<PAGE> 1
As filed with the Securities and Exchange Commission on May 12, 1999
Registration No. 333
---------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
------------------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------------------
OSAGE SYSTEMS GROUP, INC.
DELAWARE 95-4374983
(State or jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
1661 EAST CAMELBACK ROAD
SUITE 245
PHOENIX, ARIZONA 85016
(Address of principal executive offices)
-------------------------------------------
OSAGE SYSTEMS GROUP, INC.
1993 AMENDED AND RESTATED STOCK OPTION PLAN
AND
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
-------------------------------------------
Jack R. Leadbeater, Chairman & Chief Executive Officer
Osage Systems Group, Inc.
1661 East Camelback Road
Suite 245
Phoenix, Arizona 85016
(602) 274-1299
(Name, address and telephone number of agent for service)
COPIES OF COMMUNICATIONS TO:
STEPHEN M. COHEN, ESQUIRE
BUCHANAN INGERSOLL PROFESSIONAL CORPORATION
ELEVEN PENN CENTER
1835 MARKET STREET
PHILADELPHIA, PA 19103-2985
(215) 665-3873
-------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED(1) SHARE PRICE REGISTRATION FEE
REGISTERED
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
Osage Systems Group, Inc. 1993
Amended and Restated Stock 5,000,000 $ 6.25(2) $31,250,000 $ 8,687
Option Plan Common Stock, par
value $.01 per share
- ------------------------------------------------------------------------------------------------------------------------------------
Osage Systems Group, Inc. 1999
Employee Stock Purchase Plan 1,000,000 $ 5.3125(3) $ 5,312,500 $ 1,477
Common Stock, par value
$.01 per share
- ------------------------------------------------------------------------------------------------------------------------------------
Osage Systems Group, Inc.
Common Stock, par value 2,358,900(4) $ 4.50(5) $10,615,050 $ 2,951
$.01 per share
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL 8,358,900 -- $47,177,550 $ 13,115
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the Osage Systems Group, Inc. 1993 Amended and
Restated Stock Option Plan (the "Option Plan") and the 1999 Employee Stock
Purchase Plan by reason of any stock dividend, stock split, recapitalization or
other similar transactions effected without the registrant's receipt of
consideration which results in an increase in the number of outstanding shares
of registrant's Common Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purposes of calculating the registration fee on the
basis of the average of the high and low reported prices on the consolidated
reporting system as of May 10, 1999.
(3) Estimated pursuant to Rule 457 under the Securities Act solely for the
purposes of calculating the registration fee on the basis of 85% of the average
of the high and low reported prices on the consolidated reporting system as of
May 10, 1999.
(4) Represents options granted to certain persons on December 19, 1997, January
1, 1998 and June 11, 1998 pursuant to written compensatory agreements but which
were not granted under the Option Plan.
(5) Represents the price at which the options described in footnote (4) above
may be exercised in accordance with Rule 457(h) of the Securities Act.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
NOTE: The documents containing the information specified in Part I of this
Registration Statement will be sent or given to employees who participate in the
Osage Systems Group, Inc. 1993 Amended and Restated Stock Option Plan, the 1999
Employee Stock Purchase Plan and any other employee benefit plan covered by this
Registration Statement as specified by Rule 428(b)(1). Such documents need not
be and are not filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424. These documents and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act of 1933, as
amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Registrant are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-KSB (file number 001-14631)
for the fiscal year ended December 31, 1998 as filed by the Company with the
Commission on March 31, 1999.
(b) All other reports, if any, filed pursuant to Section 13(a) or 15(d)
of the Exchange Act of 1934, as amended (the "Exchange Act") since the end of
the fiscal year covered by the document referred to in (a) above.
(c) The description of the Company's Common Stock, par value $.01 per
share (the "Common Stock"), as set forth in the Company's Form 8-A12B filed with
the Commission on November 18, 1998.
All documents subsequently filed by the registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
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.
<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation and Bylaws reflect the
adoption of the provisions of Section 102(b)(7) of the Delaware General
Corporation Law (the "GCL"), which eliminate or limit the personal liability of
a director to the Company or its stockholders for monetary damages for breach of
fiduciary duty under certain circumstances. If the GCL is amended to authorize
corporate action further eliminating or limiting personal liability of
directors, the Certificate of Incorporation provides that the liability of the
director of the Company shall be eliminated or limited to the fullest extent
permitted by the GCL. The Company's Certificate of Incorporation and Bylaws also
provide that the Company shall indemnify any person, who was or is a party to a
proceeding by reason of the fact that he is or was a director, officer, employer
or agent of the Company, or is or was serving at the Company's request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with such proceeding if he
acted in good faith and in a manner he reasonably believed to be or not opposed
to the Company's best interests, in accordance with, and to the full extent
permitted by, the GCL. The determination of whether indemnification is proper
under the circumstances, unless made by the court, shall be determined by the
Company's Board of Directors.
The Company has liability insurance for the benefit of its directors
and officers. The insurance covers claims against such persons alleging:
- breach of duty; - misleading statement;
- neglect; - omission; or
- error; - improper action.
- misstatement;
The insurance covers such claims, except as prohibited by law, or otherwise
excluded by such insurance policy.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
2
<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following is a list of exhibits filed as part of this
Registration Statement, which are incorporated herein:
<TABLE>
<S> <C> <C>
4.1 Certificate of Incorporation Incorporated by reference to Exhibit
3.1 to Amendment No. 1 to the
Registrant's Registration Statement
on Form S-1 (Reg. No. 33-69380)
filed November 2, 1993
4.2 Certificate of Amendment to the Certificate of Incorporated by reference to Exhibit
Incorporation effective March 10, 1998 3.5 of the Registrant's Current
Report on Form 8-K dated March 11,
1998
4.3 1993 Amended and Restated Stock Option Plan Incorporated by reference to Exhibit
10.1 of the Registrant's Quarterly
Report on Form 10-QSB for the period
ended June 30, 1998
4.4 1999 Employee Stock Purchase Plan Filed herewith.
5. 2 Opinion of Buchanan Ingersoll Professional Corporation Filed herewith.
23.6 Consent of Deloitte & Touche LLP. Filed herewith.
23.7 Consent of Buchanan Ingersoll Professional Corporation. Contained in opinion filed as
Exhibit 5.2.
</TABLE>
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
3
<PAGE> 5
(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 this
Registration Statement or any material change to such
information in this 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 the foregoing 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
Securities Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act) that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(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 provisions described in Item 6 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim
4
<PAGE> 6
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing on Form S-8 to this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Phoenix, State of Arizona on May 12, 1999.
OSAGE SYSTEMS GROUP, INC.
By: /s/ Jack R. Leadbeater
----------------------------------------------
Jack R. Leadbeater
Chairman of the Board and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following person in the capacities
and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Jack R. Leadbeater Chairman, Chief Executive May 12, 1999
- ----------------------- Officer and Director
Jack R. Leadbeater
/s/ David S. Olson President and Director May 12, 1999
- ------------------------------------
David S. Olson
/s/ Phil Carter Chief Operating Officer May 12, 1999
- ------------------------------------ and Director
Phil Carter
/s/ John Iorillo Chief Financial Officer May 12, 1999
- ------------------------------------ and Director
John Iorillo
/s/ Andrew P. Panzo Director May 12, 1999
- ---------------------------
Andrew P. Panzo
/s/ George Knight Director May 12, 1999
- ---------------------------
George Knight
</TABLE>
5
<PAGE> 7
<TABLE>
EXHIBIT INDEX
<S> <C> <C>
4.1 Certificate of Incorporation Incorporated by reference to Exhibit
3.1 to Amendment No. 1 to the
Registrant's Registration Statement
on Form S-1 (Reg. No. 33-69380)
filed November 2, 1993
4.2 Certificate of Amendment to the Certificate of Incorporated by reference to Exhibit
Incorporation effective March 10, 1998 3.5 of the Registrant's Current
Report on Form 8-K dated March 11,
1998
4.3 1993 Amended and Restated Stock Option Plan Incorporated by reference to Exhibit
10.1 of the Registrant's Quarterly
Report on Form 10-QSB for the period
ended June 30, 1998
4.4 1999 Employee Stock Purchase Plan Filed herewith.
5. 2 Opinion of Buchanan Ingersoll Professional Corporation Filed herewith.
23.6 Consent of Deloitte & Touche LLP. Filed herewith.
23.7 Consent of Buchanan Ingersoll Professional Corporation. Contained in opinion filed as
Exhibit 5.2.
</TABLE>
6
<PAGE> 1
Exhibit 4.4
OSAGE SYSTEMS GROUP, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1999 Employee Stock
Purchase Plan of Osage Systems Group, Inc.
1. Purpose. The purpose of this Plan is to provide employees of the
Company and its Designated Subsidiaries with an opportunity to purchase
Common Stock of the Company. It is the intention of the Company to have
the Plan qualify as an "Employee Stock Purchase Plan" under Section 423
of the Internal Revenue Code of 1986, as amended. The provisions of the
Plan shall accordingly be construed so as to extend and limit
participation in a manner consistent with the requirements of that
section of the Code.
2. Definitions.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" shall mean the Common Stock, $0.01 par value, of
the Company.
(d) "Company" shall mean Osage Systems Group, Inc., a Delaware
corporation.
(e) "Compensation" shall mean all regular straight time gross earnings
excluding payments for overtime, shift premium, incentive
compensation, incentive payments, bonuses, commissions and other
compensation.
(f) "Continuous Status As An Employee" shall mean the absence of any
interruption or termination of service as an Employee. Continuous
Status as an Employee shall not be considered interrupted in the
case of a leave of absence agreed to in writing by the Company,
provided that such leave is for a period of not more than 90 days
or reemployment upon the expiration of such leave is guaranteed by
contract or statute.
(g) "Contributions" shall mean all amounts credited to the account of
a participant pursuant to the Plan.
(h) "Designated Subsidiaries" shall mean the Subsidiaries which have
been designated by the Board from time to time in its sole
discretion as eligible to participate in the Plan.
(i) "Employee" shall mean any person, including an officer, who is
customarily employed for at least (20) hours per week and more
than five (5) months in a calendar year by the Company or one of
its Designated Subsidiaries.
(j) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
<PAGE> 2
(k) "Exercise Date" shall mean the last day of each Offering Period of
the Plan.
(l) "Offering Date" shall mean the first business day of each Offering
Period of the Plan, except that in the case of an individual who
becomes an eligible Employee after the first business day of an
Offering Period but prior to the first business day of the last
calendar month of such Offering Period, the term "Offering Date"
shall mean the first business day of the calendar month coinciding
with or next succeeding the day on which the individual becomes an
eligible Employee.
Options granted after the first business day of an Offering Period
will be subject to the same terms as the options granted on the
first business day of such Offering Period except that they will
have a different grant date (thus, potentially, a different
exercise price) and, because they expire at the same time as the
options granted on the first business day of such Offering Period,
a shorter term.
(m) "Offering Period" shall mean a period of three (3) consecutive
calendar months coinciding with calendar quarters.
(n) "Plan" shall mean this 1999 Employee Stock Purchase Plan.
(o) "Subsidiary" shall mean a corporation, domestic or foreign, of
which not less than 50% of the voting shares are held by the
Company or a Subsidiary, whether or not such corporation exists or
is hereafter organized or acquired by the Company or a Subsidiary.
3. Eligibility.
(a) Any person who is employed as an Employee as of the effective date
of the Plan, 1/1/99, shall be entitled to participate in the Plan
as of the initial Offering Period. Thereafter, any person who has
been continuously employed as an Employee for three (3) months as
of the Offering Date of a given Offering Period shall be eligible
to participate in such Offering Period under the Plan, provided
that such person was not eligible to participate in such Offering
Period as of any prior Offering Date, and further, subject to the
requirements of paragraph 5(a) and the limitations imposed by
Section 423(b) of the Code.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) if,
immediately after the grant, such Employee (or any other person
whose stock would be attributed to such Employee pursuant to
Section 424(d) of the Code) would own stock and/or hold
outstanding options to purchase stock possessing five percent (5%)
or more of the total combined voting power or value of all classes
of stock of the Company or of any Subsidiary, or (ii) which
permits his or her rights to purchase stock under all employee
stock purchase plans (described in Section 423 of the Code) of the
Company and its Subsidiaries to accrue at a rate which exceeds
Twenty-Five Thousand Dollars ($25,000) of fair
2
<PAGE> 3
market value of such stock (determined at the time such option
is granted) for each calendar year in which such option is
outstanding at any time.
4. Offering Periods. The Plan shall be implemented by a series of Offering
Periods, with a new Offering Period commencing on January 1, April 1,
July 1, and October 1 of each year (or at such other time or times as
may be determined by the Board of Directors). The Plan shall continue
until terminated in accordance with paragraph 18 hereof. The Board of
Directors of the Company shall have the power to change the duration
and/or frequency of Offering Periods with respect to future offerings
without stockholder approval if such change is announced at least
fifteen (15) days prior to the scheduled beginning of the first
Offering Period to be affected.
5. Participation.
(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement on the form provided by
the Company and filing it with the Company's Office of Human
Resources prior to the applicable Offering Date, unless a
later time for filing the subscription agreement is set by the
Board for all eligible Employees with respect to a given
Offering Period. The subscription agreement shall set forth
the percentage of the participant's Compensation (which shall
be not less than $10.00 per pay period and not more than 10%,
in multiples of 1/2%) to be paid as Contributions pursuant to
the Plan.
(b) Payroll deductions shall commence on the first payroll
following the Offering Date and shall end on the last payroll
paid on or prior to the Exercise Date of the Offering Period
to which the subscription agreement is applicable, unless
sooner terminated by the participant as provided in paragraph
10.
6. Method of Payment of Contributions.
(a) The participant shall elect to have payroll deductions made on
each payday during the Offering Period in an amount not less
than $10.00 per pay period and not more than ten percent (10%)
of such participant's Compensation on each such payday;
provided that the aggregate of such payroll deductions during
the Offering Period shall not exceed ten percent (10%) of the
participant's aggregate Compensation during said Offering
Period. All payroll deductions made by a participant shall be
credited to his or her account under the Plan. A participant
may not make any additional payments into such amount.
(b) A participant may discontinue his or her participation in the
Plan as provided in paragraph 10, or, on one occasion only
during the Offering Period, may decrease, but may not
increase, the rate of his or her Contributions during the
Offering Period by completing and filing with the Company a
new subscription agreement within the ten (10) day period
immediately preceding the beginning of any calendar quarter
during the Offering Period. The change in rate shall be
effective as of the beginning of the calendar month following
the date of filing of the new subscription agreement.
3
<PAGE> 4
(c) Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and paragraph 3(b)
herein, a participant's payroll deduction may be decreased to
0% at such time during any Offering Period which is scheduled
to end during the current calendar year that the aggregate
amount of all payroll deductions accumulated with respect to
such Offering Period and any other Offering Period ending
within the same calendar year equals $21,250. Payroll
deductions shall recommence at the rate provided in such
participant's subscription agreement at the beginning of the
first Offering Period which is scheduled to end in the
following calendar year, unless terminated by the participant
as provided in paragraph 10.
7. Grant of Option.
(a) On the Offering Date of each Offering Period, each eligible
Employee participating in such Offering Period shall be
granted an option to purchase on each Exercise Date during
such Offering Period a number of shares of the Company's
Common Stock determined by dividing such Employee's
Contributions accumulated prior to such Exercise Date and
retained in the participant's account as of the Exercise Date
by the lower of (i) eighty-five percent (85%) of the fair
market value of a share of the Company's Common Stock on the
Offering Date, or (ii) eighty-five percent (85%) of the fair
market value of a share of the Company's Common Stock on the
Exercise Date; provided however, that the maximum number of
shares an Employee may purchase during each Offering Period
shall be determined at the Offering Date by dividing $25,000
by the fair market value of a share of the Company's Common
Stock on the Offering Date, and provided further that such
purchase shall be subject to the limitations set forth in
Sections 3(b) and 12 hereof. The fair market value of a share
of the Company's Common Stock shall be determined as provided
in Section 7(b) herein.
(b) The option price per share of the shares offered in a given
Offering Period shall be the lower of: (i) 85% of the fair
market value of a share of the Common Stock of the Company on
the Offering Date; or (ii) 85% of the fair market value of a
share of the Common Stock of the Company on the Exercise Date.
The fair market value of the Company's Common Stock on a given
date shall be based on the closing price of the Common Stock
for such date (or, in the event that the Common Stock is not
traded on such date, on the immediately preceding trading
date), as reported by the National Association of Securities
Dealers Automated Quotation (NASDAQ) National Market System
or, if such price is not reported, the mean of the bid and
asked prices per share of the Common Stock as reported by
NASDAQ or, in the event the Common Stock is listed on a stock
exchange, the fair market value per share shall be the closing
price on such exchange on such date (or, in the event that the
Common Stock is not traded on such date, on the immediately
preceding trading date), as reported in The Wall Street
Journal.
8. Exercise of Option. Unless a participant withdraws from the Plan as
provided in paragraph 10, his or her option for the purchase of shares
will be exercised automatically on the Exercise Date of the Offering
Period, and the maximum number of full shares subject to
4
<PAGE> 5
option will be purchased for him or her at the applicable option price
with the accumulated Contributions in his or her account. The shares
purchased upon exercise of an option hereunder shall be deemed to be
transferred to the participant on the Exercise Date. During his
lifetime, a participant's option to purchase shares hereunder is
exercisable only by him or her.
9. Delivery. As promptly as practicable after the Exercise Date of each
Offering Period, the Company shall arrange the delivery of shares
purchased upon exercise of his or her option to each participant's AG
Edwards sub account, as appropriate.
10. Withdrawal; Termination of Employment.
(a) A participant may withdraw all but not less than all of the
Contributions credited to his or her account under the Plan at
any time prior to the Exercise Date of the Offering Period by
giving written notice to the Company. All of the participant's
Contributions credited to his or her account will be paid to
him or her promptly after receipt of his or her notice of
withdrawal and his or her option for the current period will
be automatically terminated, and no further Contributions for
the purchase of shares will be made during the Offering
Period.
(b) Upon termination of the participant's Continuous Status as an
Employee prior to the Exercise Date of the Offering Period for
any reason, including retirement or death, the Contributions
credited to his or her account will be returned to him or her
or, in the case of his or her death, to the person or persons
entitled thereto under paragraph 14, and his or her option
will be automatically terminated.
(c) In the event an Employee fails to remain in Continuous Status
as an Employee of the Company for at least twenty (20) hours
per week during the Offering Period in which the Employee is a
participant, he or she will be deemed to have elected to
withdraw from the Plan and the Contributions credited to his
or her account will be returned to him or her and his or her
option will be terminated.
(d) A participant's withdrawal from an Offering Period will not
have any effect upon his or eligibility to participate in a
succeeding Offering Period or in any similar plan which may
hereafter be adopted by the Company.
11. Interest. No interest shall accrue on the Contributions of a
participant in the Plan.
12. Stock.
(a) The maximum number of shares of the Company's Common Stock
which shall be made available for sale under the Plan shall be
1,000,000 shares, subject to adjustment upon changes in
capitalization of the Company as provided in paragraph 17. If
the total number of shares which would otherwise be subject to
options granted pursuant to Section 7(a) hereof on the
Offering Date of an Offering Period exceeds the number of
shares then available under the Plan (after deduction of all
shares for which options have been exercised or are then
outstanding), the Company shall make a pro rata
5
<PAGE> 6
allocation of the shares remaining available for option grant
in as uniform a manner as shall be practicable and as it shall
determine to be equitable. Any amounts remaining in an
Employee's account not applied to the purchase of stock
pursuant to this Section 12 shall be refunded on or promptly
after the Exercise Date. In such event, the Company shall give
written notice of such reduction of the number of shares
subject to the option to each Employee affected thereby and
shall similarly reduce the rate of Contributions, if
necessary.
(b) The participant will have no interest or voting right in
shares covered by his or her option until such option has been
exercised.
13. Administration. The Board, or a committee named by the Board, shall
supervise and administer the Plan and shall have full power to adopt,
amend and rescind any rules deemed desirable and appropriate for the
administration of the Plan and not inconsistent with the Plan, to
construe and interpret the Plan, and to make all other determinations
necessary or advisable for the administration of the Plan. The
composition of the committee shall be in accordance with the
requirements to obtain or retain any available exemption from the
operation of Section 16(b) of the Exchange Act, pursuant to Rule 16b-3
promulgated thereunder.
14. Transferability. Neither Contributions credited to a participant's
account nor any rights with regard to the exercise of an option or to
receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of
descent and distribution or as provided in paragraph 14 hereof) by the
participant. Any such attempt at assignment, transfer, pledge or other
disposition shall be without effect, except that the Company may treat
such act as an election to withdraw funds in accordance with paragraph
10.
15. Use of Funds. All Contributions received or held by the Company under
the Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such Contributions.
16. Reports. Individual sub accounts will be maintained for each
participant in the Plan. Statements of account will be given to
participating Employees on a quarterly basis, which statements will set
forth the amounts of Contributions, the per share purchase price, the
number of shares purchased (and the remaining cash balance, if any).
17. Adjustments Upon Changes In Capitalization. Subject to any required
action by the stockholders of the Company, the number of shares of
Common Stock covered by each option under the Plan which has not yet
been exercised and the number of shares of Common Stock which have been
authorized for issuance under the Plan but have not yet been placed
under option (collectively, the "Reserves"), as well as the price per
share of Common Stock covered by each option under the Plan which has
not yet been exercised, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock
resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other
increase or decrease in the number of
6
<PAGE> 7
shares of Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible
securities of the Company shall not been deemed to have been "effected
without receipt of consideration". Such adjustment shall be made by the
Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of
Common Stock subject to an option.
In the event of the proposed dissolution or liquidation of the Company,
the Offering Period will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the
Board. In the event of a proposed sale of all or substantially of the
assets of the Company, or the merger of the Company with or into
another corporation, each option under the Plan shall be assumed or an
equivalent option shall be substituted by such successor corporation or
a parent or subsidiary of such successor corporation, unless the Board
determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, to shorten the Offering Period then in
progress by setting a new Exercise Date (the "New Exercise Date"). If
the Board shortens the Offering Period then in progress in lieu of
assumption or substitution in the event of a merger or sale of assets,
the Board shall notify each participant in writing, at least ten (10)
days prior to the New Exercise Date, that the Exercise Date for his or
her option has been changed to the New Exercise Date and that his or
her option will be exercised automatically on the New Exercise Date,
unless prior to such date he or she has withdrawn from the Offering
Period as provided in paragraph 10. For purposes of this paragraph, any
option granted under the Plan shall be deemed to be assumed if,
following the sale of assets or merger, the option confers the right to
purchase, for each share of option stock subject to the option
immediately prior to the sale of assets or merger, the consideration
(whether stock, cash or other securities or property) received in the
sale of assets or merger by holders of Common Stock for each share of
Common Stock held on the effective date of the transaction (and if such
holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding
shares of Common Stock); provided, however, that if such consideration
received in the sale of assets or merger was not solely common stock of
the successor corporation or its parent (as defined in Section 424(e)
of the Code), the Board may, with the consent of the successor
corporation and the participant, provide for the consideration to be
received upon exercise of the option to be solely common stock of the
successor corporation or its parent equal in fair market value to the
per share consideration received by holders of Common Stock in the sale
of assets or merger.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as
the price per share of Common Stock covered by each outstanding option,
in the event that the Company effects one or more reorganizations,
recapitalizations, right offerings or other increases or reductions of
shares of its outstanding Common Stock, and in the event of the Company
being consolidated with or merged into any other corporation.
7
<PAGE> 8
18. Amendment or Termination. The Board of Directors of the Company may at
any time terminate or amend the Plan. Except as provided in paragraph
18, no such termination may affect options previously granted, nor may
an amendment make any change in any option theretofore granted which
adversely affects the rights of any participant. In addition, to the
extent necessary to comply with Rule 16b-3 under the Exchange Act, or
under Section 423 of the Code (or any successor rule or provision or
any applicable law or regulation), the Company shall obtain stockholder
approval in such a manner and to such a degree as so required.
19. Notices. All notices or other communications by a participant to the
Company under or in connection with the Plan shall be deemed to have
been duly given when received in the form specified by the Company at
the location, or by the person, designated by the Company for the
receipt thereof.
20. Conditions Upon Issuance of Shares. Shares shall not be issued with
respect to an option unless the exercise of such option and the
issuance and delivery of such shares pursuant thereto shall comply with
all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended, the
Exchange Act, the rules and regulations promulgated thereunder, the
requirements of any stock exchange upon which the shares may then be
listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an option, the Company may require
the person exercising such option to represent and warrant at the time
of any such exercise that the shares are being purchased only for
investment and without any present intention to sell or distribute such
shares if, in the opinion of counsel for the Company, such a
representation is required by any of the aforementioned applicable
provisions of law.
21. Term of Plan. The Plan became effective upon its adoption by the Board
of Directors on January 1, 1999 and shall continue in effect for a term
of twenty (20) years unless sooner terminated under paragraph 18.
22. Additional Restrictions of Rule 16b-3. The terms and conditions of
options granted hereunder to, and the purchase of shares by, persons
subject to Section 16 of the Exchange Act shall comply with the
applicable provisions of Rule 16b-3. This Plan shall be deemed to
contain, and such options shall contain, and the shares issued upon
exercise thereof shall be subject to, such additional conditions and
restrictions as may be required by Rule 16b-3 to quality for the
maximum exemption from Section 16 of the Exchange Act with respect to
Plan transactions.
23. Severability. With respect to persons subject to Section 16 of the
Exchange Act, transactions under this Plan are intended to comply with
all applicable conditions of Rule 16b-3 or its successors under the
Exchange Act. To this extent any provision of the Plan or any action by
the administrator of the Plan fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by
the administrator of the Plan.
8
<PAGE> 1
Exhibit 5.2
BUCHANAN INGERSOLL PROFESSIONAL CORPORATION
Eleven Penn Center, 14th Floor
1835 Market Street
Philadelphia, PA 19103
May 12, 1999
Osage Systems Group, Inc.
1661 East Camelback Road, Suite 245
Phoenix, AZ 85016
Gentlemen:
We have acted as counsel to Osage Systems Group, Inc., a Delaware
corporation (the "Company"), in connection with the filing by the Company of a
registration statement on Form S-8 (the "Registration Statement"), under the
Securities Act of 1933, as amended, relating to the registration of up to an
aggregate 8,358,900 shares of the Company's common stock, par value $0.01 per
share (the "Common Stock"), consisting of up to 5,000,000 shares of the Common
Stock pursuant to the terms of the Osage Systems Group, Inc. 1993 Amended and
Restated Stock Option Plan (as such plan may be amended, the "Option Plan"), up
to 1,000,000 shares of the Common Stock pursuant to the Company's 1999 Employee
Stock Purchase Plan (the "ESPP") and 2,358,900 shares of the Common Stock
issuable upon the exercise of options not granted under the Option Plan or the
ESPP (the "Options").
In connection with such proposed issuance, we have examined the Option
Plan, the ESPP, the Options, the Certificate of Incorporation of the Company, as
amended to date, the Amended and Restated By-laws of the Company (as amended to
date), the relevant corporate proceedings of the Company, the Registration
Statement, and such other documents, records, certificates of public officials,
statutes, decisions, and such questions of law as we have deemed necessary or
appropriate for purposes of this opinion. In the examination of such documents,
we have assumed the genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity to those original
documents of all documents submitted to us as certified or photostatic copies.
Please be advised that at the Company's next Annual Meeting of
Stockholders scheduled for June 9, 1999, the stockholders will be asked to
approve (1) an amendment to the Option Plan to increase the number of shares of
common stock available for issuance pursuant to grants thereunder from
2,000,000 to 5,000,000, and (2) the adoption of the ESPP.
Based on the foregoing, we are of the opinion that upon approval by the
stockholders of the Company of (1) an amendment to the Option Plan to increase
the number of shares of common stock issuable thereunder from 2,000,000 to
5,000,000 and (2) the adoption of the ESPP on or before January 1, 2000, the
issuance of the Common Stock will be duly and validly authorized by the
necessary corporate action of the directors and stockholders of the Company and
such shares of the Common Stock will, upon exercise of options and payment
therefor in accordance with the respective terms of the Option Plan, the ESPP
and the Options, including, without limitation, payment of the applicable
exercise price with respect to the options granted thereunder, be validly
issued, fully paid and non-assessable.
<PAGE> 2
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
BUCHANAN INGERSOLL PROFESSIONAL CORPORATION
By: /s/ Stephen M. Cohen
Stephen M. Cohen
2
<PAGE> 1
Exhibit 23.6
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Osage Systems Group, Inc. on Form S-8 of our report dated March 10,
1999 relating to the consolidated financial statements of Osage Systems Group,
Inc. as of December 31, 1998 and 1997 and for the years then ended, appearing in
the Annual Report on Form 10-K of Osage Systems Group, Inc. for the year ended
December 31, 1998.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
May 10, 1999
