As filed with the Securities and Exchange Commission on April 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. EMPLOYEE STOCK PURCHASE 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)
----------------------
<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 Share(1) Price (1) Registration Fee
- -------------------------- ---------------------- ----------------------- ----------------------- -----------------------
- -------------------------- ---------------------- ----------------------- ----------------------- -----------------------
Class A Common Stock, 500,000 shares $15.40625 $7,703,125 $2,142
par value $0.01 per
share
- -------------------------- ---------------------- ----------------------- ----------------------- -----------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933 and based
upon the average of the high and low reported market prices of the
Registrant's Class A Common Stock as reported on the New York Stock
Exchange on April 7, 1999.
(2) This Registration Statement also relates to such indeterminate number of
additional shares as may be issuable pursuant to anti-dilution provisions
of the Unigraphics Solutions Inc. Employee Stock Purchase Plan.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Unigraphics Solutions Inc. (the "Company" or the "registrant") hereby
incorporates by reference into this Registration Statement the following
documents:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1998.
2. 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 (File No. 333-48261).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Any statement contained in this Registration Statement, in an amendment
hereto or in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
herein by reference modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
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 1,150 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
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
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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
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
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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.
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 statutes.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this 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;
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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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for 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 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is being asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the 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
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 March
31, 1999.
UNIGRAPHICS SOLUTIONS INC.
By: /s/ John Mazzola
----------------------------------------
John J. Mazzola
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
John J. Mazzola, Douglas E. Barnett and J. Randall Walti (with full power to act
alone), his or her true and lawful attorney in fact and agent for him or her and
on his or her behalf and in his or her name, place and stead, in any and all
capacities to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with exhibits and any and
all other documents filed with respect thereto, with the Securities and Exchange
Commission (or any other governmental or regulatory authority), granting unto
said attorney, full power and authority to do and to perform each and every act
and thing requisite and necessary to be done in and about the premises in order
to effectuate the same as fully to all intents and purposes as he or she might
or could do if personally present, hereby ratifying and confirming all that said
attorney in fact and agent, may lawfully 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 indicated.
Name Title Date
/s/ John Mazzola President, Chief Executive March 31, 1999
- ------------------------ Officer and Director (Principal
John J. Mazzola Executive Officer)
/s/ Jeffrey M. Heller Chairman of the Board and Director March 31, 1999
- ------------------------
Jeffrey M. Heller
/s/ Gary B. Moore Vice Chairman of the Board March 31, 1999
- ------------------------ and Director
Gary B. Moore
/s/ Douglas E. Barnett Vice President and Chief March 31, 1999
- ----------------------- Financial Officer and Secretary
Douglas E. Barnett (Principal Financial and Accounting
Officer)
/s/ John A. Adams Director March 31, 1999
- -----------------------
John A. Adams
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/s/ J. Davis Hamlin Director March 31, 1999
- -----------------------
J. Davis Hamlin
/s/ Leo J. Thomas Director March 31, 1999
- -----------------------
Leo J. Thomas
/s/ William P. Weber Director March 31, 1999
- -----------------------
William P. Weber
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UNIGRAPHICS SOLUTIONS INC.
EXHIBIT INDEX
Exhibit
Number Description
4.1 Unigraphics Solutions Inc. Employee Stock Purchase Plan
5.1 Opinion of J. Randall Walti, General Counsel
23.1 Consent of KPMG LLP
23.2 Consent of J. Randall Walti, General Counsel
(included in Exhibit 5.1)
24.1 Power of Attorney (included in Signature Page)
EXHIBIT 4.1
UNIGRAPHICS SOLUTIONS INC.
EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
TABLE OF CONTENTS
1. NAME AND PURPOSE............................................................1
2. AMOUNT OF STOCK SUBJECT TO THE PLAN: PAYMENT OF SHARES......................1
3. ADMINISTRATION..............................................................1
4. ELIGIBILITY.................................................................2
5. OFFERINGS...................................................................2
6. PARTICIPATION...............................................................3
7. DEDUCTIONS..................................................................3
8. DEDUCTION CHANGES...........................................................3
9. WITHDRAWAL OF FUNDS.........................................................4
10. RIGHT OF PURCHASE--OPTION FOR A MAXIMUM NUMBER OF SHARES...................4
11. MAXIMUM ALLOTMENT OF RIGHTS OF PURCHASE....................................4
12. PURCHASE PRICE.............................................................4
13. METHOD OF PAYMENT..........................................................5
14. ISSUANCE OF CERTIFICATES AND PAYMENT OF EXPENSES...........................5
15. CONDITION UPON ISSUANCE OF SHARES..........................................6
16. RIGHTS AS A STOCKHOLDER....................................................6
17. SALE OF STOCK..............................................................6
18. PURCHASE FOR INVESTMENT....................................................7
19. RIGHTS NOT TRANSFERABLE....................................................7
20. ADJUSTMENT OF SHARES.......................................................7
21. RETIREMENT, TERMINATION AND DEATH..........................................7
<PAGE>
22. AMENDMENT OF THE PLAN......................................................7
23. TERMINATION OF THE PLAN....................................................8
24. LISTING OF SHARE AND RELATED MATTERS.......................................8
25. THIRD PARTY BENEFICIARIES..................................................8
26. GENERAL PROVISIONS.........................................................8
27. NO EFFECT ON OTHER BENEFITS................................................8
28. INTEREST...................................................................9
29. NOTICES....................................................................9
30. GOVERNING LAW..............................................................9
31. EFFECTIVE DATE.............................................................9
32. DEPOSIT OF CERTIFICATED SHARES.............................................9
33. RETIREES...................................................................9
<PAGE>
UNIGRAPHICS SOLUTIONS INC.
EMPLOYEE STOCK PURCHASE PLAN
1. NAME AND PURPOSE
The name of this Plan is the "Unigraphics Solutions Inc. Employee
Stock Purchase Plan" (hereinafter referred to as the "Plan"). The purpose of the
Plan is to attract, retain and motivate employees of Unigraphics Solutions Inc.,
a Delaware corporation ("Unigraphics"), and its designated subsidiaries, and
provide them an incentive to contribute to and share in the continued success of
Unigraphics and its subsidiaries by enabling such employees to acquire shares of
Class A Common Stock, $.01 par value per share (the "Unigraphics Stock"), of
Unigraphics, in the manner contemplated by the Plan. Rights to purchase
Unigraphics Stock offered pursuant to the Plan are a matter of separate
inducement and not in lieu of any salary or other compensation for the services
of any employee. The Plan is intended to qualify as an employee stock purchase
plan within the meaning of Section 423 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. AMOUNT OF STOCK SUBJECT TO THE PLAN; PAYMENT OF SHARES
The total number of shares of Unigraphics Stock that may be
purchased pursuant to rights of purchase granted under the Plan shall not exceed
500,000 shares of the authorized Unigraphics Stock. In the discretion of the
Board of Directors of Unigraphics (the "Board of Directors") or its delegate,
such shares may be: (i) shares acquired by the Company or an independent plan
administrator in open market or privately negotiated transactions; (ii) treasury
shares previously acquired by Unigraphics; or (iii) authorized but unissued
shares. If a right of purchase under the Plan expires or is terminated
unexercised for any reason, the shares as to which such right so expired or
terminated again may be made subject to a right of purchase under the Plan.
Notwithstanding anything to the contrary herein, if the total number of shares
which would otherwise be subject to options granted under the Plan exceeds the
total number of shares then available for purchase under the Plan or any limit
on the number of shares that may be purchased during an offering as specified by
the Committee in accordance Sections 5 and 10 (after deduction of all shares for
which options have been exercised or are then outstanding), Unigraphics shall
make a pro rata allocation of the shares remaining available for option in as
uniform manner as shall be practicable and as it shall determine to be
equitable. In such event, Unigraphics shall give written notice of such
reduction of the number of shares subject to the option to each employee
affected thereby and shall similarly reduce the rate of contributions, if
necessary.
3. ADMINISTRATION
The Compensation Committee of the Board of Directors (the
"Committee") shall appoint or engage any person or persons as an administrator
(the "Administrator") of the Plan, who may be, but shall not be required to be,
a member of the Committee. Any person engaged or delegated to be the
Administrator who is not an employee of Unigraphics, shall be required to be
bonded and insured for errors and omissions insurance in such amounts and by
such carrier as is deemed suitable and appropriate by the Committee. The
Committee and the Administrator shall administer the Plan all as provided
herein. The Committee shall hold meetings at such times and places as it may
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determine and may take action by unanimous written consent or by means of a
meeting held by conference telephone call or similar communications equipment
pursuant to which all persons participating in the meeting can hear each other.
The Committee may request advice or assistance or employ such other persons as
it deems necessary for proper administration of the Plan. Subject to the express
provisions of the Plan and the requirements of applicable law, the Committee
shall have authority, in its discretion, to determine when each offering
hereunder of rights to purchase shares (hereinafter "offering") shall be made,
the duration of each offering, the dates on which the purchase period for each
offering shall begin and end, the total number of shares subject to each
offering, the purchase price of shares subject to each offering and the
exclusion of any classes of employees pursuant to Section 4(ii). Subject to the
express provisions of the Plan, the Committee has discretionary authority: (a)
to construe offerings, the Plan and the respective rights to purchase shares;
(b) to prescribe, amend and rescind rules and regulations relating to the Plan;
and (c) to make all other determinations necessary or advisable for
administering and carrying out the purposes of the Plan. The determination of
the Committee with respect to matters referred to in this Section 3 as within
its province shall be conclusive, except that, to the extent required by law or
by the Certificate of Incorporation or By-Laws of Unigraphics, the terms of any
offering shall be subject to ratification by the Board of Directors or the
Committee prior to the effective date of such offering.
4. ELIGIBILITY
No right to purchase shares shall be granted hereunder to a person
who is not an employee of Unigraphics or a subsidiary corporation, now existing
or hereafter formed or acquired. As used in the Plan, the terms "parent
corporation" and "subsidiary corporation" shall have the meanings respectively
given to such terms in Sections 424(e) and 424(f) of the Code. Each offering
shall be made to all employees of Unigraphics and to all employees of any
subsidiary corporation as is designated by the Committee to participate in the
Plan, excluding: (i) employees whose customary employment is 20 hours or less
per week or not more than five months in any calendar year; (ii) in the
discretion of the Committee, as specified in the terms of any offering, "highly
compensated employees" within the meaning of Section 414(q) of the Code; and
(iii) any employee who, immediately after the grant of a right to purchase stock
pursuant to an offering, owns stock possessing 5% or more of the total combined
voting power or value of all classes of stock of the employee's employer or of
any subsidiary or parent corporation of the employee's employer (in determining
stock ownership of an individual, the rules of Section 424(d) of the Code shall
be applied; shares that the employee may purchase under outstanding rights of
purchase and options shall be treated as stock owned by him; and the Committee
and the Administrator may rely on representations of fact made to them by the
employee and believed by them to be true).
5. OFFERINGS
The Committee may make grants to all eligible employees of
Unigraphics and to all eligible employees of any subsidiary corporation as is
designated by the Committee to participate in the Plan of rights to purchase
shares under the terms hereinafter set forth. The Committee shall have the
authority to specify the terms and conditions of each offering, including its
effective date, the duration of such offering and the purchase period
thereunder, the number of shares that may be purchased thereunder, the purchase
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<PAGE>
price for such shares and the class of employees, if any, that are to be
excluded pursuant to Section 4(ii). During the purchase period specified in the
terms of an offering (or during such portion thereof as an eligible employee may
elect to participate), payroll deductions shall be made from such employee's
compensation pursuant to Sections 6 and 7. Any stated purchase period shall end
no later than 27 months from the effective date of any offering hereunder. The
measure of an employee's participation in an offering shall be such employee's
total compensation for the purchase period specified in such offering (or for
such portion thereof as the employee is eligible to participate), subject to
appropriate adjustments that would exclude items such as reimbursement of
moving, travel, trade or business expenses.
6. PARTICIPATION
An employee eligible on the effective date of an offering or
thereafter during the offering may participate in such offering by completing a
participation agreement (in such form and manner as may be approved by the Board
of Directors or the Committee) and forwarding it to the Administrator at any
time prior to the beginning of the next payroll period in which payroll
deductions will be made. Using the participation agreement, the employee must
authorize a regular payroll deduction from the employee's compensation and must
specify the date on which such employee's deduction and participation in the
Plan is to commence, which may not be retroactive. An employee shall be
considered a "Participant" in the Plan as of the payroll date of the first
payroll deduction. By submitting a participation agreement, each Participant
will be deemed to have authorized the establishment of a brokerage account in
his or her name at a firm approved by the Board of Directors or the Committee
which shall serve as custodial agent for the purpose of holding shares purchased
under the Plan.
7. DEDUCTIONS
With respect to any offering made under the Plan, an employee may
authorize a payroll deduction of any whole percentage up to a maximum of 10% of
the total compensation he or she receives during the purchase period specified
in an offering (or during such portion thereof as he or she may be eligible or
elect to participate). All payroll deductions made by a Participant shall be
credited to his or her account under the Plan. A Participant may not make any
additional payments into such account.
8. DEDUCTION CHANGES
At any time prior to the end of the applicable purchase period, a
Participant may change or temporarily discontinue payroll deductions by filing a
new payroll deduction authorization form. Notwithstanding, no Participant shall
be entitled to change a payroll deduction more than twice or to temporarily
discontinue a payroll deduction more than once during any purchase period. In
addition, no such change or discontinuance shall become effective sooner than
the next payroll period after the Participant properly registered a change to
the payroll deduction authorization information then on file with the
Administrator.
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9. WITHDRAWAL OF FUNDS
A Participant may at any time and for any reason withdraw the entire
cash balance then accumulated in such Participant's payroll deduction account
and thereby withdraw from participating in an offering. Upon withdrawal of the
cash balance in a payroll deduction account, such Participant shall cease to be
eligible to participate in the offering pursuant to which the withdrawn funds
were withheld. Partial withdrawals shall not be permitted. Any cash balance
withdrawn in accordance with this Section 9 may not be transferred to any
payroll deduction account maintained for the employee pursuant to another
offering, whether under the Plan or under another such plan.
10. RIGHT OF PURCHASE--OPTION FOR A MAXIMUM NUMBER OF SHARES
The right of an employee to purchase stock pursuant to an offering
under the Plan shall be an "option" (and an offering shall be the "grant" of
such option). Notwithstanding any other provision hereunder, during any
offering, no Participant may purchase more than the maximum number of shares
determined by dividing: (i) 15% of the employee's monthly base salary,
determined as of the date of the offering or the commencement of such
Participant's participation in the offering (in accordance with Section 6),
whichever is later, multiplied by the number of months in the offering period
or, if the Participant begins participating after the commencement of the
offering, the number of months such Participant can participate in the offering,
whichever is less; by (ii) the fair market value of a share determined as of the
date of the offering in the manner set forth in Section 12. Subject to the
foregoing sentence, the Committee, in its sole discretion, may also impose
per-Participant and aggregate limits on the number of shares that may be
purchased under the Plan during any offering.
11. MAXIMUM ALLOTMENT OF RIGHTS OF PURCHASE
Any right to purchase shares under the Plan shall be subject to the
limitations of Section 423(b)(8) of the Code (generally limiting accrual of the
right of any employee to purchase shares under all employee stock purchase plans
of Unigraphics and any subsidiary or parent corporation, qualified under Section
423 of the Code, to an annual rate of $25,000 in fair market value).
12. PURCHASE PRICE
The purchase price for each share under each right of purchase
granted pursuant to an offering shall be not less than the lesser of: (i) an
amount equal to 85% of the fair market value (defined below) of such share at
the time the right to purchase is granted; or (ii) an amount equal to 85% of the
fair market value of such share at the time the right to purchase is exercised.
The "fair market value" of a share of Unigraphics Stock on any given date shall
be the mean between the high and low sale prices on the New York Stock Exchange
Composite Tape for Unigraphics Stock, as reported by the Dow Jones
News/Retrieval Service of Dow Jones and Company, Inc., on such date or on the
date immediately prior thereto on which such prices for Unigraphics Stock are so
reported or, if not so reported, as reported in a newspaper of national
circulation selected by the Committee or, in case no such sales take place on
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such date, the mean of the closing bid and asked prices (regular way) on the New
York Stock Exchange Composite Tape on such date or, if the Unigraphics Stock is
not then listed or admitted to trading on the New York Stock Exchange, the mean
between the high and low sale prices on such date or, in case no sales take
place on such date, the mean of the closing bid and asked prices (regular way)
on the largest principal national securities exchange on which such stock is
then listed or admitted to trading, or if not listed or admitted to trading on
any principal national securities exchange, then the last reported sales prices
for such shares in the over-the-counter market, as reported on the National
Association of Securities Dealers Automated Quotations System or, if such sale
prices shall not be reported thereon, the mean of the closing bid and asked
prices as reported thereon, or if such prices shall not be reported thereon, as
the same shall be reported by the National Quotation Bureau Incorporated, or, in
all other cases, the mean of two appraisals of fair market value, each of which
shall be furnished by a New York Stock Exchange member firm selected by the
Committee for that purpose. In the event the funds in the payroll deduction
account of a participating employee are in a currency other than United States
dollars on any investment date (as defined below), for purposes of determining
the maximum whole number of shares that may be purchased pursuant to Section 13,
such funds shall be deemed to have been converted into United States dollars
based upon the foreign exchange selling rates, as reported by the Dow Jones
News/Retrieval Service of Dow Jones and Company, Inc., on such date, or if not
so reported on such date, as reported on the next preceding date on which such
rates are reported.
13. METHOD OF PAYMENT
As of the last day of each purchase period (each of such dates being
known as an "investment date"), the payroll deduction account of each
Participant shall be totaled. If on an investment date, the payroll deduction
account of a Participant has at least an amount equal to the purchase price of
one whole share of Unigraphics Stock then, on such investment date such
Participant shall purchase, without any further action, the maximum whole number
of shares (subject to the limitation provided in Section 10) possible at the
fair market value of such shares as determined in accordance with Section 12
together with any fees or charges associated with such purchase that can be
purchased with the funds in such Participant's payroll deduction account,
provided that fractional shares may not be purchased. The Participant's payroll
deduction account shall be charged for the amount of the purchase and a stock
certificate shall be issued for the benefit of the Participant as soon
thereafter as practicable for the shares so purchased, which certificate may be
issued in nominee name. Participant's payroll deduction account at the end of
each purchase period shall be applied toward purchases during the next purchase
period in the same offering. Except as provided otherwise by the Committee in
connection with any offering, all funds in payroll deduction accounts may be
used by Unigraphics for its general corporate purposes as the Board of Directors
shall determine. However, the last purchase on the last investment date of an
offering shall be for the maximum whole number of shares (subject to the
limitation provided in Section 10) possible that can be purchased with the funds
available in such Participant's payroll deduction account, and all cash
remaining in such Participant's payroll deduction account thereafter shall be
returned to the Participant.
14. ISSUANCE OF CERTIFICATES AND PAYMENT OF EXPENSES
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Upon request and after expiration of applicable restrictions,
certificates representing shares purchased under the Plan may be issued in the
name of the employee or, if he/she so indicates on an appropriate form: (i) in
such Participant's name jointly with a member of such Participant's family, with
right of survivorship; (ii) in the name of a fiduciary for the employee (in the
event the employee is under a legal disability to have certificates issued in
such Participant's name); or (iii) in a manner giving effect to the status of
such shares as community property in jurisdictions where applicable. Upon
termination of employment, certificates representing both restricted and
nonrestricted shares purchased under the Plan will be issued in the name of the
employee and forwarded to such Participant's account address on file with the
Plan's transfer agent of record. In the event of a final non-appealable
court-ordered account distribution, certificates representing both restricted
and nonrestricted shares purchased under the Plan will be issued in the name and
to the address specified in the court documents provided to the office of the
Administrator. Unigraphics shall pay all issue or initial transfer taxes of
Unigraphics with respect to the issuance or initial transfer of shares, as well
as all fees and expenses necessarily incurred by Unigraphics in connection with
such issuance or initial transfer.
15. CONDITION UPON ISSUANCE OF SHARES
Notwithstanding anything to the contrary in the Plan, shares shall
not be issued with respect to an option unless the exercise of such option and
the issuance and delivery of such shares pursuant thereto shall comply with all
applicable provisions of law, domestic, or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of counsel for
Unigraphics with respect to such compliance. Based on the foregoing, the terms
and conditions of options granted hereunder to, and the purchase of shares by,
persons subject to Section 16 of the Exchange Act shall comply with the
applicable provisions of Rule 16b-3. This Plan shall be deemed to contain, and
options granted under the Plan shall contain, and the shares issued upon
exercise thereof shall be subject to, such additional conditions and
restrictions as may be required by Rule 16b-3 to qualify for the maximum
exemption from Section 16 of the Exchange Act with respect to Plan transactions.
16. RIGHTS AS A STOCKHOLDER
A Participant shall have no rights as a stockholder with respect to
any shares covered by a right of purchase until a stock certificate for such
shares is issued to the benefit of such Participant, which stock certificate may
be issued in nominee name. No adjustment will be made for dividends (ordinary or
extraordinary, whether in cash or in other property) or distributions or other
rights for which the record date is prior to the date such stock certificate is
issued, except as provided in Section 20.
17. SALE OF STOCK
Shares of stock purchased under the Plan may not be sold or
transferred within two years of the date of purchase unless they are first
offered to Unigraphics (as designated by the Committee) at the lesser of: (i)
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the price originally paid for the shares; or (ii) the fair market value (as
determined in accordance with Section 12) per share of Unigraphics Stock on the
date the shares are offered to Unigraphics. Unigraphics must accept or reject
this offer at the office of the Administrator within five business days of
receipt of the offer. Shares issued under the Plan will carry a restrictive
legend to this effect.
18. PURCHASE FOR INVESTMENT
The Committee may require each person purchasing shares pursuant to
an option to represent to and agree with Unigraphics in writing that such person
is acquiring the shares for investment and without a view to distribution or
resale.
19. RIGHTS NOT TRANSFERABLE
Rights to purchase shares under the Plan are not transferable by a
participating employee and may be exercised only by such Participant during such
Participant's lifetime.
20. ADJUSTMENT OF SHARES
If any change is made in the number, class or rights of shares
subject to the Plan or subject to any offering under the Plan (through merger,
consolidation, reorganization, recapitalization, stock dividend, split-up,
combination of shares, exchange of shares, issuance of rights to subscribe or
other change in capital structure), appropriate adjustments shall be made as to
the maximum number of shares subject to the Plan and the number of shares and
price per share subject to outstanding rights of purchase as shall be equitable
to prevent dilution or enlargement of such rights; provided, however, that any
such adjustment shall comply with the rules of Section 424(a) of the Code if the
transaction is one described in said Section 424(a).
21. RETIREMENT, TERMINATION AND DEATH
In the event of a Participant's retirement or termination of
employment, the amount in any Participant's payroll deduction account shall be
refunded to such Participant and the restricted and nonrestricted shares of
stock held for such Participant's benefit by the Plan shall be issued to such
Participant, and in the event of such Participant's death, such amount and stock
shall be paid and issued to such Participant's estate.
22. AMENDMENT OF THE PLAN
This Plan may be amended at any time by the Board of Directors or
the Committee, provided that no amendment may change any option granted under
the Plan which adversely affects the rights of the holder of such option.
Notwithstanding the foregoing, without the approval of the stockholders of
Unigraphics entitled to vote thereon, no amendment shall become effective if it
would: (i) increase the number of shares reserved for rights of purchase under
the Plan; or (ii) modify the provisions of this Plan that govern eligibility for
participation in the Plan.
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23. TERMINATION OF THE PLAN
The Board of Directors or the Committee may suspend or terminate the
Plan at any time. Any cash balances remaining in Participants' payroll deduction
accounts upon termination of the Plan shall be refunded as soon thereafter as
practicable. The powers of the Committee provided by Section 3 to construe and
administer any right to purchase shares granted prior to the termination of the
Plan shall nevertheless continue after such termination.
24. LISTING OF SHARES AND RELATED MATTERS
If at any time the Committee shall determine, based on opinion of
counsel, that the listing, registration or qualification of the shares covered
by the Plan upon any national securities exchange or under any state or Federal
law or the consent or approval of any governmental regulatory body is necessary
or desirable as a condition of, or in connection with, the sale or purchase of
shares under the Plan, no shares will be sold, issued or delivered unless and
until such listing, registration, qualification, consent or approval shall have
been effected or obtained, or otherwise provided for, free of any conditions not
acceptable to counsel.
25. THIRD PARTY BENEFICIARIES
None of the provisions of the Plan shall be for the benefit of or
enforceable by any creditor of a Participant. A Participant may not create a
lien on any portion of the cash balance accumulated in such Participant's
payroll deduction account or on any shares covered by a right to purchase before
a stock certificate for such shares is issued for such Participant's benefit.
26. GENERAL PROVISIONS
The Plan shall neither impose any obligation on Unigraphics or on
any subsidiary corporation to continue the employment of any Participant or
eligible employee, nor impose any obligation on any Participant to remain in the
employ of Unigraphics or of any subsidiary corporation. For purposes of the
Plan, an employment relationship shall be deemed to exist between an individual
and a corporation if, at the time of the determination, the individual was an
"employee" of such corporation within the meaning of Section 423(a)(2) of the
Code and the regulations and rulings interpreting such Section. For purposes of
the Plan, the transfer of an employee from employment with Unigraphics to
employment with a subsidiary of Unigraphics, or vice versa, shall not be deemed
a termination of employment of the employee. Subject to the specific terms of
the Plan, all employees granted rights to purchase shares hereunder shall have
the same rights and privileges.
27. NO EFFECT ON OTHER BENEFITS
The grant of options under the Plan shall have no effect on any
other benefits to which a Participant may be entitled from Unigraphics or of any
subsidiary corporation, under a another plan or otherwise, or preclude a
Participant from receiving any such benefits.
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28. INTEREST
Absent a determination to the contrary by the Committee, in its sole
discretion, no interest shall accrue on any of the cash balance accumulated in a
Participant's payroll deduction account.
29. NOTICES
All notices or other communications by a Participant to the
Committee or the Administrator under or in connection with the Plan shall be
deemed to have been duly given when received in the form specified by the
Committee or the Administrator at the location, or by the person, designated by
the Committee or the Administrator for the receipt thereof.
30. GOVERNING LAW
Except where jurisdiction is exclusive to the federal courts or
except as governed by federal law, the Plan and rights to purchase shares that
may be granted hereunder shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware.
31. EFFECTIVE DATE
The Plan shall be effective as of April 15, 1999; provided, however,
that no purchase period under the Plan may begin until a Registration Statement
under the Securities Act of 1933, as amended, covering the shares to be issued
under the Plan has become effective; and provided further that the Plan shall be
approved by the stockholders of Unigraphics within one year before or after
approval by the Board of Directors. Any offerings made prior to the approval by
the stockholders of Unigraphics and options granted under such offerings shall
be void if such approval is not obtained.
32. DEPOSIT OF CERTIFICATED SHARES
Any employee of Unigraphics who holds Unigraphics Stock certificates
issued in any manner specified in Section 14(i)-(iii) representing shares of
Unigraphics Stock, may deposit the Unigraphics Stock certificates into the
brokerage account, if any, established for the purpose of holding shares
purchased under the Plan by transferring such shares into nominee name. Any such
transfer of certificated shares shall be made pursuant to procedures established
by the Administrator. Any employee who elects to transfer shares into nominee
name pursuant to this Section is not required to participate pursuant to Plan
Sections 6 and 7.
33. RETIREES
Notwithstanding anything to the contrary in Section 14 or elsewhere
in the Plan, Retirees who, by reason of Section 6 acquired shares pursuant to
the Plan, may continue to hold such shares in nominee name but may not purchase
any additional shares pursuant to Sections 6 and 7.
9
EXHIBIT 5.1
[UNIGRAPHICS SOLUTIONS INC. LETTERHEAD]
April 7, 1999
Unigraphics Solutions Inc.
13736 Riverport Drive
Maryland Heights, Missouri 63043
Gentlemen:
As General Counsel of Unigraphics Solutions Inc., a Delaware corporation
("the Company"), I am familiar with the Registration Statement on Form S-8 being
filed by the Company pursuant to the Securities Act of 1933, as amended (the
"Act"), with the Securities and Exchange Commission, relating to 500,000 shares
(the "Shares") of Class A Common Stock, par value $.01 per share, of the Company
that may be sold pursuant to the Unigraphics Solutions Inc. Employee Stock
Purchase 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 (i) the genuineness of all signatures
on all documents examined by me, (ii) the authenticity of all documents
submitted to me as originals, (iii) the conformity to authentic originals of all
documents submitted to me as certified or photostatic copies, and (iv) the due
authorization, execution and delivery of all documents.
Based on the foregoing, I am of the opinion that the Shares, when sold in
accordance with the terms of the Plan, will be legally issued, fully paid and
nonassessable.
The foregoing opinion is limited to the General Corporation Law of the
State of Delaware, and I express no opinion as to the laws of any other
jurisdiction. I do not assume any duty to update this opinion with respect to
changes of law or fact occurring after the date hereof.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
above-mentioned Registration Statement. In giving such consent, I do not thereby
admit that I am in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
/s/ J. Randall Walti
--------------------------
J. Randall Walti
General Counsel
EXHIBIT 23.1
Consent of Independent Auditors
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, and the
related schedule, which report appears in the December 31, 1998 Annual Report on
Form 10-K of Unigraphics Solutions Inc.
/s/ KPMG LLP
--------------------------
St. Louis, Missouri
April 7, 1999
