SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under the Securities Act of 1933
SEEC, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 55-0686906
(State of other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Park West One, Suite 200
Cliff Mine Road
Pittsburgh, PA 15275
(Address of Principal (zip code)
Executive Offices)
SEEC, INC. 1998 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
---------------------
Ravindra Koka
President, Chief Executive Officer and Director
SEEC, Inc.
Park West One, Suite 200
Cliff Mine Road
Pittsburgh, PA 15275
(Name and address of agent for service)
(412) 893-0422
(Telephone number, including area code, of agent for service)
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
-------------------------------
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share(1) offering price(1) fee(1)
- ---------- ---------- -------------- ----------------- ------------
<S> <C> <C> <C> <C>
Common Stock 300,000(2) $5.13 $1,539,000 $454.00
$.01 par value
</TABLE>
(1) Estimated solely for the purpose of calculating the registration
fee:Calculated pursuant to Rule 457(c) based upon the market value
per share of SEEC, Inc. Common Stock as of August 21, 1998.
(2) There are also being registered hereunder such number of additional
Shares of Common Stock which may become available for purchase in
accordance with the provisions of the Plan in the event of any
change in the outstanding shares of SEEC, Inc., including a stock
dividend or stock split.
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
- ---------------------------------------------------
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by SEEC, Inc. ("SEEC" or the
"Company") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference into this Registration
Statement:
1. SEEC's Annual Report on Form 10-K for the fiscal year
ended March 31, 1998.
2. SEEC's Quarterly Report on Form 10-Q for the three-
month period ended June 30, 1998.
3. SEEC's Report of Form 8-K dated July 20, 1998.
4. SEEC's definitive Proxy Statement filed with the
Commission pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended, (the "Exchange
Act"), in connection with the Annual Meeting of
Shareholders of SEEC held on August 6, 1998.
5. The description of SEEC's Common Stock, par value
$0.01 per share (the "Common Stock"), contained in
Form S-1, Registration Statement No. 333-40171.
All documents subsequently filed by SEEC with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the date of this Registration Statement, but prior to the filing
of a post-effective amendment to this Registration Statement which
indicates that all securities offered by this Registration Statement
have been sold or which deregisters all such securities then remaining
unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be part thereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered under the Registration
Statement is registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the securities offered hereby will be passed
upon by Cohen & Grigsby, P.C., 2900 CNG Tower, 625 Liberty Avenue,
Pittsburgh, Pennsylvania, counsel to SEEC.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The effect of charter, by-law, statutory and other
provisions whereby the directors and officers of SEEC may be insured or
indemnified against liability as officers and directors are set out
below:
Sections 1741 through 1750 of Subchapter D, Chapter 17, of
the Pennsylvania Business Corporation Law of 1988 (the "BCL") contain
provisions for mandatory and discretionary indemnification of a
corporation's directors, officers and other personnel, and related
matters.
Under Section 1741, subject to certain limitations, a
corporation has the power to indemnify directors and officers under
certain prescribed circumstances against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with an action or proceeding, whether
civil, criminal, administrative or investigative, to which any of them
is a party by reason of his being a representative, director or officer
of the corporation or serving at the request of the corporation as a
representative of another corporation, partnership, joint venture, trust
or other enterprise, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of
the corporation and, with respect to any criminal proceeding, had no
reasonable cause to believe his conduct was unlawful. Under
Section 1743, indemnification is mandatory to the extent that the
officer or director has been successful on the merits or otherwise in
defense of any action or proceeding if the appropriate standards of
conduct are met.
Section 1742 provides for indemnification in derivative
actions except in respect of any claim, issue or matter as to which the
person has been adjudged to be liable to the corporation unless and only
to the extent that the proper court determines upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, the person is fairly and reasonably entitled
to indemnity for the expenses that the court deems proper.
Section 1744 provides that, unless ordered by a court, any
indemnification under Section 1741 or 1742 shall be made by the
corporation only as authorized in the specific case upon a determination
that the representative met the applicable standard of conduct, and such
determination will be made (i) by the board of directors by a majority
vote of a quorum of directors not parties to the action or proceeding;
(ii) if a quorum is not obtainable, or if obtainable and a majority of
disinterested directors so directs, by independent legal counsel; or
(iii) by the shareholders.
Section 1745 provides that expenses incurred by an officer,
director, employee or agent in defending a civil or criminal action or
proceeding may be paid by the corporation in advance of the final
disposition of such action or proceeding upon receipt of an undertaking
by or on behalf of such person to repay such amount if it shall
<PAGE>
ultimately be determined that he or she is not entitled to be
indemnified by the corporation.
Section 1746 provides generally that, except in any case
where the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted willful
misconduct or recklessness, the indemnification and advancement of
expenses provided by Subchapter 17D of the BCL shall not be deemed
exclusive of any other rights to which a person seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement,
vote of shareholders or disinterested directors or otherwise, both as to
action in his or her official capacity and as to action in another
capacity while holding that office.
Section 1747 also grants to a corporation the power to
purchase and maintain insurance on behalf of any director or officer
against any liability incurred by him or her in his or her capacity as
officer or director, whether or not the corporation would have the power
to indemnify him or her against the liability under Subchapter 17D of
the BCL.
Sections 1748 and 1749 extend the indemnification and
advancement of expenses provisions contained in Subchapter 17D of the
BCL to successor corporations in fundamental changes and to
representatives serving as fiduciaries of employee benefit plans.
Section 1750 provides that the indemnification and advancement
of expenses provided by, or granted pursuant to, Subchapter 17D of the
BCL, shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs and
personal representative of such person.
Reference is made to Article VII of the Company's Amended and
Restated Bylaws, which provide in general for the indemnification of the
Company's officers and directors to the fullest extent authorized by
law.
Section 1713 of Subchapter B, Chapter 17, of the BCL permits
a corporation to provide in its bylaws that, subject to certain
exceptions, a director shall not be personally liable, as such, for
monetary damages for any action taken, unless the director has breached
or failed to perform the duties of his office under Subchapter B and the
breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness. Article 7 of the Company's Amended and
Restated Articles of Incorporation and Section 3.10 of the Company's
Amended and Restated Bylaws provide in general that to the fullest
extent that the laws of the Commonwealth of Pennsylvania, as amended,
permit elimination or limitation of the liability of directors, a
director of the Company shall not be personally liable for monetary
damages for any action taken or for failure to take any action as a
director.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
SEEC, Inc. 1998 Employee Stock Purchase Plan (incorporated
by reference from the Registrant's Proxy Statement for
the fiscal year ended March 31, 1998).
Opinion of Cohen & Grigsby, P.C. regarding legality
of the securities being registered.
23.1 Consent of BDO Seidman, LLP.
Consent of Cohen & Grigsby, P.C., included in opinion
as filed as Exhibit 5.1.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering undertaking:
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities
Act of 1933;
To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represents
a fundamental change in the information
set forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3 and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
<PAGE>
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference undertaking:
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Filing of Registration Statement on Form S-8 undertaking:
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Pittsburgh,
Commonwealth of Pennsylvania, on August 24, 1998.
SEEC, INC.
By /S/RAVINDRA KOKA
-------------------
Ravindra Koka
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Ravindra Koka the
undersigned's true and lawful attorney-in-fact, with full power of
substitution and resubstitution, for and in the undersigned's name,
place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact full power and authority
to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that
said attorney-in- fact or their or his substitute, may lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C> <C>
/S/RAJ REDDY
- ------------
Raj Reddy Chairman and Director August 24, 1998
/S/RAVINDRA KOKA
- ----------------
Ravindra Koka President, Chief Executive
Officer and Director
(Principal Executive Officer) August 24, 1998
/S/RICHARD GOLDBACH
- -------------------
Richard Goldbach Treasurer and Chief Financial
Officer
(Principal Financial and
Accounting Officer) August 24, 1998
/S/JOHN D. GODFREY
- ------------------
John D. Godfrey Secretary, Vice President
and Director August 24, 1998
/S/RADHA RAMASWAMI BASU
- -----------------------
Radha Ramaswami Basu Director August 24, 1998
/S/ABRAHAM OSTROVSKY
- --------------------
Abraham Ostrovsky Director August 24, 1998
/S/GLEN F. CHATFIELD
- --------------------
Glen F. Chatfield Director August 24, 1998
</TABLE>
<PAGE>
EXHIBIT INDEX
4 SEEC, Inc. 1998 Employee Stock Purchase Plan.
5.1 Opinion of Cohen & Grigsby, P.C. regarding legality of the
securities being registered.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Cohen & Grigsby, P.C., included in opinion filed
as Exhibit 5.1.
(this space intentionally left blank)
<PAGE>
EXHIBIT 4
SEEC, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
As approved by the Board of Directors
on June 17, 1998 and the Shareholders
on August 6, 1998.
1. ESTABLISHMENT, PURPOSE AND TERM OF PLAN
----------------------------------------
1.1 ESTABLISHMENT AND EFFECTIVE DATE. The SEEC, Inc. 1998
Employee Stock Purchase Plan (the "Plan") is hereby established
effective as of the date the Plan is approved by the Board (the
"Effective Date") subject to approval by the holders of a majority of
the shares of Common Stock of the Company at an annual or special
meeting of the shareholders held on or before the first anniversary of
the Effective Date, and no Purchase Rights granted hereunder shall be
exercisable prior to such approval. If the Plan is not so approved, the
Plan shall not become effective.
1.2 PURPOSE. The purpose of the Plan is to advance the interests
of Company and its shareholders by providing an incentive to attract,
retain and reward Eligible Employees of the Participating Company Group
and by motivating such persons to contribute to the growth and
profitability of the Participating Company Group. The Plan provides
Eligible Employees with an opportunity to acquire a proprietary interest
in the Company through the purchase of Stock. The Company intends that
the Plan qualify as an "employee stock purchase plan" under Section 423
of the Code (including any amendments or replacements of such section),
and the Plan shall be so construed.
1.3 TERM OF PLAN. The Plan shall continue in effect until the
earlier of its termination by the Board or the date on which all of the
shares of Stock available for issuance under the Plan have been issued.
1.4 STRUCTURE OF PLAN. The Plan is structured to permit Eligible
Employees to purchase Stock at a discount from its fair market value (a)
by way of periodic purchases from payroll deductions and (b) by way of
periodic offerings of Stock for cash that may be made to Eligible
Employees from time to time.
2. DEFINITIONS AND CONSTRUCTION
----------------------------
2.1 DEFINITIONS. Any term not expressly defined in the Plan but
defined for purposes of Section 423 of the Code shall have the
<PAGE>
same definition herein. Whenever used herein, the following terms shall
have their respective meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended, and
any applicable regulations promulgated thereunder.
(c) "Committee" means the Compensation Committee of the Board.
(d) "Company" means SEEC, Inc., a Pennsylvania corporation, or any
successor corporation thereto, and its subsidiaries.
(e) "Compensation" means, with respect to any Offering Period, base
wages or salary, commissions, overtime, bonuses, annual awards, other
incentive payments, and all other compensation paid in cash during such
Offering Period before deduction for any contributions to any plan
maintained by a Participating Company and described in Section 401(k) or
Section 125 of the Code. Compensation shall not include reimbursements
of expenses, allowances, long-term disability, workers compensation,
fringe benefits or any amount deemed received without the actual
transfer of cash or any amounts directly or indirectly paid pursuant to
the Plan or any other stock purchase or stock option plan, or any other
compensation not included above.
(f) Designated Offerings" has the meaning specified in Section
11.1.
(g) "Designated Purchase Periods" has the meaning specified in
Section 11.1.
(h) "Designated Offering Notice" has the meaning specified in
Section 11.2.
(i) "Designated Offering Period Purchase Date" has the meaning
specified in Section 11.2.
(j) Designated Offering Period Termination Date" has the
meaning specified in Section 11.2.
(k) "Eligible Employee" means an Employee who meets the
requirements set forth in Section 5 for eligibility to participate in
the Plan. "Employee" means a person treated as an employee of a
Participating Company for purposes of Section 423 of the Code. For
purposes of the Plan, an individual shall not be deemed to have ceased
to be an Employee while such individual is on any military leave, sick
leave, or other bona fide leave of absence
approved by the Company of ninety (90) days or less. In the event an
individual's leave of absence exceeds ninety (90) days, the individual
shall be deemed to have ceased to be an Employee on the ninety-first
(91st) day of such leave unless the individual's right to reemployment
with the Company is guaranteed either by statute or by contract. The
Committee shall determine in good
<PAGE>
faith and in the exercise of its discretion whether an individual has
become or has ceased to be an Employee and the effective date of such
individual's employment or termination of employment, as the case may
be. For purposes of an individual's participation in or other rights,
if any, under the Plan as of the time of the Committee's determination,
all such determinations by the Company shall be final, binding and
conclusive, notwithstanding that the Committee or any governmental
agency subsequently makes a contrary determination.
(m) "Fair Market Value" means, as of any date, if there is then
a public market for the Stock, the closing price of a share of Stock (or
the mean of the closing bid and asked prices if the Stock is so quoted
instead) as quoted on the Nasdaq National Market or such other national
or regional securities exchange or market system constituting the
primary market for the Stock, as reported in The Wall Street Journal or
such other source as the Committee deems reliable. If the relevant date
does not fall on a day on which the Stock has traded on such securities
exchange or market system, the date on which the Fair Market Value shall
be established shall be the last day on which the Stock was so traded
prior to the relevant date, or such other appropriate day as shall be
determined by the Committee in its sole discretion. If there is then no
public market for the Stock, the Fair Market Value on any relevant date
shall be as determined by the Committee.
(n) "Offering" means an offering of Stock as provided in Section
6.
(o) "Offering Date" means, for any Offering, the first day of
the Offering Period with respect to such Offering.
(p) "Offering Period" means a period established in accordance
with Section 6.1.
(q) "Parent Corporation" means any present or future "parent
corporation" of the Company, as defined in Section 424(e) of the Code.
(r) "Participant" means an Eligible Employee who has become a
participant in an Offering Period in accordance with Section 7 and
remains a participant in accordance with the Plan.
(s) "Participating Company" means the Company or any Parent
Corporation or Subsidiary Corporation designated by the Committee as a
corporation the Employees of which may, if Eligible Employees,
participate in the Plan.
(t) Purchase Date" means, for any Purchase Period, the last day
of such period.
(u) "Purchase Period" means a period established in accordance
with Section 6.2.
(v) "Purchase Price" means the price at which a share of Stock
may be purchased under the Plan, as determined in accordance with
Section 13.
<PAGE>
(w) "Purchase Right" means an option granted to a Participant
pursuant to the Plan to purchase shares of Stock. Such option arises
from (i) the right of a Participant to withdraw any accumulated payroll
deductions of the Participant not previously applied to the purchase of
Stock under the Plan and to terminate participation in the Plan at any
time during an Offering Period and (ii) the right of a Participant to
purchase Stock that may be offered to him or her pursuant to Section 11
in one or more Designated Offerings.
(x) "Stock" means the Common Stock of the Company, as adjusted
from time to time in accordance with Section 4.2.
(y) "Subscription Agreement" means a written agreement in such
form as specified by the Committee, stating an Employee's election to
participate in the Plan and authorizing payroll deductions under the
Plan from the Employee's Compensation.
(z) "Subscription Date" means the last business day prior to the
Offering Date of an Offering Period or such earlier date as the Company
shall establish.
(aa) "Subsidiary Corporation" means any present or future
"subsidiary corporation" of the Company, as defined in Section 424(f) of
the Code.
3. ADMINISTRATION
--------------
3.1 ADMINISTRATION BY THE COMMITTEE. The Plan shall be
administered by the Committee. All questions of interpretation of the
Plan and of any form of agreement or other document employed by the
Company in the administration of the Plan shall be determined by the
Committee and shall be final and binding upon all persons having an
interest in the Plan. All expenses incurred in connection with the
administration of the Plan shall be paid by the Company.
3.2 POLICIES AND PROCEDURES ESTABLISHED BY THE COMMITTEE. The
Committee may, from time to time, consistent with the Plan and the
requirements of Section 423 of the Code, establish, change or terminate
such rules, guidelines, policies, procedures, limitations, or
adjustments as deemed advisable by the Committee, in its sole
discretion, for the proper administration of the Plan.
4. SHARES SUBJECT TO PLAN
----------------------
4.1 MAXIMUM NUMBER OF SHARES ISSUABLE. Subject to adjustment as
provided in Section 4.2, the maximum aggregate number of shares of Stock
that may be issued under the Plan shall be 300,000 and shall consist of
authorized but unissued or reacquired shares of Stock, or any
combination thereof. If an outstanding Purchase Right for any reason
expires or is terminated or canceled, the shares of Stock allocable to
the unexercised portion of such Purchase Right shall again be available
for issuance under the Plan.
<PAGE>
4.2 ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. In the event of
any stock dividend, stock split, reverse stock split, recapitalization,
combination, reclassification or similar change in the capital structure
of the Company, or in the event of any merger (including a merger
effected for the purpose of changing the Company's domicile), sale of
assets or other reorganization in which the Company is a party,
appropriate adjustments shall be made in the number and class of shares
subject to the Plan and each Purchase Right and in the Purchase Price.
If a majority of the shares which are of the same class as the shares
that are subject to outstanding Purchase Rights are exchanged for,
converted into, or otherwise become (whether or not pursuant to an
ownership Change Event) shares of another corporation (the "New
Shares"), the Committee may unilaterally amend the outstanding
Purchase Rights to provide that such Purchase Rights are exercisable for
New Shares. In the event of any such amendment, the number of shares
subject to, and the Purchase Price of, the outstanding Purchase Rights
shall be adjusted in a fair and equitable manner, as determined by the
Committee, in its sole discretion. Notwithstanding the foregoing, any
fractional share resulting from an adjustment pursuant to this Section
4.2 shall be rounded down to the nearest whole number, and in no event
may the Purchase Price be decreased to an amount less than the par
value, if any, of the Stock subject to the Purchase Right. The
adjustments determined by the Committee pursuant to this Section 4.2
shall be final, binding and conclusive.
5. ELIGIBILITY
-----------
5.1 EMPLOYEES ELIGIBLE TO PARTICIPATE. Each Employee of a
Participating Company is eligible to participate in the Plan and shall
be deemed an Eligible Employee, except the following:
(a) Any Employee who is customarily employed by the Participating
Company Group for less than twenty (20) hours per week; or
(b) Any Employee who is customarily employed by the Participating
Company Group for not more than five (5) months in any calendar year.
5.2 EXCLUSION OF CERTAIN SHAREHOLDERS. Notwithstanding any
provision of the Plan to the contrary, no Employee shall be granted a
Purchase Right under the Plan if, immediately after such grant, such
Employee would own or hold options to purchase stock of the Company or
of any Parent Corporation or Subsidiary Corporation possessing five
percent (5%) or more of the total combined voting power or value of all
classes of stock of such corporation, as determined in accordance with
Section 423(b)(3) of the Code. For purposes of this Section 5.2, the
attribution rules of Section 424(d) of the Code shall apply in
determining the stock ownership of such Employee.
5.3 Employees who are also directors or officers (as defined in
Rule 16a-l(f) under the Exchange Act, as such rule may be amended from
time to time) of the Company may participate only in accordance with the
requirements of Rule 16b-3. The Plan is intended to conform to the
extent necessary with all provisions of the Securities
<PAGE>
Act and the Exchange Act and all regulations and rules promulgated by
the SEC thereunder, including Rule 16b-3. Notwithstanding anything
herein to the contrary, the Plan shall be administered, and Purchase
Rights shall be granted and may be exercised, only in such a manner as
to conform to such laws, rules and regulations. To the extent permitted
by applicable law, the Plan and the Purchase Rights granted hereunder
shall be deemed amended to the extent necessary to conform to such laws,
rules and regulations.
6. OFFERINGS
---------
6.1 OFFERING PERIODS. Except as otherwise set forth below, the
Plan shall be implemented by sequential Offerings of approximately
twenty-four (24) months duration (each an "Offering Period"); provided,
however, that the first Offering Period shall commence on the Effective
Date and end on August 31, 2000 (the "Initial Offering Period").
Subsequent Offerings shall commence on the first day of February and
August of each year, commencing on February 1, 1999, and end on the last
day of the second January and July, respectively, occurring thereafter.
Notwithstanding the foregoing, the Committee may establish a different
duration for one or more future Offering Periods or different commencing
or ending dates for such Offering Periods; provided, however, that no
Offering Period may have a duration exceeding twenty-seven (27) months.
If the first or last day of an Offering Period is not a day on which the
national securities exchanges or Nasdaq Stock Market are open for
trading, the Company shall specify the trading day that will be deemed
the first or last day, as the case may be, of the Offering Period.
6.2 PURCHASE PERIODS. Each Offering Period shall consist of four
(4) consecutive Purchase Periods of approximately six (6) months
duration, or such other number or duration as the Committee shall
determine. The Purchase Period commencing on the Offering Date of the
Initial Offering Period shall end on January 31, 1999. A Purchase
Period commencing on or about February 1 shall end on or about the next
July 31. A Purchase Period commencing on or about August 1 shall end on
or about the next January 31. Notwithstanding the foregoing, the
Committee may establish a different duration for one or more future
Purchase Periods or different commencing or ending dates for such
Purchase Periods. If the first or last day of a Purchase Period is not
a day on which the national securities exchanges or Nasdaq Stock Market
are open for trading, the Committee shall specify the trading day that
will be deemed the first or last day, as the case may be, of the
Purchase Period.
7. PARTICIPATION IN OFFERING PERIODS
---------------------------------
7.1 INITIAL PARTICIPATION. An Eligible Employee may become a
Participant in an Offering Period by delivering a properly completed
Subscription Agreement to the office designated by the Company not later
than the close of business for such office on the Subscription Date
established by the Company for such Offering Period. An Eligible
Employee who does not deliver a properly completed Subscription
Agreement to the Company's designated office on or before the
<PAGE>
Subscription Date for an Offering Period shall not participate in the
Plan for that Offering Period or for any subsequent Offering Period
unless such Eligible Employee subsequently delivers a properly completed
Subscription Agreement to the appropriate office of the Company on or
before the Subscription Date for such subsequent Offering Period. An
Employee who becomes an Eligible Employee after the Offering Date of an
Offering Period shall not be eligible to participate in such Offering
Period but may participate in any subsequent Offering Period provided
such Employee is still an Eligible Employee as of the Offering Date of
such subsequent Offering Period.
7.2 CONTINUED PARTICIPATION. A Participant shall automatically
participate in the next Offering Period commencing immediately after the
final Purchase Date of each Offering Period in which the Participant
participates provided that such Participant remains an Eligible Employee
on the Offering Date of the new Offering Period and has not either (a)
withdrawn from the Plan pursuant to Section 10.1 or (b) terminated
employment as provided in Section 14. A Participant who may
automatically participate in a subsequent Offering Period, as provided
in this Section, is not required to deliver any additional Subscription
Agreement for the subsequent Offering Period in order to continue
participation in the Plan. However, a Participant may deliver a new
Subscription Agreement for a subsequent Offering Period in accordance
with the procedures set forth in Section 7.1 if the Participant desires
to change any of the elections contained in the Participant's then
effective Subscription Agreement.
8. ACCUMULATION OF PURCHASE PRICE THROUGH PAYROLL DEDUCTION
--------------------------------------------------------
Shares of Stock acquired pursuant to the exercise of all or any portion
of a Purchase Right may be paid for only by means of payroll deductions
from the Participant's Compensation accumulated during the Offering
Period for which such Purchase Right was granted, subject to the
following:
8.1 AMOUNT OF PAYROLL DEDUCTIONS. Except as otherwise provided
herein, the amount to be deducted under the Plan from a Participant's
Compensation on each payday during an Offering Period shall be
determined by the Participant's Subscription Agreement. The
Subscription Agreement shall set forth the percentage of the
Participant's Compensation to be deducted on each payday during an
Offering Period in whole percentages of not less than one percent (1%)
(except as a result of an election pursuant to Section 8.3 to stop
payroll deductions made effective following the first payday during an
Offering) or more than ten percent (10%). Notwithstanding the
foregoing, the Board may change the limits on payroll deductions
effective as of any future Offering Date.
8.2 COMMENCEMENT OF PAYROLL DEDUCTIONS. Payroll deductions
shall commence on the first payday following the Offering Date and shall
continue to the end of the Offering Period unless sooner altered or
terminated as provided herein.
<PAGE>
8.3 ELECTION TO CHANGE OR STOP PAYROLL DEDUCTIONS. During an
Offering Period, a Participant may elect to increase or decrease the
rate of or to stop deductions from his or her Compensation by delivering
to the Company's designated office an amended Subscription Agreement
authorizing such change on or before the "Change Notice Date." The
"Change Notice Date" shall be a date prior to the beginning of the first
pay period for which such election is to be effective as established by
the Committee from time to time and announced to the Participants. A
Participant who elects to decrease the rate of his or her payroll
deductions to zero percent (O%) shall nevertheless remain a Participant
in the current Offering Period unless such Participant withdraws from
the Plan as provided in Section 10.1.
8.4 ADMINISTRATIVE SUSPENSION OF PAYROLL DEDUCTIONS. The Company
may, in its sole discretion, suspend a Participant's payroll deductions
under the Plan as the Company deems advisable to avoid accumulating
payroll deductions in excess of the amount that could reasonably be
anticipated to purchase the maximum number of shares of Stock permitted
during a calendar year under the limit set forth in Section 12. Payroll
deductions shall be resumed at the rate specified in the Participant's
then effective Subscription Agreement at the beginning of the next
Purchase Period the Purchase Date of which falls in the following
calendar year.
8.5 PARTICIPANT ACCOUNTS. Individual bookkeeping accounts shall
be maintained for each Participant. All payroll deductions from a
Participant's Compensation shall be credited to such Participant's Plan
account and shall be deposited with the general funds of the Company.
All payroll deductions received or held by the Company may be used by
the Company for any corporate purpose.
8.6 NO INTEREST PAID. Interest shall not be paid on sums
deducted from a Participant's Compensation pursuant to the Plan.
8.7 VOLUNTARY WITHDRAWAL FROM PLAN ACCOUNT. A Participant may
withdraw all or any portion of the payroll deductions credited to his or
her Plan account and not previously applied toward the purchase of Stock
by delivering to the Company's designated office a written notice on a
form provided by the Company for such purpose. A Participant who
withdraws the entire remaining balance credited to his or her Plan
account shall be deemed to have withdrawn from the Plan in accordance
with Section 10.1. Amounts withdrawn shall be returned to the
Participant as soon as practicable after the withdrawal and may not be
applied to the purchase of shares in any Offering under the Plan. The
Committee may from time to time establish or change limitations on the
frequency of withdrawals permitted under this Section, establish a
minimum dollar amount that must be retained in the Participant's Plan
account, or terminate the withdrawal right provided by this Section.
9. PURCHASE OF SHARES IN OFFERINGS
-------------------------------
9.1 EXERCISE OF PURCHASE RIGHT. On each Purchase Date of an
Offering Period, each Participant who has not withdrawn from the Plan
<PAGE>
and whose participation in the Offering has not terminated before such
Purchase Date shall automatically acquire pursuant to the exercise of
the Participant's Purchase Right the number of whole shares of Stock
determined by dividing (a) the total amount of the Participant's payroll
deductions accumulated in the Participant's Plan account during the
Offering Period and not previously applied toward the purchase of Stock
by (b) the Purchase Price. No shares of Stock shall be purchased on a
Purchase Date on behalf of a Participant whose participation in the
Offering or the Plan has terminated before such Purchase Date.
9.2 PRO RATA ALLOCATION OF SHARES. In the event that the number of
shares of Stock which might be purchased by all Participants in the Plan
on a Purchase Date exceeds the number of shares of Stock available in
the Plan as provided in Section 4.1, the Company shall make a pro rata
allocation of the remaining shares in as uniform a manner as shall be
practicable and as the Committee shall determine to be equitable. Any
fractional share resulting from such pro rata allocation to any
Participant shall be disregarded.
9.3 DELIVERY OF CERTIFICATES. As soon as practicable after each
Purchase Date, the Company shall arrange the delivery to each
Participant, as appropriate, of a certificate representing the shares
acquired by the Participant on such Purchase Date. Shares to be
delivered to a Participant under the Plan shall be registered in the
name of the Participant, or, if requested by the Participant, in the
name of the Participant and his or her spouse, or, if applicable, in the
names of the heirs of the Participant.
9.4 RETURN OF CASH BALANCE. Any cash balance remaining in a
Participant's Plan account following any Purchase Date shall be refunded
to the Participant as soon as practicable after such Purchase Date.
However, if the cash to be returned to a Participant pursuant to the
preceding sentence is an amount less than the amount that would have
been necessary to purchase an additional whole share of Stock on such
Purchase Date, the Company may retain such amount in the Participant's
Plan account to be applied toward the purchase of shares of Stock in the
subsequent Purchase Period or Offering Period, as the case may be.
9.5 TAX WITHHOLDING. At the time a Participant's Purchase Right is
exercised, in whole or in part, or at the time a Participant disposes of
some or all of the shares of Stock he or she acquires under the Plan,
the Participant shall make adequate provision for the foreign, federal
(including FICA and FUCA taxes), state and local tax withholding
obligations of the Participating Company Group, if any, which arise upon
exercise of the Purchase Right or upon such disposition of shares,
respectively. The Participating Company Group may, but shall not be
obligated to, withhold from the Participant's compensation the amount
necessary to meet such withholding obligations.
9.6 EXPIRATION OF PURCHASE RIGHT. Any portion of a Participant's
Purchase Right remaining unexercised after the end of the Offering
Period to which the Purchase Right relates shall expire immediately upon
the end of the Offering Period.
<PAGE>
9.7 REPORTS TO PARTICIPANTS. Each Participant who has exercised all
or part of his or her Purchase Right shall receive, as soon as
practicable after the Purchase Date, a report of such Participant's Plan
account setting forth the total payroll deductions accumulated prior to
such exercise, the number of shares of Stock purchased, the Purchase
Price for such shares, the date of purchase and the cash balance, if
any, remaining immediately after such purchase that is to be refunded or
retained in the Participant's Plan account pursuant to Section 9.4. The
report required by this Section may be delivered in such form and by
such means, including by electronic transmission, as the Company may
determine.
10. WITHDRAWAL FROM OFFERING OR PLAN
---------------------------------
10.1 VOLUNTARY WITHDRAWAL FROM THE PLAN. A Participant may withdraw
from the Plan by signing and delivering to the Company's designated
office a written notice of withdrawal on a form provided by the Company
for such purpose. Such withdrawal may be elected at any time prior to
the end of an Offering Period; provided, however, that if a Participant
withdraws from the Plan after the Purchase Date of a Purchase Period,
the withdrawal shall not affect shares of Stock acquired by the
Participant on such Purchase Date. A Participant who voluntarily
withdraws from the Plan is prohibited from resuming participation in the
Plan in the same Offering from which he or she withdrew, but may
participate in any subsequent Offering by again satisfying the
requirements of Sections 5 and 7.1. The Committee may impose, from time
to time, a requirement that the notice of withdrawal from the Plan be on
file with the Company's designated office for a reasonable period prior
to the effectiveness of the Participant's withdrawal.
10.2 AUTOMATIC WITHDRAWAL FROM AN OFFERING. If the Fair Market
Value of a share of Stock on a Purchase Date of an Offering Period
(other than the final Purchase Date of such Offering) is less than the
Fair Market Value of a share of Stock on the Offering Date for such
Offering Period, then every Participant shall automatically be (a)
withdrawn from such Offering Period after the acquisition of shares of
Stock on the Purchase Date and (b) enrolled in the new Offering Period
effective on its Offering Date. A Participant may elect not to be
automatically withdrawn from an Offering Period pursuant to this Section
10.2 by delivering to the Company's designated office not later than the
close of business on Offering Date new Offering Period a written notice
indicating such election.
10.3 RETURN OF PAYROLL DEDUCTIONS. Upon a Participant's voluntary
withdrawal from the Plan pursuant to Section 10.1 or automatic
withdrawal from an Offering pursuant to Section 10.2, the Participant's
accumulated payroll deductions which have not been applied toward the
purchase of shares of Stock (except, in the case of an automatic
withdrawal pursuant to Section 10.2, for an amount necessary to purchase
an additional whole share as provided in Section 9.4) shall be refunded
to the Participant as soon as practicable after the withdrawal, without
the payment of any interest, and the Participant's interest in the Plan
<PAGE>
or the Offering, as applicable, shall terminate. Such accumulated
payroll deductions to be refunded in accordance with this Section may
not be applied to any other offering under the Plan.
11. ADDITIONAL PERIODIC RIGHT TO PURCHASE SHARES
--------------------------------------------
11.1 The Plan will also be implemented through periodic offerings of
shares of Stock (the "Designated Offerings"), during such purchase
periods ("Designated Purchase Periods") and, subject to the limitations
set forth herein, for such number of shares of Stock as may be
determined by the Committee from time to time.
11.2 Eligible Employees will be given advanced written notice of each
Designated Offering and of their right to participate (a "Designated
Offering Notice"), which Designated Offering Notice shall include the
material terms of the Designated Offering, including, among other
things, its commencement date ("Designated Purchase Period Commencement
Date"), its termination date ("Designated Purchase Period Termination
Date"), the number of shares which are to be offered for sale in the
Designated Offering and the Purchase Price for each share.
11.3 On the Designated Purchase Period Commencement Date, and through
the close of business on the Designated Purchase Period Termination
Date, a Participant shall have a right to purchase that number of the
shares of Stock which equals (x) a percentage selected by the
Participant (but not in excess of 60%) of his or her Compensation for
the then-current calendar year divided by (y) the Purchase Price. The
date on which the Purchase Price is paid shall be the "Designated
Purchase Date".
11.4 The Purchase Price to be paid by a Participant for each share of
Stock purchased in a Designated Offering shall be as determined pursuant
to Section 13. The aggregate Purchase Price for shares purchased by a
Participant in a Designated Offering shall be paid by the Participant in
cash or other immediately available funds, at such time and in such
manner as is specified in the Designated Offering Notice.
11.5 A Participant may exercise his or her Purchase Rights in an a
Designated Offering by taking such actions, and satisfying such
conditions, as are determined by the Committee and set forth in the
Designated Offering Notice.
12. CALENDAR YEAR PURCHASE LIMITATION.
----------------------------------
Notwithstanding any provision of the Plan to the contrary, no
Participant shall be granted a Purchase Right which permits his or her
right to purchase shares of Stock under the Plan to accrue at a rate
which, when aggregated with such Participant's rights to purchase shares
under all other employee stock purchase plans of a Participating Company
intended to meet the requirements of Section 423 of the Code, exceeds
Twenty-Five Thousand Dollars ($25,000) in Fair Market Value (or such
other limit, if any, as may be imposed by the Code) for each calendar
year in which such Purchase Right is outstanding at any time. For
purposes of the
<PAGE>
preceding sentence, the Fair Market Value of shares purchased during a
given Offering Period shall be determined as of the Offering Date for
such Offering Period and for a Designated Offering shall be determined
as of the Designated Purchase Period Commencement Date. The limitation
described in this Section 12.3 shall be applied in conformance with
applicable regulations under Section 423(b)(8) of the Code.
13. PURCHASE PRICE
--------------
Unless otherwise provided by the Committee prior to the commencement of
an Offering Period, the Purchase Price for that Offering Period shall be
eighty-five percent (85%) of the lesser of (a) the Fair Market Value of
a share of Stock on the Offering Date of the Offering Period or (b) the
Fair Market Value of a share of Stock on the Purchase Date. Unless
otherwise provided by the Committee prior to the commencement of any
Designated Offering, the Purchase Price for that Designated Offering
shall be eighty-five percent (85%) of the lesser of (a) the Fair Market
Value of a share of Stock on the Designated Purchase Period Commencement
Date and (b) the Fair Market Value of a share of Stock on the Designated
Purchase Date.
14. TERMINATION OF EMPLOYMENT OR ELIGIBILITY
----------------------------------------
Upon a Participant's ceasing, prior to a Purchase Date or a Designated
Purchase Date, to be an Employee of the Participating Company Group for
any reason, including retirement, disability or death, or the failure of
a Participant to remain an Eligible Employee, the Participant's
participation in the Plan shall terminate immediately. In such event,
the payroll deductions credited to the Participant's Plan account since
the last Purchase Date shall, as soon as practicable, be returned to the
Participant or, in the case of the Participant's death, to the
Participant's legal representative, and all of the Participant's rights
under the Plan shall terminate. Interest shall not be paid on sums
returned pursuant to this Section 14. A Participant whose participation
has been so terminated may again become eligible to participate in the
Plan by again satisfying the requirements of Sections 5 and 7.1.
15. CHANGE IN CONTROL
-----------------
15.1 DEFINITIONS.
(a) An "Ownership Change Event" shall be deemed to have occurred if
any of the following occurs with respect to the Company: (i) the direct
or indirect sale or exchange in a single or series of related
transactions by the shareholders of the Company of more than fifty
percent (50%) of the voting stock of the Company; (ii) a merger or
consolidation in which the Company is a party; (iii) the sale, exchange,
or transfer of all or substantially all of the assets of the Company; or
(iv) a liquidation or dissolution of the Company.
<PAGE>
(b) A "Change In Control" shall mean an Ownership Change Event or a
series of related Ownership Change Events (collectively, the
"Transaction") wherein the shareholders of the Company immediately
before the Transaction do not retain immediately after the Transaction,
in substantially the same proportions as their ownership of shares of
the Company's voting stock immediately before the Transaction, direct or
indirect beneficial ownership of more than fifty percent (50%) of the
total combined voting power of the outstanding voting stock of the
Company or the corporation or corporations to which the assets of the
Company were transferred (the "Transferee Corporation(s)), as the case
may be. For purposes of the preceding sentence, indirect beneficial
ownership shall include, without limitation, an interest resulting from
ownership of the voting stock of one or more corporations which, as a
result of the Transaction, own the Company or the Transferee
Corporation(s), as the case may be, either directly or through one or
more subsidiary corporations. The Board shall have the right to
determine whether multiple sales or exchanges of the voting stock of the
Company or multiple Ownership Change Events are related, and its
determination shall be final, binding and conclusive.
15.2 EFFECT OF CHANGE IN CONTROL ON PURCHASE RIGHTS. In the event of a
Change in Control, the surviving, continuing, successor, or purchasing
corporation or parent corporation thereof, as the case may be (the
"Acquiring Corporation"), may assume the Company's rights and
obligations under the Plan. If the Acquiring Corporation elects not to
assume the Company's rights and obligations under outstanding Purchase
Rights, the Purchase Date of the then current Purchase Period shall be
accelerated to a date before the date of the Change in Control specified
by the Board, but the number of shares of Stock subject to outstanding
Purchase Rights shall not be adjusted. All Purchase Rights which are
neither assumed by the Acquiring Corporation in connection with the
Change in Control nor exercised as of the date of the Change in Control
shall terminate and cease to be outstanding effective as of the date of
the Change in Control.
16. NONTRANSFERABILITY OF PURCHASE RIGHTS
--------------------------------------
A Purchase Right may not be transferred in any manner otherwise than by
will or the laws of descent and distribution and shall be exercisable
during the lifetime of the Participant only by the Participant.
17. COMPLIANCE WITH SECURITIES LAW
------------------------------
The issuance of shares under the Plan shall be subject to compliance
with all applicable requirements of federal, state and foreign law with
respect to such securities. A Purchase Right may not be exercised if
the issuance of shares upon such exercise would constitute a violation
of any applicable federal, state or foreign securities laws or other law
or regulations or the requirements of any securities exchange or market
system upon which the Stock may then be listed. In addition, no
Purchase Right may be exercised unless (a) a registration statement
under the Securities Act of 1933, as amended, shall at the time of
exercise of the Purchase Right be in effect with respect to the shares
<PAGE>
issuable upon exercise of the Purchase Right, or (b) in the opinion of
legal counsel to the Company, the shares issuable upon exercise of the
Purchase Right may be issued in accordance with the terms of an
applicable exemption from the registration requirements of said Act.
The inability of the Company to obtain from any regulatory body having
jurisdiction the authority, if any, deemed by the Company's legal
counsel to be necessary to the lawful issuance and sale of any shares
under the Plan shall relieve the Company of any liability in respect of
the failure to issue or sell such shares as to which such requisite
authority shall not have been obtained. As a condition to the exercise
of a Purchase Right, the Company may require the Participant to satisfy
any qualifications that may be necessary or appropriate, to evidence
compliance with any applicable law or regulation, and to make any
representation or warranty with respect thereto as may be requested by
the Company.
18. RIGHTS AS A SHAREHOLDER AND EMPLOYEE
------------------------------------
A Participant shall have no rights as a shareholder by virtue of the
Participant's participation in the Plan until the date of the issuance
of a certificate for the shares purchased pursuant to the exercise of
the Participant's Purchase Right (as evidenced by the appropriate entry
on the books of the Company or of a duly authorized transfer agent of
the Company). No adjustment shall be made for dividends, distributions
or other rights for which the record date is prior to the date such
certificate is issued, except as provided in Section 4.2. Nothing herein
shall confer upon a Participant any right to continue in the employ of
the Participating Company Group or interfere in any way with any right
of the Participating Company Group to terminate the Participant's
employment at any time.
19. LEGENDS
-------
The Company may at any time place legends or other identifying symbols
referencing any applicable federal, state or foreign securities law
restrictions or any provision convenient in the administration of the
Plan on some or all of the certificates representing shares of Stock
issued under the Plan. The Participant shall, at the request of the
Company, promptly present to the Company any and all certificates
representing shares acquired pursuant to a Purchase Right in the
possession of the Participant in order to carry out the provisions of
this Section. Unless otherwise specified by the Company, legends placed
on such certificates may include but shall not be limited to the
following:
"THE SHARES EVIDENCED BY THIS CERTIFICATE WERE ISSUED BY THE CORPORATION
TO THE REGISTERED HOLDER UPON THE PURCHASE OF SHARES UNDER AN EMPLOYEE
STOCK PURCHASE PLAN AS DEFINED IN SECTION 423 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED. THE TRANSFER AGENT FOR THE SHARES EVIDENCED
HEREBY SHALL NOTIFY THE CORPORATION IMMEDIATELY OF ANY TRANSFER OF THE
SHARES BY THE REGISTERED HOLDER HEREOF. THE REGISTERED HOLDER SHALL
HOLD ALL SHARES PURCHASED UNDER THE PLAN IN THE REGISTERED HOLDER'S NAME
(AND NOT IN THE NAME OF ANY NOMINEE)."
<PAGE>
20. NOTIFICATION OF SALE OF SHARES
------------------------------
The Company may require the Participant to give the Company prompt
notice of any disposition of shares acquired by exercise of a Purchase
Right within two years from the date of granting such Purchase Right or
one year from the date of exercise of such Purchase Right. The Company
may require that until such time as a Participant disposes of shares
acquired upon exercise of a Purchase Right, the Participant shall hold
all such shares in the Participant's name (or, if elected by the
Participant, in the name of the Participant and his or her spouse but
not in the name of any nominee) until the lapse of the time periods with
respect to such Purchase Right referred to in the preceding sentence.
The Company may direct that the certificates evidencing shares acquired
by exercise of a Purchase Right refer to such requirement to give prompt
notice of disposition.
21. NOTICES
--------
All notices or other communications by a Participant to the Company
under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the
location, or by the person, designated by the Company for the receipt
thereof.
22. INDEMNIFICATION
---------------
In addition to such other rights of indemnification as they may have as
members of the Board or officers or employees of the Participating
Company Group, members of the Board, the Committee and any officers or
employees of the Participating Company Group to whom authority to act
for the Board or the Company is delegated shall be indemnified by the
Company against all reasonable expenses, including attorneys' fees,
actually and necessarily incurred in connection with the defense of any
action, suit or proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any action taken
or failure to act under or in connection with the Plan, or any right
granted hereunder, and against all amounts paid by them in settlement
thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding, except in relation to
matters as to which it shall be adjudged in such action, suit or
proceeding that such person is liable for gross negligence or willful
misconduct; provided, however, that within sixty (60) days after the
institution of such action, suit or proceeding, such person shall offer
to the Company, in writing, the opportunity at its own expense to handle
and defend the same.
<PAGE>
23. AMENDMENT OR TERMINATION OF THE PLAN
------------------------------------
The Board may at any time amend or terminate the Plan, except that (a)
such termination shall not affect Purchase Rights
previously granted under the Plan, except as permitted under the Plan,
and (b) no amendment may adversely affect a Purchase Right previously
granted under the Plan (except to the extent permitted by the Plan or as
may be necessary to qualify the Plan as an employee stock purchase plan
pursuant to Section 423 of the Code or to obtain qualification or
registration of the shares of Stock under applicable federal, state or
foreign securities laws). In addition, an amendment to the Plan must be
approved by the shareholders of the Company within twelve (12) months of
the adoption of such amendment if such amendment would authorize the
sale of more shares than are authorized for issuance under the Plan or
would change the definition of the corporations that may be designated
by the Committee as Participating Companies.
EXHIBIT 5.1
OPINION OF COUNSEL REGARDING LEGALITY AND CONSENT OF COUNSEL
{LETTERHEAD OF COHEN & GRIGSBY, P.C.}
August 24, 1998
Board of Directors of
SEEC, Inc.
We have acted as counsel to SEEC, Inc. (the "Company") in
connection with the preparation and filing with the Securities and
Exchange Commission of a Registration Statement on Form S-8 in order to
register under the Securities Act of 1933, as amended, 300,000 shares of
the Company's common stock, $0.01 par value (the "Common Stock"), which
are reserved for issuance under the SEEC, Inc. 1998 Employee Stock
Purchase Plan (the "Plan").
In our opinion the shares of Common Stock to be issued, when
issued in accordance with the Plan, will be validly issued, fully-paid
and non-assessable shares of Common Stock of the Company.
We hereby consent to the reference to us in the Prospectus of
the Company constituting part of the Company's Registration Statement to
be filed with the Securities and Exchange Commission registering the
Common Stock and to the inclusion of this letter as an exhibit to the
Registration Statement.
This Opinion Letter is governed by, and shall be interpreted in
accordance with, the Legal Opinion Accord (the "Accord") of the ABA
Section of Business Law (1991) as supplemented or modified by Part I,
<PAGE>
together with the Forward and Glossary of the Pennsylvania Third Party
Legal Opinion Supplement (the "Pennsylvania Supplement") of the PBA
Section of Corporation, Banking and Business Law (1992). As a
consequence, it is subject to a number of qualifications, exceptions,
definitions, limitations on coverage and other limitations, all as more
particularly described in the Accord and the Pennsylvania Supplement,
and this Opinion Letter should be read in conjunction therewith. Unless
otherwise indicated, capitalized terms used in this Opinion that are
defined in the Accord or the Pennsylvania Supplement will have the same
meanings in this Opinion as the meanings set forth in the Accord or the
Pennsylvania Supplement, respectively (and, to the extent of a conflict
between the same, priority shall be given to the Accord and the
Pennsylvania Supplement in that order).
Very truly yours,
COHEN & GRIGSBY, P.C.
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
SEEC, INC.
Pittsburgh, Pennsylvania
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated
June 8, 1998 relating to the consolidated financial statements of SEEC,
Inc. appearing in the Company's Annual Report on Form 10-K for the year
ended March 31, 1998.
BDO Seidman, LLP
Boston, Massachusetts
August 24, 1998
