As filed with the Securities and Exchange Commission on November 9, 1999
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
UNIGRAPHICS SOLUTIONS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2728894
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
13736 Riverport Drive
Maryland Heights, Missouri 63043-4826
(Address, including zip code, of principal executive offices)
UNIGRAPHICS SOLUTIONS INC. 1999 BROAD-BASED INCENTIVE PLAN
(Full Title of the Plan)
John J. Mazzola
President and Chief Executive Officer
Unigraphics Solutions Inc.
13736 Riverport Drive, Maryland Heights, Missouri 63043-4826
(314) 344-5900
(Name, address and telephone number,
including area code, of agent for service)
----------------------
Please Send Copies of Communications to:
R. Randall Wang, Esq.
Bryan Cave LLP
One Metropolitan Square, Suite 3600
St. Louis, Missouri 63102-2750
(314) 259-2000
Approximate date of commencement of the proposed sale of the securities:
As soon as practicable after the effective date of this Registration Statement.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------- ---------------------- ----------------------- ----------------------- -----------------------
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Interest(1) Price (1)(2) Registration Fee
- -------------------------- ---------------------- ----------------------- ----------------------- -----------------------
- -------------------------- ---------------------- ----------------------- ----------------------- -----------------------
Class A Common Stock, 750,000 shares $24.3668 $18,275,156.25 $5,080.00
$0.01 par value per
share(2)
- -------------------------- ---------------------- ----------------------- ----------------------- -----------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee.
Proposed maximum offering price represents (i) the weighted average
exercise price per share based on the exercise price of options already
granted and (ii) the average of the high and low prices of the Class A
Common Stock as reported on the New York Stock Exchange on November 3,
1999 with respect to securities for which options have not been granted,
in accordance with Rules 457(c) and 457(h) of the Securities Act of
1933, as amended.
(2) This Registration Statement also covers such additional shares of Class A
Common Stock as may be issuable pursuant to the antidilution provisions
of the plan.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
As permitted by the rules of the Securities and Exchange Commission,
this Registration Statement omits the information specified in Part I of Form
S-8. The documents containing the information specified in Part I of this
Registration Statement will be sent or given to eligible employees as specified
by Rule 428(b) promulgated under the Securities Act of 1933, as amended (the
"Securities Act"). Such documents are not being filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424
promulgated under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by Unigraphics Solutions Inc.
with the Securities and Exchange Commission (the "Commission") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and are
incorporated herein by reference:
- The Company's Annual Report on Form 10-K for the year ended
December 31, 1998.
- The Company's Quarterly Reports on Form 10-Q for the three
months ended March 31, 1999 and June 30, 1999.
- The description of the Class A Common Stock as contained in
the Company's Registration Statement on Form 8-A dated May 21,
1998, which incorporates by reference the section entitled
"Description of Capital Stock" contained in the Prospectus
filed as part of the Company's Registration Statement on Form
S-1, as amended (File No. 333-48261).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act (prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold) shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a document
incorporated, or deemed to be incorporated, by reference herein, shall be deemed
to be modified or superseded for purposes hereof to the extent that a statement
contained herein or in any other subsequently filed document modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part hereof.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
J. Randall Walti, General Counsel of the Company, has rendered an
opinion as to the legality of the Class A Common Stock being registered hereby.
Mr. Walti owns 201 shares of Class A Common Stock and options to acquire 25,000
shares of Class A Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides that a Delaware corporation may indemnify directors and
officers and certain other individuals against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by any such person in connection with any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of
the corporation) in which such person is involved because such person is a
director or officer of the corporation, if such person acted in good faith and
<PAGE>
in a manner that such person reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that such person's conduct was
unlawful. No indemnification shall be made to an officer or director or other
qualified individual if such person shall have been adjudged to be liable to the
corporation unless such person acted in good faith and in a manner that such
person reasonably believed to be in or not opposed to the best interest of the
corporation and only to the extent the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought, determined that
despite the adjudication of liability such person is fairly and reasonably
entitled to such indemnification. If such person is successful on the merits or
otherwise in defense of any action, Section 145 of the DGCL provides that such
person shall be indemnified against expenses including attorneys' fees actually
and reasonably incurred by that person in connection therewith. Section
102(b)(7) of the DGCL provides that the liability of a director may not be
limited or eliminated for the breach of such director's duty of loyalty to the
corporation or its stockholders, for such director's intentional acts or
omissions not in good faith, for such director's concurrence in or vote for an
unlawful payment of a dividend or unlawful stock purchase or redemption or for
any improper personal benefit derived by the director from any transaction.
The Company's Certificate of Incorporation provides that a director
shall not be personally liable for monetary damages to the Company or its
stockholders for breach of fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for paying a
dividend or approving a stock repurchase in violation of Section 174 of the
DGCL, or (iv) for any transaction from which the director derived an improper
personal benefit. Any amendment or repeal of such provision shall not adversely
affect any right or protection of a director existing under such provision for
any act or omission occurring prior to such amendment or repeal.
The Company's Bylaws provide that the Company will indemnify any person
who was or is a party (or is threatened to be made a party) to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she is or was
or has agreed to serve at the request of the Company as a director or officer of
the Company, or is or was serving or has agreed to serve at the request of the
Company as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity. The Company's Bylaws further provide
that the Company may indemnify any person who was or is a party (or is
threatened to be made a party) to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was or has agreed to become an employee
or agent of the Company, or is or was serving or has agreed to serve at the
request of the Company as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity.
The indemnification referred to in the preceding paragraph will be from
and against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by the indemnitee or on his
or her behalf in connection with such action, suit or proceeding and any appeal
therefrom. However, such indemnification will only be provided if the indemnitee
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 and, with respect to any
criminal action, suit or proceeding, had no reasonable cause to believe his or
her conduct was unlawful. Notwithstanding the preceding two sentences, in the
case of an action or suit by or in the right of the Company to procure a
judgment in its favor (a) the indemnification referred to in this paragraph will
be limited to expenses (including attorneys' fees) actually and reasonably
incurred by such person in the defense or settlement of such action or suit, and
(b) no indemnification will be made in respect of any claim, issue or matter as
to which such person will 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) determines 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) deems proper. To the
extent that a director, officer, employee or agent of the Company has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to above or in defense of any claim, issue or matter
therein, he or she will be indemnified against expenses (including attorneys'
fees) actually and reasonable incurred by him or her in connection therewith.
Expenses incurred by a director or officer in defending a civil or criminal
action, suit or proceeding will be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
II-2
<PAGE>
or on behalf of the director or officer to repay such amount if it will
ultimately be determined that he or she is not entitled to be indemnified by the
Company. Such expenses incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
The indemnification described in the preceding two paragraphs will not
be deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding such office, will continue as to a
person who has ceased to be a director, officer, employee or agent and will
inure to the benefit of the heirs, executors and administrators of such a
person.
The Company will maintain insurance on behalf of any person who is or
was or has agreed to serve at the request of the Company as a director or
officer of the Company, or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against, and incurred by, him or
her or on his or her behalf in any such capacity, or arising out of his or her
status as such, whether or not the Company would have the power to indemnify him
or her against such liability under the provisions of the Bylaws; provided,
however, such insurance must be available on acceptable terms, which
determination shall be made by a vote of a majority of the Board of Directors.
The Company has entered into Indemnification Agreements (the
"Indemnification Agreements") with its directors and certain of its officers
(the "Indemnitees"). Under the terms of the Indemnification Agreements, the
Company has generally agreed to indemnify, and advance expenses to, each
Indemnitee to the fullest extent permitted by applicable law on the date of such
agreements and to such greater extent as applicable law may thereafter permit.
In addition, the Indemnification Agreements contain specific provisions pursuant
to which the Company has agreed to indemnify each Indemnitee (i) if such person
is, by reason of his or her status as a director, nominee for director, officer,
agent or fiduciary of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise with which such
person was serving at the request of the Company (any such status being
hereinafter referred to as a "Corporate Status"), made or threatened to be made
a party to any threatened, pending or completed action, suit, arbitration,
alternative dispute resolution mechanism, investigation or other proceeding
(each, a "Proceeding"), other than a Proceeding by or in the right of the
Company, (ii) if such person is, by reason of his or her Corporate Status, made
or threatened to be made a party to any Proceeding brought by or in the right of
the Company to procure a judgment in its favor, except that no indemnification
shall be made in respect of any claim, issue or matter in such Proceeding as to
which such Indemnitee shall have been adjudged to be liable to the Company if
applicable law prohibits such indemnification (unless and only to the extent
that a court shall otherwise determine), (iii) against expenses actually and
reasonably incurred by such person or on his or her behalf in connection with
any Proceeding to which such Indemnitee was or is a party by reason of his or
her Corporate Status and in which such Indemnitee is successful, on the merits
or otherwise, (iv) against expenses actually and reasonably incurred by such
person or on his or her behalf in connection with a Proceeding to the extent
that such Indemnitee is, by reason of his or her Corporate Status, a witness or
otherwise participates in any Proceeding at a time when such person is not a
party in the Proceeding and (v) against expenses actually and reasonably
incurred by such person in any judicial adjudication of or any award in
arbitration to enforce his or her rights under the Indemnification Agreements.
Furthermore, under the terms of the Indemnification Agreements, the
Company has agreed to pay all reasonable expenses incurred by or on behalf of an
Indemnitee in connection with any Proceeding, whether brought by or in the right
of the Company or otherwise, in advance of any determination with respect to
entitlement to indemnification and within 15 days after the receipt by the
Company of a written request from such Indemnitee for such payment. In each of
the Indemnification Agreements, the Indemnitee has agreed that he or she will
reimburse and repay the Company for any expenses so advanced to the extent that
it shall ultimately be determined that he or she is not entitled to be
indemnified by the Company against such expenses. The Indemnification Agreements
also include provisions that specify the procedures and presumptions which are
to be employed to determine whether an Indemnitee is entitled to indemnification
thereunder. In some cases, the nature of the procedures specified in the
Indemnification Agreements varies depending on whether there has occurred a
"Change in Control" (as defined in the Indemnification Agreements) of the
Company.
II-3
<PAGE>
The above discussion of the Company's Certificate of Incorporation and
Bylaws, the Indemnification Agreements and Sections 102(b)(7) and 145 of the
DGCL is not intended to be exhaustive and is respectively qualified in its
entirety by such documents and statute.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index filed herewith.
Item 9. Undertakings.
The undersigned registrant hereby undertakes as follows:
(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;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by the
foregoing paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Maryland Heights, State of Missouri on November
8, 1999.
UNIGRAPHICS SOLUTIONS INC.
By: /s/ John J. Mazzola
------------------------
John J. Mazzola
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated below.
Name Title Date
/s/ Jeffrey M. Heller Chairman of the Board of November 8, 1999
- ------------------------ Directors
Jeffrey M. Heller
/s/ Richard L. deNey Vice Chairman of the Board of November 8, 1999
- ------------------------ Directors
Richard L. deNey
/s/ John J. Mazzola President, Chief Executive November 8, 1999
- ------------------------ Officer and Director (Principal
John J. Mazzola Executive Officer)
/s/ Douglas E. Barnett Vice President and Chief Financial November 8, 1999
- ------------------------ Officer (Principal Financial and
Douglas E. Barnett Accounting Officer)
/s/ John A. Adams Director November 8, 1999
- ------------------------
John A. Adams
/s/ Paul J. Chiapparone Director November 8, 1999
- ------------------------
Paul J. Chiapparone
/s/ J. Davis Hamlin Director November 8, 1999
- ------------------------
J. Davis Hamlin
/s/ Leo J. Thomas Director November 8, 1999
- ------------------------
Leo J. Thomas
/s/ William P. Weber Director November 8, 1999
- ------------------------
William P. Weber
II-5
<PAGE>
EXHIBIT INDEX
Exhibit Description
4.1 Unigraphics Solutions Inc. 1999 Broad-Based Incentive Plan
5.1 Opinion of J. Randall Walti, General Counsel of Unigraphics
Solutions Inc.
23.1 Consent of KPMG LLP
23.2 Consent of J. Randall Walti, General Counsel (included in
Exhibit 5.1)
EXHIBIT 4.1
UNIGRAPHICS SOLUTIONS INC.
1999 BROAD-BASED INCENTIVE PLAN
1. Plan. This Unigraphics Solutions Inc. 1999 Broad-Based Incentive Plan
(the "Plan") has been adopted by Unigraphics Solutions Inc., a Delaware
corporation (the "Company"), to be effective as of the Effective Date
stated below for the purpose stated in paragraph 2 below.
2. Objectives. This Plan is designed to attract and retain Employees (as
hereinafter defined), to encourage the sense of proprietorship of the
Employees, and to stimulate the active interest of such persons in the
development and financial success of the Company and its Subsidiaries.
These objectives are to be accomplished by making Awards (as
hereinafter defined) under this Plan and thereby providing Participants
(as hereinafter defined) with a proprietary interest in the growth and
performance of the Company and its Subsidiaries.
3. Definitions. As used herein, the terms set forth below shall have the
following respective meanings:
"Authorized Officer" means the Chairman of the Board (or any other
senior officer to whom the Chairman of the Board shall delegate
authority to execute any Award Agreement).
"Award" means the grant of any Option, SAR, Stock Award, Cash Award or
Performance Award, whether granted singly, in combination or in tandem,
to a Participant pursuant to such applicable terms, conditions and
limitations as the Committee may establish in order to fulfill the
objectives of the Plan.
"Award Agreement" means a written agreement between the Company and a
Participant setting forth the terms, conditions and limitations
applicable to an Award.
"Board" means the Board of Directors of the Company.
"Cash Award" means an award denominated in cash.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means the Compensation Committee of the Board or such other
committee of the Board as is designated by the Board to administer the
Plan. If at any time no Committee shall be in existence, then the
functions of the Committee specified in the Plan shall be exercised by
the Board.
"Common Stock" means the Class A Common Stock, par value $0.01 per
share, of the Company.
<PAGE>
"Dividend Equivalents" means, with respect to shares of Restricted
Stock that are to be issued at the end of the Restriction Period, an
amount equal to all dividends and other distributions (or the economic
equivalent thereof) that are payable to stockholders of record during
the Restriction Period on a like number of shares of Common Stock.
"Effective Date" means October 21, 1999.
"Employee" means an individual classified by the Company as an employee
of the Company or any of its Subsidiaries or any corporation which
directly or indirectly owns shares representing more than 50% of the
combined voting power of the shares of all classes or series of capital
stock of the Company which have the right to vote generally on matters
submitted to a vote of the stockholders of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Fair Market Value" of a share of Common Stock means (i) if shares of
Common Stock are listed on a national securities exchange, the mean
between the highest and lowest sales price per share of Common Stock on
the consolidated transaction reporting system for the principal
national securities exchange on which shares of Common Stock are listed
on that date, or, if there shall have been no such sale so reported on
that date, on the last preceding date on which such a sale was so
reported, (ii) if shares of Common Stock are not so listed but are
quoted on The Nasdaq National Market, the mean between the highest and
lowest sales price per share of Common Stock reported by The Nasdaq
National Market on that date, or, if there shall have been no such sale
so reported on that date, on the last preceding date on which such a
sale was so reported or (iii) if shares of Common Stock are not so
listed or quoted but are traded in the over-the-counter market, the
mean between the closing bid and asked price on that date, or, if there
are no quotations available for such date, on the last preceding date
on which such quotations shall be available, as reported by The Nasdaq
Stock Market, or, if not reported by The Nasdaq Stock Market, by the
National Quotation Bureau Incorporated.
"Incentive Stock Option" means an Option that is intended to comply
with the requirements set forth in Section 422 of the Code.
"Nonqualified Stock Option" means an Option that is not an Incentive
Stock Option.
"Option" means a right to purchase a specified number of shares of
Common Stock at a specified price.
"Participant" means an Employee to whom an Award has been made under
this Plan.
"Performance Award" means an award made pursuant to this Plan to a
Participant that is subject to the attainment of one or more
Performance Goals.
2
<PAGE>
"Performance Goal" means a standard established by the Committee, to
determine in whole or in part whether a Performance Award shall be
earned.
"Restricted Stock" means any Common Stock that is restricted or subject
to forfeiture provisions.
"Restriction Period" means a period of time beginning as of the date
upon which an Award of Restricted Stock is made pursuant to this Plan
and ending as of the date upon which the Common Stock subject to such
Award is no longer restricted or subject to forfeiture provisions.
"Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act, or
any successor rule.
"SAR" means a right to receive a payment, in cash or Common Stock,
equal to the excess of the Fair Market Value or other specified
valuation of a specified number of shares of Common Stock on the date
the right is exercised over a specified strike price (in each case, as
determined by the Committee).
"Stock Award" means an award in the form of shares of Common Stock or
units denominated in shares of Common Stock.
"Subsidiary" means (i) in the case of a corporation, any corporation of
which the Company directly or indirectly owns shares representing more
than 50% of the combined voting power of the shares of all classes or
series of capital stock of such corporation which have the right to
vote generally on matters submitted to a vote of the stockholders of
such corporation and (ii) in the case of a partnership or other
business entity not organized as a corporation, any such business
entity of which the Company directly or indirectly owns more than 50%
of the voting, capital or profits interests (whether in the form of
partnership interests, membership interests or otherwise).
4. Eligibility. All Employees of the Company and its Subsidiaries are
eligible to participate in the Plan.
5. Common Stock Available for Awards. Subject to the provisions of
paragraph 14 hereof, there shall be available for Awards under this
Plan granted wholly or partly in Common Stock (including rights or
options that may be exercised for or settled in Common Stock) an
aggregate of 750,000 shares of Common Stock. The number of shares of
Common Stock that are the subject of Awards under this Plan, that are
forfeited or terminated, expire unexercised, are settled in cash in
lieu of Common Stock or in a manner such that all or some of the shares
covered by an Award are not issued to a Participant or are exchanged
for Awards that do not involve Common Stock, shall again immediately
become available for Awards hereunder. The Committee may from time to
time adopt and observe such procedures concerning the counting of
shares against the Plan maximum as it may deem appropriate. The Board
and the appropriate officers of the Company shall from time to time
3
<PAGE>
take whatever actions are necessary to file any required documents with
governmental authorities, stock exchanges and transaction reporting
systems to ensure that shares of Common Stock are available for
issuance pursuant to Awards.
6. Administration.
(a) This Plan shall be administered by the Committee. To the extent
required in order for Awards to Participants who are subject to Section
16 of the Exchange Act to be exempt from Section 16 by virtue of the
provisions of Rule 16b-3, the Committee shall consist of at least two
members of the Board who meet the requirements of the definition of
"Non-Employee Director" set forth in Rule 16b-3(b)(3)(i) promulgated
under the Exchange Act.
(b) Subject to the provisions hereof, the Committee shall have full and
exclusive power and authority to administer this Plan and to take all
actions that are specifically contemplated hereby or are necessary or
appropriate in connection with the administration hereof. The Committee
shall also have full and exclusive power to interpret this Plan and to
adopt such rules, regulations and guidelines for carrying out this Plan
as it may deem necessary or proper, all of which powers shall be
exercised in the best interests of the Company and in keeping with the
objectives of this Plan. The Committee may, in its discretion and to
the extent allowed by law, provide for the extension of the
exercisability of an Award, accelerate the vesting or exercisability of
an Award, eliminate or make less restrictive any restrictions contained
in an Award, waive any restriction or other provision of this Plan or
an Award or otherwise amend or modify an Award in any manner that is
either (i) not adverse to the Participant to whom such Award was
granted or (ii) consented to by such Participant. The Committee may
correct any defect or supply any omission or reconcile any
inconsistency in this Plan or in any Award in the manner and to the
extent the Committee deems necessary or desirable to further the
purposes of the Plan. Any decision of the Committee in the
interpretation and administration of this Plan shall lie within its
sole and absolute discretion and shall be final, conclusive and binding
on all parties concerned. The functions of the Committee specified in
the Plan shall be exercised by the Board, if and to the extent that no
Committee exists which has the authority to so administer the Plan or
to the extent that the Committee is not comprised solely of
Non-Employee Directors for purposes of Rule 16b-3 promulgated under the
Exchange Act.
(c) No member of the Committee or officer of the Company to whom the
Committee has delegated authority in accordance with the provisions of
paragraph 7 of this Plan shall be liable for anything done or omitted
to be done by him or her, by any member of the Committee or by any
officer of the Company in connection with the performance of any duties
under this Plan, except for his or her own willful misconduct or as
expressly provided by statute.
4
<PAGE>
(d) In the event the Company grants an Award that is contrary to law,
the Company may either revoke the grant of the Award or modify the
grant of the Award to bring the grant into compliance with the
applicable laws.
7. Delegation of Authority. The Committee may delegate to the Chairman of
the Board and to other senior officers of the Company its duties under
this Plan pursuant to such conditions or limitations as the Committee
may establish, except that the Committee may not delegate to any person
the authority to grant Awards to, or take other action with respect to,
Participants who are subject to Section 16 of the Exchange Act.
8. Awards. The Committee shall determine the type or types of Employee
Awards to be made under this Plan and shall designate from time to time
the Employees who are to be the recipients of such Awards. Each Award
may be embodied in an Award Agreement, which shall contain such terms,
conditions and limitations as shall be determined by the Committee in
its sole discretion and shall be signed by the Participant to whom the
Award is made and by an Authorized Officer for and on behalf of the
Company. Awards may consist of those listed in this paragraph 8(a)
hereof and may be granted singly, in combination or in tandem. Awards
may also be made in combination or in tandem with, in replacement of,
or as alternatives to, grants or rights under this Plan or any other
employee plan of the Company or any of its Subsidiaries, including the
plan of any acquired entity; provided that no Option may be issued in
exchange for the cancellation of an Option with a lower exercise price.
An Award may provide for the grant or issuance of additional,
replacement or alternative Awards upon the occurrence of specified
events, including the exercise of the original Award granted to a
Participant. All or part of an Award may be subject to conditions
established by the Committee, which may include, but are not limited
to, continuous service with the Company and its Subsidiaries,
achievement of specific business objectives, increases in specified
indices, or attainment of specified growth rates and other comparable
measurements of performance. Upon the termination of employment by a
Participant, any unexercised, deferred, unvested or unpaid Awards shall
be treated as set forth in the applicable Award Agreement.
(a) Stock Option. An Award may be in the form of an Option.
Any Option awarded pursuant to this Plan shall be a
Nonqualified Stock Option. The price at which shares of Common
Stock may be purchased upon the exercise of a Nonqualified
Stock Option shall be not less than, but may exceed, the Fair
Market Value of the Common Stock on the date of grant. Subject
to the foregoing provisions, the terms, conditions and
limitations applicable to any Options awarded pursuant to this
Plan, including the term of any Options and the date or dates
upon which they become exercisable, shall be determined by the
Committee. The Company shall not issue any Incentive Stock
Options under the Plan.
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(b) Stock Appreciation Right. An Award may be in the form of
an SAR. The terms, conditions and limitations applicable to
any SARs awarded pursuant to this Plan, including the term of
any SARs and the date or dates upon which they become
exercisable, shall be determined by the Committee.
(c) Stock Award. An Award may be in the form of a Stock Award.
The terms, conditions and limitations applicable to any Stock
Awards granted pursuant to this Plan shall be determined by
the Committee.
(d) Cash Award. An Award may be in the form of a Cash Award.
The terms, conditions and limitations applicable to any Cash
Awards granted pursuant to this Plan shall be determined by
the Committee.
(e) Performance Award. Without limiting the type or number of
Awards that may be made under the other provisions of this
Plan, an Award may be in the form of a Performance Award. A
Performance Award shall be paid, vested or otherwise
deliverable solely on account of the attainment of one or more
pre-established, objective Performance Goals established by
the Committee prior to the earlier to occur of (x) 90 days
after the commencement of the period of service to which the
Performance Goal relates and (y) the elapse of 25% of the
period of service (as scheduled in good faith at the time the
goal is established), and in any event while the outcome is
substantially uncertain. A Performance Goal is objective if a
third party having knowledge of the relevant facts could
determine whether the goal is met. Such a Performance Goal may
be based on one or more business criteria that apply to the
individual, one or more business units of the Company, or the
Company as a whole, and may include one or more of the
following: increased revenue, net income, stock price, market
share, earnings per share, return on equity, return on assets
or decrease in costs. Unless otherwise stated, such a
Performance Goal need not be based upon an increase or
positive result under a particular business criterion and
could include, for example, maintaining the status quo or
limiting economic losses (measured, in each case, by reference
to specific business criteria). Prior to the payment of any
compensation based on the achievement of Performance Goals,
the Committee must certify in writing that applicable
Performance Goals and any of the material terms thereof were,
in fact, satisfied. Subject to the foregoing provisions, the
terms, conditions and limitations applicable to any
Performance Awards made pursuant to this Plan shall be
determined by the Committee.
9. Payment of Awards.
(a) General. Payment of Awards may be made in the form of cash or
Common Stock, or a combination thereof, and may include such
restrictions as the Committee shall determine, including, in the case
of Common Stock, restrictions on transfer and forfeiture provisions. If
payment of an Award is made in the form of Restricted Stock, the Award
Agreement relating to such shares shall specify whether they are to be
issued at the beginning or end of the Restriction Period. In the event
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<PAGE>
that shares of Restricted Stock are to be issued at the beginning of
the Restriction Period, the certificates evidencing such shares (to the
extent that such shares are so evidenced) shall contain appropriate
legends and restrictions that describe the terms and conditions of the
restrictions applicable thereto. In the event that shares of Restricted
Stock are to be issued at the end of the Restricted Period, the right
to receive such shares shall be evidenced by book entry registration or
in such other manner as the Committee may determine.
(b) Deferral. With the approval of the Committee, payments in respect
of Awards may be deferred, either in the form of installments or a
future lump-sum payment. The Committee may permit selected Participants
to elect to defer payment of some or all types of Awards in accordance
with procedures established by the Committee. Any deferred payment of
an Award, whether elected by the Participant or specified by the Award
Agreement or by the Committee, may be forfeited if and to the extent
that the Award Agreement so provides.
(c) Dividends and Interest. Rights to dividends or Dividend Equivalents
may be extended to and made part of any Award consisting of shares of
Common Stock or units denominated in shares of Common Stock, subject to
such terms, conditions and restrictions as the Committee may establish.
The Committee may also establish rules and procedures for the crediting
of interest on deferred cash payments and Dividend Equivalents for
Awards consisting of shares of Common Stock or units denominated in
shares of Common Stock.
(d) Substitution of Awards. At the discretion of the Committee, a
Participant may be offered an election to substitute an Award for
another Award or Awards of the same or different type.
10. Stock Option Exercise. The price at which shares of Common Stock may be
purchased under an Option shall be paid in full at the time of exercise
in cash or, if elected by the optionee, the optionee may purchase such
shares by means of tendering Common Stock or surrendering another
Award, including Restricted Stock, valued at Fair Market Value on the
date of exercise, or any combination thereof. The Committee shall
determine acceptable methods for Participants to tender Common Stock or
another Award; provided that any Common Stock that is or was the
subject of an Award may be so tendered only if it has been held by the
Participant for six months. The Committee may provide for procedures to
permit the exercise or purchase of such Awards by use of the proceeds
to be received from the sale of Common Stock issuable pursuant to an
Award. Unless otherwise provided in the applicable Award Agreement, in
the event shares of Restricted Stock are tendered as consideration for
the exercise of an Option, a number of the shares issued upon the
exercise of the Option, equal to the number of shares of Restricted
Stock used as consideration therefor, shall be subject to the same
restrictions as the Restricted Stock so submitted as well as any
additional restrictions that may be imposed by the Committee. The
Company reserves the right to postpone the delivery of Common Stock
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<PAGE>
issuable upon exercise of an Award to the extent necessary to comply
with any applicable listing requirements of any securities exchange or
Nasdaq or any applicable federal, state, local, or foreign law.
11. Tax Withholding. The Company shall have the right to deduct applicable
taxes from any Award payment and withhold, at the time of delivery or
vesting of cash or shares of Common Stock under this Plan, an
appropriate amount of cash or number of shares of Common Stock or a
combination thereof for payment of taxes required by law or to take
such other action as may be necessary in the opinion of the Company to
satisfy all obligations for withholding of such taxes. The Committee
may also permit withholding to be satisfied by the transfer to the
Company of shares of Common Stock theretofore owned by the holder of
the Award with respect to which withholding is required. If shares of
Common Stock are used to satisfy tax withholding, such shares shall be
valued based on the Fair Market Value when the tax withholding is
required to be made. The Committee may provide for loans, on either a
short term or demand basis, from the Company to a Participant who is an
Employee to permit the payment of taxes required by law.
12. Amendment, Modification, Suspension or Termination. The Board may
amend, modify, suspend or terminate this Plan for the purpose of
meeting or addressing any changes in legal requirements or for any
other purpose permitted by law, except that no amendment or alteration
that would adversely affect the rights of any Participant under any
Award previously granted to such Participant shall be made without the
consent of such Participant.
13. Assignability. Unless otherwise determined by the Committee and
provided in the Award Agreement, no Award or any other benefit under
this Plan constituting a derivative security within the meaning of Rule
16a-1(c) under the Exchange Act shall be assignable or otherwise
transferable except by will or 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. The Committee may prescribe and include in applicable Award
Agreements other restrictions on transfer. Any attempted assignment of
an Award or any other benefit under this Plan in violation of this
paragraph 13 shall be null and void.
14. Adjustments.
(a) The existence of outstanding Awards shall not affect in any manner
the right or power of the Company or its stockholders to make or
authorize any or all adjustments, recapitalizations, reorganizations or
other changes in the capital stock of the Company or its business or
any merger or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock (whether or not such
issue is prior to, on a parity with or junior to the Common Stock) or
the dissolution or liquidation of the Company, or any sale or transfer
of all or any part of its assets or business, or any other corporate
8
<PAGE>
act or proceeding of any kind, whether or not of a character similar to
that of the acts or proceedings enumerated above.
(b) In the event of any subdivision or consolidation of outstanding
shares of Common Stock, declaration of a dividend payable in shares of
Common Stock or other stock split, then (i) the number of shares of
Common Stock reserved under this Plan, (ii) the number of shares of
Common Stock covered by outstanding Awards in the form of Common Stock
or units denominated in Common Stock, (iii) the exercise or other price
in respect of such Awards, and (iv) the appropriate Fair Market Value
and other price determinations for such Awards shall each be
proportionately adjusted by the Board to reflect such transaction. In
the event of any other recapitalization or capital reorganization of
the Company, any consolidation or merger of the Company with another
corporation or entity, the adoption by the Company of any plan of
exchange affecting the Common Stock or any distribution to holders of
Common Stock of securities or property (other than normal cash
dividends or dividends payable in Common Stock), the Board shall make
appropriate adjustments to (i) the number of shares of Common Stock
covered by Awards in the form of Common Stock or units denominated in
Common Stock, (ii) the exercise or other price in respect of such
Awards, and (iii) the appropriate Fair Market Value and other price
determinations for such Awards to give effect to such transaction shall
each be proportionately adjusted by the Board to reflect such
transaction; provided that such adjustments shall only be such as are
necessary to maintain the proportionate interest of the holders of the
Awards and preserve, without exceeding, the value of such Awards. In
the event of a corporate merger, consolidation, acquisition of property
or stock, separation, reorganization or liquidation, the Board shall be
authorized to issue or assume Awards by means of a substitution of new
Awards, as appropriate, for previously issued Awards or an assumption
of previously issued Awards as part of such adjustment.
15. Restrictions. No Common Stock or other form of payment shall be issued
with respect to any Award unless the Company shall be satisfied based
on the advice of its counsel that such issuance will be in compliance
with applicable federal and state securities laws. It is the intent of
the Company that this Plan comply with Rule 16b-3 with respect to
persons subject to Section 16 of the Exchange Act unless otherwise
provided herein or in an Award Agreement, that any ambiguities or
inconsistencies in the construction of this Plan be interpreted to give
effect to such intention, and that if any provision of this Plan is
found not to be in compliance with Rule 16b-3, such provision shall be
null and void to the extent required to permit this Plan to comply with
Rule 16b-3. Certificates evidencing shares of Common Stock delivered
under this Plan (to the extent that such shares are so evidenced) may
be subject to such stop transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations and other
requirements of the Securities and Exchange Commission, any securities
exchange or transaction reporting system upon which the Common Stock is
then listed or to which it is admitted for quotation and any applicable
federal or state securities law. The Committee may cause a legend or
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legends to be placed upon such certificates (if any) to make
appropriate reference to such restrictions.
16. Unfunded Plan. Insofar as it provides for Awards of cash, Common Stock
or rights thereto, this Plan shall be unfunded. Although bookkeeping
accounts may be established with respect to Participants who are
entitled to cash, Common Stock or rights thereto under this Plan, any
such accounts shall be used merely as a bookkeeping convenience. The
Company shall not be required to segregate any assets that may at any
time be represented by cash, Common Stock or rights thereto, nor shall
this Plan be construed as providing for such segregation, nor shall the
Company, the Board or the Committee be deemed to be a trustee of any
cash, Common Stock or rights thereto to be granted under this Plan. Any
liability or obligation of the Company to any Participant with respect
to an Award of cash, Common Stock or rights thereto under this Plan
shall be based solely upon any contractual obligations that may be
created by this Plan and any Award Agreement, and no such liability or
obligation of the Company shall be deemed to be secured by any pledge
or other encumbrance on any property of the Company. Neither the
Company nor the Board nor the Committee shall be required to give any
security or bond for the performance of any obligation that may be
created by this Plan.
17. Governing Law. This Plan and all determinations made and actions taken
pursuant hereto, to the extent not otherwise governed by mandatory
provisions of the Code or the securities laws of the United States,
shall be governed by and construed in accordance with the laws of the
State of Delaware.
10
EXHIBIT 5.1
November 8, 1999
Unigraphics Solutions Inc.
13736 Riverport Drive
Maryland Heights, Missouri 63043
Ladies and Gentlemen:
I am Vice President, General Counsel and Secretary of
Unigraphics Solutions Inc., a Delaware corporation (the "Company"), and in such
capacity I am familiar with the Registration Statement on Form S-8 to which this
opinion is filed as an exhibit (the "Registration Statement"), which registers
under the Securities Act of 1933, as amended (the "Securities Act"), 750,000
shares of Class A Common Stock, par value $0.01, of the Company (the "Shares"),
which are to be issued under the Company's 1999 Broad-Based Incentive Plan (the
"Plan").
I have examined originals or copies, certified or otherwise,
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as I deemed necessary for
the purposes of the opinion expressed herein. I have assumed the genuineness of
all signatures on all documents examined by me, the authenticity of all
documents submitted to me as originals, and the conformity to authentic
originals of all documents submitted to me as certified or photostatic copies. I
have also assumed the due authorization, execution and delivery of all
documents.
On the basis of the foregoing, I am of the opinion that when
the Registration Statement, including any amendments thereto, shall have become
effective under the Securities Act, and the Shares have been issued in
accordance with the terms of the Plan, then the Shares will be legally issued,
fully paid and nonassessable.
This opinion is not rendered with respect to any laws other
than the General Corporation Law of the State of Delaware.
I consent to the filing of this opinion as an exhibit to the
Registration Statement. I also consent to your filing copies of this opinion as
an exhibit to the Registration Statement with such agencies of such states as
you deem necessary in the course of complying with the laws of such states
regarding the offering and sale of the Shares. In giving this consent, I do not
admit that I am in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Securities
and Exchange Commission.
Yours truly,
/s/ J. Randall Walti
J. Randall Walti
Vice President, General Counsel
and Secretary
EXHIBIT 23.1
Independent Auditors' Consent
The Board of Directors
Unigraphics Solutions Inc.
We consent to incorporation by reference in the registration statement on Form
S-8 of Unigraphics Solutions Inc. of our report dated February 9, 1999, relating
to the consolidated balance sheets of Unigraphics Solutions Inc. and
subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of operations, stockholders' equity/net investment, and cash flows
for each of the years in the three-year period ended December 31, 1998, which
report appears in the Form 10-K of Unigraphics Solutions Inc. for the year ended
December 31, 1998.
St. Louis, Missouri
November 5, 1999
/s/ KPMG LLP
KPMG LLP
