<PAGE> 1
As filed with the Securities and Exchange Commission on October 4, 1996
Registration No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
__________________________
ENERGY VENTURES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-2515019
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5 POST OAK PARK, SUITE 1760
HOUSTON, TEXAS 77027-3415
(Address of Principal Executive Offices) (Zip Code)
ENERGY VENTURES, INC. 1992 EMPLOYEE STOCK OPTION PLAN
ENERGY VENTURES, INC. EXECUTIVE DEFERRED COMPENSATION STOCK OWNERSHIP PLAN
ENERGY VENTURES, INC. FOREIGN EXECUTIVE DEFERRED COMPENSATION STOCK PLAN
(Full title of the plan)
BERNARD J. DUROC-DANNER
ENERGY VENTURES, INC.
5 POST OAK PARK, SUITE 1760
HOUSTON, TEXAS 77027-3415
(Name and address of agent for service)
(713) 297-8400
(Telephone number, including area code, of agent for service)
__________________________
With Copy to:
Curtis W. Huff
Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
(713) 651-5151
__________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed maximum Proposed maximum Amount of
Title of securities to be Amount to be offering price per aggregate offering registration
registered registered share(1) price(1) fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par value . . . 1,000,000 shares(2) $ 40.00 $40,000,000 $12,122
================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 and based
upon the average of the high and low sales prices of a share of Common
Stock as reported by the New York Stock Exchange, Inc. on October 2,
1996.
(2) Includes an indeterminable number of shares of Common Stock issuable
as a result of the anti-dilution provisions of the 1992 Employee Stock
Option Plan.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in
this Registration Statement:
1. The Annual Report on Form 10-K of Energy Ventures, Inc., a
Delaware corporation (the "Registrant"), for the fiscal year ended December 31,
1995;
2. The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996;
3. The Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996;
4. The Registrant's Current Report on Form 8-K dated July 13,
1995, as amended by the Current Report on Form 8-K/A dated August 17, 1995, as
amended by Amendment No. 2 to the Form 8-K/A dated May 7, 1996;
5. The Registrant's Current Report on Form 8-K dated June 24,
1996;
6. The Registrant's Current Report on Form 8-K dated July 18,
1996;
7. The Registrant's Current Report on Form 8-K dated August 5,
1996;
8. The Registrant's Current Report on Form 8-K dated
August 21, 1996;
9. The Registrant's Current Report on Form 8-K dated
October 2, 1996;
10. The description of the Registrant's common stock, $1.00 par
value (the "Common Stock"), contained in a registration statement on Form 8-A
(filed on May 19, 1994) and as amended by a registration statement on Form S-3
(Registration No. 333-12367), including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the
date of the filing hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
II-1
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with the securities registered
hereby are being passed upon for the Registrant by Fulbright & Jaworski L.L.P.,
Houston, Texas. Uriel E. Dutton, a director of the Registrant, is a partner in
the firm of Fulbright & Jaworski L.L.P. Mr. Dutton currently holds options to
purchase 30,000 shares of Common Stock, which options were granted to him
pursuant to the Registrant's Non-Employee Director Stock Option Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Delaware law, a corporation may include provisions in its
certificate of incorporation that will relieve its directors of monetary
liability for breaches of their fiduciary duty to the corporation, except under
certain circumstances, including a breach of the director's duty of loyalty,
acts or omissions of the director not in good faith or which involve
intentional misconduct or a knowing violation of law, the approval of an
improper payment of a dividend or an improper purchase by the corporation of
stock or any transaction from which the director derived an improper personal
benefit. The Registrant's Restated Certificate of Incorporation provides that
the Registrant's directors are not liable to the Registrant or its stockholders
for monetary damages for breach of their fiduciary duty, subject to the
described exceptions specified by Delaware law.
Section 145 of the Delaware General Corporation Law grants to the
Registrant the power to indemnify each officer and director of the Registrant
against liabilities and expenses incurred by reason of the fact that he is or
was an officer or director of the Registrant if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Registrant and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The By-laws of the
Registrant provide for indemnification of each officer and director of the
Registrant to the fullest extent permitted by Delaware law. Messrs. David J.
Butters, Eliot M. Fried and Robert B. Millard, employees of Lehman Brothers
Inc. ("Lehman Brothers"), constitute three of the eight members of the Board of
Directors of the Registrant. Under the restated certificates of incorporation,
as amended to date, of Lehman Brothers and its parent, Lehman Brothers Holdings
Inc. ("Holdings"), both Delaware corporations, Messrs. Butters, Fried and
Millard, in their capacity as directors of the Registrant, are to be
indemnified by Lehman Brothers and Holdings to the fullest extent permitted by
Delaware law. Messrs. Butters, Fried and Millard are serving as directors of
the Registrant at the request of Lehman Brothers and Holdings.
Section 145 of the Delaware General Corporation Law also empowers
the Registrant to purchase and maintain insurance on behalf of any person who
is or was an officer or director of the Registrant against liability asserted
against or incurred by him in any such capacity, whether or not the Registrant
would have the power to indemnify such officer or director against such
liability under the provisions of Section 145. The Registrant has purchased
and maintains a directors' and officers' liability policy for such purposes.
Messrs. Butters, Fried and Millard are insured
II-2
<PAGE> 4
against certain liabilities which they may incur in their capacity as directors
pursuant to insurance maintained by Holdings.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit No. 3.1 to the
Registration Statement on Form S-3 (Reg. No. 333-03407)).
4.2 By-laws of the Registrant, as amended (incorporated by
reference to Exhibit No. 3.2 to Form 10-K, File 0-7265,
filed March 1, 1994).
4.3 Indenture dated March 15, 1994, among the Registrant, as
Issuer, the Subsidiary Guarantors party thereto, as
Guarantors, and Chemical Bank, as Trustee (incorporated by
reference to Form 8-K, File 0-7265, filed April 5, 1994).
4.4 Specimen 10 1/4% Senior Note due 2004 of the Registrant
(incorporated by reference to Form 8-K, File 0-7265, filed
April 5, 1994).
4.5 First Supplemental Indenture by and among the Registrant,
Prideco, Inc. and Chemical Bank, as trustee, dated June 30,
1995 (incorporated by reference to Exhibit No. 4.4 to the
Registration Statement on Form S-3 (Reg. No. 33-61933)).
4.6 Credit Agreement among the Company, the Subsidiary
Guarantors, the Lenders defined therein and The Chase
Manhattan Bank, N.A. dated as of June 26, 1996, including
the form of Notes (incorporated by reference to Exhibit No.
4.5 to the Registration Statement on Form S-3; Registration
No. 333-06715).
4.7 1992 Employee Stock Option Plan, as amended.
5.1 Opinion of Fulbright & Jaworski L.L.P.
23.1 Consent of Fulbright & Jaworski L.L.P. (included in Exhibit
5.1).
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Arthur Andersen LLP, with respect to the
financial statements of Prideco, Inc.
23.3 Consent of Arthur Andersen LLP, with respect to the
financial statements of Tubular Corporation of America.
II-3
<PAGE> 5
24.1 Powers of Attorney (included on Page II-6 of this
Registration Statement).
As permitted by Item 601(b)(4)(iii)(A) of Regulation S-K, the
Registrant has not filed with this Registration Statement certain instruments
defining the rights of holders of long-term debt of the Registrant and its
subsidiaries because the total amount of securities authorized under any of
such instruments does not exceed 10% of the total assets of the Registrant and
its subsidiaries on consolidated basis. The Registrant agrees to furnish a copy
of any such agreements to the Securities and Exchange Commission upon request.
ITEM 9. UNDERTAKINGS.
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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar volume of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
Provided, however, that paragraphs (1)(i) and (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 Securities and Exchange Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this 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 herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-4
<PAGE> 6
(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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act 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 Securities Act of 1933 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 of 1933 and will be governed by the final
adjudication of such issue.
II-5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on October 3, 1996.
ENERGY VENTURES, INC.
By: /s/ Bernard J. Duroc-Danner
--------------------------------------
Bernard J. Duroc-Danner
President, Chief Executive
Officer and Director
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Bernard J. Duroc-Danner and James G.
Kiley, or any of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his 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
and all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting said attorney-in-fact and agent,
and any of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or any of
them, or his or their substitute or substitutes, 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Bernard J. Duroc-Danner President, Chief Executive Officer October 3, 1996
------------------------------------ and Director
Bernard J. Duroc-Danner (Principal Executive Officer)
/s/ James G. Kiley Vice President and Chief Financial October 3, 1996
------------------------------------ Officer
James G. Kiley (Principal Financial Officer)
/s/ Frances R. Powell Vice President, Accounting and October 3, 1996
------------------------------------ Controller
Frances R. Powell (Principal Accounting Officer)
</TABLE>
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ David J. Butters Director and October 3, 1996
------------------------------------ Chairman of the Board
David J. Butters
/s/ Uriel E. Dutton Director October 3, 1996
------------------------------------
Uriel E. Dutton
/s/ Eliot M. Fried Director October 3, 1996
------------------------------------
Eliot M. Fried
/s/ Sheldon S. Gordon Director October 3, 1996
------------------------------------
Sheldon S. Gordon
/s/ Sheldon B. Lubar Director October 3, 1996
------------------------------------
Sheldon B. Lubar
/s/ Robert B. Millard Director October 3, 1996
------------------------------------
Robert B. Millard
/s/ Robert A. Rayne Director October 3, 1996
------------------------------------
Robert A. Rayne
</TABLE>
II-7
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Description Number
------- ---------------------------------------------------------------- -----
<S> <C> <C>
4.1 Restated Certificate of Incorporation (incorporated by
reference to Exhibit No. 3.1 to the Registration Statement on
Form S-3 (Reg. No. 333-03407)).
4.2 By-laws of the Registrant, as amended (incorporated by
reference to Exhibit No. 3.2 to Form 10-K, File 0-7265, filed
March 1, 1994).
4.3 Indenture dated March 15, 1994, among the Registrant,
as Issuer, the Subsidiary Guarantors party thereto, as
Guarantors, and Chemical Bank, as Trustee (incorporated by
reference to Form 8-K, File 0-7265, filed April 5, 1994).
4.4 Specimen 10 1/4% Senior Note due 2004 of the Registrant
(incorporated by reference to Form 8-K, File 0-7265, filed
April 5, 1994).
4.5 First Supplemental Indenture by and among the Registrant,
Prideco, Inc. and Chemical Bank, as trustee, dated June 30,
1995 (incorporated by reference to Exhibit No. 4.4 to the
Registration Statement on Form S-3 (Reg. No. 33-61933)).
4.6 Credit Agreement among the Company, the Subsidiary
Guarantors, the Lenders defined therein and The Chase
Manhattan Bank, N.A. dated as of June 26, 1996, including
the form of Notes (incorporated by reference to Exhibit
No. 4.5 to the Registration Statement on Form S-3;
Registration No. 333-06715).
4.7 1992 Employee Stock Option Plan, as amended.
5.1 Opinion of Fulbright & Jaworski L.L.P.
23.1 Consent of Fulbright & Jaworski L.L.P. (included in Exhibit
5.1).
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Arthur Andersen LLP, with respect to the
financial statements of Prideco, Inc.
23.4 Consent of Arthur Andersen LLP, with respect to the
financial statements of Tubular Corporation of America.
24.1 Powers of Attorney (included on Page II-6 of this Registration
Statement).
</TABLE>
As permitted by Item 601(b)(4)(iii)(A) of Regulation S-K, the
Registrant has not filed with this Registration Statement certain instruments
defining the rights of holders of long-term debt of the Registrant and its
subsidiaries because the total amount of securities authorized under any of
such instruments does not exceed 10% of the total assets of the Registrant and
its subsidiaries on consolidated basis. The Registrant agrees to furnish a copy
of any such agreements to the Securities and Exchange Commission upon request.
<PAGE> 1
EXHIBIT 4.7
ENERGY VENTURES, INC.
1992 EMPLOYEE STOCK OPTION PLAN
1. PURPOSE. This 1992 Employee Stock Option Plan (the "Plan") of
Energy Ventures, Inc. (the "Company") for certain employees, including officers
and directors, is intended to advance the best interests of the Company by
providing such personnel, who have substantial responsibility for its
management and growth, with additional incentive and by increasing their
proprietary interest in the success of the Company, thereby encouraging them to
remain in its employ.
2. ADMINISTRATION. The Plan shall be administered either by the
Board of Directors or, by delegation by the Board of Directors, a committee
consisting of two or more members of the Board of Directors of the Company, all
of whom shall be "Non-Employee Directors" as defined in Rule 16b-3 of the Rules
and Regulations promulgated under the Securities Exchange Act of 1934 (the
"Exchange Act") or any similar or successor rule. The Board of Directors or
such delegated committee are hereinafter referred to as the "Administrative
Committee". For the purposes of the Plan, a majority of the members of the
Administrative Committee shall constitute a quorum for the transaction of
business, and the vote of a majority of those members present at any meeting
shall decide any question brought before that meeting. In addition, the
Administrative Committee may take any action otherwise proper under the Plan by
the affirmative vote, taken without a meeting, of a majority of its members.
All questions of interpretation and application of the Plan, or as to options
granted hereunder (the "Options"), shall be subject to the determination, which
shall be final and binding, of a majority of the whole Administrative
Committee. When appropriate, the Plan shall be administered in order to
qualify certain of the Options granted hereunder as "incentive stock options"
described in Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
3. OPTION SHARES. The stock subject to the Options and other
provisions of the Plan shall be shares of the Company's Common Stock, $1.00 par
value (or such other par value as may be designated by act of the Company's
stockholders) (the "Common Stock"). The total amount of the Common Stock with
respect to which Options may be granted shall not exceed in the aggregate
1,000,000 shares; provided, that the class and aggregate number of shares which
may be subject to the Options granted hereunder shall be subject to adjustment
in accordance with the provisions of Paragraph 16 hereof. Such shares may be
treasury shares or authorized but unissued shares.
In the event that any outstanding Option for any reason shall expire
or terminate by reason of the death or severance of employment of the optionee,
the surrender of any such Option or any other cause, the shares of Common Stock
allocable to the unexercised portion of such Option may again be subject to an
Option under the Plan.
<PAGE> 2
4. AUTHORITY TO GRANT OPTIONS.
(a) The Administrative Committee may grant the following options
from time to time to such eligible employees of the Company as it shall from
time to time determine:
(i) "INCENTIVE" STOCK OPTIONS. The Administrative
Committee may grant to an eligible employee an Option, or Options, to
buy a stated number of shares of Common Stock under the terms and
conditions of the Plan, so that the Option will be an "incentive stock
option" within the meaning of Section 422 of the Code (an "incentive
stock option").
(ii) "NON-STATUTORY" STOCK OPTIONS. The Administrative
Committee may grant to an eligible employee an Option, or Options, to
buy a stated number of shares of Common Stock under the terms and
conditions of the Plan, even though such Option or Options would not
constitute an "incentive stock option" within the meaning of Section 422
of the Code (a "non-statutory stock option").
(b) Included within the Options granted under the Plan shall be the
Options granted to Bernard Duroc-Danner and James G. Kiley on March 26, 1996,
as reflected in the Option Agreements reflecting the terms of such grants dated
September 6, 1996.
(c) Each Option granted shall be approved by the Administrative
Committee which shall specify whether each Option constitutes an incentive or
non-statutory stock option. Subject only to any applicable limitations set
forth in the Plan, the number of shares of Common Stock to be covered by any
Options shall be as determined by the Administrative Committee.
5. ELIGIBILITY. The individuals who shall be eligible to
participate in the Plan shall be such key employees, including officers and
directors if they are employees, of the Company, or of any parent or subsidiary
corporation, as the Administrative Committee shall determine from time to time.
However, no eligible employee who owns stock possessing more than ten percent
of the total combined voting power of all classes of stock of the corporation
employing the employee or of its parent or subsidiary corporation shall be
eligible to receive an Option which is an incentive stock option unless at the
time that such Option is granted the Option price is at least one hundred ten
percent (110%) of the fair market value of the Common Stock at the time such
Option is granted and such Option by its own terms is not exercisable after the
expiration of five years from the date such Option is granted. No individual
shall be eligible to receive an Option under the Plan while such individual is
a member of the Administrative Committee.
For the purposes of the preceding paragraph, an employee will be
considered as owning the stock owned, directly or indirectly, by or for his
brothers and sisters (whether by the whole or half blood), spouse, ancestors,
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<PAGE> 3
and lineal descendants; and stock owned, directly or indirectly, by or for a
corporation, partnership, estate or trust will be considered as being owned
proportionately by or for its stockholders, partners or beneficiaries. Except
as otherwise provided, for all purposes of the Plan, the term "parent
corporation" shall mean any corporation (other than the Company) in an unbroken
chain of corporations ending with the Company if, on the date of grant of the
Option in question, each of the corporations other than the Company owns stock
possessing fifty percent (50%) or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain; and the
term "subsidiary corporation" shall mean any corporation in an unbroken chain
of corporations, beginning with the Company if, on the date of grant of the
Option in question, each of the corporations, other than the last corporation
in the chain, owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
6. OPTION PRICE. The price at which shares may be purchased
pursuant to a non-statutory option shall be fixed by the Administrative
Committee at a price not less than 50% of the fair market value of the shares
of Common Stock subject to the Option on the date such Option is granted. The
price at which shares may be purchased pursuant to an incentive stock option
shall be not less than the fair market value of the shares of Common Stock on
the date such Option is granted and the Administrative Committee in its
discretion may provide that the price at which shares may be so purchased shall
be more than such fair market value. In the case of any eligible employee
described in Paragraph 5 who owns stock possessing more than ten percent of the
total combined voting power of all classes of stock of the corporation
employing the employee or of its parent or subsidiary corporation (described in
Paragraph 5), the option price at which shares may be so purchased pursuant to
any Option which is an incentive stock option granted hereunder shall be not
less than one hundred ten percent (110%) of the fair market value of the Common
Stock on the date such Option is granted.
7. DURATION OF OPTIONS. No Option which is an incentive stock
option shall be exercisable after the expiration of ten years from the date
such Option is granted; and the Administrative Committee in its discretion may
provide that such Option shall be exercisable throughout such ten-year period
or during any lesser period of time commencing on or after the date of grant of
such Option and ending upon or before the expiration of such ten-year period.
In the case of any eligible employee who owns stock possessing more than ten
percent of the total combined voting power of all classes of stock of the
corporation employing the employee or of its parent or subsidiary corporation
(described in Paragraph 5), no Option which is an incentive stock option shall
be exercisable after the expiration of 5 years from the date such Option is
granted. No Option which is a non-statutory stock option shall be exercisable
after the expiration of ten years from the date such Option is granted; and the
Administrative Committee in its discretion may provide that such Option shall
be exercisable throughout such ten-year period or during any lesser period of
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<PAGE> 4
time commencing on or after the date of grant of such Option and ending upon or
before the expiration of such ten-year period.
8. MAXIMUM VALUE OF STOCK SUBJECT TO OPTIONS WHICH ARE INCENTIVE
STOCK OPTIONS. Notwithstanding any other provisions of the Plan to the
contrary, the aggregate fair market value (determined as of the date the Option
is granted) of the stock with respect to which incentive stock options are
exercisable for the first time by the optionee in any calendar year (under this
Plan and any other incentive stock option plan(s) of the Company and any parent
or subsidiary corporation(s) thereof) shall not exceed $100,000. In making
this determination, Options shall be taken into account in the order in which
they were granted.
9. AMOUNT EXERCISABLE. The agreement with respect to each Option
(whether incentive or non-statutory) shall set forth such terms and conditions,
including vesting, with respect to the exercise of such Option that are not
inconsistent with the Plan and as may be approved by the Administrative
Committee. The Administrative Committee, in its discretion, may change the
terms of exercise so that any Option may be exercised so long as it is valid
and outstanding from time to time in part or as a whole in such manner and
subject to such conditions as it may set. In addition, the Administrative
Committee, in its discretion, may accelerate the time in which any outstanding
Option may be exercised. But in no event shall any Option be exercisable after
the tenth anniversary of the date of the grant.
10. EXERCISE OF OPTIONS. An optionee may exercise such optionee's
Option by delivering to the Company a written notice stating (i) that such
optionee wishes to exercise such Option on the date such notice is so
delivered, (ii) the number of shares of stock with respect to which such Option
is to be exercised, (iii) the address to which the certificate representing
such shares of stock should be mailed, and (iv) the social security number of
such optionee. In order to be effective, such written notice shall be
accompanied by (i) payment of the Option Price of such shares of stock and (ii)
payment of an amount of money necessary to satisfy any withholding tax
liability that may result from the exercise of such Option. Each such payment
shall be made by cashier's check drawn on a national banking association and
payable to the order of the Company in United States dollars.
If, at the time of receipt by the Company of such written notice, (i)
the Company has unrestricted surplus in an amount not less than the Option
Price of such shares of stock, (ii) all accrued cumulative preferential
dividends and other current preferential dividends on all outstanding shares of
preferred stock of the Company have been fully paid, (iii) the acquisition by
the Company of its own shares of stock for the purpose of enabling such
optionee to exercise such Option is otherwise permitted by applicable law and
without any vote or consent of any stockholder of the Company, and (iv) there
shall have been adopted, and there shall be in full force and effect, a
resolution of the Board of Directors of the Company authorizing the acquisition
by the Company of its
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<PAGE> 5
own shares of stock for such purpose, then such optionee may deliver to the
Company, in payment of the Option Price of the shares of stock with respect to
which such Option is exercised, (x) certificates registered in the name of such
optionee that represent a number of shares of stock legally and beneficially
owned by such optionee (free of all liens, claims and encumbrances of every
kind) and having a fair market value on the date of receipt by the Company of
such written notice that is not greater than the Option Price of the shares of
stock with respect to which such Option is to be exercised, such certificates
to be accompanied by stock powers duly endorsed in blank by the record holder
of the shares of stock represented by such certificates, with the signature of
such record holder guaranteed by a national banking association (or in lieu of
such certificates, other arrangements for the transfer of such shares to the
Company which are satisfactory to the Company), and (y) if the Option Price of
the shares of stock with respect to which such Option is to be exercised
exceeds such fair market value, a cashier's check drawn on a national banking
association and payable to the order of the Company in an amount, in United
States dollars, equal to the amount of such excess plus the amount of money
necessary to satisfy any withholding tax liability that may result from the
exercise of such Option. Notwithstanding the provisions of the immediately
preceding sentence, the Administrative Committee, in its sole discretion, may
refuse to accept shares of stock in payment of the Option Price of the shares
of stock with respect to which such Option is to be exercised and, in that
event, any certificates representing shares of stock that were received by the
Company with such written notice shall be returned to such optionee, together
with notice by the Company to such optionee of the refusal of the
Administrative Committee to accept such shares of stock. The Company, upon
approval of the Administrative Committee and in its sole discretion, upon the
request of the optionee, may retain shares of Common Stock which would
otherwise be issued upon exercise of an Option to satisfy any withholding tax
liability that may result from the exercise of such Option, which shares shall
be valued for such purpose at their then fair market value. If, at the
expiration of seven business days after the delivery to such optionee of such
written notice from the Company, such optionee shall not have delivered to the
Company a cashier's check drawn on a national banking association and payable
to the order of the Company in an amount, in United States dollars, equal to
the Option Price of the shares of stock with respect to which such Option is to
be exercised, such written notice from the optionee to the Company shall be
ineffective to exercise such Option.
As promptly as practicable after the receipt by the Company of (i) such
written notice from the optionee, (ii) payment, in the form required by the
foregoing provisions of this Paragraph 10, of the Option Price of the shares of
stock with respect to which such Option is to be exercised, and (iii) payment,
in the form required by the foregoing provisions of this Paragraph 10, of an
amount of money necessary to satisfy any withholding tax liability that may
result from the exercise of such Option, a certificate representing the number
of shares of stock with respect to which such Option has been so exercised,
reduced, to the extent applicable by the number of shares retained by the
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<PAGE> 6
Company as provided above to pay any required withholding tax, such certificate
to be registered in the name of such optionee, provided that such delivery
shall be considered to have been made when such certificate shall have been
mailed, postage prepaid, to such optionee at the address specified for such
purpose in such written notice from the optionee to the Company.
For purposes of this Paragraph 10, the "fair market value" of a share of
stock as of any particular date shall mean the closing sale price of a share of
Common Stock on that date as reported by the principal national securities
exchange on which the Common Stock is then listed if the Common Stock is then
listed on a national securities exchange or the average of the bid and asked
price of a share of Common Stock on that date as reported in the NASDAQ listing
if the Common Stock is not then listed on a national securities exchange,
provided that if no such closing price or quotes are so reported on that date
or if, in the discretion of the Administrative Committee, another means of
determining the fair market value of a share of stock at such date shall be
necessary or advisable, the Administrative Committee may provide for another
means for determining such fair market value.
11. TRANSFERABILITY OF OPTIONS. Options shall not be transferable
by the optionee otherwise than by will or under the laws of descent and
distribution, and shall be exercisable, during his lifetime, only by him.
12. TERMINATION OF EMPLOYMENT OR DEATH OF OPTIONEE. Except as may
be otherwise provided in the agreement relating to the Option, to the extent it
shall not previously have been exercised, each Option shall terminate on the
earlier of the date of the expiration of the Option or one day less than one
year after the date of the severance, upon severance of the employment
relationship between the Company and the optionee, whether with or without
cause, for any reason other than the death, disability or retirement of the
optionee, during which period the optionee shall be entitled to exercise the
Option in respect of the number of shares that the optionee would have been
entitled to purchase had the optionee exercised the Option on the date of such
severance of employment. Whether authorized leave of absence, or absence on
military or government service, shall constitute severance of the employment
relationship between the Company and the optionee shall be determined by the
Administrative Committee at the time thereof.
In the event of severance because of the disability of the holder of any
Option (whether incentive or non-statutory) while in the employ of the Company
and before the date of expiration of such Option, such Option shall terminate
on the earlier of such date of expiration or one year following the date of
such severance because of disability, during which period the optionee shall be
entitled to exercise the Option in respect to the number of shares that the
optionee would have been entitled to purchase had the optionee exercised the
Option on the date of such severance because of disability.
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<PAGE> 7
In the event of the death of the holder of any Option (whether incentive
or non-statutory) while in the employ of the Company and before the date of
expiration of such Option, such Option shall terminate on the earlier of such
date of expiration or one year following the date of death. After the death of
the optionee, his executors, administrators or any person or persons to whom
his Option may be transferred by will or by the laws of descent and
distribution, shall have the right, at any time prior to the termination of an
Option, to exercise the Option, in respect of the number of shares that the
optionee would have been entitled to purchase if he had exercised the Option on
the day of his death while in employment.
In addition, in the event of the retirement of the holder of any
non-statutory stock option, in accordance with the provisions of the Company's
then existing policies regarding retirement as applied by the Administrative
Committee, before the date of expiration of such Option, such Option shall
terminate on the earlier of such date of expiration or one year following the
date of such retirement and, if such optionee should die within the one year
period, any rights he may have to exercise the Option shall be exercisable by
his executor or administrator or the person or persons to whom the Option shall
have been transferred by his will or by the laws of descent or distribution, as
appropriate, for the remainder of the one year period.
For purposes of incentive stock options issued under this Plan, an
employment relationship between the Company and the optionee shall be deemed to
exist during any period in which the optionee is employed by the Company, by
any parent or subsidiary corporation, by a corporation issuing or assuming an
option in a transaction to which Section 424(a) of the Code applies, or by a
parent or subsidiary corporation of such corporation issuing or assuming an
option (and for this purpose, the phrase "corporation issuing or assuming an
option" shall be substituted for the word "Company" in the definitions of
parent and subsidiary corporations specified in Paragraph 5 of this Plan, and
the parent-subsidiary relationship shall be determined at the time of the
corporate action described in Section 424(a)). For purposes of non-statutory
stock options issued under this Plan, an employment relationship between the
Company and the optionee will exist under the circumstances described above for
incentive stock options and will also exist if the optionee is transferred to
an affiliated corporation approved by the Administrative Committee.
13. REQUIREMENTS OF LAW. The Company shall not be required to sell
or issue any shares under any Option if the issuance of such shares shall
constitute a violation by the optionee or the Company of any provisions of any
law or regulation of any governmental authority. Each Option granted under the
Plan shall be subject to the requirements that, if at any time the Board of
Directors of the Company shall determine that the listing, registration or
qualification of the shares subject thereto upon any securities exchange or
under any state or federal law of the United States or of any other country or
governmental subdivision thereof, or the consent or approval of any
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<PAGE> 8
governmental regulatory body, or investment or other representations, are
necessary or desirable in connection with the issue or purchase of shares
subject thereto, no such Option may be exercised in whole or in part unless
such listing, registration, qualification, consent, approval or representation
shall have been effected or obtained free of any conditions not acceptable to
the Board of Directors. If required at any time by the Administrative
Committee, an Option may not be exercised until the optionee has delivered an
investment letter to the Company. In addition, specifically in connection with
the Securities Act of 1933 (as now in effect or hereafter amended), upon
exercise of any Option, the Company shall not be required to issue the
underlying shares unless the Administrative Committee has received evidence
satisfactory to it to the effect that the holder of such Option will not
transfer such shares except pursuant to a registration statement in effect
under such Act or unless an opinion of counsel satisfactory to the
Administrative Committee has been received by the Company to the effect that
such registration is not required. Any determination in this connection by the
Administrative Committee shall be final, binding and conclusive. In the event
the shares issuable on exercise of an Option are not registered under the
Securities Act of 1933, the Company may imprint on the certificate for such
shares the following legend or any other legend which counsel for the Company
considers necessary or advisable to comply with the Securities Act of 1933:
"The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933 or under the securities laws
of any state and may not be sold or transferred except upon such
registration or upon receipt by the Corporation of an opinion of counsel
satisfactory to the Corporation, in form and substance satisfactory to
the Corporation, that registration is not required for such sale or
transfer."
The Company may, but shall in no event be obligated to, register any securities
covered hereby pursuant to the Securities Act of 1933 (as now in effect or as
hereafter amended) and, in the event any shares are so registered, the Company
may remove any legend on certificates representing such shares. The Company
shall not be obligated to take any other affirmative action in order to cause
the exercise of an Option or the issuance of shares pursuant thereto to comply
with any law or regulation of any governmental authority.
14. NO RIGHTS AS STOCKHOLDER. No optionee shall have
rights as a stockholder with respect to shares covered by his Option until the
date of issuance of a stock certificate for such shares; and, except as
otherwise provided in Paragraph 16 hereof, no adjustment for dividends, or
otherwise, shall be made if the record date therefor is prior to the date of
issuance of such certificate.
15. EMPLOYMENT OBLIGATION. The granting of any Option
shall not impose upon the Company any obligation to employ or continue to
employ any optionee; and the right of the Company to terminate the employment
of any officer or other employee shall not be diminished or affected by reason
of the fact that an Option has been granted to him.
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<PAGE> 9
16. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE. The
existence of outstanding Options shall not affect in any way the right or power
of the Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or
any issue of bonds, debentures, preferred or prior preference stock ahead of or
affecting the Common Stock or the rights thereof, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
If the Company shall effect a subdivision or consolidation of
shares or other capital adjustment of, or the payment of a dividend in capital
stock or other equity securities of the Company on, its Common Stock, or other
increase or reduction of the number of shares of the Common Stock without
receiving consideration therefor in money, services, or property, or the
reclassification of its Common Stock, in whole or in part, into other equity
securities of the Company, then (a) the number, class and per share price of
shares of stock subject to outstanding Options hereunder shall be appropriately
adjusted (or in the case of the issuance of other equity securities as a
dividend on, or in a reclassification of, the Common Stock, the Options shall
extend to such other securities) in such a manner as to entitle an optionee to
receive, upon exercise of an Option, for the same aggregate cash consideration,
the same total number and class or classes of shares (or in the case of a
dividend of, or reclassification into, other equity securities, such other
securities) he would have held after such adjustment if he had exercised his
Option in full immediately prior to the event requiring the adjustment, or, if
applicable, the record date for determining stockholders to be affected by such
adjustment; and (b) the number and class of shares then reserved for issuance
under the Plan (or in the case of a dividend of, or reclassification into,
other equity securities, such other securities) shall be adjusted by
substituting for the total number and class of shares of stock then received,
the number and class or classes of shares of stock (or in the case of a
dividend of, or reclassification into, other equity securities, such other
securities) that would have been received by the owner of an equal number of
outstanding shares of Common Stock as a result of the event requiring the
adjustment. Comparable rights shall accrue to each optionee in the event of
successive subdivisions, consolidations, capital adjustments, dividends or
reclassifications of the character described above.
If the Company shall distribute to all holders of its shares of
Common Stock (including any such distribution made to non-dissenting
stockholders in connection with a consolidation or merger in which the Company
is the surviving corporation and in which holders of shares of Common Stock
continue to hold shares of Common Stock after such merger or consolidation)
evidences of indebtedness or cash or other assets (other than cash dividends
payable out of consolidated retained earnings not in excess of, in any one year
period, the greater of (a) in an amount per share of Common Stock equal to
$1.00 per share of Common Stock (as the same may be adjusted from time to time
by the Board of Directors to reflect the effect of changes in capitalization)
and (b) two times the aggregate amount of dividends per share paid during the
preceding calendar year and dividends or distributions payable in shares of
Common Stock or other equity securities of the Company described in the
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<PAGE> 10
immediately preceding paragraph, but including stock or other securities of any
corporation or other entity owned by the Company), then in each case the Option
Price shall be adjusted by reducing the Option Price in effect immediately
prior to the record date for the determination of stockholders entitled to
receive such distribution by the fair market value, as determined in good faith
by the Board of Directors of the Company (whose determination shall be
described in a statement filed in the Company's corporate records and be
available for inspection by any holder of an Option) of the portion of the
evidence of indebtedness or cash or other assets so to be distributed
applicable to one share of Common Stock; provided that in no event shall the
Option Price be less than the par value of a share of Common Stock. In the
event such adjustment would result in the Option Price being less than the par
value of a share of Common Stock but for the foregoing proviso, the terms of
the Option shall be appropriately adjusted so as to maintain the economic value
of the Option, including through an adjustment to the number of shares of
Common Stock subject to the Option and through a provision allowing the holder
of the Option to receive the evidence of indebtedness or cash or other assets
so to be distributed applicable to one share of Common Stock for each share of
Common Stock that may be purchased on the exercise of the Option. Such
adjustment shall be made whenever any such distribution is made, and shall
become effective on the date of the distribution retroactive to the record date
for the determination of the stockholders entitled to receive such
distribution. Comparable adjustments shall be made in the event of successive
distributions of the character described above.
If the Company shall make a tender offer for, or grant to all of
its holders of its shares of Common Stock the right to require the Company or
any subsidiary of the Company to acquire from such stockholders shares of,
Common Stock, at a price in excess of the Current Market Price (a "Put Right")
or the Company shall grant to all of its holders of its shares of Common Stock
the right to acquire shares of Common Stock for less than the Current Market
Price (a "Purchase Right") then, in the case of a Put Right, the Option Price
shall be adjusted by multiplying the Option Price in effect immediately prior
to the record date for the determination of stockholders entitled to receive
such Put Right by a fraction, the numerator of which shall be the number of
shares of Common Stock then outstanding minus the number of shares of Common
Stock which could be purchased at the Current Market Price for the aggregate
amount which would be paid if all Put Rights are exercised and the denominator
of which is the number of shares of Common Stock which would be outstanding if
all Put Rights are exercised; and, in the case of a Purchase Right, the Option
Price shall be adjusted by multiplying the Option Price in effect immediately
prior to the record date for the determination of the stockholders entitled to
receive such Purchase Right by a fraction, the numerator of which shall be the
number of shares of Common Stock then outstanding plus the number of shares of
Common Stock which could be purchased at the Current Market Price for the
aggregate amount which would be paid if all Purchase Rights are exercised and
the denominator of which is the number of shares of Common Stock which would be
outstanding if all Purchase Rights are exercised. In addition, the number of
shares subject to the Option shall be increased by multiplying the number of
shares then subject to the Option by a fraction which is the inverse of the
fraction used to adjust the Option Price. Notwithstanding the foregoing, if
any such Put Rights or Purchase Rights shall
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<PAGE> 11
terminate without being exercised, the Option Price and number of shares
subject to the Option shall be appropriately readjusted to reflect the Option
Price and number of shares subject to the Option which would have been in
effect if such unexercised Rights had never existed. Comparable adjustments
shall be made in the event of successive transactions of the character
described above.
After the merger of one or more corporations into the Company,
after any consolidation of the Company and any one or more corporations, or
after any other corporate transaction described in Section 424(a) of the Code
in which the Company shall be the surviving corporation, each optionee, at no
additional cost, shall be entitled to receive, upon any exercise of his Option,
in lieu of the number of shares as to which the Option shall then be so
exercised, the number and class of shares of stock or other equity securities
to which the optionee would have been entitled pursuant to the terms of the
agreement of merger or consolidation if at the time of such merger or
consolidation such optionee had been a holder of a number of shares of Common
Stock equal to the number of shares as to which the Option shall then be so
exercised and, if as a result of such merger, consolidation or other
transaction, the holders of Common Stock are not entitled to receive any shares
of Common Stock pursuant to the terms thereof, each optionee, at no additional
cost, shall be entitled to receive, upon exercise of his Option, such other
assets and property, including cash, to which he would have been entitled if at
the time of such merger, consolidation or other transaction he had been the
holder of the number of shares of Common Stock equal to the number of shares as
to which the Option shall then be so exercised. Comparable rights shall accrue
to each optionee in the event of successive mergers or consolidations of the
character described above.
After a merger of the Company into one or more corporations,
after any consolidation of the Company and any one or more corporations, or
after any other corporate transaction described in Section 424(a) of the Code
in which the Company is not the surviving corporation, each optionee shall, at
no additional cost, be entitled, at the option of the surviving corporation,
(i) to have his then existing Option assumed or to have a new option
substituted for the existing Option by the surviving corporation to the
transaction which is then employing him, or a parent or subsidiary of such
corporation, on a basis where the excess of the aggregate fair market value of
the shares subject to the option immediately after the substitution or
assumption over the aggregate option price of such option is equal to the
excess of the aggregate fair market value of all shares subject to the Option
immediately before such substitution or assumption over the aggregate Option
Price of such shares, provided that the shares subject to the new option must
be traded on the New York or American Stock Exchange or quoted on the National
Association of Securities Dealers Automated Quotation System, or (ii) to
receive upon any exercise of his Option, in lieu of the number of shares as to
which the Option shall then be so exercised, the securities, property and other
assets, including cash, to which the Optionee would have been entitled pursuant
to the terms of the agreement or merger or consolidation or the agreement
giving rise to the other corporate transaction if at the time of such merger,
consolidation or other transaction such optionee had been the holder of the
number of shares of Common Stock equal to the number of shares as to which the
Option shall then be so exercised.
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<PAGE> 12
If a corporate transaction described in Section 424(a) of the
Code which involves the Company is to take place and there is to be no
surviving corporation while an Option remains in whole or in part unexercised,
it shall be cancelled by the Board of Directors as of the effective date of any
such corporate transaction but before the date each optionee shall be provided
with a notice of such cancellation and each optionee shall have the right to
exercise such Option in full (without regard to any limitations on exercise set
forth in or imposed by the option agreement pursuant to which such Option was
granted as contemplated by Paragraph 9 of the Plan) to the extent it is then
still unexercised during a 30-day period preceding the effective date of such
corporate transaction.
For purposes of this Paragraph 16, Current Market Price per
share of Common Stock shall mean the closing price of a share of Common Stock
as reported by the principal national securities exchange on which the Common
Stock is then listed if the Common Stock is then listed on a national
securities exchange, or the average bid and asked prices of a share of Common
Stock as reported in the NASDAQ listing if the Common Stock is not then listed
on a national securities exchange, on the trading day immediately preceding the
first trading day on which, as a result of the establishment of a record date
or otherwise, the trading price reflects that an acquiror of Common Stock in
the public market will not participate in or receive the payment of any
applicable dividend or distribution.
Except as hereinbefore expressly provided, the issue by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, for cash or property, or for labor or services either
upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock then subject to outstanding Options.
17. SUBSTITUTION OPTIONS. Options may be granted under the
Plan from time to time in substitution for stock options held by employees of
other corporations who are about to become employees of the Company, or whose
employer is about to become a parent or subsidiary corporation of the Company,
conditioned in the case of an incentive stock option upon the employee becoming
an employee of the Company or a parent or subsidiary corporation of the
Company, as a result of the merger or consolidation of the Company with another
corporation, or the acquisition by the Company of substantially all the assets
of another corporation, or the acquisition by the Company of at least 50% of
the issued and outstanding stock of another corporation as the result of which
it becomes a subsidiary of the Company. The terms and conditions of the
substitute Options so granted may vary from the terms and conditions set forth
in the Plan to such extent as the Board of Directors of the Company at the time
of grant may deem appropriate to conform, in whole or in part, to the
provisions of the stock options in substitution for which they are granted, but
with respect to stock options which are incentive stock options, no such
variation shall be such as to affect the status of any such substitute option
as an "incentive stock option" under Section 422 of the Code.
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<PAGE> 13
18. AMENDMENT OR TERMINATION OF PLAN. The Board of
Directors may modify, revise or terminate the Plan at any time and from time to
time; provided, however, that without the further approval of the holders of
shares representing a majority of the total voting power of the Company at a
meeting of stockholders or by written consent, or if the provisions of the
corporate charter, by-laws or applicable state law prescribes a greater degree
of stockholder approval for this action, without the degree of stockholder
approval thus required, the Board of Directors may not (a) change the aggregate
number of shares which may be issued under Options pursuant to the provisions
of the Plan, (b) extend the term during which an Option may be exercised or the
termination date of the Plan or (c) materially change the class of employees
eligible to receive Options under the Plan; unless, in each such case, the
Board of Directors of the Company shall obtain an opinion of legal counsel to
the effect that stockholder approval of the amendment is not required (i) by
law, (ii) by the applicable rules and regulations of, or any agreement with,
any national securities exchange on which the Common Stock is then listed or if
the Common Stock is not so listed, the rules and regulations, or any agreement
with, the National Association of Securities Dealers, Inc., and (iii) in order
to make available to the optionee with respect to any option granted under the
Plan, the benefits of Rule 16b-3 of the Rules and Regulations under the
Exchange Act, or any similar or successor rule. In addition, the Board shall
have the power to make such changes in the Plan and in the regulations and
administrative provisions hereunder or in any outstanding Option as in the
opinion of counsel for the Company may be necessary or appropriate from time to
time to enable any Option granted pursuant to the Plan to qualify as incentive
stock options under Section 422 of the Code, and the regulations which may be
issued thereunder as in existence from time to time.
19. WRITTEN AGREEMENT. Each Option granted hereunder shall
be embodied in a written option agreement, which shall be subject to the terms
and conditions prescribed above, and shall be signed by the optionee and by the
appropriate officer of the Company for and in the name and on behalf of the
Company. Such an option agreement shall contain such other provisions as the
Administrative Committee in its discretion shall deem advisable.
20. INDEMNIFICATION OF ADMINISTRATIVE COMMITTEE. The
Company shall, to the fullest extent provided by law, indemnify each present
and future member of the Administrative Committee against, and each member of
the Administrative Committee shall be entitled without further act on his part
to indemnity from the Company for, all expenses (including, without limitation,
reasonable attorneys' fees, the amount of judgments and the amount of approved
settlements made with a view to the curtailment of costs of litigation, other
than amounts paid to the Company itself) reasonably incurred by him in
connection with or arising out of any action, suit or proceeding in which he
may be involved by reason of his being or having been a member of the
Administrative Committee, whether or not he continues to be such member of the
Administrative Committee at the time of incurring such expenses. The foregoing
right of indemnification shall inure to the benefit of the heirs, executors or
administrators of each such member of the Administrative Committee and shall be
in addition to all other rights to which such member of the Administrative
Committee may be entitled as a matter of law, contract, or otherwise. Nothing
in this
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<PAGE> 14
Paragraph 20, shall be construed to limit or otherwise affect any right to
indemnification, or payment of expense, or any provisions limiting the
liability of any officer or director of the Company or any member of the
Administrative Committee, provided by law, the Certificate of Incorporation of
the Company or otherwise.
21. EFFECTIVE DATE OF PLAN. The Plan shall become
effective and shall be deemed to have been adopted on March 19, 1992, if within
one year of that date it shall have been approved by the holders of voting
stock of the Company representing a majority of the total voting power of the
Company at a meeting of stockholders or by written consent or if the provisions
of the corporate charter, by-laws or applicable state law prescribes a greater
degree of stockholder approval for this action, the approval by the holders of
that percentage, at a meeting of stockholders or by written consent. No Option
shall be granted pursuant to the Plan after March 19, 2002.
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<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF FULBRIGHT & JAWORSKI L.L.P.]
October 4, 1996
Energy Ventures, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas 77027-3415
Gentlemen:
We have acted as counsel for Energy Ventures, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933 of 1,000,000 shares of the Company's common stock, $1.00
par value (the "Shares"), to be offered upon the terms and subject to the
conditions set forth in the Company's 1992 Employee Stock Option Plan, as
amended (the "1992 Plan"), the Company's Executive Deferred Compensation Stock
Ownership Plan (the "EDC") and the Company's Foreign Executive Deferred
Compensation Stock Plan (the "Foreign EDC").
In connection therewith, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Restated
Certificate of Incorporation of the Company, the amended Bylaws of the Company,
the 1992 Plan, the EDC and the Foreign EDC, the records of relevant corporate
proceedings with respect to the offering of the Shares and such other documents
and instruments as we have deemed necessary or appropriate for the expression
of the opinions contained herein. We also have examined the Company's
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission with respect to the Shares.
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to us as copies, the authenticity and completeness of the originals
of those records, certificates and other instruments submitted to us as copies
and the correctness of all statements of fact contained in all records,
certificates and other instruments that we have examined.
Based on the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that the
Shares have been duly and validly authorized for issuance and, when issued in
accordance with the terms of the 1992 Plan, the EDC or the Foreign EDC, as the
case may be, will be duly and validly issued, fully paid and nonassessable.
The opinions expressed herein relate solely to, are based solely upon
and are limited exclusively to the laws of the State of Delaware and the
federal laws of the United States of America, to the extent applicable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Item 5.
Interests of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
Fulbright & Jaworski L.L.P.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
February 26, 1996 included in Energy Ventures, Inc.'s Form 10-K for the
year ended December 31, 1995, and to all references to our Firm included in
this Registration Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
October 4, 1996
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EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
July 31, 1995 on our audits of the consolidated financial statements of
Prideco, Inc. and subsidiaries included in the Energy Ventures, Inc., Form
8-K/A dated August 17, 1995, as amended by Amendment No. 2 to the Form 8-K/A
dated May 7, 1996, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
October 4, 1996
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EXHIBIT 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report dated April 18, 1996 on the consolidated financial statements for
Tubular Corporation of America and subsidiary included in the Energy Ventures,
Inc.'s Form 8-K dated June 24, 1996 and Form 8-K dated August 5, 1996 and to
all references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Tulsa, Oklahoma
October 4, 1996
