<PAGE>
As filed with the Securities and Exchange Commission on March 17, 2000
Registration No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
IFCO SYSTEMS N.V.
(Exact name of registrant as specified in its charter)
----------------
<TABLE>
<S> <C>
The Netherlands 98-0216429
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
"Rivierstaete" Amsteldijk 166
1079 LH
Amsterdam, The Netherlands
(Address of principal executive offices)
----------------
IFCO Systems N.V.
2000 Stock Option Plan
(Full Title of the Plan)
Edward Rhyne, Esq.
c/o PalEx, Inc.
6829 Flintlock Road
Houston, Texas 77040
(Name and address of agent for service)
713-332-6145
(Telephone number, including area code, of agent for service)
Copies to:
Stephen M. Wiseman
King & Spalding
1185 Avenue of the Americas
New York, New York 10036-4003
----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
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- ------------------------------------------------------------------------------------
<CAPTION>
Proposed
Proposed Maximum
Maximum Aggregate Amount of
Title of Securities Amount to be Offering Price Offering Registration
to be Registered Registered Per Share(1) Price(1) Fee
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Ordinary Shares, nominal
value two euros per 6,064,802 $14.81 $55,947,577.48
share................. shares $24.94 $57,018,077.40 $29,822.93
- ------------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(c) and Rule 457(h) based on (i) with respect to
3,778,592 shares being offered pursuant to outstanding stock options, the
aggregate exercise price of such options, which is equal to $55,947,577.48
(reflecting an average exercise price of approximately $14.81 per share)
and (ii) with respect to 2,286,210 shares for which options may be granted
in the future, the average of the high and low sales prices per share of
the Ordinary Shares of IFCO Systems N.V. as reported on the Nasdaq
National Market on March 17, 2000.
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- -------------------------------------------------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registration Information and Employee Plan Annual Information.*
- --------
* Information required by Part I to be contained in Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428
under the Securities Act of 1933, as amended, and the "Note" to Part I of
Form S-8.
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by IFCO Systems N.V. (the
"Company") with the Securities and Exchange Commission (the "Commission") and
are hereby incorporated by reference into this Registration Statement as of
their respective dates:
(1) The Company's Prospectus dated March 3, 2000 as filed with the
Commission on March 6, 2000 pursuant to Rule 424(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the financial
statements included therein (other than the financial statements of PalEx,
Inc. and IFCO-U.S., L.L.C.); and
(2) The description of the Company's ordinary shares, nominal value two
euros per share (the "Ordinary Shares"), contained in the Company's
Registration Statement on Form 8-A dated February 2, 2000 as filed with the
Commission on February 3, 2000, including any amendment or report filed for
the purposes of updating such description.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of 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 which indicates that all securities offered
hereunder have been sold, or which 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.
Any statement contained in a document incorporated or deemed incorporated by
reference into this Registration Statement 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 by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company has agreed to indemnify each member of its board of directors
and its officers if, in the course of executing his or her duties, the member
or officer incurs personal liability under civil laws, subject to the right of
the Company to recover payment from each such member or officer to the extent
permitted by applicable law. The Company will also maintain an insurance policy
with a third-party carrier insuring members of the board of directors against
the foregoing liabilities.
3
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index (attached).
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, as amended (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.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(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.
(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 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 Act and will be governed by the final
adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Houston, Texas on the 17th day of March, 2000.
IFCO SYSTEMS N.V.
By: /s/ Edward Rhyne
-------------------------------
Name: Edward Rhyne, Esq.
Title: Executive Vice President and
General Counsel
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints and hereby authorizes Edward Rhyne, acting
alone, as such person's true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution for such person and in his name, place
and stead, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing necessary or desirable
to be done in and about the premises, as fully and to all intents and purposes
as the undersigned might or could do in person, hereby ratifying and confirming
all acts and things 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, as amended, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacity indicated on the dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
--------- ----- ----
/s/Martin A. Schoeller Director and Chief March 17, 2000
___________________________________________ Executive Officer
Martin A. Schoeller (principal executive
officer)
/s/Vance K. Maultsby, Jr. Chief Financial Officer March 17, 2000
___________________________________________ (principal financial
Vance K. Maultsby, Jr. and accounting officer)
/s/Sam W. Humphreys Director March 17, 2000
___________________________________________
Sam W. Humphreys
/s/Christoph Schoeller Chairman of the Board March 17, 2000
___________________________________________ and Director
Christoph Schoeller
/s/Eckhard Pfeiffer Director March 17, 2000
___________________________________________
Eckhard Pfeiffer
</TABLE>
5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Document Description
----------- --------------------
<C> <S>
3.1 Articles of Association of the Company (English translation)
(incorporated by reference to
Appendix D to the proxy statement/prospectus filed as part of the
Company's Registration
Statement on Form F-4, registration no. 333-96021).
4.1 Specimen Certificate of the Company's Ordinary Shares
(incorporated in by reference to
Exhibit 4.1 filed as part of the Company's Registration Statement
on Form F-4,
registration no. 333-96021).
5.1 Opinion of Stibbe Simont Monahan Duhot P.C.
10.1 IFCO Systems N.V. 2000 Stock Option Plan.
23.1 Consent of PwC Deutsche Revision AG.
23.2 Consent of Stibbe Simont Monahan Duhot P.C. (included in Exhibit
5.1).
24.1 Power of Attorney (included on signature page hereto).
</TABLE>
<PAGE>
Exhibit 5.1
March 17, 2000
IFCO Systems N.V.
Rivierstaete
Amsteldijk 166
1079 LH Amsterdam
The Netherlands
Ladies and Gentlemen:
We have acted as legal counsel in the Netherlands to IFCO Systems N.V., a public
limited liability company under the laws of The Netherlands (the "Company"), in
connection with the filing by the Company under the Securities Act of 1933, as
amended, of a registration statement on Form S-8, dated the date hereof (the
"Registration Statement") with the United States Securities and Exchange
Commission. The Registration Statement relates to the registration of 6,064,802
ordinary shares of the Company issuable from time to time under the IFCO
Systems N.V. 2000 Stock Option Plan (the "Option Shares").
In rendering this opinion we have examined and relied upon the following
documents:
(1) The IFCO Systems N.V. 2000 Stock Option Plan as filed with the Registration
Statement (the "Plan");
(2) the Registration Statement;
(3) an excerpt dated the date hereof of the registration of the Company in the
Trade Register of the Chamber of Commerce of Amsterdam, The Netherlands
(the "Excerpt");
(4) a copy of the Deed of Incorporation of the Company (the "Deed of
Incorporation"), executed on March 31, 1999;
(5) the current articles of association (statuten) of the Company which
according to the Extract are in force on the date hereof (the "Articles");
(6) resolutions by the Board of Directors of the Company dated March 7, 2000;
(7) resolutions by the shareholders of the Company dated March 2, 2000;
<PAGE>
2
(8) a company certificate of even date attached hereto as Annex 1 (the "Company
-------
Certificate");
and such other documents and such treaties, laws, rules, regulations, and the
like, as we have deemed necessary as a basis for the opinions hereinafter
expressed.
We have assumed:
(i) the genuineness of all signatures;
(ii) the authenticity of all the agreements, certificates, and other documents
submitted to us as originals;
(iii) the conformity to the originals of all documents submitted to us as
copies;
(iv) that any Option Shares will be issued, offered, sold, delivered, duly
accepted by the subscribers therefor, persons entitled to purchase Option
Shares under the Plan, (a) as contemplated and in accordance with the
Plan and the Registration Statement, (b) in accordance with any
applicable law, (c) in accordance with the articles of association of the
Company as in force at the time of issuance of such Option Shares and (d)
with such terms so as not to violate any applicable law (including, for
the avoidance of doubt, any law applicable at the time of such issue,
offer, sale, delivery and acceptance) and upon issue of each Option Share
at least a consideration (in cash or in kind) will be paid to the Company
on such Option Share with a value equal to the nominal amount thereof and
any premium agreed upon;
(v) that each time when an Option Share is issued, the authorized capital
("maatschappelijk kapitaal") and the issued capital ("geplaatst
kapitaal") of the Company are such that such Option Share can be validly
issued; and
(vi) that the contents of the Excerpt and the Company Certificate are true and
complete as of the date hereof.
Based on the foregoing and subject to any factual matters or documents not
disclosed to us in the course of our investigation, and subject to the
qualifications and limitations stated hereafter, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing under the law
of the Netherlands as a legal entity in the form of a "Naamloze
Vennootschap".
2. The Option Shares have been duly authorized and will be validly issued by
the Company in accordance with the law of the Netherlands and the provisions
of the
<PAGE>
3
Articles of Association applicable thereto and will be fully paid up and
non-assessable.
The opinions expressed above are subject to the following qualification:
Pursuant to article 3 paragraph 1 of the Netherlands 1995 Act on the supervision
of the securities trade ("Wet toezicht effectenverkeer 1995", the "Securities
Act") it is prohibited to offer securities upon issue (as further defined in
such act) in or from within the Netherlands outside a closed circle or to hold
the prospect of such offering by means of advertisements or documents. The
Securities Board of the Netherlands ("Stichting Toezicht Effectenverkeer")
generally takes the view that the offering of securities by a company to its
employees, managing directors or supervisory directors and to employees,
managing directors or supervisory directors of group companies
("groepsmaatschappijen") of such company within the meaning of article 24b of
Book 2 of the Netherlands Civil Code falls within a "closed circle" within the
meaning of article 3 paragraph 1 of the Securities Act. According to the
Securities Board an offering of securities to a broader group of persons,
including e.g. consultants, does not fall within such "closed circle". It is
uncertain what the legal consequences are of acting in breach of the prohibition
as set out in article 3 paragraph 1 of the Securities Act. It cannot be excluded
that the relevant legal act is null and void or voidable.
We express no opinion on any law other than the law of The Netherlands as it
currently stands and has been interpreted in published case law of the courts of
The Netherlands as per the date hereof. We express no opinion on any laws of the
European Communities (insofar as not implemented in The Netherlands in statutes
or other regulations of general application).
This opinion is strictly limited to the matters stated herein and may not be
read as extending by implication to any matters not specifically referred to.
Nothing in this opinion should be taken as expressing an opinion in respect of
any representations or warranties, or other information, or any other document
examined in connection with this opinion except as expressly confirmed herein.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement.
Yours sincerely,
Stibbe Simont Monahan Duhot P.C.
<PAGE>
Exhibit 10.1
IFCO SYSTEMS N.V.
2000 STOCK OPTION PLAN
Section 1. Purpose
The IFCO Systems N.V. 2000 Stock Option Plan: (i) authorizes the Committee
to grant to Employees of IFCO Systems N.V., and its Parents and Subsidiaries,
Options to acquire ordinary shares the Corporation and (ii) provides for the
grant of Options to Non-Employee Directors of the Corporation in accordance
with the terms specified herein.
Section 2. Definitions
Unless the context clearly indicates otherwise, the following terms, when
used in this Plan, shall have the meanings set forth in this Section:
(a) "Board" shall mean the Board of Directors of the Corporation.
(b) "Cause" shall mean: (i) Grantee's willful, material and irreparable
breach of any agreement which governs the terms and conditions of his or
her employment; (ii) Grantee's gross negligence or gross incompetence in
the performance or intentional nonperformance (continuing for 10 days after
receipt of written notice of such negligence) of any of Grantee's material
duties and responsibilities; (iii) Grantee's dishonesty, fraud or
misconduct with respect to the business or affairs of the Corporation or
any Parent or Subsidiary; (iv) Grantee's conviction or plea of guilty or
nolo contendere of a felony crime; or (v) Grantee's chronic abuse of
alcohol or illegal drugs.
(c) A "Change in Control" of the Corporation shall occur when: (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Corporation
representing 30% or more of the combined voting power of the Corporation's
then outstanding securities; (ii) as a result of, or in connection with,
any tender offer or exchange offer, merger or other business combination (a
"Transaction"), the persons who were directors of the Corporation
immediately before the Transaction shall cease to constitute a majority of
the board of directors of the Corporation or any successor to the
Corporation; (iii) the Corporation is merged or consolidated with another
corporation and as a result of the merger or consolidation less than 50% of
the outstanding voting securities of the surviving or resulting corporation
shall then be owned in aggregate by the former stockholders of the
Corporation; (iv) a tender offer or exchange offer is made and consummated
for the ownership of securities of the Corporation representing 50% or more
of the combined voting power of the Corporation's then outstanding voting
securities; or (v) the Corporation transfers substantially all of its
assets to another corporation which is not controlled by the Corporation.
(d) "Code" shall mean the U.S. Internal Revenue Code of 1986, as it may
be amended from time to time.
(e) "Committee" shall mean the Board, or any Committee of two or more
Directors that may be designated by the Board to administer this Plan,
provided that any such designated Committee consists solely of Non-Employee
Directors and outside directors within the meaning of Section 162(m) of the
Code.
(f) "Control Person" shall mean any person who, as of the date of grant
of an Option, owns (within the meaning of Section 422(b)(6) of the Code)
stock possessing more than 10% of the total combined voting power or value
of all classes of stock of the Corporation or of any Parent or Subsidiary.
(g) "Corporation" shall mean IFCO Systems N.V., a corporation organized
under the laws of the Netherlands.
<PAGE>
(h) "Director" shall mean any member of the Board.
(i) "Employee" shall mean any full-time employee of the Corporation or
its Parents or Subsidiaries (including Directors who are otherwise employed
on a full-time basis by the Corporation or its Parents or Subsidiaries).
(j) "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934,
as amended.
(k) "Fair Market Value" shall mean, with respect to the Stock of the
Corporation on a given date: (i) if the Stock is listed on a national
securities exchange or quoted in an interdealer quotation system, the last
sales price or, if unavailable, the average of the closing bid and asked
prices per share of the Stock on such date (or, if there was no trading or
quotation in the Stock on such date, on the next preceding date on which
there was trading or quotation) as provided by one of such organizations;
or (ii) if the Stock is not listed on a national securities exchange or
quoted in an interdealer quotation system, as determined by the Committee
in good faith in its sole discretion; provided, however, that the "Fair
Market Value" of Stock on or before the closing date of the Initial Public
Offering of the Shares shall be the Initial Public Offering Price of the
Shares issued and sold pursuant to a registration statement filed with and
declared effective by the SEC (the "Registration Statement"), as set forth
in the first final prospectus used in such offering.
(l) "Grantee" shall mean a person granted an Option under the Plan.
(m) "Initial Public Offering" shall mean the initial public offering
of shares of Stock in a firm commitment underwriting registered with the
SEC in compliance with the provisions of the 1933 Act.
(n) "ISO" shall mean an Option granted pursuant to the Plan to purchase
shares of Stock and intended to qualify as an incentive stock option under
Section 422 of the Code, as now or hereafter constituted.
(o) "1933 Act" shall mean the U.S. Securities Act of 1933, as amended.
(p) A "Non-Employee Director" shall mean a director who:
(i) is not currently an officer (as defined in Rule 16a-1(f) under
the Exchange Act) of the Corporation or a Parent or Subsidiary, or
otherwise currently employed by the Corporation or a Parent or
Subsidiary;
(ii) does not receive compensation, either directly or indirectly,
from the Corporation or a Parent or Subsidiary, for services rendered
as a consultant or in any capacity other than as a Director, except for
an amount that does not exceed the dollar amount for which disclosure
would be required pursuant to Item 404(a) of SEC Regulation S-K;
(iii) does not possess an interest in any other transaction for
which disclosure would be required pursuant to Item 404(a) of SEC
Regulation S-K; and
(iv) is not engaged in a business relationship for which disclosure
by the Corporation would be required pursuant to Item 404(b) of SEC
Regulation S-K.
provided, however that if the definition of "Non-Employee Director" as set
forth in the rules promulgated under Section 16 of the Exchange Act or in
accounting rules applicable to accounting for stock options issued by the
Financial Accounting Standards Board in either case, from time to time, is
more restrictive than the foregoing, then the most restrictive definition
shall be controlling.
(q) "NQSO" shall mean an Option to purchase shares of Stock granted
pursuant to the Plan that is not an ISO.
(r) "Option" or "Options" shall mean to one or more NQSOs and ISOs
issued under and subject to the Plan.
2
<PAGE>
(s) "Parent" shall mean any parent entity of the Corporation as defined
in Section 424(e) of the Code.
(t) "SEC" shall mean the U.S. Securities and Exchange Commission.
(u) "Plan" shall mean this 2000 Stock Option Plan as set forth herein
and as amended from time to time.
(v) "Stock" shall mean ordinary shares of the Corporation, nominal value
two euros per share.
(w) "Subsidiary" shall mean any entity with respect to which the
Corporation owns, directly or indirectly, 50% or more of the total combined
voting power of all classes of securities of such entity, except that, with
respect to ISOs, "Subsidiary" shall have the meaning set forth in section
424(f) of the Code.
Section 3. Shares of Stock Subject to the Plan
Subject to the provisions of Section 10, the total amount of Stock with
respect to which NQSOs may be granted under the Plan shall not exceed the
greater of 15% of shares outstanding from time to time and 6,000,000 shares,
and the total amount of stock with respect to which ISOs may be granted under
the Plan shall not exceed 2,000,000, provided that the aggregate amount of
Stock with respect to which ISOs and NQSOs may be granted shall not exceed the
greater of 15% of any shares outstanding from time to time and 6,000,000
shares. Stock issuable under the Plan may be authorized but unissued shares or
reacquired shares of Stock. If, prior to exercise, any Options are forfeited,
lapse or terminate for any reason, the Stock covered thereby may again be
available for Option grants under the Plan.
Section 4. Administration of the Plan
The Plan shall be administered by the Committee. Subject to the express
provisions of the Plan, the Committee shall have the authority to interpret the
Plan, to prescribe, amend and rescind rules and regulations relating to the
Plan, to determine the terms and provisions of Option agreements hereunder, and
to make all other determinations necessary or advisable for the administration
of the Plan. Any controversy or claim arising out of or related to the Plan or
the Options granted hereunder shall be determined unilaterally by, and at the
sole discretion of, the Committee. To the extent necessary to comply with Rule
16b-3 under the Exchange Act or Section 162(m) of the Code, determinations
concerning Options granted to any person who is a Director or officer shall be
made by the Committee.
Section 5. Types of Options
Options granted under the Plan may be of two types: ISOs and NQSOs. The
Committee shall have the authority and discretion to grant to an eligible
Employee either ISOs, NQSOs or both, but shall clearly designate the nature of
each Option at the time of grant. Grantees who are not Employees of the
Corporation or a Parent or Subsidiary on the date an Option is granted shall
only receive NQSOs.
Section 6. Grant of Options to Employees
(a) Employees of the Corporation and its Parents and Subsidiaries shall be
eligible to receive Options under the Plan.
(b) The exercise price per share of Stock subject to an Option granted to an
Employee shall be determined by the Committee, provided, however, that the
exercise price of each share subject to an ISO shall be not less than 100% of
the Fair Market Value of a share of Stock on the date such Option is granted,
or, in the case of an ISO granted to a Control Person, not less than 110% of
such Fair Market Value.
(c) The term of each Option granted to an Employee shall be determined by
the Committee, provided, however, that no ISO shall be exercisable more than 10
years from the date of Option Grant, and no ISO granted to a Control Person
shall be exercisable more than five years from the date of Option grant.
Notwithstanding the foregoing, the actual grant of any options hereunder must
be approved by the Board of Directors.
3
<PAGE>
(d) The Committee shall determine and designate from time to time Employees
who are to be granted Options, the nature of each Option granted and the number
of shares of Stock subject to each such Option, provided, however, that in any
calendar year, no Employee may be granted an Option to purchase more than
2,000,000 shares of Stock (determined without regard to when such Option is
exercisable), subject to adjustment pursuant to Section 10.
(e) Notwithstanding any other provisions hereof, the aggregate Fair Market
Value (determined at the time the ISO is granted) of the Stock with respect to
which ISOs are exercisable for the first time by any Employee during any
calendar year under all plans of the Corporation and any Parent or Subsidiary
shall not exceed $100,000. To the extent the limitation set forth in the
preceding sentence is exceeded, the Options with respect to such excess shall
be treated as NQSOs.
(f) The Committee, in its sole discretion, shall determine whether any
Option granted to an Employee shall become exercisable in one or more
installments and specify the installment dates. The Committee may also make
such other provisions, not inconsistent with the terms of this Plan, as it may
deem desirable, including such provisions as it may deem necessary to qualify
any ISO under the provisions of Section 422 of the Code. Notwithstanding any
determination by the Committee regarding the exercise period of any Option
granted to an Employee, all such Options shall immediately become exercisable
upon a Change in Control.
(g) The Committee may, at any time, grant new or additional options to any
eligible Employee who has previously received Options under this Plan, or
options under other plans, whether such prior Options or other options are
still outstanding, have been exercised previously in whole or in part, or have
been canceled. The exercise price of such new or additional Options may be
established by the Committee, subject to Section 6(b) hereof, without regard to
such previously granted Options or other options.
Section 7. Grants of Options to Non-Employee Directors
(a) Non-Employee Directors of the Corporation shall be eligible to receive
Options under the Plan as determined by the Board. In connection with the grant
of any such options, the Board shall also exclude any statutory preemptive
rights for shareholders.
(b) Each Option granted to a Non-Employee Director shall become exercisable
six months from, and shall have a term of 10 years from, the date of Option
grant, or, if later, the date the Grantee becomes a Non-Employee Director.
Notwithstanding the exercise period of any Option granted to a Non-Employee
Director, all such Options shall immediately become exercisable upon a Change
in Control.
Section 8. Exercise of Options and Option Agreement
(a) A Grantee shall exercise an Option by delivery of written notice to the
Corporation setting forth the number of shares with respect to which the Option
is to be exercised, together with cash, certified check, bank draft or postal
money order payable to the order of the Corporation for an amount equal to the
exercise price of such shares. The Committee may, in its sole discretion,
permit a Grantee to pay all or a portion of the exercise price through any
cashless exercise procedure that is acceptable to the Committee or its delegate
and that is facilitated through a sale of Stock. In addition, the Committee may
permit a Grantee to pay all or a portion of the exercise price in the form of
Stock owned beneficially and of record by the Grantee for at least six months.
(b) Except as provided pursuant to Section 9(a), no ISO granted to an
Employee or Non-Employee Director shall be exercised unless at the time of such
exercise the Grantee is then an Employee or Non-Employee Director of the
Corporation or a Parent or Subsidiary; the terms of exercise for NQSOs shall be
determined by the Committee.
(c) Before the Corporation issues Stock to a Grantee pursuant to the
exercise of a NQSO, the Corporation shall have the right to require that the
Grantee make such provision, or furnish the Corporation such authorization,
necessary for the purpose of satisfying its statutory liability to withhold the
prescribed minimum amount of foreign, federal, state, or local income or other
taxes incurred by reason of the exercise of an Option.
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(d) Each Option shall be evidenced by a written agreement containing such
terms and conditions, not inconsistent with this Plan, as the Committee shall
approve. The terms and provisions of such agreements may vary among Grantees
and among different Options granted to the same Grantee.
Section 9. Exercise of Options Upon Termination
(a) With respect to ISOs, upon the termination of a Grantee's relationship
with the Corporation and its Parents and Subsidiaries, the period during which
such Grantee may exercise any outstanding and then exercisable installments of
his or her Options shall not exceed: (i) if such termination is due to death or
permanent and total disability (within the meaning of Section 22(e)(3) of the
Code), one year from the date of such termination; and (ii) in all other cases,
three months (six months for Non-Employee Directors) from the date of such
termination, provided, however, that in no event shall the period extend beyond
the expiration of the Option term. Notwithstanding the foregoing, all Options
shall immediately terminate upon a termination of a Grantee's employment if the
Committee determines, in its sole discretion, that such termination is for
Cause.
(b) In no event shall any Option be exercisable for more than the maximum
number of shares that the Grantee was entitled to purchase at the date of
termination of the relationship with the Corporation and its Parents and
Subsidiaries.
(c) Subject to the foregoing, in the event of death, Options may be
exercised by a Grantee's legal representative.
Section 10. Adjustment Upon Changes in Capitalization
If the Corporation effects a subdivision or consolidation of shares of Stock
outstanding or other increase or reduction of shares of Stock outstanding
without receiving compensation therefor in money, services or property, or any
other change in corporate capital structure shall occur, then: (i) the number
of shares subject to outstanding Options shall be proportionately adjusted
(without a change in the total price applicable to any such Option, but with a
corresponding adjustment in the exercise price per share); and (ii) the number
of shares available for issuance under Sections 3, 6(d) and 7(a) shall be
proportionately adjusted.
Section 11. Restrictions on Issuing Shares
No Stock shall be issued or transferred under the Plan unless and until all
applicable legal requirements have been complied with to the satisfaction of
the Committee. The Committee shall have the right to condition any grant of an
Option on the Grantee's undertaking in writing to comply with such restrictions
on any subsequent disposition of the shares of Stock issued or transferred
thereunder as the Committee shall deem necessary or advisable as a result of
any applicable law, regulation, official interpretation thereof, or any
underwriting agreement, and certificates representing such shares may be
legended to reflect any such restrictions.
Section 12. Rights And Other Restrictions
(a) The grant of an Option in any year shall not give the Grantee any right
to similar grants in future years, any right to continue such Grantee's
employment relationship with the Corporation or its Parents or Subsidiaries,
or, until such Option is exercised and share certificates are issued, any
rights as a stockholder of the Corporation. All Grantees shall remain subject
to discharge to the same extent as if the Plan were not in effect.
(b) No Grantee, and no beneficiary or other persons claiming under or
through the Grantee, shall have any right, title or interest by reason of any
Option to any particular assets of the Corporation or its Parents or
Subsidiaries, or any shares of Stock allocated or reserved for the purposes of
the Plan or subject to any Option except as set forth herein. The Corporation
shall not be required to establish any fund or make any other segregation of
assets to assure the payment of any Option.
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(c) No Option shall be subject to anticipation, sale, assignment, pledge,
encumbrance, or charge, except by will or the laws of descent and distribution,
and an Option shall be exercisable during the Grantee's lifetime only by the
Grantee.
(d) The issuance of shares of Stock to Grantees or to their legal
representatives shall be subject to any applicable taxes and other laws or
regulations of the United States, the Netherlands or of any state or other
country having jurisdiction thereof.
Section 13. Amendment or Termination
The Board may, at any time, alter, amend, suspend, discontinue or terminate
this Plan; provided, however, that no such action shall adversely affect the
rights of Grantees to Options previously granted hereunder and, provided
further, however, that any stockholder approval necessary or desirable, as
determined in the Board's discretion, in order to comply with Rule 16b-3 under
the Exchange Act or with Section 422 of the Code (or other applicable law or
regulation) shall be obtained in the manner required therein.
Section 14. Effective Date of Plan
This Plan is effective upon its adoption by the Board and the Corporation's
stockholders. No ISO may be granted more than 10 years after the date the Plan
is adopted by the Board.
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Exhibit 23.1
[LETTERHEAD OF PWC DEUTSCHE REVISION]
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated August 25, 1999, and April 30, 1999,
relating to the financial statements of IFCO Systems N.V. and the combined
financial statements of IFCO Europe Beteiligungs GmbH and MTS Okologistik GmbH,
subsidiaries of Schoeller Packaging Systems GmbH, Pullach, and Schoeller
International Logistics Beteiligungsgesellschaft mbH, a subsidiary of Gebruder
Schoeller Beteiligungsverwaltungs GmbH, Munich (collectively "IFCO"),
respectively, which appear in IFCO Systems N.V.'s Form F-1 (No. 333-96191).
PWC Deutsche Revision
Aktiengesellschaft
Wirtschaftsprufungsgesellschaft
Dusseldorf, Germany
March 17, 2000
Betz Hartmann
Wirtschaftsprufer Wirtschaftsprufer
