-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PxWFikbMTRHIKa98oNRw/LXLinrRvUO5r98njwC3XlY2prDJno7ZVtalZqdiQOB9 0ZoNpnYbQ67JAkaYeTv1+w== 0000950159-02-000132.txt : 20020415 0000950159-02-000132.hdr.sgml : 20020415 ACCESSION NUMBER: 0000950159-02-000132 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20020301 EFFECTIVENESS DATE: 20020301 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SCAN OPTICS INC CENTRAL INDEX KEY: 0000087086 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER PERIPHERAL EQUIPMENT, NEC [3577] IRS NUMBER: 060851857 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-83598 FILM NUMBER: 02564183 BUSINESS ADDRESS: STREET 1: 169 PROGRESS DR CITY: MANCHESTER STATE: CT ZIP: 06040 BUSINESS PHONE: 8606457878 MAIL ADDRESS: STREET 1: 169 PROGRESS DR CITY: MANCHESTER STATE: CT ZIP: 06040 S-8 1 s-802.txt As filed with the Securities and Exchange Commission on February 28, 2002 Registration No. 333- ------------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------------------------- Scan-Optics, Inc. (Exact Name of Registrant as Specified in its Charter) Delaware 06-0851857 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) 169 Progress Drive Manchester, Connecticut 06040 (Address of Principal Executive Offices) (Zip Code) Senior Executive Stock Option Plan (Full Title of Plan) ----------------------------------------- Michael J. Villano Scan-Optics, Inc. 169 Progress Drive Manchester, Connecticut 06040 (Name and Address of Agent For Service) (860) 645-7878 (Telephone Number, Including Area Code, of Agent for Service) ----------------------------------------- Copy to Bonnie J. Roe, Esq. Day, Berry & Howard LLP One Canterbury Green Stamford, Connecticut 06901 (203) 977-7300 CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------- Title Of Securities Amount To Be Registered Proposed Maximum Proposed Maximum Amount Of To Be Registered Offering Price Per Aggregate Registration Fee (2) Share Offering Price - ---------------------------------------------------------------------------------------------------------------------- Common Stock 1,115,000 shares (1) $.24 $267,600 $24.62 par value, $.02 per share - ----------------------------------------------------------------------------------------------------------------------
(1) Shares granted as stock options under the Senior Executive Stock Option Plan of Scan-Optics, Inc (the "Plan"). (2) Calculated in accordance with Rule 457(h) under the Securities Act of 1933 based on the exercise price of $.24 per share of the options granted under the Plan. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Senior Executive Stock Option Plan This Registration Statement on Form S-8 is filed for the purpose of registering shares of common stock, par value $.02 per share (the "Common Stock"), of Scan-Optics, Inc. (the "Company") to be issued upon exercise of options granted on December 31, 2001 pursuant to the Company's Senior Executive Stock Option Plan (the "Plan"), to senior executive officers of the Company. An aggregate of up to 1,115,000 shares of Common Stock may be issued upon the exercise of the options granted pursuant to the Plan, subject to adjustment in case of stock dividends or changes in the Common Stock. The aggregate number of shares that may be issued under the Plan is subject to adjustment in the event of a stock dividend, stock split or similar change in the outstanding shares of Common Stock. Item 3 Incorporation of Documents by Reference The following documents previously filed with the Securities and Exchange Commission (the "Commission") by the Company are incorporated by reference in this Registration Statement: (a) The Company's Annual Report on Form 10-K, filed with the Commission on March 30, 2001 (File No. 000-05265). (b) The Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and September 30, 2001. (c) The Company's Form 8-K, filed with the Commission on January 9, 2002. (d) The description of the Common Stock contained in the Company's Registration Statement on Form 8-A, registering the shares of Common Stock under the Securities Exchange Act of 1934 (the "Exchange Act"), and all amendments thereto. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all shares of Common Stock offered have been sold, or which deregisters all shares of Common Stock then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 5 Interests of Named Experts and Counsel Richard D. Harris, who is a partner of Day, Berry & Howard LLP, which gave the opinion in Exhibit 5 of this Registration Statement, serves as Secretary of the Company. Item 6 Indemnification of Directors and Officers The Company is incorporated in Delaware and consequently is subject to the Delaware General Corporation Law (the "DGCL"). Section 145 of the DGCL provides a detailed statutory framework covering indemnification of directors and officers who have been or are threatened to be or have been made defendants in legal proceedings by reason of their service as directors or officers of the Company. The Company's Certificate of Incorporation, as amended, provides, in effect, that the Company shall indemnify its directors and officers to the -2- maximum extent permitted by Delaware law. Article Tenth of the Certificate of Incorporation of the Company provide as follows: "ARTICLE TENTH (1) Elimination of Certain Liability of Directors. No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. (2) Indemnification and Insurance. ----------------------------- (a) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in paragraph (b) hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this Section 2(a) shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that the payment of such expenses incurred by a director, officer, employee or agent in his or her capacity as a director, officer, employee or agent (and not in any other capacity in which service was or is rendered by such person while a director, officer, employee or agent including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director, officer, employee or agent to repay all amounts so advanced if it shall ultimately be determined that such director, officer, employee or agent is not entitled to be indemnified under this Section 2(a) or otherwise. (b) Right of Claimant to Bring Suit. If a claim under subsection (a) of this Section is not paid in full by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standards of conduct. -3- (c) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, By-law, agreement, vote of stockholders or disinterested directors or otherwise. (d) Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise (including an employee benefit plan) against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. (3) Effect of Amendment or Repeal. No amendment to or repeal of this Article TENTH shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to or arising out of any acts or omissions occuring prior to such amendment or repeal, nor shall any such amendment or repeal apply to or have any effect on the right to indemnification and payment of expenses of directors, officers, employees and agents of the Corporation, including the right to payment of expenses incurred in defending a proceeding in advance of its final disposition, conferred in this Article TENTH for or with respect to or arising out of any acts or omissions or alleged acts or omissions occuring prior to such amendment or repeal." Reference is also made to Section 145 of the DGCL, which provides as follows: (a) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person's conduct was unlawful. (b) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnify for such expenses which the Court of Chancery or such other court shall deem proper. (c) To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. (d) Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present -4- or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders. (e) Expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding, may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys' fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate. (f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office. (g) A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section. (h) For purposes of this section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. (i) For purposes of this section, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this section. (j) The indemnification and advancement expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. (k) The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or under any by-law, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation's obligation to advance expenses (including attorneys' fees). -5- Item 8 Exhibits The following exhibits are incorporated herein by reference as indicated or filed herewith. Exhibit No. Description - ----------- ------------ 3.1 (a) Certificate of Incorporation, including amendments thereto (filed as Exhibit 3.1 to the Company's Registration Statement on Form S-1, File No. 2-70277). 3.1 (b) Amendments to Certificate of Incorporation adopted May 17, 1984, included in Exhibits A, B, C and D in the Company's Proxy Statement dated April 17, 1984 for the Annual Meeting of Stockholders held May 17, 1984. 3.1 (c) Amendment to Article Tenth of the Certificate of Incorporation included as Exhibit A in the Company's Proxy Statement dated April 16, 1987 for the Annual Meeting of Stockholders held May 19, 1987. 3.2 (a) By-laws of the Company (filed as Exhibit 3.2 to the Company's Registration Statement on Form S-1, File No. 2-70277). 3.2 (b) Amendments to By-laws of the Company adopted May 17, 1984, included in Exhibits A and B in the Company's Proxy Statement dated April 17, 1984 for the Annual Meeting of Stockholders held May 17, 1984. 3.2 (c) Amendment to By-laws of the Company adopted at the meeting of the Board of Directors on January 28, 1991, included as Exhibit 3.2(c) in the Company's Annual Report on Form 10K filed for the year ended December 31, 1991. 3.3 Certificate of Designations, dated January 8, 2002, detailing the terms, limitations and relative rights and preferences of the Series A Preferred Stock, par value .02 per share. 5 Opinion of Day, Berry & Howard LLP as to the legality of the securities registered hereby, including consent of such counsel. 10.16 Scan-Optics, Inc. Senior Executive Stock Option Plan. 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Day, Berry & Howard LLP (See Exhibit 5). Item 9 Undertakings A. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (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; and (iii) To include any material information with respect to the plan of distribution not -6- 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) of this section 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 Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each 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. B. The undersigned registrant hereby undertakes that, for purpose 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 Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. 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 Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. -7- 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 Manchester, State of Connecticut, on February 25, 2002. Scan-Optics, Inc. By: /s/ James C.Mavel ----------------- Name: James C. Mavel Title: Chairman, Chief Executive Officer and President 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 date indicated. Signature Title Date - --------- ----- ---- Chairman, Chief Executive February 25, 2002 /s/ James C. Mavel Officer, President and - -------------------------- Director James C. Mavel Chief Financial Officer, Vice February 25, 2002 /s/ Michael J. Villano President and Treasurer - -------------------------- Michael J. Villano Director February 25, 2002 /s/ Logan Clarke, Jr. - -------------------------- Logan Clarke, Jr. Director February 25, 2002 /s/ Richard J. Coburn - -------------------------- Richard J. Coburn Director February 25, 2002 /s/ E. Bulkely Griswold - -------------------------- E. Bulkely Griswold Director February 25, 2002 /s/ Lyman C. Hamilton, Jr. - -------------------------- Lyman C. Hamilton, Jr. Director - -------------------------- John J. Holton Director February 25, 2002 /s/ Robert H. Steele - -------------------------- Robert H. Steele -8- INDEX OF EXHIBITS Exhibit Description of Exhibits Number ----------------------- - ------ 3.1 (a) Certificate of Incorporation, including amendments thereto (filed as Exhibit 3.1 to the Company's Registration Statement on Form S-1, File No. 2-70277). 3.1 (b) Amendments to Certificate of Incorporation adopted May 17, 1984, included in Exhibits A, B, C and D in the Company's Proxy Statement dated April 17, 1984 for the Annual Meeting of Stockholders held May 17, 1984. 3.1 (c) Amendment to Article Tenth of the Certificate of Incorporation included as Exhibit A in the Company's Proxy Statement dated April 16, 1987 for the Annual Meeting of Stockholders held May 19, 1987. 3.2 (a) By-laws of the Company (filed as Exhibit 3.2 to the Company's Registration Statement on Form S-1, File No. 2-70277). 3.2 (b) Amendments to By-laws of the Company adopted May 17, 1984, included in Exhibits A and B in the Company's Proxy Statement dated April 17, 1984 for the Annual Meeting of Stockholders held May 17, 1984. 3.2 (c) Amendment to By-laws of the Company adopted at the meeting of the Board of Directors on January 28, 1991, included as Exhibit 3.2(c) in the Company's Annual Report on Form 10K filed for the year ended December 31, 1991. 3.3 Certificate of Designations, dated January 8, 2002, detailing the terms, limitations and relative rights and preferences of the Series A Preferred Stock, par value .02 per share. 5 Opinion of Day, Berry & Howard LLP as to the legality of the securities registered hereby, including consent of such counsel. 10.16 Scan-Optics, Inc. Senior Executive Stock Option Plan. 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Day, Berry & Howard LLP (See Exhibit 5). EX-3.(II) 3 ex3-3.txt EXHIBIT 3.3 EXHIBIT 3.3 SCAN-OPTICS, INC. CERTIFICATE OF DESIGNATIONS, PREFERENCES, RIGHTS AND RESTRICTIONS FOR SERIES A REDEEMABLE PREFERRED STOCK Pursuant to Section 151 of the General Corporation Law of the State of Delaware, the undersigned officers of Scan-Optics, a Delaware corporation (the "Corporation") do hereby state and certify that pursuant to the authority expressly vested in the Board of Directors of the Corporation by the Certificate of Incorporation, the Board of Directors, by a vote taken at a meeting duly called and duly held on December 31, 2001, duly adopted the following resolutions: RESOLVED, that pursuant to Article Fourth of the Certificate of Incorporation, the Board of Directors of the Corporation may provide for the issuance of up to 5,000,000 shares of the Corporation's preferred stock, $.02 par value per share (the "Preferred Stock"); RESOLVED, that the Board of Directors of the Corporation hereby designates 3,800,000 shares of such Preferred Stock as "Series A Redeemable Preferred Stock" having a stated face amount of $1.00 per share (such Preferred Stock is referred to herein as the "Series A Preferred Stock"), and that the amount to be represented in stated capital at the issue of all such preferred stock shall be the par value; and further RESOLVED, that the rights, preferences, privileges, and restrictions granted to and imposed on the Series A Preferred Stock are as follows: Section 1. Number of Shares. The maximum number of authorized shares of Series A Preferred Stock shall be 3,800,000. All shares of Series A Preferred Stock shall be identical with each other in all respects. Section 2. Dividends. The holders of the Series A Preferred Stock shall not be entitled to receive any dividends. Section 3. Liquidation Preference. (a) Priority of Distributions. In the event (x) of any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary, or (y) a Liquidation Event (as defined below) shall occur, the assets of the Corporation that may be legally distributed to the Corporation's stockholders shall be distributed to the Corporation's stockholders in the following order of priority: (i) first, the holders of the shares of Series A Preferred Stock shall be entitled to receive, prior to and in preference to any distribution of any of the assets of the Corporation to the holders of any other Preferred Stock or Common Stock of the Corporation, an amount per share of Series A Preferred Stock equal to $1.00 (as such number may be adjusted for stock splits, stock dividends, combinations, recapitalizations, reorganizations and other similar transactions), plus interest on such amount from December 31, 2001 through the date of payment of such amount at an interest rate per annum equal to the prime rate of interest in effect from time to time during such period as reported in the Wall Street Journal, plus 2% compounded annually (such aggregate amount being referred to herein as the "Liquidation Preference"); and (ii) second, after payment in full of the Liquidation Preference to the holders of the Series A Preferred Stock, the remaining assets of the Corporation that may legally be distributed to the Corporation's stockholders shall be distributed ratably among the holders of the shares of Common Stock in proportion to the aggregate number of shares owned by each such holder. If, upon any such dissolution or distribution, the assets of the Corporation distributable among the holders of the shares of Series A Preferred Stock entitled to a preference shall be insufficient to pay in full the Liquidation -10- Preference, then such assets, or the proceeds thereof, shall be distributed among the holders of the shares of Series A Preferred Stock ratably. (b) Liquidation Events. (i) For purposes hereof, a consolidation or merger of the Corporation, a sale, lease or conveyance by the Corporation of at least 80% of its assets, or any other transaction which results in the sale, transfer, assignment, conveyance or other disposition of 50% or more of the voting power of the Corporation to persons or entities other than the holders of the Series A Preferred Stock or the Warrant shall be deemed to be a "Liquidating Event", unless the holders of a majority of the then-outstanding shares of Series A Preferred Stock shall otherwise agree. (ii) This Corporation shall give each holder of Series A Preferred Stock written notice of any transaction referred to in clause (i) above no later than 10 business days prior to (A) the stockholders' meeting called to approve such transaction, or (B) the closing of such transaction, whichever is earlier, and shall also notify such holders in writing of the final approval of such transaction. Such notice shall describe the material terms and conditions of the impending transaction and the holders' rights under this Section, and the Corporation shall thereafter give such holders prompt notice of any material changes. The transaction shall in no event take place sooner than 10 business days after the Corporation has given the first notice provided for herein or sooner than 5 business days after the Corporation has given notice of any material changes provided for herein; provided, however, that such periods may be shortened or waived upon the written consent of the holders of a majority of the then-outstanding shares of Series A Preferred Stock. Section 4. Voting Rights; Protective Provisions. (a) General Voting Rights. Except as otherwise required by law, from and after the date on which the Warrant is exercised, the shares of Series A Preferred Stock shall be entitled to vote with the shares of the Common Stock together as a single class at any annual or special meeting of stockholders of the Corporation, with each holder of Series A Preferred Stock being entitled to 6.1459 (as such number may be adjusted for stock splits, stock dividends, combinations, recapitalizations, reorganizations and other similar transactions so that the holders of the Series A Preferred Stock have an aggregate of 46.67% of the voting power of the Corporation (on a Fully-Diluted Basis, taking into account the votes of the Series A Preferred Stock) as of December 31, 2001) votes for each share of Series A Preferred Stock held by such holder on the record date fixed for such meeting, or on the effective date of such written consent. (b) Protective Provisions. So long as any shares of Series A Preferred Stock are outstanding, without first obtaining the approval (by vote or written consent, as provided by law) of the holders of two-thirds of the then-outstanding shares of Series A Preferred Stock, voting together as a single class, the Corporation shall not: (i) increase or decrease the number of authorized shares of Series A Preferred Stock; (ii) amend, alter or repeal the Corporation's Certificate of Incorporation, this Certificate of Designations or the Corporation's by-laws to alter or change the rights, preferences or powers of the Series A Preferred Stock, or any Senior Stock (as defined below) or Parity Stock (as defined below) so as to adversely affect the Series A Preferred Stock; (iii)authorize, create or issue any class or series, or any shares of any class or series, of capital stock of the Corporation (A) having any preference or priority as to dividends or conversion or upon redemption, liquidation, dissolution or winding up over the Series A Preferred Stock (any such capital stock being "Senior Stock") or (B) ranking on a parity (either as to dividends or conversion or upon redemption, liquidation, dissolution or winding up) with the Series A Preferred Stock (any such capital stock being "Parity Stock"); or (iv) reclassify, convert or exchange any of the Corporation's shares of capital stock into Senior Stock or Parity Stock, or authorize, create or issue any security exchangeable for, convertible into, or evidencing the right to purchase any Senior Stock or Parity Stock. -11- Section 5. Redemption. (a) Mandatory Redemption. On the earlier to occur of (i) December 31, 2004, and (ii) the date on which both (A) an Event of Default (as defined in the Credit Agreement (as defined below)) listed in Section 11(a) (so long as such an Event of Default under Section 11(a) shall continue for a period of 5 business days), 11(b) (so long as an Event of Default under Section 11(b) shall continue for a period of 120 consecutive days), 11(e) (so long as such an Event of Default under Section 11(e) shall continue for a period of 5 business days), 11(g), 11(h) or 11(i) of the Credit Agreement shall occur and be continuing, and (B) the holders of a majority of the then outstanding shares of Series A Preferred Stock have notified the Corporation that they wish the Corporation to redeem all of the issued and outstanding shares of Series A Preferred Stock (such earlier date being the "Mandatory Redemption Date"), the Corporation shall redeem all of the issued and outstanding shares of Series A Preferred Stock by paying the holders of record thereof an amount in cash per share equal to $1.00 (as such number may be adjusted for stock splits, stock dividends, combinations, recapitalizations, reorganizations and other similar transactions), plus interest on such amount from December 31, 2001 through the date of payment of such amount at an interest rate per annum equal to the prime rate of interest in effect from time to time during such period as reported in the Wall Street Journal, plus 2% compounded annually (such aggregate amount being referred to herein as the "Redemption Price"). (b) Optional Redemption. In addition, at any time following the payment in full of the Loans (as defined in the Credit Agreement), the Corporation may redeem all of the issued and outstanding shares of Series A Preferred Stock by paying the holders of record thereof an amount per share of Series A Preferred Stock equal to the Redemption Price (the date upon which the Corporation receives such request from the holders being the "Optional Redemption Date"). (c) Redemption Terms. In order to receive payment of the Redemption Price, the holder of any shares of Series A Preferred Stock redeemed pursuant to this Section shall before or within 60 days after the Mandatory Redemption Date or Optional Redemption Date, as the case may be, surrender the certificate or certificates representing such shares to the Corporation. Section 6. Definitions. As used herein, the following terms have the meanings stated below. "Common Stock" shall mean the Common Stock, par value $0.02 per share, of the Corporation as authorized on the date hereof, and also any capital stock of any class of the Corporation hereafter authorized which shall not be limited to a fixed sum or percentage in respect of the rights of the holders thereof to participate in dividends or in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of the Corporation; provided, however, that the shares purchasable pursuant to the Series A Preferred Stock shall include only shares designated as Common Stock, par value $0.02 per share, of the Corporation on the date hereof, or shares of any class or classes resulting from any reclassification or reclassifications thereof which are not limited to any such fixed sum or percentage and are not subject to redemption by the Corporation and in case at any time there shall be more than one such resulting class, the shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications. "Convertible Securities" means any stock or securities convertible into or exchangeable for Common Stock. "Credit Agreement" means that certain Second Amended and Restated Loan Agreement, dated as of May 10, 1999, as amended pursuant to that certain Amendment and Waiver Agreement, dated as of January 29, 2001, the Second Amendment and Waiver Agreement, dated as of July 1, 2001, the Third Amendment and Waiver Agreement, dated as of September 1, 2001 and the Fourth Amendment Agreement, of even date herewith. "Fully Diluted Basis" shall mean, for the Company, all outstanding shares of Common Stock plus all shares which would be outstanding upon the exercise in full of all Convertible Securities, Options and Stock Purchase Rights. "Options" means any rights to subscribe for or to purchase, or any warrants or options for the purchase of, Common Stock or any Convertible Security. -12- "Stock Purchase Rights" shall mean any warrants, options or other rights of any kind to subscribe for, purchase or otherwise acquire any shares of Common Stock, Options or any Convertible Securities. "Warrant" means that certain Warrant to purchase 33.20% of the Common Stock, dated as of December 31, 2001, originally issued to ARK CLO 2000-1 Limited. Section 7. Reacquired Shares. Any shares of Series A Preferred Stock acquired by the Corporation in any manner shall be retired and canceled promptly after the acquisition thereof. -13- In witness whereof, the Corporation has caused this Certificate to be executed as of this 31st day of December 2001. SCAN-OPTICS, INC. By: /s/ Michael J. Villano ---------------------- Name: Michael J. Villano Title: Chief Financial Officer ATTEST: /s/ Richard D. Harris - --------------------- Name: Richard D. Harris Secretary -14- EX-5 4 ex-5.txt EXHIBIT 5 EXHIBIT 5 February 27, 2002 Scan-Optics, Inc. 169 Progress Drive Manchester, Connecticut 06040 Ladies and Gentlemen: We have acted as counsel for Scan-Optics, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing by the Company with the Securities and Exchange Commission of a Registration Statement on Form S-8 (the "Registration Statement") pursuant to the Securities Act of 1933 (the "Securities Act"), with respect to up to 1,115,000 shares of common stock, par value $.02 per share (the "Common Stock"), of the Company, as described in the Registration Statement. In rendering this opinion, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction of such records, documents, certificates and other instruments including, but not limited to, (i) the Company's Certificate of Incorporation, as amended, (ii) the Company's By-laws, as amended, (iii) the Senior Executive Stock Option Plan (the "Plan"), and (iv) certain minutes of the corporate proceedings of the Board of Directors of the Company, and have made such investigation of law as in our judgment is necessary or appropriate to enable us to render the opinions expressed below. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of natural persons and the conformity to the originals of all documents submitted to us as copies. The opinions set forth below are based on, and limited to, the General Corporation Law of the State of Delaware and the case law and provisions of the Constitution of the State of Delaware relevant thereto, and no opinion is expressed as to the laws of any other jurisdiction. Based on and subject to the foregoing, we are of the opinion that duly authorized but not previously issued shares of Common Stock reserved for issuance under the Plan, when issued upon the exercise of options in accordance with the terms of the Plan and as contemplated by the Registration Statement, will be duly authorized and legally issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act. This opinion is not to be used, circulated, quoted or otherwise referred to for any other purpose without our express written consent. Very truly yours, /s/ DAY, BERRY & HOWARD LLP BJR:BJS -15- EX-10 5 ex10-16.txt EXHIBIT 10.16 EXHIBIT 10.16 SCAN-OPTICS, INC. SENIOR EXECUTIVE STOCK OPTION PLAN 1. Purposes. The purposes of this Senior Executive Stock Option Plan (the "Plan") are (a) to secure for Scan-Optics, Inc. (the "Company") and its stockholders the benefits arising from stock ownership by senior executive officers of the Company, who will be responsible for its future growth and continued success, (b) to enable the Company to retain the services of the persons who are senior executive officers as of December 31, 2001 by providing them with an opportunity to become owners of Scan-Optics, Inc. Common Stock under the terms and conditions and in the manner contemplated by this Plan and (c) to provide such persons with incentives to increase stockholder value. 2. Administration. The Plan shall be administered by the Stock Options and Executive Compensation Committee of the Board of Directors (the "Committee"), consisting of not less than two Directors appointed by the Board of Directors. Members of the Board of Directors may only serve on the Committee if they are non-employee directors for purposes of Rule 16b-3 under the Securities Exchange Act of 1934, as amended, and "outside directors" as defined in Treasury Regulations ss.1.162m-27(e)(3). Any action of the Committee with respect to the administration of the Plan shall be taken by majority vote. Subject to the express provisions of the Plan, the Committee shall have authority to (i) construe and interpret the Plan, (ii) prescribe, amend and rescind rules and regulations relating to the Plan, and (iii) make all other determinations necessary or advisable for the administration of the Plan. All determinations and interpretations made by the Committee shall be binding and conclusive on all participants in the Plan and on their legal representatives and beneficiaries. 3. Maximum Number of Shares Subject to Plan. Subject to adjustment as provided in Section 11 hereof, the shares of stock to be offered under the Plan may be authorized but unissued shares of the Company's Common Stock, par value $.02 per share (the "Common Stock"), or issued shares which have been reacquired. The aggregate amount of Common Stock to be delivered upon exercise of all options granted under the Plan shall not exceed 1,115,000 shares, subject to adjustment as provided in Section 11 hereof. 4. Non-Qualified Options. Options granted under the Plan are non-qualified stock options, not intended to qualify for incentive stock option treatment under Section 422 of the Internal Revenue Code. -16- 5. Grant of Options. Each person who was a senior executive officer of the Company as of December 31, 2001 shall be eligible to receive a grant of an option to purchase one share of Common Stock of the Company for each dollar of such person's annual salary as of December 31, 2001. The exercise price for such option shall be $0.24 per share, the closing price share of Common Stock on December 31, 2001. No other persons shall be eligible to participate in the Plan and no other options may be granted under the Plan. The determination by the Committee of the persons who are eligible to participate in the Plan and the number of options to which they are entitled under the Plan shall be final. 6. Duration and Time of Exercise of Options. Each option and all rights thereunder shall expire on December 31, 2011, subject to earlier termination as provided herein. Each optionee must remain within the continuous employ of the Company until June 30, 2002 before the right to exercise any part of such option shall accrue. In the event of (a) a reorganization, merger or consolidation of the Company in which the Company is not the surviving corporation, (b) the dissolution or liquidation of the Company, or (c) a sale or lease of fifty percent (50%) or more, computed on the basis of book value, of the Company's consolidated assets, the time at which all options then outstanding may be exercised shall be accelerated and all such options shall become exercisable in full on or before a date fixed by the Committee prior to the effective time of such reorganization, merger, consolidation, dissolution, liquidation, sale or lease, and upon such effective time any unexercised options shall expire. The Committee may, at any time, in its absolute discretion, accelerate the time at which an outstanding option can be exercised, in whole or in part, in the case of death or disability. 7. Exercise of Options Options shall be exercised by the delivery of written notice to the officer of the Company designated by the Committee setting forth the number of shares with respect to which the option is to be exercised, and specifying the address to which the certificates for such shares are to be mailed. The option price shall be paid in full at the time of exercise in cash by United States currency, certified check or money order or by tendering to the Company (i) shares of Common Stock having a fair market value on the date of exercise equal to the option price (including shares that would otherwise be issued pursuant to such exercise), or (ii) a combination of cash and shares of Common Stock valued at such fair market value. As promptly as practicable after receipt of such written notification of the exercise of an option and payment, the Company shall deliver to the optionee certificates for the number of shares with respect to which such option has been so exercised issued in the optionee's name. 8. Non-Transferability of Options. Unless otherwise determined by the Committee, Option granted under the Plan shall, by its terms, be non-transferable by the optionee, either voluntarily or by operation of law, otherwise than by will or the laws of descent and distribution, and shall be exercisable during the optionee's lifetime only by the optionee, regardless of any community property interest therein of the spouse of the optionee, or such spouse's successors in interest. 9. Termination of Employment. (a) Termination. If an optionee's employment with the Company terminates for any reason other than those set forth in clauses (b) and (c) below, any outstanding option granted under this Plan and held by the optionee shall -17- terminate on the earlier of the date on which such option would otherwise expire or ninety days after such termination. (b) Disability or Death. If an optionee's service as an officer is terminated by disability or death, the optionee or the representative of the optionee's estate or beneficiaries thereof to whom the option has been transferred shall have the right during the period commencing on the date of the optionee's disability or death and ending one (1) year after such termination to exercise any then outstanding options granted in whole or in part. (c) Termination for Cause. If an optionee's service as an officer is terminated for cause, any outstanding option granted under this Plan held by the optionee shall terminate as of the date of such termination for cause. 10. Privilege of Stock Ownership. No person entitled to exercise any option granted under the Plan shall have any of the rights or privileges of a stockholder of the Company in respect of any shares of stock issuable upon exercise of such option until certificates representing such shares shall have been issued and delivered. No share shall be issued and delivered upon exercise of any option unless and until, in the opinion of counsel for the Company, any applicable registration requirements of the Securities Act of 1993, any applicable listing requirements of any national securities exchange on which stock of the same class is then listed, and any other requirements of law or of any regulatory bodies having jurisdiction over such issuance and delivery, shall have been fully complied with. 11. Adjustments. If the outstanding shares of Common Stock of the Company are increased or changed into or exchanged for a different number or kind of shares or securities of the Company as a result of a merger, reorganization, recapitalization, reclassification, stock dividend, stock split or reverse stock split, an appropriate and proportionate adjustment shall be made in the maximum number and kind of shares as to which options may be granted under this Plan. A corresponding adjustment changing the number or kind of shares allocated to unexercised options or portion thereof, which shall have been granted prior to any such change, shall likewise be made. Any such adjustment in the outstanding options shall be made without change in the aggregate purchase price applicable to the unexercised portion of the option but with a corresponding adjustment in the price for each share covered by the option. Adjustments under this Section shall be made by the Committee, whose determination as to what adjustments shall be made, and the extent thereof, shall be final, binding and conclusive. No fractional shares of stock shall be issued under the Plan for any such adjustment. 12. Written Agreement. Each option granted hereunder shall be embodied in a written Option Agreement substantially in the form attached as Exhibit A hereto, which shall be subject to the terms and conditions prescribed herein, and shall be signed by the optionee and by an officer of the Company for and on behalf of the Company. 13. Amendment and Termination of Plan. The Board of Directors of the Company may at any time amend, suspend or terminate the Plan. No amendment, suspension or termination of the Plan shall, without the consent of the optionee, alter or impair any rights or obligation under any outstanding Option Agreement. 14. Withholding. Any person exercising an option shall be required to pay in cash to the Company the amount of any taxes the Company is required by law to withhold with respect to the exercise of such option. Such payment shall be due on the date the Company is required to withhold such taxes. Such payment may also be made at the election of the -18- optionee by the surrender of shares of Common Stock then owned by the optionee, or the withholding of shares of Common Stock otherwise to be issued to the optionee on exercise, in an amount that would satisfy the withholding amount due. The value of such shares withheld or delivered shall be equal to the fair market value of such shares on the date of exercise. In the event that such payment is not made when due, the Company shall have the right to deduct to the extent permitted by law, from any payment of any kind otherwise due to such person from the Company, all or part of the amount required to be withheld. 15. Effective Date of Plan. This Plan shall become effective on December 31, 2001. 16. Construction. The Plan and options granted hereunder shall be governed by and construed in accordance with the laws of the State of Delaware and in accordance with such federal laws as may be applicable. -19- Exhibit A SCAN-OPTICS, INC. 169 Progress Drive Manchester, Connecticut 06040 SENIOR EXECUTIVE STOCK OPTION PLAN OPTION AGREEMENT Subject to the terms of the Senior Executive Stock Option Plan ("Plan") of Scan-Optics, Inc. ("Company"), a true copy of which is annexed hereto, [Employee Name] ("Optionee") is hereby granted an option to purchase ____ shares of the Common Stock of the Company at $0.24 per share (this "Option") being not less than 100% of the fair market value of the stock at the time this Option is granted ("Option Price"). This Option expires on December 31, 2011 and is subject to any earlier termination as provided in the Plan. This Option shall be exercisable by the Optionee as follows: 100% on June 30, 2002. ---------------------- The Optionee hereby accepts this Option and represents and agrees that the Company shall not be required to issue shares upon the exercise of this Option unless a registration statement under the Securities Act of 1933 is in effect with respect to the shares covered by this Option, or unless the Company has received evidence satisfactory to it to the effect that the holder of this Option is acquiring such shares for investment and not with a view to the distribution thereof. Grant Date: December 31, 2001 SCAN-OPTICS, INC. Accepted: By:_______________________ _______________________ Optionee -20- EX-23 6 ex23-1.txt EXHIBIT 23.1 Exhibit 23.1 Consent of Independent Auditors We consent to the incorporation by reference in this Registration Statement (Form S-8 No. 333-00000) pertaining to the Senior Executive Stock Option Plan of Scan-Optics, Inc. of our report dated February 19, 2001, with respect to the consolidated financial statements and schedule of Scan-Optics, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2000, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Hartford, Connecticut February 26, 2002 -21- -----END PRIVACY-ENHANCED MESSAGE-----