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As filed with the Securities and Exchange Commission on October 12, 1999
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
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ILLUMINET HOLDINGS, INC.
(Exact name of Registrant as specified in its character)
DELAWARE 36-4042177
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
P.O. Box 2909
4501 Intelco Loop, S.E.
Lacey, Washington 98503
(Address, including zip code, of Registrant's principal executive offices)
ILLUMINET HOLDINGS, INC. 1997 EQUITY INCENTIVE PLAN
ILLUMINET HOLDINGS, INC. 1999 STOCK PURCHASE PLAN
Roger H. Moore Copy to:
President and Chief Executive Officer James M. Ash, Esq.
Illuminet Holdings, Inc. Blackwell Sanders Peper Martin LLP
P.O. Box 2909 Two Pershing Square
4501 Intelco Loop, S.E. 2300 Main Street, Suite 1000
Lacey, Washington 98503 Kansas City, Missouri 64108
(360) 493-6000 (816) 983-8000
(Name, address, telephone number, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Amount to be offering price aggregate offering Amount of
Title of securities to be registered registered per share (4) price registration fee
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Common Stock, par value $.01 per share(1) 3,800,000 $19 $72,200,000 $20,072
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Common Stock, par value $.01 per share(2) 700,000 $19 $13,300,000 $3,698
Class A Common Stock, par value $.01 per 427,725 $76 $32,507,100 $9,037
share(3)
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(1) Issuable under the 1997 Equity Incentive Plan. Includes rights to purchase
Series B preference stock associated with the Common Stock.
(2) Issuable under the 1999 Stock Purchase Plan. Includes rights to purchase
Series B preference stock associated with the Common Stock.
(3) Issuable under the 1997 Equity Incentive Plan. Includes rights to purchase
Series B preference stock associated with the Common Stock.
(4) Based on the initial public offering price of the Common Stock on October
7, 1999.
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EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this Registration Statement omits the information specified in
Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Illuminet Holdings,
Inc. (the "Company") are incorporated in this Registration Statement on Form S-8
(the "Registration Statement") by reference:
1. The Company's Rule 424(b) Final Prospectus under the Securities Act
of 1933, filed October 12, 1999.
2. The Company's Registration Statement under the Securities Exchange Act
of 1934 on Form 8-A, filed October 5, 1999.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all of the securities offered then remaining unsold, shall be deemed
to be incorporated herein by reference and to be a part hereof from the date of
filing of such documents.
Any statement contained in a report or other document incorporated by
reference herein shall be deemed to be modified or superseded for all purposes
of this Registration Statement to the extent that a statement contained herein,
or in any other subsequently filed report or other document that also is
incorporated by reference herein, modifies or supersedes such statement. Any
such statements so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute part of this Registration Statement.
ITEM 4: DESCRIPTION OF SECURITIES
The Class A Common Stock is not registered under Section 12 of the Exchange
Act.
Dividend rights. Subject to those rights expressly granted to the holders
of Preferred Stock, the holders of Class A Common Stock shall have the right to
receive, together with the holders of Common Stock, dividends when and as
declared by the Board of Directors of the Company for the holders of Common
Stock out of the assets of the Company available for the payment of dividends
under the laws of the State of Delaware; provided, however, that in determining
the amount of the dividends payable to the holders of Common Stock and the
holders of Class A Common Stock in the event of any such declaration, holders of
Class A Common Stock shall be entitled to the amount of dividends to which they
would have been entitled had the conversion of Class A Common Stock into Common
Stock taken place immediately prior to such declaration.
Terms of conversion. On April 5, 2000 (one hundred eighty-one (181) days
following the date of the final prospectus for the Company's initial public
offering), each outstanding share of Class A Common Stock shall, without any
further action by the Company or any holder of shares of Class A Common Stock,
automatically convert into four shares of Common Stock.
Voting rights. Each share of Class A Common Stock shall entitle the holder
thereof to vote, in person or by proxy, together with Common Stock at any and
all meetings of the stockholders of the Company, on all propositions before such
meetings. Prior to the conversion, each share of Class A Common Stock will have
four votes.
Holders of at least a majority of the shares entitled to vote can determine
the outcome of questions presented to stockholders. However, approval of any of
the following events requires the vote of the holders of at least two-thirds of
the shares entitled to vote on these matters: (a) the Company's
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merger, consolidation or share exchange with another corporation; (b) a transfer
of all or substantially all of the Company's assets outside of the ordinary
course of business; (c) the Company's voluntary dissolution; or (d) an
amendment, alteration, change or repeal of any provision of the Company's
certificate of incorporation.
The Company's certificate of incorporation does not allow cumulative voting
for the election of directors.
Classification of the Board of Directors. The Board of Directors shall be
divided into three classes, which are designated Class I, Class II, and Class
III. The term of office of the Class I directors shall expire at the 2000 Annual
Meeting of Stockholders; that of the Class II directors at the 2001 Annual
Meeting of Stockholders; and that of the Class III directors at the 2002 Annual
Meeting of Stockholders. At each annual meeting, directors to replace those
whose terms expire at such annual meeting shall be elected to hold office until
the third succeeding annual meeting.
Liquidation rights. Subject to those rights expressly granted to the
holders of Preferred Stock, the holders of Class A Common Stock shall have upon
any liquidation (complete or partial), dissolution or winding up of the Company,
whether voluntary or involuntary, the right to receive, together with the
holders of Common Stock, all assets of the Company remaining after the payment
to the holders of Preferred Stock of any amount which such holders are entitled
to receive in preference to the holders of Common Stock and Class A Common Stock
upon such liquidation, dissolution or winding up of the Company, as provided in
any Certificate of Designations, Powers, Preferences and Rights of the Preferred
Stock adopted by the Board of Directors, and subject to any right the Preferred
Stock may have to participate in the distribution of such assets as provided in
any Certificate of Designations, Powers, Preferences and Rights of the Preferred
Stock; provided, however, that in determining the amount of assets to be
received by the holders of Common Stock and the holders of Class A Common Stock
in the event of such liquidation, dissolution or winding up of the Company,
holders of Class A Common Stock shall be entitled to the amount of assets to
which they would have been entitled had the conversion of Class A Common Stock
into Common Stock taken place immediately prior to such liquidation,
dissolution, or winding up of the Company.
Anti-Takeover Provisions. The Company will be subject to the provisions of
Section 203 of the Delaware General Corporation Law ("DGCL") regulating
corporate takeovers. Section 203 prevents a Delaware corporation, including
those that are listed on the Nasdaq National Market, from engaging, under
certain circumstances, in a "business combination," which includes a merger or
sale of more than 10% of the corporation's assets, with any "interested
stockholder" for a period of three years after the date of the transaction in
which the person became an interested stockholder. An interested stockholder is
a stockholder who owns 15% or more of the corporation's outstanding voting
stock, as well as affiliates and associates of that person. This is the case
unless: (a) the transaction that resulted in the stockholder's becoming an
interested stockholder was approved by the board of directors prior to the date
the interested stockholder attained that status; (b) upon completion of the
transaction that resulted in the stockholder's becoming an interested
stockholder, the interested stockholder owned at least 85% of the voting stock
of the corporation outstanding at the time the transaction began, excluding
those shares owned by (1) persons who are directors and also officers and (2)
employee stock compensation plans in which employee participants do not have the
right to determine confidentially whether shares held subject to the plan will
be tendered in a tender or exchange offer; or (c) on or after the date the
interested stockholder attained that status, the business combination is
approved by the board of directors and authorized at an annual or special
meeting of stockholders by the affirmative vote of at least two-thirds of the
outstanding voting stock that is not owned by the interested stockholder. A
Delaware corporation may "opt out" of Section 203 with an express provision in
its original certificate of incorporation or an express stockholders' amendment
approved by at least a majority of the outstanding voting shares. The Company
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has not "opted out" of the provisions of Section 203. This statute could
prohibit or delay mergers or other takeover or change-in-control attempts with
respect to the Company and, accordingly, may discourage attempts to acquire the
Company.
The Company's certificate of incorporation and bylaws include a number of
provisions that may have the effect of deterring or impeding hostile takeovers
or changes-in-control of management. These provisions include: (a) the Company's
board of directors is classified into three classes of directors nearly equal in
size with staggered three year terms; (b) the board of directors has the
authority to issue one or more series of preferred stock; and (c) stockholders
do not have cumulative voting rights. These provisions may have the effect of
delaying or preventing a change-in-control. The Company's certificate of
incorporation and bylaws provide that the Company will indemnify officers and
directors against losses that they may incur in investigations and legal
proceedings resulting from their services to the Company, which may include
services related to takeover defense measures. Such provisions may have the
effect of preventing changes in the management of the Company.
The Company has a shareholder rights plan that would significantly
discourage, delay or prevent a merger or acquisition. The shareholder rights
plan authorizes the issuance of one right for each share of common stock
outstanding on November 20, 1998 or that becomes outstanding after that date.
Each right represents the right to purchase shares of the Company's Series B
preference stock. The rights become exercisable if a person or group acquires or
makes a tender offer for more than 20% of the Company's outstanding common
stock. Upon the occurrence of such an event, each right entitles the holder
(other than the acquiror) to purchase for $150 the Company's common stock (or,
as may be specified by the Company's board of directors, the Company's Series B
preference stock) or, in some instances, stock of the acquiring entity, that
would be worth $300. In certain instances, the board of directors may also elect
to exchange the rights for shares of common stock. The rights expire on November
20, 2008, unless the Company redeems them earlier, prior to their becoming
exercisable, in the Company's sole discretion.
Until they are exercisable the rights transfer only with the common stock.
The shares to be issued and the number of rights are subject to adjustment by
the board of directors in certain instances.
ITEM 5: INTERESTS OF NAMED EXPERTS AND COUNSEL
A partner at Blackwell Sanders Peper Martin LLP owns 1,610 shares of Class
A Common Stock.
ITEM 6: INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the DGCL authorizes a court to award, or a corporation's
board of directors to grant, indemnity to directors and officers in terms
sufficiently broad to permit such indemnification under certain circumstances
for liabilities, including reimbursement for expenses incurred, arising under
the Securities Act.
As permitted by the DGCL, the Company's Certificate of Incorporation
includes a provision that eliminates the personal liability of each of the
Company's directors for monetary damages for breach of fiduciary duty as a
director, except for liability (1) for any breach of the director's duty of
loyalty to the Company or the Company's stockholders; (2) for acts or omissions
not in good faith or that involve intentional misconduct or a knowing violation
of law; (3) under Section 174 of the DGCL regarding unlawful dividends and stock
purchases; or (4) for any transaction from which the director derived an
improper personal benefit.
As permitted by the DGCL, the Company's Certificate of Incorporation and/or
the Company's Bylaws provide that (1) the Company may indemnify the Company's
directors and officers to the fullest
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extent permitted by the DGCL, subject to certain very limited exceptions; (2)
the Company may indemnify the Company's other employees to the extent that the
Company indemnifies the Company's officers and directors, unless otherwise
required by law, the Company's Certificate of Incorporation, the Company's
Bylaws or agreements; (3) the Company may advance expenses, as incurred, to the
Company's directors, officers and other employees in connection with a legal
proceeding to the fullest extent permitted by the DGCL, subject to certain very
limited exceptions; and (4) the rights conferred in the Company's Bylaws are not
exclusive.
The Company carries insurance that insures the Company's officers and
directors against liability they may incur for actions they take in their
capacity as officers and directors, excluding liability related to alleged
violations of federal or state securities laws. The Company intends to obtain,
prior to the effective date of its registration statement, insurance coverage
for the Company's officers and directors for alleged securities laws violations.
ITEM 7: EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8: EXHIBITS
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4.1 Certificate of Incorporation of Illuminet Holdings, Inc. (incorporated
by reference to Exhibit 3.1 of the Company's Registration Statement
under the Securities Act of 1933 on Form S-1, filed August 23, 1999
and amended on September 16, 1999 and amended on October 7, 1999).
4.2 Amendment to Certificate of Incorporation of Illuminet Holdings, Inc.
(incorporated by reference to Exhibit 3.2 of the Company's
Registration Statement under the Securities Act of 1933 on Form S-1,
filed August 23, 1999 and amended on September 16, 1999 and amended on
October 7, 1999).
4.3 Bylaws of Illuminet Holdings, Inc., as amended on August 20, 1999
(incorporated by reference to Exhibit 3.3 of the Company's
Registration Statement under the Securities Act of 1933 on Form S-1,
filed August 23, 1999 and amended on September 16, 1999 and amended on
October 7, 1999).
4.4 Rights Agreement, dated as of November 20, 1998, by and between
Illuminet Holdings, Inc. and UMB Bank, N.A., as Rights Agent, as
amended on August 2, 1999 (incorporated by reference to Exhibit 4.3 of
the Company's Registration Statement under the Securities Act of 1933
on Form S-1, filed August 23, 1999 and amended on September 16, 1999
and amended on October 7, 1999).
4.5 Amendment No. 2 to Rights Agreement (incorporated by reference to
Exhibit 4.4 of the Company's Registration Statement under the
Securities Act of 1933 on Form S-1, filed August 23, 1999 and amended
on September 16, 1999 and amended on October 7, 1999).
4.6 Illuminet Holdings, Inc. 1997 Equity Incentive Plan, as amended
(incorporated by reference to Exhibit 10.1 of the Company's
Registration Statement under the Securities Act of 1933 on Form S-1,
filed August 23, 1999 and amended on September 16, 1999 and amended on
October 7, 1999).
4.7 Illuminet Holdings, Inc. 1999 Stock Purchase Plan.
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5 Opinion of Blackwell Sanders Peper Martin LLP, counsel to the Company.
23.1 Consent of Blackwell Sanders Peper Martin LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24 Powers of Attorney (included in the signature page to Registration
Statement).
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ITEM 9: UNDERTAKINGS
Rule 415 Offering.
The undersigned Company 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement; Provided,
however, that paragraphs (i) and (ii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
Incorporation of Subsequent Exchange Act Documents by Reference.
The undersigned Company hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Company's
annual 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
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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.
Form S-8 Registration Statement.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lacey, State of Washington, on October 12, 1999.
ILLUMINET HOLDINGS, INC.
By: /s/ Roger H. Moore
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Roger H. Moore
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned directors of
Illuminet Holdings, Inc., hereby severally constitute Roger H. Moore and Daniel
E. Weiss, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, any and all amendments to this Registration
Statement on Form S-8, and generally to do all such things in our names and in
our capacities as directors to enable Illuminet Holdings, Inc. to comply with
the provisions of the Securities Act of 1933, and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated:
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Signature Title Date
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/s/ Theodore D. Berns Director October 12, 1999
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Theodore D. Berns
/s/ Eugene L. Cole Director October 12, 1999
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Eugene L. Cole
/s/ Aubrey E. Judy Director October 12, 1999
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Aubrey E. Judy
/s/ Kenneth L. Lein Director October 12, 1999
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Kenneth L. Lein
/s/ Richard A. Lumpkin Director October 12, 1999
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Richard A. Lumpkin
/s/ James S. Quarforth Director October 12, 1999
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James S. Quarforth
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/s/ G. I. Ross Director October 12, 1999
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G. I. Ross
/s/ James W. Strand Director October 12, 1999
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James W. Strand
/s/ Gregory J. Wilkinson Director October 12, 1999
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Gregory J. Wilkinson
/s/ Roger H. Moore Director, Chief Executive Officer October 12, 1999
- ------------------------ (Principal Executive Officer)
Roger H. Moore
/s/ Daniel E. Weiss
- ------------------------ Chief Financial Officer, Secretary and October 12, 1999
Daniel E. Weiss Treasurer (Principal Financial and
Accounting Officer)
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EXHIBIT 4.7
ILLUMINET HOLDINGS, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
Purposes
Illuminet Holdings, Inc. has established the Plan set forth herein in
order to encourage ownership of its Common Stock by its employees and employees
of its Affiliates, by providing them a convenient means for regular and
systematic purchases on an advantageous basis, thereby increasing their interest
in the Company's success. The Plan is intended to constitute an "employee stock
purchase plan" within the meaning of Section 423(b) of the Internal Revenue Code
of 1986, as amended.
ARTICLE II
Definitions
"Affiliate" means a subsidiary of the Company (including corporations
becoming subsidiaries subsequent to the adoption of the Plan) within the meaning
of Section 424(f) of the Code that has been designated by the Committee as an
Affiliate for purposes of the Plan.
"Board" means the Company's Board of Directors.
"Code" means the Internal Revenue Code of 1986, as amended, and
regulations thereunder.
"Committee" means the Committee appointed by the Board pursuant to
Article VIII hereof.
"Company" means Illuminet Holdings, Inc.
"Effective Date" shall mean October 7, 1999.
"Employee" means a person employed by an Employer.
"Employee Contributions" means contributions in the form of payroll
deductions for payment for stock to be purchased by that Employee as provided by
Section 5.1 hereof.
"Employer" means the Company and any Affiliate that is designated by the
Committee as an employer for purposes of this Plan.
"Option" means a right to purchase Stock granted under Section 4.1.
"Option Period" means the period beginning on the Effective Date and
ending April 6, 2000, the period beginning on the Effective Date and ending
October 6, 2000, the period beginning on the Effective Date and ending April 6,
2001, and the period beginning on the Effective Date and ending October 6, 2001;
provided, however, that for any Employee who does not elect to participate in
the Plan as of the Effective Date or who withdraws from the Plan, and who
subsequently elects to participate in the Plan, the term "Option Period" shall
mean each period beginning on the next succeeding six-month anniversary of the
Effective Date and ending on the remaining ending dates of the Option Periods
set out above. If the date on which an Option Period would
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otherwise end is not a business day, then the Option Period shall end on the
last business day immediately prior thereto.
"Plan" means the Illuminet Holdings, Inc. 1999 Employee Stock Purchase
Plan set forth herein, as amended from time to time.
"Plan Agent" means the brokerage firm which has been appointed Plan
Agent by the Company to administer and maintain the records for the Plan or such
other Plan Agent who is appointed to act in such capacity by the Committee set
forth in Article VIII hereof.
"Stock" means the Common Stock of the Company.
ARTICLE III
Eligibility
An Employee shall be eligible for an Option if he is an Employee of an
Employer regularly scheduled to work 20 hours or more per week, and if he has
been employed by the Employer immediately preceding the first day of the Option
Period. For purposes of determining an Employee's period of employment with the
Employer, such period of employment shall include an Employee's employment with
any business entity, the assets, business or stock of which has been acquired,
in whole or in part, by the Employer through purchase, merger or otherwise. In
addition, an Employee of an Affiliate shall be deemed to have been employed with
an Employer as of the first day of his employment with such Affiliate prior to
its date of affiliation with the Company.
ARTICLE IV
Granting of Options
4.1 Option Periods
On the first day of each Option Period, each Employee who is eligible
for an Option under Article III shall be granted an Option to purchase Stock
from the Company on the last day of each Option Period, by authorizing Employee
Contributions under Article V. Notwithstanding the foregoing, no Employee shall
be eligible for an Option under Article III if such Employee, immediately after
the Option is granted, shall own 5% or more of the total combined voting power
or value of all classes of stock of the Company or of any of its Affiliates,
treating the maximum amount of stock available to him under the Plan for such
Option Period and shares subject to any other option as owned by him and
treating as owned by him shares owned by others to the extent provided in
Section 424(d) of the Code. Any Options granted in an Option Period which are
not exercised on the last day of the last Option Period shall expire as of the
end of the last Option Period.
4.2 Amount of Stock Available
An aggregate of 700,000 shares of Stock shall be available for purchase
under the Plan, subject to adjustment under Section 4.7. To the extent Options
expire unexercised, the Stock subject to such Options shall become available for
subsequent grant. Stock available for purchase under the Plan shall be
authorized but unissued shares or reacquired shares purchased on the open
market.
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4.3 Exercise Price
For each Option granted on the Effective Date, the purchase price per
share shall be 85% of its IPO Price or 85% of its fair market value on the last
day of the Option Period, whichever is lower, subject to adjustment under
Section 4.7. For each Option granted subsequent to the Effective Date, the
purchase price per share shall be the lesser of (i) the greater of 85% of the
IPO Price or 85% of its fair market value on the first day of the Option Period
or (ii) 85% of the fair market value on the last day of the Option Period. IPO
Price means the price at which stock is initially offered to the public on the
Effective Date. Fair market value on any day means the closing price on the
National Association of Securities Dealers Automated Quotation National Market
System (the "NASDAQ-NMS") on such day or, if not traded on such day, on the last
preceding day on which the stock was traded, or, if not traded on the NASDAQ-NMS
on such exchange or market as the Stock from time to time may be traded if such
market or exchange is designated by the Committee as controlling for purposes of
the Plan.
4.4 Nontransferability
Options granted to an Employee are not transferable, and may be
exercised during the Employee's lifetime only by him. Any attempt of assignment,
transfer, pledge, hypothecation or other disposition of any Option contrary to
the provisions of this Plan, and the levy and attachment or any similar
proceedings upon any Option, shall be null and void.
4.5 Board and Stockholder Approval
The Plan was approved by the Board on October 4, 1999. If the Plan is
not approved by the Company's stockholders prior to October 4, 2000, the Plan
shall be null and void.
4.6 Limits on Stock Purchase
Notwithstanding any other provision of this Plan, no Employee may
purchase in any calendar year more than the number of shares equal to 15% of his
annual cash compensation divided by 85% of the purchase price of the Stock, both
determined on the first day of an Option Period. In addition, no Employee may be
granted an Option which permits him to purchase during a calendar year under the
Plan and any other employee stock purchase plan, within the meaning of Section
423 of the Code, shares of the Company and its Affiliates having an aggregate
fair market value, determined at the time such Option is granted, of more than
$25,000.
4.7 Adjustment of Amount of Stock
In the event of change in the number of shares of Stock outstanding by
reason of a Stock dividend, Stock split or other recapitalization, or by reason
of a merger or consolidation or otherwise, the number of shares of Stock
available under this Plan, and the fair market value of such shares at the
beginning of the Option Period during which such change occurs, shall be
adjusted in such manner as the Committee, in its discretion, deems equitable and
appropriate.
ARTICLE V
Payment for Stock
5.1 Employee Contributions
Each Employee may exercise Options granted to him under Section 4.1 by
authorizing Employee Contributions in accordance with instruction from his
Employer. The actual exercise of the Options shall occur on the last day of the
Option Period. Employee Contributions may be authorized beginning with the first
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paycheck issued after the end of the enrollment period for an Option Period in
amounts up to 15%, with a minimum of 1%, of an Employee's cash compensation
(before any other voluntary or required withholdings) paid by the Employer. To
the extent that an Employee's cash compensation, after other voluntary and
required withholdings, is not sufficient to cover the Employee's Contributions
elected under this Plan, the Employee's Contributions under this Plan shall be
reduced. Total deductions may not exceed $25,000 for any calendar year. An
authorization for Employee Contributions hereunder shall remain in effect until
changed under Section 5.3.
5.2 Purchase of Stock
As of the last day of each Option Period the amount of Employee
Contributions during such Option Period for each person who remains an Employee
on such date shall be used to purchase from the Company full shares of Stock,
but no fractional shares shall be purchased. Any Employee contributions
remaining attributable to fractional shares shall be applied to purchase Stock
during the next Option Period, and at the conclusion of the final Option Period
shall be refunded to Employees. Upon the purchase of shares of Stock under an
Option, if requested by the Employee, the Plan Agent shall issue a stock
certificate for such whole shares with a restrictive legend, if applicable.
5.3 Discontinuance or Change
An Employee may discontinue Employee Contributions authorized under
Section 5.1 at any time, or change the rate of payroll deductions to any other
permitted rate as of any six-month anniversary of the Effective Date, within the
time prescribed in rules and regulations adopted under Article VIII in
accordance with instructions from his Employer. Once discontinued hereunder,
Employee Contributions may not be made again until the next succeeding Option
Period.
5.4 Refund of Contributions
If during an Option Period an Employee for whom contributions are being
made under Section 5.1 becomes ineligible to have Stock purchased for him under
Section 5.2, or discontinues his contributions under Section 5.3, his Employee
Contributions during such Option Period shall, at his election, either (a) be
returned without interest to him within 30 days of the date on which the Company
first learns of the Employee's ineligibility or date on which the Employee
informs the Company that he wishes to discontinue contributions, or (b) used to
purchase as many shares as possible at the end of the current Option Period. If
the aggregate amount of Employee Contributions under Section 5.1 during any
Option Period exceeds the purchase price of Stock available under the Plan, the
available Stock shall be allocated to Employees in proportion to the respective
maximum number of shares that can be purchased during the Option Period, and
amounts not used to purchase Stock shall be returned without interest to the
respective Employees as soon as practicable. Any Employee Contributions in
excess of the limits in Section 4.6 shall be returned without interest to an
Employee within 30 days of the date on which the Company first learns of the
existence of any excess contributions.
5.5 Rights of Employees
An Employee shall have no right, title or interest in any Stock subject
to an Option, including no right to receive dividends, until such Stock has been
purchased for him and credited to his account or issued to him.
5.6 Requirements of Securities Laws
No shares of Stock may be issued under any Option until all requirements
of applicable federal, state or other securities laws, and of any securities
exchange or market upon which Stock may be listed, with respect to the purchase,
sale and issuance of the Stock shall have been satisfied. If any action must be
taken because of such requirements, then the purchase, sale and issuance of the
shares shall be postponed until such action can reasonably be taken.
ARTICLE VI
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Applicable Law
Options granted under this Plan shall be construed and shall take effect
in accordance with the laws of the State of Delaware.
ARTICLE VII
Amendment; Termination
7.1 Amendment
The Board may amend this Plan at any time in such manner and to such
extent as it deems appropriate; provided, that no such amendment shall, without
approval of the stockholders of the Company, increase the number of shares of
Stock available for purchase under the Plan, except as provided in Section 4.7.
7.2 Termination
This Plan may be terminated by the Board at any time, in its entirety or
as to any group of Employees. If the Plan is terminated by the Board under this
Article VII on or prior to the last day of the Option Period during which the
Plan is terminated, then, notwithstanding the foregoing, no Stock shall be
purchased as of the last day of such Option Period and each Employee's Employee
Contributions during such Option Period shall be returned without interest to
him within 30 days.
ARTICLE VIII
Administration
A Committee of persons appointed by the Board of Directors shall have
the authority and responsibility for administration of the Plan. The Board may
from time to time appoint or dismiss members of the Committee. The Board may
prescribe, amend and rescind, and the Committee may adopt, rules and regulations
for administration of the Plan, and the Committee shall have full power and
authority to construe and interpret the Plan. A majority of the members of the
Committee shall constitute a quorum and the acts of a majority of the members
present at a meeting or the consent in writing signed by all members of the
Committee shall be the acts of the Committee and shall be final, conclusive and
binding upon all parties, including the Company, its Affiliates, the
stockholders, the Employees and all persons or entities claiming by or through
the Employees. The Board may correct any defect or any omission or reconcile any
inconsistency in the Plan or in any Option granted hereunder in the manner and
to the extent it shall deem desirable. The expenses of the Plan shall be paid
for by the Company.
ARTICLE IX
Limits on Sale of Stock Purchased Under the Plan
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The Plan is intended to provide shares of Common Stock for investment
and not for resale. The Company does not, however, intend to restrict or
influence any employee in the conduct of his or her own affairs. An employee
may, therefore, sell stock purchased under the Plan at any time the employee
chooses, subject to compliance with any applicable federal or state securities
laws and subject to any restrictions to ensure that tax withholding obligations
are satisfied. THE EMPLOYEE ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE
PRICE OF THE STOCK.
ARTICLE X
Application of Funds
The proceeds received by the Company from the sale of Stock pursuant to
Options granted under the Plan will be used for general corporate purposes.
ARTICLE XI
Notice to Company of Disqualifying Disposition
By electing to participate in the Plan, each Employee agrees to notify
the Company in writing immediately after the Employee transfers Stock acquired
under the Plan, if such transfer occurs within two years after the first
business day of the Option Period in which such Stock was acquired or within one
year from the date of purchase of the Stock. Each Employee further agrees to
provide any information about such a transfer as may be requested by the Company
or any subsidiary corporation in order to assist it in complying with the tax
laws. Such dispositions generally are treated as "disqualifying dispositions"
under Sections 421 and 424 of the Code, which have certain tax consequences to
participants and to the Company and its participating subsidiaries.
ARTICLE XII
Withholding of Additional Income Taxes
By electing to participate in the Plan, each Employee acknowledges that
the Company and its participating subsidiaries may be required to withhold taxes
with respect to the Employee's participation in the Plan, and each Employee
agrees that the Company and its participating subsidiaries may deduct additional
amounts from the Employee's compensation, when amounts are added to the
Employee's account, used to purchase Stock or refunded, in order to satisfy such
withholding obligations. Each Employee further acknowledges that when Stock is
purchased under the Plan the Company and its participating subsidiaries may be
required to withhold taxes with respect to all or a portion of the difference
between the fair market value of the Common Stock purchased and its purchase
price, and each Employee agrees that such taxes may be withheld from
compensation otherwise payable to such Employee. It is intended that tax
withholding will be accomplished in such a manner that the full amount of
payroll deductions elected by the Employee under Article V will be used to
purchase Common Stock. However, if amounts sufficient to satisfy applicable tax
withholding obligations have not been withheld from compensation otherwise
payable to any Employee, then, notwithstanding any other provision of the Plan,
the Company may withhold such taxes from the Employee's accumulated payroll
deductions and apply the net amount to the purchase of Stock, unless the
Employee pays to the Company, prior to the exercise date, an amount sufficient
to satisfy such withholding obligations. Each Employee further acknowledges that
the Company and its participating subsidiaries may be required to withhold taxes
in connection with the disposition of stock acquired under the Plan and agrees
that the Company or any participating subsidiary may take whatever action it
considers appropriate to satisfy such withholding requirements, including
deducting from compensation otherwise payable to such Employee an amount
sufficient to satisfy such withholding requirements or conditioning any
disposition of Stock by the Employee upon the payment to the Company or such
subsidiary of an amount sufficient to satisfy such withholding requirements.
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Exhibit 5
LETTERHEAD OF BLACKWELL SANDERS PEPER MARTIN LLP
October 12, 1999
Illuminet Holdings, Inc.
P.O. Box 2909
4501 Intelco Loop, S.E.
Lacey, Washington 98503
Ladies and Gentlemen:
We have acted as counsel to Illuminet Holdings, Inc. a Delaware corporation
(the "Company"), in connection with the proposed offering of up to (i) 3,800,000
shares of common stock of the Company, $.01 par value per share with attached
rights to purchase Series B Participating Cumulative Preference Stock (the
"Common Stock") issuable under the 1997 Equity Incentive Plan, as amended (the
"Equity Incentive Plan") (ii) 700,000 shares of Common Stock issuable under the
1999 Stock Purchase Plan (the "Stock Purchase Plan"), and (iii) 427,725 shares
of class A common stock of the Company, $.01 par value per share with attached
rights to purchase Series B Participating Cumulative Preference Stock (the
"Class A Common Stock") issuable under the Equity Incentive Plan.
In connection with the foregoing, we have examined such documents,
corporate records and other instruments as we have deemed necessary or
appropriate in connection with this opinion. Based upon and subject to the
foregoing, we are of the opinion that when such shares of Common Stock and Class
A Common Stock have been issued and sold by the Company in accordance with the
terms of the Equity Incentive Plan and the Stock Purchase Plan, such shares will
constitute legally issued, fully paid and non-assessable shares of the Company.
We consent to the filing of this opinion as an exhibit to the registration
statement pursuant to which such shares will be sold and to the reference to us
in such registration statement.
Very truly yours,
/s/ Blackwell Sanders Peper Martin LLP
Blackwell Sanders Peper Martin
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Exhibit 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Illuminet Holdings, Inc. 1997 Equity Incentive Plan and
Illuminet Holdings, Inc. 1999 Stock Purchase Plan, of our report dated February
12, 1999, except Note 12, as to which the date is October 7, 1999 with respect
to the consolidated financial statements of Illuminet Holdings, Inc. included in
the final Prospectus filed with the Securities and Exchange Commission dated
October 7, 1999.
Seattle, Washington /s/ Ernst & Young LLP
October 12, 1999 ---------------------
ERNST & YOUNG LLP
