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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C 20549
--------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 31, 1997 (December
19, 1997)
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PMT SERVICES, INC.
(Exact name of registrant as specified in its charter)
TENNESSEE 0-24420 62-1215125
(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification
incorporation) Number)
3841 GREEN HILLS VILLAGE DRIVE
NASHVILLE, TENNESSEE 37215
(Address of principal executive offices) (Zip Code)
(615) 254-1539
(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS
On December 19, 1997, the shareholders of PMT Services, Inc., a
Tennessee Corporation (the "Company"), elected two Class I directors, approved
the amendment and restatement of the Company's 1994 Incentive Stock Plan,
approved the amendment and restatement of the Company's 1994 Non-Employee
Director Stock Option Plan, approved the Company's 1997 Executive Stock
Incentive Plan and ratified the appointment of Price Waterhouse LLP as the
independent accountants of the Company for the fiscal year ending July 31, 1998.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Exhibits:
See Exhibits Index attached hereto.
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SIGNATURES
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PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934,
THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED HEREUNTO DULY AUTHORIZED.
PMT SERVICES, INC.
BY: /S/ CLAY M. WHITSON
-------------------------------------
CLAY M. WHITSON
CHIEF FINANCIAL OFFICER AND TREASURER
DATE: DECEMBER 30, 1997
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EXHIBITS INDEX
SEQUENTIAL
EXHIBIT NO.
- -----------
5.1 PMT SERVICES, INC. 1994 INCENTIVE STOCK PLAN AS AMENDED AND
RESTATED
5.2 PMT SERVICES, INC. 1994 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
AS AMENDED AND RESTATED
5.3 PMT SERVICES, INC. EXECUTIVE STOCK INCENTIVE PLAN
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EXHIBIT 5.1
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
AMENDED AND RESTATED AS OF SEPTEMBER 10, 1997
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PMT SERVICES, INC. 1994 INCENTIVE STOCK PLAN
AMENDED AND RESTATED AS OF SEPTEMBER 10, 1997
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS
1.1 Affiliate.............................................................. 1
1.2 Agreement.............................................................. 1
1.3 Award.................................................................. 1
1.4 Board.................................................................. 1
1.5 Code................................................................... 1
1.6 Committee.............................................................. 1
1.7 Company................................................................ 2
1.8 Date of Exercise....................................................... 2
1.9 Exchange Act........................................................... 2
1.10 Fair Market Value...................................................... 2
1.11 Incentive Option....................................................... 2
1.12 Nonqualified Option.................................................... 3
1.13 Option................................................................. 3
1.14 Participant............................................................ 3
1.15 Plan................................................................... 3
1.16 SAR.................................................................... 3
1.17 Stock.................................................................. 3
1.18 Ten Percent Shareholder................................................ 3
ARTICLE II. PURPOSE OF PLAN......................... 3
ARTICLE III. ADMINISTRATION
3.1 Administration of Plan................................................. 4
3.2 Authority to Grant Awards.............................................. 4
3.3 Persons Subject to Section 16(b)....................................... 4
ARTICLE IV. ELIGIBILITY AND LIMITATIONS ON GRANTS
4.1 Participation.......................................................... 4
4.2 Grant of Awards........................................................ 5
4.3 Limitations on Grants.................................................. 5
4.4 Limitation on Incentive Options........................................ 5
4.5 Stock Appreciation Rights.............................................. 5
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
i
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ARTICLE V. STOCK SUBJECT TO PLAN
5.1 Source of Shares....................................................... 5
5.2 Maximum Number of Shares............................................... 5
5.3 Forfeitures............................................................ 6
ARTICLE VI. EXERCISE OF AWARDS
6.1 Exercise Price......................................................... 6
6.2 Right to Exercise...................................................... 6
6.3 Maximum Exercise Period................................................ 6
6.4 Transferability........................................................ 6
6.5 Employee Status........................................................ 6
ARTICLE VII. METHOD OF EXERCISE
7.1 Exercise............................................................... 7
7.2 Payment................................................................ 7
7.3 Federal Withholding Tax Requirements................................... 7
7.4 Shareholder Rights..................................................... 7
7.5 Issuance and Delivery of Shares........................................ 7
ARTICLE VIII. ADJUSTMENT UPON CORPORATE CHANGES
8.1 Adjustments to Shares.................................................. 7
8.2 Substitution of Awards on Merger or Acquisition........................ 8
8.3 Effect of Certain Transactions......................................... 8
8.4 No Adjustment Upon Certain Transactions................................ 9
8.5 Fractional Shares...................................................... 9
ARTICLE IX. COMPLIANCE WITH LAW AND REGULATORY APPROVAL
9.1 General................................................................ 9
9.2 Representations by Participants........................................ 9
ARTICLE X. GENERAL PROVISIONS
10.1 Effect on Employment................................................... 10
10.2 Unfunded Plan.......................................................... 10
10.3 Rules of Construction.................................................. 10
10.4 Governing Law.......................................................... 10
10.5 Compliance With Section 16 of the Exchange Act......................... 10
10.6 Amendment.............................................................. 10
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
ii
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10.7 Duration of Plan....................................................... 11
10.8 Effective Date of Plan................................................. 11
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
iii
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PMT SERVICES, INC. 1994 INCENTIVE STOCK PLAN
AMENDED AND RESTATED AS OF SEPTEMBER 10, 1997
PREAMBLE
WHEREAS, effective May 13, 1994, PMT Services, Inc. (the "Company")
established the PMT Services, Inc. 1994 Incentive Stock Plan (the "Plan")
through which the Company may award options to purchase the Common Stock of the
Company ("Stock"), including options that qualify as "incentive stock options"
within the meaning of section 422 of the Internal Revenue Code, and stock
appreciation rights to officers, employees, and consultants of the Company and
its affiliates; and
WHEREAS, the Company desires to amend the Plan in order to provide for
certain administrative modifications and to permit certain officers of the
Company to grant awards hereunder to eligible individuals;
NOW, THEREFORE, the Company hereby amends and restates the PMT Services,
Inc. 1994 Incentive Stock Plan (the "Plan"), as of September 10, 1997:
ARTICLE I. DEFINITIONS
1.1 Affiliate. A "parent corporation," as defined in section 424(e) of
the Code, or "subsidiary corporation," as defined in section 424(f) of the Code,
of the Company.
1.2 Agreement. A written agreement (including any amendment or supplement
thereto) between the Company or Affiliate and a Participant specifying the terms
and conditions of an Award granted to such Participant.
1.3 Award. A right that is granted under the Plan to a Participant by the
Company, including Options and SARs.
1.4 Board. The board of directors of the Company.
1.5 Code. The Internal Revenue Code of 1986, as amended.
1.6 Committee. A committee composed of at least two individuals (or such
number that satisfies section 162(m)(4)(C) of the Code and Rule 16b-3 of the
Exchange Act) who are members of the Board and are not employees or officers of
the Company or an Affiliate, and who are designated by the Board as the
"compensation committee" or are otherwise designated to administer the Plan. In
the absence of a designation of a Committee by the Board, the Board shall be the
Committee.
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
1
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1.7 Company. PMT Services, Inc. and its successors.
1.8 Date of Exercise. The date that the Company accepts tender of the
exercise price of an Award, if any, or accepts an election to exercise rights
under an SAR.
1.9 Exchange Act. The Securities Exchange Act of 1934, as amended.
1.10 Fair Market Value. On any given date, Fair Market Value shall be the
applicable description below (unless, where appropriate, the Committee
determines in good faith the fair market value of the Stock to be otherwise):
(a) If the Stock is reported on the Nasdaq National Market System or
another Nasdaq automated quotation system, and market information is
published on a regular basis, then Fair Market Value shall be the
closing price of the Stock, as so published, on the trading day
immediately preceding the date as of which Fair Market Value is being
determined, or the closing price on the next preceding trading day on
which such prices were published if no Stock was traded on such
trading day.
(b) If the Stock is not traded on the Nasdaq National Market System or
another Nasdaq automatic quotation system but is traded on the New
York Stock Exchange or the American Stock Exchange, Fair Market Value
shall be the closing price of the Stock on such exchange on which such
Stock is traded on the trading day immediately preceding the date as
of which Fair Market Value is being determined, or on the next
preceding day period on which such Stock is traded if no Stock was
traded on such trading day.
(c) If market information is not so published on a regular basis, then
Fair Market Value shall be the average of the high bid and low asked
prices of the Stock in the over-the-counter market over a period of
trading days that is reasonably representative of the normal trading
of the Stock immediately preceding the date on which Fair Market Value
is being determined, as reported by a generally accepted reporting
service.
(d) If the Stock is not publicly traded, Fair Market Value shall be the
value determined in good faith by the Committee or the Board.
However, such determination shall not take into account any
restriction on the stock, except for a restriction which by its terms
will never lapse.
1.11 Incentive Option. An Option that is intended to qualify as an
"incentive stock option" within the meaning of section 422 of the Code. An
Incentive Option, or a portion thereof, shall not be invalid for failure to
qualify under section 422 of the Code, but shall be treated as a Nonqualified
Option.
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
2
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1.12 Nonqualified Option. An Option that is not an Incentive Option.
1.13 Option. The right that is granted hereunder to a Participant to
purchase from the Company a stated number of shares of Stock at the price set
forth in an Agreement. As used herein, an Option includes both Incentive
Options and Nonqualified Options.
1.14 Participant. An employee, consultant or advisor of the Company or of
an Affiliate who either satisfies the requirements of Article and is selected
by the Committee to receive an Award, or receives an Award pursuant to grant
specified in this Plan.
1.15 Plan. The PMT Services, Inc. 1994 Incentive Stock Plan.
1.16 SAR. A right to receive compensation hereunder calculated by
reference to the increase in the value of a certain number of shares of Stock
from the date of an award, as described in Section 45. An SAR is an unfunded,
unsecured promise of the Company to the Participant. Unless otherwise stated in
an Agreement, or unless the Committee in its discretion honors the exercise of
an SAR by issuing Stock, the holder of an SAR has no beneficial rights of Stock
ownership or to receive shares of stock.
1.17 Stock. The common stock of the Company, $.01 par value.
1.18 Ten Percent Shareholder. An individual who owns more than 10% of the
total combined voting power of all classes of stock of the Company or an
Affiliate at the time he is granted an Incentive Option. For the purpose of
determining if an individual is a Ten Percent Shareholder, he shall be deemed to
own any voting stock owned (directly or indirectly) by or for his brothers and
sisters (whether by whole or half blood), spouse, ancestors or lineal
descendants and shall be considered to own proportionately any voting stock
owned (directly or indirectly) by or for a corporation, partnership, estate or
trust of which such individual is a shareholder, partner or beneficiary.
ARTICLE II. PURPOSE OF PLAN
The purpose of the Plan is to provide a performance incentive and to
encourage stock ownership by officers, key employees, consultants and advisors
of the Company and its Affiliates, and to align the interests of such
individuals with those of the Company, its Affiliates and its shareholders. It
is intended that Participants may acquire or increase their proprietary
interests in the Company and be encouraged to remain in the employ of the
Company or of its Affiliates. The proceeds received by the Company from the
sale of Stock pursuant to this Plan may be used for general corporate purposes.
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
3
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ARTICLE III. ADMINISTRATION
3.1 Administration of Plan. The Plan shall be administered by the
Committee. The express grant in the Plan of any specific power to the Committee
shall not be construed as limiting any power or authority of the Committee. Any
decision made or action taken by the Committee to administer the Plan shall be
final and conclusive. No member of the Committee shall be liable for any act
done in good faith with respect to this Plan or any Agreement or Award. The
Company shall bear all expenses of Plan administration. In addition to all
other authority vested with the Committee under the Plan, the Committee shall
have complete authority to:
(a) Interpret all provisions of this Plan;
(b) Prescribe the form of any Agreement and notice and manner for
executing or giving the same;
(c) Make amendments to all Agreements;
(d) Adopt, amend, and rescind rules for Plan administration; and
(e) Make all determinations it deems advisable for the administration of
this Plan.
3.2 Authority to Grant Awards. The Committee shall have authority to
grant Awards upon such terms the Committee deems appropriate and that are not
inconsistent with the provisions of this Plan. Such terms may include
conditions on the exercise of all or any part of an Award. The Compensation
Committee may delegate authority to key officers of the Company to grant Awards
to certain employees, consultants and advisors.
3.3 Persons Subject to Section 16(b). Notwithstanding anything in the
Plan to the contrary, the Committee, in its absolute discretion, may bifurcate
the Plan so as to restrict, limit or condition the use of any provision of the
Plan to participants who are officers subject to section 16(b) of the Exchange
Act, without so restricting, limiting or conditioning the Plan with respect to
other Participants.
ARTICLE IV. ELIGIBILITY AND LIMITATIONS ON GRANTS
4.1 Participation. The Committee may from time to time designate
employees, consultants and advisors to whom Awards are to be granted and who are
eligible to become Participants. Such designation shall specify the number of
shares of Stock, if any, subject to each Award. All Awards granted under this
Plan shall be evidenced by Agreements which shall be subject to applicable
provisions of this Plan or such other provisions as the Committee may adopt that
are not inconsistent with the Plan.
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
4
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4.2 Grant of Awards. An Award shall be deemed to be granted to a
Participant at the time that the Committee designates in a writing that is
adopted by the Committee as the grant of an Award, and that makes reference to
the Participant and the number of shares of Stock that are subject to the Award.
Accordingly, an Award may be deemed to be granted prior to the approval of this
Plan by the shareholders of the Company and prior to the time that an Agreement
is executed by the Participant and the Company.
4.3 Limitations on Grants. A person who is not an employee of the Company
or an Affiliate is not eligible to receive an Incentive Option.
4.4 Limitation on Incentive Options. To the extent that the aggregate
Fair Market Value of Stock with respect to which Incentive Options are
exercisable for the first time by a Participant during any calendar year (under
all stock incentive plans of the Company and its Affiliates) exceeds $100,000
(or the amount specified in section 422 of the Code), determined as of the date
an Incentive Option is granted, such Options shall be treated as Nonqualified
Options. This provision shall be applied by taking Incentive Options into
account in the order in which they were granted.
4.5 Stock Appreciation Rights. The Committee may grant an SAR to a
Participant either in tandem with the grant of an Award, or as an award that is
separate from any Award granted under the Plan. Subject to the terms of an
Agreement, a Participant who receives an SAR shall have the right, upon written
request, to surrender any exercisable Award, or portion thereof, in exchange for
cash, whole shares of Stock, or a combination thereof, as determined by the
Committee, with a value equal to the excess of the Fair Market Value, as of the
date of such request, of one share of Stock over the Fair Market Value of the
Stock on the Date of Grant (or such other value specified in the Agreement),
multiplied by the number of shares covered by the SAR or portion thereof to be
surrendered. In the case of any SAR which is granted in connection with an
Incentive Option, such SAR shall be exercisable only when the Fair Market Value
of the Common Stock exceeds the price specified therefor in the SAR or portion
thereof to be surrendered. In the event of the exercise of any SAR granted
hereunder, the number of shares reserved for issuance under the Plan shall be
reduced only to the extent that shares of Stock are actually issued in
connection with the exercise of such SAR.
ARTICLE V. STOCK SUBJECT TO PLAN
5.1 Source of Shares. Upon the exercise of an Option, the Company shall
deliver to the Participant authorized but previously unissued Stock.
5.2 Maximum Number of Shares. The maximum aggregate number of shares of
Stock that may be issued pursuant to the exercise of Awards is 4,195,000,
subject to increases and adjustments as provided in Article . The aggregate
number of SARs that may be granted shall be determined by the Committee.
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
5
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5.3 Forfeitures. If any Award granted hereunder expires or terminates for
any reason without having been exercised in full, the shares of Stock subject
thereto shall again be available for issuance of an Award under this Plan.
ARTICLE VI. EXERCISE OF AWARDS
6.1 Exercise Price. The exercise price of an Incentive Option shall not
be less than 100% of the Fair Market Value of a share of Stock on the date the
Incentive Option is granted. In the case of a Ten Percent Shareholder, however,
the exercise price of an Incentive Option shall not be less than 110% of the
Fair Market Value of a share of Stock on the date the Incentive Option is
granted. The exercise price of a Nonqualified Option or an SAR shall be the
price determined by the Committee at the time that such Award is granted. If
the exercise price of an Award is changed after the date it is granted, such
change shall be deemed to be a termination of the existing Award and the
issuance of a new Award.
6.2 Right to Exercise. An Award shall be exercisable on the date of grant
or on any other date established by the Committee or provided for in an
Agreement, provided, however, that Awards granted to officers subject to section
16 of the Exchange Act shall not be exercisable until at least six months after
the Award is granted. A Participant must exercise an Incentive Option while he
is an employee of the Company or an Affiliate or within the periods that may be
specified in the Agreement after termination of employment, death, disability or
a "change of control" (as defined in any change of control agreement to which
the Company and any such Participant are parties).
6.3 Maximum Exercise Period. The maximum period in which an Award may be
exercised shall be determined by the Committee on the date of grant except that
no Incentive Option shall be exercisable after the expiration of 10 years (five
years in the case of Incentive Options granted to a Ten Percent Shareholder)
from the date it was granted. The terms of any Award may provide that it is
exercisable for a shorter period. All Incentive Options shall terminate on the
date the Participant's employment with the Company terminates, except as
otherwise provided in the Agreement with respect to termination of employment,
death, disability or a "change of control" (as defined in any change of control
agreement to which the Company and any such Participant are parties).
6.4 Transferability. Generally, any Award granted under this Plan shall
not be transferable except by will or by the laws of descent and distribution,
and shall be exercisable during the lifetime of the Participant only by the
Participant. However, a Nonqualified Option or an SAR granted under this Plan
may be transferable to the extent provided in an Agreement. Provided, further,
that no right or interest of a Participant in any Award shall be liable for, or
subject to, any lien, obligation or liability of such Participant.
6.5 Employee Status. The Committee shall determine the extent to which a
leave of absence for military or government service, illness, temporary
disability, or other reasons shall
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
6
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be treated as a termination or interruption of employment for purposes of
determining questions of forfeiture and exercise of an Award after termination
of employment; provided, however, that if the period treated as employment with
respect to an Incentive Option exceeds three months, such Option shall be deemed
a Nonqualified Option.
ARTICLE VII. METHOD OF EXERCISE
7.1 Exercise. An Award granted hereunder shall be deemed to have been
exercised on the Date of Exercise. Subject to the provisions of Articles and ,
an Award may be exercised in whole or in part at such times and in compliance
with such requirements as the Committee shall determine.
7.2 Payment. Unless otherwise provided by the Agreement, payment of the
Award price shall be made in cash or, to the extent approved by the Committee,
Stock that was acquired prior to the exercise of the Award, other consideration
acceptable to the Committee, or a combination thereof.
7.3 Federal Withholding Tax Requirements. Upon exercise of a Nonqualified
Option or an SAR by a Participant who is an employee of the Company or an
Affiliate, the Participant shall, upon notification of the amount due and prior
to or concurrently with the delivery of the certificates representing the
shares, pay to the Company amounts necessary to satisfy applicable federal,
state and local withholding tax requirements or shall otherwise make
arrangements satisfactory to the Company for such requirements. Such
withholding requirements shall not apply to the exercise of an Incentive Option,
or to a disqualifying disposition of Stock that is acquired with an Incentive
Option, unless the Committee gives the Participant notice that withholding
described in this Section is required.
7.4 Shareholder Rights. No Participant shall have any rights as a
stockholder with respect to shares subject to Options or SARs prior to the Date
of Exercise of such Award. No Participant shall acquire rights as a stockholder
through the grant or exercise of an SAR, except to the extent which the
Committee, in its sole discretion, issues Stock to the Participant as payment
upon the exercise of the SAR.
7.5 Issuance and Delivery of Shares. Shares of Stock issued pursuant to
the exercise of Awards hereunder shall be delivered to Participants by the
Company (or its transfer agent) as soon as administratively feasible after a
Participant exercises an Award hereunder and executes any applicable shareholder
agreement or agreement described in Section 92 that the Company requires at the
time of exercise.
ARTICLE VIII. ADJUSTMENT UPON CORPORATE CHANGES
8.1 Adjustments to Shares. The maximum number of shares of stock with
respect to which Awards hereunder may be granted and which are the subject of
outstanding Awards, and
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
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the exercise price thereof, shall be adjusted as the Committee determines (in
its sole discretion) to be appropriate, in the event that:
(a) the Company or an Affiliate effects one or more stock dividends, stock
splits, reverse stock splits, subdivisions, consolidations or other
similar events;
(b) the Company or an Affiliate engages in a transaction to which section
424 of the Code applies; or
(c) there occurs any other event which in the judgment of the Committee
necessitates such action;
Provided, however, that if an event described in paragraph (a) or (b) occurs,
the Committee shall make adjustments to the limits on Awards specified in
Sections 43 and 52 that are proportionate to the modifications of the Stock that
are on account of such corporate changes. Notwithstanding the foregoing, the
Committee may not modify the Plan or the terms of any Awards then outstanding or
to be granted hereunder to provide for the issuance under the Plan of a
different class of stock or kind of securities.
8.2 Substitution of Awards on Merger or Acquisition. The Committee may
grant Awards in substitution for stock awards, stock options, stock appreciation
rights or similar awards held by an individual who becomes an employee of the
Company or an Affiliate in connection with a transaction to which section 424(a)
of the Code applies. The terms of such substituted Awards shall be determined
by the Committee in its sole discretion, subject only to the limitations of
Article V.
8.3 Effect of Certain Transactions. The provisions of this Section 8.3
shall apply to the extent that an Agreement does not otherwise expressly address
the matters contemplated herein. Upon a merger, consolidation, acquisition of
property or stock, separation, reorganization or liquidation of the Company, as
a result of which the shareholders of the Company receive cash, stock or other
property in exchange for their shares of Stock (but not a public offering of
Stock by the Company), and the Company is not the surviving entity (or survives
only as a subsidiary that is controlled by another entity), any Award granted
hereunder shall terminate, provided that the Participant shall have the right
immediately prior to any such merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation to exercise his Awards in whole
or in part, whether or not the vesting requirements set forth in any Agreement
have been satisfied, unless the Committee elects to convert all Awards hereunder
into stock incentive awards of an acquiring corporation. Provided, however,
that, notwithstanding the foregoing, a portion of the acceleration of
exercisability of Awards shall not occur with respect to any holder to the
extent that such portion of acceleration would cause the Participant or holder
of such Award to be liable for the payment of taxes pursuant to section 4999 of
the Code. If the Committee so elects to convert the Awards, the amount and
price of such converted options shall be determined by adjusting the amount and
price of the Awards
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
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granted hereunder in the same proportion as used for determining the number of
shares of stock of the acquiring corporation the holders of the Stock receive in
such merger, consolidation, acquisition of property or stock, separation or
reorganization, and the vesting schedule set forth in the Agreement shall
continue to apply to the converted options.
8.4 No Adjustment Upon Certain Transactions. The issuance by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, for cash or property, or for labor or services rendered, either
upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, outstanding Awards.
8.5 Fractional Shares. Only whole shares of Stock may be acquired through
the exercise of an Award. Any amounts tendered in the exercise of an Award
remaining after the maximum number of whole shares have been purchased will be
returned to the Participant.
ARTICLE IX. COMPLIANCE WITH LAW AND REGULATORY APPROVAL
9.1 General. No Award shall be exercisable, no Stock shall be issued, no
certificates for shares of Stock shall be delivered, and no payment shall be
made under this Plan except in compliance with all federal or state laws and
regulations (including, without limitation, withholding tax requirements),
federal and state securities laws and regulations and the rules of all
securities exchanges or self-regulatory organizations on which the Company's
shares may be listed. The Company shall have the right to rely on an opinion of
its counsel as to such compliance. Any certificate issued to evidence shares of
Stock for which an Award is exercised may bear such legends and statements as
the Committee upon advice of counsel may deem advisable to assure compliance
with federal or state laws and regulations. No Award shall be exercisable, no
Stock shall be issued, no certificate for shares shall be delivered and no
payment shall be made under this Plan until the Company has obtained such
consent or approval as the Committee may deem advisable from any regulatory
bodies having jurisdiction over such matters.
9.2 Representations by Participants. As a condition to the exercise of an
Award, the Company may require a Participant 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 representation is required
by any relevant provision of the laws referred to in Section 91. At the option
of the Company, a stop transfer order against any shares of stock may be placed
on the official stock books and records of the Company, and a legend indicating
that the stock may not be pledged, sold or otherwise transferred unless an
opinion of counsel was provided (concurred in by counsel for the Company) and
stating that such transfer is not in violation of any applicable law or
regulation may be stamped on the stock certificate in order to assure exemption
from registration. The Committee may also require such other action or
agreement by the Participants
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
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as may from time to time be necessary to comply with federal or state securities
laws. This provision shall not obligate the Company or any Affiliate to
undertake registration of options or stock hereunder.
ARTICLE X. GENERAL PROVISIONS
10.1 Effect on Employment. Neither the adoption of this Plan, its
operation, nor any documents describing or referring to this Plan (or any part
thereof) shall confer upon any employee any right to continue in the employ of
the Company or an Affiliate or in any way affect any right and power of the
Company or an Affiliate to terminate the employment of any employee at any time
with or without assigning a reason therefor.
10.2 Unfunded Plan. The Plan, insofar as it provides for grants, shall be
unfunded, and the Company shall not be required to segregate any assets that may
at any time be represented by grants under this Plan. Any liability of the
Company to any person with respect to any grant under this Plan shall be based
solely upon contractual obligations that may be created hereunder. No such
obligation of the Company shall be deemed to be secured by any pledge of, or
other encumbrance on, any property of the Company.
10.3 Rules of Construction. Headings are given to the articles and
sections of this Plan solely as a convenience to facilitate reference. The
masculine gender when used herein refers to both masculine and feminine. The
reference to any statute, regulation or other provision of law shall be
construed to refer to any amendment to or successor of such provision of law.
10.4 Governing Law. The internal laws of the State of Tennessee shall
apply to all matters arising under this Plan, to the extent that federal law
does not otherwise apply or preempt Tennessee law.
10.5 Compliance With Section 16 of the Exchange Act. With respect to
persons subject to liability under section 16 of the Exchange Act, transactions
under this Plan are intended to comply with all applicable conditions of Rule
16b-3 (or successor provisions) under the Exchange Act. To the extent any
provision of this Plan or action by Committee fails to so comply, it shall be
deemed null and void to the extent permitted by law and deemed advisable by the
Committee.
10.6 Amendment. The Board may amend or terminate this Plan at any time;
provided, however, an amendment that would have a material adverse effect on the
rights of a Participant under an outstanding Award is not valid with respect to
such Award without the Participant's consent, except as necessary for Incentive
Options to maintain qualification under the Code; and provided, further, that
the shareholders of the Company must approve, in general meeting:
(a) 12 months before or after the date of adoption, any amendment that
increases the aggregate number of shares of Stock that may be issued
under Incentive Options
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
10
<PAGE>
or changes the employees (or class of employees) eligible to receive
Incentive Options;
(b) before the effective date thereof, any amendment that changes the
number of shares in the aggregate which may be issued pursuant to
Awards granted under the Plan or the maximum number of shares with
respect to which any individual may receive options in any calendar
year, except pursuant to Article ; and
(c) before the effective date thereof, any amendment that increases the
period during which Awards may be granted or exercised.
Moreover, shareholder approval shall not be required for minor amendments to the
Plan that are intended to benefit the administration of the plan, for amendments
necessitated by changes in legislation or administrative rules governing the
Plan, or for amendments that the Board deems necessary to obtain or maintain
favorable tax, securities exchange or regulatory treatment of the Plan for
future Participants.
10.7 Duration of Plan. This Plan shall continue until it is terminated by
the Board pursuant to Section 106. However, no Incentive Option may be granted
under this Plan more than 10 years after the earlier of the date that the Plan
was first adopted by the Board or the date that the Plan was approved by
shareholders as provided in Section 108. Incentive Options granted before such
date shall remain valid in accordance with their terms.
10.8 Effective Date of Plan. This Plan was first adopted by the Board on
May 13, 1994, and was thereafter approved by the shareholders of the Company in
a manner that satisfies Treasury Regulation section 1.422-5. Effective
September 10, 1997, all Awards granted hereunder shall be governed by the terms
of this amended and restated Plan; provided, however, that the terms of the Plan
prior to this amendment shall apply to the extent that the terms of this
restated Plan would have a material adverse effect on the rights of a
Participant under an outstanding Award, unless (i) the Participant has given
consent to the change, or (ii) such amendment is necessary for Incentive Options
to maintain qualification under the Code.
PMT SERVICES, INC.
1994 INCENTIVE STOCK PLAN
11
<PAGE>
EXECUTION
IN WITNESS WHEREOF, the undersigned officer has executed this restated and
amended Plan on this the _____ day of ____________, 1997, but to be effective as
of the dates specified in Section 108.
PMT SERVICES, INC.
By: ______________________________
Its: ______________________________
12
<PAGE>
EXHIBIT 5.2
PMT SERVICES, INC.
1994 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
AMENDED AND RESTATED AS OF SEPTEMBER 10, 1997
<PAGE>
PMT SERVICES, INC. 1994 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS
1.1 Affiliate.............................................................. 1
1.2 Agreement.............................................................. 1
1.3 Board.................................................................. 1
1.4 Code................................................................... 1
1.5 Committee.............................................................. 1
1.6 Company................................................................ 1
1.7 Date of Exercise....................................................... 1
1.8 Exchange Act........................................................... 1
1.9 Fair Market Value...................................................... 2
1.10 Option................................................................. 2
1.11 Participant............................................................ 2
1.12 Plan................................................................... 2
1.13 Stock.................................................................. 2
ARTICLE II. PURPOSE OF PLAN........................ 3
ARTICLE III. ADMINISTRATION
3.1 Administration of Plan................................................. 3
3.2 Authority to Grant Options............................................. 3
ARTICLE IV. ELIGIBILITY AND LIMITATIONS ON GRANTS
4.1 Participation.......................................................... 4
4.2 Grant of Options....................................................... 4
ARTICLE V. STOCK SUBJECT TO PLAN
5.1 Source of Shares....................................................... 5
5.2 Maximum Number of Shares............................................... 5
5.3 Forfeitures............................................................ 5
i
<PAGE>
ARTICLE VI. EXERCISE OF OPTIONS
6.1 Exercise Price......................................................... 5
6.2 Maximum Exercise Period................................................ 5
6.3 Transferability........................................................ 5
ARTICLE VII. METHOD OF EXERCISE
7.1 Exercise............................................................... 5
7.2 Payment................................................................ 5
7.3 Federal Withholding Tax Requirements................................... 5
7.4 Shareholder Rights..................................................... 6
7.5 Issuance and Delivery of Shares........................................ 6
ARTICLE VIII. ADJUSTMENT UPON CORPORATE CHANGES
8.1 Adjustments to Shares.................................................. 6
8.2 Substitution of Awards on Merger or Acquisition........................ 6
8.3 Effect of Certain Transactions......................................... 6
8.4 No Adjustment Upon Certain Transactions................................ 7
8.5 Fractional Shares...................................................... 7
ARTICLE IX. COMPLIANCE WITH LAW AND REGULATORY APPROVAL
9.1 General................................................................ 7
9.2 Representations by Participants........................................ 8
ARTICLE X. GENERAL PROVISIONS
10.1 Unfunded Plan.......................................................... 8
10.2 Rules of Construction.................................................. 8
10.3 Governing Law.......................................................... 8
10.4 Compliance With Section 16 of the Exchange Act......................... 8
10.5 Amendment.............................................................. 9
10.6 Duration of Plan....................................................... 9
10.7 Effective Date of Plan................................................. 9
ii
<PAGE>
PMT SERVICES, INC. 1994 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
PREAMBLE
WHEREAS, effective May 13, 1994, PMT Services, Inc. (the "Company")
previously established the PMT Services, Inc. 1994 Non-Employee Director Stock
Option Plan (the "Plan"), in order to provide for the award of options to
purchase the common stock of the Company ("Stock") to non-employee directors of
the Company; and
WHEREAS, the Company desires to amend and restate this Plan to conform with
changes to the Securities and Exchange Commission Rule 16b-3 and to provide for
certain administrative modifications;
NOW, THEREFORE, the Company hereby amends and restates the Plan, effective
September 10, 1997.
ARTICLE I. DEFINITIONS
1.1 Affiliate. A "parent corporation," as defined in section 424(e) of
the Code, or "subsidiary corporation," as defined in section 424(f) of the Code,
of the Company.
1.2 Agreement. A written agreement (including any amendment or supplement
thereto) between the Company or Affiliate and a Participant specifying the terms
and conditions of an Option granted to such Participant.
1.3 Board. The board of directors of the Company.
1.4 Code. The Internal Revenue Code of 1986, as amended.
1.5 Committee. A committee composed of at least two individuals (or such
number that satisfies Rule 16b-3 of the Exchange Act) who are members of the
Board and are not employees of the Company or an Affiliate, and who are
designated by the Board as the "compensation committee" or are otherwise
designated to administer the Plan. In the absence of a designation of a
Committee by the Board, the Board shall be the Committee.
1.6 Company. PMT Services, Inc. and its successors.
1.7 Date of Exercise. The date that the Company accepts tender of the
exercise price of an Option.
1.8 Exchange Act. The Securities Exchange Act of 1934, as amended.
PMT SERVICES, INC. 1994 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN
1
<PAGE>
1.9 Fair Market Value. On any given date, Fair Market Value shall be the
applicable description below (unless, where appropriate, the Committee
determines in good faith the fair market value of the Stock to be otherwise):
(a) If the Stock is reported on the Nasdaq National Market System or
another Nasdaq automated quotation system, and market information is
published on a regular basis, then Fair Market Value shall be the
closing price of the Stock, as so published, on the trading day
immediately preceding the date as of which Fair Market Value is being
determined, or the closing price on the next preceding trading day on
which such prices were published if no Stock was traded on such
trading day.
(b) If the Stock is not traded on the Nasdaq National Market System or
another Nasdaq automated quotation system, but is traded on the New
York Stock Exchange or the American Stock Exchange, then Fair Market
Value shall be the closing price of the Stock on such exchange on
which such Stock is traded on the trading day immediately preceding
the date as of which Fair Market Value is being determined, or on the
next preceding day period on which such Stock is traded if no Stock
was traded on such trading day.
(c) If market information is not so published on a regular basis, then
Fair Market Value shall be the average of the high bid and low asked
prices of the Stock in the over-the-counter market over a period of
trading days that is reasonably representative of the normal trading
of the Stock immediately preceding the date on which Fair Market Value
is being determined, as reported by a generally accepted reporting
service.
(d) If the Stock is not publicly traded, Fair Market Value shall be the
value determined in good faith by the Committee or the Board.
However, such determination shall not take into account any
restriction on the stock, except for a restriction which by its terms
will never lapse.
1.10 Option. The right that is granted hereunder to a Participant to
purchase from the Company a stated number of shares of Stock at the price set
forth in an Agreement. As used herein, an Option includes only options not
qualified under section 422 of the Code.
1.11 Participant. A person who has been granted an Option pursuant to
Section 41.
1.12 Plan. The PMT Services, Inc. 1994 Non-Employee Director Stock Option
Plan.
1.13 Stock. The common stock of the Company, $.01 par value.
PMT SERVICES, INC. 1994 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN
2
<PAGE>
ARTICLE II. PURPOSE OF PLAN
The purpose of the Plan is to maintain the Company's ability to attract and
retain the services of experienced and highly-qualified non-employee directors
and to encourage stock ownership by such directors, and to align the interests
of such individuals with those of the Company, its Affiliates and its
shareholders. It is intended that Participants may acquire or increase their
proprietary interests in the Company and be encouraged to remain in the
directorship of the Company. The proceeds received by the Company from the sale
of Stock pursuant to this Plan may be used for general corporate purposes.
ARTICLE III. ADMINISTRATION
3.1 Administration of Plan. The Plan shall be administered by the
Committee. The express grant in the Plan of any specific power to the Committee
shall not be construed as limiting any power or authority of the Committee. Any
decision made or action taken by the Committee to administer the Plan shall be
final and conclusive. No member of the Committee shall be liable for any act
done in good faith with respect to this Plan or any Agreement or Option. The
Company shall bear all expenses of Plan administration. In addition to all
other authority vested with the Committee under the Plan, the Committee shall
have complete authority to:
(a) Interpret all provisions of this Plan;
(b) Prescribe the form of any Agreement and notice and manner for
executing or giving the same;
(c) Make amendments to all Agreements;
(d) Adopt, amend, and rescind rules for Plan administration; and
(e) Make all determinations it deems advisable for the administration of
this Plan.
3.2 Authority to Grant Options. The Committee shall have authority to
grant Options upon such terms the Committee deems appropriate and that are not
inconsistent with the provisions of this Plan. Such terms may include
conditions on the exercise of all or any part of an Option.
PMT SERVICES, INC. 1994 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN
3
<PAGE>
ARTICLE IV. ELIGIBILITY AND LIMITATIONS ON GRANTS
4.1 Participation. An Option shall be granted on the date of each annual
meeting of the shareholders of the Company (as used in this Section, the "Annual
Meeting") to each individual who, immediately following the Annual Meeting, is a
member of the Board and is not an employee of the Company or of an Affiliate.
The determination of an individual's eligibility to receive an Option hereunder
will be made following the conclusion of each Annual Meeting. Each Option
granted is subject to the following terms:
(a) A one-time grant of 30,000 Options shall be made to each Participant
on August 12, 1994. At each Annual Meeting thereafter, Options shall
be granted to purchase 6,000 shares of Stock. Provided, however, that
the Committee may revoke, on or prior to such Annual Meeting, the next
automatic grant of options otherwise provided for by this Plan if no
Options have been granted since the preceding Annual Meeting to
Company employees under any other employee stock plan of the Company.
(b) An Option granted at an Annual Meeting shall become exercisable
incrementally with respect to the Stock that can be acquired
thereunder, beginning at the Annual Meeting following the date the
Option was granted (each such Annual Meeting being referred to as the
"Anniversary"), as follows: (1) 25% of the Stock subject to the
Option may be acquired on and after the first Anniversary; (2) 50% of
the Stock subject to the Option may be acquired on and after the
second Anniversary; (3) 75% of the Stock subject to the Option may be
acquired on and after the third Anniversary; and (4) 100% of the Stock
subject to the Option may be acquired on and after the fourth
Anniversary. Provided, however, that the right to exercise an Option
shall terminate as set forth in the Plan, including Sections 62 and
83, and as set forth in an Agreement.
(c) All Options granted under this Plan shall be evidenced by Agreements
which shall be subject to applicable provisions of this Plan or such
other provisions as the Committee may adopt that are not inconsistent
with the Plan.
4.2 Grant of Options. An Option shall be deemed to be granted to a
Participant at the time that the Committee designates in a writing that is
adopted by the Committee as the grant of an Option, and that makes reference to
the Participant and the number of shares of Stock that are subject to the
Option. Accordingly, an Option may be deemed to be granted prior to the
approval of this Plan by the shareholders of the Company and prior to the time
that an Agreement is executed by the Participant and the Company.
PMT SERVICES, INC. 1994 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN
4
<PAGE>
ARTICLE V. STOCK SUBJECT TO PLAN
5.1 Source of Shares. Upon the exercise of an Option, the Company shall
deliver to the Participant authorized but previously unissued Stock.
5.2 Maximum Number of Shares. The maximum aggregate number of shares of
Stock that may be issued pursuant to the exercise of Options is 300,000, subject
to increases and adjustments as provided in Article .
5.3 Forfeitures. If any Option granted hereunder expires or terminates
for any reason without having been exercised in full, the shares of Stock
subject thereto shall again be available for issuance of an Option under this
Plan.
ARTICLE VI. EXERCISE OF OPTIONS
6.1 Exercise Price. The exercise price of an Option shall be the price
determined by the Committee at the time that such Option is granted. If the
exercise price of an Option is changed after the date it is granted, such change
shall be deemed to be a termination of the existing Option and the issuance of a
new Option.
6.2 Maximum Exercise Period. The maximum period in which an Option may be
exercised shall be 10 years after the date it is granted.
6.3 Transferability. An Option granted under this Plan may be
transferable to the extent provided in an Agreement. Provided, further, that no
right or interest of a Participant in any Option shall be liable for, or subject
to, any lien, obligation or liability of such Participant.
ARTICLE VII. METHOD OF EXERCISE
7.1 Exercise. An Option granted hereunder shall be deemed to have been
exercised on the Date of Exercise. Subject to the provisions of Articles and ,
an Option may be exercised in whole or in part at such times and in compliance
with such requirements as the Committee shall determine, but in no event sooner
than six months from the date of grant.
7.2 Payment. Unless otherwise provided by the Agreement, payment of the
Option price shall be made in cash or, to the extent approved by the Committee,
Stock that was acquired prior to the exercise of the Option, other consideration
acceptable to the Committee, or a combination thereof.
7.3 Federal Withholding Tax Requirements. Upon exercise of an Option, the
Participant shall, upon notification of the amount due and prior to or
concurrently with the delivery of the certificates representing the shares, pay
to the Company amounts necessary to
PMT SERVICES, INC. 1994 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN
5
<PAGE>
satisfy applicable federal, state and local withholding tax requirements or
shall otherwise make arrangements satisfactory to the Company for such
requirements.
7.4 Shareholder Rights. No Participant shall have any rights as a
stockholder with respect to shares subject to Options prior to the Date of
Exercise of such Option.
7.5 Issuance and Delivery of Shares. Shares of Stock issued pursuant to
the exercise of Options hereunder shall be delivered to Participants by the
Company (or its transfer agent) as soon as administratively feasible after a
Participant exercises an Option hereunder and executes any applicable
shareholder agreement or agreement described in Section 92 that the Company
requires at the time of exercise.
ARTICLE VIII. ADJUSTMENT UPON CORPORATE CHANGES
8.1 Adjustments to Shares. The maximum number of shares of stock with
respect to which Options hereunder may be granted and which are the subject of
outstanding Options, and the exercise price thereof, shall be adjusted as the
Committee determines (in its sole discretion) to be appropriate, in the event
that:
(a) the Company or an Affiliate effects one or more stock dividends, stock
splits, reverse stock splits, subdivisions, consolidations or other
similar events;
(b) the Company or an Affiliate engages in a transaction to which section
424 of the Code applies; or
(c) there occurs any other event which in the judgment of the Committee
necessitates such action;
Provided, however, that if an event described in paragraph (a) or (b) occurs,
the Committee shall make adjustments to the limit on Options specified in
Section 52 that are proportionate to the modifications of the Stock that are on
account of such corporate changes. Notwithstanding the foregoing, the Committee
may not modify the Plan or the terms of any Options then outstanding or to be
granted hereunder to provide for the issuance under the Plan of a different
class of stock or kind of securities.
8.2 Substitution of Awards on Merger or Acquisition. The Committee may
grant Options in substitution for stock options or similar awards held by an
individual who becomes an employee or director of the Company or an Affiliate in
connection with a transaction to which section 424(a) of the Code applies. The
terms of such substituted Awards shall be determined by the Committee in its
sole discretion, subject only to the limitations of Article .
8.3 Effect of Certain Transactions. The provisions of this Section 83
shall apply to the extent that an Agreement does not otherwise expressly address
the matters contained herein.
PMT SERVICES, INC. 1994 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN
6
<PAGE>
Upon a merger, consolidation, acquisition of property or stock, separation,
reorganization or liquidation of the Company, as a result of which the
shareholders of the Company receive cash, stock or other property in exchange
for their shares of Stock (but not a public offering of Stock by the Company),
and the Company is not the surviving entity (or survives only as a subsidiary
that is controlled by another entity), any Award granted hereunder shall
terminate, provided that the Participant shall have the right immediately prior
to any such merger, consolidation, acquisition of property or stock, separation,
reorganization or liquidation to exercise his Awards in whole or in part,
whether or not the vesting requirements set forth in any Agreement have been
satisfied, unless the Committee elects to convert all Awards hereunder into
stock incentive awards of an acquiring corporation. Provided, however, that,
notwithstanding the foregoing, a portion of the acceleration of exercisability
of Awards shall not occur with respect to any holder to the extent that such
portion of acceleration would cause the Participant or holder of such Award to
be liable for the payment of taxes pursuant to section 4999 of the Code. If the
Committee so elects to convert the Awards, the amount and price of such
converted options shall be determined by adjusting the amount and price of the
Awards granted hereunder in the same proportion as used for determining the
number of shares of stock of the acquiring corporation the holders of the Stock
receive in such merger, consolidation, acquisition of property or stock,
separation or reorganization, and the vesting schedule set forth in the
Agreement shall continue to apply to the converted options.
8.4 No Adjustment Upon Certain Transactions. The issuance by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, for cash or property, or for labor or services rendered, either
upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, outstanding Options.
8.5 Fractional Shares. Only whole shares of Stock may be acquired through
the exercise of an Option. Any amounts tendered in the exercise of an Option
remaining after the maximum number of whole shares have been purchased will be
returned to the Participant.
ARTICLE IX. COMPLIANCE WITH LAW AND REGULATORY APPROVAL
9.1 General. No Option shall be exercisable, no Stock shall be issued, no
certificates for shares of Stock shall be delivered, and no payment shall be
made under this Plan except in compliance with all federal or state laws and
regulations (including, without limitation, withholding tax requirements),
federal and state securities laws and regulations and the rules of all
securities exchanges or self-regulatory organizations on which the Company's
shares may be listed. The Company shall have the right to rely on an opinion of
its counsel as to such compliance. Any certificate issued to evidence shares of
Stock for which an Option is exercised may bear such legends and statements as
the Committee upon advice of counsel may deem advisable to assure compliance
with federal or state laws and regulations. No Option shall be exercisable, no
Stock shall be issued, no certificate for shares shall be delivered and no
payment
PMT SERVICES, INC. 1994 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN
7
<PAGE>
shall be made under this Plan until the Company has obtained such consent or
approval as the Committee may deem advisable from any regulatory bodies having
jurisdiction over such matters.
9.2 Representations by Participants. As a condition to the exercise of an
Option, the Company may require a Participant 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 representation is required
by any relevant provision of the laws referred to in Section 91. At the option
of the Company, a stop transfer order against any shares of stock may be placed
on the official stock books and records of the Company, and a legend indicating
that the stock may not be pledged, sold or otherwise transferred unless an
opinion of counsel was provided (concurred in by counsel for the Company) and
stating that such transfer is not in violation of any applicable law or
regulation may be stamped on the stock certificate in order to assure exemption
from registration. The Committee may also require such other action or
agreement by the Participants as may from time to time be necessary to comply
with federal or state securities laws. This provision shall not obligate the
Company or any Affiliate to undertake registration of options or stock
hereunder.
ARTICLE X. GENERAL PROVISIONS
10.1 Unfunded Plan. The Plan, insofar as it provides for grants, shall be
unfunded, and the Company shall not be required to segregate any assets that may
at any time be represented by grants under this Plan. Any liability of the
Company to any person with respect to any grant under this Plan shall be based
solely upon contractual obligations that may be created hereunder. No such
obligation of the Company shall be deemed to be secured by any pledge of, or
other encumbrance on, any property of the Company.
10.2 Rules of Construction. Headings are given to the articles and
sections of this Plan solely as a convenience to facilitate reference. The
masculine gender when used herein refers to both masculine and feminine. The
reference to any statute, regulation or other provision of law shall be
construed to refer to any amendment to or successor of such provision of law.
10.3 Governing Law. The internal laws of the State of Tennessee shall
apply to all matters arising under this Plan, except to the extent that federal
law does not otherwise apply or preempt Tennessee law.
10.4 Compliance With Section 16 of the Exchange Act. Transactions under
this Plan are intended to comply with all applicable conditions of Rule 16b-3
(or successor provisions) under the Exchange Act. To the extent any provision
of this Plan or action by Committee fails to so comply, it shall be deemed null
and void to the extent permitted by law and deemed advisable by the Committee.
PMT SERVICES, INC. 1994 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN
8
<PAGE>
10.5 Amendment. The Board may amend or terminate this Plan at any time;
provided, however, an amendment that would have a material adverse effect on the
rights of a Participant under an outstanding Option is not valid with respect to
such Option without the Participant's consent; and provided, further, that the
shareholders of the Company must approve, in general meeting, before the
effective date thereof, any amendment that changes the number of shares in the
aggregate which may be issued pursuant to Options granted under the Plan.
Moreover, shareholder approval shall not be required for minor amendments to the
Plan that are intended to benefit the administration of the plan, for amendments
necessitated by changes in legislation or administrative rules governing the
Plan, or for amendments that the Board deems necessary to obtain or maintain
favorable tax, securities exchange or regulatory treatment of the Plan for
future Participants.
10.6 Duration of Plan. This Plan shall continue until it is terminated by
the Board pursuant to Section 105.
10.7 Effective Date of Plan. This Plan was first adopted by the Board on
May 13, 1994, and was thereafter approved by the shareholders of the Company.
Effective September 10, 1997, all Awards granted hereunder shall be governed by
the terms of this amended and restated Plan; provided, however, that the terms
of the Plan prior to this amendment shall apply to the extent that the terms of
this restated Plan would have a material adverse effect on the rights of a
Participant under an outstanding Award, unless the Participant has given consent
to the change.
EXECUTION
IN WITNESS WHEREOF, the undersigned officer has executed this restated and
amended Plan on this the _____ day of ____________, 1997, but to be effective as
of the dates specified in Section 107.
PMT SERVICES, INC.
By: _______________________________
Its: _______________________________
PMT SERVICES, INC. 1994 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN
9
<PAGE>
EXHIBIT 5.3
PMT SERVICES, INC.
1997 EXECUTIVE STOCK INCENTIVE PLAN
EFFECTIVE SEPTEMBER 10, 1997
<PAGE>
PMT SERVICES, INC. 1997 EXECUTIVE STOCK INCENTIVE PLAN
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS
1.1 Affiliate.............................................................. 1
1.2 Agreement.............................................................. 1
1.3 Award.................................................................. 1
1.4 Board.................................................................. 1
1.5 Code................................................................... 1
1.6 Committee.............................................................. 2
1.7 Company................................................................ 2
1.8 Date of Exercise....................................................... 2
1.9 Exchange Act........................................................... 2
1.10 Fair Market Value...................................................... 2
1.11 Incentive Option....................................................... 3
1.12 Nonqualified Option.................................................... 3
1.13 Option................................................................. 3
1.14 Participant............................................................ 3
1.15 Plan................................................................... 3
1.16 SAR.................................................................... 3
1.17 Stock.................................................................. 3
1.18 Ten Percent Shareholder................................................ 3
ARTICLE II. PURPOSE OF PLAN 3
ARTICLE III. ADMINISTRATION
3.1 Administration of Plan.................................................. 4
3.2 Authority to Grant Awards............................................... 4
3.3 Persons Subject to Section 16(b)........................................ 4
ARTICLE IV. ELIGIBILITY AND LIMITATIONS ON GRANTS
4.1 Participation........................................................... 4
4.2 Grant of Awards......................................................... 5
4.3 Limitations on Grants................................................... 5
4.4 Limitation on Incentive Options......................................... 5
4.5 Stock Appreciation Rights............................................... 5
PMT SERVICES, INC. 1997 EXECUTIVE
STOCK INCENTIVE PLAN
i
<PAGE>
ARTICLE V. STOCK SUBJECT TO PLAN
5.1 Source of Shares....................................................... 6
5.2 Maximum Number of Shares............................................... 6
5.3 Forfeitures............................................................ 6
ARTICLE VI. EXERCISE OF AWARDS
6.1 Exercise Price......................................................... 6
6.2 Right to Exercise...................................................... 6
6.3 Maximum Exercise Period................................................ 6
6.4 Transferability........................................................ 7
6.5 Employee Status........................................................ 7
ARTICLE VII. METHOD OF EXERCISE
7.1 Exercise............................................................... 7
7.2 Payment................................................................ 7
7.3 Federal Withholding Tax Requirements................................... 7
7.4 Shareholder Rights..................................................... 7
7.5 Issuance and Delivery of Shares........................................ 8
ARTICLE VIII. ADJUSTMENT UPON CORPORATE CHANGES
8.1 Adjustments to Shares.................................................. 8
8.2 Substitution of Awards on Merger or Acquisition........................ 8
8.3 Effect of Certain Transactions......................................... 8
8.4 No Adjustment Upon Certain Transactions................................ 9
8.5 Fractional Shares...................................................... 9
ARTICLE IX. COMPLIANCE WITH LAW AND REGULATORY APPROVAL
9.1 General................................................................ 9
9.2 Representations by Participants........................................ 10
ARTICLE X. GENERAL PROVISIONS
10.1 Effect on Employment................................................... 10
10.2 Unfunded Plan.......................................................... 10
10.3 Rules of Construction.................................................. 10
10.4 Governing Law.......................................................... 10
10.5 Compliance With Section 16 of the Exchange Act......................... 10
10.6 Amendment.............................................................. 11
PMT SERVICES, INC. 1997 EXECUTIVE
STOCK INCENTIVE PLAN
ii
<PAGE>
10.7 Duration of Plan...................................................... 11
10.8 Effective Date of Plan................................................ 11
PMT SERVICES, INC. 1997 EXECUTIVE
STOCK INCENTIVE PLAN
iii
<PAGE>
PMT SERVICES, INC. 1997 EXECUTIVE STOCK INCENTIVE PLAN
PREAMBLE
WHEREAS, PMT Services, Inc. (the "Company") desires to establish a plan
through which the Company may award options to purchase the common stock of the
Company, $.01 par value ("Stock"), and Stock appreciation rights to officers,
employees and consultants of the Company and its affiliates;
WHEREAS, the Company intends that the Plan provide for the granting of
options that qualify as "incentive stock options" within the meaning of section
422 of the Internal Revenue Code;
WHEREAS, the Company intends that this Plan and awards granted hereunder
will (i) qualify as "performance-based compensation" described in section
162(m)(4)(C) of the Internal Revenue Code, and (ii) conform to the provisions of
Securities and Exchange Commission Rule 16b-3; and
WHEREAS, although the Company has previously established benefit plans for
awarding stock incentives, the Company contemplates that this arrangement will
be primarily utilized for awarding stock incentives to individuals who are
subject to liability under section 16 of the Securities Exchange Act of 1934 or
who potentially are "covered employees" described in section 162(m)(3) of the
Internal Revenue Code;
NOW, THEREFORE, the Company hereby establishes the PMT Services, Inc. 1997
Executive Stock Incentive Plan (the "Plan"), effective September 10, 1997:
ARTICLE I. DEFINITIONS
1.1 Affiliate. A "parent corporation," as defined in section 424(e) of
the Code, or "subsidiary corporation," as defined in section 424(f) of the Code,
of the Company.
1.2 Agreement. A written agreement (including any amendment or supplement
thereto) between the Company or Affiliate and a Participant specifying the terms
and conditions of an Award granted to such Participant.
1.3 Award. A right that is granted under the Plan to a Participant by the
Company, including Options and SARs.
1.4 Board. The board of directors of the Company.
1.5 Code. The Internal Revenue Code of 1986, as amended.
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1.6 Committee. A committee composed of at least two individuals (or such
number that satisfies section 162(m)(4)(C) of the Code and Rule 16b-3 of the
Exchange Act) who are members of the Board and are not employees of the Company
or an Affiliate, and who are designated by the Board as the "compensation
committee" or are otherwise designated to administer the Plan. In the absence
of a designation of a Committee by the Board, the Board shall be the Committee.
1.7 Company. PMT Services, Inc. and its successors.
1.8 Date of Exercise. The date that the Company accepts tender of the
exercise price of an Award, if any, or accepts an election to exercise rights
under an SAR.
1.9 Exchange Act. The Securities Exchange Act of 1934, as amended.
1.10 Fair Market Value. On any given date, Fair Market Value shall be the
applicable description below (unless, where appropriate, the Committee
determines in good faith the fair market value of the Stock to be otherwise):
(a) If the Stock is reported on the Nasdaq National Market System or
another Nasdaq automated quotation system, and market information is
published on a regular basis, then Fair Market Value shall be the
closing price of the Stock, as so published, on the trading day
immediately preceding the date as of which Fair Market Value is being
determined, or the closing price on the next preceding trading day on
which such prices were published if no Stock was traded on such
trading day.
(b) If the Stock is not traded on the Nasdaq National Market System or
another Nasdaq automated quotation system but is reported on the New
York Stock Exchange or the American Stock Exchange, then Fair Market
Value shall be the the closing price of the Stock on such exchange on
which such Stock is traded on the trading day immediately preceding
the date as of which Fair Market Value is being determined, or on the
next preceding day on which such Stock is traded if no Stock was
traded on such trading day.
(c) If market information is not so published on a regular basis, then
Fair Market Value shall be the average of the high bid and low asked
prices of the Stock in the over-the-counter market over a period of
trading days that is reasonably representative of the normal trading
of the Stock immediately preceding the date on which Fair Market Value
is being determined, as reported by a generally accepted reporting
service.
(d) If the Stock is not publicly traded, Fair Market Value shall be the
value determined in good faith by the Committee or the Board. However,
such determination shall not take into account any restriction on the
stock, except for a restriction which by its terms will never lapse.
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1.11 Incentive Option. An Option that is intended to qualify as an
"incentive stock option" within the meaning of section 422 of the Code. An
Incentive Option, or a portion thereof, shall not be invalid for failure to
qualify under section 422 of the Code, but shall be treated as a Nonqualified
Option.
1.12 Nonqualified Option. An Option that is not an Incentive Option.
1.13 Option. The right that is granted hereunder to a Participant to
purchase from the Company a stated number of shares of Stock at the price set
forth in an Agreement. As used herein, an Option includes both Incentive
Options and Nonqualified Options.
1.14 Participant. An officer, employee or consultant of the Company or of
an Affiliate who either satisfies the requirements of Article and is selected
by the Committee to receive an Award, or receives an Award pursuant to grant
specified in this Plan.
1.15 Plan. The PMT Services, Inc. 1997 Executive Stock Incentive Plan.
1.16 SAR. A right to receive compensation hereunder calculated by
reference to the increase in the value of a certain number of shares of Stock
from the date of an award, as described in Section 45. An SAR is an unfunded,
unsecured promise of the Company to the Participant. Unless otherwise stated in
an Agreement, or unless the Committee in its discretion honors the exercise of
an SAR by issuing Stock, the holder of an SAR has no beneficial rights of Stock
ownership or to receive shares of stock.
1.17 Stock. The common stock of the Company, $.01 par value.
1.18 Ten Percent Shareholder. An individual who owns more than 10% of the
total combined voting power of all classes of stock of the Company or an
Affiliate at the time he is granted an Incentive Option. For the purpose of
determining if an individual is a Ten Percent Shareholder, he shall be deemed to
own any voting stock owned (directly or indirectly) by or for his brothers and
sisters (whether by whole or half blood), spouse, ancestors or lineal
descendants and shall be considered to own proportionately any voting stock
owned (directly or indirectly) by or for a corporation, partnership, estate or
trust of which such individual is a shareholder, partner or beneficiary.
ARTICLE II. PURPOSE OF PLAN
The purpose of the Plan is to provide a performance incentive and to
encourage stock ownership by officers, employees and consultants of the Company
and its Affiliates, and to align the interests of such individuals with those of
the Company, its Affiliates and its shareholders. It is intended that
Participants may acquire or increase their proprietary interests in the Company
and be encouraged to remain in the employ of the Company or of its Affiliates.
The proceeds received by
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the Company from the sale of Stock pursuant to this Plan may be used for general
corporate purposes.
ARTICLE III. ADMINISTRATION
3.1 Administration of Plan. The Plan shall be administered by the
Committee. The express grant in the Plan of any specific power to the Committee
shall not be construed as limiting any power or authority of the Committee. Any
decision made or action taken by the Committee to administer the Plan shall be
final and conclusive. No member of the Committee shall be liable for any act
done in good faith with respect to this Plan or any Agreement or Award. The
Company shall bear all expenses of Plan administration. In addition to all
other authority vested with the Committee under the Plan, the Committee shall
have complete authority to:
(a) Interpret all provisions of this Plan;
(b) Prescribe the form of any Agreement and notice and manner for
executing or giving the same;
(c) Make amendments to all Agreements;
(d) Adopt, amend, and rescind rules for Plan administration; and
(e) Make all determinations it deems advisable for the administration of
this Plan.
3.2 Authority to Grant Awards. The Committee shall have authority to
grant Awards upon such terms the Committee deems appropriate and that are not
inconsistent with the provisions of this Plan. Such terms may include
conditions on the exercise of all or any part of an Award.
3.3 Persons Subject to Section 16(b). Notwithstanding anything in the
Plan to the contrary, the Committee, in its absolute discretion, may bifurcate
the Plan so as to restrict, limit or condition the use of any provision of the
Plan to participants who are officers subject to section 16(b) of the Exchange
Act, without so restricting, limiting or conditioning the Plan with respect to
other Participants.
ARTICLE IV. ELIGIBILITY AND LIMITATIONS ON GRANTS
4.1 Participation. The Committee may from time to time designate
employees, consultants and advisors to whom Awards are to be granted and who are
eligible to become Participants. Such designation shall specify the number of
shares of Stock, if any, subject to each Award. All Awards granted under this
Plan shall be evidenced by Agreements which shall be subject to applicable
provisions of this Plan or such other provisions as the Committee may adopt that
are not inconsistent with the Plan.
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4.2 Grant of Awards. An Award shall be deemed to be granted to a
Participant at the time that the Committee designates in a writing that is
adopted by the Committee as the grant of an Award, and that makes reference to
the Participant and the number of shares of Stock that are subject to the Award.
Accordingly, an Award may be deemed to be granted prior to the approval of this
Plan by the shareholders of the Company and prior to the time that an Agreement
is executed by the Participant and the Company.
4.3 Limitations on Grants. A person who is not an employee of the Company
or an Affiliate is not eligible to receive an Incentive Option. No person may
receive Awards with respect to more than 400,000 shares of Stock (subject to
increases and adjustments as provided in Article VIII) in any one-year period.
4.4 Limitation on Incentive Options. To the extent that the aggregate
Fair Market Value of Stock with respect to which Incentive Options are
exercisable for the first time by a Participant during any calendar year (under
all stock incentive plans of the Company and its Affiliates) exceeds $100,000
(or the amount specified in section 422 of the Code), determined as of the date
an Incentive Option is granted, such Options shall be treated as Nonqualified
Options. This provision shall be applied by taking Incentive Options into
account in the order in which they were granted.
4.5 Stock Appreciation Rights. The Committee may grant an SAR to a
Participant either in tandem with the grant of an Award, or as an award that is
separate from any Award granted under the Plan. Subject to the terms of an
Agreement, a Participant who receives an SAR shall have the right, upon written
request, to surrender any exercisable Award, or portion thereof, in exchange for
cash, whole shares of Stock, or a combination thereof, as determined by the
Committee, with a value equal to the excess of the Fair Market Value, as of the
date of such request, of one share of Stock over the Fair Market Value of the
Stock on the Date of Grant (or such other value specified in the Agreement),
multiplied by the number of shares covered by the SAR or portion thereof to be
surrendered. In the case of any SAR which is granted in connection with an
Incentive Option, such SAR shall be exercisable only when the Fair Market Value
of the Common Stock exceeds the price specified therefor in the SAR or portion
thereof to be surrendered. In the event of the exercise of any SAR granted
hereunder, the number of shares reserved for issuance under the Plan shall be
reduced only to the extent that shares of Stock are actually issued in
connection with the exercise of such SAR.
ARTICLE V. STOCK SUBJECT TO PLAN
5.1 Source of Shares. Upon the exercise of an Option, the Company shall
deliver to the Participant authorized but previously unissued Stock.
5.2 Maximum Number of Shares. The maximum aggregate number of shares of
Stock that may be issued pursuant to the exercise of Awards is 600,000, subject
to increases and adjust-
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ments as provided in Article . The aggregate number of SARs that may be granted
shall be determined by the Committee.
5.3 Forfeitures. If any Award granted hereunder expires or terminates for
any reason without having been exercised in full, the shares of Stock subject
thereto shall again be available for issuance of an Award under this Plan.
ARTICLE VI. EXERCISE OF AWARDS
6.1 Exercise Price. The exercise price of an Incentive Option shall not
be less than 100% of the Fair Market Value of a share of Stock on the date the
Incentive Option is granted. In the case of a Ten Percent Shareholder, however,
the exercise price of an Incentive Option shall not be less than 110% of the
Fair Market Value of a share of Stock on the date the Incentive Option is
granted. The exercise price of a Nonqualified Option or an SAR shall be the
price determined by the Committee at the time that such Award is granted. If
the exercise price of an Award is changed after the date it is granted, such
change shall be deemed to be a termination of the existing Award and the
issuance of a new Award.
6.2 Right to Exercise. An Award shall be exercisable on the date of grant
or on any other date established by the Committee or provided for in an
Agreement, provided, however, that Awards granted to officers subject to section
16 of the Exchange Act shall not be exercisable until at least six months after
the Award is granted. A Participant must exercise an Incentive Option while he
is an employee of the Company or an Affiliate or within the periods that may be
specified in the Agreement after termination of employment, death, disability or
a "change of control" (as defined in any change of control agreement to which
the Company and any such Participant are parties).
6.3 Maximum Exercise Period. The maximum period in which an Award may be
exercised shall be determined by the Committee on the date of grant except that
no Incentive Option shall be exercisable after the expiration of 10 years (five
years in the case of Incentive Options granted to a Ten Percent Shareholder)
from the date it was granted. The terms of any Award may provide that it is
exercisable for a shorter period. All Incentive Options shall terminate on the
date the Participant's employment with the Company terminates, except as
otherwise provided in the Agreement with respect to termination of employment,
death, disability or a "change of control" (as defined in any change of control
agreement to which the Company and any such Participant are parties).
6.4 Transferability. Generally, any Award granted under this Plan shall
not be transferable except by will or by the laws of descent and distribution,
and shall be exercisable during the lifetime of the Participant only by the
Participant. However, a Nonqualified Option or an SAR granted under this Plan
may be transferable to the extent provided in an Agreement. Provided, further,
that no right or interest of a Participant in any Award shall be liable for, or
subject to, any lien, obligation or liability of such Participant.
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6.5 Employee Status. The Committee shall determine the extent to which a
leave of absence for military or government service, illness, temporary
disability, or other reasons shall be treated as a termination or interruption
of employment for purposes of determining questions of forfeiture and exercise
of an Award after termination of employment; provided, however, that if the
period treated as employment with respect to an Incentive Option exceeds three
months, such Option shall be deemed a Nonqualified Option.
ARTICLE VII. METHOD OF EXERCISE
7.1 Exercise. An Award granted hereunder shall be deemed to have been
exercised on the Date of Exercise. Subject to the provisions of Articles and ,
an Award may be exercised in whole or in part at such times and in compliance
with such requirements as the Committee shall determine.
7.2 Payment. Unless otherwise provided by the Agreement, payment of the
Award price shall be made in cash or, to the extent approved by the Committee,
Stock that was acquired prior to the exercise of the Award, other consideration
acceptable to the Committee, or a combination thereof.
7.3 Federal Withholding Tax Requirements. Upon exercise of a Nonqualified
Option or an SAR by a Participant who is an employee of the Company or an
Affiliate, the Participant shall, upon notification of the amount due and prior
to or concurrently with the delivery of the certificates representing the
shares, pay to the Company amounts necessary to satisfy applicable federal,
state and local withholding tax requirements or shall otherwise make
arrangements satisfactory to the Company for such requirements. Such
withholding requirements shall not apply to the exercise of an Incentive Option,
or to a disqualifying disposition of Stock that is acquired with an Incentive
Option, unless the Committee gives the Participant notice that withholding
described in this Section is required.
7.4 Shareholder Rights. No Participant shall have any rights as a
stockholder with respect to shares subject to Options or SARs prior to the Date
of Exercise of such Award. No Participant shall acquire rights as a stockholder
through the grant or exercise of an SAR, except to the extent which the
Committee, in its sole discretion, issues Stock to the Participant as payment
upon the exercise of the SAR.
7.5 Issuance and Delivery of Shares. Shares of Stock issued pursuant to
the exercise of Awards hereunder shall be delivered to Participants by the
Company (or its transfer agent) as soon as administratively feasible after a
Participant exercises an Award hereunder and executes any applicable shareholder
agreement or agreement described in Section 92 that the Company requires at the
time of exercise.
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ARTICLE VIII. ADJUSTMENT UPON CORPORATE CHANGES
8.1 Adjustments to Shares. The maximum number of shares of stock with
respect to which Awards hereunder may be granted and which are the subject of
outstanding Awards, and the exercise price thereof, shall be adjusted as the
Committee determines (in its sole discretion) to be appropriate, in the event
that:
(a) the Company or an Affiliate effects one or more stock dividends, stock
splits, reverse stock splits, subdivisions, consolidations or other
similar events;
(b) the Company or an Affiliate engages in a transaction to which section
424 of the Code applies; or
(c) there occurs any other event which in the judgment of the Committee
necessitates such action;
Provided, however, that if an event described in paragraph (a) or (b) occurs,
the Committee shall make adjustments to the limits on Awards specified in
Sections 43 and 52 that are proportionate to the modifications of the Stock that
are on account of such corporate changes. Notwithstanding the foregoing, the
Committee may not modify the Plan or the terms of any Awards then outstanding or
to be granted hereunder to provide for the issuance under the Plan of a
different class of stock or kind of securities.
8.2 Substitution of Awards on Merger or Acquisition. The Committee may
grant Awards in substitution for stock awards, stock options, stock appreciation
rights or similar awards held by an individual who becomes an employee of the
Company or an Affiliate in connection with a transaction to which section 424(a)
of the Code applies. The terms of such substituted Awards shall be determined
by the Committee in its sole discretion, subject only to the limitations of
Article .
8.3 Effect of Certain Transactions. The provisions of this Section 83
shall apply to the extent that an Agreement does not otherwise expressly address
the matters contained herein. Upon a merger, consolidation, acquisition of
property or stock, separation, reorganization or liquidation of the Company, as
a result of which the shareholders of the Company receive cash, stock or other
property in exchange for their shares of Stock (but not a public offering of
Stock by the Company), and the Company is not the surviving entity (or survives
only as a subsidiary that is controlled by another entity), any Award granted
hereunder shall terminate, provided that the Participant shall have the right
immediately prior to any such merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation to exercise his Awards in whole
or in part, whether or not the vesting requirements set forth in any Agreement
have been satisfied, unless the Committee elects to convert all Awards hereunder
into stock incentive awards of an acquiring corporation. Provided, however,
that, notwithstanding the foregoing, a portion of the acceleration of
exercisability of Awards shall not occur with respect to any holder to the
extent that such portion of acceleration would cause the Participant or holder
of such Award to be liable for the payment of taxes pursuant
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to section 4999 of the Code. If the Committee so elects to convert the Awards,
the amount and price of such converted options shall be determined by adjusting
the amount and price of the Awards granted hereunder in the same proportion as
used for determining the number of shares of stock of the acquiring corporation
the holders of the Stock receive in such merger, consolidation, acquisition of
property or stock, separation or reorganization, and the vesting schedule set
forth in the Agreement shall continue to apply to the converted options.
8.4 No Adjustment Upon Certain Transactions. The issuance by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, for cash or property, or for labor or services rendered, either
upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, outstanding Awards.
8.5 Fractional Shares. Only whole shares of Stock may be acquired through
the exercise of an Award. Any amounts tendered in the exercise of an Award
remaining after the maximum number of whole shares have been purchased will be
returned to the Participant.
ARTICLE IX. COMPLIANCE WITH LAW AND REGULATORY APPROVAL
9.1 General. No Award shall be exercisable, no Stock shall be issued, no
certificates for shares of Stock shall be delivered, and no payment shall be
made under this Plan except in compliance with all federal or state laws and
regulations (including, without limitation, withholding tax requirements),
federal and state securities laws and regulations and the rules of all
securities exchanges or self-regulatory organizations on which the Company's
shares may be listed. The Company shall have the right to rely on an opinion of
its counsel as to such compliance. Any certificate issued to evidence shares of
Stock for which an Award is exercised may bear such legends and statements as
the Committee upon advice of counsel may deem advisable to assure compliance
with federal or state laws and regulations. No Award shall be exercisable, no
Stock shall be issued, no certificate for shares shall be delivered and no
payment shall be made under this Plan until the Company has obtained such
consent or approval as the Committee may deem advisable from any regulatory
bodies having jurisdiction over such matters.
9.2 Representations by Participants. As a condition to the exercise of an
Award, the Company may require a Participant 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 representation is required
by any relevant provision of the laws referred to in Section 91. At the option
of the Company, a stop transfer order against any shares of stock may be placed
on the official stock books and records of the Company, and a legend indicating
that the stock may not be pledged, sold or otherwise transferred unless an
opinion of counsel was provided (concurred in by counsel for the Company) and
stating that such transfer is not in violation of any applicable law or
regulation may be stamped on the stock certificate in order to assure exemption
from registration. The Committee may also
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require such other action or agreement by the Participants as may from time to
time be necessary to comply with federal or state securities laws. This
provision shall not obligate the Company or any Affiliate to undertake
registration of options or stock hereunder.
ARTICLE X. GENERAL PROVISIONS
10.1 Effect on Employment. Neither the adoption of this Plan, its
operation, nor any documents describing or referring to this Plan (or any part
thereof) shall confer upon any employee any right to continue in the employ of
the Company or an Affiliate or in any way affect any right and power of the
Company or an Affiliate to terminate the employment of any employee at any time
with or without assigning a reason therefor.
10.2 Unfunded Plan. The Plan, insofar as it provides for grants, shall be
unfunded, and the Company shall not be required to segregate any assets that may
at any time be represented by grants under this Plan. Any liability of the
Company to any person with respect to any grant under this Plan shall be based
solely upon contractual obligations that may be created hereunder. No such
obligation of the Company shall be deemed to be secured by any pledge of, or
other encumbrance on, any property of the Company.
10.3 Rules of Construction. Headings are given to the articles and
sections of this Plan solely as a convenience to facilitate reference. The
masculine gender when used herein refers to both masculine and feminine. The
reference to any statute, regulation or other provision of law shall be
construed to refer to any amendment to or successor of such provision of law.
10.4 Governing Law. The laws of the State of Tennessee shall apply to all
matters arising under this Plan, to the extent that federal law does not
otherwise apply or preempt Tennessee law.
10.5 Compliance With Section 16 of the Exchange Act. With respect to
persons subject to liability under section 16 of the Exchange Act, transactions
under this Plan are intended to comply with all applicable conditions of Rule
16b-3 (or successor provisions) under the Exchange Act. To the extent any
provision of this Plan or action by Committee fails to so comply, it shall be
deemed null and void to the extent permitted by law and deemed advisable by the
Committee.
10.6 Amendment. The Board may amend or terminate this Plan at any time;
provided, however, an amendment that would have a material adverse effect on the
rights of a Participant under an outstanding Award is not valid with respect to
such Award without the Participant's consent, except as necessary for Incentive
Options to maintain qualification under the Code; and provided, further, that
the shareholders of the Company must approve, in general meeting:
(a) 12 months before or after the date of adoption, any amendment that
increases the aggregate number of shares of Stock that may be issued
under Incentive Options or changes the employees (or class of
employees) eligible to receive Incentive Options;
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(b) before the effective date thereof, any amendment that changes the
number of shares in the aggregate which may be issued pursuant to
Awards granted under the Plan or the maximum number of shares with
respect to which any individual may receive options in any calendar
year, except pursuant to Article ; and
(c) before the effective date thereof, any amendment that increases the
period during which Awards may be granted or exercised.
Moreover, shareholder approval shall not be required for minor amendments to the
Plan that are intended to benefit the administration of the plan, for amendments
necessitated by changes in legislation or administrative rules governing the
Plan, or for amendments that the Board deems necessary to obtain or maintain
favorable tax, securities exchange or regulatory treatment of the Plan for
future Participants.
10.7 Duration of Plan. This Plan shall continue until it is terminated by
the Board pursuant to Section 106. However, no Incentive Option may be granted
under this Plan more than 10 years after the earlier of the date that the Plan
is adopted by the Board or the date that the Plan is approved by shareholders as
provided in Section 108. Incentive Options granted before such date shall
remain valid in accordance with their terms.
10.8 Effective Date of Plan. This Plan shall be effective on the date of
its adoption by the Board, September 10, 1997. Awards may be granted hereunder
at any time after such adoption; provided, however, that the effectiveness of
this Plan will be retroactively revoked if it is not approved by the
shareholders of the Company in a manner that satisfies Treasury Regulation
section 1.422-5 within 12 months of the date that the Board took action to adopt
the Plan. All Awards granted under the Plan will become void immediately
following the 12-month anniversary of the date the Board adopted the Plan if
such approval by shareholders has not yet been obtained.
EXECUTION
IN WITNESS WHEREOF, the undersigned officer has executed this Plan on this
the _____ day of _________, 1997, but to be effective as provided in Section
108.
PMT SERVICES, INC.
By: _______________________________
Its: _______________________________
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