0000814430-95-000022.txt : 19950818 0000814430-95-000022.hdr.sgml : 19950818 ACCESSION NUMBER: 0000814430-95-000022 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19950817 EFFECTIVENESS DATE: 19950905 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: INTELLIGENT ELECTRONICS INC CENTRAL INDEX KEY: 0000814430 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-COMPUTER & PERIPHERAL EQUIPMENT & SOFTWARE [5045] IRS NUMBER: 232208404 STATE OF INCORPORATION: PA FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-61883 FILM NUMBER: 95564883 BUSINESS ADDRESS: STREET 1: 411 EAGLEVIEW BLVD CITY: EXTON STATE: PA ZIP: 19341 BUSINESS PHONE: 6104585500 MAIL ADDRESS: STREET 1: 411 EAGLEVIEW BLVD CITY: EXTON STATE: PA ZIP: 19341 S-8 1 As filed with the Securities and Exchange Commission on August 17, 1995 Registration No. 33-_________ =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 ---------------------- FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ---------------------- INTELLIGENT ELECTRONICS, INC. (Exact Name of Registrant as Specified in its Charter) PENNSYLVANIA 23-2208404 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Identification No.) Organization) 411 Eagleview Boulevard Exton, Pennsylvania 19341 (610) 458-5500 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) 1991 STOCK OPTION AND STOCK INCENTIVE PLAN 1991 DIRECTOR STOCK OPTION PLAN AND 1994 STOCK OPTION and STOCK INCENTIVE PLAN (Full Title of the Plan) Richard D. Sanford, Chairman of the Board and Chief Executive Officer Intelligent Electronics, Inc. 411 Eagleview Boulevard Exton, Pennsylvania 19341 (Name and Address of Agent For Service) (610) 458-5500 (Telephone Number, Including Area Code, of Agent for Service) CALCULATION OF REGISTRATION FEE
==================================================================================================================== Proposed Maximum Title of Shares Amount to be Proposed Maximum Offering Aggregate Offering Amount of to be Registered Registered Price Per Share Price (1) Registration Fee -------------------------------------------------------------------------------------------------------------------- Common Stock ($.01 par value) 323,454 -- $6,269,415.54 $2,161.87 ==================================================================================================================== (1) Pursuant to Rule 457(h) under the Securities Act of 1933, the aggregate offering price and the amount of the fee are computed with respect to the shares for which options have been granted (323,454 shares) upon the basis of the aggregate price at which such shares may be purchased by the optionees ($6,269,415.54).
PAGE PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents which have been filed by Intelligent Electronics, Inc. ("registrant" or the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated by reference into this Registration Statement: (a) the Company's Annual Report on Form 10-K for the year ended January 28, 1995; (b) the Company's Quarterly Report on Form 10-Q for the quarter ended April 29, 1995; (c) the Company's Current Reports on Form 8-K dated March 6, 1995 and April 28, 1995; and (d) the description of the Common Stock, par value $.01 per share (the "Common Stock"), of the Company contained in the Company's Registration Statement on Form 8-A, dated June 24, 1987, including any amendments or reports filed for the purpose of updating such description. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered pursuant to this Registration Statement have been sold or which deregisters all securities 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. Item 4. Description of Securities. The Common Stock, which is the class of securities offered pursuant to this Registration Statement, is registered under the Exchange Act. Item 5. Interests of Named Experts and Counsel. The validity of the Common Stock registered hereunder has been passed upon for the Company by Pepper, Hamilton & Scheetz, Philadelphia, Pennsylvania. Barry M. Abelson, a director and a member of the Executive Committee of the Board of Directors of the Company, is a partner of Pepper, Hamilton & Scheetz. Mr. Abelson owns 42,900 shares of the Company Common Stock and options to purchase an additional 40,000 shares. Item 6. Indemnification of Directors and Officers. Sections 513 and 1741-1750 of the Pennsylvania Business Corporation Law of 1988 (the "BCL"), Section 8365 of Title 42 of the Pennsylvania Consolidated Statutes ("Section 8365") and the Company's By-Laws provide for indemnification of the Company's directors and officers and certain other persons. Under Sections 1741-1750 of the BCL, directors and officers of the Company may be indemnified by the Company against all expenses incurred in connection with actions (including, under certain circumstances, derivative actions) brought against such director or officer by reason of his or her status as a representative of the Company, or by reason of the fact that such director or officer serves or served as a representative of another entity at the Company's request, so long as the director or officer acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Company. As permitted under Section 1741-1750 of the BCL and Section 8365, the Company's By-Laws provide that the Company shall indemnify directors and officers against all expenses incurred in connection with actions (including derivative actions) brought against such director or officer by reason of the fact that he or she is or was a director or officer of the Company, or by reason of the fact that such director or officer serves or served as an employee or agent of any entity at the Company's request, unless the act or failure to act on the part of the director or officer giving rise to the claim for indemnification is determined by a court in a final, binding adjudication to have constituted willful misconduct or recklessness. Item 7. Exemption from Registration Claimed. No restricted securities are being reoffered or resold pursuant to this Registration Statement. Item 8. Exhibits. Exhibit No. Description 4.1 1991 Stock Option and Stock Incentive Plan* 4.2 1991 Director Stock Option Plan* 4.3 1994 Stock Option and Stock Incentive Plan* 5 Opinion of Pepper, Hamilton & Scheetz 23.1 Consent of Independent Accountants 23.2 Consent of Pepper, Hamilton & Scheetz (Included in Exhibit 5) 24 Power of Attorney (See pages 5-6) ___________________ * Each of the marked Plans was adopted by The Future Now, Inc. ("TFN"). The options outstanding under each such Plan immediately prior to the acquisition by the registrant of the outstanding capital stock of TFN (pursuant to the Agreement and Plan of Merger, dated as of April 28, 1995, as amended by Amendment No. 1, dated as of July 6, 1995) (the "Merger Agreement") have been converted pursuant to the Merger Agreement into options to acquire shares of common stock, par value $.01, of the registrant. Item 9. Undertakings The undersigned registrant hereby undertakes as follows: (1) To file, during any period in which offers or sales are being made pursuant to this Registration Statement, 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; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in aggregate, represent a fundamental change in the information set forth in this Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration State- ment or any material change to such information in this Registration Statement; provided, however, that paragraphs (1)(i) and (1)(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 with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 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 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 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. (4) 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 Company 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 Exton, State of Pennsylvania, on this 17th day of August, 1995. INTELLIGENT ELECTRONICS, INC. By: /s/ Richard D. Sanford ----------------------------------- Richard D. Sanford, Chief Executive Officer and Chairman of the Board POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Richard D. Sanford and Thomas J. Coffey, and each or any of them, his true and lawful attorney-in-fact and agent, 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 (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 attorneys-in-fact and agents, and each of them, 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 any of them, or their, his or her substitutes or substitute, 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. Dated: August 17, 1995 /s/ Richard D. Sanford ----------------------------------- Richard D. Sanford, Chief Executive Officer and Chairman of the Board (principal executive officer) Dated: August 17, 1995 /s/ Gregory A. Pratt ----------------------------------- Gregory A. Pratt, President, Chief Operating Officer and Director Dated: August 17, 1995 /s/ Thomas J. Coffey ----------------------------------- Thomas J. Coffey, Chief Financial Officer and Vice President (principal financial and accounting officer) Dated: August 17, 1995 /s/ Arnold S. Hoffman ----------------------------------- Arnold S. Hoffman, Director Dated: August 17, 1995 /s/ William L. Rulon-Miller ----------------------------------- William L. Rulon-Miller, Director Dated: August 17, 1995 /s/ Barry M. Abelson ----------------------------------- Barry M. Abelson, Director Dated: August 17, 1995 /s/ Roger J. Fritz ----------------------------------- Roger J. Fritz, Director Dated: August 17, 1995 /s/ James M. Ciccarelli ----------------------------------- James M. Ciccarelli, Director Dated: ----------------------------------- Christopher T.G. Fish, Director Dated: August 17, 1995 /s/ Alex A.C. Wilson ----------------------------------- Alex A.C. Wilson, Director Dated: August 17, 1995 /s/ William E. Johnson ----------------------------------- William E. Johnson, Director Dated: August 17, 1995 /s/ John A. Porter ----------------------------------- John A. Porter, Director EX-4.1 2 EXHIBIT 4.1 1991 STOCK OPTION AND STOCK INCENTIVE PLAN (1) ESTABLISHMENT OF THE PLAN The Future Now, Inc., an Ohio corporation, herein sets forth the terms of its 1991 Stock Option and Stock Incentive Plan (hereinafter referred to as the "Plan"). (2) DEFINITIONS For purposes of the Plan, the following terms shall have the following meanings: (a) "Board" means the Board of Directors of the Company. (b) "Committee" means the Committee described in paragraph (4) which shall administer the Plan. (c) "Common Stock" or "Shares" means shares of the no par value Common Stock of the Company. (d) "Company" means The Future Now, Inc., an Ohio corporation. (e) "Fair Market VaLue," when used in reference to Shares of the Company's Common Stock, shall mean the average of the high bid and low asked prices per share of the Company's Common Stock in the over-the-counter market as reported on the NASDAQ System on the date the Fair Market Value is being determined. (f) "Participant" means an officer or employee of the Company who has been granted an option or award under the Plan. (3) PURPOSES OF THE PLAN The purposes of the Plan are to provide the Company's officers and employees with additional incentive and motivation to contribute to the Company's future growth and continued success, by providing them with the opportunity to obtain a stock ownership interest in the Company, and to enable the Company to attract and retain the services of qualified officers and employees. The Plan is also intended to reinforce the commonality of interest between the Company's shareholders and the officers and employees eligible to participate in the Plan. (4) ADMINISTRATION (a) The Plan shall be administered by a Committee of the Board of Directors (hereinafter referred to as the "Committee"). The Committee shall consist of not fewer than three (3) members of the Company's Board of Directors, who shall be appointed by the Board. The members of the Committee shall serve at the pleasure of the Board, which may remove members from, add members to, or fill vacancies on the Committee. Provided, however, that no director shall serve or be appointed to serve on the Committee unless that director is a "Disinterested Person" as hereinafter defined. For purposes of this Plan, the term "Disinterested Person" shall mean a director of the Company who, during the one (1) year prior to his service as a member of the Committee, has not been granted or awarded any options, awards or equity securities pursuant to the Plan (or pursuant to any other plan of the Company or its affiliates entitling the participants therein to acquire equity securities), except that: (i) Participation in a plan that satisfies all of the following requirements will not disqualify a director from being a Disinterested Person: (A) the plan by its terms states the amount and price of securities to be awarded to designated officers and directors and specifies the timing of the grants for all participants, or the plan sets forth a formula that determines the amount, price and timing using objective criteria; (B) awards under the plan are not subject to the discretion of any person; and (C) the plan provides that the previously described provisions and requirements cannot be amended more than once every six (6) months, other than to comply with changes in the Internal Revenue Code or the rules thereunder; (ii) an election to receive an annual retainer or director's fee in either cash or an equivalent amount of equity securities, or partly in cash and partly in securities, shall not disqualify a director from being a Disinterested Person; and (iii) participation in a plan shall not disqualify a director from being a Disinterested Person for the purpose of administering another plan that does not permit participation by directors. (b) Subject to any specific limitations contained in the Plan, the Committee shall have the sole and complete authority: (i) to select the officers and employees who shall participate in the Plan; (ii) to make awards in such forms and amounts as it shall determine and to cancel or suspend awards; (iii) to impose such limitations, restrictions or conditions upon awards as it shall deem appropriate; (iv) to interpret the Plan and to adopt, amend and rescind administrative guidelines and other rules and regulations relating to the Plan; and (v) to make all other determinations and to take all other actions necessary or advisable for the proper administration of the Plan. The Committee's interpretation and construction of any provision of the Plan, or of any award granted under it, and any actions taken by the Committee under the Plan, shall be final and conclusive upon the Company and all other parties. (c) A majority of the Committee shall constitute a quorum, and the acts of a majority of the members present at any meeting of the Committee at which a quorum is present, or acts approved in writing by a majority of the Committee, shall be considered as valid actions by the Committee. The Committee in its discretion may appoint a Chairman, may hold meetings at such times and places as it may determine, and may make such rules and regulations for the conduct of its business as it shall deem advisable. The Committee may desig- nate one or more officers or employees of the Company to execute documents on its behalf or to perform such other non-discretionary, ministerial duties as the Committee may determine. (5) TYPES OF AWARDS The following kinds or types of awards may be granted under the Plan: (a) Incentive Stock Options; (b) Non-Qualified Stock Options; and (c) Restricted Stock. In connection with any award or any deferred award granted under the Plan, payments may also be made representing dividends, interest, or their equivalent. (6) ELIGIBILITY TO PARTICIPATE Only persons who are officers or full-time employees of the Company shall be eligible to participate in and to receive awards under the Plan. An individual participant may hold more than one award under the Plan or under any similar plans adopted by the Company. Neither the members of the Committee nor any member of the Company's Board of Directors who is not also an officer or full-time employee of the Company shall be eligible to participate in or to receive an award under the Plan. (7) SHARES SUBJECT TO THE PLAN (a) The Shares to be issued and delivered by the Company upon the exercise of options or the payment of other awards granted under the Plan shall be Shares of the Company's no par value Common Stock, which may be either authorized but unissued shares or treasury shares as determined by the Committee. (b) The maximum number of Shares of Common Stock which may be issued under the Plan shall be Three Hundred Sixty Thousand (360,000) Shares. In the event of a change in the number or nature of the Company's Shares of outstanding common stock by reason of a stock dividend, stock split, recapitalization, reorganization, merger, exchange of shares, or other similar capital adjustments: (i) equitable proportionate adjustments may be made by the Committee in the number or kind of shares reserved for issuance pursuant to awards granted under the Plan; and (ii) with respect to any outstanding options or other awards granted under the Plan, equitable proportionate adjustments shall be made by the Committee to the number, class, option price, or other price of Shares subject to such outstanding options or awards as the Committee shall deem to be appropriate in order to maintain the purpose of the original grant. The determination of the Committee as to any such adjustment shall be final, binding and conclusive. (c) If any option granted under the Plan shall expire or terminate for any reason without having been exercised in full, the Shares subject to such option shall again be available for issuance in connection with the grant of any type of award under the Plan. If any Shares subject to any other award are forfeited, or the award is terminated without issuance of the Shares or other consideration, the Shares subject to such award shall again be available for issuance in connection with the grant of any type of award under the Plan. (8) STOCK OPTIONS All Stock Options granted under the Plan shall be subject to the following terms and conditions: (a) The Committee may, from time to time in its discretion, subject to the provisions of the Plan, grant to any Participant options to purchase Shares of the Company's Common Stock in such amounts as it shall determine, which options may be "Incentive Stock Options" (as defined in Section 422 of the U.S. Internal Revenue Code and hereinafter referred to as "ISOs") or "Non-Qualified Stock Options" (all other options granted hereunder). All options granted pursuant to the Plan shall be evidenced by a written Stock Option Agreement between the Company and the Participant. The Stock Option Agreement shall be in such form and shall contain such terms and conditions as the Committee shall determine. The Stock Option Agreement shall indicate whether the option is an ISO or a Non-Qualified Stock Option. (b) The purchase price per share payable by a Participant upon the exercise of each option granted under the Plan shall be determined by the Committee at the time of the grant of the option, provided, however: (i) the exercise or purchase price per share of each Non-Qualified Stock Option shall not be less than Eighty-Five (85%) percent of the Fair Market Value of the Shares on the date of the grant; and (ii) the exercise or purchase price per share of each ISO shall not be less than One Hundred (100%) percent of the Fair Market Value of the Shares on the date of the grant, except as hereinafter provided. The exercise or purchase price per share of each ISO granted to a Participant who, at the time of the grant, owns more than Ten (10%) percent of the total combined voting power of all classes of stock of the Company, shall not be less than One Hundred Ten (110%) percent of the Fair Market Value of the Shares on the date of the grant. An option shall be considered granted on the effective date of the Stock Option Agreement, or on such later date as the Committee shall specify in the Stock Option Agreement. (c) The term during which each option granted under the Plan may be exercised shall be determined by the Committee at the time of the grant of the option; provided, however, in no event shall an ISO granted under the Plan be exercisable in whole or in part more than ten (10) years from the date it is granted. In addition, in the case of the grant of an ISO to a participant who, at the time of the grant, owns more than Ten (10%) percent of the total combined voting power of all classes of stock of the Company, in no event shall such ISO be exercisable in whole or in part more than five (5) years from the date it is granted. Each Stock Option Agreement shall set forth a termination date on which the option shall expire in all events. The date(s) on which each option granted under the Plan shall become exercisable shall be determined by the Committee at the time of the grant of the option. Except as hereinafter provided, options granted under the Plan may be exercisable immediately, or after some specified period of time, or according to some specified schedule of exercise, as determined by the Committee. Except as hereinafter provided, the Committee may, in its sole discretion, accelerate the date(s) on which an option may be exercised. No option granted under the Plan to a Participant who is an officer of the Company shall be exercisable during the first twelve (12) months following the date of its grant, except in the case of such Participant's death or permanent disability upon such terms and conditions as the Committee may determine. (d) More than one (1) option may be granted to any individual Participant under the Plan, and the terms and conditions of options may differ. Other than the overall limit on the number of Shares reserved for issuance under the Plan, there is no specific limitation on the number of Shares for which options may be granted to any individual Participant except as hereinafter provided. No option which is intended to be an ISO shall be granted to a Participant during any calendar year if the aggregate fair market value (determined at the time the option is granted) of Shares with respect to which ISOs are exercisable for the first time by such Participant during that calendar year under this or any other stock option plan of the Company exceeds One Hundred Thousand ($100,000.00) Dollars. (e) An option granted under the Plan shall be exercised by the Participant, or by such other person as may be entitled to exercise the option, by sending or delivering a written notice to the Committee, or to such officer or other person as the Committee shall designate. The written notice shall state the number of Shares with respect to which the option is being exercised, and shall be accompanied by the payment of the full exercise or purchase price for such Shares. The exercise or purchase price for the Shares may be paid in cash, or in the discretion of the Committee, in Shares of the Company's Common Stock, or in any combination thereof. Any Shares of the Company's Common Stock that are delivered in total or partial payment of the exercise or purchase price shall be valued at the Shares' Fair Market Value on the date of the exercise of the option. A stock certificate(s) for the Shares purchased by the exercise of an option shall be issued in the regular course of the Company's business, subsequent to the exercise of the option and the payment of the purchase price. No Participant entitled to exercise an option granted under the Plan shall have any of the rights or privileges of a shareholder of the Company with respect to any Shares issuable upon exercise of such option, until certificates representing such Shares shall have been issued and delivered and the participant's name entered as a shareholder of record on the books of the Company. (f) Options granted under the Plan shall not be assigned, transferred, pledged or otherwise encumbered in any way, except in the event of the death of a Participant, by the Participant's will or by the applicable laws of descent and distribution. In the event of the death of a Participant, the Participant's estate, personal representative, or the person or persons who acquire (by bequest or inheritance) the rights to exercise any options granted under the Plan, may exercise any available options or parts thereof, prior to the expiration of the exercise period described in Paragraph (8)(g) of the Plan. Each option granted under the Plan shall be exercisable during the Participant's lifetime only by the Participant or, if permissible under applicable law, by the Participant's guardian or legal representative. (g) (i) Except as hereinafter provided, options granted under the Plan shall expire in all events upon the date determined by the Committee at the time of the grant of the option and specified in the Stock Option Agreement, which date shall not exceed the periods described in Paragraph (8)(c) of the Plan. (ii) Unless otherwise specified in the Stock Option Agreement between the Company and the participant, if a Participant's employment with the Company is terminated for any reason, other than the Participant's permanent disability or death, any outstanding vested options may be exercised, to the extent such options were exercisable on the date the Participant's employment was terminated, for a period of six (6) months following the date of such termination. If not exercised within such six (6) month period, such options shall terminate. Any options which were not vested or exercisable on the date the Participant's employment was terminated shall terminate immediately on that date. The Committee may, in its sole discretion, grant options under the Plan which survive, either in whole or in part, the termination of a Participant's employment with the Company for a period longer than six (6) months, upon such terms and conditions as the Committee may determine. In addition, the Committee may, in its sole discretion, at the time of the termination of a Participant's employment with the Company, extend the exercise period of any option that would otherwise have terminated. In no event, however, shall any option granted under the Plan survive beyond the date described in Paragraph (8)(g)(i) above. (iii) Unless otherwise specified in the Stock Option Agreement between the Company and the Participant, if a Participant's employ- ment with the Company is terminated by reason of the Participant's permanent disability or death, any outstanding vested options may be exercised, to the extent such options were exercisable on the date of the Participant's permanent disability or death, for a period of twelve (12) months following the date of permanent disability or death. If not exercised within such twelve (12) month period, such options shall terminate. Any options which were not vested or exercisable on the date of the Participant's death or permanent disability shall terminate immediately on that date. The Committee may, in its sole discretion, grant options under the Plan which survive, either in whole or in part, the permanent disability or death of a participant for a period of up to thirty-six (36) months, upon such terms and conditions as the Committee may determine. In no event, however, shall any option granted under the Plan survive beyond the date described in Paragraph (8)(g)(i) above. (9) RESTRICTED STOCK All awards of Restricted Stock made under the Plan shall be subject to the following terms and conditions: (a) The Committee may, from time to time in its discretion, subject to the provisions of the Plan, award Shares of Restricted Stock to any Participant in such amounts as it shall determine. The Company shall issue and deliver to a Participant to whom an award of Restricted Stock has been made, the number of Shares specified by the Committee. A Participant to whom an award of Restricted Stock has been made shall not be required to provide any consideration for the Shares, other than the rendering of services or the payment of any minimum amount required by applicable law, unless otherwise determined by the Committee. Each award of Restricted Stock made under the Plan shall be evidenced by a written Restricted Stock Agreement between the Company and the Participant. The Restricted Stock Agreement shall be in such form and shall contain such terms and conditions as the Committee shall determine. More than one (1) award of Restricted Stock may be granted to an individual Participant under the Plan, and the terms and conditions of Restricted Stock Awards may differ. (b) Except as hereinafter provided, Shares of Restricted Stock may not be sold, assigned, transferred, pledged or otherwise encumbered by a Participant during the "Restricted Period." The Restricted Period is the period of time, determined by the Committee in its discretion, during which the Participant may not sell, assign, transfer, pledge, or otherwise encumber the Shares and during which the Shares are subject to forfeiture back to the Company. The Committee may impose such additional limitations on the ownership of Restricted Stock during the Restricted Period as it may determine. The Restricted Period shall commence upon the date of the award of the Restricted Stock to the Participant and shall terminate on the date(s) determined by the Committee in its discretion. The termination date(s) of the Restricted Period may be a single date on which all of the Shares subject to the award are released from the transfer and other restrictions or may be several dates on which a specified percentage of such Shares are released from such restrict- ions. Except as hereinafter provided, the Committee may, in its sole dis- cretion, accelerate the date(s) on which the Restricted Period will terminate. The Restricted Period for any award of Restricted Stock made to a Participant who is an officer of the company shall be at least twelve (12) months from the date of the award, subject to such exceptions, if any, as are authorized by the Committee with respect to such Participant's death or permanent disability. Except for the restrictions on transfer and unless otherwise determined by the Committee, any Participant who owns Shares of Restricted Stock shall have all of the rights of a shareholder with respect to such Shares, including but not limited to, the right to vote and the right to receive dividends. (c) Each stock certificate issued by the Company evidencing Shares of Restricted Stock awarded under the Plan shall be registered in the name of the Participant and shall bear the following or a similar legend: "The shares of stock represented by this Certificate are subject to the terms and conditions (including forfeiture) contained in The Future Now, Inc. 1991 Stock Option and Stock Incentive Plan and may not be sold, assigned, transferred, pledged or otherwise encumbered in any manner until ____________, ____." (d) If a Participant's employment with the Company is terminated during the Restricted Period, all of the Shares of Restricted Stock shall be forfeited back to the Company, subject to such exceptions, if any, as are authorized by the Committee with respect to the termination of a Participant's employment due to normal retirement, permanent disability, death or other special circumstances. Awards of Restricted Stock made under the Plan shall not be assigned, transferred, pledged or otherwise encumbered in any way, except in the event of the death of a Participant, by the Participant's Will or by the applicable laws of descent and distribution. (e) Upon the lapse of the Restricted Period, the Shares of Restricted Stock shall no longer be subject to the restrictions described in this Paragraph (9) and the Company shall issue new stock certificates for the Shares registered in the name of the Participant without the legend described in Paragraph (9)(c) hereof. (f) Any shares of the Company's Common Stock issued to a Participant with respect to Restricted Stock as a result of a stock split, stock dividend or similar transaction shall be restricted to the same extent as such Restricted Stock, unless otherwise determined by the Committee. (g) All other terms and conditions of an award of Restricted Stock shall be determined by the Committee. (10) DEFERRALS OF AWARDS The Committee may permit Participants to defer the distribution of all or any part of any award made under the Plan in accordance with such terms and conditions as the Committee shall establish. (11) EFFECT OF PLAN ON EMPLOYMENT STATUS The fact that the Participant has been granted an option or award under the Plan shall not affect the right of the Company to terminate his or her employment at any time, subject to the provisions of any written employment agreement between the Company and such Participant. (12) AMENDMENT, MODIFICATION OR TERMINATION OF THE PLAN The Board of Directors of the Company may terminate, amend or modify the Plan in its discretion, at any time; provided, however, that no amendment, modification or termination of the Plan shall affect any outstanding options or awards theretofore granted under the Plan in any manner, without the consent of the Participant or his or her successor-in-interest. In addition, any amendment or modification that would materially increase the benefits accruing to Participants under the Plan, materially increase the number of Shares reserved for issuance under the Plan, or materially modify the requirements as to eligibility for participation in the Plan, must also be approved by the holders of a majority of the Company's issued and outstanding Shares of Common Stock. (13) WITHHOLDING Upon the transfer of Common Stock as a result of the exercise of a stock option or the payment of a Restricted Stock award, the Company shall have the right to retain or sell without notice, sufficient Shares to cover the amount of any tax required by any governmental authority to be withheld or otherwise deducted and paid with respect to such payment, remitting any balance to the Participant; provided, however, that the Participant shall have the option to provide the Company with the funds, including previously acquired Shares of the Company's Common Stock, to enable it to pay any such tax. (14) TERM OF THE PLAN The Plan shall become effective on May 10, 1991, the date of its adoption by the Company's shareholders. The Plan shall terminate on May 10, 2001, or on such earlier date as may be determined by the Company's Board of Directors. No option shall be granted or other award made under the Plan following the Plan's termination. The termination of the Plan shall not affect the rights of Participants under outstanding options or awards previously granted under the Plan, and all of such unexpired options and awards shall continue in full force and effect after termination of the Plan, except as they may lapse or be terminated under the terms and conditions of each individual grant or award. REFERENCE DATE: PLAN AS ADOPTED MAY 10, 1992; AS AMENDED JUNE 12, 1992. EX-4.2 3 EXHIBIT 4.2 THE FUTURE NOW, INC. 1991 DIRECTOR STOCK OPTION PLAN TABLE OF CONTENTS ----------------- Article Description Page ------- ----------- ---- 1. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3. ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4. COMMON STOCK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5. REQUIRED TERMS AND CONDITIONS OF OPTIONS. . . . . . . . . . . . . . . 2 6. EXPIRATION OF OPTION. . . . . . . . . . . . . . . . . . . . . . . . . 3 7. METHOD OF EXERCISE. . . . . . . . . . . . . . . . . . . . . . . . . . 4 8. ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 9. OPTION AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 5 10. LEGAL AND OTHER REQUIREMENTS. . . . . . . . . . . . . . . . . . . . . 5 11. NONTRANSFERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . 5 12. INDEMNIFICATION OF COMMITTEE. . . . . . . . . . . . . . . . . . . . . 6 13. TERMINATION AND AMENDMENT OF PLAN . . . . . . . . . . . . . . . . . . 6 14. EFFECTIVE DATE OF THE PLAN. . . . . . . . . . . . . . . . . . . . . . 7 THE FUTURE NOW, INC. 1991 Director Stock Option Plan 1. PURPOSE The purpose of THE FUTURE NOW, INC., 1991 Director Stock Option plan (the "Plan"), as hereinafter set forth, is to enable THE FUTURE NOW, INC., an Ohio corporation (the "Company"), or any successor corporation, to attract, retain and reward non-employee Directors; to foster a wide-spread sense of ownership and commitment by offering them an opportunity to have long-term compensation, a greater proprietary interest in and closer identity with the Company and with its financial success; provided, however, that the exercise of Options shall be subject to the restrictions of Section 6. Proceeds of cash or property received by the Company from the sale of Common Stock pursuant to Options granted under the Plan will be used for general corporate purposes. 2. ADMINISTRATION The Plan shall be administered by the Compensation Committee (the "Committee") of the Board of Directors of the Company (the "Board"). Subject to the express provisions of the Plan, the Committee may interpret the Plan, prescribe, amend and rescind rules and regulations relating to it, provide for the terms of the Option Agreements, and make such other determinations as it deems necessary or advisable for the administration of the Plan. The decisions of the Committee on matters within their jurisdiction under the Plan shall be conclusive and binding. No member of the Board or the Committee shall be liable for any action taken or determination made in good faith. 3. ELIGIBILITY Options are granted under this Plan only to non-employee Directors of the Company or its subsidiaries (referred to as "Participants"), who are current and active members of the Board of Directors of the Company or a subsidiary on or after the Effective Date of the Plan. Beginning in 1992, Participants are eligible for Additional Options if they are non-employee Directors of the Company following the adjournment of the Company's Annual Meeting of Shareholders for that year (the "Annual Meeting"), and will continue to participate each year thereafter so long as they are a Director immediately preceding such Annual Meeting and have been reelected or otherwise remain as a Director immediately thereafter. 4. COMMON STOCK Options may be granted under the Plan for a number of shares not to exceed, in the aggregate, 50,000 shares of Common Stock of the Company, except as such number of shares shall be adjusted in accordance with the provisions of Section 8 hereof. Such shares may be either authorized but unissued shares or treasury shares. In the event that any Option granted under the Plan expires unexercised, or is surrendered by a Participant for cancellation, or is terminated, or ceases to be exercisable for any other reason without having been fully exercised prior to the end of the period during which Options may be granted under the Plan, the shares theretofore subject to such Option, or to the unexercised portion thereof, shall again become available for new Options to be granted under the Plan to any eligible Participant (including the holder of such former Option) at an Option price determined in accordance with Sections 5(a) and (b) hereof, which price may then be greater or less than the Option price of such former Option. 5. REQUIRED TERMS AND CONDITIONS OF OPTIONS The Options granted under the Plan shall be in the following form: (a) Shares Under Options -------------------- Each Participant on the effective date of this Plan shall automatically be granted Options for 5,000 Shares. Each individual first elected to serve as a Director of the Company after the effective date of this Plan shall, upon such election, automatically be granted Options for 5,000 Shares. In addition, commencing immediately after the adjournment of the Company's Annual Meeting in calendar 1992 and continuing on an annual basis immediately following the adjournment of each Annual Meeting through and including 1996, each Participant whose term did not expire at that Annual Meeting and who has then served as a Director of the Company continuously since the previous Annual Meeting shall automatically be granted an additional Option for 1,000 Shares ("Additional Options"). The exercise price per share of each Option to purchase Common Stock shall be equal to the Fair Market Value of the stock on the day of grant. (b) Maximum Term ------------ No Option shall be exercisable after the expiration of ten (10) years from the date it is granted. (c) Time of Exercise ---------------- All Options granted under the Plan shall be immediately exercisable. (d) Fair Market Value ----------------- If the Company's Common Stock is listed on a national securities exchange at the date of grant, Fair Market Value per share shall mean the average of the highest and lowest selling price of a share on such exchange on such date or, if there were no sales on said date, then on the next prior business day on which there were sales. If the Company's Common Stock is traded other than on a national securities exchange at the date of the grant of the Option, Fair Market Value per share shall mean an amount not less than the average between the bid and asked price of a share on the Option date, as reported by NASDAQ or, if there is no bid and asked price on said date, then on the next prior business day on which there was a bid and asked price. If no such bid and asked price is available, then the Committee shall make a good faith determination of the Fair Market Value of a share, using any reasonable method of valuation. 6. EXPIRATION OF OPTION (a) General Rule ------------ Each Option shall expire on the earlier of the date set forth in the Option agreement (which shall not exceed the maximum term permitted by this Plan) or, if earlier on the applicable date specified in the following subsection of this Section 6. (b) Expiration Upon Termination of Directorship ------------------------------------------- Each Option shall expire on the date that the directorship of the optionee with the Company terminates for any reason other than disability, death, retirement or death following retirement; provided, however, that the Committee, in its sole discretion, may permit such Participant to exercise the Option during a period of up to ninety (90) days following his/her directorship termination. (c) Expiration Upon Disability or Death ----------------------------------- If the Participant ceases to be a Director of the Company by reason of disability (as determined by the Committee) or by reason of death, his/her Options, if any, shall expire on the first anniversary of such termination of directorship. (d) Expiration Upon Retirement -------------------------- If the Participant ceases to be a Director of the Company due to retirement with the consent of the Company, his/her Options, if any, shall expire ninety (90) days after the date of such termination of directorship. If an optionee who has so retired dies prior to exercising in full an Option which has not expired pursuant to the preceding sentence, then notwithstanding the preceding sentence, his/her Options shall expire on the first anniversary of the date of the optionee's death. (e) Expiration for Cause -------------------- If the Participant ceases to be a Director of the Company for cause, his/her Options, if any, shall expire on the date of termination. For purposes of the Plan, termination "for cause" shall mean termination because the optionee engaged in dishonest or fraudulent conduct in the performance of his/her duties for the Company or its subsidiaries. 7. METHOD OF EXERCISE Subject to any restrictions contained herein, Options may be exercised by the Participant giving written notice to the Secretary of the Company stating the number of shares of Common Stock with respect to which the Option is being exercised and tendering payment therefor. Payment for Common Stock, whether in cash, other shares of Common Stock or other property, shall be made in full at the time that an Option, or any part thereof, is exercised. 8. ADJUSTMENTS (a) The aggregate number of shares of Common Stock with respect to which Options may be granted hereunder, the number of shares of Common Stock subject to each outstanding Option and the Option price per share for each such Option may all be appropriately adjusted, as the Committee may determine, for any increase or decrease in the number of shares of issued Common Stock of the Company resulting from a subdivision or consolidation of shares whether through merger, consolidation, recapitalization, reorganization, payment of a share dividend or other increase or decrease in the number of such shares outstanding effected without receipt of consideration by the Company. (b) On the basis of information known to the Company, the Board or the Committee shall make all determinations under this Section 8, including whether a transaction involves a sale of substantially all the Company's assets, and all such determinations shall be conclusive and binding. 9. OPTION AGREEMENTS Each Participant shall agree to such terms and conditions in connection with the exercise of an Option, including restrictions on the disposition of the Common Stock acquired upon the exercise thereof, as the Committee may deem appropriate. The certificates evidencing the shares of Common Stock acquired upon exercise of an Option may bear a legend referring to the terms and conditions contained in the respective Option agreement and the Plan, and the Company may place a stop transfer order with its transfer agent against the transfer of such shares. If requested to do so by the Committee at the time of exercise of an Option, each Participant shall execute a certificate indicating that the Participant is purchasing the Common Stock under such Option for investment and not with any present intention to sell the same. Upon the exercise of an Option, the Company shall have the right to deduct from any cash payments otherwise due to the Participant any amounts required to be withheld under any Federal, state or local income tax laws. 10. LEGAL AND OTHER REQUIREMENTS The obligation of the Company to grant any Option or to sell and deliver Common Stock under any Option granted under the Plan shall be subject to all applicable laws, regulations, rules and approvals, including, but not by way of limitation, securities laws, rules and regulations and the effectiveness of a registration statement under the Securities Act of 1933, if deemed necessary or appropriate by the Board, of the Common Stock reserved for issuance upon exercise of Options. A Participant shall have no rights as a stockholder with respect to any shares covered by an Option granted to or exercised by the Participant until the date of delivery of a stock certificate for such shares. No adjustment other than pursuant to Section 8 hereof shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is delivered. 11. NONTRANSFERABILITY During the lifetime of a Participant, any Option granted shall be exercisable only by the Participant or the Participant's guardian or legal representative. No Option shall be assignable or transferable by the Participant, except by will or by the laws of descent or distribution. The granting of an Option shall impose no obligation upon the Participant to exercise such Option or right. 12. INDEMNIFICATION OF COMMITTEE 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 Company against the reasonable expenses, including attorneys' fees actually and necessarily incurred 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 hereunder, and against all amounts paid by them in settlement thereof or paid by them in satisfaction of a judgment in any such action, suit or proceeding, so long as such Committee member acted in good faith, received no improper benefit, believed his/her conduct was in the best interests of the Company and, in the case of a criminal proceeding, had no reasonable cause to believe his/her conduct was unlawful. Indemnification may take the form of paying attorneys' fees and expenses as they accrue and advancing attorneys' fees and expenses to the affected Committee member. 13. TERMINATION AND AMENDMENT OF PLAN No Option shall be granted under the Plan more than five (5) years after the effective date of the Plan. The Board, acting by a majority of its members without further action on the part of the stockholders, may from time to time alter, amend or suspend the Plan or any Option granted hereunder or may at any time terminate the Plan; provided, however, the Board may not: (1) (Except as provided in Section 8 hereof) change the total number of shares of Common Stock available for Options under the Plan; (2) Extend the duration of the Plan; (3) Increase the maximum term of any Option; (4) Decrease the minimum Option price or otherwise materially increase the benefits accruing to Participants under the Plan; (5) Materially modify the eligibility requirements of the Plan; or (6) Otherwise amend any provision of the Plan relating to the amount and price of securities to be awarded to Participants, or relating to the timing of awards to Participants, more than once every six (6) months, other than to comport with changes in the Internal Revenue Code, the Employee Retirement Income Security Act, or the rules thereunder; and provided further that no such action shall materially and adversely affect any outstanding Options without the consent of the respective optionees. 14. EFFECTIVE DATE OF THE PLAN The Plan shall not become effective and no Options shall be granted unless and until (i) the Plan is approved by the Board; (ii) the Plan is approved by the holders of a majority of the outstanding Common Shares of the Company; and (iii) a public offering of the Company's Common Stock becomes effective with the Securities and Exchange Commission pursuant to the Securities Act of 1933. The Effective Date of the Plan shall be the date on which the last of these three conditions is fulfilled. EX-4.3 4 EXHIBIT 4.3 The Future Now, Inc. 1994 Stock Option and Stock Incentive Plan The Future Now, Inc. (the "Company") does hereby establish this 1994 Stock Option and Stock Incentive Plan (the "Plan") for employees of the Company and its subsidiaries. 1. Purposes. -------- This Plan is designed to enable the Company to provide (i) incentive to, and encourage stock ownership by, key employees of the Company, and (ii) a means to compete with other organizations in attracting, motivating and retaining highly qualified management employees. 2. Administration. -------------- This Plan will be administered by the Compensation Committee of the Board of Directors of the Company (the "Committee"), each of whom shall be ineligible to receive Stock Options, Restricted Stock or Stock Appreciation Rights, as hereinafter defined, under the Plan and shall have been so ineligible for at least one year. The membership of the Committee shall at all times be constituted so as to permit the Plan to comply with Rule 16b-3 promulgated under the Securities Exchange Act of 1934 or any successor rule ("Rule 16b-3"). The Committee shall have all of the powers and duties set forth herein, as well as such additional powers and duties as the Board of Directors may delegate to it; provided, however, that the Board of Directors expressly retains the right (i) to appoint the members of the Committee, and (ii) to terminate or amend this Plan. The Committee shall, in its sole discretion, (i) determine the eligible persons to whom a grant of a Stock Option, Restricted Stock, or Stock Appreciation Right (together "Stock Awards") under the Plan will be made and, subject to the provisions of this Plan, the terms thereof; (ii) interpret the Plan and prescribe, amend and rescind rules and regulations relating to it; (iii) accelerate or otherwise modify outstanding Stock Awards providing such acceleration or modification does not conflict with the express provisions of this Plan nor adversely affects the interest of any grantee if a Change of Control has occurred; and (iv) make all other determinations which the Committee shall deem necessary or advisable for the administration of the Plan. 3. Eligibility. ----------- All full time management employees, including elected officers, of the Company shall be eligible to receive Stock Awards under the Plan. 4. Shares Reserved for Plan. ------------------------ There is hereby reserved for issuance under this Plan an aggregate of 750,000 shares of common stock of the Company which may be authorized but unissued shares or treasury shares ("Stock"). Any shares subject to Stock Options or Stock Appreciation Rights which terminate without being exercised, or any shares of Restricted Stock which revert to the Company, shall again be available for issuance in connection with the grant of subsequent Stock Awards. In the event of a reclassification, recapitalization, merger, consolidation, reorganization, issuance of warrants, rights or debentures, stock dividend, stock split or reverse stock split, cash dividend, property dividend, combination or exchange of shares, repurchase of shares or any other change in corporate structure which in the judgment of the Committee materially affects the value of shares, the Committee may determine the appropriate adjustments, if any, to the maximum number and class of shares with respect to which a Stock Award may be granted under this Plan and the number and class of shares and the exercise price per share set forth in any Stock Award theretofore granted. 5. Acceleration. ------------ Stock Awards shall, to the extent permitted by law, become immediately exercisable in full, and any and all restrictions thereupon shall lapse if, at any time after the grant and before the exercise of the Stock Award or before the lapse of all restrictions on Restricted Stock, a Change of Control, as hereinafter defined, has occurred irrespective of the applicability of any restriction or limitation on the number of shares then exercisable. In any such event, all other terms of the Stock Award shall remain unchanged. A Change of Control will be deemed to have occurred if any entity or person or group of entities or persons succeeds to the Company's business by means of a merger, consolidation, exchange offer, tender offer, share exchange, acquisition of all or substantially all of the Company's assets or other corporate transaction; or acquires beneficial ownership, as such is defined in the Securities Exchange Act of 1934, as amended, of more than one third of the Company's then issued and outstanding stock or the Company dissolves or liquidates its business. 6. Awards under the Plan. --------------------- The following Stock Awards may be granted under the Plan: (a) Stock Options: These are options to purchase shares of Stock of the Company. The following terms and conditions shall apply to any Stock Option ("Options") granted by the Committee: (i) The option price per share for shares subject to Options shall be the mean between the highest ad lowest prices for such shares as reported on the NASDAQ System on the date of grant or, if no sales are made on such date, the nearest prior date on which a sale is reported. (ii) Options shall be exercisable in cash or, if so provided therein, by the delivery of certificates for shares of stock of the Company fully endorsed, valued at the mean of the highest and lowest prices reported for the day of exercise on the NASDAQ System or, if no sales are made on such date, on the most recent prior date for which sales are reported. (iii) Options shall be exercisable in such installments and during such periods as may be fixed by the Committee, but (notwithstanding any other provision herein) no Option shall be exercisable after the expiration of ten years from the date such Option is granted. (iv) Options are not transferable by the optionee otherwise than by will or the law of descent and distribution; are exercisable; during or after the optionee's lifetime, only by the optionee or the optionee's legal representative; and are not subject, in whole or in part, to attachment, levy or execution. (v) Options may be exercised, if at all, no later than one year following termination of employment. No Option, however, may be exercised more than 10 years after the date of grant. (vi) Each optionee shall be entitled to the privileges of stock ownership only as to such shares of stock as are actually Purchased by the optionee pursuant to an Option. (b) Incentive Stock Options: All Incentive Stock Options granted under the Plan shall comply with the provisions of the Internal Revenue Code, as amended from time to time, governing incentive stock options and with all other applicable rules and regulations. (c) Restricted Stock: Restricted Stock awards under this Plan shall consist of shares of Common Stock of the Company (the "Restricted Shares" or "Restricted Stock") that are granted to an employee and that are restricted against transfer, subject to forfeiture, and subject to such other terms and conditions intended to further the purpose of the Plan as may be determined by the Committee. Restricted Stock awards shall be evidenced by agreements containing provisions setting forth the terms and conditions governing such awards. Each such Agreement shall contain the following: (i) Prohibition against the sale, assignment, transfer, exchange, pledge, hypothecation, or other encumbrance of (a) the Restricted Shares awarded, (b) the right to vote the Restricted Shares, or (c) the right to receive dividends thereon during the restriction period applicable to the Restricted Shares; provided, however, that the grantee shall have all the other rights of a shareholder including, but not limited to, the right to receive dividends and the right to vote the Restricted Shares; (ii) At least one term, condition or restriction constituting a "substantial risk of forfeiture" as defined in Section 83(c) of the Internal Revenue Code; (iii) Such other terms, conditions and restrictions as the committee in its discretion may choose to apply to the Restricted Shares, including, without limitation, provisions creating additional substantial risks of forfeiture; and (iv) A requirement that each certificate representing Restricted Shares shall be deposited with the Company, or its designee, and shall bear the following legend: "This certificate and the shares of stock represented hereby are subject to the terms and conditions (including forfeiture and restrictions against transfer) contained in The Future Now, Inc. 1994 Stock Option and Stock Incentive and an Agreement entered into between the registered owner and the Company. Release from such terms and conditions shall be made only in accordance with the provisions of the Plan and the Agreement, a copy of each of which is on file in the office of the Secretary of the Company." The Committee may include in an Agreement a requirement that in the event of a grantee's termination of employment for any reason prior to the lapse of restrictions, all Restricted Shares shall be forfeited by the grantee to the Company, and neither the grantee nor any successor, heir, assign or personal representative of the grantee shall thereafter have any further rights or interest in the Restricted Shares. (d) Stock Appreciation Rights: A stock appreciation right is the right of the holder of an unexercised Option to receive a number of shares or, under certain circumstances, cash, based on the increase the value of the shares subject to an Option. An Option granted under this Plan may include a Stock Appreciation Right, either at the time of grant or by amendment attaching the same to an existing Option. A Stock Appreciation Right shall be subject to such terms and conditions not inconsistent with this Plan as the Committee shall impose, including the following: (i) A Stock Appreciation Right shall be exercisable to the extent, and only to the extent, that the related Option is exercisable and by the person who might have exercised it. (ii) Notwithstanding the foregoing, no Stock Appreciation Right shall be exercisable within six months of its grant or attachment to an existing Option, or prior to such later date as may be specified in the grant thereof (including its attachment to an existing Option), except that such limitations shall not apply in the event that death or disability of the grantee occurs prior to the expiration of such period. (iii) A Stock Appreciation Right, subject to any additional limitations which are included in the grant, shall entitle the grantee to surrender to the Company unexercised the Option in which it is included or to which it is attached, or any portion thereof, and to receive from the Company in exchange therefor that number of shares having an aggregate value equal (to the highest whole number of shares) to the excess of the value of one share over the purchase price per share specified in such Option times the number of shares called for by the Option, or portion thereof, which is so surrendered. If the grantee so elects pursuant to the terms of this paragraph, and the Company consents thereto, the Company shall settle its obligation arising out of the exercise of a Stock Appreciation Right by the payment of cash equal to the aggregate value of the shares it would otherwise be obligated to deliver upon such exercise, subject to the limitations set forth below in this paragraph and subject to any further limitations specified in the grant of the Stock Appreciation Right. The value of a share shall be equal for these purposes to the mean between the highest and lowest prices for such shares as reported on the NASDAQ System on the trading day next preceding the date on which the Stock Appreciation Right is exercised or, if no sales are made on such date, on the most recent prior date on which sales are reported. All determinations as to whether to consent to a grantees election that an obligation shall be settled in cash shall be made by the Committee and the Committee shall not consent to any such election for settlement in cash unless the conditions required by Rule 16b-3 are met. The Committee may consent to, or disapprove, such election at any time thereafter, or within such period for taking such action as is specified in such election; and failure to give such consent shall be disapproval. Such consent may be given in whole or as to a portion of the Option, surrendered by the grantee. If such election to receive cash is disapproved in whole or in part, the Stock Appreciation Right shall be deemed to have been exercised for stock, or not to have been exercised, as specified in such notice of exercise and election, to the extent such election to receive cash is not approved. 7. Compliance with Law and Regulations. ----------------------------------- The obligation of the Company to sell and deliver any shares of Stock or any cash under this Plan shall be subject to all applicable laws, rules and regulations, and the obtaining of all approvals by governmental agencies deemed necessary or appropriate by the Committee. Except as otherwise provided herein, the Committee may make such changes in the Plan and include such terms in any Stock Award agreement as may be necessary or appropriate, in the opinion of counsel to the Company, to comply with all applicable laws, rules and regulations or to obtain, for the Company or any employee granted a Stock Award, any tax benefits under the applicable provisions of the Code and the regulations thereunder. 8. Tax Withholding. --------------- The Company shall have the right to deduct or otherwise effect a withholding of any amount required by federal or state law to be withheld or otherwise deducted and paid with respect to the grant or exercise of any Stock Award or in order for the Company to obtain a tax deduction otherwise available as a consequence of such grant, exercise or sale, as the case may be. 9. Nonexclusivity of the Plan. -------------------------- Neither the adoption of this Plan by the Board of Directors nor the submission of this Plan to the shareholders of the Company for approval shall he construed as having any impact on existing qualified or nonqualified plans of the Company, or as creating any limitations on the power of the Board of Directors to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of Stock Awards otherwise than under this Plan. 10. Amendment of Plan. ----------------- The Board of Directors of the Company may amend this Plan from time to time, including any amendment which would cause any Stock Award issued or to be issued hereunder to comply with all then applicable laws, rules and regulations, including without limitation, Rule 16b-3, or to receive the most favorable treatment permitted by the Code or other laws, provided that no amendment adverse to the interests of any grantee of a Stock Award or to the terms of any issued Stock Award shall be effective after a Change of Control, as defined in Section 5 hereof, has occurred. 11. Term of Plan. ------------ The Plan shall become effective upon approval by the vote of the holders of a majority of the shares of the Company present, or represented and entitled to vote at a meeting duly held. The Plan shall terminate on and no Stock Award may be granted under the Plan after May 25, 2004. This Plan shall remain in effect, however, so long as any Stock Award remains outstanding. No holder of any Stock Award granted during the term of this Plan shall be adversely affected by the termination of this Plan. 12. Continuation of Employment. -------------------------- Nothing contained in this Plan, or in any written Stock Award agreement, shall obligate the Company to continue for any period to employ an employee to whom a Stock Award has been granted, or interfere with the right of the Company to vary the terms of such person's employment or compensation. EX-5 5 Exhibit 5 Exhibit 23.2 PEPPER, HAMILTON & SCHEETZ 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103 (215)981-4000 August 17, 1995 Securities and Exchange Commission Division of Corporation Finance 450 Fifth Street, N.W. Washington, D.C. 20549 Re: Registration Statement on Form S-8 Dear Sir or Madam: Reference is made to a Registration Statement on Form S-8 (the "Registration Statement") of Intelligent Electronics, Inc. (the "Company") to be filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"). Pursuant to the Agreement and Plan of Merger, dated as of April 28, 1995, as amended by Amendment No. 1, dated as of July 6, 1995 (the "Merger Agreement") among the Company, a subsidiary of the Company and The Future Now, Inc. ("TFN"), each option to purchase shares of common stock, no par value, of TFN granted under TFN's (i) 1991 Stock Option and Stock Incentive Plan, (ii) 1991 Director Stock Option Plan and (iii) 1994 Stock Option and Stock Incentive Plan (each, a "Plan") which was outstanding immediately prior to the effective time of the Merger (as defined in the Merger Agreement) has been converted into an option (each, an "IE Option") to purchase shares of common stock, par value $.01, of the Company ("IE Common Stock"). As counsel to the Company, we have examined the Registration Statement, including the exhibits thereto, the originals or copies, certified or otherwise identified to our satisfaction, of the Articles of Incorporation and the By-Laws of the Company, as amended to date, and such other documents and corporate records relating to the Company as we have deemed appropriate for the purpose of rendering the opinion expressed herein. The opinion expressed herein is based exclusively on laws of the Commonwealth of Pennsylvania and federal securities laws as in effect on the date hereof. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents. As to any facts material to the opinions expressed herein which were not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company. On the basis of the foregoing, we are of the opinion that the IE Common Stock, when issued upon exercise of the IE Options and paid for in accordance with the applicable Plan, will be legally issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Such consent does not constitute a consent under Section 7 of the Act, since we have not certified any part of the Registration Statement and do not otherwise come within the categories of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. Sincerely, PEPPER, HAMILTON & SCHEETZ By: /s/ Pepper, Hamilton & Scheetz/ ------------------------------- A Partner EX-23.1 6 Exhibit 23.1 Consent of Independent Accountants We hereby consent to the incorporate by reference in this Registration Statement on Form S-8 of our report dated April 12, 1995, which appears on page 12 of Intelligent Electronics, Inc.'s Annual Report on Form 10-K for the year ended January 28, 1995. PRICE WATERHOUSE LLP Philadelphia, PA August 17, 1995