REGISTRATION NO. 333-_____
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
IMNET SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 39-1730068
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3015 WINDWARD PLAZA, WINDWARD FAIRWAYS II, ALPHARETTA, GEORGIA 30005
(Address of Principal Executive Offices) (Zip Code)
IMNET SYSTEMS, INC. 1997 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
Kenneth D. Rardin, CEO
IMNET Systems, Inc.
3015 Windward Plaza
Windward Fairways II
ALPHARETTA, GEORGIA 30005
(Name and address of agent for service)
(770) 521-5600
(Telephone number, including area code, of agent for service)
Copy to:
T. Clark Fitzgerald III, Esq.
Arnall Golden & Gregory
2800 One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3450
Telephone: (404) 873-8500
Facsimile: (404) 873-8501
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------
Proposed
Proposed maximum Amount of
Title of securities Amount to be maximum offering aggregate registration
to be registered registered price per share offering price fee*
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 875,000 Shares $22.125 $19,359,375 $5,711.02
- -----------------------------------------------------------------------------------------------
</TABLE>
* Calculated pursuant to Rules 457(c) and 457(h), based upon the average of
the high and low prices reported for the Common Stock on March 31, 1998 for
the shares.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in the
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K, as amended, filed with
respect to the Registrant's fiscal year ended June 30, 1997.
(b) The Registrant's Quarterly Reports on Form 10-Q filed with respect
to the Registrant's quarterly periods ended September 30, 1997 and December 31,
1997.
(c) The Registrant's Current Reports on Form 8-K filed July 10, 1997,
as amended and November 12, 1997.
(d) The description of the Registrant's Common Stock, as such
description is set forth in the Registrant's registration statement filed under
Section 12 of the Securities Exchange Act of 1934 effected by filing of Form
8-A. This description was set forth in Registrant's prospectus dated July 20,
1995 pursuant to Rule 424(b) as part of Registrant's Registration Statement (No.
33-92130) on Form S-1.
(e) All other reports filed by the Registrant subsequent to June 30,
1997 pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934
are, and all documents subsequently filed pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
of the shares of Common Stock offered have been sold or which deregisters all of
such shares 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. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement 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.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Bylaws of the Registrant, as amended, provide for mandatory
indemnification rights, subject to limited exceptions, to any officer or
director of the Registrant who by reason of the fact that he or she is or was an
officer or director of the Registrant, is involved in a legal proceeding of any
nature. The Registrant has also entered into indemnification agreements pursuant
to which it has agreed, among other things, to indemnify its officers and
directors to the fullest extent permitted by the General Corporation Law of the
State of Delaware (the "Delaware Code").
The Registrant is a corporation organized under the laws of the State
of Delaware. Section 145 of the Delaware Code authorizes indemnification when a
person is made a party to any proceeding by reason of the fact that such person
is or was a director, officer, employee or agent of the corporation or was
serving as a director, officer, employee or agent of another enterprise, at the
request of the corporation, and if such person acted in good faith and in a
manner reasonably believed by him or her to be in or not opposed to the best
interests of the corporation. With respect to any criminal proceeding, such
person must have had no reasonable cause to believe that his or her conduct was
unlawful. If it is determined that the conduct of such person meets these
standards, he or she may be indemnified for expenses incurred and amounts paid
in such proceeding if actually and reasonably incurred by him or her in
connection therewith. If such a proceeding is brought by or on behalf of the
corporation (i.e., a derivative suit), such person may be indemnified against
expenses actually and reasonably incurred if he or she acted in good faith and
in a manner reasonably believed by him or her to be in, or not opposed to, the
best interests of the corporation. There can be no indemnification with respect
to any matter as to which such person is adjudged to be liable to the
corporation; however, a court may, even in such case, allow such indemnification
to such person for such expenses as the court deems proper. Where such person is
successful in any such proceeding, he or she is entitled to be indemnified
against expenses actually and reasonably incurred by him or her. In all other
cases, indemnification is made by the corporation upon determination by it that
indemnification of such person is proper because such person has met the
applicable standard of conduct.
Article Eight of the Registrant's Amended and Restated Certificate of
Incorporation provides that the Registrant's directors will not be personally
liable to the Registrant or its stockholders for monetary damages resulting from
breaches of their fiduciary duty as directors except for liability (a) for any
breach of their duty of loyalty to the Registrant or its stockholders, (b) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the Delaware Code, which
makes directors liable for unlawful dividends or unlawful stock repurchases or
redemptions or (d) for transactions from which directors derive an improper
personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE>
ITEM 8. EXHIBITS.
EXHIBIT NO. EXHIBIT
3.2.2 Amended and Restated Certificate of Incorporation of the Registrant
(hereby incorporated herein by reference to Exhibit 3.2.2 filed with
Registrant's Registration Statement on Form S-1 (File No. 33-92130)
which became effective on July 20, 1995)
3.3.1 Amended and Restated Bylaws of the Registrant (hereby incorporated
herein by reference to Exhibit 3.3.1 filed with Registrant's Annual
Report on Form 10-K (File No. 0-26306) for the year ended June 30,
1996)
5* Opinion of Arnall Golden & Gregory regarding legality
10.41* IMNET Systems, Inc. 1997 Long-Term Incentive Plan
23.1* Consent of Arnall Golden & Gregory (included as part of Exhibit 5
hereto)
23.2* Consent of KPMG Peat Marwick LLP
24.1* Power of Attorney (included as part of the signature page hereto)
*Included with this filing.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
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<PAGE>
Provided, however, that paragraph (a)(1)(i) and
(a)(1)(ii) shall not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the 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
proceedings) 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>
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 Atlanta, State of Georgia on April 2, 1998.
IMNET SYSTEMS, INC.
By: KENNETH D. RARDIN
--------------------------------------
Kenneth D. Rardin, CHAIRMAN OF THE
BOARD, PRESIDENT AND CHIEF EXECUTIVE
OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kenneth D. Rardin, Scott A. Remley and
Raymond L. Brown and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place, and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or
their 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 dates indicated.
PRINCIPAL EXECUTIVE, FINANCIAL & ACCOUNTING OFFICERS AND DIRECTORS:
NAME TITLE DATE
---- ----- ----
KENNETH D. RARDIN Chairman of the Board, President, April 2, 1998
- -------------------
Kenneth D. Rardin Chief Executive Officer and
Director (Principal Executive
Officer)
SCOTT A. REMLEY Chief Financial Officer (Principal April 2, 1998
- ------------------
Scott A. Remley Financial and Accounting Officer)
DANIEL P. HOWELL Director April 2, 1998
- ------------------
Daniel P. Howell
JAMES A. GORDON Director April 2, 1998
- ------------------
James A. Gordon
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<PAGE>
IMNET SYSTEMS, INC.
EXHIBITS TO REGISTRATION STATEMENT
ON FORM S-8
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
3.2.2 Amended and Restated Certificate of Incorporation of the
Registrant (hereby incorporated herein by reference to Exhibit
3.2.2 filed with Registrant's Registration Statement on Form S-1
(File No. 33-92130) which became effective on July 20, 1995)
3.3.1 Amended and Restated Bylaws of the Registrant (hereby
incorporated herein by reference to Exhibit 3.3.1 filed with
Registrant's Annual Report on Form 10-K (File No. 0-26306) for
the year ended June 30, 1996)
5* Opinion of Arnall Golden & Gregory regarding legality
10.41* IMNET Systems, Inc. 1997 Long-Term Incentive Plan
23.1* Consent of Arnall Golden & Gregory (included as part of Exhibit 5
hereto)
23.2* Consent of KPMG Peat Marwick LLP
24.1* Power of Attorney (included as part of the signature page hereto)
*Included with this filing.
520758.1
EXHIBIT 5
<PAGE>
ARNALL GOLDEN & GREGORY, LLP
2800 One Atlantic Center
1201 West Peachtree Street o Atlanta, Georgia 30309-3450
Telephone (404) 873-8500 o Facsimile (404) 873-8501
April 2, 1998
IMNET Systems, Inc.
3015 Windward Plaza
Windward Fairways II
Alpharetta, Georgia 30202
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
This opinion is rendered in connection with the proposed issue and sale by
IMNET Systems, Inc., a Delaware corporation (the "Company"), of up to 875,000
shares of the Company's Common Stock, $.01 par value (the "Shares"), upon the
terms and conditions set forth in the Registration Statement on Form S-8 (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act"). We have
acted as counsel for the Company in connection with the issuance and sale of the
Shares by the Company.
In rendering the opinion contained herein, we have relied in part upon
examination of the Company's corporate records, documents, certificates and
other instruments and the examination of such questions of law as we have
considered necessary or appropriate for the purpose of this opinion. Based upon
the foregoing, we are of the opinion that the Shares have been duly and validly
authorized and when sold in the manner contemplated by the IMNET Systems, Inc.
1997 Long-Term Incentive Plan, and upon receipt by the Company of payment
therefor, and upon issuance pursuant to a current prospectus in conformity with
the Act, they will be legally issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement. This consent is not to be construed as an admission that we are a
party whose consent is required to be filed with the Registration Statement
under the provisions of the Securities Act of 1933, as amended.
Sincerely,
ARNALL GOLDEN & GREGORY, LLP
520758.1
EXHIBIT 10.41
<PAGE>
IMNET SYSTEMS, INC.
1997 LONG-TERM INCENTIVE PLAN
-----------------------------
520758.1
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TABLE OF CONTENTS
PAGE
SECTION 1 GENERAL.................................................... 1
1.1. Purpose.................................................... 1
1.2. Participation.............................................. 1
SECTION 2 OPTIONS AND SARS........................................... 1
2.1. Definitions of Options and SARS............................ 1
2.2. Exercise Price ............................................ 2
2.3. Exercise .................................................. 2
2.4. Payment of Option Exercise Price .......................... 2
2.5. Expiration Date ........................................... 3
2.6. Settlement of Award ....................................... 3
SECTION 3 OTHER STOCK AWARDS......................................... 4
3.1. Definition ................................................ 4
3.2. Restrictions on Stock Awards .............................. 4
SECTION 4 OPERATION AND ADMINISTRATION............................... 4
4.1. Effective Date ............................................ 4
4.2. Shares Subject to Plan..................................... 4
4.3. Limit on Distribution ..................................... 6
4.4. Tax Withholding ........................................... 6
4.5. Payment in Shares ......................................... 7
4.6. Dividends and Dividend Equivalents ....................... 7
4.7. Payments .................................................. 7
4.8. Transferability ........................................... 7
4.9. Form and Time of Elections ................................ 7
4.10. Agreement With Company..................................... 7
4.11. Limitation of Implied Rights............................... 7
4.12. Evidence .................................................. 8
4.13. Action by Company or Related Company ...................... 8
4.14. Gender and Number ......................................... 8
4.15. Change of Control ......................................... 8
4.16. Liability for Cash Payment ................................ 9
4.17. Governing Law ............................................. 9
SECTION 5 COMMITTEE.................................................. 9
5.1. Administration ............................................ 9
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5.2. Selection of Committee .................................... 9
5.3. Powers of Committee ....................................... 9
5.4. Delegation by Committee.................................... 10
5.5. Information to be Furnished to Committee.................. 10
SECTION 6 AMENDMENT AND TERMINATION.................................. 11
6.1. Board of Directors......................................... 11
6.2. Committee.................................................. 11
SECTION 7 DEFINED TERMS.............................................. 11
SECTION 8 UNFUNDED STATUS OF THE PLAN................................ 13
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IMNET SYSTEMS, INC.
1997 LONG-TERM INCENTIVE PLAN
SECTION 1
GENERAL
1.1. PURPOSE. The IMNET Systems, Inc. 1997 Long-Term Incentive Plan (the
"Plan") has been established by IMNET Systems, Inc. (the "Company") (i) to
attract and retain persons eligible to participate in the Plan; (ii) motivate
Participants, by means of appropriate incentives, to achieve long- range goals;
(iii) provide incentive compensation opportunities that are competitive with
those of other similar companies; and (iv) further identify Participants'
interests with those of the Company's other stockholders through compensation
that is based on the Company's common stock; and thereby promote the long-term
financial interest of the Company and the Related Companies, including the
growth in value of the Company's equity and enhancement of long-term stockholder
return.
1.2. PARTICIPATION. Subject to the terms and conditions of the Plan, the
Committee shall determine and designate, from time to time, from among the
Eligible Individuals, those persons who will be granted one or more Awards under
the Plan, and thereby become "Participants" in the Plan. In the discretion of
the Committee, a Participant may be granted any Award permitted under the
provisions of the Plan, and more than one Award may be granted to a Participant.
Awards may be granted as alternatives to or replacement of awards outstanding
under the Plan, or any other plan or arrangement of the Company or a Related
Company (including a plan or arrangement of a business or entity, all or a
portion of which is acquired by the Company or a Related Company).
SECTION 2
OPTIONS AND SARS
2.1. DEFINITIONS OF OPTIONS AND SARS.
(a) The grant of an "Option" entitles the Participant to purchase
shares of Stock at an Exercise Price established by the
Committee. Options granted under this Section 2 may be either
Incentive Stock Options or Non-Qualified Stock Options, as
determined in the discretion of the Committee. An "Incentive
Stock Option" is an Option that is intended to satisfy the
requirements applicable to an "incentive stock option" described
in section 422(b) of the Code. A "Non-Qualified Option" is an
Option that is not intended to be an "incentive stock option" as
that term is described in section 422(b) of the Code.
(b) To the extent that the aggregate fair market value of Stock with
respect to which Incentive Stock Options are exercisable for the
first time by the Participant during any calendar year (under all
plans of the Company and all Related Companies) exceeds $100,000,
such options shall be treated as Non-Qualified Stock Options, to
the extent required by section 422 of the Code.
(c) A stock appreciation right (an "SAR") entitles the Participant to
receive, in cash or Stock (as determined in accordance with
subsection 2.6), value equal to all or a portion of the
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excess of: (a) the Fair Market Value of a specified number of
shares of Stock at the time of exercise; over (b) an Exercise
Price established by the Committee.
2.2. EXERCISE PRICE. The "Exercise Price" of each Option and SAR granted
under this Section 2 shall be established by the Committee or shall be
determined by a method established by the Committee at the time the Option or
SAR is granted; except that the Exercise Price shall not be less than the
greater of 100% of the Fair Market Value or the par value of a share of Stock as
of the Pricing Date. However, if the Participant owns more than 10% of the total
combined voting power of all classes of capital stock of the Company or any of
its subsidiary or parent corporations, the Exercise Price of an Incentive Stock
Option granted to such Participant shall not be less than 110% of the Fair
Market Value of a share of Stock as of the Pricing Date. For purposes of the
preceding sentence, the "Pricing Date" shall be the date on which the Option or
SAR is granted, except that the Committee may provide that: (i) the Pricing Date
is the date on which the recipient is hired or promoted (or similar event), if
the grant of the Option or SAR occurs not more than 90 days after the date of
such hiring, promotion or other event; and (ii) if an Option or SAR is granted
in tandem with, or in substitution for, an outstanding Award, the Pricing Date
is the date of grant of such outstanding Award.
2.3. EXERCISE. An Option and an SAR shall be exercisable in accordance with
such terms and conditions and during such periods as may be established by the
Committee.
2.4. PAYMENT OF OPTION EXERCISE PRICE. The payment of the Exercise Price of
an Option granted under this Section 2 shall be subject to the following:
(a) Subject to the following provisions of this subsection 2.4, the
full Exercise Price for shares of Stock purchased upon the
exercise of any Option shall be paid at the time of such exercise
(except that, in the case of an exercise arrangement approved by
the Committee and described in paragraph 2.4(c), payment may be
made as soon as practicable after the exercise).
(b) The Exercise Price shall be payable in cash or by tendering
shares of Stock (by either actual delivery of shares or by
attestation, with such shares valued at Fair Market Value as of
the day of exercise), or in any combination thereof, as
determined by the Committee.
(c) The Committee may permit a Participant to elect to pay the
Exercise Price upon the exercise of an Option by authorizing a
third party to sell shares of Stock (or a sufficient portion of
the shares) acquired upon exercise of the Option and remit to the
Company a sufficient portion of the sale proceeds to pay the
entire Exercise Price and any tax withholding resulting from such
exercise.
2.5. EXPIRATION DATE. The "Expiration Date" with respect to an Option means
the date established as the Expiration Date by the Committee at the time of the
grant; provided, however, that the Expiration Date with respect to any Option
shall not be later than the earliest to occur of:
(a) the ten-year anniversary of the date on which the Option is
granted;
(b) if the Participant's date of termination occurs by reason of
death or Disability, the one- year anniversary of such date of
termination;
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(c) if the Participant's date of termination occurs by reason of
Retirement or Early Retirement, the three-year anniversary of
such date of termination;
(d) if the Participant's date of termination occurs for Cause, the
date of termination; or
(e) if the Participant's date of termination occurs for reasons other
than Cause, Retirement, Early Retirement, death or Disability,
the 30-day anniversary of such date of termination.
Notwithstanding the foregoing provisions of this subsection 2.5, if the
Participant dies while the Option is otherwise exercisable, the Expiration Date
may be later than the dates set forth above, as determined by the Committee,
provided that it is not later than the first anniversary of the date of death.
2.6. SETTLEMENT OF AWARD. Distribution following exercise of an Option or
SAR, and shares of Stock distributed pursuant to such exercise, shall be subject
to such conditions, restrictions and contingencies as the Committee may
establish. Settlement of SARs may be made in shares of Stock (valued at their
Fair Market Value at the time of exercise), in cash, or in a combination
thereof, as determined in the discretion of the Committee. The Committee, in its
discretion, may impose such conditions, restrictions and contingencies and may
waive any such conditions, restrictions and contingencies, at or after grant, or
otherwise accelerate the vesting of any Option or SAR, at any time, in its
discretion with respect to shares of Stock acquired pursuant to the exercise of
an Option or an SAR as the Committee determines to be desirable.
SECTION 3
OTHER STOCK AWARDS
3.1. DEFINITION. A Stock Award is a grant of shares of Stock or of a right
to receive shares of Stock (or their cash equivalent or a combination of both)
in the future.
3.2. RESTRICTIONS ON STOCK AWARDS. Each Stock Award shall be subject to
such conditions, restrictions and contingencies as the Committee shall
determine. These may include continuous service and/or the achievement of
performance measures. The performance measures that may be used by the Committee
for such Awards shall be measured by revenues, income, or such other criteria as
the Committee may specify. The Committee may designate a single goal criterion
or multiple goal criteria for performance measurement purposes, with the
measurement based on absolute Company or business unit performance and/or on
performance as compared with that of other publicly-traded companies. If the
right to become vested in a Stock Award granted under this Section 3 is
conditioned on the completion of a specified period of service with the Company
and the Related Companies, without achievement of Performance Measures or other
objectives being required as a condition of vesting, then the required period of
service for vesting shall be not less than three years (subject to acceleration
of vesting, to the extent permitted by the Committee, in the event of the
Participant's death, disability, change in control or involuntary termination).
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SECTION 4
OPERATION AND ADMINISTRATION
4.1. EFFECTIVE DATE. Subject to the approval of the stockholders of the
Company at the Company's next annual meeting of its stockholders, the Plan shall
be effective as of the date such approval is obtained (the "Effective Date").
The Plan shall be unlimited in duration and, in the event of Plan termination,
shall remain in effect as long as any Awards under it are outstanding; provided,
however, that, to the extent required by the Code, no Incentive Stock Options
may be granted under the Plan on a date that is more than ten years from the
date the Plan is adopted or, if earlier, the date the Plan is approved by
stockholders.
4.2. SHARES SUBJECT TO PLAN.
(a) (i) Subject to the following provisions of this subsection 4.2,
the maximum number of shares of Stock that may be delivered
to Participants and their beneficiaries under the Plan shall
be equal to 875,000 shares of Stock;
(ii) Any shares of Stock granted under the Plan that are
forfeited because of the failure to meet an Award
contingency or condition shall again be available for
delivery pursuant to new Awards granted under the Plan. To
the extent any shares of Stock covered by an Award are not
delivered to a Participant or beneficiary because the Award
is forfeited or cancelled, or the shares of Stock are not
delivered because the Award is settled in cash, such shares
shall not be deemed to have been delivered for purposes of
determining the maximum number of shares of Stock available
for delivery under the Plan.
(iii) If the Exercise Price of any stock option granted under the
Plan is satisfied by tendering shares of Stock to the
Company (by either actual delivery or by attestation), only
the number of shares of Stock issued net of the shares of
Stock tendered shall be deemed delivered for purposes of
determining the maximum number of shares of Stock available
for delivery under the Plan.
(iv) Shares of Stock delivered under the Plan in settlement,
assumption or substitution of outstanding awards (or
obligations to grant future awards) under the plans or
arrangements of another entity shall not reduce the maximum
number of shares of Stock available for delivery under the
Plan, to the extent that such settlement, assumption or
substitution as a result of the Company or a Related Company
acquiring another entity (or an interest in another entity).
(b) Subject to paragraph 4.2(c), the following additional maximums
are imposed under the Plan.
(i) The maximum number of shares of Stock that may be issued by
Options intended to be Incentive Stock Options shall be
800,000 shares.
(ii) The maximum number of shares of Stock that may be issued in
conjunction with Awards granted pursuant to Section 3
(relating to Stock Awards) shall be 500,000 shares.
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(iii) The maximum number of shares that may be covered by Awards
granted to any one individual pursuant to Section 2
(relating to Options and SARs) shall be 300,000 shares
during any consecutive 12 month period.
(iv) The maximum payment that can be made for Awards granted to
any one individual pursuant to Section 3 (relating to Stock
Awards) shall be $2,000,000 for any single or combined
performance goals established for any annual performance
period. If an Award granted under Section 3 is, at the time
of grant, denominated in shares, the value of the shares of
Stock for determining this maximum individual payment amount
will be the Fair Market Value of a share of Stock on the
first day of the applicable performance period.
(c) In the event of a corporate transaction involving the Company
(including, without limitation, any stock dividend, stock split,
extraordinary cash dividend, recapitalization, reorganization,
merger, consolidation, split-up, spin-off, combination or
exchange of shares), and subject to Section 4.15 hereof, the
Committee shall adjust Awards to preserve the benefits or
potential benefits of the Awards. Action by the Committee may
include adjustment of: (i) the number and kind of shares which
may be delivered under the Plan; (ii) the number and kind of
shares subject to outstanding Awards; and (iii) the Exercise
Price of outstanding Options and SARs; as well as any other
adjustments that the Committee determines to be equitable.
4.3. LIMIT ON DISTRIBUTION. Distribution of shares of Stock or other
amounts under the Plan shall be subject to the following:
(a) Notwithstanding any other provision of the Plan, the Company
shall have no liability to deliver any shares of Stock under the
Plan or make any other distribution of benefits under the Plan
unless such delivery or distribution would comply with all
applicable laws (including, without limitation, the requirements
of the Securities Act of 1933), and the applicable requirements
of any securities exchange or similar entity.
(b) To the extent that the Plan provides for issuance of stock
certificates to reflect the issuance of shares of Stock, the
issuance may be effected on a non-certificated basis, to the
extent not prohibited by applicable law or the applicable rules
of any stock exchange.
4.4. TAX WITHHOLDING. Whenever the Company proposes, or is required, to
distribute Stock under the Plan, the Company may require the recipient to remit
to the Company an amount sufficient to satisfy any Federal, state and local tax
withholding requirements prior to the delivery of any certificate for such
shares or, in the discretion of the Committee, the Company may withhold from the
shares to be delivered shares sufficient to satisfy all or a portion of such tax
withholding requirements. Whenever under the Plan payments are to be made in
cash, such payments may be net of an amount sufficient to satisfy any Federal,
state and local tax withholding requirements.
4.5. PAYMENT IN SHARES. Subject to the overall limitation on the number of
shares of Stock that may be delivered under the Plan, the Committee may use
available shares of Stock as the form of payment for compensation, grants or
rights earned or due under any other compensation plans or arrangements of the
Company or a Related Company, including the plans and arrangements of the
Company or a Related Company acquiring another entity (or an interest in another
entity).
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4.6. DIVIDENDS AND DIVIDEND EQUIVALENTS. An Award may provide the
Participant with the right to receive dividends or dividend equivalent payments
with respect to Stock which may be either paid currently or credited to an
account for the Participant, and may be settled in cash or Stock as determined
by the Committee. Any such settlements, and any such crediting of dividends or
dividend equivalents or reinvestment in shares of Stock, may be subject to such
conditions, restrictions and contingencies as the Committee shall establish,
including the reinvestment of such credited amounts in Stock equivalents.
4.7. PAYMENTS. Awards may be settled through cash payments, the delivery of
shares of Stock, the granting of replacement Awards, or combination thereof as
the Committee shall determine. Any Award settlement, including payment
deferrals, may be subject to such rules and procedures as it may establish,
which may include provisions for the payment or crediting of interest, or
dividend equivalents, including converting such credits into deferred Stock
equivalents.
4.8. TRANSFERABILITY. Except as otherwise provided by the Committee, Awards
under the Plan are not transferable except as designated by the Participant by
will or by the laws of descent and distribution.
4.9. FORM AND TIME OF ELECTIONS. Unless otherwise specified herein, each
election required or permitted to be made by any Participant or other person
entitled to benefits under the Plan, and any permitted modification, or
revocation thereof, shall be in writing filed with the Committee at such times,
in such form, and subject to such restrictions and limitations, not inconsistent
with the terms of the Plan, as the Committee shall require.
4.10. AGREEMENT WITH COMPANY. At the time of an Award to a Participant
under the Plan, the Committee may require a Participant to enter into an
agreement with the Company (the "Agreement") in a form specified by the
Committee, agreeing to the terms and conditions of the Plan and to such
additional terms and conditions, not inconsistent with the Plan, as the
Committee may, in its sole discretion, prescribe.
4.11. LIMITATION OF IMPLIED RIGHTS.
(a) Neither a Participant nor any other person shall, by reason of
the Plan, acquire any right in or title to any assets, funds or
property of the Company or any Related Company whatsoever,
including, without limitation, any specific funds, assets, or
other property which the Company or any Related Company, in their
sole discretion, may set aside in anticipation of a liability
under the Plan. A Participant shall have only a contractual right
to the stock or amounts, if any, payable under the Plan,
unsecured by any assets of the Company or any Related Company.
Nothing contained in the Plan shall constitute a guarantee that
the assets of such companies shall be sufficient to pay any
benefits to any person.
(b) The Plan does not constitute a contract of employment, and
selection as a Participant will not give any employee the right
to be retained in the employ of the Company or any Related
Company, nor any right or claim to any benefit under the Plan,
unless such right or claim has specifically accrued under the
terms of the Plan. Except as otherwise provided in the Plan, no
Award under the Plan shall confer upon the holder thereof any
right as a stockholder of the Company prior to the date on which
the individual fulfills all conditions for receipt of such
rights.
520758.1
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4.12. EVIDENCE. Evidence required of anyone under the Plan may be by
certificate, affidavit, document or other information which the person acting on
it considers pertinent and reliable, and signed, made or presented by the proper
party or parties.
4.13. ACTION BY COMPANY OR RELATED COMPANY. Any action required or
permitted to be taken by the Company or any Related Company shall be by
resolution of its board of directors, or by action of one or more members of the
board (including a committee of the board) who are duly authorized to act for
the board, or (except to the extent prohibited by applicable law or applicable
rules of any stock exchange) by a duly authorized officer of the Company.
4.14. GENDER AND NUMBER. Where the context admits, words in any gender
shall include any other gender, words in the singular shall include the plural
and the plural shall include the singular.
4.15. CHANGE OF CONTROL. In general, if the Company is merged into or
consolidated with another corporation under circumstances in which the Company
is not the surviving corporation, or if the Company is liquidated, or sells or
otherwise disposes of substantially all of its assets to another corporation
(any such merger, consolidation, etc., being hereinafter referred to as a
"Change of Control Transaction") while unexercised Options are outstanding under
the Plan, after the effective date of a Change of Control Transaction each
holder of an outstanding Option shall be entitled, upon exercise of such Option,
to receive such stock, or other securities as the holders of the same class of
stock as those shares subject to the Option shall be entitled to receive in such
Change of Control Transaction based upon the agreed upon conversion ratio or per
share distribution. However, any limitations on exercisability of Options owned
by executive officers of the Company shall be waived, and Options of
non-executive officers may be waived (in the discretion of the Committee), so
that all such Options, from and after a date prior to the effective date of such
Change of Control Transaction shall be exercisable in full. Furthermore, the
right to exercise shall, in the case of executive officers, and may (in the
discretion of the Committee), in the case of other option holders, be given to
each holder (by written notice) of an Option during a 15-day period preceding
the effective date of such Change of Control Transaction. Any outstanding
Options not exercised within such 15-day period may be cancelled by the
Committee as of the effective date of any such Change of Control Transaction, as
specified in the 15-day notice. To the extent that the foregoing adjustments
relate to stock or securities of the Company, such adjustments shall be made by
the Committee, whose determination in that respect shall be final, binding and
conclusive.
4.16. LIABILITY FOR CASH PAYMENT. Each Related Company shall be liable for
payment of cash due under the Plan with respect to any Participant to the extent
that such benefits are attributable to the services rendered for that Related
Company by the Participant. Any disputes relating to liability of a Related
Company for cash payments shall be resolved by the Committee.
4.17. GOVERNING LAW. This Plan and all awards made and actions taken
thereunder shall be governed by and construed in accordance with (i) the laws of
the State of Georgia, excluding its conflict of law provisions and its General
Business Corporation Code, (ii) the applicable corporation law, which shall be
the General Business Corporation Law of Delaware.
520758.1
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SECTION 5
COMMITTEE
5.1. ADMINISTRATION. The authority to control and manage the operation and
administration of the Plan shall be vested in a committee (the "Committee") in
accordance with this Section 5.
5.2. SELECTION OF COMMITTEE. The Committee shall be selected by the Board,
and shall consist of two or more members of the Board.
5.3. POWERS OF COMMITTEE. The authority to manage and control the operation
and administration of the Plan shall be vested in the Committee, subject to the
following:
(a) Subject to the provisions of the Plan, the Committee will have
the authority and discretion to select from among the Eligible
Employees those persons who shall receive Awards, to determine
the time or times of receipt, to determine the types of Awards
and the number of shares covered by the Awards, to establish the
terms, conditions, performance criteria, restrictions, and other
provisions of such Awards, and (subject to Section 4.15 and the
restrictions imposed by Section 6) to cancel or suspend Awards or
accelerate any provisions, including vesting provisions, thereof,
in making such Award determinations, the Committee may take into
account the nature of services rendered by the individual, the
individual's present and potential contribution to the Company's
success and such other factors as the Committee deems relevant.
(b) Subject to the provisions of the Plan, the Committee will have
the authority and discretion to determine the extent to which
Awards under the Plan will be structured to conform to the
requirements applicable to performance-based compensation as
described in Code section 162(m), and to take such action,
establish such procedures, and impose such restrictions at or
after the time such Awards are granted as the Committee
determines to be necessary or appropriate to conform to such
requirements.
(c) The Committee will have the authority and discretion to establish
terms and conditions of awards as the Committee determines to be
necessary or appropriate to conform to applicable requirements or
practices of jurisdictions outside of the United States.
(d) The Committee will have the authority and discretion to interpret
the Plan, to establish, amend, and rescind any rules and
regulations relating to the Plan, to determine the terms and
provisions of any agreements made pursuant to the Plan, and to
make all other determinations that may be necessary or advisable
for the administration of the Plan.
(e) Any interpretation of the Plan by the Committee and any decision
made by it under the Plan is final and binding.
(f) Except as otherwise expressly provided in the Plan, where the
Committee is authorized to make a determination with respect to
any Award, such determination shall be made at the time the Award
is made, except that the Committee may reserve the authority to
have such determination made by the Committee in the future (but
only if such
520758.1
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<PAGE>
reservation is made at the time the Award is granted and is
expressly stated in the Agreement reflecting the Award).
(g) In controlling and managing the operation and administration of
the Plan, the Committee shall act by a majority of its then
members, by meeting or by writing filed without a meeting. The
Committee shall maintain and keep adequate records concerning the
Plan and concerning its proceedings and acts in such form and
detail as the Committee may decide.
5.4. DELEGATION BY COMMITTEE. Except to the extent prohibited by applicable
law or the applicable rules of a stock exchange, the Committee may allocate all
or any portion of its responsibilities and powers to any one or more of its
members and may delegate all or any part of its responsibilities and powers to
any person or persons selected by it. Any such allocation or delegation may be
revoked by the Committee at any time.
5.5. INFORMATION TO BE FURNISHED TO COMMITTEE. The Company and Related
Companies shall furnish the Committee with such data and information as may be
required for it to discharge its duties. The records of the Company and Related
Companies as to an employee's or Participant's employment (or other provision of
services), termination of employment (or cessation of the provision of
services), leave of absence, reemployment and compensation shall be conclusive
on all persons unless determined to be incorrect. Participants and other persons
entitled to benefits under the Plan must furnish the Committee such evidence,
data or information as the Committee considers desirable to carry out the terms
of the Plan.
SECTION 6
AMENDMENT AND TERMINATION
6.1. BOARD OF DIRECTORS. The Board may, at any time, amend or terminate the
Plan, provided that, subject to subsection 4.2(c) (relating to certain
adjustments to shares), no amendment or termination may, in the absence of
written consent to the change by the affected Participant (or, if the
Participant is not then living, the affected beneficiary), adversely affect the
rights of any Participant or beneficiary under any Award granted under the Plan
prior to the date such amendment is adopted by the Board. Furthermore, the Board
may not amend the provisions of Section 2.2 hereof to reduce the minimum
Exercise Price or change the persons eligible to receive Incentive Stock
Options, nor may the Board increase the number of shares reserved under the
Plan, or change the maximums set forth in Subsection 4.2(b), unless it obtains
stockholder approval. Subject to the foregoing, the Board shall have broad
authority to amend the Plan to take into account changes in applicable
securities and tax laws and accounting rules, as well as other developments.
6.2. COMMITTEE. The Committee may amend the terms of any Award theretofore
granted, prospectively or retroactively, but, subject to subsection 4.2
(relating to certain adjustments to shares) no amendment or termination may, in
the absence of written consent to the change by the affected Participant (or, if
the Participant is not then living, the affected beneficiary), adversely affect
the rights of any Participant or beneficiary granted under the Plan prior to the
date such amendment is adopted by the Committee under any Award. [The Committee
may also substitute new Options for previously granted Options (on a one for one
or other basis), including previously granted Options having higher option
exercise prices.]
520758.1
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<PAGE>
SECTION 7
DEFINED TERMS
7.1. For purposes of the Plan, the terms listed below shall be defined as
follows:
(a) AWARD. The term "Award" shall mean any award or benefit granted
to any Participant under the Plan, including, without limitation,
the grant of Options, SARs, and Stock Awards.
(b) BOARD. The term "Board" shall mean the Board of Directors of the
Company.
(c) CAUSE. The term "Cause" means a felony conviction of a
Participant or the failure of a Participant to contest
prosecution for a felony, or a Participant's willful misconduct
or dishonesty, or other unauthorized activity which, in the good
faith opinion of the Committee, is directly and materially
harmful to the business or reputation of the Company or a Related
Company.
(d) CODE. The term "Code" means the Internal Revenue Code of 1986, as
amended. A reference to any provision of the Code shall include
reference to any successor provision of the Code.
(e) EARLY RETIREMENT. The term "Early Retirement" shall mean
retirement, with the express written consent of the Company,
approved by the Committee, of a Participant from active
employment with the Company and any Related Company.
(f) ELIGIBLE INDIVIDUAL. The term "Eligible Individual" shall mean
any employee of the Company or a Related Company, and any
director, consultant or other person providing key services to
the Company or a Related Company.
(g) FAIR MARKET VALUE. For purposes of determining the "Fair Market
Value" of a share of Stock, the following rules shall apply:
(i) If the Stock is at the time listed or admitted to trading on
any stock exchange (including the Nasdaq National Stock
Market), then the "Fair Market Value" shall be the mean
between the lowest and highest reported sale prices of the
Stock on the date in question on the principal exchange on
which the Stock is then listed or admitted to trading. If no
reported sale of Stock takes place on the date in question
on the principal exchange, then the reported closing asked
price of the Stock on such date on the principal exchange
shall be determinative of "Fair Market Value."
(ii) If the Stock is not at the time listed or admitted to
trading on a stock exchange, the "Fair Market Value" shall
be the mean between the lowest reported bid price and
highest reported asked price of the Stock on the date in
question in the over-the-counter market, as such prices are
reported in a publication of general
520758.1
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circulation selected by the Committee and regularly
reporting the market price of Stock in such market.
(iii) If the Stock is not listed or admitted to trading on any
stock exchange or traded in the over-the-counter market, the
"Fair Market Value" shall be as determined in good faith by
the Committee.
(h) RELATED COMPANY. The term "Related Company" means any company (i)
during any period in which it is a "parent company" (as that term
is defined in Code section 424(e)) with respect to the Company,
or a "subsidiary corporation" (as that term is defined in Code
section 424(f)) with respect to the Company, or (ii) any company
or other business venture in which the Company has a significant
business interest, as determined in the discretion of the
Committee.
(i) RETIREMENT. The term "Retirement" shall mean retirement from
active employment with the Company and any Related Company on or
after age 65.
(j) STOCK. The term "Stock" shall mean shares of common stock of the
Company.
SECTION 8
UNFUNDED STATUS OF THE PLAN
8.1. The Plan is intended to constitute an "unfunded" plan for incentive
and deferred compensation. With respect to any payments not yet made to a
Participant or optionee by the Company, nothing contained herein shall give any
such Participant or optionee any rights that are greater than those of a general
creditor of the Company. In its sole discretion, the Committee may authorize the
creation of trusts or other arrangements to meet the obligations created under
the Plan to deliver Stock or payments in lieu of or with respect to awards
hereunder; provided, however, that, unless the Committee otherwise determines
with the consent of the affected Participant, the existence of such trusts or
other arrangements is consistent with the "unfunded" status of the Plan.
520758.1
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EXHIBIT 23.2
<PAGE>
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
IMNET Systems, Inc.:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of IMNET Systems, Inc. of our reports dated October 6, 1997, with
respect to the consolidated balance sheets of IMNET Systems, Inc. and
subsidiaries as of June 30, 1997, and 1996, and the related consolidated
statements of operations, stockholders' equity and cash flows for each of the
years in the three-year period ended June 30, 1997, and the related financial
statement schedule, which reports appear in the June 30, 1997 annual report on
Form 10-K of IMNET Systems, Inc.
KPMG PEAT MARWICK LLP
March 19, 1998
Atlanta, Georgia
