<PAGE>
As Filed with the Securities and Exchange Commission on November 8, 1996
Registration No. 333-3842
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________
USCS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-1727009
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2969 Prospect Park Drive
Rancho Cordova, California 95670
(Address of Principal Executive Offices) (zip code)
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
JAMES C. CASTLE, Ph.D.
Chief Executive Officer
USCS INTERNATIONAL, INC.
2969 Prospect Park Drive
Rancho Cordova, California 95670-6184
(Name and address of agent for service)
916-636-4500
(Telephone number, including area code, of agent for service)
With a copy to:
GILLES S. ATTIA, ESQ.
Graham & James LLP
400 Capitol Mall, Suite 2400
Sacramento, California 95814
(916) 558-6700
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===============================================================================
CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share(1) price(1) fee
===============================================================================
Common Stock, par
value $0.05 and
related Preferred
Stock Purchase Rights
(the ""Rights'')(2). . . . 200,000 Shares $17.07 $3,414,000 $1,034.55
===============================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of
1933 based on average of the high and low prices of a share of Common
Stock of the Company reported for trading on the Nasdaq National
Market System on November 7, 1996.
(2) The Rights are attached to and trade with the Common Stock.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have heretofore been filed by USCS
International, Inc. (the "Registrant" or the "Company") with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), are incorporated by reference herein and
shall be deemed to be a part hereof:
(a) Registrant's Prospectus filed with the Commission on June
21, 1996 pursuant to Rule 424(b)(4) of the Securities Act of
1933.
(b) Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 30, 1996 and September 30, 1996, filed
pursuant to Section 15(d) of the 1934 Act.
(c) The description of Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission
on June 18, 1996, by which the shares of Common Stock of the
Company were registered under Section 12 of the 1934 Act.
All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and made a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The firm of Graham & James LLP has given an opinion as to the
securities being registered pursuant to this Registration Statement. Certain
attorneys of Graham & James LLP, counsel to the Registrant, own an aggregate
of 5,845 shares of the Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a
court to award, or a corporation's Board of Directors
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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 1933 Act.
The Company's First Amended and Restated Certificate of
Incorporation and Bylaws provide for expanded indemnification of directors
and officers of the Company and limits the liability of directors of the
Company. The Bylaws provide that the Company shall indemnify each person who
is or was an officer or director of the Company, or is or was serving as an
officer, director, employee or agent of any other corporation, partnership,
joint venture, trust or other enterprise at the request of the Company,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement (if such settlement is approved in advance by the Company,
which approval shall not be unreasonably withheld) actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if
he or she acted in good faith and in a manner he or she believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. Such right to indemnification includes the right to
advancement of expenses incurred by such person prior to final disposition of
the proceeding, provided that such director or officer shall provide the
Company with an undertaking to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision that such person is not
entitled to be indemnified for such expenses. The Bylaws also provide that
the Company shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by
or in the right of the Company to procure a judgment in its favor by reason
of the fact that he or she is or was a director, officer, employee or agent
of the Company, or is or was serving at the request of the company as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit, if he or she acted in
good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Company, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the Company unless and only
to the extent that the Delaware Court of Chancery or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Delaware Court of Chancery or such other court shall deem proper.
No person shall be indemnified by the Court for any expenses or amounts paid
in settlement with respect to any action to recover short-swing profits under
Section 16(b) of the Securities Exchange Act of 1934, as amended. The First
Amended and Restated Certificate of Incorporation provides that if the
Delaware General
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Corporation Law is amended to further eliminate or limit the personal
liability of directors, then the liability of a director of the Company shall
be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended. The Company has also entered into
agreements to indemnify its officers and directors in addition to the
indemnification provided for in the Company's Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with this Registration Statement.
Number Description of Exhibit
------ ----------------------
4.1 First Amended and Restated Certificate of Incorporation
of the Company dated April 23, 1996.*
4.2 Certificate of Designation of Rights, Preferences and
Privileges of Series A Stock.*
4.3 Shareholder Rights Agreement dated December 30, 1988
among U.S. Computer Services, Westar Capital and
Enterprise Partners.*
4.4 Stockholder Rights Plan between the Company and
Trustee.*
4.5 By-laws of the Company.*
5.1 Opinion of Graham & James LLP regarding legality of
the shares of Common Stock.*
23.1 Consent of Graham & James LLP (incorporated by
reference to Exhibit 5.1 hereof).
23.2 Consent of Price Waterhouse LLP.
24.1 Power of Attorney (see page II-6).
99.1 Employee Stock Purchase Plan, as amended.
- -------------------
* Incorporated by reference to Registrant's Registration Statement on
Form S-1, Registration No. 333-3842, filed pursuant to Section 5 of
the Securities Act of 1933, as amended.
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The Registrant hereby undertakes that the Registrant has submitted
the U.S. Computer Services Stock Ownership Plan ("ESOP") and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely manner and has
made or will make all changes required by the IRS in order to qualify the
ESOP.
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 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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs 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 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 to be the initial bona fide offering.
(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.
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(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 report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in
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 Delaware Corporation
Law, the First Amended and Restated Certificate of Incorporation of the
Registrant, the Bylaws of Registrant and the indemnification agreements
described above in Item 6, 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 Registrant of expenses incurred or paid by a director, officer
or controlling person of Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as
expressed in the 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
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Rancho Cordova, County of Sacramento, State of
California, on the 8th day of November, 1996.
USCS INTERNATIONAL, INC.
By: /s/ James C. Castle
--------------------------------------
James C. Castle,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints James C. Castle and
Douglas L. Shurtleff, and each of them, his true and lawful attorneys-in-fact
and agents, each with full power of substitution, each with power to act
alone, to sign and execute on behalf of the undersigned any amendment or
amendments to this Registration Statement and to perform any acts necessary
in order to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, and each
of the undersigned does hereby ratify and confirm all that said
attorneys-in-fact and agents, or their or his substitutes, shall do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates stated.
Dated: November 8, 1996 /s/ James C. Castle
-----------------------------------------
James C. Castle
Chief Executive Officer and
Chairman of the Board of Directors
(Principal Executive Officer)
Dated: November 8, 1996 /s/ George L. Argyros, Sr.
-----------------------------------------
George L. Argyros, Sr.
Director
Dated: November 8, 1996 /s/ George M. Crandell, Jr.
-----------------------------------------
George M. Crandell, Jr.
Director
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Dated: November 8, 1996 /s/ Charles D. Martin
-----------------------------------------
Charles D. Martin
Director
Dated: November 8, 1996 /s/ Michael F. McGrail
-----------------------------------------
Michael F. McGrail
Director
Dated: November 8, 1996 /s/ Larry W. Wangberg
-----------------------------------------
Larry W. Wangberg
Director
Dated: November 8, 1996 /s/ Douglas L. Shurtleff
-----------------------------------------
Douglas L. Shurtleff
Senior Vice-President of Finance
and Chief Financial Officer
(Principal Financial Officer)
Dated: November 8, 1996 /s/ Arthur O. Hawkins
-----------------------------------------
Arthur O. Hawkins
Vice-President and Treasurer
(Principal Accounting Officer)
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INDEX TO EXHIBITS
Number Description of Exhibit
- ------ ----------------------
4.1 First Amended and Restated Certificate
of Incorporation of the Company dated
April 23, 1996.*
4.2 Certificate of Designation of Rights,
Preferences and Privileges of Series A
Stock.*
4.3 Shareholder Rights Agreement dated
December 30, 1988 among U.S. Computer
Services, Westar Capital and
Enterprise Partners.*
4.4 Stockholder Rights Plan between the
Company and Trustee.*
4.5 By-laws of the Company.*
5.1 Opinion of Graham & James LLP regarding
legality of the shares of Common Stock.*
23.1 Consent of Graham & James LLP
(incorporated by reference to
Exhibit 5.1 hereof).
23.2 Consent of Price Waterhouse LLP.
24.1 Power of Attorney (see page II-6).
99.1 Employee Stock Purchase Plan.
- -------------------
* Incorporated by reference to Registrant's Registration Statement on
Form S-1, Registration No. 333-3842, filed pursuant to Section 5 of
the Securities Act of 1933, as amended.
<PAGE>
EXHIBIT 5.1
[LETTERHEAD]
November 8, 1996
USCS International, Inc.
2969 Prospect Park Drive
Rancho Cordova, California 95670
Ladies and Gentlemen:
You have requested our opinion as counsel for USCS International, Inc., a
Delaware corporation (the "Company"), in connection with the registration
under the Securities Act of 1933, as amended (the "Securities Act"), and the
Rules and Regulations promulgated thereunder, of an aggregate of 200,000
shares (the "Shares") of the Company's common stock, par value $0.05 per
share (the "Common Stock"), issuable in connection with the Company's
Employee Stock Purchase Plan (the "Plan").
This opinion is rendered pursuant to Item 601(b)(5)(i) of Regulation S-K
promulgated under the Securities Act.
For purposes of this opinion, we have examined the Registration Statement on
Form S-8 to be filed with the Commission on or about November 8, 1996 (the
"Registration Statement"). We have also been furnished with and have
examined originals or copies, certified or otherwise identified to our
satisfaction, of all such records of the Company, agreements and other
instruments, certificates of officers and representatives of the Company,
certificates of public officials and other documents as we have deemed it
necessary as a basis for the opinions hereafter expressed. As to questions
of fact material to such opinions, we have, where relevant facts were not
independently established, relied upon certifications by principal officers
of the Company. We have made such further legal and factual examination and
investigation as we deem necessary for purposes of rendering the following
opinions.
In our examination we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the correctness of facts set forth in
certificates, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified or photostatic copies, and the authenticity of the originals of
such copies. We have also assumed that such documents have each been duly
authorized, properly executed and delivered by each of the parties thereto
other than the Company.
We are members of the bar of the State of California. Our opinions below are
limited to the laws of the State of California and the federal securities
laws of the United States.
<PAGE>
USCS International, Inc.
November 8, 1996
Page 2
Based on the foregoing, it is our opinion that all of the Shares, when issued
and delivered against payment in full of the respective exercise prices in
accordance with the terms of the Plan and agreements governing such options,
will be legally and validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement on Form S-8.
Very truly yours,
/s/ Graham & James LLP
GRAHAM & JAMES LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 4, 1996, except for Note 13
which is dated as of June 20, 1996, appearing on page F-2 of USCS
International, Inc.'s Registration Statement on Form S-1 for the three years
ended December 31, 1995.
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
Sacramento, California
November 8, 1996
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USCS INTERNATIONAL, INC.
EMPLOYEE STOCK PURCHASE PLAN
as amended through November 1, 1996
-----------------------------------
The following constitutes the EMPLOYEE STOCK PURCHASE PLAN (the "Plan") of USCS
International, Inc. (the "Company").
1. PURPOSE. The purpose of the Plan is to provide employees of the Company
and its majority-owned U.S. subsidiaries with an opportunity to purchase Common
Stock of the Company through payroll deductions. The Plan is intended to
qualify as an "Employee Stock Purchase Plan" under the provisions of Sections
421 and 423 of the Internal Revenue Code of 1986, as amended (the "Code"). It
is the intention of the Company that the Plan shall not constitute a plan for
any purpose or provision under the Employee Retirement Income Security Act of
1974, as amended (29 U.S.C.A. SECTION 1001 et seq.).
2. DEFINITIONS.
(a) "COMPENSATION" means total wages and other compensation paid to an
Employee by his Employer during the Plan Year and reportable as compensation on
the Employee's Wage and Tax Statement (W-2), but excluding bonuses, taxable
perquisites, relocation assistance payments, and payments made to or on behalf
of an Employee to reimburse him for additional costs and expenses associated
with working outside the United States, plus the amount of any elective deferral
contributions made in accordance with Code sections 125, 129, 401(k), 402(a)(8),
or 402(h) of the Code.
(b) "EMPLOYEE" means any person who (as of the date of payroll
withholding under the Plan), is an employee of the Company (or of its Parent or
U.S. Subsidiary if such employees are to be participants in the Plan). A leased
employee, as described in Section 414(n) of the Internal Revenue Code, is not an
Employee for purposes of this Plan.
(c) "PARENT" means any corporation (other than the Company) in an unbroken
chain of corporations ending with the Company if, at the time of the purchase of
shares by a participant in the Plan, each of the corporations other than the
Company owns stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
(d) "U.S. SUBSIDIARY" means any corporation (other than the Company)
incorporated in one of the United States of America in an unbroken chain of
corporations beginning with the Company if, at the time of the purchase of
shares by a participant in the Plan, each of the corporations other than the
last corporation in the unbroken chain owns stock possessing fifty percent (50%)
or more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
3. ELIGIBILITY.
(a) Any employee, as defined in Section 2(b), shall be eligible to
participate in the Plan on the first day of the first month following date of
hire.
(b) Notwithstanding any provisions of the Plan to the contrary, no
employee shall be permitted to participate in the Plan: (i) if, immediately
after any purchase of shares under the Plan, such employee would own, directly
or indirectly, shares (including shares issuable upon the exercise of
outstanding options to purchase stock) possessing five percent (5%) or more of
the total combined voting power or value of all classes of shares of the Company
or of its Parent or Subsidiary; or (ii) if such employee's rights to purchase
shares under all employee stock purchase plans of the Company or of its Parent
or Subsidiary will accrue at a rate that exceeds $25,000 of the fair market
value of such shares (determined at the time such purchase option is granted)
for each calendar year in which such right to purchase is
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outstanding at any time.
4. PURCHASE PERIODS. The Plan shall be implemented by calendar quarter
purchase periods during the term of the Plan (each, a "Purchase Period"). The
Company's Board of Directors shall designate the commencement date of the
initial Purchase Period. Thereafter, each Purchase Period shall correspond to a
calendar quarter until otherwise determined by the Board of Directors or the
committee appointed to administer the Plan in accordance with Section 13.
5. PARTICIPATION.
(a) An eligible employee may become a participant in the Plan by
completing an ESPP enrollment form authorizing payroll deductions on the form
provided by the Company and filing it with the Company's benefits office not
less than ten (10) days prior to the commencement of any pay day. Once
enrolled, an employee will continue to participate until he withdraws from the
Plan or his participation is terminated, as provided in Section 10.
(b) Payroll deductions for a participant shall commence on the first pay
day following the receipt of the ESPP enrollment form pursuant to Section 5(a)
above, and shall end upon the participant's withdrawal from the Plan or the
termination of the participant's participation in the Plan, as provided in
Section 10.
(c) From time to time, as necessary, the Board of Directors of the Company
(or the administrative committee for the Plan) may meet with representatives of
any corporation which becomes a Parent or Subsidiary subsequent to the Plan's
adoption date to determine whether and to what extent the employees of such
Parent or Subsidiary shall be eligible to participate in the Plan.
6. PAYROLL DEDUCTIONS.
(a) At the time a participant files his ESPP enrollment form, he shall
elect to have payroll deductions in whole percentages made on each payday during
the Purchase Period at a rate not less than two percent (2%) and not exceeding
ten percent (10%) of the compensation which he receives on such payday, and the
aggregate of such payroll deductions during the Purchase Period shall not exceed
ten percent (10%) of his aggregate compensation during said Purchase Period,
excluding the effect of any increase in the rate of compensation which becomes
effective during the Purchase Period.
(b) All payroll deductions made by a participant shall be applied to
purchase shares on the next share purchase date as set forth in Section 8. A
participant may not make any additional payments into the Plan.
(c) A participant may discontinue his participation in the Plan as
provided in Section 10, or may change the rate of his payroll deductions (within
the limitation set forth in subparagraph (a) above) by completing or filing with
the Company a new ESPP enrollment form for payroll deduction.
7. PURCHASE PRICE.
(a) Each eligible employee participating in the Plan shall have the right
to purchase (at the per share price set forth below) up to the number of shares
of the Company's Common Stock determined by dividing each employee's accumulated
payroll deductions for the Purchase Period of his annual compensation as of
the date of the commencement of the applicable Purchase Period) by the lower of
ninety-five percent (95%) of the fair market value of a share of the Company's
Common Stock on (i) the
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first business day of such Purchase Period or (ii) the last business day of such
Purchase Period, subject to the limitations set forth in Sections 3(b) and 12.
Fair market value of a share of the Company's Common Stock shall be determined
as provided in subsection (b) below.
(b) The fair market value of the Company's Common Stock on any date shall
be determined by the Company's Board of Directors based upon such factors as
they deem relevant; provided, however, that where there is a public market for
the Common Stock, the fair market value per share shall be the average of the
last reported bid and asked prices of the Common Stock, as reported in THE WALL
STREET JOURNAL (or, if not so reported, as otherwise reported by the National
Association of Securities Dealers Automated Quotation (NASDAQ) System) or, in
the event the Common Stock is listed on a national securities exchange (within
the meaning of Section 6 of the Exchange Act) or the NASDAQ National Market
System, the fair market value per share shall be the closing price on such
exchange, as reported in THE WALL STREET JOURNAL, on the date of determination.
8. PURCHASE OF SHARES. Unless a participant withdraws from the Plan as
provided in Section 10, his purchase of shares in any Purchase Period will be
automatic as of the first business day of the next Purchase Period and the
maximum number of shares will be purchased for him at the applicable price
with the accumulated payroll deductions in his account. During the
participant's lifetime, only the participant may purchase shares under the Plan.
9. HOLD PERIOD; DELIVERY OF SHARE CERTIFICATES.
(a) Shares of the Company's Common Stock issued pursuant to this Plan
shall be subject to a six (6) month hold period commencing on the date that such
shares are issued by the Company (the "Hold Period"). No participant may sell,
assign, dispose of by gift or otherwise transfer any shares of the Company's
Common Stock issued pursuant to this Plan prior to the termination of the Hold
Period.
(b) The Company shall maintain a record of all shares issued to
participants in the Plan. Upon the termination of the applicable Hold Period, a
participant in the Plan may request in writing addressed to the director of
benefits of the Company a share certificate for shares of Common Stock issued to
such participant and no longer subject to a Hold Period. Upon receipt of such
written request, the Company shall arrange the delivery to such participant of a
certificate representing the shares purchased by such participant. The
participant will be responsible for paying any administrative fees for
certificate issuance.
10. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) A participant may withdraw from the Plan at any time by giving written
notice to the Company. After receipt of his notice of withdrawal, his
participation in the Plan will be automatically terminated, and no further
payroll deductions for the purchase of shares will be made under the Plan. .
All of the participant's payroll deductions credited to his account prior to
withdrawal will be used to purchase shares at the next share purchase date and
will not be paid to him in cash.
(b) Upon termination of the participant's employment for any reason,
including retirement or death, his participation in the Plan will be
automatically terminated. All of the participant's payroll deductions credited
to his account prior to such termination will be used to purchase shares at the
next share purchase date and will not be paid in cash.
(c) A participant's withdrawal from the Plan will not have any effect upon
his eligibility to participate in the Plan at a future date or in any similar
plan which may hereafter be adopted by the Company, so long as the participant
is otherwise eligible to participate in such plan.
11. INTEREST. No interest shall accrue on the payroll deductions of a
participant in the Plan.
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12. STOCK.
(a) The maximum number of shares of the Company's Common Stock which shall
be made available for sale under the Plan shall be two hundred thousand
(200,000) shares, subject to adjustment upon changes in capitalization of the
Company as provided in Section 18. If the total number of shares which would
otherwise be subject to purchase by participants pursuant to Section 7(a)
exceeds the number of shares then available under the Plan (after deduction of
all shares which have been purchased 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, provided that no participant shall be
permitted to purchase more shares than the maximum number of shares allowable to
such participant as calculated pursuant to the provisions of Section 7(a)
hereof. In such event, the Company shall give written notice of such reduction
of the number of shares available for purchase to each employee affected thereby
and shall similarly reduce the rate of payroll deductions, if necessary.
(b) The participant will have no interest or voting right in shares to be
purchased by a participant under the Plan until such shares have been issued by
the Company.
(c) Shares 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. The Plan shall be administered by the Board of Directors
of the Company or a committee appointed by the Board. The administration,
interpretation or application of the Plan by the Board or its committee shall be
final, conclusive and binding upon all participants. Members of the Board of
Directors or its committee who are eligible employees are permitted to
participate in the Plan.
14. Designation of Beneficiary.
(a) 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 prior to delivery to him 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.
(b) Such designation of beneficiary may be changed by the participant at
any time by written notice. 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.
15. TRANSFERABILITY. Neither payroll deductions credited to a participant's
account nor any rights with regard to the receipt of 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 pursuant to a qualified
domestic relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act, or the rules thereunder or as provided in
Section 14) 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 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.
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17. REPORTS. Individual accounts will be maintained for each participant in
the Plan. Statements of account will be given to participating employees
periodically.
18. CHANGES IN CAPITALIZATION. If any shares are purchased under this Plan
subsequent to any stock dividend, stock split, spin-off, recapitalization,
merger, combination, reclassification, exchange of shares or the like, occurring
after such shares were purchased but prior to delivery of the stock certificate
therefor, as a result of which shares of any class shall be issued in respect of
the outstanding shares, or shares shall be changed into the same, whether a
different number of the same or another class or classes, the number of shares
to be issued by the Company and the purchase price for such shares shall be
appropriately adjusted by the Company, as necessary to maintain the equality of
rights and privileges afforded participants and shares issuable under the Plan,
provided that, in any transaction described in Section 424 of the Code, the Plan
shall be administered in such a manner as to satisfy the provisions of Section
424 and the regulations thereunder; and provided further, that any increase in
the aggregate number of shares subject to the Plan (other than an increase
merely reflecting a change in capitalization such as a stock dividend or stock
split) must be approved by the Company's stockholders in accordance with Section
22 hereof.
19. AMENDMENT OR TERMINATION. The Board of Directors of the Company may at any
time terminate, modify, extend or renew the Plan or any rights to purchase
shares granted hereunder; provided that no such modification, extension or
renewal be made without prior approval of the stockholders of the Company if
such amendment would:
(a) Increase the number of shares reserved under the Plan;
(b) Permit payroll deductions at a rate in excess of ten percent (10%) of
the participant's compensation rate;
(c) Materially modify the eligibility requirements; or
(d) Materially increase the benefits which may accrue to participants
under the Plan.
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 at the location, or by
the person, designated by the Company for the receipt thereof.
21. TERM OF PLAN. The Plan shall become effective upon the earlier to occur of
its adoption by the Board of Directors or its approval by the stockholders of
the Company as described in Section 22. It shall continue in effect for a term
of twenty (20) years unless sooner terminated pursuant to Section 19.
22. APPROVAL OF STOCKHOLDERS. The Plan and any increase in the number of
shares reserved under the Plan must be approved by the stockholders of the
Company within twelve (12) months before or after the date the Plan has been
adopted or an increase in the number of shares reserved under the Plan has been
approved by the Board of Directors. Such stockholder approval shall be by the
affirmative vote of a majority of the capital stock of the Company present or
represented and entitled to vote at a duly held meeting or by the written
consent of the holders of a majority of the outstanding capital stock of the
Company entitled to vote. Any purchases of shares pursuant to the Plan before
stockholder approval is obtained must be rescinded if stockholder approval is
not obtained within twelve (12) months after the Plan is adopted. Such shares
shall not be counted in determining whether such approval is obtained.
- --END OF PLAN--
