<PAGE>
As filed with the Securities and Exchange Commission on April 20, 2000
Registration No. 333-____________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
QRS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 68-0102251
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1400 MARINA WAY SOUTH
RICHMOND, CALIFORNIA 94804
(Address of principal executive offices) (Zip Code)
-------------
ROCKPORT TRADE SYSTEMS, INC. STOCK OPTION PLAN
(AS ASSUMED BY QRS CORPORATION)
(Full title of the Plans)
-------------
JOHN S. SIMON
CHIEF EXECUTIVE OFFICER
QRS CORPORATION
1400 MARINA WAY SOUTH
RICHMOND, CALIFORNIA 94804
(Name and address of agent for service)
(510) 215-5000
(Telephone number, including area code, of agent for service)
-------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================== ===================== ======================== ========================== ==================
Proposed Maximum Proposed Maximum
Amount to be Offering Price per Share Aggregate Offering Price Amount of
Title of Securities to be Registered Registered(1) (2) (2) Registration Fee
- -------------------------------------- -------------------- ------------------------ -------------------------- ------------------
<S> <C> <C> <C> <C>
ROCKPORT TRADE SYSTEMS, INC. STOCK
OPTION PLAN (AS ASSUMED BY QRS
CORPORATION)
Common Stock, $0.001 par value 79,790 shares $8.02 $639,915.80 $169.00
Aggregate Registration Fee: $169.00
</TABLE>
(1) This Registration Statement shall also cover any additional shares of the
Registrant's Common Stock which become issuable under the RockPort Trade
Systems, Inc. Stock Option Plan (assumed by Registrant) by reason of any
stock dividend, stock split, recapitalization or other similar transaction
effected without the Registrant's receipt of consideration which results in
an increase in the number of the outstanding shares of Registrant's Common
Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the weighted average
exercise price per share.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
QRS Corporation (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999 filed with the Commission on March 29, 2000;
(b) The Registrant's Current Reports on Form 8-K filed with the
Commission on (i) January 28, 2000, and amended on March 27,
2000, and (ii) March 24, 2000, respectively; and
(c) The Registrant's Registration Statement No. 000-21958 on Form
8-A, filed with the SEC on June 18, 1993 pursuant to Section
12 of the Securities Exchange Act of 1934, as amended (the
"1934 Act") in which the terms, rights and provisions
applicable to the Registrant's Common Stock are described.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
de-registers all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in
any subsequently filed document which also is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Law") empowers a Delaware corporation to indemnify
any person who is, or is threatened to be made, a party to any threatened,
pending or completed legal action, suit or proceedings, whether civil,
criminal, administrative or investigative (other than action by or in the
right of such corporation), by reason of the fact that such person was an
officer or director of such corporation, or is or was serving at the request
of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with such action, suit
or proceeding, provided that such officer or director acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the
corporation's best interests, and, for criminal proceedings, had no
reasonable cause to believe his or her conduct was illegal. A Delaware
corporation may
II-1
<PAGE>
indemnify officers and directors in an action by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to
be liable to the corporation in the performance of his duty. Where an officer
or director is successful on the merits or otherwise in the defense of any
action referred to above, the corporation must indemnify him against the
expenses which such officer or director actually and reasonably incurred.
In accordance with the Delaware Law, the Registrant's
certificate of incorporation limits the liability of its directors to the
maximum extent permitted by law. Under Delaware law, the Registrant's
directors will not be personally liable for monetary damages, except for
liability relating to (i) any breach of the director's duty of loyalty to the
Registrant or its stockholders, (ii) any acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
any unlawful payment of dividends or unlawful stock purchases or redemptions,
as provided in Section 174 of the Delaware General Corporation Law, or (iv)
any transaction from which a director derived an improper personal benefit.
The Registrant's Bylaws provide that the Registrant shall
indemnify its directors and may indemnify its other officers and employees
and other agents to the fullest extent permitted by law. The Registrant
believes that indemnification under its Bylaws covers at least negligence and
gross negligence on the part of the indemnified parties. The Registrant's
Bylaws also permit it to obtain insurance on behalf of any officer, director,
employee of other agent for any liability arising out of his or her actions
in such capacity, regardless of whether the Bylaws have the power to
indemnify him or her under the General Corporation Law of Delaware. The
Registrant currently has obtained such insurance on behalf of its directors
and officers.
The Registrant has entered into agreements to indemnify its
directors and executive officers, in addition to the indemnification to which
they are entitled under the Registrant's Bylaws. These agreements, among
other things, indemnify the Registrant's directors and executive officers for
certain expenses (including attorneys' fees), judgments, fines and settlement
amounts incurred by any such person in any action or proceeding, including
any action by or in the right of the Registrant arising out of such person's
services as a director or executive officer of the Registrant, any subsidiary
of the Registrant or any other company or enterprise to which the person
provides services at the request of the Registrant.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER EXHIBIT
-------------- -------
<S> <C>
4 Instruments Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 000-21958
on Form 8-A, as amended, together with the exhibits
thereto, which is incorporated herein by reference
pursuant to Item 3(c) of this Registration Statement. .
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Goldstein Golub Kessler LLP.
23.3 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 RockPort Trade Systems, Inc. Stock Option Plan.
99.2 RockPort Trade Systems, Inc. Form of Non-Qualified Stock
Option Agreement
99.3 RockPort Trade Systems, Inc. Form of Non-Qualified Stock
Option Agreement
99.4 Form of Assumption Agreement.
</TABLE>
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<PAGE>
Item 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes: (1) to
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the 1933 Act, as amended (the
"1933 Act"), (ii) to reflect in the prospectus any facts or events arising
after the effective date of this 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 this
Registration Statement and (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 clauses (1)(i) and (1)(ii)
shall not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the 1934
Act that are incorporated by reference into this Registration Statement; (2)
that for the purpose of determining any liability under the 1933 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; and (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 RockPort Trade Systems, Inc. Stock Option Plan (as assumed
by Registrant).
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into 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 1933 Act may be permitted to directors, officers or controlling persons
of the Registrant pursuant to the indemnification provisions summarized in
Item 6 or otherwise, the Registrant has been advised that, in the opinion of
the Commission, such indemnification is against public policy as expressed in
the 1933 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the 1933 Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, 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 Richmond, State of
California on this 19th day of April, 2000.
QRS CORPORATION
By: /s/ JOHN S. SIMON
----------------------------------
John S. Simon
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of QRS
Corporation, a Delaware corporation, do hereby constitute and appoint John S.
Simon, Chief Executive Officer and Shawn M. O'Connor, President, Chief
Operating Officer and Interim Chief Financial Officer and each of them, the
lawful attorneys-in-fact and agents with full power and authority to do any
and all acts and things and to execute any and all instruments which said
attorneys and agents, and any one of them, determine may be necessary or
advisable or required to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in connection with
this Registration Statement. Without limiting the generality of the foregoing
power and authority, the powers granted include the power and authority to
sign the names of the undersigned officers and directors in the capacities
indicated below to this Registration Statement, to any and all amendments,
both pre-effective and post-effective, and supplements to this Registration
Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms that all
said attorneys and agents, or any one of them, shall do or cause to be done
by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed
this Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------ ----------------------------------------------- ----------------
<S> <C> <C>
/s/ JOHN S. SIMON Chief Executive Officer and Director (Principal April 19, 2000
- ------------------------------------ Executive Officer)
John S. Simon
President, Chief Operating Officer and Interim April 19, 2000
/s/ SHAWN M. O'CONNOR Chief Financial Officer (Principal Financial
- ---------------------------------------- and Accounting Officer)
Shawn M. O'Connor
II-4
<PAGE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------ ----------------------------------------------- ----------------
<S> <C> <C>
/s/ PETER R. JOHNSON
- ------------------------------------ Chairman of the Board of Directors April 19, 2000
Peter R. Johnson
/s/ TANIA AMOCHAEV
- ---------------------------------------- Director April 19, 2000
Tania Amochaev
/s/ STEVEN D. BROOKS
- ---------------------------------------- Director April 19, 2000
Steven D. Brooks
/s/ DAVID A. COLE
- ---------------------------------------- Director April 19, 2000
David A. Cole
/s/ JOHN P. DOUGALL
- ---------------------------------------- Director April 19, 2000
John P. Dougall
- ---------------------------------------- Director
Philip Schlein
/s/ GAREN K. STAGLIN
- ---------------------------------------- Director April 19, 2000
Garen K. Staglin
/s/ GARTH SALONER
- ---------------------------------------- Director April 19, 2000
Garth Saloner
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER EXHIBIT
-------------- -------
<S> <C>
4 Instruments Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 000-21958
on Form 8-A, as amended, together with the exhibits
thereto, which is incorporated herein by reference
pursuant to Item 3(c) of this Registration Statement. .
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Goldstein Golub Kessler LLP.
23.3 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 RockPort Trade Systems, Inc. Stock Option Plan.
99.2 RockPort Trade Systems, Inc. Form of Non-Qualified Stock
Option Agreement
99.3 RockPort Trade Systems, Inc. Form of Non-Qualified Stock
Option Agreement
99.4 Form of Assumption Agreement.
</TABLE>
<PAGE>
EXHIBIT 5
OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON LLP
April 18, 2000
QRS Corporation
1400 Marina Way South
Richmond, California 94804
Re: QRS Corporation - Registration Statement for
Offering of an Aggregate of 79,790 Shares of Common
Stock
Dear Ladies and Gentlemen:
We have acted as counsel to QRS Corporation., a Delaware
corporation (the "Company"), in connection with the registration on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended,
of an aggregate of 79,790 shares of the Company's common stock (the "Shares")
issuable pursuant to outstanding options under the RockPort Trade Systems,
Inc. Stock Option Plan (the "Plan") as assumed by the Company in connection
with the Company's acquisition of RockPort Trade Systems, Inc..
This opinion is being furnished in accordance with the
requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the
corporate proceedings taken by the Company in connection with the assumption
of the RockPort Trade Systems, Inc. Stock Option Plan and the options
outstanding under such plan. Based on such review, we are of the opinion
that, if, as and when the Shares have been issued and sold (and the
consideration therefor received) pursuant to the provisions of option
agreements duly authorized under the Plan and in accordance with the
Registration Statement, such Shares will be duly authorized, legally issued,
fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit
5 to the Registration Statement.
This opinion letter is rendered as of the date first
written above and we disclaim any obligation to advise you of facts,
circumstances, events or developments which hereafter may be brought to our
attention and which may alter, affect or modify the opinion expressed herein.
Our opinion is expressly limited to the matters set forth above and we render
no opinion, whether by implication or otherwise, as to any other matters
relating to the Company, the Plan or the Shares.
Very truly yours,
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of QRS Corporation on Form S-8 of our report dated February 4, 2000 (March
20, 2000 as to Note 17), appearing in the Annual Report on Form 10-K of QRS
Corporation for the year ended December 31, 1999.
DELOITTE & TOUCHE LLP
San Jose, California
April 20, 2000
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of QRS Corporation on Form S-8 of our report dated February 23, 2000, on the
financial statements of Image Info Inc., as of and for the years ended
December 31, 1999 and 1998, included in QRS Corporation's Current Report on
Form 8-K/A dated March 27, 2000.
GOLDSTEIN GOLUB KESSLER LLP
April 20, 2000
New York, New York
<PAGE>
Exhibit 99.1
AS ADOPTED: 07/22/96
ROCKPORT TRADE SYSTEMS , INC.
STOCK OPTION PLAN
1. PURPOSE OF THE PLAN.
This stock option plan (the "Plan") is intended to encourage ownership
of the stock of ROCKPORT TRADE SYSTEMS, INC., a Massachusetts corporation (the
"Company"), by employees of the Company and its subsidiaries, to induce
qualified personnel to enter and remain in the employ of the Company or its
subsidiaries and otherwise to provide additional incentive for optionees to
promote the success of its business.
2. STOCK SUBJECT TO THE PLAN.
(a) The total number of shares of the authorized but unissued or
Treasury shares of the common stock, $0.01 par value, of the Company ("Common
Stock") for which options may be granted under the Plan shall not exceed ten
thousand (10,000) Shares, subject to adjustment as provided in Section 12
hereof.
(b) If an option granted hereunder shall expire or terminate for any
reason without having vested fully or having been exercised in full, the
unvested and/or unpurchased shares subject thereto shall again be available for
subsequent option grants under the Plan.
(c) Stock issuable upon exercise of an option granted under the Plan
may be subject to such restrictions on transfer, repurchase rights or other
restrictions as shall be determined by the Board of Directors of the Company
(the "Board of Directors" or the "Board").
3. ADMINISTRATION OF THE PLAN. (a) The Plan shall be administered by
the Board of Directors. A majority of the members of the Board of Directors
shall constitute a quorum, and any action may be taken by a majority of those
present and voting at any meeting. The decision
<PAGE>
of the Board of Directors as to all questions of interpretation and
application of the Plan shall be final, binding and conclusive on all
persons. The selection of persons for participation in the Plan and all
decisions concerning the timing, pricing and amount of any grant or award
under the Plan shall be made solely by the Board of Directors. The Board
shall have authority, subject to the express provisions of the Plan, to
construe the respective option agreements and the Plan, to prescribe, amend
and rescind rules and regulations relating to the Plan, to determine the
terms and provisions of the respective option agreements, which may but need
not be identical, and to make all other determinations in the judgment of the
Board necessary or desirable for the administration of the Plan. The Board
may correct any defect or supply any omission or reconcile any inconsistency
in the Plan or in any option agreement in the manner and to the extent it
shall deem expedient to carry the Plan into effect and shall be the sole and
final judge of such expediency. No director shall be liable for any action or
determination made in good faith.
(b) The Board of Directors may, in its discretion, delegate its powers,
duties and responsibilities to a committee (the "Committee") consisting of two
or more directors. The selection of persons for participation in the Plan and
all decisions concerning the timing, pricing and amount of any grant or award
under the Plan shall be made solely by the Committee, if so appointed. The Board
may at any time and from time to time appoint a member or members of the
Committee in substitution for or in addition to the member or members then in
office and may fill vacancies on the Committee however caused. The Committee
shall choose one of its members as Chairman and shall hold meetings at such
times and places as it shall deem advisable. A majority of the members of the
Committee shall constitute a quorum and any action may be taken by a majority of
those present and voting at any meeting. Any action may also be taken without
the necessity of a meeting by a written instrument signed by a majority of
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<PAGE>
the Committee. The decision of the Committee as to all questions of
interpretation and application of the Plan shall be final, binding and
conclusive on all persons. The Committee shall have the authority to adopt,
amend and rescind such rules and regulations as, in its opinion, may be
advisable in the administration of the Plan. The Committee may correct any
defect or supply any omission or reconcile any inconsistency in the Plan or
in any option agreement granted hereunder in the manner and to the extent it
shall deem expedient to carry the Plan into effect and shall be the sole and
final judge of such expediency. No Committee member shall be liable for any
action or determination made in good faith. If a committee is so appointed,
all references to the Board of Directors herein shall mean and relate to such
committee, unless the context otherwise requires.
(c) With respect to the participation of any person who is, or at any
time within the preceding six months was, an officer or 10% shareholder of the
Company within the meaning of Section 16(b) of the Securities and Exchange Act
of 1934 (the "1934 Act") in the Plan, his or her selection to participate in the
Plan and all decisions concerning the timing, pricing and amount of any grant or
award under the Plan to such person shall be made solely by the Committee, as
defined in Section 3(a) above. The provisions of this Section 3(c) shall not
apply with respect to any option granted prior to the date of the first
registration of an equity security of the Company under Section 12 of the 1934
Act.
4. TYPE OF OPTIONS.
Options granted pursuant to the Plan shall be authorized by action of
the Board of Directors and may be designated as either incentive stock options
meeting the requirements of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), or non-qualified options which are not intended to meet
the requirements of said Section 422, the designation to
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<PAGE>
be in the sole discretion of the Board of Directors. The Plan shall be
administered by the Board of Directors in such manner as to permit options to
qualify as incentive stock options under the Code.
5. ELIGIBILITY.
(a) Options shall be granted only to key employees of the Company and
its subsidiaries. "Subsidiary" or "subsidiaries" shall be as defined in Section
424 of the Code and the Treasury Regulations promulgated thereunder (the
"Regulations").
(b) Directors of the Company shall not be eligible to be granted an
option pursuant to the Plan.
(c) The Committee shall, from time to time, at its sole discretion,
select from such eligible individuals, those to whom options shall be granted
and shall determine the number of shares to be subject to each option. In
determining the eligibility of an individual to be granted an option, as well as
in determining the number of shares to be granted to any individual, the Board
of Directors in its sole discretion shall take into account the position and
responsibilities of the individual being considered, the nature and value to the
Company or its subsidiaries of his or her service and accomplishments, his or
her present and potential contribution to the success of the Company or its
subsidiaries, and such other factors as the Board of Directors may deem
relevant.
(d) No option designated as an incentive stock option shall be granted
to any employee of the Company or any subsidiary if such employee owns,
immediately prior to the grant of an option, stock representing more than 10% of
the voting power or more than 10% of the value of all classes of stock of the
Company or a parent or a subsidiary, unless the purchase price for the stock
under such option shall be at least 110% of its fair market value at the time
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<PAGE>
such option is granted and the option, by its terms, shall not be exercisable
more than five years from the date it is granted. In determining the stock
ownership under this paragraph, the provisions of Section 424(d) of the Code
shall be controlling. In determining the fair market value under this paragraph,
the provisions of Section 7 hereof shall apply.
(e) The maximum number of shares of the Company's Common Stock with
respect to which an incentive stock option may be granted to any employee in any
one taxable year of the Company shall be that number of shares having a fair
market value on the date of grant equal to $100,000.
6. OPTION AGREEMENT.
Each option shall be evidenced by an option agreement (the "Agreement")
duly executed on behalf of the Company and by the optionee to whom such option
is granted, which Agreement shall comply with and be subject to the terms and
conditions of the Plan. The Agreement may contain such other terms, provisions
and conditions which are not inconsistent with the Plan as may be determined by
the Board of Directors, provided that options designated as incentive stock
options shall meet all of the conditions for incentive stock options as defined
in Section 422 of the Code. The date of grant of an option shall be as
determined by the Board of Directors. More than one option may be granted to an
individual.
7. OPTION PRICE.
The option price or prices of shares of the Company's Common Stock for
options designated as non-qualified stock options shall be as determined by the
Board of Directors The option price or prices of shares of the Company's Common
Stock for incentive stock options shall be the fair market value of such Common
Stock at the time the option is granted as determined by the Board of Directors
in accordance with the Regulations promulgated under
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<PAGE>
Section 422 of the Code. If such shares are then listed on any national
securities exchange, the fair market value shall be the mean between the high
and low sales prices, if any, on the largest such exchange on the business
day immediately preceding the date of the grant of the option or, if none,
shall be determined by taking a weighted average of the means between the
highest and lowest sales prices on the nearest date before and the nearest
date after the date of grant in accordance with Treasury Regulations Section
25.2512-2. If the shares are not then listed on any such exchange, the fair
market value of such shares shall be the mean between the high and low sales
prices, if any, as reported in the National Association of Securities Dealers
Automated Quotation National Market ("NASDAQ/NM") for the business day
immediately preceding the date of the grant of the option, or, if none, shall
be determined by taking a weighted average of the means between the highest
and lowest sales on the nearest date before and the nearest date after the
date of grant in accordance with Treasury Regulations Section 25.2512-2. If
the shares are not then either listed on any such exchange or quoted in
NASDAQ/NM, the fair market value shall be the mean between the average of the
"Bid" and the average of the "Ask" prices, if any, as reported in the
National Daily Quotation Service for the business day immediately preceding
the date of the grant of the option, or, if none, shall be determined by
taking a weighted average of the means between the highest and lowest sales
prices on the nearest date before and the nearest date after the date of
grant in accordance with Treasury Regulations Section 25.2512-2. If the fair
market value cannot be determined under the preceding three sentences, it
shall be determined in good faith by the Board of Directors.
8. MANNER OF PAYMENT; MANNER OF EXERCISE.
(a) Options granted under the Plan may provide for the payment of the
exercise price, as determined by the Board of Directors, by delivery of (i) cash
or a check payable to the order
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<PAGE>
of the Company in an amount equal to the exercise price of such options, (ii)
shares of Common Stock of the Company owned by the optionee having a fair
market value equal in amount to the exercise price of the options being
exercised, or (iii) any combination of (i) and (ii), provided, however, that
payment of the exercise price by delivery of shares of Common Stock of the
Company owned by such optionee may be made only if such payment does not
result in a charge to earnings for financial accounting purposes as
determined by the Board of Directors, or (iv) payment may also be made by
delivery of a properly executed exercise notice to the Company, together with
a copy of irrevocable instruments to a broker to deliver promptly to the
Company the amount of sale or loan proceeds to pay the exercise price. The
fair market value of any shares of the Company's Common Stock which may be
delivered upon exercise of an option shall be determined by the Board of
Directors in accordance with Section 7 hereof. To facilitate clause (iv)
above, the Company may enter into agreements for coordinated procedures with
one or more brokerage firms. The date of exercise shall be the date of
delivery of such exercise notice or payment.
(b) To the extent that the right to purchase shares under an option
has accrued and is in effect, options may be exercised in full at one time or
in part from time to time, by giving written notice, signed by the person or
persons exercising the option, to the Company, stating the number of shares
with respect to which the option is being exercised, accompanied by payment
in full for such shares as provided in subparagraph (a) above. Upon such
exercise, delivery of a certificate for paid-up non-assessable shares shall
be made at the principal office of the Company to the person or persons
exercising the option at such time, during ordinary business hours, after
three (3) but not more than ten (10) days from the date of receipt of the
notice by the Company, as shall be designated in such notice, or at such
time, place and manner as may be agreed upon
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<PAGE>
by the Company and the person or persons exercising the option. Upon exercise
of the option and payment as provided above, the optionee shall become a
shareholder of the Company as to the Shares acquired upon such exercise.
9. EXERCISE OF OPTIONS.
(a) Except as otherwise determined from time to time by the Board of
Directors, options granted under the Plan shall, subject to Section 10(b) and
Section 12 hereof, not be exercisable during the first three (3) years after the
date of grant. Thereafter, options shall be exercisable in full.
(b) Notwithstanding the provisions of subsection (a), the Board of
Directors may in its discretion (i) specifically provide for another time or
times of exercise or (ii) accelerate the exerciseability of any option subject
to such terms and conditions as the Board of Directors deems necessary and
appropriate.
10. TERM OF OPTIONS; EXERCISABILITY.
(a) TERM.
(1) Each option shall expire not more than ten (10) years from
the date of the granting thereof, but shall be subject to earlier termination as
herein provided.
(2) Except as otherwise provided in this Section 10, an option
granted to any employee optionee who ceases to be an employee of the Company or
one of its subsidiaries shall terminate on the date such optionee ceases to be
an employee of the Company or one of its subsidiaries, or on the date on which
the option expires by its terms, whichever occurs first.
(3) If such termination of employment is because the
optionee has become permanently disabled (within the meaning of Section
22(e)(3) of the Code), such option shall
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terminate on the last day of the twelve month from the date such optionee
ceases to be an employee, or on the date on which the option expires by its
terms, whichever occurs first.
(4) In the event of the death of any optionee, any option
granted to such optionee shall terminate on the last day of the twelfth month
from the date of death, or on the date on which the option expires by its terms,
whichever occurs first.
(5) Notwithstanding subparagraphs (2), (3) and (4) above, the
Board shall have the authority to extend the expiration date of any outstanding
option in circumstances in which it deems such action to be appropriate,
provided that no such extension shall extend the term of an option beyond the
date on which the option would have expired if no termination of the optionee's
employment had occurred.
(b) EXERCISABILITY.
An option granted to an employee optionee who ceases to be an
employee of the Company or one of its subsidiaries shall be exercisable only if
the right to purchase shares under such option has accrued and is in effect on
the date such optionee ceases to be an employee of the Company or one of its
subsidiaries.
11. OPTIONS NOT TRANSFERABLE.
The right of any optionee to exercise any option granted to him or her
shall not be assignable or transferable by such optionee otherwise than by will
or the laws of descent and distribution and any such option shall be exercisable
during the lifetime of such optionee only by him. Any option granted under the
Plan shall be null and void and without effect upon the bankruptcy of the
optionee to whom the option is granted, or upon any attempted assignment or
transfer, except as herein provided, including without limitation any purported
assignment,
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<PAGE>
whether voluntary or by operation of law, pledge, hypothecation or other
disposition, attachment, divorce, trustee process or similar process, whether
legal or equitable, upon such option.
12. RECAPITALIZATIONS, REORGANIZATIONS AND THE LIKE.
(a) In the event that the outstanding shares of the Common Stock of the
Company are changed into or exchanged for a different number or kind of shares
or other securities of the Company or of another corporation by reason of any
reorganization, merger, consolidation, recapitalization, reclassification, stock
split-up, combination of shares, or dividends payable in capital stock,
appropriate adjustment shall be made in the number and kind of shares as to
which options may be granted under the Plan and as to which outstanding options
or portions thereof then unexercised shall be exercisable, to the end that the
proportionate interest of the optionee shall be maintained as before the
occurrence of such event; such adjustment in outstanding options shall be made
without change in the total price applicable to the unexercised portion of such
options and with a corresponding adjustment in the option price per share.
(b) In addition, unless otherwise determined by the Board of Directors
in its sole discretion, in the case of any (i) sale or conveyance to another
entity of all or substantially all of the property and assets of the Company,
including, without limitation, by way of merger or consolidation, or (ii) Change
in Control (as hereinafter defined) of the Company, the purchaser(s) of the
Company's assets or stock may, in his, her or its discretion, deliver to the
optionee the same kind of consideration that is delivered to the shareholders of
the Company as a result of such sale, conveyance or Change in Control, or the
Board of Directors may cancel all outstanding options in exchange for
consideration in cash or in kind which consideration in both cases shall be
equal in value to the value of those shares of stock or other securities the
optionee would have received had the option been exercised (to the extent then
exercisable) and no
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<PAGE>
disposition of the shares acquired upon such exercise been made prior to such
sale, conveyance or Change in Control, less the option price therefor. Upon
receipt of such consideration by the optionee, his or her option shall
immediately terminate and be of no further force and effect. The value of the
stock or other securities the optionee would have received if the option had
been exercised shall be determined in good faith by the Board of Directors of
the Company, and in the case of shares of the Common Stock of the Company, in
accordance with the provisions of Section 7 hereof. The Board of Directors
shall also have the power and right to accelerate the exercisability of any
options, notwithstanding any limitations in this Plan or in the Agreement
upon such a sale, conveyance or Change in Control. Upon such acceleration,
any options or portion thereof originally designated as incentive stock
options that no longer qualify as incentive stock options under Section 422
of the Code as a result of such acceleration shall be redesignated as
non-qualified stock options. A "Change in Control" shall be deemed to have
occurred if any person, or any two or more persons acting as a group, and all
affiliates of such person or persons, who prior to such time owned less than
twenty-five percent (25%) of the then outstanding Common Stock of the
Company, shall acquire, whether by purchase, exchange, tender offer, merger,
consolidation or otherwise, such additional shares of the Company's Common
Stock in one or more transactions, or series of transactions, such that
following such transaction or transactions, such person or group and
affiliates beneficially own more than fifty percent (50%) or more of the
Company's Common Stock outstanding.
(c) Upon dissolution or liquidation of the Company, all options granted
under this Plan shall terminate, but each optionee (if at such time in the
employ of or otherwise associated with the Company or any of its subsidiaries)
shall have the right, immediately prior to such dissolution or liquidation, to
exercise his or her option to the extent then exercisable.
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<PAGE>
(d) No fraction of a share shall be purchasable or deliverable upon the
exercise of any option, but in the event any adjustment hereunder of the number
of shares covered by the option shall cause such number to include a fraction of
a share, such fraction shall be adjusted to the nearest smaller whole number of
shares.
13. NO SPECIAL EMPLOYMENT RIGHTS.
Nothing contained in the Plan or in any option granted under the Plan
shall confer upon any option holder any right with respect to the continuation
of his or her employment by the Company (or any subsidiary) or interfere in any
way with the right of the Company (or any subsidiary), subject to the terms of
any separate employment agreement to the contrary, at any time to terminate such
employment or to increase or decrease the compensation of the option holder from
the rate in existence at the time of the grant of an option. Whether an
authorized leave of absence, or absence in military or government service, shall
constitute termination of employment shall be determined by the Board of
Directors at the time.
14. WITHHOLDING.
The Company's obligation to deliver shares upon the exercise of any
option granted under the Plan shall be subject to the option holder's
satisfaction of all applicable Federal, state and local income, excise,
employment and any other tax withholding requirements.
15. RESTRICTIONS ON ISSUE OF SHARES.
(a) Notwithstanding the provisions of Section 8, the Company may delay
the issuance of shares covered by the exercise of an option and the delivery of
a certificate for such shares until one of the following conditions shall be
satisfied:
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<PAGE>
(i) The shares with respect to which such option
has been exercised are at the time of the issue of such shares effectively
registered or qualified under applicable Federal and state securities acts
now in force or as hereafter amended; or
(ii) Counsel for the Company shall have given an opinion,
which opinion shall not be unreasonably conditioned or withheld, that such
shares are exempt from registration and qualification under applicable Federal
and state securities acts now in force or as hereafter amended.
(b) It is intended that all exercises of options shall be effective,
and the Company shall use its best efforts to bring about compliance with the
above conditions within a reasonable time, except that the Company shall be
under no obligation to qualify shares or to cause a registration statement or a
post-effective amendment to any registration statement to be prepared for the
purpose of covering the issue of shares in respect of which any option may be
exercised, except as otherwise agreed to by the Company in writing.
16. PURCHASE FOR INVESTMENT; RIGHTS OF HOLDER ON SUBSEQUENT
REGISTRATION.
Unless the shares to be issued upon exercise of an option granted
under the Plan have been effectively registered under the Securities Act of
1933, as now in force or hereafter amended, the Company shall be under no
obligation to issue any shares covered by any option unless the person who
exercises such option, in whole or in part, shall give a written
representation and undertaking to the Company which is satisfactory in form
and scope to counsel for the Company and upon which, in the opinion of such
counsel, the Company may reasonably rely, that he or she is acquiring the
shares issued pursuant to such exercise of the option for his or her own
account as an investment and not with a view to, or for sale in connection
with, the distribution of any such shares, and that he or she will make no
transfer of
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<PAGE>
the same except in compliance with any rules and regulations in force at the
time of such transfer under the Securities Act of 1933, or any other
applicable law, and that if shares are issued without such registration, a
legend to this effect may be endorsed upon the securities so issued. In the
event that the Company shall, nevertheless, deem it necessary or desirable to
register under the Securities Act of 1933 or other applicable statutes any
shares with respect to which an option shall have been exercised, or to
qualify any such shares for exemption from the Securities Act of 1933 or
other applicable statutes, then the Company may take such action and may
require from each optionee such information in writing for use in any
registration statement, supplementary registration statement, prospectus,
preliminary prospectus or offering circular as is reasonably necessary for
such purpose and may require reasonable indemnity to the Company and its
officers and directors and controlling persons from such holder against all
losses, claims, damages and liabilities arising from such use of the
information so furnished and caused by any untrue statement of any material
fact therein or caused by the omission to state a material fact required to
be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances under which they were made.
17. LOANS.
The Company may not make loans to optionees to permit them to exercise
options. If loans are made, the requirements of all applicable Federal and state
laws and regulations regarding such loans must be met.
18. MODIFICATION OF OUTSTANDING OPTIONS.
The Board of Directors may authorize the amendment of any outstanding
option with the consent of the optionee when and subject to such conditions as
are deemed to be in the best interests of the Company and in accordance with the
purposes of this Plan.
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<PAGE>
19. APPROVAL OF STOCKHOLDERS.
The Plan shall be subject to approval by the vote of stockholders
holding at least a majority of the voting stock of the Company present, or
represented, and entitled to vote at a duly held stockholders' meeting, or by
written consent of the stockholders as provided for under applicable state law,
within twelve (12) months after the adoption of the Plan by the Board of
Directors and shall take effect as of the date of adoption by the Board of
Directors upon such approval. The Board of Directors may grant options under the
Plan prior to such approval, but any such option shall become effective as of
the date of grant only upon such approval and, accordingly, no such option may
be exercisable prior to such approval.
20. TERMINATION AND AMENDMENT.
Unless sooner terminated as herein provided, the Plan shall terminate
ten (10) years from the date upon which the Plan was duly adopted by the Board
of Directors of the Company. The Board of Directors may at any time terminate
the Plan or make such modification or amendment thereof as it deems advisable;
provided, however, that except as provided in this Section 20, the Board of
Directors may not, without the approval of the stockholders of the Company
obtained in the manner stated in Section 19, increase the maximum number of
shares for which options may be granted or change the designation of the class
of persons eligible to receive options under the Plan, or make any other change
in the Plan which requires stockholder approval under applicable law or
regulations, including any approval requirement which is a prerequisite for
exemptive relief under Section 16 of the Securities Exchange Act of 1934. The
Board of Directors may grant options to persons subject to Section 16(b) of the
Securities and Exchange Act of 1934 after an amendment to the Plan by the Board
of Directors requiring stockholder approval under Section 20, but any such
option shall become effective as of the date of grant
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<PAGE>
only upon such approval and, accordingly, no such option may be exercisable
prior to such approval. The Board of Directors may terminate, amend or modify
any outstanding option without the consent of the option holder, provided,
however, that, except as provided in Section 12, without the consent of the
optionee, the Board of Directors shall not change the number of shares
subject to an option, nor the exercise price thereof, nor extend the term of
such option.
21. COMPLIANCE WITH RULE 16b-3.
It is intended that the provisions of the Plan and any option granted
thereunder to a person subject to the reporting requirements of Section 16(a) of
the Act shall comply in all respects with the terms and conditions of Rule 16b-3
under the Securities Exchange Act of 1934 (the "Act"), or any successor
provisions. Any agreement granting options shall contain such provisions as are
necessary or appropriate to assure such compliance. To the extent that any
provision hereof is found not to be in compliance with such Rule, such provision
shall be deemed to be modified so as to be in compliance with such Rule, or if
such modification is not possible, shall be deemed to be null and void, as it
relates to a recipient subject to Section 16(a) of the Act.
22. RESERVATION OF STOCK.
The Company shall at all times during the term of the Plan reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of the Plan and shall pay all fees and expenses necessarily
incurred by the Company in connection therewith.
23. LIMITATION OF RIGHTS IN THE OPTION SHARES.
An optionee shall not be deemed for any purpose to be a stockholder of
the Company with respect to any of the options except to the extent that the
option shall have been exercised
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<PAGE>
with respect thereto and, in addition, a certificate shall have been issued
theretofore and delivered to the optionee.
24. NOTICES.
Any communication or notice required or permitted to be given under the
Plan shall be in writing, and mailed by registered or certified mail or
delivered by hand, if to the Company, to its principal place of business,
Attention: President, and, if to an optionee, to the address as appearing on the
records of the Company.
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<PAGE>
Exhibit 99.2
ROCKPORT TRADE SYSTEMS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT entered into as of the 9th day of February, 2000 by and
between ROCKPORT TRADE SYSTEMS, INC., a Massachusetts corporation (the
"Company") and the undersigned employee of the Company (the "Employee").
RECITALS
1. The Company desires to afford the Employee an opportunity to
purchase shares of its common stock ($.001 par value) ("Shares") to carry out
the purposes of the Rockport Trade Systems , Inc. Stock Option Plan (the
"Plan").
2. Section 5 of the Plan provides that each option is to be evidenced
by an option agreement, setting forth the terms and conditions of the option.
ACCORDINGLY, in consideration of the premises and of the mutual
covenants and agreements contained he or sherein, the Company and the Employee
he or shereby agree as follows:
1. GRANT OF OPTION. The Company he or shereby irrevocably grants to the
Employee a non-qualified stock option (the "Option") to purchase all or any part
of an aggregate of ________( ) Shares on the terms and conditions hereinafter
set forth.
2. PURCHASE PRICE. The purchase price ("Purchase Price") for the Shares
covered by the Option shall be Eighty Cents ($0.80) per Share.
3. TIME AND MANNER OF EXERCISE OF OPTION.
(a) The Option shall become exercisable as to 2.7778% of
the Shares on the 9th day of each month in the period March 2000 through
February 2003.
(b) Notwithstanding the provisions of Subsection (a), the
Option shall become immediately exercisable in full in the event of the
termination of the Employee's employment with the Company with out Reasonable
Cause (as hereinafter defined).following a Change in Control (also as
hereinafter defined).
(c) A "Change in Control" shall have occurred if, by reason of
an acquisition of outstanding shares of the Company's voting stock or an
acquisition of the business and assets of the Company, however such acquisition
is structured, Susan L. Welch and Jacob H. Zakarian cease to hold more than
fifty percent (50%) of the voting power represented by the Company's issued and
outstanding capital stock having voting rights or the voting power of the issued
and outstanding capital stock having voting rights of any entity that succeeds
to the business and assets of the Company.
(d) "Reasonable Cause," shall mean only one or ore of the
following:
(i) the Employee has been convicted of, or pleads
guilty or NOLO CONTENDERE to, a felony;
<PAGE>
(ii) the Employee shall willfully fail to perform
substantially his her material duties to the Company following
written notice from the Company specifying such failure; or
(iii) the Employee shall commit any fraud,
embezzlement or other act of dishonesty against the Company or
any of its stockholders or shall attempt to profit from any
transaction in which he or she has an undisclosed interest
adverse to the Company.
(e) To the extent that the right to exercise the Option has
accrued and is in effect, the Option may be exercised in full at one time or in
part from time to time, by giving written notice, signed by the person or
persons exercising the Option, to the Company, stating the number of Shares with
respect to which the Option is being exercised, accompanied by payment in full
of the Price for such Shares in cash. There shall be no exercise at any one time
as to fewer than One Hundred (100) Shares or all of the remaining Shares then
purchasable by the person or persons exercising the Option, if fewer than One
Hundred (100) Shares. Upon such exercise, delivery of a certificate for paid-up,
non-assessable Shares shall be made at the principal office of the Company to
the person or persons exercising the Option at such time, during ordinary
business hours, after fifteen (15) days but not more than thirty (30) days from
the date of receipt of the notice by the Company, as shall be designated in such
notice, or at such time, place and manner as may be agreed upon by the Company
and the person or persons exercising the Option.
(f) The Company shall at all times during the term of the
Option reserve and keep available such number of shares of its common stock as
will be sufficient to satisfy the requirements of the Option, shall pay all
original issue and transfer taxes with respect to the issue and transfer of
Shares pursuant hereto, and all other fees and expenses necessarily incurred by
the Company in connection therewith. The holder of this Option shall not have
any of the rights of a stockholder of the Company in respect of the Shares until
one or more certificates for such Shares shall be delivered to him or her upon
the due exercise of the Option.
4. TERM OF OPTION.
(a) The Option shall terminate ten (10) years from the date
hereof, but shall be subject to earlier termination as hereinafter provided.
(b) The Option shall terminate on the date on which the
Employee ceases to be a regular salaried employee of the Company ("Termination
Date"), unless termination of employment was because the Employee has died or
become disabled (within the meaning of Section 105(d)(4) of the Internal Revenue
Code of 1954, as amended), in either of which cases the following provisions, as
applicable, shall apply.
(c) In the case of disability, the Option may be exercised, to
the extent exercisable on the Termination Date, at any time within twelve (12)
months after such date, but in any event prior to the expiration of ten (10)
years from the date hereof.
(d) In the event of the death of the Employee, the Option may
be exercised to the extent the Employee was entitled to do so on the date of his
or her death under the provisions of paragraph 3(a), above, by the estate of the
Employee or by any person or persons who acquire the right to exercise the
Option by bequest or inheritance or otherwise by reason of the death of the
Employee. In such circumstances, the Option may be exercised at any time within
twelve (12) months after the date of death of the Employee, but in any event
prior to the expiration of ten (10) years from the date hereof.
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<PAGE>
5. NON-TRANSFERABILITY. The right of the Employee to exercise the
Option shall not be assignable or transferable by the Employee otherwise than by
will or the laws of descent and distribution, and the Option may be exercised
during the lifetime of the Employee only by him. The Option shall be null and
void and without effect upon the bankruptcy of the Employee or upon any
attempted assignment or transfer, except as hereinabove provided, including
without limitation, any purported assignment, whether voluntary or by operation
of law, pledge, hypothecation or other disposition contrary to the provisions
hereof, or levy of execution, attachment, trustee process or similar process,
whether legal or equitable, upon the Option.
6. RESTRICTIONS ON ISSUE OF SHARES.
(a) Notwithstanding the provisions of paragraph 3 hereof, the
Company may delay the issuance of Shares covered by the exercise of the Option
and the delivery of a certificate for such Shares until one of the following
conditions shall be satisfied:
(i) The Shares with respect to which such option
has been exercised are at the time of the
issue of such shares effectively registered
under applicable federal and state
securities acts now in force or he or
hereafter amended; or
(ii) Counsel for the Company shall have given an
opinion, which opinion shall not be
unreasonably conditioned or withheld, that
such Shares are exempt from registration
under applicable federal and state
securities acts, as now in force or
hereafter amended.
(b) In the event that for any reason the Shares to be issued
upon exercise of the Option shall not be effectively registered under the
Securities Act of 1933 (the "1933 Act"), upon any date on which the Option is
exercised in whole or in part, the Company shall be under no further obligation
to issue Shares covered by the Option, unless the person exercising the Option
shall give a written representation to the Company that such person is acquiring
the Shares issued to him or her pursuant to such exercise of the Option for
investment and not with a view to, or for sale in connection with, the
distribution of any such Shares, and that he or she will make no transfer of the
same except in compliance with the 1933 Act and the rules and regulations
promulgated thereunder and then in force, and in such event, the Company may
place an "investment legend", so-called, upon any certificate for the Shares
issued by reason of such exercise.
7. RESTRICTIONS ON TRANSFER. In addition to complying with the
requirements of Section 6, the Company may delay the issuance of Shares covered
by the exercise of Option and the delivery of a Certificate for such Shares
until the person exercising the Option agrees in writing to become a party to
the Agreement Among Stockholders dated as of July 1, 1993, entered into among
the Company and its then shareholders.
8. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event that the
outstanding shares of the common stock of the Company are changed into or
exchanged for a different number or kind of shares or other securities of the
Company or of another corporation by reason of any reorganization, merger,
consolidation, recapitalization, reclassification, stock split-up, combination
of shares or dividend payable in capital stock, appropriate adjustment shall be
made in the number and kind of shares as to which the Option, or any part
thereof then unexercised, shall be exercisable and with a corresponding
adjustment in the Option price per share.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its President thereunto duly authorized, and the Employee has
hereunto set his or her hand and seal, all as of the day and year first above
written.
ROCKPORT TRADE SYSTEMS, INC.
By:
------------------------------
Susan Welch, President
------------------------------
EMPLOYEE
------------------------------
Name
------------------------------
Address
------------------------------
Social Security Number
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<PAGE>
Exhibit 99.3
ROCKPORT TRADE SYSTEMS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT entered into as of the _____ day of __________, 1996 by
and between ROCKPORT TRADE SYSTEMS, INC., a Massachusetts corporation (the
"Company") and the undersigned employee of the Company (the "Employee").
RECITALS
1. The Company desires to afford the Employee an opportunity to
purchase shares of its common stock ($.01 par value) ("Shares") to carry out the
purposes of the Rockport Trade Systems , Inc.
Stock Option Plan (the "Plan").
2. Section 5 of the Plan provides that each option is to be evidenced
by an option agreement, setting forth the terms and conditions of the option.
ACCORDINGLY, in consideration of the premises and of the mutual
covenants and agreements contained herein, the Company and the Employee hereby
agree as follows:
1. GRANT OF OPTION. The Company hereby irrevocably grants to the
Employee an option (the "Option") to purchase all or any part of an aggregate
of ____________ ( ) Shares on the terms and conditions hereinafter set
forth.
2. PURCHASE PRICE. The purchase price ("Purchase Price") for the Shares
covered by the Option shall be _________ Dollars ($ ) per Share.
3. TIME AND MANNER OF EXERCISE OF OPTION.
(a) The Option shall not be exercisable until __________,
but shall be exercisable in full thereafter until terminated. (b) To the
extent that the right to exercise the Option has accrued and is in effect,
the Option may be exercised in full at one time or in part from time to time,
by giving written notice, signed by the person or persons exercising the
Option, to the Company, stating the number of Shares with respect to which
the Option is being exercised, accompanied by payment in full of the Price
for such Shares in cash. There shall be no exercise at any one time as to
fewer than Ten (10)
<PAGE>
Shares or all of the remaining Shares then purchasable by the person or
persons exercising the Option, if fewer than Ten (10) Shares. Upon such
exercise, delivery of a certificate for paid-up, non-assessable Shares shall
be made at the principal office of the Company to the person or persons
exercising the Option at such time, during ordinary business hours, after
fifteen (15) days but not more than thirty (30) days from the date of receipt
of the notice by the Company, as shall be designated in such notice, or at
such time, place and manner as may be agreed upon by the Company and the
person or persons exercising the Option.
(c) The Company shall at all times during the term of the
Option reserve and keep available such number of shares of its common stock as
will be sufficient to satisfy the requirements of the Option, shall pay all
original issue and transfer taxes with respect to the issue and transfer of
Shares pursuant hereto, and all other fees and expenses necessarily incurred by
the Company in connection therewith. The holder of this Option shall not have
any of the rights of a stockholder of the Company in respect of the Shares until
one or more certificates for such Shares shall be delivered to him upon the due
exercise of the Option.
4. TERM OF OPTION.
(a) The Option shall terminate ten (10) years from the date
hereof, but shall be subject to earlier termination as hereinafter provided.
(b) The Option shall terminate on the date on which the
Employee ceases to be a regular salaried employee of the Company ("Termination
Date"), unless termination of employment was because the Employee has died or
become disabled (within the meaning of Section 105(d)(4) of the Internal Revenue
Code of 1954, as amended), in either of which cases the following provisions, as
applicable, shall apply.
(c) In the case of disability, the Option may be exercised, to
the extent exercisable on the Termination Date, at any time within twelve (12)
months after such date, but in any event prior to the expiration of ten (10)
years from the date hereof.
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(d) In the event of the death of the Employee, the Option may
be exercised to the extent the Employee was entitled to do so on the date of his
death under the provisions of paragraph 3(a), above, by the estate of the
Employee or by any person or persons who acquire the right to exercise the
Option by bequest or inheritance or otherwise by reason of the death of the
Employee. In such circumstances, the Option may be exercised at any time within
twelve (12) months after the date of death of the Employee, but in any event
prior to the expiration of ten (10) years from the date hereof.
5. NON-TRANSFERABILITY. The right of the Employee to exercise the
Option shall not be assignable or transferable by the Employee otherwise than by
will or the laws of descent and distribution, and the Option may be exercised
during the lifetime of the Employee only by him. The Option shall be null and
void and without effect upon the bankruptcy of the Employee or upon any
attempted assignment or transfer, except as hereinabove provided, including
without limitation, any purported assignment, whether voluntary or by operation
of law, pledge, hypothecation or other disposition contrary to the provisions
hereof, or levy of execution, attachment, trustee process or similar process,
whether legal or equitable, upon the Option.
6. RESTRICTIONS ON ISSUE OF SHARES.
(a) Notwithstanding the provisions of paragraph 3 hereof, the
Company may delay the issuance of Shares covered by the exercise of the Option
and the delivery of a certificate for such Shares until one of the following
conditions shall be satisfied:
(i) The Shares with respect to which such option
has been exercised are at the time of the
issue of such shares effectively registered
under applicable federal and state
securities acts now in force or hereafter
amended; or
(ii) Counsel for the Company shall have given an
opinion, which opinion shall not be
unreasonably conditioned or withheld, that
such Shares are exempt from registration
under applicable federal and state
securities acts, as now in force or
hereafter amended.
(b) In the event that for any reason the Shares to be issued
upon exercise of the Option shall not be effectively registered under the
Securities Act of 1933 (the "1933 Act"), upon any date on which the Option is
exercised in whole or in part, the Company shall be under no further
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<PAGE>
obligation to issue Shares covered by the Option, unless the person
exercising the Option shall give a written representation to the Company,
substantially in the form attached hereto as EXHIBIT 1, that such person is
acquiring the Shares issued to him pursuant to such exercise of the Option
for investment and not with a view to, or for sale in connection with, the
distribution of any such Shares, and that he will make no transfer of the
same except in compliance with the 1933 Act and the rules and regulations
promulgated thereunder and then in force, and in such event, the Company may
place an "investment legend", so-called, upon any certificate for the Shares
issued by reason of such exercise.
7. RESTRICTIONS ON TRANSFER. In addition to complying with the
requirements of Section 6, the Company may delay the issuance of Shares covered
by the exercise of Option and the delivery of a Certificate for such Shares
until the person exercising the Option agrees in writing to become a party to
the Agreement Among Stockholders dated as of July 1, 1993, entered into among
the Company and its then shareholders.
8. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event that the
outstanding shares of the common stock of the Company are changed into or
exchanged for a different number or kind of shares or other securities of the
Company or of another corporation by reason of any reorganization, merger,
consolidation, recapitalization, reclassification, stock split-up, combination
of shares or dividend payable in capital stock, appropriate adjustment shall be
made in the number and kind of shares as to which the Option, or any part
thereof then unexercised, shall be exercisable and with a corresponding
adjustment in the Option price per share.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and its corporate seal to be hereto affixed by its President thereunto
duly authorized, and the Employee has here unto set his hand and seal, all as of
the day and year first above written.
ROCKPORT TRADE SYSTEMS, INC.
By:
-------------------------
Susan Welch, President
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<PAGE>
-------------------------
EMPLOYEE
-------------------------
Name
-------------------------
Address
-------------------------
Social Security Number
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<PAGE>
EXHIBIT 1
TO NON-QUALIFIED STOCK OPTION AGREEMENT
[DATE]
ROCKPORT TRADE SYSTEMS, INC.
17 Rogers Street
Gloucester, MA 01930
Gentlemen:
In connection with the exercise by me as to shares of the stock option
granted to me under date of , 1996, I hereby acknowledge that I have been
informed as follows:
1. The shares of common stock of the Company to be issued to me pursuant
to the exercise of said option have not been registered under the Securities Act
of 1933, as amended (the "Act"), and accordingly, must be held indefinitely
unless such shares are subsequently registered under the Act, or an exemption
from such registration is available.
2. Routine sales of securities made in reliance upon Rule 144 under the
Act can be made only after the holding period and in limited amounts in
accordance with the terms and conditions provided by that Rule, and in any sale
to which that Rule is not applicable, registration or compliance with some other
exemption under the Act will be required.
3. The Company is under no obligation to me to register the shares or to
comply with any such exemptions under the Act.
4. The availability of Rule 144 is dependent upon adequate current public
information with respect to the Company being available and, at the time that I
may desire to make a sale pursuant to the Rule, the Company may neither wish nor
be able to comply with such requirement.
In consideration of the issuance of certificates for the shares to me, I
hereby represent and warrant that I am acquiring such shares for my own account
for investment, and that I will not
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<PAGE>
sell, pledge or transfer such shares in the absence of an effective
registration statement covering the same, except as permitted by the
provisions of Rule 144, if applicable, or some other applicable exemption
under the Act. In view of this representation and warranty, I agree that
there may be affixed to the certificates for the shares to be issued to me,
and to all certificates issued hereafter representing such shares (until in
the opinion of counsel, which opinion must be reasonably satisfactory in form
and substance to counsel for the Company, it is no longer necessary or
required) a legend as follows:
"The shares of common stock represented by this certificate
have not been registered under the Federal
Securities Act of 1933, as amended, and
were acquired by the registered holder,
pursuant to a representation and warranty
that such holder was acquiring such shares for
his own account and for investment, with no
intention to transfer or dispose of
the same, in violation of the registration
requirements of that Act. These shares may
not be sold, pledged, or transferred, in the
absence of an effective registration
statement under the Securities Act of 1933, as
amended, or an opinion of counsel, which
opinion is reasonably satisfactory to counsel
to the Company, to the effect that registration
is not required under said Act."
I further agree that the Company may place a stop order with its Transfer
Agent, prohibiting the transfer of such shares so long as the legend remains on
the certificates representing the shares.
Very truly yours,
--------------------
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<PAGE>
QRS CORPORATION
STOCK OPTION ASSUMPTION AGREEMENT
UNDER
ROCKPORT TRADE SYSTEMS, INC.
STOCK OPTION PLAN
OPTIONEE: < < Employee > >,
STOCK OPTION ASSUMPTION AGREEMENT effective as of the [___]
day of April, 2000.
WHEREAS, the undersigned individual ("Optionee") holds one
or more outstanding options to purchase shares of the common stock of
RockPort Trade Systems, Inc., a Massachusetts corporation ("RockPort"), which
were granted to Optionee under the RockPort Trade Systems, Inc. Stock Option
Plan (the "Plan").
WHEREAS, each of those options are evidenced by a Stock
Option Agreement (the "Option Agreement") issued to the Optionee under such
Plan.
WHEREAS, QRS Corporation, a Delaware corporation ("QRS"),
pursuant to an Agreement and Plan of Reorganization by and between QRS and
RockPort (the "Acquisition Agreement"), acquired substantially all of the
assets of RockPort (the "Acquisition").
WHEREAS, the provisions of the Acquisition Agreement
require RockPort's obligations under each outstanding option under the Plan
to be assumed by QRS at the consummation of the Acquisition and the holder of
each such outstanding option to be issued an agreement evidencing the
assumption of that options.
WHEREAS, pursuant to the provisions of the Acquisition
Agreement, the exchange ratio (the "Exchange Ratio") in effect for the
Acquisition is .06518001 shares of QRS common stock ("QRS Stock") for each
outstanding share of RockPort common stock ("RockPort Stock").
WHEREAS, the purpose of this Agreement is to evidence the
assumption by QRS of the outstanding options held by Optionee under the Plan
at the consummation of the Acquisition (the "Effective Time") and to reflect
certain adjustments to those options which have become necessary in
connection with their assumption by QRS in the Acquisition.
NOW, THEREFORE, it is hereby agreed as follows:
1. The number of shares of RockPort Stock subject to the
options held by Optionee immediately prior to the Effective Time (the
"RockPort Options") and the exercise price payable per share in effect for
those options are set forth below. QRS hereby assumes, as of the Effective
Time, all the duties and obligations of RockPort under each of the RockPort
Options.
<PAGE>
In connection with such assumption, the number of shares of QRS Stock
purchasable under each RockPort Option hereby assumed and the exercise price
payable thereunder have been adjusted to reflect the Exchange Ratio.
Accordingly, the number of shares of QRS Stock subject to each RockPort
Option hereby assumed shall be as specified for that option below, and the
adjusted exercise price payable per share of QRS Stock under the assumed
RockPort Option shall also be as indicated for that option below.
<TABLE>
<CAPTION>
- ------------------------------------------------------------ ---------------------------------------------------------
AIM STOCK OPTIONS NETZERO ASSUMED OPTIONS
- ------------------------------------------------------------ ---------------------------------------------------------
- ------------------------------- ---------------------------- ------------------------ --------------------------------
# of Shares of RockPort Exercise Price # of Shares of QRS Adjusted Exercise
Common Stock per Share Common Stock Price per Share
- ------------------------------- ---------------------------- ------------------------ --------------------------------
<S> <C> <C> <C>
$ $
- ------------------------------- ---------------------------- ------------------------ --------------------------------
</TABLE>
2. The intent of the foregoing adjustments to each assumed
RockPort Option is to assure that the spread between the aggregate fair
market value of the shares of QRS Stock purchasable under each such option
and the aggregate exercise price as adjusted pursuant to this Agreement will,
immediately after the consummation of the Acquisition, be not less than the
spread which existed, immediately prior to the Acquisition, between the then
aggregate fair market value of the RockPort Stock subject to the RockPort
Option and the aggregate exercise price in effect at such time under the
Option Agreement. Such adjustments are also intended to preserve, immediately
after the Acquisition, on a per share basis, the same ratio of the exercise
price per option share to the fair market value per share which existed under
the RockPort Option immediately prior to the Acquisition.
3. The following provisions shall govern each RockPort
Option hereby assumed by QRS:
(a) Unless the context otherwise requires, all
references in each Option Agreement hereby assumed by QRS and in the
Plan (to the extent incorporated into such Option Agreement) shall be
adjusted as follows: (i) all references to the "Company" shall mean
QRS, (ii) all references to "Shares" or shares of "Common Stock" shall
mean shares of QRS Stock, (iii) all references to the "Board" shall
mean the Board of Directors of QRS and (iv) all references to the
"Committee" or "Administrator" shall mean the Compensation Committee of
the QRS Board of Directors.
(b) The grant date and the expiration date of each
assumed RockPort Option and all other provisions which govern either
the exercise or the termination of the assumed RockPort Option shall
remain the same as set forth in the Option Agreement applicable to that
option, and the provisions of the Option Agreement shall accordingly
govern and control Optionee's rights under this Agreement to purchase
QRS Stock.
2
<PAGE>
(c) Pursuant to the terms of the Option Agreement,
none of the assumed RockPort Options shall vest or become exercisable
on an accelerated basis upon the consummation of the Acquisition.
Accordingly, each RockPort Option assumed by QRS shall continue to vest
and become exercisable for any remaining unvested shares of QRS Stock
subject to that option in accordance with the same installment vesting
schedule in effect under the applicable Option Agreement immediately
prior to the Effective Time; PROVIDED, however, that the number of
shares subject to each such installment shall be adjusted to reflect
the Exchange Ratio.
(d) For purposes of applying any and all provisions
of the Option Agreement and/or the Plan relating to Optionee's status
as an employee or a consultant of RockPort, Optionee shall be deemed to
continue in such employee or a consultant status for so long as
Optionee renders services to QRS (or any present or future QRS parent
or subsidiary corporation) as an employee or a consultant. Accordingly,
the provisions of the Option Agreement governing the termination of the
assumed RockPort Options upon Optionee's cessation of employee or
consultant status shall hereafter be applied on the basis of Optionee's
cessation of employee or consultant status with QRS and its parent or
subsidiary corporations, and each assumed RockPort Option shall
accordingly terminate, within the designated time period in effect
under the Option Agreement for that option, following such cessation of
employee or a consultant status.
(e) The adjusted exercise price payable for the QRS
Stock subject to each assumed RockPort Option shall be payable in any
of the forms authorized under the Option Agreement applicable to that
option. For purposes of determining the holding period of any shares of
QRS Stock delivered in payment of such adjusted exercise price, the
period for which such shares were held as RockPort Stock prior to the
Acquisition shall be taken into account.
(f) In order to exercise each assumed RockPort
Option, Optionee must deliver to QRS a written notice of exercise in
which the number of shares of QRS Stock to be purchased thereunder must
be indicated. The exercise notice must be accompanied by payment of the
adjusted exercise price payable for the purchased shares of QRS Stock
and should be delivered to QRS at the following address:
QRS Corporation
1400 Marina Way South
Richmond, CA 94804
Attention: Corporate Secretary
4. Except to the extent specifically modified by this
Option Assumption Agreement, all of the terms and conditions of each Option
Agreement as in effect immediately prior to the Acquisition shall continue in
full force and effect and shall not in any way be amended, revised or
otherwise affected by this Stock Option Assumption Agreement.
3
<PAGE>
IN WITNESS WHEREOF, QRS Corporation has caused this Stock
Option Assumption Agreement to be executed on its behalf by its
duly-authorized officer as of the [___] day of April, 2000.
QRS CORPORATION
By: ______________________________________
Title: ___________________________________
ACKNOWLEDGMENT
The undersigned acknowledges receipt of the foregoing Stock
Option Assumption Agreement and understands that all rights and liabilities
with respect to each of his or her RockPort Options hereby assumed by QRS
Corporation are as set forth in the Option Agreement, the Plan (to the extent
incorporated in such Option Agreement ) and such Stock Option Assumption
Agreement.
__________________________________________
OPTIONEE
DATED: __________________, _____
4
