<PAGE> 1
As filed with the Securities and Exchange Commission on June 3, 1998
Registration No. 333-
-------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FIRSTWAVE TECHNOLOGIES, INC.
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
GEORGIA 58-1588291
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2859 PACES FERRY ROAD, SUITE 1000, ATLANTA, GEORGIA 30339
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(Address of principal executive offices and zip code)
FIRSTWAVE TECHNOLOGIES, INC.
1993 STOCK OPTION PLAN
(Full Title of the Plan)
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R. DOUGLAS MACINTYRE
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
FIRSTWAVE TECHNOLOGIES, INC.
2859 PACES FERRY ROAD, SUITE 1000
ATLANTA, GEORGIA 30339
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(Name and address of agent for service)
(404) 431-1200
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(Telephone number, including area code, of agent for service)
Copy to:
G. WILLIAM SPEER, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 PEACHTREE STREET, N.E., 16TH FLOOR
ATLANTA, GEORGIA 30303
(404) 572-6600
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common
Stock, no 400,000 $4.78(2) $1,912,000(3) $564.04(3)
par value shares(1)
- ------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Representing shares to be issued and sold by the Registrant upon the
exercise of options granted or to be granted under the Registrant's Firstwave
Technologies, Inc. 1993 Stock Option Plan (the "1993 Plan"). This Registration
Statement also covers such indeterminable number of additional shares as may
become issuable to prevent dilution in the event of a stock split, stock
dividend, reclassification or other similar transaction pursuant to the terms of
the 1993 Plan.
(2) The average of the high and low prices of the Registrant's Common Stock as
reported by the NASDAQ National Market System for May 28, 1998.
(3) The aggregate offering price is calculated solely for the purpose of
determining the registration fee pursuant to Rule 457(h)(1) under the Securities
Act of 1933, as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
Instructions to the Registration Statement on Form S-8 will be sent or given to
employees of the Registrant as required by Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
<PAGE> 4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997 (File No. 0-21202);
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998 (File No. 0-21202);
(3) The Registrant's Current Report on Form 8-K as filed with the
Commission on May 13, 1998 (File No. 0-21202);
(4) The Registrant's Current Report on Form 8-K as filed with the
Commission on January 13, 1998 (File No. 0-21202); and
(5) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement filed on Form 8-A pursuant to Section 12 of
the Securities Exchange Act of 1934 (the "Exchange Act") (File No. 0-21202).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Powell, Goldstein, Frazer & Murphy LLP, Atlanta, Georgia, has rendered
an opinion regarding the legality of the shares of Common Stock registered
hereby.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14-2-850 et seq. of the Georgia Business Corporation Code sets
forth the extent to which the Registrant's directors and officers may be
indemnified by the Registrant against liability that they may incur while
serving in such capacity. These provisions generally provide that the directors
and officers of the Registrant will be indemnified by the Registrant against any
losses incurred in connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Registrant) by reason of the
fact that he is or was a director or officer of the Registrant or served with
another corporation, partnership, joint venture, trust or other enterprise at
the request of the Registrant if such director or officer acted in a manner he
reasonably believed to be in or not opposed to the best interest of the
Registrant, and with respect to any criminal proceeding, had no reasonable cause
to believe his conduct was unlawful. Under these provisions, the Registrant may
provide advances for expenses incurred in defending any such action, suit or
proceeding, upon receipt of an undertaking by or on behalf of such officer or
director to repay such advances unless it is ultimately determined that he is
entitled to indemnification by the Registrant.
Article VII of the Registrant's Amended and Restated Articles of
Incorporation and Article 6 of its Amended and Restated Bylaws set forth the
extent to which the Registrant's directors and officers may be indemnified
against liabilities which they may incur while serving in such capacities. Such
indemnification will be provided to the full extent permitted and in the manner
required by the Georgia Business Corporation Code. Pursuant to these provisions,
the directors and officers of the Registrant will be indemnified against any
losses incurred in connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director or officer of the
Registrant or served with another corporation, partnership, joint venture, trust
or other enterprise at the request of the Registrant. The Registrant will
provide advances for expenses incurred in defending any such action, suit or
proceeding upon receipt of a written affirmation by the director or officer of
his or her good faith belief that he or she has met the applicable standard of
conduct required for indemnification and an undertaking by or on behalf of such
officer or director to repay such advances, if is ultimately determined that he
or she is not entitled to indemnification by the Registrant.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
The Registrant maintains an insurance policy insuring the Registrant and
its directors and officers against certain liabilities, including liabilities
under the Securities Act.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3(a) Amended and Restated Articles of Incorporation of the
Registrant. (Incorporated herein by reference to Exhibit 3.1 to
the Registrant's Registration Statement on Form S-1 as filed on
February 5, 1993 (Reg. No. 33-57984) and as thereafter amended.)
3(b) Amended and Restated Bylaws of the Registrant.
4(a) Form of Firstwave Technologies, Inc. 1993 Stock Option Plan (As
Amended and Restated Effective March 22, 1995).
4(b) Board of Directors Compensation Plan dated November 6, 1997.
4(c) First Amendment dated May 12, 1998 to the Firstwave
Technologies, Inc. 1993 Stock Option Plan (As Amended and
Restated Effective March 22, 1995).
5 Opinion of Counsel, Powell, Goldstein, Frazer & Murphy LLP with
respect to the securities being registered.
23(a) Consent of Powell, Goldstein, Frazer & Murphy LLP (included in
Exhibit 5).
23(b) Consent of Price Waterhouse, LLP
24 Power of Attorney (see signature page to this Registration
Statement).
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
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(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;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities 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
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of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 this the 26th day of
May, 1998.
FIRSTWAVE TECHNOLOGIES, INC.
By: /s/ R. Douglas Macintyre
--------------------------------------
R. Douglas MacIntyre
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints R. Douglas MacIntyre as his true and lawful
attorney-in-fact and agent, 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 Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing required or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute, could lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
Signature Title
/s/ R. Douglas MacIntyre Chairman of the Board, Date: May 26, 1998
- ---------------------------- President and Chief ---------------
R. Douglas MacIntyre Executive Officer
/s/ Judith A. Vitale Director of Finance and Date: May 26, 1998
- ---------------------------- Administration ---------------
Judith A. Vitale (Principal Financial and
Accounting Officer)
/s/ Richard T. Brock Director Date: May 26, 1998
- ---------------------------- ---------------
Richard T. Brock
/s/ John F. Keane Director Date: May 27, 1998
- ---------------------------- ---------------
John F. Keane
/s/ James R. Porter Director Date: May 26, 1998
- ---------------------------- ---------------
James R. Porter
/s/ Michael T. McNeight Director Date: May 26, 1998
- ---------------------------- ---------------
Michael T. McNeight
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3(a) Amended and Restated Articles of Incorporation of the
Registrant. (Incorporated herein by reference to Exhibit 3.1
to the Registrant's Registration Statement on Form S-1 as
filed on February 5, 1993 (Reg. No. 33-57984) and as
thereafter amended.)
3(b) Amended and Restated Bylaws of the Registrant.
4(a) Form of Firstwave Technologies, Inc. 1993 Stock Option Plan
(As Amended and Restated Effective March 22, 1995).
4(b) Board of Directors Compensation Plan dated November 6, 1997.
4(c) First Amendment dated May 12, 1998 to the Firstwave
Technologies, Inc. 1993 Stock Option Plan (As Amended and
Restated Effective March 22, 1995).
5 Opinion of Counsel, Powell, Goldstein, Frazer & Murphy LLP
with respect to the securities being registered.
23(a) Consent of Powell, Goldstein, Frazer & Murphy LLP (included in
Exhibit 5).
23(b) Consent of Price Waterhouse, LLP
24 Power of Attorney (see signature page to this Registration
Statement).
</TABLE>
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<PAGE> 1
EXHIBIT 3(b)
AMENDED AND RESTATED BYLAWS
OF
FIRSTWAVE TECHNOLOGIES, INC.
<PAGE> 2
AMENDED AND RESTATED BYLAWS
OF
FIRSTWAVE TECHNOLOGIES, INC.
ARTICLE 1
OFFICES
1.1 Registered Office and Agent. The Corporation shall maintain a
registered office and shall have a registered agent whose business office is
identical with such registered office.
1.2 Principal Office. The principal office of the Corporation shall be at
2859 Paces Ferry Road, Suite 1000, Atlanta, Georgia 30339 or at such other
location as may be designated in the Corporation's annual registration with the
Secretary of State of Georgia.
1.3 Other Offices. In addition to its registered office and principal
office, the Corporation may have offices at such other place or places, within
or without the State of Georgia, as the business of the Corporation may require
or make desirable.
ARTICLE 2
SHAREHOLDERS' MEETINGS
2.1 Place of Meetings. Meetings of the shareholders may be held at any
place within or without the State of Georgia as set forth in the notice of the
meeting. If the notice of the meeting does not specify a place, such meeting
shall be held at the principal office of the Corporation.
2.2 Annual Meetings. The Corporation shall hold an annual meeting of its
shareholders for the election of directors and the transaction of general
business on the fourth Tuesday in April of each year at a time and place
designated by the Board of Directors or at such other time and date as the Board
of Directors may designate. If the date fixed for the annual meeting is a legal
holiday, the meeting shall be held on the next succeeding day not a legal
holiday. The annual meeting may be combined with any other meeting of
shareholders, whether annual or special.
2.3 Special Meetings. Special meetings of the shareholders of any class or
series or of all classes or series of the Corporation's shares may be called at
any time by the Board of Directors, the Chairman of the Board or President. If
the Corporation has one hundred (100) or
<PAGE> 3
fewer shareholders of record, a special meeting of the shareholders of any class
or series or of all classes or series of the Corporation's shares shall be
called by the Corporation upon the written demand of the holders of twenty-five
percent (25%) of all the votes entitled to be cast on any issue or issues to be
considered at such special meeting. Except as otherwise provided in the Georgia
Business Corporation Code (the "Code") or the Articles of Incorporation, if the
Corporation has more than one hundred (100) shareholders of record, the
shareholders shall not have the right to call special meetings of the
shareholders. The business that may be transacted at any special meeting of
shareholders shall be limited to the purpose or purposes stated in the notice of
such special meeting given in accordance with Section 2.4 of these Bylaws
(including such related or incidental matters as may be necessary or appropriate
to give effect to the purpose or purposes so stated).
2.4 Notice of Meetings. Unless waived in accordance with Section 2.5, the
Corporation shall give written notice in accordance with Section 9.5 of the
date, time and place of each annual and special shareholders' meeting, no fewer
than ten (10) days nor more than sixty (60) days before the meeting date, to
each shareholder of record entitled to vote at such meeting. In the case of an
annual meeting, the notice of the meeting need not state the purpose or purposes
of the meeting unless otherwise required by these Bylaws. In the case of a
special meeting, the notice of meeting shall state the purpose or purposes for
which the meeting is called. If an annual or special shareholders' meeting is
adjourned to a different date, time or place, the Corporation shall give notice
of the new date, time or place of such meeting, unless a quorum was present and
such information regarding the adjournment was announced at the meeting before
adjournment thereof; provided, however, that if a new record date is or must be
fixed in accordance with Section 8.5, notice of the adjourned meeting shall in
any event be given by the Corporation to persons who are shareholders as of the
new record date.
2.5 Waiver of Notice. A shareholder may waive any notice required by the
Code, the Articles of Incorporation or these Bylaws, before or after the date
and time of the matter to which the notice relates, by delivery to the
Corporation of a written waiver of such notice signed by the shareholder
entitled to such notice. In addition, a shareholder's attendance at a meeting
shall be (i) a waiver of objection to lack of notice or defective notice of such
meeting unless such shareholder at the beginning of the meeting objects to
holding the meeting or transacting business at the -meeting, and (ii) a waiver
of objection to consideration of a particular matter at such meeting that is not
within the purpose or purposes stated in the meeting notice, unless the
shareholder objects to considering the matter when it is presented. Except as
otherwise required by the Code, neither the business transacted nor the purpose
of the meeting need be specified in any waiver.
2.6 Voting Group; Quorum; Vote Required to Act.
(a) Unless otherwise required by the Code or the Articles of
Incorporation, all classes or series of the Corporation's shares entitled
to vote generally on a matter shall for that purpose be considered a single
voting group (a "Voting Group"). If the Articles of Incorporation or the
Code requires voting by two or more Voting Groups on a matter, action on
that matter is taken only when voted upon by each of those Voting Groups
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counted separately. At all meetings of shareholders, each Voting Group that
is entitled to vote on a matter may take action on such matter only if a
quorum of such Voting Group exists at such meeting. Unless the Articles of
Incorporation, these Bylaws, or the Code otherwise provides, the presence
(in person or by proxy) of a majority of the votes entitled to be cast on a
matter by a Voting Group constitutes a quorum of that Voting Group with
regard to that matter. Once a share is represented at any meeting other
than solely to object to holding the meeting or transacting business at the
meeting, such share shall be deemed present for quorum purposes for the
remainder of the meeting and for any adjournments of that meeting, unless a
new record date is or must be set pursuant to Section 8.5 of these Bylaws
for such adjourned meeting.
(b) If a quorum exists, action on a matter by a Voting Group is
approved if the votes cast within the Voting Group favoring the action
exceed the votes cast opposing the action, except in the case of election
of directors by plurality (see Section 3.2), and unless the Articles of
Incorporation, a provision of these Bylaws that has been adopted pursuant
to Section 14-2-1021 of the Code (or any successor to such provision), or
the Code requires a greater number of affirmative votes.
2.7 Voting of Shares. Unless otherwise required by the Code, the Articles
of Incorporation or any Articles of Amendment filed with the Secretary of State
designating the preferences, limitations, and relative rights of any class or
series of shares, each outstanding share of any class or series having voting
rights shall be entitled to one vote on each matter that is submitted to a vote
at a meeting of shareholders.
2.8 Proxies. A shareholder entitled to vote on a matter may vote in person
or by proxy executed in writing by the shareholder or by his attorney-in-fact. A
proxy shall be effective when received by the Secretary or other officer or
agent authorized to tabulate votes and shall be valid for eleven (11) months
from the date of its receipt by the Secretary or other officer or agent of the
Corporation authorized to tabulate votes, unless a longer period is expressly
stated therein. Every proxy shall be revocable at the pleasure of the
shareholder executing it or such shareholder's personal representative, unless
the appointment form conspicuously states that it is irrevocable and the
appointment is coupled with an interest as required by ss. 14-2-722 of the Code.
2.9 Presiding Officer. Except as otherwise provided in this Section 2.9,
the Chairman of the Board shall preside at every shareholders' meeting as its
chairman. If the Chairman of the Board is not present and willing to serve as
the chairman of the meeting, then the President shall serve as the chairman of
the meeting. If neither the Chairman of the Board nor the President is present
and willing to serve as chairman of the meeting, and neither has designated
another person who is present and willing to so serve, then a majority of the
Corporation's directors present at the meeting shall be entitled to designate a
person to serve as chairman. If no directors of the Corporation are present at
such meeting or no majority of the directors can be established, a chairman of
the meeting shall be selected by a majority vote of the shares present at the
meeting and entitled to vote in an election of directors. The chairman of the
meeting shall appoint such persons as he or she deems appropriate to assist with
the meeting.
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2.10 Adjournments. Any meeting of the shareholders (including an adjourned
meeting) may be adjourned by an affirmative vote of the holders of a majority of
the voting shares represented at the meeting, regardless of whether a quorum is
then present, to reconvene at a specific time and place. At any such reconvened
meeting, only such business may be transacted as could have been transacted at
the meeting that was adjourned, unless further notice of the adjourned meeting
has been given in compliance with the requirements for a special meeting and
such notice specifies the additional purpose or purposes for which the meeting
is called.
2.11 Conduct of the Meeting. At any meeting of shareholders, the chairman
of such meeting shall be entitled to establish the rules of order that shall
govern the conduct of business at the meeting.
2.12 Action of Shareholders Without a Meeting. Any action which may be or
is required to be taken at a meeting of the shareholders may be taken without a
meeting if all shareholders entitled to vote on the action consent to taking
such action without a meeting. The action must be evidenced by a written consent
describing the action taken which has been signed by each shareholder entitled
to vote on the action and must be delivered to the Corporation for inclusion in
the minutes or filing with the corporate records.
2.13 Matters Considered at Annual Meeting. At any annual meeting of the
shareholders, only such business shall be conducted as shall have been brought
before such meeting (i) by or at the direction of the Board of Directors prior
to the meeting, (ii) by or at the direction of the Chairman of the Board or the
President if present at the meeting, or (iii) by any shareholder of the
Corporation who is entitled to vote with respect thereto.
2.14 Nominations and Proposals By Shareholders.
(a) Annual Meetings Of Shareholders.
(1) Nominations of persons for election to the Board of Directors
and the proposal of business to be considered by the shareholders may
be made at an annual meeting of shareholders (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction of the
Board of Directors or (iii) by any shareholder of the Corporation who
was a shareholder of record both at the time of giving of notice
provided for in this Section 2.14(a) and at the time of the annual
meeting, who is entitled to vote at the meeting and who complied with
the notice procedures set forth in this Section 2.14(a).
(2) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (iii) of
paragraph (a)(1) of this Section 2.14, the shareholder must have given
timely notice thereof in writing to the secretary of the Corporation
and such other business must otherwise be a proper matter for action
by shareholders. To be timely, a
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<PAGE> 6
shareholder's notice shall be delivered to the secretary at the
principal executive offices of the Corporation not later than the
close of business on the 60th day nor earlier than the close of
business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event
that the date of the annual meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary date or if the
Corporation has not previously held an annual meeting, notice by the
shareholder to be timely must be so delivered not earlier than the
close of business on the 90th day prior to such annual meeting and not
later than the close of business on the later of the 60th day prior to
such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made by the
Corporation. In no event shall the public announcement of a
postponement or adjournment of an annual meeting to a later date or
time commence a new time period for the giving of a shareholder's
notice as described above. Such shareholder's notice shall set forth
(i) as to each person whom the shareholder proposes to nominate for
election or reelection as a director all information relating to such
person that is required to be disclosed in solicitations of proxies
for election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (including such
person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (ii) as to any other
business that the shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such shareholder and of the
beneficial owner, if any, on whose behalf the proposal is made; and
(iii) as to the shareholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made, (x)
the name and address of such shareholder, as they appear on the
Corporation's books, and of such beneficial owner and (y) the number
of shares of each class of stock of the Corporation which are owned
beneficially and of record by such shareholder and such beneficial
owner.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 2.14 to the contrary, in the event that the
number of directors to be elected to the Board of Directors is
increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of the
increased Board of Directors at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a shareholder's
notice required by this Section 2.14(a) shall also be considered
timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the secretary at
the principal executive offices of the Corporation not later than the
close of business on the tenth day following the day on which such
public announcement is first made by the Corporation.
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<PAGE> 7
(b) Special Meetings Of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board of Directors may be made
at a special meeting of shareholders at which directors are to be elected
(i) pursuant to the Corporation's notice of meeting, (ii) by or at the
direction of the Board of Directors or (iii) provided that the Board of
Directors has determined that directors shall be elected at such special
meeting, by any shareholder of the Corporation who is a shareholder of
record both at the time of giving of notice provided for in this Section
2.14(b) and at the time of the special meeting, who is entitled to vote at
the meeting and who complied with the notice procedures set forth in this
Section 2.14(b). In the event the Corporation calls a special meeting of
shareholders for the purpose of electing one or more directors to the Board
of Directors, any such shareholder may nominate a person or persons (as the
case may be) for election to such position as specified in the
Corporation's notice of meeting, if the shareholder's notice containing the
information required by paragraph (a)(2) of this Section 2.14 shall be
delivered to the secretary at the principal executive offices of the
Corporation not earlier than the close of business on the 90th day prior to
such special meeting and not later than the close of business on the later
of the 60th day prior to such special meeting or the tenth day following
the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to
be elected at such meeting. In no event shall the public announcement of a
postponement or adjournment of a special meeting to a later date or time
commence a new time period for the giving of a shareholder's notice as
described above.
(c) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.14 shall be eligible to serve
as directors and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 2.14. The
chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with
the procedures set forth in this Section 2.14 and, if any proposed
nomination or business is not in compliance with this Section 2.14, to
declare that such nomination or proposal shall be disregarded.
(2) For purposes of this Section 2.14, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable news service or in a
document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
2.14, a shareholder shall also comply with all applicable requirements
of state law and
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of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 2.14. Nothing in this
Section 2.14 shall be deemed to affect any rights of shareholders to
request inclusion of proposals in the Corporation's proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE 3
THE BOARD OF DIRECTORS
3.1 General Powers. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be managed
by, the Board of Directors.
3.2 Number, Election and Term of Office.
(a) The number of directors of the Corporation shall be that number as
may be fixed from time to time by the Board of Directors in accordance with
the Articles of Incorporation of the Corporation. Any change in the number
of directors shall not affect the tenure of office of any director.
Directors shall be elected each year at the annual meeting of shareholders
and each director shall serve for a term of one (1) year unless the
Articles of Incorporation specify that the terms shall be staggered, in
which case each director shall serve for a term of three years or as
otherwise set forth in the Articles of Incorporation.
(b) Each director shall serve until his or her successor shall be
elected and qualified. Directors shall be eligible for election without
limitation on the number of terms they may serve. Elections of directors
need not be by ballot unless a shareholder demands election by ballot
before the voting begins.
3.3 Removal of Directors. The entire Board of Directors or any individual
director may be removed only as provided in the Articles of Incorporation.
3.4 Vacancies. A vacancy or vacancies in the Board of Directors resulting
from the death, resignation, disqualification or removal of any director, and
newly created directorships resulting from any increase in the authorized number
of directors shall be filled by a majority of the remaining directors though
less than a quorum, or by the sole remaining director at any regular or special
meeting of the Board of Directors. Except as otherwise provided by the Articles
of Incorporation or the Code, any director so elected by the Board of Directors
shall serve until the next annual meeting of the shareholders at which directors
of the class in which such director serves are to be elected and until the
election and qualification of his or her successor or until his or her earlier
death, resignation or removal as provided in the Articles of Incorporation.
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3.5 Compensation. The Board of Directors, by the affirmative vote of
two-thirds of the directors then in office and irrespective of any personal
interest of any director, shall have the authority to fix the reasonable
compensation, including fees and reimbursement of out-of-pocket expenses, of
directors for service to the Corporation. A director may also serve the
Corporation in a capacity other than that of director and receive compensation
for services rendered in such other capacity.
3.6 Committees. The Board of Directors, by resolution adopted by a majority
of the entire Board, may designate an executive committee, consisting of two or
more directors, and other committees, consisting of two or more directors, and
may delegate to such committee or committees such authority of the Board of
Directors that it deems desirable. Only the specific delegation of the Board of
Directors shall be effective to give a committee the authority to adopt, amend
or repeal the Bylaws, to submit to shareholders any action that needs
shareholder authorization under applicable law, to fill vacancies in the Board
of Directors or in any committee, or to declare dividends or make other
corporate distributions. The committee or committees shall report any action
taken to the meeting of the Board of Directors next following the taking of such
action, unless the Board of Directors requires otherwise. The Board of Directors
may designate one or more directors as alternate members of any such committee,
who may replace any absent member or members at any meeting of the committee.
Each such committee, and each member of each such committee, shall serve at the
pleasure of the Board of Directors. The designation of any such committee and
the delegation thereto of authority shall not relieve any director of any
responsibility imposed by law. So far as applicable, the provisions of law
relating to the conduct of meetings of the Board of Directors shall govern
meetings of the executive and other committees.
3.7 Qualification of Directors. No person elected to serve as a director of
the Corporation shall assume such office and commence such service unless and
until such person shall be duly qualified, as determined by reference to the
Code and the Articles of Incorporation.
ARTICLE 4
MEETINGS OF THE BOARD OF DIRECTORS
4.1 Regular Meetings. A regular meeting of the Board of Directors shall be
held in conjunction with each annual meeting of shareholders. In addition, the
Board of Directors may schedule and hold regular meetings at other times.
4.2 Special Meetings. Special meetings of the Board of Directors may be
called on not less than two (2) days notice by or at the request of the Chairman
of the Board or the President and shall be called by the Chairman of the Board
or the President upon the written request of a majority of the directors in
office at that time.
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4.3 Place of Meetings. Directors may hold their meetings at any place
within or without the State of Georgia as the Board of Directors may from time
to time establish.
4.4 Notice of Meetings. No notice is required for any regular meeting of
the Board of Directors. Unless waived in accordance with Section 4.10, the
Corporation shall give not less than two (2) day's notice to each director of
the date, time and place of each special meeting. Notice of a meeting shall be
deemed to have been given to any director in attendance at any prior meeting at
which the date, time, and place of the subsequent meeting was announced.
4.5 Quorum. At meetings of the Board of Directors, a majority of the
directors then in office shall constitute a quorum for the transaction of
business.
4.6 Vote Required for Action.
(a) If a quorum is present when the vote is taken, the vote of a
majority of the directors present and voting at the time of the vote will
be the act of the Board of Directors, unless the vote of a greater number
is required by the Code, the Articles of Incorporation or these Bylaws.
(b) A director who is present at a meeting of the Board of Directors
or any committee thereof when corporate action is taken is deemed to have
assented to the action taken unless:
(1) Such director objects at the beginning of the meeting (or
promptly upon such director's arrival) to holding it or transacting
business at the meeting;
(2) Such director's dissent or abstention from the action taken
is entered in the minutes of the meeting; or
(3) Such director delivers written notice of such director's
dissent or abstention to the presiding officer of the meeting before
its adjournment or to the Corporation immediately after adjournment of
the meeting.
The right of dissent or abstention is not available to a director who votes
in favor of the action taken.
4.7 Participation by Conference Telephone. Members of the Board of
Directors may participate in a meeting of the Board by means of conference
telephone or similar communications equipment through which all persons
participating may simultaneously hear each other. Participation in a meeting
pursuant to this Section 4.7 shall constitute presence in person at such
meeting.
4.8 Action by Directors Without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting if one or more written consents, describing the action taken, are signed
by the number of directors that would
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be necessary to authorize or take such action at a meeting attended by all of
the members of the Board. Such consent shall be delivered to the Corporation for
inclusion in the minutes or filing with the corporate records. Such consent
shall have the same force and effect as a vote of the Board of Directors at a
duly convened meeting.
4.9 Adjournments. A meeting of the Board of Directors, whether or not a
quorum is present, may be adjourned by a majority of the directors present to
reconvene at a specific time and place. It shall not be necessary to give notice
of the reconvened meeting or of the business to be transacted, other than by
announcement at the meeting that was adjourned, unless a quorum was not present
at the meeting that was adjourned, in which case notice shall be given to
directors in the same manner as for a special meeting. At any such reconvened
meeting at which a quorum is present, any business may be transacted that could
have been transacted at the meeting that was adjourned.
4.10 Waiver of Notice. A director may waive any notice required by the
Code, the Articles of Incorporation or these Bylaws before or after the date and
time of the matter to which the notice relates, by a written waiver signed by
such director and delivered to the Corporation for inclusion in the minutes or
filing with the corporate records. Attendance by a director at a meeting shall
constitute waiver of notice of such meeting, except where a director at the
beginning of the meeting (or promptly upon his or her arrival) objects to
holding the meeting or to the transacting of business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
ARTICLE 5
OFFICERS
5.1 Offices. The officers of the Corporation shall consist of the Chairman
of the Board, the President, the Secretary and the Treasurer, each of whom shall
be elected or appointed by the Board of Directors. The Board of Directors from
time to time may create and establish the duties of other offices and may elect
or appoint, or authorize specific officers to appoint, the officers who shall
hold such other offices, including one or more Vice Presidents (including
Executive Vice Presidents, Senior Vice Presidents, Assistant Vice Presidents,
and the like), one or more Assistant Secretaries and one or more Assistant
Treasurers. Whether or not so provided by the Board of Directors, the Chairman
of the Board and the President may appoint jointly one or more Assistant
Secretaries and one or more Assistant Treasurers. Any two or more offices may be
held by the same person.
5.2 Term. Each officer shall serve at the pleasure of the Board of
Directors (or, if appointed by an officer pursuant to Section 5. 1, at the
pleasure of the Board of Directors or any senior officer authorized to have
appointed such officer) until his or her death, resignation or removal, or until
his or her replacement is elected or appointed.
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5.3 Compensation. The compensation of all officers of the Corporation shall
be fixed by the Board of Directors. Officers may serve without compensation.
5.4 Removal. All officers (regardless of how elected or appointed) may be
removed, with or without cause, by the Board of Directors, and any officer
appointed by another officer may also be removed, with or without cause, by any
senior officer authorized to have appointed such officer. Removal will be
without prejudice to the contract rights, if any, of the person so removed.
5.5 Duties of Officers. The duties and powers of the officers of the
Corporation are as follows and as hereinafter set by resolution of the Board of
Directors.
(a) Chairman of the Board. The Chairman of the Board shall, when
present, preside at all meetings of the shareholders and of the Board of
Directors. He shall act as liaison from and as spokesman for the Board. He
shall participate in the long-range planning for the Corporation. He may
sign, on behalf of the Corporation, any contracts or other instruments
which the Board of Directors has authorized to be executed or which are to
be executed in the ordinary course of business of the Corporation
(b) President. The President shall be the chief executive officer of
the Corporation and shall be responsible for the general and active
management of the operations of the Corporation. The President shall be
responsible for the. administration of the Corporation, including general
supervision of the policies of the Corporation and the general and active
management of the financial affairs of the Corporation. The President shall
execute bonds, mortgages and other contracts requiring a seal, under the
seal of the Corporation, except when required or permitted by law to be
otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the Corporation. The President shall be one of
the officers who may sign checks and drafts of the Corporation. The
President shall prepare or have prepared annually a full and correct
statement of the affairs of the Corporation, including a balance sheet and
a financial statement of operations for the preceding fiscal year. The
statement of affairs shall be submitted at the annual meeting of the
shareholders and, within (20) days after the meeting, placed on file at the
Corporation's principal office.
(c) Vice President. The Corporation may have one or more Vice
Presidents elected by the Board of Directors, who shall perform such duties
and have such powers as may be delegated by the President or the Board of
Directors.
(d) Secretary. The Secretary shall record all of the proceedings of
the meetings of the shareholders and the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the committees, if
any, when required. The Secretary shall give, or cause to be given, notice
of all meetings of the shareholders and special meetings of the Board of
Directors, and shall perform other such duties as may be prescribed by the
Board of Directors, under whose supervision he or she shall be.
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The Secretary shall keep or cause to be kept a register of the mailing
addresses of each shareholder which shall be furnished to the Secretary by
such shareholder, and the Secretary shall have general charge of the stock
ledger books of the Corporation. The Secretary shall have the custody of
the corporate seal of the Corporation and the authority to affix the same
to any instrument requiring it and when so affixed, it may be attested by
his or her signature. The Board of Directors may, however, give general
authority to any other officer to affix the seal of the Corporation and to
attest the affixing by his signature.
(e) Treasurer. The Treasurer shall be the chief financial officer and
have the custody of the corporate funds and securities, shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation, and shall deposit all monies and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the
funds of the Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors at its regular meetings, or when the
Board of Directors so requests, an account of all transactions and an
account of the financial condition of the Corporation. The Treasurer shall
be one of the officers who may sign checks and drafts of the Corporation.
(f) Assistant Secretaries and Treasurers. Assistants to the Secretary
or Treasurer may be appointed by the Chairman of the Board and the
President or elected by the Board of Directors and shall perform such
duties and have such powers as shall be delegated to them by the Chairman
of the Board and the President or the Board of Directors.
ARTICLE 6
INDEMNIFICATION OF DIRECTORS AND OFFICERS
6.1 Indemnification. Each person who is or was a director or officer of the
Corporation, and each person who is or was a director or officer of the
Corporation who at the request of the Corporation is serving or has served as an
officer, director, partner, joint venturer or trustee or other fiduciary of
another corporation, partnership, joint venture, trust or other enterprise shall
be indemnified by the Corporation against those expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement which are allowed to be
paid or reimbursed by the Corporation under the laws of the State of Georgia and
which are actually and reasonably incurred in connection with any action, suit,
or proceeding, pending or threatened, whether civil, criminal, administrative or
investigative, in which such person may be involved by reason of his or her
being or having been a director or officer of this Corporation or of such other
enterprises or in any of the foregoing capacities or positions with
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respect to any such other enterprises. Such indemnification shall be made only
in accordance with the laws of the State of Georgia and subject to the
conditions prescribed therein.
6.2 Determination of Standard of Conduct. In any instance where the laws of
the State of Georgia permit indemnification to be provided to persons who are or
have been an officer or director of the Corporation or who are or have been an
officer, director, partner, joint venturer or trustee or other fiduciary of any
such other enterprise only on a determination that certain specified standards
of conduct have been met, upon application for indemnification by any such
person the Corporation shall promptly cause such determination to be made (i) by
the Board of Directors by majority vote of a quorum consisting of directors not
at the time parties to the proceeding; (ii) if a quorum cannot be obtained, by
majority vote of a committee duly designated by the Board of Directors (in which
designation directors who are parties may participate), consisting solely of two
or more directors not at the time parties to the proceeding; (iii) by special
legal counsel selected by the Board of Directors or its committee in the manner
prescribed in (i) or (ii), or if a quorum of the Board of Directors cannot be
obtained under (i), and a committee cannot be designated under (ii), selected by
majority vote of the full Board of Directors (in which selection directors who
are parties may participate); or (iv) by the shareholders, but shares owned by
or voted under the control of directors who are at the time parties to the
proceeding may not be voted on the determination.
6.3 Right to Participate in Defense. As a condition to any such right of
indemnification, the Corporation may require that it be permitted to participate
in the defense of any such action or proceeding through legal counsel designated
by the Corporation and at the expense of the Corporation.
6.4 Insurance. The Corporation may purchase and maintain insurance on
behalf of any such persons whether or not the Corporation would have the power
to indemnify such officers and directors against any liability under the laws of
the State of Georgia. If any expenses or other amounts are paid by way of
indemnification, other than by court order, action by shareholders or by an
insurance carrier, the Corporation shall provide notice of such payment to the
shareholders in accordance with the provisions of the laws of the State of
Georgia.
ARTICLE 7
DISTRIBUTIONS AND DIVIDENDS
Unless the Articles of Incorporation provide otherwise, the Board of
Directors, from time to time in its sole discretion, may authorize or declare
distributions or share dividends in accordance with the Code.
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ARTICLE 8
SHARES
8.1 Share Certificates. The interest of each shareholder in the Corporation
may be evidenced by a certificate or certificates representing shares of the
Corporation, which shall be in such form as the Board of Directors may from time
to time adopt in accordance with the Code. Share certificates shall be in
registered form, and indicate the date of issue, the name of the Corporation and
that it is organized under the laws of the State of Georgia, the name of the
shareholder, and the number and class of shares and designation of the series,
if any, represented by the certificate. Each certificate shall be signed (either
manually or by facsimile) by the Chairman of the Board or the President and may
be signed by the Secretary or an Assistant Secretary; provided, however, that if
the signature of the officer or officers is in facsimile, the certificate must
be countersigned (either manually or by facsimile) by a transfer agent or
registered by a registrar. The Board of Directors may authorize the issuance of
some or all of the shares of any or all classes or series without certificates.
8.2 Rights of Corporation with Respect to Registered Owners. Prior to due
presentation for transfer of registration of its shares, the Corporation may
treat the registered owner of the shares (or the beneficial owner of the shares
to the extent of any rights granted by a nominee certificate on file with the
Corporation pursuant to any procedure that may be established by the Corporation
in accordance with the Code) as the person exclusively entitled to vote such
shares, to receive any dividend or other distribution with respect to such
shares, and for all other purposes; and the Corporation shall not be bound to
recognize any equitable or other claim to or interest in such shares on the part
of any other person, whether or not it has express or other notice thereof,
except as otherwise provided by law.
8.3 Transfers of Shares. Transfers of shares shall be made upon the books
of the Corporation kept by the Corporation or at the office of the transfer
agent designated to transfer the shares, only upon direction of the person named
in the certificate or by an attorney-in-fact lawfully constituted in writing.
Before a new certificate is issued, the old certificate shall be surrendered for
cancellation by the shareholder or attorney-in-fact or, in the case of a
certificate alleged to have been lost, stolen or destroyed, the shareholder or
attorney-in-fact shall have complied with the provisions of Section 8.4 of these
Bylaws.
8.4 Lost, Stolen or Destroyed Certificates. Any person claiming a share
certificate to be lost, stolen or destroyed shall make an affidavit or
affirmation of the fact in such manner as the Board of Directors may require and
shall, if the Board of Directors so requires, give the Board of Directors a bond
of indemnity in form and amount, and with one or more sureties satisfactory to
the Board of Directors, as the Board of Directors may require, whereupon an
appropriate new certificate may be issued in lieu of the one alleged to have
been lost, stolen or destroyed.
8.5 Fixing of Record Date. For the purpose of determining shareholders (i)
entitled to notice of or to vote at any meeting of shareholders or, if
necessary, any adjournment thereof, or
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(ii) entitled to receive payment of any distribution or dividend, and in order
to make a determination of shareholders for any other proper purpose, the Board
of Directors may fix in advance a date as the record date, such date to be not
more than 70 days (and, in the case of a shareholders' meeting, not less than 10
days) prior to the date on which the particular action requiring such
determination of shareholders is to be taken. A separate record date may be
established for each Voting Group entitled to vote separately on a matter at a
meeting. A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of such
meeting, unless the Board of Directors shall fix a new record date for the
reconvened meeting, which it must do if the meeting is adjourned to a date more
than 120 days after the date fixed for the original meeting.
8.6 Record Date if None Fixed. If no record date is fixed as provided in
Section 8.5, then the record date for any determination of shareholders that may
be proper or required by law shall be (i) the date on which notice is mailed, in
the case of a shareholders' meeting; (ii) the date on which the Board of
Directors adopts a resolution declaring a dividend or authorizing a
distribution, in the case of a payment of a dividend or distribution; and (iii)
the date on which any other action is taken, in the case of such other action
requiring a determination of shareholders.
ARTICLE 9
MISCELLANEOUS
9.1 Inspection of Books and Records. The Board of Directors shall have the
power to determine which accounts, books and records of the Corporation shall be
available for any shareholder to inspect or copy, except such as the Code
requires to be made available upon compliance by the shareholder with applicable
requirements, and shall have power to fix reasonable rules and regulations
(including confidentiality restrictions and procedures) not in conflict with
applicable law for the inspection and copying of accounts, books and records
that by law or by determination of the Board of Directors are made available.
Unless required by the Code or otherwise provided by the Board of Directors or
other contractual agreements of the Corporation, a shareholder of the
Corporation holding less than two percent (2%) of the total shares of the
Corporation then outstanding shall have no right to inspect the books and
records of the Corporation.
9.2 Fiscal Year. The Board of Directors is authorized to fix the fiscal
year of the Corporation and to change the same from time to time as it deems
appropriate.
9.3 Corporate Seal. The corporate seal will be in such form as the Board of
Directors may from time to time determine.
9.4 Annual Statements. Not later than four months after the close of each
fiscal year, and in any case prior to the next annual meeting of shareholders,
the Corporation shall prepare (a) a balance sheet showing in reasonable detail
the financial condition of the Corporation as of
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the close of its fiscal year, and (b) a profit and loss statement showing the
results of its operations during its fiscal year. Upon receipt of written
request, the Corporation promptly shall mail to any shareholder of record a copy
of the most recent such balance sheet and profit and loss statement, in such
form and with such information as the Code may require.
9.5 Notice. Whenever these Bylaws require notice to be given to any
shareholder or to any director, the notice may be given by mail, in person, by
courier delivery, by telephone or by telecopier, telegraph or similar electronic
means. Notice shall be in writing unless oral notice is reasonable under the
circumstances. Whenever notice is given to a shareholder or director by mail,
the notice shall be sent first class mail by depositing the same in a post
office or letter box in a postage prepaid sealed envelope addressed to the
shareholder or director at his or her address as it appears on the books of the
Corporation. Any such written notice given by mail shall be effective: (a) if
given to shareholders, at the time the same is deposited in the United States
mail; and (b) in all other cases, at the earliest of (i) when received or when
delivered, properly addressed, to the addressee's last known principal place of
business or residence, (ii) five days after its deposit in the mail, as
evidenced by the postmark, if mailed with first-class postage prepaid and
correctly addressed or (iii) on the date shown on the return receipt, if sent by
registered or certified mail, return receipt requested, and the receipt is
signed by or on behalf of the addressee. Whenever notice if given to a
shareholder or director by any means other than mail, such notice shall be
deemed given when received.
ARTICLE 10
AMENDMENTS
10.1 Amendment by the Shareholders. These Bylaws may be altered, amended or
repealed by new Bylaws adopted by the affirmative action of eighty percent (80%)
of the shareholders entitled to vote at any meeting called for such purpose
unless otherwise provided in the Articles of Incorporation of the Corporation.
10.2 Amendment by the Board of Directors. These Bylaws may be altered,
amended or repealed at any time by new Bylaws adopted by action taken by the
Board of Directors.
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EXHIBIT 4(A)
BROCK CONTROL SYSTEMS, INC.
1993 STOCK OPTION PLAN
(AS AMENDED AND RESTATED EFFECTIVE MARCH 22, 1995)
THIS AMENDED AND RESTATED INDENTURE is made as of the ________ day of
March, 1995, by Brock Control Systems, Inc., a corporation organized and doing
business under the laws of the State of Georgia (the "Company").
1. Purpose.
The Company is adopting the Brock Control Systems, Inc. 1993 Stock
Option Plan (the "Plan") to secure and retain the services of directors and key
employees of the Company and any subsidiaries by giving them an opportunity to
invest in the future success of the Company. The Board of Directors of the
Company (the "Board of Directors") believes the Plan will promote personal
interest in the welfare of the Company by, and provide incentive to, the
individuals who are primarily responsible both for the regular operations of and
for shaping and carrying out the long-term plans of the Company, thus
facilitating the continued growth and financial success of the Company.
2. Administration.
The Board of Directors shall appoint at least two of its members to a
committee (the "Committee") who will administer the Plan on behalf of the
Company. Except as may otherwise be provided in Rule 16b-3 of the Securities
Exchange Act of 1934, no person shall be appointed as a member of the Committee
who is, or within one year prior to his becoming a member of the Committee was,
granted or awarded equity securities pursuant to the Plan or any other plan of
the Company or an affiliate, except that participation in a formula plan or
participation which does not disqualify a director from being disinterested as
provided in Rule 16b-3 of the Securities Exchange Act of 1934 shall not
disqualify a person from becoming a member of the Committee. Notwithstanding the
foregoing, it is intended that (i) insofar as the grants of options to directors
as contemplated by Section 7 hereof (the "Formula Options"), such grants are
being made pursuant to the formula stated therein and the participation of
directors pursuant thereto shall constitute "participation in a formula plan
which does not disqualify a director from being disinterested" as stated above
and (ii) prior to the initial public offering of common stock of the Company,
the Board of Directors shall serve as the Committee.
Each member of the Committee shall serve at the pleasure of the Board
of Directors, which may fill any vacancy, however caused, in the Committee. The
Committee shall select one of its members as a chairman and shall hold meetings
at the times and in the places as it may deem advisable. All actions the
Committee takes shall be made by majority decision. Any action evidenced by a
written instrument signed by all of the members of the Committee shall be as
fully effective as if the Committee had taken the action by majority vote at a
meeting duly called and held.
<PAGE> 2
Subject to the express provisions of the Plan, the Committee shall have
complete authority, in its discretion, to determine with respect to all options
other than Formula Options:
(a) the directors and key employees of the Company and any
subsidiaries to whom, the times when, and the prices at which it shall
grant options;
(b) the type of options to be granted, i.e., either incentive
stock options as defined in Section 422 of the Internal Revenue Code of
1986, as amended (the "Code") (the "Incentive Stock Options") or
non-qualified stock options (the "Non-Qualified Stock Options")
(collectively, the "Options");
(c) the total number of Options to grant to an optionee;
(d) the time and duration of the period of exercise of each
Option;
(e) the number of shares of common stock of the Company
subject to each Option; and
(f) the terms and conditions for payment.
Subject to the provisions of the Plan, the Committee shall have full
and conclusive authority (i) to interpret the Plan; (ii) to prescribe, amend and
rescind rules and regulations relating to the Plan; (iii) to determine the terms
and provisions of the respective stock option agreements in favor of optionees,
the terms of which need not be identical; and (iv) to make all other
determinations necessary or advisable for the proper administration of the Plan;
provided, however, that, the Committee may delegate to one or more officers of
the Company the authority to grant options to any prospective optionee who is
not and will not at the time of the option grant be a "reporting person" for
purposes of Section 16 of the Securities Exchange Act of 1934; provided that the
terms of any such option grant shall be consistent with the provisions of the
Plan and with any rules promulgated by the Committee with respect to any such
delegation of authority. The Committee's determinations on these matters shall
be conclusive.
In addition to any other rights of indemnification that they may have
as directors of the Company or as members of the Committee, the directors of the
Company and members of the Committee shall be indemnified by the Company against
the reasonable expenses, including attorneys' 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 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 action, suit or proceeding, except in relation to matters as to which it
shall be adjudged in the action, suit or proceeding that the Committee member is
liable for gross negligence or misconduct in the performance of his duties;
provided that within 60 days after institution of any action, suit or
proceeding, a Committee member shall in writing offer the Company the
opportunity, at its own expense, to handle and defend the same.
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<PAGE> 3
3. Eligibility.
The Committee shall grant Options only to directors and key employees
of the Company or its subsidiaries; provided, however, that an Incentive Stock
Option may only be granted if such individual is an employee of the Company or a
subsidiary within the meaning of Code Section 424(f) (a "Subsidiary"). Subject
to the limits set forth in this Plan, the Committee at any time may grant
additional Options to directors or key employees to whom the Committee had
previously granted Options, so that an optionee may hold more than one Option at
the same time.
4. Stock Subject to Plan.
The Company has authorized and reserved for issuance upon the exercise
of Options and Formula Options pursuant to the Plan an aggregate of 800,000
shares of no par value common stock of the Company (the "Shares"). If any Option
or Formula Option is cancelled, expires or terminates without the respective
optionee exercising it in full, the Committee may grant Options with respect to
those unpurchased Shares to that same optionee or to another eligible individual
or individuals.
The Committee shall adjust the total number of Shares reserved for the
grant of Options and Formula Options and any outstanding Options and Formula
Options, both as to the number of Shares and the option price, for any increase
or decrease in the number of outstanding Shares resulting from a stock split or
a payment of a stock dividend on the Shares, a subdivision or combination of the
Shares, a reclassification of the Shares in accordance with the provisions of
the next paragraph, a merger or consolidation of the Shares or any other like
changes in the Shares or in their value. The Committee shall not issue
fractional shares as a result of any of these changes and shall eliminate from
the outstanding Options and Formula Options any fractional shares that result
from such a change. The Committee shall not adjust outstanding Options and
Formula Options for cash dividends or the issuance of rights to subscribe for
additional stock or securities of the Company.
Except as provided in the following paragraph, after any merger of one
or more corporations into the Company, any merger of the Company into another
corporation, any consolidation of the Company and one or more other
corporations, or any other corporate reorganization to which the Company is a
party that involves any exchange, conversion, adjustment or other modification
of the outstanding Options and Formula Options, each optionee shall receive at
no additional cost upon the exercise of his Option or Formula Option, as
applicable, subject to any required action by stockholders and in lieu of the
number of Shares as to which he would otherwise exercise the Option or Formula
Option, as applicable, the number and class of shares of stock or other
securities or any other property to which the terms of the agreement of merger,
consolidation, or other reorganization would entitle the optionee to receive,
if, at the time of the merger, consolidation, or other reorganization, the
optionee had been a holder of record of the number of Shares as to which he
could exercise the Option or Formula Option, as applicable. Comparable rights
shall accrue to each optionee in the event of successive mergers, consolidations
or other reorganizations.
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<PAGE> 4
In the event of a sale of all or substantially all the Shares or
property of the Company or the merger or consolidation of the Company into
another corporation or any other reorganization in which the Company is not the
surviving corporation (a "Change in Control") where the purchaser of such common
stock or property or the corporation into which the Company is merged,
consolidated or reorganized does not agree to the assumption of the Options,
provisions shall be made to cause each outstanding Option and Formula Option to
become exercisable prior to the Change in Control and to terminate upon the
consummation of the Change in Control.
The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined by the Committee in its sole
discretion. Any adjustment may provide for the elimination of any fractional
Share which might otherwise become subject to an Option or Formula Option.
The grant of an Option by the Committee or of a Formula Option shall
not affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations, or changes in its capital or business
structure, or to merge, consolidate, dissolve, liquidate, sell or transfer all
or any part of its business or assets.
5. Terms and Conditions of Options.
Each Option granted pursuant to the Plan shall be authorized by the
Committee and shall be evidenced by an Agreement in the form and containing the
terms and conditions as the Committee from time to time may determine, provided
that each Agreement shall:
(a) state the number of Shares to which it pertains;
(b) state the exercise price;
(c) state the terms and conditions for payment, except as
otherwise provided by Plan Section 11;
(d) state the term of the Option, and the period or periods
during the term of the Option in which the optionee may exercise the
Option or portions thereof;
(e) provide that the Option is not transferable by the
optionee other than as (i) the will of the optionee, or (ii) the
applicable laws of descent and distribution permit, and is exercisable
during the optionee's lifetime only by the optionee except as provided
in Subsection (g) of this Section;
(f) provide that, with respect to any Options granted to an
employee, the Option shall terminate no later than 30 days after the
date the optionee ceases to be an employee of the Company or a
Subsidiary, other than by reason of death or disability (as defined in
Code Section 22(e)(3)) and shall provide that, with respect to any
Option granted to a nonemployee director, the Option shall terminate no
later than 30 days after the date the optionee ceases to be a director
of the Company or a Subsidiary, other than by reason of death or
disability (as defined in Code Section 22(e)(3)); and
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<PAGE> 5
(g) provide that, if an optionee dies or becomes disabled (as
defined in Code Section 22(e)(3)) while he is a director or employee of
the Company or Subsidiary, as applicable, the Option may be exercised
by the optionee or (to the extent the optionee would have been entitled
to do so) by a legatee or legatees of the optionee under his last will,
or by his personal representative or representatives, until the
expiration of one year after the death or disability or, if earlier,
the expiration of the Option term.
The Committee may include in any Option it grants a condition that the
optionee shall agree to remain an employee of or to render services to the
Company or any of its subsidiaries for a specified period of time following the
date it grants the Option. This condition shall not impose on the Company or any
subsidiary any obligation to employ the optionee or retain the optionee as a
director for any period of time.
6. Additional Terms and Conditions of Incentive Stock Options.
In addition to the terms and conditions set forth in Section 5 of this
Plan, each Agreement evidencing the grant of an Incentive Stock Option shall:
(a) provide for an exercise price that shall not be less than
100% of the fair market value, as determined in good faith by the
Committee, of the Shares on the date of granting the Option, provided
that:
(i) if the Shares are actively traded on any
national securities exchange or reported by the National
Association of Securities Dealers Automated Quotation System
("NASDAQ") on a basis which reports closing sales prices, fair
market value shall be the closing sales price per share of the
Shares for the business day immediately preceding the date the
Option is granted;
(ii) if the Shares are otherwise traded over the
counter, fair market value shall be the arithmetic mean of the
bid and asked prices for the Shares, as reported by NASDAQ,
for the business day immediately preceding the date of the
grant of the Option;
(iii) if the Shares are not traded, fair market value
shall be determined by the Committee which shall, in making
such determination, consider, where applicable, among other
factors: the existence and extent of a private market for the
Shares and a public market for the Company's securities of the
same class, if any; the price at which the Shares were
acquired, if applicable, by the Company; the estimated period
of time, if any, during which the Shares will be freely
marketable; the estimated amount of floating supply of Shares
available; changes in the financial condition and prospects of
the Company; the existence of merger proposals or tender
offers affecting the Company; and any other factors affecting
fair market value; provided, however, that fair market value
shall be determined without regard to any restriction other
than a restriction which, by its terms, will never lapse;
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<PAGE> 6
(iv) if the optionee owns (subject to applicable
ownership attribution rules of Code Section 424(d) and the
regulations promulgated thereunder by the Department of
Treasury) stock possessing more than 10% of the total combined
voting power of all Shares or of shares of any parent within
the meaning of Code Section 424(e) (a "Parent") or Subsidiary
of the Company at the time the Option is granted, the option
price shall not be less than 110% of the fair market value of
the pertinent number of Shares of the Company on the date of
the grant of the Option; and
(v) subject to the foregoing, the Committee, in
determining the fair market value, shall have full authority
and discretion and be fully protected in doing so;
(b) provide that the Option is not exercisable after the
expiration of ten years or less from the date the Option is granted,
except that, if the optionee owns (subject to applicable ownership
attribution rules of Code Section 424(d) and the regulations
promulgated thereunder by the Department of the Treasury) more than 10%
of the total combined voting power of all Shares or of shares of any
Parent or Subsidiary at the time the Option is granted, the Option is
not exercisable after the expiration of five years or less from the
date the Option is granted.
7. Formula Grants to Directors.
Each person who serves as a non-management director of the Company at
the time its initial public offering is effected or who is named in the
Company's Prospectus as a person who has agreed to become a director upon
consummation of the offering shall be granted a non-qualified stock option as of
the effective date of the initial public offering to acquire 2,000 shares of the
Company's Common Stock at an exercise price equal to the initial public offering
price and each person who becomes a director of the Company after the initial
public offering is consummated shall be granted a non-qualified stock option as
of the date he or she becomes a director to acquire 2,000 shares of the
Company's Common Stock at an exercise price equal to the last closing price of
the Company's Common Stock on the Company's primary public trading market on the
last date preceding the date on which such person becomes a director. For
purposes of establishing the exercise price for Formula Options granted to
persons named in the Company's Prospectus relating to its initial public
offering as persons who have agreed to become directors upon consummation of the
offering, the exercise price shall equal the initial public offering price
regardless of whether such persons actually become directors on the date
thereof. Formula Options shall be subject to such additional terms as set forth
in the form of stock option agreement attached hereto as Exhibit "A" and
incorporated herein by reference (the "Formula Option Agreement").
Notwithstanding any other provision of this Plan, the provisions of this Plan
Section 7 and of the Formula Option Agreement may not be amended more than once
every six months, other than to comport with changes in the Code, the Employee
Retirement Income Security Act of 1974, or any rules under either of the
foregoing.
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<PAGE> 7
8. Compliance with Code for Incentive Stock Options.
All Incentive Stock Options are intended to comply with Code Section
422, and all provisions of the Plan and all Incentive Stock Options granted
hereunder shall be construed in such manner as to effectuate that intent.
9. Limitation on Incentive Stock Option Amounts.
An Incentive Stock Option may not be granted to the extent the
aggregate fair market value, determined at the time the Committee grants the
Option, of stock with respect to which stock options intended to meet the
requirements of Code Section 422 are exercisable for the first time by an
optionee during any calendar year under all plans of the Company and any Parent
or Subsidiary exceeds $100,000.
10. Term of Plan.
The effective date of the Plan shall be the earlier of the date on
which the shareholders of the Company or the Board of Directors approve the Plan
(the "Effective Date"). The Plan shall terminate 10 years after that date.
Options and Formula Options may be granted pursuant to the Plan at any time on
or between the Effective Date and that termination date, subject to Plan Section
18.
11. Exercise of Option by Optionee.
The optionee may purchase Shares pursuant to an Option only upon
receipt by the Company of a notice in writing from the optionee of his intent to
purchase a specific number of Shares and which notice contains such
representations regarding compliance with the federal and state securities laws
as the Committee may reasonably request. The purchase price shall be paid in
full upon the exercise of an Option and no Shares shall be issued or delivered
until full payment therefor has been made. Payment of the purchase price for all
Shares purchased pursuant to the exercise of an Option shall be made in cash or
by certified check or, alternatively, if the applicable Agreement so allows, as
follows:
(a) by delivery to the Company of a number of shares of common
stock of the Company which have been owned by the optionee for at least
six months prior to the date of the Option's exercise, having a fair
market value on the date of exercise, as determined by the Committee in
its sole discretion, either equal to the purchase price or in
combination with cash to equal the purchase price; or
(b) by receipt of the purchase price in cash from a broker,
dealer or other "creditor" as defined by Regulation T issued by the
Board of Governors of the Federal Reserve System following delivery by
the optionee to the Committee of instructions in a form acceptable to
the Committee regarding delivery to such broker, dealer or other
creditor of that number of shares of common stock with respect to which
the Option is exercised.
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<PAGE> 8
Until stock certificates reflecting the Shares accruing to the optionee
upon the exercise of the Option are issued to the optionee, the optionee shall
have no rights as a shareholder with respect to the Shares the Option covers.
The Company shall make no adjustment to the Shares for any dividends or
distributions or other rights for which the record date is prior to the issuance
of that stock certificate, except as the Plan otherwise provides.
12. Withholding Taxes Attributable to Exercise of Non-Qualified Stock
Options.
Whenever the Company proposes or is required to issue Shares to an
optionee who is or was an employee of the Company or a subsidiary, or his
legatee or legal representative under the Plan, pursuant to the exercise of a
Non-Qualified Stock Option granted under the Plan, the Company shall have the
right to require the recipient to remit to the Company an amount sufficient to
satisfy any federal, state and local withholding tax requirement prior to the
delivery of any certificate or certificates for such Shares. An optionee may pay
the withholding tax (a) by making payment in cash or by certified check or, if
the applicable Agreement so provides, (b) by electing to tender to the Company
the smallest number of whole shares of common stock of the Company that have
been owned by the optionee for at least six months prior to the Tax Date
(defined below) and that, when multiplied by the fair market value of the shares
of common stock of the Company determined as of the Tax Date (defined below), is
sufficient to satisfy federal, state and local, if any, withholding taxes
arising from exercise of the Option, or (c) by electing to have the number of
Shares the optionee is to receive upon exercise reduced by the number of Shares
determined in (b) above (an optionee's election to tender or offset as described
in (b) or (c) above is referred to as a "Withholding Election"). An optionee may
make a Withholding Election only if the following conditions are met:
(i) the Withholding Election must be made no later than the
date on which the amount of tax required to be withheld is determined
(the "Tax Date") by executing and delivering to the Company a properly
completed notice of withholding election in the form prescribed by the
Committee;
(ii) any Withholding Election is irrevocably given; and
(iii) if the optionee is considered by the Committee to be
subject to Section 16 of the Securities Exchange Act of 1934, the
Withholding Election is delivered to the Company sufficiently in
advance of the Tax Date as the Committee determines is necessary or
appropriate to satisfy the conditions of the exemption provided under
Rule 16b-3 promulgated under the Securities Exchange Act of 1934.
Notwithstanding anything to the contrary herein, the Committee may in its sole
discretion disapprove and give no effect to any Withholding Election and no
Option to which any Withholding Election relates may be exercised prior to one
year after the Company has been subject to the reporting requirements of Section
13 of the Securities Exchange Act of 1934 and has filed all reports and
statements required to be filed pursuant to that Section during that year.
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<PAGE> 9
13. Assignability.
Except as Plan Section 5(g) or the terms of the Formula Option
Agreement permit, no Option or Formula Option or any of the rights and
privileges thereof accruing to an optionee shall be transferred, assigned,
pledged or hypothecated in any way whether by operation of law or otherwise, and
no Option or Formula Option, right or privilege shall be subject to execution,
attachment or similar process.
14. The Right of the Company to Terminate Employment.
No provision in the Plan or any Option or Formula Option shall confer
upon any optionee any right to continue in the employment of the Company or any
subsidiary of the Company or to continue performing services for or to interfere
in any way with the right of the Company or any subsidiary of the Company to
terminate his employment or of the right of shareholders of the Company to
remove such optionee as a director at any time for any reason.
15. Amendment and Termination.
Except as set forth in Section 7 hereof, the Board of Directors may
amend or terminate the Plan at any time without shareholder approval; provided,
however, that the Board of Directors may condition any amendment on the approval
of the shareholders of the Company if such approval is necessary or advisable
with respect to tax, securities (which require such approval for a material
increase of the number of Shares subject to options, and for material
modifications to the eligibility requirements of the Plan, among others) or
other applicable laws to which the Company, the Plan, optionees or eligible
employees are subject. No amendment or termination of the Plan shall affect the
rights of an optionee with regard to his options without his consent.
16. General Restriction.
Notwithstanding anything contained herein or in any of the Agreements
to the contrary, no purported exercise of any option granted pursuant to the
Plan shall be effective without the written approval of the Company, which may
be withheld to the extent that the exercise, either individually or in the
aggregate together with the exercise of other previously exercised stock options
and/or offers and sales pursuant to any prior or contemplated offering of
securities, would, in the sole and absolute judgment of the Company, require the
filing of a registration statement with the United States Securities and
Exchange Commission or with the securities commission of any state. The Company
shall avail itself of any exemptions from registration contained in applicable
federal and state securities laws which are reasonably available to the Company
on terms which, in its sole and absolute discretion, it deems reasonable and not
unduly burdensome or costly. Each optionee shall, prior to the exercise of an
option, deliver to the Company such information, representations and warranties
as the Company may reasonably request in order for the Company to be able to
satisfy itself that the Shares to be acquired pursuant to the exercise of an
option is being acquired in accordance with the terms of an applicable exemption
from the securities registration requirements of applicable federal and state
securities laws.
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<PAGE> 10
17. Choice of Law.
The laws of the State of Georgia shall govern the Plan.
18. Approval of Shareholders, etc.
The Company shall submit the Plan to its shareholders for approval no
later than 12 months after the adoption of the Plan, as amended and restated, by
the Board of Directors; provided further that unless shareholder approval is
obtained by the end of said twelve-month period, the adoption of this amendment
and restatement of the Plan and all outstanding options granting rights to
acquire Shares under the Plan in excess of the number of Shares originally
reserved for issuance hereunder shall be rendered immediately void and of no
effect.
IN WITNESS WHEREOF, the Company has caused this Plan, as amended and
restated, to be executed in the form and as of the date set forth above.
Attest: BROCK CONTROL SYSTEMS, INC.
By:
- -------------------------------- ------------------------------------
Title: Title:
-------------------------- ---------------------------------
[CORPORATE SEAL]
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<PAGE> 11
EXHIBIT "A"
NON-QUALIFIED FORMULA STOCK OPTION AGREEMENT
PURSUANT TO
BROCK CONTROL SYSTEMS, INC.
1993 STOCK OPTION PLAN
THIS AGREEMENT, made as of the ____ day of 199_ (the "Grant Date"), by
and between BROCK CONTROL SYSTEMS, INC. (the "Company") and (the "Optionee"),
W I T N E S S E T H:
WHEREAS, the Optionee is eligible to receive the grant of a
non-qualified stock option to purchase shares of common stock of the Company
pursuant to Section 7 of the Brock Control Systems, Inc. 1993 Stock Option Plan
(the "Plan");
WHEREAS, the Committee (as defined in the Plan), on behalf of the
Company, and Optionee wish to confirm the terms and conditions of the option;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, it is hereby agreed between the parties hereto as follows:
1. Grant of Option. Subject to the terms, restrictions,
limitations and conditions stated herein and in the Plan, the Company hereby
grants to the Optionee an option (the "Option") to purchase all or any part of
2,000 shares of common stock of the Company (the "Common Stock").
2. Term and Exercise of Option. Subject to the provisions of
this Agreement:
(a) The Option shall be exercisable during the Option Period
(as defined in Section 4 hereof) only to the extent of the number of
Vested Shares determined pursuant to the vesting schedule attached
hereto as Schedule I.
(b) The Option may be exercised with respect to all or any
portion of the Vested Shares at any time during the Option Period by
the delivery to the Company, at its principal place of business, of (i)
a written notice of exercise in substantially the form attached hereto
as Exhibit 1, which shall be actually delivered to the Company no
earlier than thirty (30) days and no later than ten (10) days prior to
the date upon which Optionee desires to exercise all or any portion of
the Option; (ii) payment to the Company of the Exercise Price, defined
in Section 3 below, multiplied by the number of shares being purchased
(the "Purchase Price") in the manner provided in Subsection (c) hereof;
and (iii) cash or a certified check representing payment of all
withholding tax obligations (whether federal, state or local), imposed
by reason of the exercise of the Option, if any. Upon acceptance of
such notice, receipt of payment in full of the Purchase Price and, if
applicable, receipt of payment of withholding tax obligations, the
<PAGE> 12
Company shall cause to be issued a certificate representing the shares
of Common Stock purchased.
(c) The Purchase Price shall be paid in full upon the
exercise of an option and no shares of Common Stock shall be issued or
delivered until full payment therefor has been made. Payment of the
Purchase Price for all shares of Common Stock purchased pursuant to the
exercise of an Option shall be made in cash or by certified check or,
alternatively, as follows:
(i) by delivery to the Company of a number of
shares of Common Stock which have been owned by the Optionee
for at least six months prior to the date of the Option's
exercise, having a fair market value on the date of exercise,
as determined by the Committee in its sole discretion, either
equal to the Purchase Price or in combination with cash to
equal the Purchase Price; or
(ii) by receipt of the Purchase Price in cash from a
broker, dealer or other "creditor" as defined by Regulation T
issued by the Board of Governors of the Federal Reserve System
following delivery by the Optionee to the Committee of
instructions in a form acceptable to the Committee regarding
delivery to such broker, dealer or other creditor of that
number of shares of Common Stock with respect to which the
Option is exercised.
(d) In lieu of paying the withholding tax obligation in
cash or by certified check to the Company, as described in Subsection
2(b) hereof, Optionee may elect (i) to have the actual number of whole
shares of Common Stock which, when multiplied by the fair market value
of the Common Stock as of the date the Option is exercised, is
sufficient to satisfy the amount of withholding tax; or (ii) to tender
to the Company the smallest number of whole shares of Common Stock that
have been owned by the Optionee for at least six months prior to the
Tax Date (defined below) and that when multiplied by the fair market
value of the shares of Common Stock determined as of the Tax Date (as
defined below), is sufficient to satisfy federal, state and local, if
any, withholding taxes arising from exercise of the option (a
"Withholding Election"). Optionee may make a Withholding Election only
if all of the following conditions are met:
(i) the Withholding Election must be made no later
than the date on which the amount of tax required to be
withheld is determined (the "Tax Date") by executing and
delivering to the Company a properly completed Notice of Tax
Withholding in substantially the form of Exhibit 2 attached
hereto;
(ii) any Withholding Election is irrevocably given;
and
(iii) the Withholding Election is delivered to the
Company sufficiently in advance of the Tax Date as necessary
to satisfy the conditions of the exemption provided under Rule
16b-3 promulgated under the Securities Exchange Act of 1934.
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<PAGE> 13
No Option to which any Withholding Election relates may be exercised
prior to one year after the Company has been subject to the reporting
requirements of Section 13 of the Securities Exchange Act of 1934 and
has filed all reports and statements required to be filed pursuant to
that Section during that year.
3. Exercise Price. The exercise price for each share of Common Stock
for which the Option is exercised shall be $______, subject to adjustment as set
forth in Section 7 hereof (the "Exercise Price").
4. Term and Termination of Option. Except as otherwise provided below,
the term of the Option (the "Option Period") shall commence on the Grant Date
and terminate on the tenth anniversary of the Grant Date. Upon the expiration of
the Option Period, this Option and all unexercised rights granted to Optionee
hereunder shall terminate, and thereafter be null and void.
5. Rights as Shareholder. Until the stock certificates reflecting the
Common Stock accruing to the Optionee upon exercise of the Option are issued to
the Optionee, the Optionee shall have no rights as a shareholder with respect to
such Common Stock. The Company shall make no adjustment for any dividends or
distributions or other rights on or with respect to shares of Common Stock
purchased pursuant to the Option for which the record date is prior to the
issuance of that stock certificate, except as the Plan or this Agreement
otherwise provides.
6. Restriction on Transfer of Option. The Option evidenced hereby is
nontransferable other than by will or the laws of descent and distribution and
shall be exercisable during the lifetime of the Optionee only by the Optionee
(or in the event of his disability, by his personal representative) and after
his death, only by his personal representative.
7. Changes Attributable to Recapitalizations or Reorganizations. The
number and type of shares of stock, or both, subject to the Option; the Exercise
Price; the Option Period; and the number of Vested Shares may be adjusted in the
event of certain recapitalizations or reorganizations affecting the Company in
the manner set forth in Section 4 of the Plan.
8. Special Limitation on Exercise. Notwithstanding anything contained
herein to the contrary, no purported exercise of the Option shall be effective
without the written approval of the Company, which may be withheld to the extent
that its exercise, either individually or in the aggregate together with the
exercise of other previously exercised stock options and/or offers and sales
pursuant to any prior or contemplated offering of securities, would, in the sole
and absolute judgment of the Company, require the filing of a registration
statement with the United States Securities and Exchange Commission, or with the
securities commission of any state. The Company shall avail itself of any
exemptions from registration contained in applicable federal and state
securities laws which are reasonably available to the Company on terms which, in
its sole and absolute discretion, it deems reasonable and not unduly burdensome
or costly. If the Option cannot be exercised at the time it would otherwise
expire due to the restrictions contained in this Section, the exercise period
shall be extended for successive one-year periods until it can be exercised in
accordance with this Section. The Optionee shall deliver to the Company, prior
to the exercise of the Option, such information, representations and warranties
as the Company
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<PAGE> 14
may reasonably request in order for the Company to be able to satisfy itself
that the Common Stock to be acquired pursuant to the exercise of the Option is
being acquired in accordance with the terms of an applicable exemption from the
securities registration requirements of applicable federal and state securities
laws.
9. Legend on Stock Certificates. Certificates evidencing Common
Stock to be distributed pursuant to the Agreement and the Plan shall, to the
extent appropriate at the time, have noted conspicuously on the certificates a
legend to the following effect, which is intended to give all persons full
notice of the existence of the conditions, restrictions, rights and obligations
set forth in this Agreement:
(a) That the securities evidenced by the certificate were
issued without registration under the Securities Act of 1933, as
amended (the "1933 Act"), or under the applicable laws of any state or
states (collectively referred to as the "State Acts"), in reliance upon
certain exemptive provisions of the 1933 Act or any applicable State
Acts;
(b) That the securities cannot be sold or transferred unless,
in the opinion of counsel reasonably acceptable to the Company, the
sale or transfer would be:
(1) Pursuant to an effective registration statement
under the 1933 Act or pursuant to an available exemption form
registration; and
(2) A transaction which is exempt under any
applicable State Acts or pursuant to an effective registration
statement under or in a transaction which is otherwise in
compliance with the State Acts; and
(c) That the securities evidenced by the certificate were
issued in accordance with the provisions of the Agreement and the Plan
and are subject to the provisions thereof and may not be sold or
transferred except in compliance with said provisions.
10. Governing Laws. This Agreement shall be construed,
administered and enforced according to the laws of the State of Georgia;
provided, however, no option may be exercised except, in the reasonable judgment
of the Board of Directors, in compliance with exemptions under applicable state
securities laws.
11. Successors. Agreement shall be binding upon and inure to the
benefit of the heirs, legal representatives, successors and permitted assigns of
the parties.
12. Notice. Except as otherwise specified herein, all notices and
other communications under this Agreement shall be in writing and shall be
deemed to have been given if personally delivered or if sent by registered or
certified United States mail, return receipt requested, postage prepaid,
addressed to the proposed recipient at the last known address of the recipient.
Any party may designate any other address to which notices shall be sent by
giving notice of the address to the other parties in the same manner as provided
herein.
- 4 -
<PAGE> 15
13. Severability. In the event that any one or more of the
provisions or portion thereof contained in this Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any respect, the same shall
not invalidate or otherwise affect any other provisions of this Agreement, and
this Agreement shall be construed as if the invalid, illegal or unenforceable
provision or portion thereof had never been contained herein.
14. Entire Agreement. Subject to the terms and conditions of
the Plan, this Agreement expresses the entire understanding and agreement of the
parties. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same instrument.
15. Violation. Any transfer, pledge, sale, assignment, or
hypothecation of the Option or any portion thereof shall be a violation of the
terms of this Agreement and shall be void and without effect.
16. Headings. Paragraph headings used herein are for convenience of
reference only and shall not be considered in construing this Agreement.
17. Specific Performance. In the event of any actual or threatened
default in, or breach of, any of the terms, conditions and provisions of this
Agreement, the party or parties who are thereby aggrieved shall have the right
to specific performance and injunction in addition to any and all other rights
and remedies at law or in equity, and all such rights and remedies shall be
cumulative.
18. No Rights Created. Neither the establishment of the Plan nor
the grant of the Option hereunder shall be construed as giving the Optionee the
right to continued employment with the Company or a subsidiary or to continued
service upon the Board of Directors of the Company or a subsidiary.
IN WITNESS WHEREOF, the parties have executed and sealed this
Agreement on the day and year first set forth above.
BROCK CONTROL SYSTEMS, INC.
ATTEST:
By:
- ---------------------------------- -------------------------------
Title: Title:
---------------------------- ----------------------------
[CORPORATE SEAL]
OPTIONEE
(SEAL)
----------------------------------
- 5 -
<PAGE> 16
EXHIBIT 1
NOTICE OF EXERCISE OF
BROCK CONTROL SYSTEMS, INC.
STOCK OPTION TO PURCHASE
COMMON STOCK OF
BROCK CONTROL SYSTEMS, INC.
Name
------------------------------------
Address
---------------------------------
----------------------------------------
Date
------------------------------------
Brock Control Systems, Inc.
2859 Paces Ferry Road
Suite 1000
Atlanta, GA 30339
Re: Exercise of Non-Qualified Stock Option
Gentlemen:
Subject to acceptance hereof in writing by Brock Control Systems, Inc.
(the "Company") pursuant to the provisions of the Brock Control Systems, Inc.
1993 Stock Option Plan, I hereby give at least ten days but not more than thirty
days prior notice of my election to exercise options granted to me to purchase
__________ shares of Common Stock of the Company under the Brock Control
Systems, Inc. Non-Qualified Formula Stock Option Agreement dated as of
_____________, 199__. The purchase shall take place as of _____________, 199__
(the "Exercise Date").
On or before the Exercise Date, I will pay the applicable purchase
price as follows:
[ ] by delivery of cash or a certified check for $____________, for the
full purchase price payable to the order of Brock Control Systems, Inc.
[ ] by delivery of cash or a certified check for $______________,
representing a portion of the purchase price with the balance to consist of
shares of Common Stock that I have owned for at least six months and that are
represented by a stock certificate I will surrender to the Company with my
endorsement. If the number of shares of Common Stock represented by such stock
certificate exceed the number to be applied against the purchase price, I
understand that a new stock certificate will be issued to me reflecting the
excess number of shares.
[ ] by delivery of a stock certificate representing shares of Common
Stock that I have owned for at least six months which I will surrender to the
Company with my endorsement as payment of the purchase price. If the number of
shares of Common Stock represented by such
<PAGE> 17
certificate exceed the number to be applied against the purchase price, I
understand that a new certificate will be issued to me reflecting the excess
number of shares.
[ ] by delivery of the purchase price by _________________, a broker,
dealer or other "creditor" as defined by Regulation T issued by the Board of
Governors of the Federal Reserve System. I hereby authorize the Company to issue
a stock certificate in number of shares indicated above in the name of said
broker, dealer or other creditor or its nominee pursuant to instructions
received by the Company and to deliver said stock certificate directly to that
broker, dealer or other creditor (or to such other party specified in the
instructions received by the Company from the broker, dealer or other creditor)
upon receipt of the purchase price.
The required federal, state and local income tax withholding, if any,
on the exercise of the option shall be paid on or before the Exercise Date in
cash or by certified check, or in the manner provided in the Withholding
Election previously tendered or to be tendered to the Company no later than the
Exercise Date.
As soon as the stock certificate is registered in my name, please
delivery it to me at the above address.
If the Common Stock being acquired is not registered for issuance to
and resale by the Optionee pursuant to an effective registration statement on
Form S-8 (or successor form) filed under the Securities Act of 1933, as amended
(the "1933 Act"), I hereby represent, warrant, covenant, and agree with the
Company as follows:
The shares of the Common Stock being acquired by me will be
acquired for my own account without the participation of any other
person, with the intent of holding the Common Stock for investment and
without the intent of participating, directly or indirectly, in a
distribution of the Common Stock and not with a view to, or for resale
in connection with, any distribution of the Common Stock, nor am I
aware of the existence of any distribution of the Common Stock;
I am not acquiring the Common Stock based upon any
representation, oral or written, by any person with respect to the
future value of, or income from, the Common Stock but rather upon an
independent examination and judgment as to the prospects of the
Company;
The Common Stock was not offered to me by means of publicly
disseminated advertisements or sales literature, nor am I aware of any
offers made to other persons by such means;
I am able to bear the economic risks of the investment in the
Common Stock, including the risk of a complete loss of my investment
therein;
I understand and agree that the Common Stock will be issued
and sold to me without registration under any state law relating to the
registration of securities for sale, and will be issued and sold in
reliance on the exemptions from registration under the
EXHIBIT 1 to Non-Qualified Formula Stock Option Agreement
Page - 2 -
<PAGE> 18
1933 Act, provided by Sections 3(b) and/or 4(2) thereof and the rules
and regulations promulgated thereunder;
The Common Stock cannot be offered for sale, sold or
transferred by me other than pursuant to: (A) an effective registration
under the 1933 Act or in a transaction otherwise in compliance with the
1933 Act; and (B) evidence satisfactory to the Company of compliance
with the applicable securities laws of other jurisdictions. The Company
shall be entitled to rely upon an opinion of counsel satisfactory to it
with respect to compliance with the above laws;
The Company will be under no obligation to register the Common
Stock or to comply with any exemption available for sale of the Common
Stock without registration or filing, and the information or conditions
necessary to permit routine sales of securities of the Company under
Rule 144 under the 1933 Act are not now available and no assurance has
been given that it or they will become available. The Company is under
no obligation to act in any mariner so as to make Rule 144 available
with respect to the Common Stock;
I have and have had complete access to and the opportunity to
review and make copies of all material documents related to the
business of the Company, including, but not limited to, contracts,
financial statements, tax returns, leases, deeds and other books and
records. I have examined such of these documents as I wished and am
familiar with the business and affairs of the Company. I realize that
the purchase of the Common Stock is a speculative investment and that
any possible profit therefrom is uncertain;
I have had the opportunity to ask questions of and receive
answers from the Company and any person acting on its behalf and to
obtain all material information reasonably available with respect to
the Company and its affairs. I have received all information and data
with respect to the Company which I have requested and which I have
deemed relevant in connection with the evaluation of the merits and
risks of my investment in the Company;
I have such knowledge and experience in financial and business
matters that I am capable of evaluating the merits and risks of the
purchase of the Common Stock hereunder and I am able to bear the
economic risk of such purchase; and
The agreements, representations, warranties and covenants made
by me herein extend to and apply to all of the Common Stock of the
Company issued to me pursuant to this Option. Acceptance by me of the
certificate representing such Common Stock shall constitute a
confirmation by me that all such agreements, representations,
warranties and covenants made herein shall be true and correct at that
time.
EXHIBIT 1 to Non-Qualified Formula Stock Option Agreement -
Page - 3 -
<PAGE> 19
I understand that the certificates representing the shares
being purchased by me in accordance with this notice shall bear a
legend referring to the foregoing covenants, representations and
warranties and restrictions on transfer, and I agree that a legend to
that effect may be placed on any certificate which may be issued to me
as a substitute for the certificates being acquired by me in accordance
with this notice.
Very truly yours,
----------------------------------
AGREED TO AND ACCEPTED:
BROCK CONTROL SYSTEMS, INC.
By:
-------------------------
Title:
----------------------
Number of Shares
Exercised:
------------------
Number of Shares
Remaining: Date:
------------------ -----------------------------
EXHIBIT 2 to Non-Qualified Formula Stock Option Agreement -
Page - 4 -
<PAGE> 20
EXHIBIT 2
NOTICE OF WITHHOLDING ELECTION
BROCK CONTROL SYSTEMS, INC.
1993 STOCK OPTION PLAN
TO: Brock Control Systems, Inc.
FROM: Name:
------------------------------
RE: Withholding Election
This election relates to the option identified in Paragraph 3 below. I
hereby certify that:
(1) My correct name and social security number and my
current address are set forth at the end of this
document.
(2) I am (check one, whichever is applicable):
[ ] the original recipient of the option.
[ ] the legal representative of the estate of
the original recipient of the option.
[ ] a legatee of the original recipient of the
option.
[ ] the legal guardian of the original recipient
of the option.
(3) The option pursuant to which this election relates
was issued under the Brock Control Systems, Inc. 1993
Stock Option Plan (the "Plan") in the name of
__________________________ for the purchase of a
total of ___________ shares of Common Stock. This
election relates to ___________ shares of Common
Stock issuable upon exercise of the option (the
"Common Stock"), provided that the numbers set forth
above shall be deemed changed as appropriate to
reflect the applicable Plan provisions.
(4) In connection with any exercise of the option with
respect to the Common Stock, I hereby elect:
[ ] To have certain of the shares issuable
pursuant to the exercise withheld by the
Company for the purpose of having the value
of the shares applied to pay federal, state,
and local, if any, taxes arising from the
exercise; or
<PAGE> 21
[ ] To tender shares of Common Stock held by
me for a period of at least six months prior
to the exercise of the option for the
purpose of having the value of the shares
applied to pay such taxes.
The shares to be withheld or tendered, as applicable,
shall have, as of the Tax Date applicable to the
exercise, a fair market value equal to the minimum
statutory tax withholding requirement under federal,
state, and local law in connection with the exercise.
(5) This Withholding Election is made no later than the
Tax Date and is otherwise timely made pursuant to
the Plan.
(6) I understand that this Withholding Election may not
be revised, amended or revoked by me (except in a
manner that satisfies the requirements of the
exemption provided under Rule 16b-3 promulgated
under the Securities Exchange Act of 1934).
(7) I further understand that the Company shall either
(a) withhold from the Common Stock a number of
shares of Common Stock having the value specified
in Paragraph 4 above, or (b) accept a number of
shares of Common Stock held by me for at least six
months prior to exercise and having the value
specified in Paragraph 4 above, as applicable.
(8) The Plan has been made available to me by the
Company, I have read and understand the Plan and I
have no reason to believe that any of the
conditions therein to the making of this
Withholding Election have not been met.
Capitalized terms used in this Notice of Withholding Election without
definition shall have the meanings given to them in the Plan.
Dated: ----------------------------------------
------------- Signature
- ------------------------------- ----------------------------------------
Social Security Number Name (Printed)
----------------------------------------
Street Address
----------------------------------------
City, State, Zip Code
EXHIBIT 2 to Non-Qualified Formula Stock Option Agreement -
Page - 2 -
<PAGE> 22
SCHEDULE I
TO
BROCK CONTROL SYSTEMS, INC.
NON-QUALIFIED FORMULA STOCK OPTION AGREEMENT
Vesting Schedule
"Vested Shares" means only that percentage of the number of shares of
Common Stock subject to the Option as to which the Option becomes exercisable
following completion of the years of service indicated in the schedule below.
<TABLE>
<CAPTION>
Percentage of Shares Years of Service
Which are Vested Shares after Grant Date
----------------------- ----------------
<S> <C>
0% less than 1 year
33% 1 year
67% 2 years
100% 3 years
</TABLE>
- --------------------
1. Construction.
(a) For purposes of the Vesting Schedule, Optionee shall be
granted a year of service for each consecutive twelve-consecutive-month period
following the Grant Date and during which Optionee remains, at all times,
employed on a full-time basis by the Company or a Subsidiary or, if applicable,
continues as a director of the Company or a Subsidiary.
(b) The right of Optionee to vest in the number of shares of
Common Stock subject to the Option shall cease on the later of the date the
Optionee is no longer employed by the Company or any Subsidiary or, if
applicable, the date the Optionee no longer serves as a director of the Company
or any Subsidiary; thereafter, no further shares shall become Vested Shares; and
the Option shall be exercisable during the Option Period specified in Section 4
of the Agreement.
Schedule 1 to Non-Qualified Formula Stock Option Agreement
<PAGE> 1
EXHIBIT 4(B)
BROCK INTERNATIONAL, INC.
BOARD OF DIRECTORS COMPENSATION PLAN
NOVEMBER 6, 1997
Set forth below is the compensation plan of Brock International, Inc.
("Company") for the members of the Company's Board of Directors (each a
"Director"). Capitalized terms used herein but not otherwise defined shall have
the meaning ascribed to them in the Brock Control Systems, Inc. 1993 Stock
Option Plan (As Amended and Restated Effective March 22, 1995) (the "Plan").
1. CASH COMPENSATION.
(a) Base Salary. The Company shall pay to each Director
an annual base salary of $5,000.00 per annum, payable
in monthly installments for so long as Director
remains a member of the Board of Directors.
(b) Additional Compensation Based on Attendance at
Meetings. For each meeting of the Board of Directors
attended in person, each Director shall receive
$2,500.00 as additional compensation. A Director
shall receive no additional compensation for meetings
attended telephonically or for providing written
consent to any action of the Board of Directors.
2. STOCK OPTION COMPENSATION. Pursuant to the Plan, Directors are
eligible to be granted Options to purchase Shares.
(A) Current Directors. Any Director having been granted
fewer than 20,000 Options will receive a special
grant of Options in the amount required to provide
Director with an aggregate of 20,000 Options, at fair
market value on November 6, 1997, vesting over a
four-year period.
(B) New Directors. Any person becoming a Director in the
future (a "New Director") shall receive an initial
option ("Initial Option") to purchase 20,000 Shares
at fair market value on the date a New Director
attends his or her first meeting of the Board of
Directors. The Initial Option shall vest over a
four-year period, with 5,000 Options becoming
exercisable, for so long as a New Director remains a
Director, upon each of the first four one-year
anniversaries of the date of grant.
(C) Annual Automatic Grant to all Directors. Any
Director, upon each one-year anniversary from
November 6, 1997 for current Directors and upon each
one-year anniversary of the date of attendance at
first Board meeting
<PAGE> 2
attended by a New Director, will receive an annual
grant of 5,000 Options, vesting over a four-year
period, with 1,250 Options becoming exercisable, for
so long as each Director remains a Director, upon
each of the first four one-year anniversaries of the
date of grant.
<PAGE> 1
EXHIBIT 4(c)
FIRST AMENDMENT TO THE
BROCK CONTROL SYSTEMS, INC.
1993 STOCK OPTION PLAN
(As Amended and Restated Effective March 22, 1995)
THIS FIRST AMENDMENT is made on this 12th day of May, 1998, by
FIRSTWAVE TECHNOLOGIES, INC. (the "Company"), a corporation duly organized and
existing under the laws of the State of Georgia.
W I T N E S S E T H:
WHEREAS, the Company maintains the Brock Control Systems, Inc. 1993
Stock Option Plan (the "Plan"); and
WHEREAS, the Company desires to amend the Plan to facilitate compliance
with the provisions of Section 162(m) of the Internal Revenue Code of 1986, as
amended, and Rule 16b-3 promulgated under the Securities Exchange Act of 1934;
to reflect changes in the name of the Company; and to reflect an increase in the
number of shares of Company common stock reserved for issuance of awards granted
under the Plan.
NOW, THEREFORE, the Plan is hereby amended, effective immediately, as
follows:
1. By renaming the Plan as the Firstwave Technologies, Inc. 1993 Stock
Option Plan.
2. By deleting the second and third sentences of the first paragraph of
Section 2 and by substituting therefor the following:
"The Board of Directors shall consider the advisability of complying
with the disinterested standards contained in both Section 162(m) of
the Internal Revenue Code of 1986 and Rule 16b-3 promulgated under the
Securities Exchange Act of 1934 when appointing Committee members."
3. By adding a new final sentence to Section 3, as follows:
"In no event shall any person be entitled to option grants under the
Plan which, in the aggregate, in any fiscal year of the Company exceed
100,000 shares of the Company's no par value common stock."
4. By deleting the first sentence of Section 4 and by substituting
therefor the following:
"The Company has authorized and reserved for issuance upon the exercise
of Options and Formula Options pursuant to the Plan an aggregate of
1,200,000 shares of no par value common stock of the Company (the
`Shares')."
<PAGE> 2
Except as specifically amended hereby, the Plan shall remain in full
force and effect as prior to this First Amendment.
IN WITNESS WHEREOF, the Company has caused this First Amendment to be
executed on the day and year first above written.
FIRSTWAVE TECHNOLOGIES, INC.
By: /s/ R. Douglas MacIntyre
-------------------------------------------
Title: Chief Executive Officer
ATTEST:
/s/ G. William Speer
- ------------------------
Title: Secretary
[CORPORATE SEAL]
- 2 -
<PAGE> 1
EXHIBIT 5
June 3, 1998
Firstwave Technologies, Inc.
2859 Paces Ferry Road, Suite 1000
Atlanta, Georgia 30339
Re: Registration Statement on Form S-8
Firstwave Technologies, Inc. 1993 Stock Option Plan
Ladies and Gentlemen:
We have served as counsel for Firstwave Technologies, Inc., a Georgia
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, pursuant to a Registration Statement on Form
S-8 (the "Registration Statement"), of an aggregate of 400,000 shares (the
"Shares") of common stock, no par value of the Company, to be issued and sold by
the Company upon the exercise of options granted to certain directors and key
employees of the Company pursuant to the Firstwave Technologies, Inc. 1993 Stock
Option Plan (the "1993 Plan").
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and the authorization of the grants of stock options pursuant to the
1993 Plan as we have deemed necessary and advisable. In such examinations, we
have assumed the genuineness of all signatures on all originals and copies of
documents we have examined, the authenticity of all documents submitted to us as
originals and the conformity to original documents of all certified, conformed
or photostatic copies. As to questions of fact material and relevant to our
opinion, we have relied upon certificates or representations of Company
officials and of appropriate governmental officials.
<PAGE> 2
We express no opinion as to matters under or involving the laws of any
jurisdiction other than the corporate law of the State of Georgia.
Based upon and subject to the foregoing and having regard for such
legal considerations as we have deemed relevant, it is our opinion that:
1. The Shares have been duly authorized; and
2. Upon the issuance and delivery of the Shares pursuant to the
exercise of options and payment therefor as provided in the
1993 Plan and as contemplated by the Registration Statement,
such Shares will be legally and validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
<PAGE> 1
EXHIBIT 23(B)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 30, 1998, except
as to Note 15, which is as of March 16, 1998, appearing on page 18 of Firstwave
Technologies, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1997.
PRICE WATERHOUSE LLP
Atlanta, Georgia
June 3, 1998
