<PAGE> 1
As filed with the Securities and Exchange Commission
on June 15, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
ENVOY CORPORATION
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(Exact name of registrant as specified in its charter)
TENNESSEE
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(State or other jurisdiction of incorporation or organization)
62-1575729
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(I.R.S. employer identification no.)
TWO LAKEVIEW PLACE
15 CENTURY BOULEVARD, SUITE 600
NASHVILLE, TENNESSEE 38214
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(Address of principal executive offices)
ENVOY CORPORATION
1998 STOCK INCENTIVE PLAN
ENVOY CORPORATION
1998 SYNERGY STOCK OPTION PLAN
ENVOY CORPORATION
1998 EXPRESSBILL STOCK OPTION PLAN
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(Full title of the plans)
GREGORY T. STEVENS
TWO LAKEVIEW PLACE
15 CENTURY BOULEVARD, SUITE 600
NASHVILLE, TENNESSEE 37214
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(Name and address of agent for service)
(615) 885-3700
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
PROPOSED
PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE(*) PRICE REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK 2,375,000 SHARES $46.875 $111,328,125 $32,842
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
* Estimated solely for the purpose of determining the amount of the registration
fee. Such estimate has been calculated in accordance with Rule 457(c) under the
Securities Act of 1933, as amended, and is based on the average of the high and
low price per share of the Registrant's Common Stock as reported on the Nasdaq
National Market on June 8, 1998.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by ENVOY Corporation, a Tennessee
corporation (the "Registrant"), with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934 (the "Exchange Act") are hereby
incorporated by reference as of their respective dates:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997.
(2) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1998.
(3) The Registrant's Current Reports on Form 8-K dated February
25, 1998, and March 9, 1998 as amended by a Current Report on
Form 8-K/A dated May 5, 1998.
(4) The description of the Registrant's Common Stock (the "Common
Stock") contained in the Registration Statement on Form 10
filed by the Registrant to register the Common Stock under the
Exchange Act, including all amendments and reports filed for
the purpose of updating such description prior to the
termination of the offering of the Common Stock offered
hereby.
All documents and reports subsequently filed by the Registrant pursuant
to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act after the date hereof
and prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all shares of Common Stock offered hereby have
been sold or which deregisters all shares of Common Stock then remaining unsold,
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents. Any statements contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or replaced for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein) modifies
or replaces such statement. Any statement so modified or replaced shall not be
deemed, except as so modified or replaced, to constitute a part hereof.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
Inapplicable.
<PAGE> 3
Item 6. Indemnification of Directors and Officers.
The Tennessee Business Corporation Act ("TBCA") provides that a
corporation may indemnify any director or officer against liability incurred in
connection with a proceeding if (i) the director or officer acted in good faith,
(ii) the director or officer reasonably believed, in the case of conduct in his
or her official capacity with the corporation, that such conduct was in the
corporation's best interest, or, in all other cases, that his or her conduct was
not opposed to the best interests of the corporation, and (iii) in connection
with any criminal proceeding, the director or officer had no reasonable cause to
believe that his or her conduct was unlawful. In actions brought by or in the
right of the corporation, however, the TBCA provides that no indemnification may
be made if the director or officer is adjudged to be liable to the corporation.
Similarly, the TCBA prohibits indemnification in connection with any proceeding
charging improper personal benefit to any director or officer, if such director
or officer is adjudged liable on the basis that a personal benefit was
improperly received. In cases where the director or officer is wholly
successful, on the merits or otherwise, in the defense of any proceeding
instigated because of his or her status as a director or officer of a
corporation, the TBCA mandates that the corporation indemnify the director or
officer against reasonable expenses incurred in the proceeding. Notwithstanding
the foregoing, the TBCA provides that a court of competent jurisdiction, upon
application, may order that a director or officer be indemnified for reasonable
expense if, in consideration of all relevant circumstances, the court determines
that such individual is fairly and reasonably entitled to indemnification,
whether or not the standard of conduct set forth above was met.
The Registrant's Bylaws require the Registrant to indemnify its
directors and officers to the fullest extent permitted by law with respect to
all liability and loss suffered and expense reasonably incurred by such person
in any action, suit or proceeding in which such person was (or is) made (or
threatened to be made) a party, or is otherwise involved by reason of the fact
that such person is or was a director or officer of the Registrant. The Bylaws
further provide that the Registrant is obligated to pay the expenses of the
directors and officers incurred in defending the foregoing proceedings if the
indemnified party agrees to repay all amounts advanced if it is ultimately
determined that such person is not entitled to indemnification.
In addition, the Registrant's Charter provides that the Registrant's
directors shall not be personally liable to the Registrant or its shareholders
for monetary damages for breach of any fiduciary duty as a director of the
Registrant except to the extent such exemption from liability or limitation
thereof is not permitted under the TBCA. Under the TBCA, this provision does not
relieve the Registrant's directors from personal liability to Registrant or its
shareholders for monetary damages for breach of fiduciary duty as a director, to
the extent such liability arises from a judgment or other final adjudication
establishing (a) any breach of the director's duty of loyalty, (b) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (c) any unlawful distributions, or (d) receiving any improper
personal benefit. Nor does this provision eliminate the duty of care and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Tennessee law. Finally, this
provision does not affect a director's responsibilities under any other law,
such as the federal securities laws or state or federal environmental laws.
The Registrant has entered into indemnification agreements with each of
its directors and executive officers. The Registrant believes that its Charter
and Bylaw provisions and
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<PAGE> 4
indemnification agreements are necessary to attract and retain qualified persons
as directors and officers.
The Registrant has in effect an executive liability insurance policy
which provides coverage for its directors and officers. Under this policy, the
insurer agrees to pay, subject to certain exclusions (including violations of
securities laws), for any claim made against a director or officer of the
Registrant for a wrongful act by such director or officer, but only if and to
the extent such director or officer becomes legally obligated to pay such claim
or the Registrant is required to indemnify the director or officer for such
claim.
Item 7. Exemption From Registration Claimed.
Inapplicable.
Item 8. Exhibits.
See Exhibit Index (page II-7).
Item 9. Undertakings.
A. The 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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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<PAGE> 5
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the 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
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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<PAGE> 6
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 Nashville, State of Tennessee, on the 15th day
of June, 1998.
ENVOY CORPORATION
By: /s/ Fred C. Goad, Jr.
-----------------------------------------
Fred C. Goad, Jr.
Chairman of the Board, Co-Chief Executive
Officer and Director
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Fred C. Goad, Jr., Jim D. Kever and
Gregory T. Stevens, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place, and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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 Date
--------- ----- ----
<S> <C> <C>
/s/ Fred C. Goad, Jr. Chairman of the Board, Co- June 15, 1998
- ---------------------------------- Chief Executive Officer and
Fred C. Goad, Jr. Director
/s/ Jim D. Kever President, Co-Chief Executive June 15, 1998
- ---------------------------------- Officer and Director
Jim D. Kever
/s/ Kevin M. McNamara Senior Vice President, Chief June 15, 1998
- ---------------------------------- Financial Officer and
Kevin M. McNamara Director (Principal
Accounting Officer)
</TABLE>
II-5
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Harlan F. Seymour Senior Vice President of June 15, 1998
- ---------------------------------- Corporate Strategy and
Harlan F. Seymour Development and Director
/s/ William E. Ford Director June 15, 1998
- ----------------------------------
William E. Ford
/s/ W. Marvin Gresham Director June 15, 1998
- ----------------------------------
W. Marvin Gresham
/s/ Laurence E. Hirsch Director June 15, 1998
- ----------------------------------
Laurence E. Hirsch
/s/ Richard A. McStay Director June 15, 1998
- ----------------------------------
Richard A. McStay
</TABLE>
II-6
<PAGE> 8
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Charter, as amended (1)
4.2 Shareholder Rights Plan (2)
4.3 Registration Rights Agreement dated March 6, 1996 by and
among ENVOY, General Atlantic Partners 25, L.P., GAP
Coinvestment Partners, L.P. and First Union Capital
Partners, Inc. (3)
4.4 Registration Rights Agreement dated March 6, 1996 by and among
ENVOY and the Purchasers set forth on the signature pages
thereto (3)
4.5 Registration Rights Agreement dated February 27, 1998, by and
between ENVOY and the Persons set forth on the signature pages
thereto (4)
4.6 1998 Stock Incentive Plan (5)
4.7 1998 Synergy Stock Option Plan
4.8 1998 ExpressBill Stock Option Plan (4)
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
24 Power of Attorney (included on Page II-5)
- --------------------------------------
(1) Charter as originally amended incorporated by reference to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1995 and
Certificate of Designations setting forth terms of Series B Preferred Stock
incorporated by reference to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1997.
(2) Incorporated by reference to the Registrant's Form 10, as amended,
Commission File No. 0-25062.
(3) Incorporated by reference to the Registrant's Current Report on Form 8-K
filed March 21, 1996.
(4) Incorporated by reference to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1997.
(5) Incorporated by reference to Exhibit A to the Registrant's Proxy Statement
dated April 23, 1998 for the Annual Meeting of Shareholders held June 4,
1998.
II-7
<PAGE> 1
Exhibit 4.7
ENVOY CORPORATION
1998 SYNERGY STOCK OPTION PLAN
SECTION 1. PURPOSE; DEFINITIONS.
The purpose of the Envoy Corporation 1998 Synergy Stock Option Plan (the
"Plan") is to enable Envoy Corporation (the "Corporation") to attract, retain
and reward employees of the Corporation and its Subsidiaries and Affiliates, and
to strengthen the mutuality of interests between such employees by awarding such
employees performance-based stock options in the Corporation. The creation and
implementation of the Plan will not diminish or prejudice other compensation
plans or programs approved from time to time by the Board.
For purposes of the Plan, the following terms shall be defined as set
forth below:
A. "Affiliate" means any entity other than the Corporation and its
Subsidiaries that is designated by the Board as a participating employer under
the Plan, provided that the Corporation directly or indirectly owns at least 20%
of the combined voting power of all classes of stock of such entity or at least
20% of the ownership interests in such entity.
B. "Board" means the Board of Directors of the Corporation.
C. "Cause" has the meaning provided in Section 5(j) of the Plan.
D. "Change in Control" has the meaning provided in Section 6(b) of the
Plan.
E. "Change in Control Price" has the meaning provided in Section 6(d) of
the Plan.
F. "Common Stock" means the Corporation's Common Stock, no par value per
share.
G. "Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor thereto.
H. "Committee" means the Committee referred to in Section 2 of the Plan.
I. "Corporation" means Envoy Corporation, a corporation organized under
the laws of the State of Tennessee, or any successor corporation.
J. "Disability" means disability as determined under the Corporation's
Group Long Term Disability Insurance Plan.
K. "Early Retirement" means retirement, for purposes of this Plan with the
express consent of the Corporation at or before the time of such retirement,
from active employment with the Corporation and any Subsidiary or Affiliate
prior to age 65, in accordance with any applicable early retirement policy of
the Corporation then in effect or as may be approved by the Committee.
L. "Effective Date" has the meaning provided in Section 10 of the Plan.
M. "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor thereto.
N. "Fair Market Value" means with respect to the Common Stock, as of any
given date or dates, unless otherwise determined by the Committee in good faith,
the reported closing price of a share of Common Stock on Nasdaq or such other
market or exchange as is the principal trading market for the Common Stock, or,
if no such sale of a share of Common Stock is reported on Nasdaq or other
exchange or principal trading market on such date, the fair market value of a
share of Common Stock as determined by the Committee in good faith.
O. "Incentive Stock Option" means any Stock Option intended to be and
designated as an "Incentive Stock Option" within the meaning of Section 422 of
the Code.
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<PAGE> 2
P. "Immediate Family" means any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall include
adoptive relationships.
Q. "Nasdaq" means The Nasdaq Stock Market.
R. "Non-Employee Director" means a member of the Board who is a
Non-Employee Director within the meaning of Rule 16b-3(b)(3) promulgated under
the Exchange Act and an outside director within the meaning of Treasury
Regulation Sec. 162-27(e)(3) promulgated under the Code.
S. "Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
T. "Normal Retirement" means retirement from active employment with the
Corporation and any Subsidiary or Affiliate on or after age 65.
U. "Performance Goals" means performance goals based on one or more of the
following criteria: (i) pre-tax income or after-tax income; (ii) operating cash
flow; (iii) operating profit; (iv) return on equity, assets, capital, or
investment; (v) earnings or book value per share; (vi) sales or revenues; (vii)
operating expenses; (viii) Common Stock price appreciation; and (ix)
implementation, management, or completion of critical projects or processes.
Where applicable, the Performance Goals may be expressed in terms of attaining a
specified level of the particular criteria or the attainment of a percentage
increase or decrease in the particular criteria, and may be applied to one or
more of the Corporation or any Subsidiary, or a division or strategic business
unit of the Corporation, or may be applied to the performance of the Corporation
relative to a market index, a group of other companies, or a combination
thereof, all as determined by the Committee. The Performance Goals may include a
threshold level of performance below which no payment will be made (or no
vesting will occur), levels of performance at which specified payments will be
made (or specified vesting will occur), and a maximum level of performance above
which no additional payment will be made (or at which full vesting will occur).
Each of the foregoing Performance Goals shall be determined, to the extent
applicable, in accordance with generally accepted accounting principles and
shall be subject to certification by the Committee; provided, that the Committee
shall have the authority to make equitable adjustments to the Performance Goals
in recognition of unusual or non-recurring events affecting the Corporation or
any Subsidiary or the financial statements of the Corporation or any Subsidiary,
in response to changes in applicable laws or regulations, or to account for
items of gain, loss, or expense determined to be extraordinary or unusual in
nature or infrequent in occurrence or related to the disposal of a segment of
business or related to a change in accounting principles.
V. "Plan" means this Envoy Corporation 1998 Synergy Stock Option Plan, as
amended from time to time.
W. "Retirement" means Normal or Early Retirement.
X. "Stock Option" or "Option" means any option to purchase shares of
Common Stock granted pursuant to Section 5 below.
Y. "Subsidiary" means any corporation (other than the Corporation) in an
unbroken chain of corporations beginning with the Corporation if each of the
corporations (other than the last corporation in the unbroken chain) owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in the chain.
SECTION 2. ADMINISTRATION.
Except as provided below, the Plan shall be administered by a Committee of
not less than two Non-Employee Directors, who shall be appointed by the Board
and who shall serve at the pleasure of the Board. The functions of the Committee
specified in the Plan may be exercised by an existing Committee of the Board
composed exclusively of Non-Employee Directors. The initial Committee shall be
the Compensation Committee of the Board. In the event there are not at least two
Non-Employee Directors on the Board, the Plan shall be administered by the
entire Board and all references herein to the Committee shall refer to the
Board.
The Committee shall have the power to delegate authority to the
Corporation's Chief Executive Officer, or to a committee composed of executive
officers of the Corporation, to grant, on behalf of the Committee, Non-Qualified
Stock Options exercisable at Fair Market Value on the date of grant, subject to
such guidelines as the Committee may determine
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from time to time; provided, however that (i) options may only be granted
pursuant to such delegated authority for the purposes specified by the
Committee, which may include attracting new employees, awarding outstanding
performance, or retaining employees, (ii) the Committee shall specify the
maximum number of shares that may be granted for purposes of attracting any
single new employee at any specified level and the maximum number that may be
granted to any other employee for any other purpose, (iii) options to purchase
no more than 50,000 shares may be granted in any fiscal year pursuant to such
delegated authority, and (iv) a report of each grant of an option pursuant to
such delegated authority shall be presented to the Committee at the first
meeting of the Committee following such grant. Options granted pursuant to such
delegated authority in accordance herewith shall be deemed, to the extent
permitted under applicable law, to have been granted by the Committee for all
purposes under the Plan.
The Committee shall have authority to grant Stock Options pursuant to the
terms of the Plan, to employees eligible under Section 4.
In particular, the Committee, or the Board, as the case may be, shall have
the authority, consistent with the terms of the Plan:
(a) to select the employees of the Corporation and its Subsidiaries and
Affiliates to whom Stock Options may from time to time be granted
hereunder;
(b) to determine whether and to what extent Non-Qualified Stock Options
are to be granted hereunder to one or more eligible persons;
(c) to determine the number of shares to be covered by each such award
granted hereunder;
(d) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any award granted hereunder (including, but not
limited to, the share price and any restriction or limitation, or any
vesting acceleration or waiver of forfeiture restrictions regarding any
Stock Option and/or the shares of Common Stock relating thereto, based in
each case on such factors as the Committee shall determine, in its sole
discretion); and to amend or waive any such terms and conditions to the
extent permitted by Section 7 hereof;
(e) to determine whether and under what circumstances a Stock Option
may be settled in cash or restricted stock under Section 5(k) or (l), as
applicable, instead of Common Stock;
(f) to determine the terms, conditions, and restrictions of any
Performance Goals and the number of Options subject thereto; and
(g) to determine whether to require payment of tax withholding
requirements in shares of Common Stock subject to the award.
The Committee shall have the authority to adopt, alter, and repeal such
rules, guidelines, and practices governing the Plan as it shall, from time to
time, deem advisable; to interpret the terms and provisions of the Plan and any
award issued under the Plan (and any agreements relating thereto); and to
otherwise supervise the administration of the Plan; and, except as expressly set
forth herein or otherwise required by law, all decisions made by the Committee
pursuant to the provisions of the Plan shall be made in the Committee's sole
discretion and shall be final and binding on all persons, including the
Corporation and Plan participants.
SECTION 3. SHARES OF COMMON STOCK SUBJECT TO PLAN.
(a) As of the Effective Date, the aggregate number of shares of Common
Stock that may be issued under the Plan shall be 75,000 shares. The shares
of Common Stock issuable under the Plan may consist, in whole or in part,
of authorized and unissued shares or treasury shares.
(b) If any shares of Common Stock that have been optioned cease to be
subject to a Stock Option or any such award otherwise terminates without a
payment being made to the participant in the form of Common Stock, such
shares shall again be available for distribution in connection with future
awards under the Plan.
(c) In the event of any merger, reorganization, consolidation,
recapitalization, extraordinary cash dividend, stock dividend, stock split
or other change in corporate structure affecting the Common Stock, an
appropriate
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<PAGE> 4
substitution or adjustment shall be made in the maximum number of shares
that may be awarded under the Plan, in the number and option price of
shares subject to outstanding Options granted under the Plan, in the
Performance Goals, as may be determined to be appropriate by the
Committee, in its sole discretion, provided that the number of shares
subject to any award shall always be a whole number.
SECTION 4. ELIGIBILITY.
Employees of the Corporation and its Subsidiaries and Affiliates who are
responsible for or contribute to the management, growth and/or profitability of
the business of the Corporation and/or its Subsidiaries and Affiliates are
eligible to be granted awards under the Plan.
SECTION 5. STOCK OPTIONS.
Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve.
Stock Options granted under the Plan will be Non-Qualified Stock Options.
No Incentive Stock Options may be granted pursuant to this Plan.
Options granted to employees under the Plan shall be subject to the
following terms and conditions and shall contain such additional terms and
conditions, not inconsistent with the terms of the Plan, as the Committee shall
deem desirable.
(a) Option Price. The option price per share of Common Stock
purchasable under a Stock Option shall be determined by the Committee at
the time of grant but shall be not less than 50% of the Fair Market Value
of the Common Stock at grant.
(b) Option Term. The term of each Stock Option shall be fixed by the
Committee.
(c) Exercisability. Stock Options shall be exercisable at such time or
times and subject to such terms and conditions as shall be determined by
the Committee at or after grant. The Committee may provide that a Stock
Option shall vest over a period of future service at a rate specified at
the time of grant, or that the Stock Option is exercisable only in
installments. If the Committee provides, in its sole discretion, that any
Stock Option is exercisable only in installments, the Committee may waive
such installment exercise provisions at any time at or after grant, in
whole or in part, based on such factors as the Committee shall determine
in its sole discretion.
(d) Method of Exercise. Subject to whatever installment exercise
restrictions apply under Section 5(c), Stock Options may be exercised in
whole or in part at any time during the option period, by giving written
notice of exercise to the Corporation specifying the number of shares to
be purchased. Such notice shall be accompanied by payment in full of the
purchase price, either by check, note, or such other instrument as the
Committee may accept. As determined by the Committee, in its sole
discretion, at or after grant, payment in full or in part may also be made
in the form of shares of Common Stock already owned by the optionee or
shares of restricted stock or shares subject to such Option or another
award hereunder (in each case valued at the Fair Market Value of the
Common Stock on the date the Option is exercised). If payment of the
exercise price is made in part or in full with Common Stock, the Committee
may award to the employee a new Stock Option to replace the Common Stock
which was surrendered. If payment of the option exercise price of a
Non-Qualified Stock Option is made in whole or in part in the form of
restricted stock, such restricted stock (and any replacement shares
relating thereto) shall remain (or be) restricted in accordance with the
original terms of the restricted stock award in question, and any
additional Common Stock received upon the exercise shall be subject to the
same forfeiture restrictions, unless otherwise determined by the
Committee, in its sole discretion, at or after grant. No shares of Common
Stock shall be issued until full payment therefor has been made. An
optionee shall generally have the rights to dividends or other rights of a
shareholder with respect to shares subject to the Option when the optionee
has given written notice of exercise, has paid in full for such shares,
and, if requested, has given the representation described in Section 9(a).
(e) Transferability of Options. No Non-Qualified Stock Option shall be
transferable by the optionee without the prior written consent of the
Committee other than (i) transfers by the Optionee to a member of his or
her Immediate Family or a trust for the benefit of the optionee or a
member of his or her Immediate Family, or (ii) transfers by will or by the
laws of descent and distribution.
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(f) Bonus for Taxes. The Committee in its discretion may award at the
time of grant or thereafter the right to receive upon exercise of such
Stock Option a cash bonus calculated to pay part or all of the federal and
state, if any, income tax incurred by the optionee upon such exercise.
(g) Termination by Death. Subject to Section 5(k), if an optionee's
employment by the Corporation and any Subsidiary or Affiliate terminates
by reason of death, any Stock Option held by such optionee may thereafter
be exercised, to the extent such option was exercisable at the time of
death or on such accelerated basis as the Committee may determine at or
after grant by the legal representative of the estate or by the legatee of
the optionee under the will of the optionee, for a period of one year (or
such other period as the Committee may specify at or after grant) from the
date of such death or until the expiration of the stated term of such
Stock Option, whichever period is the shorter.
(h) Termination by Reason of Disability. Subject to Section 5(k), if an
optionee's employment by the Corporation and any Subsidiary or Affiliate
terminates by reason of Disability, any Stock Option held by such optionee
may thereafter be exercised by the optionee, to the extent it was
exercisable at the time of termination or on such accelerated basis as the
Committee may determine at or after grant, for a period of three years (or
such other period as the Committee may specify at or after grant) from the
date of such termination of employment or until the expiration of the
stated term of such Stock Option, whichever period is the shorter;
provided however, that, if the optionee dies within the period specified
above (or other such period as the Committee shall specify at or after
grant), any unexercised Stock Option held by such optionee shall
thereafter be exercisable to the extent to which it was exercisable at the
time of death for a period of twelve months from the date of such death or
until the expiration of the stated term of such Stock Option, whichever
period is shorter.
(i) Termination by Reason of Retirement. Subject to Section 5(k), if an
optionee's employment by the Corporation and any Subsidiary or Affiliate
terminates by reason of Normal or Early Retirement, any Stock Option held
by such optionee may thereafter be exercised by the optionee, to the
extent it was exercisable at the time of such Retirement or on such
accelerated basis as the Committee may determine at or after grant, for a
period of three years (or such other period as the Committee may specify
at or after grant) from the date of such termination of employment or the
expiration of the stated term of such Stock Option, whichever period is
the shorter; provided however, that, if the optionee dies within the
period specified above (or other such period as the Committee shall
specify at or after grant), any unexercised Stock Option held by such
optionee shall thereafter be exercisable to the extent to which it was
exercisable at the time of death for a period of twelve months from the
date of such death or until the expiration of the stated term of such
Stock Option, whichever period is shorter.
(j) Other Termination. Subject to Section 5(k), unless otherwise
determined by the Committee (or pursuant to procedures established by the
Committee) at or after grant, if an optionee's employment by the
Corporation and any Subsidiary or Affiliate is involuntarily terminated
for any reason other than death, Disability or Normal or Early Retirement,
the Stock Option shall thereupon terminate, except that such Stock Option
may be exercised, to the extent otherwise then exercisable, for the lesser
of three months or the balance of such Stock Option's term if the
involuntary termination is without Cause. For purposes of this Plan,
"Cause" means (i) a felony conviction of a participant or the failure of a
participant to contest prosecution for a felony, or (ii) a participant's
willful misconduct or dishonesty, which is directly and materially harmful
to the business or reputation of the Corporation or any Subsidiary or
Affiliate, in each case as determined by the Committee, in its sole
direction. If an optionee voluntarily terminates employment with the
Corporation and any Subsidiary or Affiliate (except for Disability, Normal
or Early Retirement), the Stock Option shall thereupon terminate;
provided, however, that the Committee at grant or thereafter may extend
the exercise period in this situation for the lesser of three months or
the balance of such Stock Option's term.
(k) Buyout Provisions. The Committee may at any time offer to buy out
for a payment in cash, Common Stock, or restricted stock an Option
previously granted, based on such terms and conditions as the Committee
shall establish and communicate to the optionee at the time that such
offer is made.
(l) Settlement Provisions. If the option agreement so provides at grant
or is amended after grant and prior to exercise to so provide (with the
optionee's consent), the Committee may require that all or part of the
shares to be issued with respect to the spread value of an exercised
Option take the form of restricted stock, which shall be valued on the
date of exercise on the basis of the Fair Market Value (as determined by
the Committee) of such restricted stock determined without regards to the
forfeiture restrictions involved.
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(m) Performance and Other Conditions. The Committee may condition the
exercise of any Option upon the attainment of specified Performance Goals
or other factors as the Committee may determine, in its sole discretion.
Unless specifically provided in the option agreement, any such conditional
Option shall vest six months prior to its expiration if the conditions to
exercise have not theretofore been satisfied.
SECTION 6. CHANGE IN CONTROL PROVISIONS.
(a) Impact of Event. In the event of:
(1) a "Change in Control" as defined in Section 6(b); or
(2) a "Potential Change in Control" as defined in Section
6(c), but only if and to the extent so determined by the Committee or
the Board at or after grant (subject to any right of approval expressly
reserved by the Committee or the Board at the time of such
determination);
(i) subject to the limitations set forth below in this Section
6(a), any Stock Option awarded under the Plan not previously
exercisable and vested shall become fully exercisable and vested.
(ii) subject to the limitations set forth below in this
Section 6(a), the value of all outstanding Stock Options, to the extent
vested, shall, unless otherwise determined Board or by the Committee in
its sole discretion prior to any Change in Control, be cashed out on
the basis of the "Change in Control Price" as defined in Section 6(d)
as of the date such Change in Control or such Potential Change in
Control is determined to have occurred or such other date as the Board
or Committee may determine prior to the Change in Control.
(iii) The Board or the Committee may impose additional
conditions on the acceleration or valuation of any award in the award
agreement.
(b) Definition of Change in Control. For purposes of Section 6(a), a
"Change in Control" means the happening of any of the following:
(i) any person or entity, including a "group" as defined in
Section 13(d)(3) of the Exchange Act, other than the Corporation or a
wholly-owned subsidiary thereof or any employee benefit plan of the
Corporation or any of its Subsidiaries, becomes the beneficial owner of
the Corporation's securities having 35% or more of the combined voting
power of the then outstanding securities of the Corporation that may be
cast for the election of directors of the Corporation (other than as a
result of an issuance of securities initiated by the Corporation in the
ordinary course of business); or
(ii) as the result of, or in connection with, any cash tender
or exchange offer, merger or other business combination, sales of
assets or contested election, or any combination of the foregoing
transactions, less than a majority of the combined voting power of the
then outstanding securities of the Corporation or any successor
corporation or entity entitled to vote generally in the election of the
directors of the Corporation or such other corporation or entity after
such transaction are held in the aggregate by the holders of the
Corporation's securities entitled to vote generally in the election of
directors of the Corporation immediately prior to such transaction; or
(iii) during any period of two consecutive years, individuals
who at the beginning of any such period constitute the Board cease for
any reason to constitute at least a majority thereof, unless the
election, or the nomination for election by the Corporation's
shareholders, of each director of the Corporation first elected during
such period was approved by a vote of at least two-thirds of the
directors of the Corporation then still in office who were directors of
the Corporation at the beginning of any such period.
(c) Definition of Potential Change in Control. For purposes of Section
6(a), a "Potential Change in Control" means the happening of any one of
the following:
(i) The approval by shareholders of an agreement by the
Corporation, the consummation of which would result in a Change in
Control of the Corporation as defined in Section 6(b); or
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(ii) The acquisition of beneficial ownership, directly or
indirectly, by any entity, person or group (other than the Corporation
or a Subsidiary or any Corporation employee benefit plan (including any
trustee of such plan acting as such trustee)) of securities of the
Corporation representing 5% or more of the combined voting power of the
Corporation's outstanding securities and the adoption by the Committee
of a resolution to the effect that a Potential Change in Control of the
Corporation has occurred for purposes of this Plan.
(d) Change in Control Price. For purposes of this Section 6, "Change in
Control Price" means the highest price per share paid in any transaction
reported on Nasdaq or such other exchange or market as is the principal
trading market for the Common Stock, or paid or offered in any bona fide
transaction related to a Potential or actual Change in Control of the
Corporation at any time during the 60 day period immediately preceding the
occurrence of the Change in Control (or, where applicable, the occurrence
of the Potential Change in Control event), in each case as determined by
the Committee except that, in the case of Incentive Stock Options and
Stock Appreciation Rights relating to Incentive Stock Options, such price
shall be based only on transactions reported for the date on which the
optionee exercises such Stock Appreciation Rights or, where applicable,
the date on which a cash out occurs under Section 6(a)(ii).
SECTION 7. AMENDMENTS AND TERMINATION.
The Board may at any time amend, alter or discontinue the Plan without
shareholder approval to the fullest extent permitted by the Exchange Act and the
Code; provided, however, that no amendment, alteration, or discontinuation shall
be made which would impair the rights of an optionee or participant under a
Stock Option theretofore granted, without the participant's consent.
The Committee may amend the terms of any Stock Option or other award
theretofore granted, prospectively or retroactively, but, subject to Section 3
above, no such amendment shall impair the rights of any holder without the
holder's consent. The Committee may also substitute new Stock Options for
previously granted Stock Options (on a one for one or other basis), including
previously granted Stock Options having higher option exercise prices.
SECTION 8. UNFUNDED STATUS OF PLAN.
The Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Corporation, nothing contained herein shall give
any such participant or optionee any rights that are greater than those of a
general creditor of the Corporation. In its sole discretion, the Committee may
authorize the creation of trusts or other arrangements to meet the obligations
created under the Plan to deliver Common Stock or payments in lieu of or with
respect to awards hereunder; provided, however, that, unless the Committee
otherwise determines with the consent of the affected participant, the existence
of such trusts or other arrangements is consistent with the "unfunded" status of
the Plan.
SECTION 9. GENERAL PROVISIONS.
(a) The Committee may require each person purchasing shares pursuant to
a Stock Option to represent to and agree with the Corporation in writing
that the optionee or participant is acquiring the shares without a view to
distribution thereof. The certificates for such shares may include any
legend which the Committee deems appropriate to reflect any restrictions
on transfer. All certificates for shares of Common Stock or other
securities delivered under the Plan shall be subject to such stop-transfer
orders and other restrictions as the Committee may deem advisable under
the rules, regulations, and other requirements of the Commission, any
stock exchange upon which the Common Stock is then listed, and any
applicable Federal or state securities law, and the Committee may cause a
legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
(b) Nothing contained in this Plan shall prevent the Board from
adopting other or additional compensation arrangements, subject to
shareholder approval if such approval is required; and such arrangements
may be either generally applicable or applicable only in specific cases.
(c) The adoption of the Plan shall not confer upon any employee of the
Corporation or any Subsidiary or Affiliate any right to continued
employment with the Corporation or a Subsidiary or Affiliate, as the case
may be, nor shall it interfere in any way with the right of the
Corporation or a Subsidiary or Affiliate to terminate the employment of
any of its employees at any time.
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(d) No later than the date as of which an amount first becomes
includible in the gross income of the participant for Federal income tax
purposes with respect to any award under the Plan, the participant shall
pay to the Corporation, or make arrangements satisfactory to the Committee
regarding the payment of, any Federal, state, or local taxes of any kind
required by law to be withheld with respect to such amount. The Committee
may require withholding obligations to be settled with Common Stock,
including Common Stock that is part of the award that gives rise to the
withholding requirement. The obligations of the Corporation under the Plan
shall be conditional on such payment or arrangements and the Corporation
and its Subsidiaries or Affiliates shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind
otherwise due to the participant.
(e) The Plan and all awards made and actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of
Tennessee.
(f) The members of the Committee and the Board shall not be liable to
any employee or other person with respect to any determination made
hereunder in a manner that is not inconsistent with their legal
obligations as members of the Board. In addition to such other rights of
indemnification as they may have as directors or as members of the
Committee, the members of the Committee shall be indemnified by the
Corporation against the reasonable expenses, including attorneys' fees
actually and necessarily incurred in connection with the defense of any
action, suit or proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan or any option granted
thereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel
selected by the Corporation) 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
Committee member is liable for negligence or misconduct in the performance
of his duties; provided that within 60 days after institution of any such
action, suit or proceeding, the Committee member shall in writing offer
the Corporation the opportunity, at its own expense, to handle and defend
the same.
(g) In addition to any other restrictions on transfer that may be
applicable under the terms of this Plan or the applicable award agreement,
no Stock Option issued under this Plan is transferable by the participant
without the prior written consent of the Committee, other than (i)
transfers by an Optionee to a member of his or her Immediate Family or a
trust for the benefit of the optionee or a member of his or her Immediate
Family or (ii) transfers by will or by the laws of descent and
distribution. The designation of a beneficiary will not constitute a
transfer.
SECTION 10. EFFECTIVE DATE OF PLAN.
The Plan shall be effective as of the date of approval of the Plan by the
Board of Directors of the Corporation (the "Effective Date").
SECTION 11. TERM OF PLAN.
No Stock Option shall be granted pursuant to the Plan on or after the
tenth anniversary of the Effective Date of the Plan, but awards granted prior to
such tenth anniversary may be extended beyond that date.
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EXHIBIT 5
B A S S, B E R R Y & S I M S P L C
A PROFESSIONAL LIMITED LIABILITY COMPANY
ATTORNEYS AT LAW
2700 FIRST AMERICAN CENTER 1700 RIVERVIEW TOWER
NASHVILLE, TENNESSEE 37238-2700 POST OFFICE BOX 1509
TELEPHONE (615) 742-6200 KNOXVILLE, TENNESSEE 37901-1509
TELECOPIER (615) 742-6293 TELEPHONE (423) 521-6200
TELECOPIER (423) 521-6234
June 15, 1998
ENVOY Corporation
Two Lakeview Place
15 Century Boulevard, Ste 600
Nashville, TN 37214
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as your counsel in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") relating to the Company's
1998 Stock Incentive Plan, 1998 Synergy Stock Option Plan, and 1998 ExpressBill
Stock Option Plan (the "Plans") filed by you with the Securities and Exchange
Commission covering 2,375,000 shares (the "Shares") of common stock, no par
value per share, issuable pursuant to the Plans.
In so acting, we have examined and relied upon such records, documents,
and other instruments as in our judgment are necessary or appropriate in order
to express the opinions hereinafter set forth and have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, and the conformity to original documents of all documents submitted
to us as certified or photostatic copies.
Based on the foregoing, we are of the opinion that the Shares, when
issued pursuant to and in accordance with the Plans, will be validly issued,
fully paid, and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
<PAGE> 1
EXHIBIT 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333____) pertaining to the 1998 Stock Incentive Plan of ENVOY
Corporation of our report dated March 5, 1998, except for Notes 1 and 4, as to
which the date is April 29, 1998, with respect to the consolidated financial
statements and schedule of ENVOY Corporation for the year ended December 31,
1997, included in its Amendment No. 1 to Current Report on Form 8-K/A dated May
5, 1998, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Nashville, Tennessee
June 12, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated
February 11, 1998 relating to the financial statements of Professional Office
Services, Inc. as of December 31, 1997 and 1996 and for each of the three years
in the period ended December 31, 1997 and our report dated January 30, 1998
relating to the financial statements of XpiData, Inc. as of December 31, 1997
and 1996 and for each of the three years in the period ended December 31, 1997
included in ENVOY Corporation's Current Report on Form 8-K and to all references
to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Nashville, Tennessee
June 10, 1998
