<PAGE>
As filed with the Securities and Exchange Commission on October 29, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------------------
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
---------------------------------------
NORTHWEST PIPE COMPANY
(Exact name of registrant as specified in charter)
OREGON 93-0557988
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
---------------------------------------
12005 N. BURGARD, PORTLAND, OREGON 97203
503-285-1400
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------------------------------
NORTHWEST PIPE COMPANY
1999 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------------
BRIAN W. DUNHAM
PRESIDENT AND CHIEF OPERATING OFFICER
NORTHWEST PIPE COMPANY
12005 N. BURGARD, PORTLAND, OREGON 97203
503-285-1400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------------------------
WITH COPIES TO:
GREGORY E. STRUXNESS, ESQ.
ATER WYNNE LLP
222 S.W. COLUMBIA, SUITE 1800
PORTLAND, OREGON 97201
(503) 226-1191
---------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities to Be Amount to Be Registered Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Registered Price Per Share (1) Offering Price (1) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share (2) . . . 300,000 shares $12.875 $3,862,500 $1,074
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Including associated Preferred Stock Purchase Rights. Prior to the
occurrence of certain events, the Preferred Stock Purchase Rights will not
be evidenced or traded separately from the Common Stock.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this
Registration Statement:
(a) Annual Report on Form 10-K for the year ended December 31,
1998 of Northwest Pipe Company (the "Company") filed with the Securities and
Exchange Commission (the "SEC") on March 30, 1999.
(b) Quarterly Report on Form 10-Q of the Company for the quarter
ended March 31, 1999 filed with the SEC on May 7, 1999, Quarterly Report on
Form 10-Q for the quarter ended June 30, 1999 filed on August 2, 1999 and
Current Report on Form 8-K of the Company filed with the SEC on July 1, 1999.
(c) Registration Statement on Form 8-A of the Company filed with
the SEC on November 2, 1995 and Registration Statement on Form 8-A of the
Company filed with the SEC on July 1, 1999.
(d) All documents filed by the Company with the SEC pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
after the date of this Registration Statement and before the date of filing
of a post-effective amendment to this Registration Statement stating that all
securities offered have been sold or deregistering all securities then
remaining unsold.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As an Oregon corporation the Company is subject to the Oregon Business
Corporation Act (the "OBCA") and the exculpation from liability and
indemnification provisions contained therein. Pursuant to Section 60.047(2)
of the OBCA, Article VI of the Company's Restated Articles of Incorporation
(the "Restated Articles") eliminates the liability of the Company's directors
to the Company or its shareholders, except for any liability related to
breach of the duty of loyalty, actions not in good faith and certain other
liabilities.
-2-
<PAGE>
Section 60.387 et seq. of the OBCA allows corporations to indemnify
their directors and officers against liability where the director or officer
has acted in good faith and with a reasonable belief that actions taken were
in the best interests of the corporation or at least not adverse to the
corporation's best interests and, if in a criminal proceeding, the individual
had no reasonable cause to believe the conduct in question was unlawful.
Under the OBCA, corporations may not indemnify against liability in
connection with a claim by or in the right of the corporation but may
indemnify against the reasonable expenses associated with such claims.
Corporations may not indemnify against breaches of the duty of loyalty. The
OBCA mandates indemnifications against all reasonable expenses incurred in
the successful defense of any claim made or threatened whether or not such
claim was by or in the right of the corporation. Finally, a court may order
indemnification if it determines that the director or officer is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the director or officer met the good faith and
reasonable belief standards of conduct set forth in the statute.
The OBCA also provides that the statutory indemnification provisions are
not deemed exclusive of any other rights to which directors or officers may
be entitled under a corporation's articles of incorporation or bylaws, any
agreement, general or specific action of the board of directors, vote of
shareholders or otherwise.
The Restated Articles require the Company to indemnify its directors and
officers to the fullest extent not prohibited by law. The Restated Bylaws of
the Company (the "Bylaws") also require the Company to indemnify its
directors and officers to the fullest extent permitted by the OBCA. In
addition, the Bylaws deem that all rights to indemnification under the Bylaws
are deemed to be contractual rights and are to be effective to the same
extent as if provided for in a contract between the Company and the director
or officer who serves in such capacity.
The Company has entered into indemnity agreements with each of its
executive officers and directors. Each agreement provides for indemnification
of the indemnitee to the fullest extent by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Number Description
5.1 Opinion of Ater Wynne LLP as to the legality of the
securities being registered
-3-
<PAGE>
23.1 Consent of Ater Wynne LLP (included in legal opinion filed
as Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.0 Powers of Attorney (included in signature page in Part II of
the Registration Statement)
99.1 1999 Employee Stock Purchase Plan
ITEM 9. UNDERTAKINGS
a. The undersigned registrant hereby undertakes 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;
iii. to include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
b. The undersigned registrant hereby undertakes that, for the
purpose of determining 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.
c. The undersigned registrant hereby undertakes 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.
d. 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
-4-
<PAGE>
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
e. 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 a director, officer or
controlling person in connection with 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.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto authorized, in the City of Portland, State of Oregon, on the 28th
day of October, 1999.
NORTHWEST PIPE COMPANY
By /s/ Brian W. Dunham
----------------------------------------
Brian W. Dunham
President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William R. Tagmyer and Brian W. Dunham and
each of them singly, as true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities to sign the registration statement filed
herewith and any or all amendments to said registration statement (including
post-effective amendments), 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 foregoing, as fully to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Witness our hands on the date set forth below.
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.
[Signatures on following page]
-6-
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ William R. Tagmyer Chairman of the Board and Chief Executive 10/28/99
- ------------------------ Officer (Principal Executive Officer)
William R. Tagmyer
/s/ Brian W. Dunham President, Chief Operating Officer and 10/28/99
- ------------------------ Director
Brian W. Dunham
/s/ John D. Murakami Vice President and Chief Financial Officer 10/28/99
- ------------------------ (Principal Financial Officer)
John D. Murakami
/s/ Warren D. Kearns Director 10/28/99
- ------------------------
Warren D. Kearns
/s/ Wayne B. Kingsley Director 10/28/99
- ------------------------
Wayne B. Kingsley
/s/ Vern B. Ryles Director 10/28/99
- ------------------------
Vern B. Ryles
/s/ Neil R. Thornton Director 10/28/99
- ------------------------
Neil R. Thornton
</TABLE>
-7-
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER EXHIBIT NO.
<S> <C> <C>
5.1 Opinion of Ater Wynne LLP as to the legality of the
securities being registered
23.1 Consent of Ater Wynne LLP (included in legal opinion
filed as Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.0 Powers of Attorney (included in signature page in Part
II of the Registration Statement)
99.1 1999 Employee Stock Purchase Plan
</TABLE>
<PAGE>
Exhibit 5.1
ATER WYNNE LLP
222 S.W. Columbia, Suite 1800
Portland, Oregon 97201
(503)226-1191 (phone)
(503)226-0079 (fax)
October 28, 1999
Board of Directors
Northwest Pipe Company
12005 N. Burgard
Portland, OR 97203
Gentlemen:
In connection with the registration of 300,000 shares of common stock,
par value $.01 per share (the "Common Stock"), of Northwest Pipe Company, an
Oregon corporation (the "Company"), under the Registration Statement on Form
S-8 to be filed with the Securities and Exchange Commission on October 29,
1999, and the proposed offer and sale of the Common Stock pursuant to the
terms of the Company's 1999 Employee Stock Purchase Plan (the "Plan") we have
examined such corporate records, certificates of public officials and
officers of the Company and other documents as we have considered necessary
or proper for the purpose of this opinion.
Based on the foregoing and having regard to legal issues which we deem
relevant, it is our opinion that the shares of Common Stock to be offered
pursuant to the Plan when such shares have been delivered against payment
therefor as contemplated by the Plan, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-mentioned registration statement.
Very truly yours,
/s/ Ater Wynne LLP
Ater Wynne LLP
<PAGE>
Exhibit 23.2
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
Northwest Pipe Company
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 9, 1999 relating to the
financial statements, which appears in Northwest Pipe Company's Annual Report
on Form 10-K for the year ended December 31, 1998. We also consent to the
incorporation by reference of our report dated February 9, 1999 relating to
the financial statement schedule, which appears in such Annual Report on
Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Portland, Oregon
October 28, 1999
<PAGE>
Exhibit 99.1
NORTHWEST PIPE COMPANY
1999 EMPLOYEE STOCK PURCHASE PLAN
The following provisions constitute the Northwest Pipe Company 1999
Employee Stock Purchase Plan.
1. PURPOSE. The purpose of the Plan is to provide employees of the
Company and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company through accumulated payroll deductions. It is the
intention of the Company to have the Plan qualify as an "Employee Stock Purchase
Plan" under Section 423 of the Internal Revenue Code of 1986, as amended. The
provisions of the Plan, accordingly, shall be construed so as to extend and
limit participation in a manner consistent with the requirements of that section
of the Code.
2. DEFINITIONS.
2.1 "ACCOUNT" shall mean each separate account maintained
for a Participant under the Plan, collectively or singly as the context
requires. Each Account shall be credited with a Participant's contributions,
and shall be charged for the purchase of Common Stock. A Participant shall
be fully vested in the cash contributions to his or her account at all times.
The Plan Administrator may create special types of accounts for
administrative reasons, even though the Accounts are not expressly authorized
by the Plan.
2.2 "BOARD" shall mean the Board of Directors of the Company.
2.3 "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
2.4 "COMMITTEE" shall mean the Compensation Committee of the
Board.
2.5 "COMMON STOCK" shall mean the Common Stock of the Company.
2.6 "COMPANY" shall mean Northwest Pipe Company, an Oregon
corporation.
2.7 "COMPENSATION" shall mean all base straight time gross
earnings plus payments for overtime, shift premiums and sales commissions,
but excluding incentive compensation, incentive payments, bonuses, awards,
and other compensation.
2.8 "DESIGNATED SUBSIDIARY" shall mean each Subsidiary which
has been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
2.9 "EMPLOYEE" shall mean an individual who renders services
to the Company or to a Designated Subsidiary pursuant to a regular-status
employment relationship with such
1 - NORTHWEST PIPE COMPANY - 1999 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
employer. A person rendering services to the Company or to a Designated
Subsidiary purportedly as an independent consultant or contractor shall not
be an Employee for purposes of the Plan.
2.10 "ENROLLMENT DATE" shall mean the first day of each
Offering Period.
2.11 "FAIR MARKET VALUE"
2.11.1 If the Common Stock is listed on any established
stock exchange or a national market system, including without limitation the
National Market System of the National Association of Securities Dealers,
Inc. Automated Quotation ("NASDAQ") System, its Fair Market Value shall be
the closing sale price for the Common Stock (or the mean of the closing bid
and asked prices, if no sales were reported), as quoted on such exchange (or
the exchange with the greatest volume of trading in Common Stock) or system
on the last Trading Day prior to the day of such determination, as reported
in THE WALL STREET JOURNAL or such other source as the Board deems reliable,
or;
2.11.2 If the Common Stock is quoted on the NASDAQ
system (but not on the National Market System thereof) or is regularly quoted
by a recognized securities dealer but selling prices are not reported, its
Fair Market Value shall be the mean of the closing bid and asked prices for
the Common Stock on the last Trading Day prior to the day of such
determination, as reported in THE WALL STREET JOURNAL or such other source as
the Board deems reliable, or;
2.11.3 In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good faith
by the Board.
2.12 "HIGHLY COMPENSATED EMPLOYEE" shall mean any Employee
whose compensation exceeds $125,000 (as adjusted each year by the percentage
change in the Consumer Price Index for Urban Wage Earners and Clerical
Workers prepared by the Bureau of Statistics, Department of Labor or the
comparable index that replaces it) provided that no Employee shall be a
Highly Compensated Employee as defined hereby if such Employee is not also a
"Highly Compensated Employee" within the meaning of Section 414(q) of the
Code.
2.13 "NASDAQ" shall mean the National Association of
Securities Dealers Automated Quotation System or such other quotation system
that supersedes it.
2.14 "OFFERING PERIOD" shall mean the period of approximately
six (6) months, commencing on the first Trading Day on or after a date
designated in advance by the Board and terminating on the last Trading Day in
the period ending six months later, during which an option granted pursuant
to the Plan may be exercised. The duration of Offering Periods may be
changed pursuant to Section 4 of this Plan.
2.15 "PARTICIPANT" shall mean any Employee who is
participating in this Plan by meeting the eligibility requirements of Section
3 and has completed a Payroll Participation Form.
2 - NORTHWEST PIPE COMPANY - 1999 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
2.16 "PAYROLL PARTICIPATION FORM" shall mean the form
attached hereto as Exhibit A (or such other form as may be provided by the
Company) on which a Participant shall elect to participate in the Plan and
designate the percentage of his or her Compensation to be contributed to his
or her Account through payroll deductions.
2.17 "PLAN" shall mean this Employee Stock Purchase Plan.
2.18 "PURCHASE DATE" shall mean the last day of each Offering
Period.
2.19 "PURCHASE PRICE" shall mean an amount equal to 85% of
the Fair Market Value of a share of Common Stock (i) on the Enrollment Date
or (ii) on the Purchase Date, whichever is lower.
2.20 "RESERVES" shall mean the number of shares of Common
Stock covered by each option under the Plan which have not yet been exercised
and the number of shares of Common Stock which have been authorized for
issuance under the Plan but not yet placed under option.
2.21 "SUBSIDIARY" shall mean a corporation, domestic or
foreign, of which not less than 50% of the voting shares are held by the
Company or a Subsidiary, whether or not such corporation now exists or is
hereafter organized or acquired by the Company of a Subsidiary.
2.22 "TRADING DAY" shall mean a day on which national stock
exchanges and NASDAQ are open for trading.
3. ELIGIBILITY.
3.1 A person shall become eligible to participate in the
Plan on the first Enrollment Date on or after which he or she first meets all
of the following requirements; provided, however, that no one shall become
eligible to participate in the Plan prior to the Enrollment Date of the first
Offering Period provided for in Section 2.13:
3.1.1 The person's customary period of employment is
for more than twenty (20) hours per week;
3.1.2 The person's customary period of employment is
for more than five (5) months in any calendar year.
3.1.3 The person has been employed by the Company or a
Designated Subsidiary for at least one (1) year.
3.1.4 The person is not a Highly Compensated Employee.
3.2 Any provisions of the Plan to the contrary
notwithstanding, no Employee shall be granted an option under the Plan (i)
if, immediately after the grant, such Employee (or any other
3 - NORTHWEST PIPE COMPANY - 1999 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
person whose stock would be attributed to such Employee pursuant to Section
424(d) of the Code) would own stock and/or hold outstanding options to
purchase stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or of any
Subsidiary, or (ii) which permits his or her rights to purchase stock under
all employee stock purchase plans (under Section 423 of the Code) of the
Company and Subsidiaries to accrue at a rate which exceeds Twenty-Five
Thousand Dollars ($25,000) worth of stock (determined at the fair market
value of the shares at the time such option is granted) for each calendar
year in which such option is outstanding at any time.
3.3 For purposes of the Plan, eligibility shall be treated
as continuing intact while the individual is on sick leave or other leave of
absence approved by the Company. Where the period of leave exceeds 90 days
and the individual's right to reemployment is not guaranteed either by
statute or by contract, eligibility to participate in the Plan will be deemed
to have terminated on the 91st day of such leave.
4. OFFERING PERIODS. The Plan shall be implemented by consecutive
Offering Periods with the first Offering Period commencing on a date
designated in advance by the Board, and continuing for six month periods
thereafter until terminated in accordance with Section 19 hereof. The Board
shall have the power to change the duration of Offering Periods (including
the commencement dates thereof) with respect to future offerings without
shareholder approval if such change is announced at least fifteen (15) days
prior to the scheduled beginning of the first Offering Period to be affected
thereafter.
5. PARTICIPATION.
5.1 An eligible Employee may become a Participant in the
Plan by completing a Payroll Participation Form and filing it with the
Company's Administration Department (as set forth in Section 20 below) at
least fifteen (15) days prior to the applicable Enrollment Date, unless a
later time for filing the Payroll Participation Form is set by the Board for
all eligible Employees with respect to a given Offering Period.
5.2 Payroll deductions for a Participant shall commence on
the first payroll period following the Enrollment Date and shall end on the
last payroll period in the Offering Period, unless sooner terminated by the
Participant as provided in Section 10 hereof.
6. PAYROLL DEDUCTIONS.
6.1 At the time a Participant files his or her Payroll
Participation Form, he or she shall elect to have payroll deductions made on
each payday during the Offering Period in an amount not exceeding ten percent
(10%) of the Compensation which he or she receives on each payday during the
Offering Period, and the aggregate of such payroll deductions during the
Offering Period shall not exceed ten percent (10%) of the Participant's
Compensation during said Offering Period.
4 - NORTHWEST PIPE COMPANY - 1999 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
6.2 A Participant shall specify that he or she desires to
make contributions to the Plan in whole percentages not less than one percent
(1%) and not more than ten percent (10%) of the Participant's Compensation
during each pay period in the Offering Period, or such other minimum or
maximum percentage as the Board shall establish from time to time.
6.3 All payroll deductions made for a Participant shall be
credited to his or her Account under the Plan and will be withheld in whole
percentages only. A Participant may not make any additional payments into
such Account.
6.4 A Participant may discontinue his or her participation
in the Plan as provided in Section 10 hereof. A Participant's Payroll
Participation Form shall remain in effect for successive Offering Periods
unless terminated as provided in Section 10.
6.5 Notwithstanding the foregoing, to the extent necessary
to comply with Section 423(b)(8) of the Code and Section 3.2 hereof, a
Participant's payroll deductions shall be decreased to 0% at such time during
any Offering Period which is scheduled to end during the current calendar
year (the "Current Offering Period") that the aggregate of all payroll
deductions which were previously used to purchase stock under the Plan in a
prior Offering Period which ended during that calendar year plus all payroll
deductions accumulated with respect to the Current Offering Period equal
$21,250 (85% of $25,000). Payroll deductions shall recommence at the rate
provided in such Participant's Payroll Participation Form at the beginning of
the first Offering Period which is scheduled to end in the following calendar
year, unless terminated by the Participant as provided in Section 10.
6.6 At the time the option is exercised, or at the time some
or all of the Common Stock issued under the Plan is disposed of, the
Participant must make adequate provision for the Company's federal, state, or
other tax withholding obligations, if any, which arise upon the exercise of
the option or the disposition of the Common Stock. At any time, the Company
may, but will not be obligated to, withhold from the Participant's
compensation the amount necessary for the Company to meet applicable
withholding obligations, including any withholding required to make available
to the Company any tax deductions or benefit attributable to sale or early
disposition of Common Stock by the Employee.
7. OPTION TO PURCHASE COMMON STOCK. On the Enrollment Date of
each Offering Period, each eligible Employee participating in such Offering
Period shall be granted an option to purchase on the Purchase Date of such
Offering Period (at the applicable Purchase Price) up to a number of shares
of the Common Stock determined by dividing such Employee's payroll deductions
accumulated prior to such Purchase Date and retained in the Participant's
account as of the Purchase Date by the applicable Purchase Price; provided
that in no event shall an Employee be permitted to purchase during each
Offering Period more than a number of shares determined by dividing $12,500
by the Fair Market Value of a share of the Common Stock on the Enrollment
Date, and provided further that such purchase shall be subject to the
limitations set forth in Sections 3.2 and 12 hereof. Purchase of the Common
Stock shall occur as provided in Section 8, unless the Participant has
withdrawn pursuant to Section 10, and the option shall expire on the last day
of the Offering Period.
5 - NORTHWEST PIPE COMPANY - 1999 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
8. PURCHASE OF COMMON STOCK. Unless a Participant withdraws from
the Plan as provided in Section 10.1 below, his or her option for the
purchase of Common Stock will be exercised automatically on the Purchase
Date, and the maximum number of full shares subject to option shall be
purchased for such Participant at the applicable Purchase Price with the
accumulated payroll deductions in his or her account. No fractional shares
of Common Stock will be purchased; any payroll deductions accumulated in a
Participant's account which are not sufficient to purchase a full share shall
be retained in the Participant's account for the subsequent Offering Period,
subject to earlier withdrawal by the Participant as provided in Section 10
hereof. During a Participant's lifetime, a Participant's option to purchase
shares of Common Stock hereunder is exercisable only by him or her.
9. DELIVERY. As promptly as practicable after each Purchase Date,
the Company shall arrange for the electronic delivery to each Participant's
designated brokerage account of the shares of Common Stock purchased with his
or her payroll deductions.
10. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
10.1 A Participant may withdraw all but not less than all
the payroll deductions credited to his or her account and not yet used to
purchase shares of Common Stock under the Plan by giving written notice in
the form of Exhibit B to this Plan (or such other form as may be provided by
the Company) to the Company (as set forth in Section 20 below) no less than
15 days immediately preceding a Purchase Date. All of the Participant's
payroll deductions credited to his or her Account will be paid to such
Participant as soon as practicable after receipt of notice of withdrawal and
such Participant's option for the Offering Period will be automatically
terminated, and no further payroll deductions for the purchase of shares will
be made during the Offering Period. If a Participant withdraws from an
Offering Period, payroll deductions will not resume at the beginning of the
succeeding Offering Period unless the Participant delivers to the Company a
new Payroll Participation Form.
10.2 Upon termination of a Participant's employment for any
reason, including death, disability or retirement, or a Participant failing
to remain an Employee of the Company for at least twenty (20) hours per week
during an Offering Period in which the Employee is a Participant, he or she
will be deemed to have elected to withdraw from the Plan and the payroll
deductions credited to such Participant's Account shall be returned to the
Participant; or, in the case of death, to the persons entitled thereto under
Section 14, and such Participant's option shall be automatically terminated.
11. INTEREST. No interest shall accrue on the payroll deductions
of a Participant in the Plan.
12. STOCK.
12.1 The maximum number of shares of the Company's Common
Stock which shall be made available for sale under the Plan shall be 300,000
shares, subject to adjustment upon
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changes in capitalization of the Company as provided in Section 18. If on a
given Purchase Date the number of shares of Common Stock eligible to be
purchased exceeds the number of shares then available under the Plan, the
Company shall make a pro rata allocation of the shares remaining available
for purchase in as uniform a manner as shall be practicable and as it shall
determine to be equitable.
12.2 The Participant will have no interest or voting right in
shares covered by his or her option until such shares of Common Stock have
been purchased.
12.3 Common Stock to be delivered to a Participant under the
Plan will be registered in the name of the Participant or in the name of the
Participant and his or her spouse.
13. ADMINISTRATION.
13.1 ADMINISTRATIVE BODY. The Plan shall be administered by
the Committee. Subject to the terms of the Plan, the Committee shall have
the power to construe the provisions of the Plan, to determine all questions
arising thereunder, and to adopt and amend such rules and regulations for
administering the Plan as the Committee deems desirable.
13.2 RULE 16B-3 LIMITATIONS. Notwithstanding the provisions
of Subsection 13.1, in the event that Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended, or any successor provision
("Rule 16b-3") provides specific requirements for the administrators of plans
of this type, the Plan shall be only administered by such a body and in such
a manner as shall comply with the applicable requirements of Rule 16b-3.
14. DESIGNATION OF BENEFICIARY.
14.1 A Participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
Participant's account under the Plan in the event of such Participant's death
subsequent to a Purchase Date on which the option is exercised but prior to
delivery to such Participant of such shares and cash. In addition, a
Participant may file a written designation of a beneficiary who is to receive
any cash from the Participant's account under the Plan in the event of such
Participant's death prior to a Purchase Date.
14.2 Such designation of beneficiary may be changed by the
Participant at any time by written notice as provided in Section 20 below.
In the event of the death of a Participant and in the absence of a
beneficiary validly designated under the Plan who is living at the time of
such Participant's death, the Company shall deliver such shares and/or cash
to the executor or administrator of the estate of the Participant, or if no
such executor or administrator has been appointed (to the knowledge of the
Company), the Company, in its discretion, may deliver such shares and/or cash
to the spouse or to any one or more dependents or relatives of the
Participant, or if no spouse, dependent or relative is known to the Company,
then to such other person as the Company may designate.
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15. TRANSFERABILITY. Neither payroll deductions credited to a
Participant's account nor any rights with regard to the exercise of an option
or to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in Section 14 hereof) by the Participant. Any
such attempt at assignment, transfer, pledge or other disposition shall be
without effect, except that the Company may treat such act as an election to
withdraw funds from an Offering Period in accordance with Section 10.
16. USE OF FUNDS. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose,
and the Company shall not be obligated to segregate such payroll deductions.
17. REPORTS. Individual accounts will be maintained for each
Participant in the Plan. Statements of account will be given to
participating Employees at least annually, which statements will set forth
the amounts of payroll deductions, the Purchase Price, the number of shares
purchased and the remaining cash balance, if any.
18. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER
OR ASSET SALE.
18.1 CHANGES IN CAPITALIZATION. Subject to any required
action by the shareholders of the Company, the Reserves, as well as the price
per share of Common Stock covered by each option under the Plan which has not
yet been exercised, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a
stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in
the number of shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be made
by the Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issue by the Company of
shares of stock of any class, or securities convertible into shares of stock
of any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock subject to an
option. The Board may, if it so determines in the exercise of its sole
discretion, make provision for adjusting the Reserves, as well as the price
per share of Common Stock covered by each outstanding option, in the event
the Company effects one or more reorganizations, recapitalizations, rights
offerings or other increases or reductions of shares of its outstanding
Common Stock.
18.2 DISSOLUTION OR LIQUIDATION. In the event of the
proposed dissolution or liquidation of the Company, the Offering Period will
terminate immediately prior to the consummation of such proposed action,
unless otherwise provided by the Board.
18.3 MERGER OR ASSET SALE. In the event of a proposed sale
of all or substantially all of the assets of the Company, or the merger of
the Company with or into another corporation,
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each option under the Plan shall be assumed or any equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Board determines, in the exercise of its
sole discretion and in lieu of such assumption or substitution, to shorten
the Offering Period then in progress by setting a new Purchase Date (the "New
Purchase Date") or to cancel each outstanding right to purchase and refund
all sums collected from Participants during the Offering Period then in
progress. If the Board shortens the Offering Period then in progress in lieu
of assumption or substitution in the event of a merger or sale of assets, the
Board shall notify each Participant in writing, at least ten (10) business
days prior to the New Purchase Date, that the Purchase Date for his option
has been changed to the New Purchase Date and that his option will be
exercised automatically on the New Purchase Date, unless prior to such date
he has withdrawn from the Offering Period as provided in Section 10 hereof.
For purposes of this paragraph, an option granted under the Plan shall be
deemed to be assumed if, following the sale of assets or merger, the option
confers the right to purchase, for each share of option stock subject to the
option immediately prior to the sale of assets or merger, the consideration
(whether stock, cash or other securities or property) received in the sale of
assets or merger by holders of Common Stock for each share of Common Stock
held on the effective date of the transaction (and if such holders were
offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares of Common Stock); provided,
however, that if such consideration received in the sale of assets or merger
was not solely common stock of the successor corporation or its parent (as
defined in Section 424(e) of the Code), the Board may, with the consent of
the successor corporation and the Participant, provide for the consideration
to be received upon exercise of the option to be solely common stock of the
successor corporation or its parent equal in fair market value to the per
share consideration received by holders of Common Stock in the sale of assets
or merger.
19. AMENDMENT OR TERMINATION.
19.1 The Board may at any time and for any reason terminate
or amend the Plan. Except as provided in Section 18, no such termination can
affect options previously granted, provided that an Offering Period may be
terminated by the Board on any Purchase Date if the Board determines that the
termination of the Plan is in the best interests of the Company and its
shareholders. Except as provided in Section 18, no amendment may make any
change in any option theretofore granted which adversely affects the rights
of any Participant.
19.2 Without shareholder consent and without regard to
whether any Participant rights may be considered to have been "adversely
affected," the Committee shall be entitled to change the Offering Periods,
limit the frequency and/or number of changes in the amount withheld during an
Offering Period, establish the exchange ratio applicable to amounts withheld
in a currency other than U.S. dollars, permit payroll withholding in excess
of the amount designated by a Participant in order to adjust for delays or
mistakes in the Company's processing of properly completed withholding
elections, establish reasonable waiting and adjustment periods and/or
accounting and crediting procedures to ensure that amounts applied toward the
purchase of Common Stock for each Participant properly correspond with
amounts withheld from the Participant's Compensation, and establish such
other limitations or procedures as the Board (or its committee) determines in
its sole discretion advisable which are consistent with the Plan.
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19.3 The Company shall obtain shareholder approval of any
Plan amendment to the extent necessary and desirable to comply with Rule
16b-3 or with Section 423 of the Code (or any successor rule or statute or
other applicable law, rule or regulation, including the requirements of any
exchange or quotation system on which the Common Stock is listed or quoted).
Such shareholder approval, if required, shall be obtained in such a manner
and to such a degree as is required by the applicable law, rule or regulation.
20. NOTICES. All notices or other communications by a Participant
to the Company under or in connection with the Plan shall be deemed to have
been duly given when received in the form specified by the Company by the
Company's Secretary at the Company's corporate headquarters.
21. CONDITIONS UPON ISSUANCE OF SHARES OF COMMON STOCK. Common
Stock shall not be issued with respect to an option unless the exercise of
such option and the issuance and delivery of such shares pursuant thereto
shall comply with all applicable provisions of law, domestic or foreign,
including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval
of counsel for the Company with respect to such compliance.
As a condition to the purchase of Common Stock, the Company may
require the person purchasing such Common Stock to represent and warrant at
the time of any such purchase that the shares are being purchased only for
investment and without any present intention to sell or distribute such
shares if, in the opinion of counsel for the Company, such a representation
is required by any of the aforementioned applicable provisions of law.
22. TERM OF PLAN.
22.1 The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company. It shall continue in effect for a term of ten
(10) years unless sooner terminated pursuant to Section 19.
22.2 Notwithstanding the above, the Plan is expressly made
subject (i) to the approval of the shareholders of the Company within 12
months after the date the Plan is adopted and (ii) at its election, to the
receipt by the Company from the Internal Revenue Service of a ruling in scope
and content satisfactory to counsel to the Company, affirming the
qualification of the Plan within the meaning of Section 423 of the Code.
Such shareholder approval shall be obtained in the manner and to the degree
required under applicable federal and state law. If the Plan is not so
approved by the shareholders within 12 months after the date the Plan is
adopted, and if, at the election of the Company a ruling from the Internal
Revenue Service is sought but is not received on or before one year after the
Plan's adoption by the Board, this Plan shall not come into effect. In that
case, the Account of each Participant shall forthwith be paid to him or her.
23. ADDITIONAL RESTRICTIONS OF RULE 16b-3. The terms and
conditions of options granted hereunder to, and the purchase of shares by,
persons subject to Section 16 of the Exchange Act shall
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comply with the applicable provisions of Rule 16b-3. This Plan shall be
deemed to contain, and such options shall contain, and the shares issued upon
exercise thereof shall be subject to, such additional conditions and
restrictions as may be required by Rule 16b-3 to qualify for the maximum
exemption from Section 16 of the Exchange Act with respect to Plan
transactions.
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