(3) of the 1934 Act) is or becomes the beneficial owner, directly
or indirectly, of securities of the Company representing 25% or more of
the combined voting power of the Company's then outstanding securities,
and the effect of such ownership is to take over and control the
affairs of the Company.
e. As the result of a tender offer, merger, consolidation,
sale of assets, or contested election, or any combination of such
transactions, the persons who were members of the Board of Directors of
the Company immediately before the transaction, cease to constitute at
least a majority thereof.
-11-
<PAGE> 12
Dear
In accordance with the 1996 Stock Option Plan (the "Plan") of Broadway &
Seymour, Inc. (the "Company"), you, as an officer, key employee or director of
the Company or its subsidiaries, and in order to give you an added proprietary
interest in the Company and an additional incentive to advance the interest of
the Company, were granted on _____________, ____, an option to purchase _____
shares of the common stock of the Company upon the following terms and
conditions:
(1) The exercise price shall be $___________ (____% of the fair
market value of a share on the date of grant - ___________,
____);
(2) This Option will become exercisable according to the following
schedule:
(3) Once exercisable, this Option may be exercised until
____________, ____, subject to the terms and conditions of the
Plan, a copy of which is attached hereto and incorporated
herein by reference. This Option is granted subject to the
Plan and shall be construed in accordance with the Plan.
(4) This Option is (is not) intended to be treated as an
"incentive stock option" for purposes of Section 422 of the
Internal Revenue Code.
(5) To exercise this Option, the holder must deliver written
notice of the decision to do so and at the same time tender to
the Company payment in full of the exercise price for the
shares for which the Option is exercised, which payment may be
made in (i) cash, (ii) shares of the Common Stock, the total
market value of which equals the total option price of the
shares with respect to which the option is being exercised, or
(iii) any combination of cash and shares of the Common Stock,
the total market value of which equals the total option price
of the shares with respect to which the option is being
exercised. With respect to the foregoing sentence, the value
of the shares of Common Stock shall be the fair market value
determined in accordance with Section 4(d) of this Plan as of
the day of such payment.
(6) The exercise of this Option shall be subject to the condition
that, if at any time the Board or the Committee (as defined in
the Plan) shall determine, in its discretion, that the
satisfaction of withholding tax or other withholding
liabilities under any state or federal law is necessary or
desirable as a condition of, or in connection with, such
exercise or the delivery or purchase of shares pursuant
thereto, then in such event, the exercise of the option shall
not be effective unless such withholding tax or other
withholding liabilities shall have been satisfied in a manner
acceptable to the Company, which may include the withholding
by the Company of shares of Common Stock to be issued upon
exercise of an Option having a fair market value equal to the
required withholding amount.
This Option is not transferable except pursuant to the terms and conditions of
the Plan.
<PAGE> 13
Very truly yours,
BROADWAY & SEYMOUR, INC.
By:____________________________
Title:_________________________
I hereby accept the within Option and
acknowledge receipt of a copy of the Plan.
- ------------------------------------------
Optionee
Date:_____________________________________
<PAGE> 1
EXHIBIT 5
[ROBINSON, BRADSHAW & HINSON, P.A. LETTERHEAD]
JOHN M. HERRING
(704) 377-8385
INTERNET [email protected]
June 17, 1997
Broadway & Seymour, Inc.
128 South Tryon Street
Charlotte, North Carolina 28202
Attention: Ms. Lillian N. Wilson
Re: Broadway & Seymour, Inc.
Registration Statement on Form S-8
(1996 Stock Option Plan)
Ladies and Gentlemen:
We have served as counsel to Broadway & Seymour, Inc. (the "Company") in
connection with the preparation by the Company of a registration statement on
Form S-8 (the "Registration Statement") for filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, relating to
the offer and sale of up to 875,000 shares of the Company's common stock, $.01
par value per share (the "Shares"), to be issued pursuant to the 1996 Stock
Option Plan of Broadway & Seymour, Inc. (the "Plan"), and the related options
issued under the Plan.
We have examined the restated certificate of incorporation filed with the Office
of the Secretary of State of the State of Delaware on June 17, 1992 and the
restated bylaws of the Company (collectively, the "Charter and Bylaws"), all
corporate proceedings relating to the authorization, issuance and sale of the
Shares, and such other documents and records as we have deemed necessary in
order to enable us to render this opinion. In rendering the opinion set forth in
paragraph (i) below, we have relied solely upon telephonic confirmation of good
standing issued by the Secretary of State of the State of Delaware.
Based upon the foregoing, and subject to the conditions set forth below, we are
of the opinion that:
(i) The Company is a corporation duly organized and validly
existing under the laws of the State of Delaware; and
<PAGE> 2
Broadway & Seymour, Inc.
June 17, 1997
Page 2
- -------------------------
(ii) The Shares, when issued and sold by the Company pursuant to
the terms and conditions of the Plan, will be legally issued,
fully paid and non-assessable, and will represent validly
authorized and outstanding shares of the common stock of the
Company.
We have assumed that the Company and those employees that may receive options to
purchase Shares under the Plan will have complied with the relevant requirements
of the Plan and that all prescribed filings with regulatory authorities,
including any stock exchanges having jurisdiction, will be effected in
accordance with their respective requirements and that the approvals of such
regulatory authorities, including any stock exchanges having jurisdiction, will
have been granted prior to the issuance of any of the Shares.
The opinions expressed herein are contingent upon the Registration Statement, as
amended, becoming effective under the Securities Act of 1933 and the Charter and
Bylaws not being further amended prior to the issuance of the Shares.
We hereby consent to the filing of a copy of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
ROBINSON, BRADSHAW & HINSON, P.A.
/s/ John M. Herring
John M. Herring
JMH/dfr
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 7, 1997, which appears on
page 32 of the 1996 Annual Report to the Shareholders of Broadway & Seymour,
Inc., which is incorporated in Broadway & Seymour, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1996. We also consent to the incorporation
by reference of our report on the Financial Statement Schedules, which appears
on page 16 of such Annual Report on Form 10-K.
/s/ Price Waterhouse LLP
- -----------------------------
Price Waterhouse LLP
Charlotte, North Carolina
June 9, 1997
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
THE UNDERSIGNED director of Broadway & Seymour, Inc. (the "Company")
hereby appoints Lillian N. Wilson, Alan C. Stanford, David A. Finley and G.
Courts Holland, and each of them singly, as the undersigned's lawful agent and
attorney-in-fact, with full power of substitution and resubstitution, for and on
behalf and in the name of the undersigned, to execute and file with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-8 pursuant to the Securities Act of 1933, as amended (the "Act"), for
the purpose of registering 875,000 additional shares to be issued upon the
exercise of options granted under the Company's 1996 Stock Option Plan (the
"Plan"), and any and all amendments, including post-effective amendments, and
exhibits to such registration statement, and any and all applications or other
documents to be filed with the Commission or elsewhere pertaining to such
registration statement or amendments, with full power and authority to take or
cause to be taken all other actions that in the judgment of such person may be
necessary or appropriate to effect the registration under the Act of the shares
of the Company's common stock offered or to be offered pursuant to the Plan.
EXECUTED on the 27th day of May, 1997.
/s/ Steven S. Elbaum
--------------------
Steven S. Elbaum
<PAGE> 1
Exhibit 24.2
POWER OF ATTORNEY
THE UNDERSIGNED director of Broadway & Seymour, Inc. (the "Company")
hereby appoints Lillian N. Wilson, Alan C. Stanford, David A. Finley and G.
Courts Holland, and each of them singly, as the undersigned's lawful agent and
attorney-in-fact, with full power of substitution and resubstitution, for and on
behalf and in the name of the undersigned, to execute and file with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-8 pursuant to the Securities Act of 1933, as amended (the "Act"), for
the purpose of registering 875,000 additional shares to be issued upon the
exercise of options granted under the Company's 1996 Stock Option Plan (the
"Plan"), and any and all amendments, including post-effective amendments, and
exhibits to such registration statement, and any and all applications or other
documents to be filed with the Commission or elsewhere pertaining to such
registration statement or amendments, with full power and authority to take or
cause to be taken all other actions that in the judgment of such person may be
necessary or appropriate to effect the registration under the Act of the shares
of the Company's common stock offered or to be offered pursuant to the Plan.
EXECUTED on the 27th day of May, 1997.
/s/ David A. Finley
-------------------
David A. Finley
<PAGE> 1
Exhibit 24.3
POWER OF ATTORNEY
THE UNDERSIGNED director of Broadway & Seymour, Inc. (the "Company")
hereby appoints Lillian N. Wilson, Alan C. Stanford, David A. Finley and G.
Courts Holland, and each of them singly, as the undersigned's lawful agent and
attorney-in-fact, with full power of substitution and resubstitution, for and on
behalf and in the name of the undersigned, to execute and file with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-8 pursuant to the Securities Act of 1933, as amended (the "Act"), for
the purpose of registering 875,000 additional shares to be issued upon the
exercise of options granted under the Company's 1996 Stock Option Plan (the
"Plan"), and any and all amendments, including post-effective amendments, and
exhibits to such registration statement, and any and all applications or other
documents to be filed with the Commission or elsewhere pertaining to such
registration statement or amendments, with full power and authority to take or
cause to be taken all other actions that in the judgment of such person may be
necessary or appropriate to effect the registration under the Act of the shares
of the Company's common stock offered or to be offered pursuant to the Plan.
EXECUTED on the 27th day of May, 1997.
/s/ Robert J. Kelly
-------------------
Robert J. Kelly
<PAGE> 1
Exhibit 24.4
POWER OF ATTORNEY
THE UNDERSIGNED director of Broadway & Seymour, Inc. (the "Company")
hereby appoints Lillian N. Wilson, Alan C. Stanford, David A. Finley and G.
Courts Holland, and each of them singly, as the undersigned's lawful agent and
attorney-in-fact, with full power of substitution and resubstitution, for and on
behalf and in the name of the undersigned, to execute and file with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-8 pursuant to the Securities Act of 1933, as amended (the "Act"), for
the purpose of registering 875,000 additional shares to be issued upon the
exercise of options granted under the Company's 1996 Stock Option Plan (the
"Plan"), and any and all amendments, including post-effective amendments, and
exhibits to such registration statement, and any and all applications or other
documents to be filed with the Commission or elsewhere pertaining to such
registration statement or amendments, with full power and authority to take or
cause to be taken all other actions that in the judgment of such person may be
necessary or appropriate to effect the registration under the Act of the shares
of the Company's common stock offered or to be offered pursuant to the Plan.
EXECUTED on the 27th day of May, 1997.
/s/ Robert J. Levenson
----------------------
Robert J. Levenson
<PAGE> 1
Exhibit 24.5
POWER OF ATTORNEY
THE UNDERSIGNED director of Broadway & Seymour, Inc. (the "Company")
hereby appoints Lillian N. Wilson, Alan C. Stanford, David A. Finley and G.
Courts Holland, and each of them singly, as the undersigned's lawful agent and
attorney-in-fact, with full power of substitution and resubstitution, for and on
behalf and in the name of the undersigned, to execute and file with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-8 pursuant to the Securities Act of 1933, as amended (the "Act"), for
the purpose of registering 875,000 additional shares to be issued upon the
exercise of options granted under the Company's 1996 Stock Option Plan (the
"Plan"), and any and all amendments, including post-effective amendments, and
exhibits to such registration statement, and any and all applications or other
documents to be filed with the Commission or elsewhere pertaining to such
registration statement or amendments, with full power and authority to take or
cause to be taken all other actions that in the judgment of such person may be
necessary or appropriate to effect the registration under the Act of the shares
of the Company's common stock offered or to be offered pursuant to the Plan.
EXECUTED on the 27th day of May, 1997.
/s/ George L. McTavish
----------------------
George L. McTavish
<PAGE> 1
Exhibit 24.6
POWER OF ATTORNEY
THE UNDERSIGNED director of Broadway & Seymour, Inc. (the "Company")
hereby appoints Lillian N. Wilson, Alan C. Stanford, David A. Finley and G.
Courts Holland, and each of them singly, as the undersigned's lawful agent and
attorney-in-fact, with full power of substitution and resubstitution, for and on
behalf and in the name of the undersigned, to execute and file with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-8 pursuant to the Securities Act of 1933, as amended (the "Act"), for
the purpose of registering 875,000 additional shares to be issued upon the
exercise of options granted under the Company's 1996 Stock Option Plan (the
"Plan"), and any and all amendments, including post-effective amendments, and
exhibits to such registration statement, and any and all applications or other
documents to be filed with the Commission or elsewhere pertaining to such
registration statement or amendments, with full power and authority to take or
cause to be taken all other actions that in the judgment of such person may be
necessary or appropriate to effect the registration under the Act of the shares
of the Company's common stock offered or to be offered pursuant to the Plan.
EXECUTED on the 27th day of May, 1997.
/s/ Roger Noall
---------------
Roger Noall
<PAGE> 1
Exhibit 24.7
POWER OF ATTORNEY
THE UNDERSIGNED director of Broadway & Seymour, Inc. (the "Company")
hereby appoints Lillian N. Wilson, Alan C. Stanford, David A. Finley and G.
Courts Holland, and each of them singly, as the undersigned's lawful agent and
attorney-in-fact, with full power of substitution and resubstitution, for and on
behalf and in the name of the undersigned, to execute and file with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-8 pursuant to the Securities Act of 1933, as amended (the "Act"), for
the purpose of registering 875,000 additional shares to be issued upon the
exercise of options granted under the Company's 1996 Stock Option Plan (the
"Plan"), and any and all amendments, including post-effective amendments, and
exhibits to such registration statement, and any and all applications or other
documents to be filed with the Commission or elsewhere pertaining to such
registration statement or amendments, with full power and authority to take or
cause to be taken all other actions that in the judgment of such person may be
necessary or appropriate to effect the registration under the Act of the shares
of the Company's common stock offered or to be offered pursuant to the Plan.
EXECUTED on the 27th day of May, 1997.
/s/ William G. Seymour
----------------------
William G. Seymour
<PAGE> 1
Exhibit 24.8
POWER OF ATTORNEY
THE UNDERSIGNED director of Broadway & Seymour, Inc. (the "Company")
hereby appoints Lillian N. Wilson, Alan C. Stanford, David A. Finley and G.
Courts Holland, and each of them singly, as the undersigned's lawful agent and
attorney-in-fact, with full power of substitution and resubstitution, for and on
behalf and in the name of the undersigned, to execute and file with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-8 pursuant to the Securities Act of 1933, as amended (the "Act"), for
the purpose of registering 875,000 additional shares to be issued upon the
exercise of options granted under the Company's 1996 Stock Option Plan (the
"Plan"), and any and all amendments, including post-effective amendments, and
exhibits to such registration statement, and any and all applications or other
documents to be filed with the Commission or elsewhere pertaining to such
registration statement or amendments, with full power and authority to take or
cause to be taken all other actions that in the judgment of such person may be
necessary or appropriate to effect the registration under the Act of the shares
of the Company's common stock offered or to be offered pursuant to the Plan.
EXECUTED on the 27th day of May, 1997.
/s/ Alan C. Stanford
--------------------
Alan C. Stanford
