<PAGE> 1
As filed with the Securities and Exchange Commission on February 24, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
-------------------
UNIVERSAL COMPRESSION HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-1282680
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
150 EAST 58TH STREET
NEW YORK, NEW YORK 10155
(Address of principal executive offices)
UNIVERSAL COMPRESSION HOLDINGS, INC. NON-QUALIFIED STOCK PURCHASE PLAN
(Full title of the plan)
ERNIE DANNER
CHIEF FINANCIAL OFFICER AND
EXECUTIVE VICE PRESIDENT
4430 BRITTMOORE ROAD
HOUSTON, TEXAS 77041
(Name and address of agent for service)
(713) 466-4103
(Telephone number, including area code, of agent for service)
COPIES TO:
VALERIE L. BANNER
SENIOR VICE PRESIDENT AND
GENERAL COUNSEL
4430 BRITTMOORE ROAD
HOUSTON, TEXAS 77041
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per share............ 10,000 shares $50.00 $500,000 $139.00
- --------------------------------------------------------------------------------------------------------------------
Series A Preferred Stock,
par value $.01 per share............ 40,000 shares $50.00 $2,000,000 $556.00
====================================================================================================================
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been previously filed by
Universal Compression Holdings, Inc. (the "Company" or the "Registrant") with
the Securities and Exchange Commission and are hereby incorporated by reference
into this Registration Statement as of the dates indicated:
Prospectus dated September 18, 1998 filed pursuant to Rule
424(b)(3) with respect to the offer of the Company's Exchange
Notes registered pursuant to a Registration Statement on Form
S-4 (Registration No. 333-48283).
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998.
Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered hereunder have been sold or that
deregisters all such securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock and Series A Preferred Stock registered under this Registration
Statement on Form S-4 are being offered to employees and directors of the
Registrant and its subsidiary, Universal Compression, Inc., pursuant to an
offering under the Registrant's Non-Qualified Stock Purchase Plan by which
purchases may be made pursuant to the requirements of such offering, including
the requirement that four shares of Series A Preferred Stock be purchased for
each one share of Common Stock.
COMMON STOCK
Voting and Other Rights. The holders of the Common Stock
(other than the Non-Voting Common Stock, none of which is being registered
hereunder), are entitled to one vote for each share held of record on all
matters submitted to a vote of stockholders, including the election of
directors, and shall vote together as one class with the holders of the Series A
Preferred Stock. There are no cumulative voting rights, meaning that the holders
of a majority of the shares voting for the election of directors can elect all
the directors if they choose to do so. The Common Stock carries no preemptive
rights and is not convertible, redeemable or assessable.
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The holders of Common Stock are entitled to dividends in such
amounts and at such times as may be declared by the Board of Directors from
funds legally available therefor. So long as any share of Series A Preferred
Stock shall be issued and outstanding, the Company shall not declare, pay or set
aside for payment, any dividends on, or make any other distributions with
respect to, any shares of Common Stock. In addition, certain agreements of the
Company related to its outstanding indebtedness limit the payment of dividends.
The Company does not expect to pay dividends on the Common Stock in the
foreseeable future.
Upon liquidation or dissolution, holders of Common Stock are
entitled to share ratably in all net assets available for distribution to
shareholders after payment of preferential amounts to holders of preferred
stock. All outstanding shares of Common Stock are, and the shares of Common
Stock, if any, purchased under the Purchase Plan when issued will be, duly
authorized, validly issued, fully paid and nonassessable.
SERIES A PREFERRED STOCK
Dividends. No dividends are payable or shall accrue or be
payable on the Series A Preferred Stock other than as described below. Certain
agreements of the Company related to its outstanding indebtedness generally
limit the payment of dividends.
Redemption and Liquidation. The Series A Preferred Stock is
redeemable at any time as a whole or in part at the option of the Company for
cash in the amount of $50 per share (the "Stated Value"). If within ninety (90)
days of a liquidation, dissolution or winding up of the Company or a merger or
consolidation of the Company or a sale of substantially all of the assets of the
Company, in each case as would constitute a "Change of Control" under the
Indenture governing the Company's 11 3/8% Senior Discount Notes due 2009, the
Company has not redeemed the Series A Preferred Stock, each share of Series A
Preferred Stock shall bear dividends at the rate of 12.0% per annum of the
Stated Value thereof effective from the date of such Change in Control. Such
dividends on the Series A Preferred Stock shall accrue from day-to day whether
or not earned or declared and shall be cumulative from the date on which such
shares have been redeemed as provided therein, and shall be due and payable
quarterly, in arrears.
Restriction on Payment of Other Dividends. So long as any
share of Series A Preferred Stock shall be issued and outstanding, the Company
shall not declare, pay or set aside for payment, any dividends on, or make any
other distributions with respect to, any shares of Common Stock or other shares
of capital stock of the Company ranking junior to the Series A Preferred Stock
as to dividend rights or rights upon liquidation, dissolution or winding up.
Voting. In addition to any voting rights required by law, each
share of the Series A Preferred Stock entitles each holder to one vote on all
matters presented to the holders of the
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Common Stock generally, with the votes of the holders of the Common Stock and
the Series A Preferred Stock to be treated together as a single class.
Notwithstanding the foregoing, unless the consent or approval of a greater
number of shares shall then be required by law, the affirmative vote of the
holders of at least a majority of the outstanding shares of Series A Preferred
Stock, separately as a single class, are necessary to (i) amend, alter or repeal
any provision of the Certificate of Incorporation or Bylaws of the Company, and
(ii) effect the consolidation or merger of the Company or sale of all or
substantially all of its assets, in each case so as to affect adversely any of
the preferences, rights, powers or privileges of the Series A Preferred Stock or
the holders thereof.
OTHER VOTING MATTERS
Principal Stockholder Control. Certain principal stockholders
currently own and control in excess of 95% of the Company's outstanding voting
stock. Accordingly, they have the ability to elect the entire Board of Directors
of the Company, and in general, to determine the outcome of any other matter
submitted to stockholders for their approval, including the power to determine
the outcome of all corporate transactions, such as mergers, consolidations, and
the sale of all or substantially all of the assets of the Company.
Voting Trust. The voting rights for the Common Stock and
Series A Preferred Stock described herein are currently being contractually
exercised with respect to a majority of the outstanding shares by a voting
trustee pursuant to the terms of a voting trust agreement. All shares issued
under the Company's Non-Qualified Stock Purchase Plan will be contractually
subject to the voting trust upon their issuance.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock covered by this
Registration Statement has been passed upon for the Company by Valerie L.
Banner, Senior Vice President and General Counsel of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation, as amended, provides for
indemnification of directors to the fullest extent permitted by the relevant
provisions of the General Corporation Law of the State of Delaware (the "GCL").
The By-Laws of the Company provide similar indemnification for officers and
employees. The GCL permits a corporation to limit or eliminate a director's or
officer's personal liability to the corporation or the holders of its capital
stock for breach of duty. This limitation is generally unavailable for acts or
omissions by a director or officer which were (i) in bad faith, (ii) were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated or (iii) involved a financial profit or other advantage to
which such director was not legally entitled. The effect of these provisions is
to eliminate the rights of the Company and its stockholders (through
stockholders' derivative suits on behalf of the Company) to
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<PAGE> 5
recover monetary damages against a director or officer for breach of fiduciary
duty as a director (including breaches resulting from grossly negligent
behavior), except in the situations described above. These provisions will not
limit the liability of directors or officers under the federal securities laws
of the United States.
See Item 9 for a statement of the Company's undertaking as to
the Securities and Exchange Commission's position respecting indemnification
arising under the Securities Act of 1933 (the "Securities Act").
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 -- Certificate of Incorporation of Registrant (incorporated by
reference to Exhibit 3.1 to Registrant's Registration Statement
on Form S-4 (File No. 333-48283))
4.3 -- Bylaws of the Registrant (incorporated by reference to
Exhibit 3.2 of Registrant's Registration Statement on Form S-4
(File No. 333-482883))
5.1 -- Opinion of Valerie L. Banner, Esq. regarding the validity of
the securities being registered
23.1 -- Consent of Valerie L. Banner, Esq. (included as part of
Exhibit 5.1)
23.2 -- Consent of Deloitte & Touche LLP
23.3 -- Consent of KPMG LLP
25.2 -- Power of Attorney (set forth on the signature page contained in
Part II of this Registration Statement)
99.1 -- Universal Compression Holdings, Inc. Non-Qualified Stock
Purchase Plan
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:
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<PAGE> 6
(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 those
paragraphs is contained in periodic reports filed
with or furnished to the Commission 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 purposes 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.
(b) The undersigned registrant hereby undertakes 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 (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 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.
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(c) 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 Securities and Exchange
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.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas on the 24th day of February,
1999.
UNIVERSAL COMPRESSION HOLDINGS, INC.
By: /s/ ERNIE L. DANNER
-------------------------------------
Ernie L. Danner
Chief Financial Officer
and Executive Vice President
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Stephen A. Snider and Ernie Danner, and
each of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities to sign any or all amendments or post-effective amendments to this
Registration on Form S-8, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on February 24, 1999.
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<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
s/ STEPHEN A. SNIDER President, Chief Executive Officer and
- -------------------------------- Director
Stephen A. Snider
/s/ ERNIE L. DANNER Chief Financial Officer, Executive Vice
- -------------------------------- President and Director (Principal Financial and
Ernie L. Danner Accounting Officer)
/s/ JOHN K. CASTLE Director
- --------------------------------
John K. Castle
/s/ JEFFREY M. SIEGAL Director
- --------------------------------
Jeffrey M. Siegal
/s/ WILLIAM J. LOVEJOY Director
- --------------------------------
William J. Lovejoy
/s/ SAMUEL URCIS Director
- --------------------------------
Samuel Urcis
/s/ C. KENT MAY Director
- --------------------------------
C. Kent May
/s/ THOMAS C. CASE Director
- --------------------------------
Thomas C. Case
</TABLE>
-8-
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
- ------- ----------- ----
<S> <C> <C>
4.1 -- Certificate of Incorporation of Registrant (incorporated by
reference to Exhibit 3.1 to Registrant's Registration Statement
on Form S-4 (File No. 333-48283))
4.3 -- Bylaws of the Registrant (incorporated by reference to
Exhibit 3.2 of Registrant's Registration Statement on Form S-4
(File No. 333-482883))
5.1 -- Opinion of Valerie L. Banner, Esq. regarding the validity of
the securities being registered
23.1 -- Consent of Valerie L. Banner, Esq. (included as part of
Exhibit 5.1)
23.2 -- Consent of Deloitte & Touche LLP
23.3 -- Consent of KPMG LLP
25.2 -- Power of Attorney (set forth on the signature page contained in
Part II of this Registration Statement)
99.1 -- Universal Compression Holdings, Inc. Non-Qualified Stock
Purchase Plan
</TABLE>
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EXHIBIT 5.1
February 24, 1999
Universal Compression Holdings, Inc.
4440 Brittmoore Road
Houston, Texas 77041-8004
RE: Universal Compression Holdings, Inc. - Registration Statement
on Form S-8 relating to 10,000 shares of Common Stock and
40,000 shares of Series A Preferred Stock
Ladies and Gentlemen:
I am general counsel of Universal Compression Holdings, Inc., a Delaware
corporation (the "Company"), and have acted in such capacity in connection with
the preparation of a Registration Statement on Form S-8 (the "Registration
Statement") filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the registration of 10,000
shares of the Company's Common Stock, par value $.01 per share and 40,000 shares
of the Company's Series A Preferred Stock, par value $.01 per share (together,
the "Shares") issuable by the Company pursuant to the Universal Compression
Holdings, Inc. Non-Qualified Stock Purchase Plan.
In connection with this opinion, I have examined and relied upon such
records, documents, certificates and other instruments as in my judgment are
necessary or appropriate to form the basis for the opinions hereinafter set
forth. In all such examinations, I have assumed the genuineness of signatures on
original documents and the conformity to such original documents of all copies
submitted to me as certified, conformed or photographic copies, and as to
certificates of public officials, I have assumed the same to have been properly
given and to be accurate. As to matters of fact material to this opinion, I have
relied upon statements and representations of representatives of the Company and
of public officials.
The opinions expressed herein are limited in all respects to the
corporation laws of the State of Delaware and the laws of the State of Texas,
and no opinion is expressed with respect to the laws of any other jurisdiction
or any effect which such laws may have on the opinions expressed herein. This
opinion is limited to the matters stated herein, and no opinion is implied or
may be inferred beyond the matters expressly stated herein.
<PAGE> 2
Universal Compression Holdings, Inc. Page 2
Letter re: Registration Statement/Stock February 24, 1999
- -------------------------------------------------------------------------------
Based upon and subject to the foregoing, I am of the opinion that:
(i) The Shares are duly authorized;
(ii) Upon the issuance of the Shares against payment therefor as
provided in the Non-Qualified Stock Purchase Plan, the Shares
will be validly issued, fully paid and non-assessable.
This opinion is given as of the date hereof, and I assume no obligation
to advise you after the date hereof of facts or circumstances that come to my
attention or changes in law that occur which could affect the opinions contained
herein. This letter is being rendered solely for the benefit of the Company in
connection with the matters addressed herein. This opinion may not be furnished
to or relied upon by any person or entity for any purpose without my prior
written consent.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Matters" in the Prospectus that is related to the Registration Statement.
Very truly yours,
Valerie L. Banner
Senior Vice President and General Counsel
VLB/jg
enclosures
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Universal Compression Holdings, Inc. on Form S-8 of our report dated June 1,
1998 on the consolidated financial statements of Universal Compression Holdings,
Inc. and subsidiary and our report dated June 1, 1998 on the financial
statements of Tidewater Compression Service, Inc., appearing in the Prospectus
dated September 18, 1998 which is incorporated by reference in this Registration
Statement.
We also consent to the reference to us under the heading "Experts" in
such Prospectus.
DELOITTE & TOUCHE LLP
Houston, Texas
February 24, 1999
<PAGE> 1
Exhibit 23.3
Independent Auditors' Consent
The Board of Directors
Universal Compression Holdings, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
KPMG LLP
New Orleans, Louisiana
February 23, 1999
<PAGE> 1
EXHIBIT 99.1
UNIVERSAL COMPRESSION HOLDINGS, INC.
NON-QUALIFIED STOCK PURCHASE PLAN
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 1. Purpose.............................................................1
Section 2. Definitions.........................................................1
2.1. Account.............................................................1
2.2. Beneficiary.........................................................1
2.3. Board...............................................................1
2.4. Buyback Agreement...................................................1
2.5. Committee...........................................................1
2.6. Common Stock........................................................1
2.7. Company.............................................................2
2.8. Eligible Employee...................................................2
2.9. Eligible Director...................................................2
2.10. Participant.........................................................2
2.11. Participating Employer..............................................2
2.12. Plan................................................................2
2.13. Plan Administrator..................................................2
2.14. Preferred Stock.....................................................2
2.15. Purchase Date.......................................................3
2.16. Purchase Notice.....................................................3
2.17. Purchase Period.....................................................3
2.18. Purchase Price......................................................3
2.19. Stock...............................................................3
2.20. Stockholders Agreement..............................................3
2.21. Voting Trust Agreement..............................................3
2.22. Voting Trust Certificate............................................3
Section 3. Effective Date......................................................4
Section 4. Stock Offerings.....................................................4
Section 5. Administration......................................................4
Section 6. Participation.......................................................4
Section 7. Level of Purchases Under Plan.......................................5
7.1. General Rule........................................................5
7.2. Special Stock Purchase Requirements.................................5
7.3. Available Shares of Stock...........................................5
</TABLE>
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<TABLE>
<S> <C> <C>
Section 8. Payment.............................................................6
8.1 Payment.............................................................6
8.2 Account Credits and General Assets..................................6
8.3 Automatic Refunds...................................................6
8.4 Refunds on Purchase Notice Revocation...............................7
Section 9. Delivery of Stock Certificates or Voting Trust Certificates.........7
Section 10. Designation of Beneficiary..........................................8
Section 11. Transferability.....................................................8
Section 12. Securities Registration.............................................8
Section 13. Amendment or Termination............................................8
Section 14. Notices.............................................................9
Section 15. Employment..........................................................9
Section 16. Headings, References and Construction..............................10
</TABLE>
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<PAGE> 4
UNIVERSAL COMPRESSION HOLDINGS, INC.
NON-QUALIFIED STOCK PURCHASE PLAN
Section 1. PURPOSE.
The primary purpose of this Plan is to encourage Stock
ownership by each Eligible Director and each Eligible Employee in the belief
that such ownership will increase his or her interest in the success of the
Company and will provide an additional incentive for him or her to remain in the
employ of the Company or another Participating Employer.
Section 2. DEFINITIONS.
Each term set forth in this Section 2 shall have the meaning
set forth below and any reference to the plural of a defined term shall include
the singular.
2.1. The term Account means the separate bookkeeping
account that shall be established and maintained by the Plan Administrator for
each Participant to record the payments made by him or her or on his or her
behalf to purchase Stock under this Plan.
2.2. The term Beneficiary means the person designated as
such in accordance with Section 10.
2.3. The term Board means the Board of Directors of the
Company.
2.4. The term Buyback Agreement means the agreement
between the Company and each Participant by which the Company has the right, but
not the obligation, to buy back Stock from the Participant in certain
circumstances.
2.5. The term Committee means the Compensation Committee
of the Board.
<PAGE> 5
2.6. The term Common Stock means the $.01 par value
common stock of the Company.
2.7. The term Company means Universal Compression
Holdings, Inc., and any successor to the Company.
2.8. The term Eligible Employee means each full time
employee of the Company or a Participating Employer who has been an employee of
the Company or the Participating Employee at least one month. An Employee's
continuous employment by the Company or by a Participating Employer shall not be
treated as interrupted by a transfer directly between the Company and any
Participating Employer or between one Participating Employer and another
Participating Employer.
2.9. The term Eligible Director shall mean a person
(other than an officer or employee of the Company or a Participating Employer)
who has been a member of the Board for at least one month.
2.10. The term Participant means for each Purchase Period
an Eligible Employee or Eligible Director who has elected to buy Stock in such
Purchase Period.
2.11. The term Participating Employer means the Company,
Universal Compression, Inc., and any organization owned in whole or in part,
directly or indirectly by the Company which is designated as eligible to
participate in this Plan by the Committee or Board.
2.12. The term Plan means this Universal Compression
Holdings, Inc. Non-Qualified Stock Purchase Plan, as in effect on the date
hereof and as amended from time to time.
2.13. The term Plan Administrator shall mean the Company
or the Company's designee.
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<PAGE> 6
2.14. The term Preferred Stock means the $.01 par value
Series A Preferred Stock of the Company.
2.15. The term Purchase Date means with respect to each
Purchase Period the day or days, no sooner than the last day of such Purchase
Period, which are set by the Administrator for Closing of the Stock purchases
for such Purchase Period. No Purchase Date with respect to the purchase of Stock
under this Plan shall be prior to receipt by the Company of complete payment for
such Stock.
2.16. The term Purchase Notice means the form that an
Eligible Director or Eligible Employee shall be required to properly complete
and timely file in order to purchase Stock under this Plan.
2.17. The term Purchase Period shall mean a period set by
the Committee or Board.
2.18. The term Purchase Price means for each Purchase Period
the price that the Board acting in good faith determines through any reasonable
valuation method that a share of Stock might change hands between a willing
buyer and a willing seller, neither being under any compulsion to buy or to
sell and both having reasonable knowledge of the relevant facts.
2.19. The term Stock means Common Stock and Preferred
Stock.
2.20. The term Stockholders Agreement means the agreement
between the Company and certain of its stockholders including, without
limitation, the Participants.
2.21. The term Voting Trust Agreement means the
agreement between the Company, the Company's stockholders and a voting trustee
whereby Stock is deposited with a voting trustee.
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<PAGE> 7
2.22. The term Voting Trust Certificate means certificates
issued pursuant to the Voting Trust Agreement.
Section 3. EFFECTIVE DATE.
The effective date of this Plan shall be February 19, 1999.
Section 4. STOCK OFFERINGS.
Eligible Directors and Eligible Employees shall be given the
opportunity to purchase shares of Stock in accordance with this Plan from time
to time at the discretion of the Board; provided, however, there shall be no
more than one Purchase Period in effect at any time.
Section 5. ADMINISTRATION.
Except for the exercise of those powers expressly granted
under this Plan to the Board or to the Committee, the Plan Administrator shall
be responsible for the administration of this Plan and shall have the power in
connection with such administration to interpret this Plan and to take such
other action in connection with such administration as the Plan Administrator
deems necessary or equitable under the circumstances. The Plan Administrator
also shall have the power to delegate the duty to perform such administrative
functions as the Plan Administrator deems appropriate under the circumstances.
Any person to whom the duty to perform an administrative function is delegated
shall act on behalf of and shall be responsible to the Plan Administrator for
such function. Any action or inaction by or on behalf of the Plan Administrator
under this Plan shall be final and binding on each Eligible Director, each
Eligible Employee, each Participant, and on each other person who makes a claim
under this Plan based on the rights, if any, of any such Eligible Director,
Eligible Employee or Participant under this Plan.
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<PAGE> 8
Section 6. PARTICIPATION.
Each person who is an Eligible Director or an Eligible
Employee on the first day of an Offering Period shall be a Participant in this
Plan for the related Purchase Period if he or she properly completes in writing
and files a Purchase Notice with the Plan Administrator on or before the last
day of such Purchase Period and meets all other requirements to purchase shares
of Stock, and he or she remains an Eligible Employee or Eligible Director, as
applicable, through payment for the Shares in accordance with the procedures
established by the Plan Administrator. A Purchase Notice may require an Eligible
Employee to provide such information and to agree to take such action as the
Plan Administrator in its discretion deems necessary or appropriate in light of
the purpose of the Plan or for the orderly administration of this Plan
including, without limitation, the agreement of a Participant to be bound by the
terms of agreements such as the Voting Trust Agreement, the Stockholders
Agreement, a Buyback Agreement and other agreements related to the Participant's
ownership of Stock.
Section 7. LEVEL OF PURCHASES UNDER PLAN.
7.1 General Rule. Subject to the provisions 7.1 and 7.2
below, each person who is a Participant for a Purchase Period shall be entitled
to purchase the number of shares of Stock that such Participant elects to
purchase in accordance with the requirements established by the Plan
Administrator.
7.2 Special Stock Purchase Requirements. The Committee may
establish requirements for the purchase of Stock pursuant to this Plan,
including, without limitation, minimum and maximum Stock purchases per
Participant and requirements related to the type of Stock and proportions of
purchase of Common Stock and Preferred Stock.
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7.3 Available Shares of Stock. If the number of shares of
Stock established by the Board as available for purchase at the end of any
Purchase Period is insufficient to cover the number of shares that Participants
elect to purchase pursuant to valid Purchase Notices, then each Participant's
option to purchase shares of Stock for such Purchase Period shall be reduced as
of the last day of such Purchase Period to equal the number of shares of Stock
(rounded down to the nearest whole number) that the Plan Administrator shall
determine by multiplying the number of shares of Stock available for purchase as
of such date by a fraction, the numerator of which shall be the number of shares
of Stock which such Participant has elected to purchase in his or her Purchase
Notice and the denominator of which shall be the total number of shares of Stock
which all Participants have elected to purchase by Purchase Notices pursuant to
the provisions of this Plan.
Section 8. PAYMENT.
8.1 Payment. A Participant may not make any contribution to
his or her Account except through payments made pursuant to the procedures
established by the Plan Administrator. Full payment for Stock purchased under
the Plan shall be made by a Participant in an aggregate amount equal to the
Purchase Price times the number of shares of Stock that such Participant elects
to purchase pursuant to the procedures established by the Plan Administrator.
The Company shall have no obligation to accept payment for Stock past the last
day of the Purchase Period.
8.2 Account Credits and General Assets. All payments made by a
Participant under this Plan shall be held by the Company or such Participant's
Participating Employer, as agent for the Company. All such payments shall be
held as part of the general assets of the Company and shall not be held in trust
or otherwise segregated from the Company's general assets. No interest
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shall be paid or accrued on any such contributions. Each Participant's right to
the payments credited to his or her Account shall be that of a general and
unsecured creditor of the Company.
8.3 Automatic Refunds. Any balance credited to the Account
of an Eligible Director automatically shall be refunded in full (without
interest) if his or her status as a member of the Board terminates for any
reason whatsoever prior to the Purchase Date with respect to his or her purchase
of Stock under this Plan, and any balance credited to the Account of an Eligible
Employee automatically shall be refunded in full (without interest) if his or
her status as an employee of a Participating Employer terminates for any reason
whatsoever prior to the Purchase Date with respect to his or her purchase of
Stock under this Plan. Such refunds shall be made as soon as practicable after
the Plan Administrator has actual notice of any such termination. A person's
status as a Participant under this Plan shall terminate at the same time as his
or her status as an Eligible Director or Eligible Employee terminates.
8.4 Refunds on Purchase Notice Revocation. If a Participant
revokes a Purchase Notice prior to the end of a Purchase Period, or to the
extent permitted by the Administrator prior to the Purchase Date, the balance
credited to such Participant's Account, if any, with respect to such revoked
Purchase Notice shall be refunded in full (without interest) as soon as
practicable after the Plan Administrator receives such revocation.
Section 9. DELIVERY OF STOCK CERTIFICATES OR VOTING TRUST CERTIFICATES.
A stock certificate representing any shares of Stock purchased
under this Plan, or at such times as a Voting Trust Agreement is in effect with
respect to the Stock, a Voting Trust Certificate with respect to the shares of
Stock purchased under this Plan, shall be delivered to a Participant registered
in his or her name. No Participant (or any person who makes a claim through
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a Participant) shall have any interest in any shares of Stock until the
certificate or certificates for such shares of Stock, or Voting Trust
Certificates with respect to such shares of Stock, respectively has been
delivered to such person. The rights of a Participant in the shares of Stock
shall be subject to the terms of all agreements required to be executed by
Participant pursuant to the requirements established by the Administration for
purchases of Stock.
Section 10. DESIGNATION OF BENEFICIARY.
A Participant may designate on his or her Purchase Notice a
Beneficiary who shall receive the Stock, if any, purchased by the Participant
under this Plan if the Participant dies after a Purchase Date but before the
delivery of the certificate representing such shares of Stock or if the
Participant dies with a balance credited to his or her Participant's Account,
the amount held in such Participant Account. If a deceased Participant fails to
designate a Beneficiary or, if no person so designated survives a Participant,
or if after checking his or her last known mailing address, the whereabouts of
the person so designated are unknown, then the Participant's estate shall be
treated as his or her designated Beneficiary for purposes of this Plan.
Section 11. TRANSFERABILITY.
No rights to purchase shares of Stock under this Plan may be
assigned, encumbered, alienated, transferred, pledged, or otherwise disposed of
in any way by a Participant, and any attempt to do so shall be without effect. A
Participant's right, if any, to transfer any interest in this Plan at his or her
death shall be determined exclusively under Section 10.
Section 12. SECURITIES REGISTRATION.
If the Company shall deem it necessary to register under the
Securities Act of 1933, as amended, or any other applicable securities laws any
shares of Stock purchased under this Plan
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or to qualify any such shares of Stock for an exemption from any such laws, the
Company shall take such action at its own expense before delivery of the
certificate representing such shares of Stock.
Section 13. AMENDMENT OR TERMINATION.
This Plan may be amended by the Board from time to time to the
extent that the Board deems necessary or appropriate; provided, however, no
amendment shall be retroactive unless the Board in its discretion determines
that such amendment is in the best interest of the Company or such amendment is
required by applicable law to be retroactive. The Board also may terminate this
Plan or any offering made under this Plan at any time; provided, however, no
such termination shall be retroactive unless the Board in its discretion
determines that such termination is in the best interest of the Company or that
applicable law requires a retroactive termination of this Plan or an offering
made under the Plan.
Section 14. NOTICES.
All Purchase Notices and other communications from a
Participant to the Plan Administrator under, or in connection with, this Plan
shall be deemed to have been filed with the Plan Administrator when actually
received in the form specified by the Plan Administrator at the location, or by
the person, designated by the Plan Administrator for the receipt of such
Purchase Notices and communications.
Section 15. EMPLOYMENT.
The right to elect to participate in this Plan shall not
constitute an offer of employment or membership on the Board, and no election to
participate in this Plan shall constitute an employment agreement for an
Eligible Employee or an agreement with respect to Board membership for an
Eligible Director. Any such right or election shall have no bearing whatsoever
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on the employment relationship between an Eligible Employee and any other person
or on an Eligible Director's status as a member of the Board. Finally, no
Eligible Employee shall be induced to participate in this Plan, or shall
participate in this Plan, with the expectation that such participation will lead
to employment or continued employment, and no Eligible Director shall be induced
to participate in this Plan, or shall participate in this Plan, with the
expectation that such participation will lead to continued membership on the
Board.
Section 16. HEADINGS, REFERENCES AND CONSTRUCTION.
The headings to Sections in this Plan have been included for
convenience of reference only. Except as otherwise expressly indicated, all
references to Sections are to Sections of this Plan. This Plan shall be
construed in accordance with the laws of the State of Delaware.
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