As filed with the Securities and Exchange Commission on June 21, 1996
Registration No. --------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
ALAMCO, INC.
(Exact name of registrant as specified in its charter)
Delaware 55-0615701
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
200 West Main Street
Clarksburg, West Virginia 26301
(Address of Principal Executive Offices) (Zip Code)
ALAMCO, INC. 1996 STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
(Full title of the plan)
John L. Schwager, President
Alamco, Inc.
200 West Main Street
Clarksburg, West Virginia 26301
(Name and address of agent for service)
(304) 623-6671
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<S><C>
Proposed Proposed
Title of maximum maximum Amount of
securities to be Amount to be offering price aggregate registration
registered registered per share* offering price fee**
Common Stock, par
value 170,000 $10.625
$.10 per share shares (at filing) $1,806,250.00 $622.84
</TABLE>
*Estimated solely for the purpose of calculating the registration fee and is
based on the average of the high and the low prices of the Registrant's Common
Stock reported on the American Stock Exchange on June 18, 1996.
**The fee is calculated pursuant to Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act") on the basis of the average of the high
and low prices of the Registrant's Common Stock reported on the American Stock
Exchange on June 18, 1996.
Exhibit Index begins on page 9.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Alamco, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference into this Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1996; and
3. The description of the Company's Common Stock, par value $0.10 per
share (the "Common Stock"), contained in the Company's Registration Statement on
Form 8-A filed under Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including all amendments and reports updating such
description.
The consolidated financial statements incorporated in this Registration
Statement by reference to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, have been so incorporated in reliance on
the report of Coopers & Lybrand L.L.P., independent accountants, given on the
authority of said firm as experts in auditing and accounting.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Registration Statement, but prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered by this Registration Statement have been sold or which deregisters all
such securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement. Each document incorporated by
reference into this Registration Statement shall be deemed to be part of this
Registration Statement from the date of the filing of such document with the
Commission until the information contained therein is superseded or updated by
any subsequently filed document which is incorporated by reference into this
Registration Statement or by any document which constitutes part of the prospec-
tus relating to the Stock Option between Alamco, Inc. and Non-Employee Directors
of Alamco, Inc., meeting the requirements of Section 10(a) of the Securities
Act.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered under this Registration
Statement is registered under Section 12(g) of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify its directors and officers against
suits subject to certain limitations. In brief, the statute expressly empowers
the Company to indemnify such persons if they acted in good faith and in a
manner that they reasonably believed to be in or not opposed to the best
interests of the corporation. With respect to any criminal action or proceed-
ings, such persons must also have had no reasonable cause to believe their
conduct was unlawful. In most cases, indemnification may cover expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
that are actually and reasonably incurred if the foregoing considerations are
met. However, in suits brought by or in the name of the Company (including
derivative suits), indemnification is limited to expenses actually or reasonably
incurred in defense or settlement, and no indemnification is permitted as to any
matter as to which such persons are liable, except as may be ordered by a
court. Article III, Section 13 of the Company's By-Laws provides that the
Company shall indemnify each of its directors and officers in connection with
suits, actions and other proceedings of all kinds, if the director or officer is
made a party or a witness because he is or was a director or officer of the
Company or an official of any employee benefit plan of the Company, or is or was
serving another enterprise as an officer, director, employee or agent at the
Company's request.
Section 102(b)(7) of the DGCL permits a corporation, in its certifi-
cate of incorporation, to limit or eliminate, subject to certain statutory
limitations, the liability of directors to the corporation or its stockholders
for monetary damages for breaches of fiduciary duty. Article 5, Section C of
the Company's Certificate of Incorporation provides as follows:
A director shall not be personally liable to the (Company) or its
stockholders for monetary damages for breach of fiduciary duty as a direc-
tor, provided, however, that a director shall be liable to the (Company)
or its stockholders (i) for any breach of the director's duty of loyalty
to the (Company) or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation
of the law, (iii) for paying a dividend or approving a stock repurchase or
redemption which is unlawful under Sec. 174 of the (DGCL), or (iv) for any
transaction from which the director derived an improper personal benefit.
The foregoing provision eliminates or limits the ability of the Company or its
stockholders to recover monetary damages from a director who is found to have
breached his or her fiduciary duty, even in circumstances where the good faith
business decision of a director is determined to have been grossly negligent.
The provision does not eliminate or limit a director's liability for breach of
the duty of loyalty, for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of the law, for liability for
certain improper dividends, stock purchases or stock redemptions, or any
transaction from which the director derived an improper personal benefit. The
provision also does not limit the ability of the Company or its stockholders to
obtain equitable remedies such as an injunction or rescission, since the
provision does not change the duty of care, but only eliminates monetary
liability of a director for breach of that duty. The provision does not affect
the liability of any officer of the Company to the Company or its stockholders
in his or her capacity as such, and may not serve to eliminate or limit any
liability of a director which is separate or distinct from that arising under
the DGCL, such as that arising under the Federal securities law.
The directors and officers of the Company (each an "Indemnitee" and
collectively the "Indemnitees") are each also parties to indemnification agree-
ments (collectively, the "Indemnification Agreements"), the executions of which
were approved by the Company's stockholders at the 1987 Annual Meeting of
Stockholders. Under the Indemnification Agreements, the Company agrees to hold
harmless and indemnify each Indemnitee to the fullest extent permitted by the
Certificate of Incorporation and applicable law for all expenses, including
attorney's fees and taxes, in connection with any threatened or commenced
investigation, proceeding, or other action. Subject to statutory limitations,
the Indemnification Agreements provide that the Indemnitees are not personally
liable to the Company or its stockholders for a breach of a fiduciary duty. The
Indemnification Agreements further provide for advancement to any Indemnitee
upon demand by the Company of costs, including attorney's fees to be recovered
by the Company if the Indemnitee is found not to be entitled to indemnification
under applicable law. In the event indemnification is unavailable under
applicable law for an action in which the Company may be jointly or severally
liable, the Company is obligated to contribute to the fullest extent permitted
by law to any judgment, fine, settlement or like obligation imposed upon the
Company and the Indemnitee, such contribution to be limited by relative fault or
benefit received.
Under the terms of a Directors and Officers Liability Policy main-
tained by the Company, the insurer has agreed to pay, subject to certain exclu-
sions and limits of liability, $2 million in the aggregate for certain losses,
including costs, charges, fees, expenses, compensatory damages, settlement
amounts, and legal fees and costs incurred in the defense of any judicial or
other proceeding, including any appeal therefrom, brought against any person who
was or is a duly elected director or officer of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by
reference as part of this Registration Statement:
Exhibit No. and Description
4.1 Certificate of Incorporation of Alamco, Inc., as amended (incorporated by
reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1992).
4.2 By-Laws of Alamco, Inc., as amended (incorporated by reference to Exhibit
3.2 to the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995).
4.3 Alamco, Inc. 1996 Stock Option Plan for Non-Employee Directors.
4.4 Form of Nonqualified Stock Option Agreement between Alamco, Inc. and its
Non-Employee Directors.
5.1 Opinion of Counsel as to the legality of the securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P., independent accountants.
23.2 Consent of Counsel (included in opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on Signature Page of this Registration State-
ment).
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 state-
ment:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration state-
ment;
(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 informa-
tion in the registration statement;
Provided, however, that paragraphs (a) (1) (i) and (a) (1)
(ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Sec-
tion 13 or Section 15(d) of the Exchange Act that are incorpo-
rated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(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 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.
* * *
(h) 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 indemni-
fication is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly autho-
rized, in the City of Clarksburg, the State of West Virginia, on this 21st day
of June 1996.
ALAMCO, INC.
By /s/ John L. Schwager
-----------------------------------
John L. Schwager
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John L. Schwager his true and
lawful attorney-in-fact and agent, with full power of substitution and revoca-
tion, 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 with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as such person might or could
doin person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement and the foregoing Power of Attorney have been signed below by the
following persons in the capacities and on the dates indicated.
Date Signature and Title
---- -------------------
/s/ John L. Schwager
June 21, 1996 --------------------------
John L. Schwager
President, Chief Executive
Officer, Principal Executive Officer,
Principal Financial Officer and Director
/s/ Robert S. Maust
June 21, 1996 --------------------------
Robert S. Maust
Director
/s/ Richard R. Hoffman
June 21, 1996 --------------------------
Richard R. Hoffman
Executive Vice President, Chief Operating
Officer and Director
June 21, 1996 /s/ Stephen L. Barr
--------------------------
Stephen L. Barr
Director
June 21, 1996 /s/ James H. Weber
--------------------------
James H. Weber
Director
June 21, 1996 /s/ Thomas M. Levine
--------------------------
Thomas M. Levine
Director
INDEX TO EXHIBITS
<TABLE>
<S><C>
Exhibit
No. Description
4.1 Certificate of Incorporation of Alamco, Inc., as amended (incorporated by reference to Exhibit
3.1 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1992).
4.2 By-laws of Alamco, Inc., as amended (incorporated by reference to Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995).
4.3 Alamco, Inc. 1996 Stock Option Plan for Non-Employee Directors.
4.4 Form of Nonqualified Stock Option Agreement between Alamco, Inc. and its Non-Employee Direc-
tors.
5.1 Opinion of Counsel as to the legality of the securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P, independent accountants.
23.2 Consent of Counsel (included in opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this registration statement).
</TABLE>
Exhibit 4.3
ALAMCO, INC.
1996 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
1. PURPOSE AND EFFECTIVE DATE
The purpose of the Alamco, Inc. 1996 Stock Option Plan for Non-Employee
Directors (the "Plan") is to increase the proprietary and vested interest of
the non-employee directors of Alamco, Inc. (the "Company") in the growth and
performance of the Company by granting such directors options to purchase
shares of Common Stock, $.10 par value per share (the "Common Stock"), of the
Company. This Plan shall become effective on July 1, 1996 (the "Effective
Date"), provided that this Plan shall be conditional on approval of the Plan
by the affirmative votes of the holders of a majority of the shares of Common
Stock present, or represented, and entitled to vote at a meeting of
stockholders held not later than the date of the 1996 annual meeting of
stockholders of the Company.
2. ADMINISTRATION
The Plan shall be administered by the Company's Board of Directors (the
"Board"). Subject to the provisions of the Plan, the Board shall be authorized
to interpret the Plan, to establish, amend, and rescind any rules and regula-
tions relating to the Plan and to make all other determinations necessary or
advisable for the administration of the Plan; provided, however, that the Board
shall have no discretion with respect to the selection of directors to receive
options under the Plan, the number of shares of Common Stock subject to any
such options, the purchase price thereunder or the timing of grants of options
under the Plan. The determinations of the Board in the administration of the
Plan, as described herein, shall be final and conclusive. The proper officers
of the Company shall be authorized to implement the Plan in accordance with its
terms and to take such actions of a ministerial nature as shall be necessary to
effectuate the intent and purposes thereof. The validity, construction and
effect of the Plan and any rules and regulations relating to the Plan shall be
determined in accordance with the laws of the State of Delaware, other than the
conflict of law provisions thereof.
3. ELIGIBILITY
The persons eligible for grant of options under the Plan shall be
Eligible Directors, as defined below. "Eligible Director" shall mean a member
of the Board who is not, and has not been within the one-year period immediately
preceding the date of determination of such directors eligibility, an employee
of the Company or any of its subsidiaries. Any holder of an option granted
hereunder shall hereinafter be referred to as a "Participant."
4. SHARES SUBJECT TO THE PLAN
Subject to adjustment as provided in Section 6, an aggregate of 170,000
shares of Common Stock shall be available for issuance upon the exercise of
options granted under the Plan. The shares of Common Stock deliverable upon the
exercise of options may be made available from authorized but unissued shares or
shares reacquired by the Company, including shares purchased in the open market
or in private transactions. If any option granted under the Plan shall termi-
nate for any reason without having been exercised, the shares subject to, but
not delivered under, such option shall be available for other options.
5. GRANT, TERMS AND CONDITIONS OF OPTIONS
(a) Each director who is an Eligible Director on the Effective Date
shall be granted an option to purchase 17,000 shares of Common Stock as of the
Effective Date. Each other Eligible Director shall be granted an option to
purchase 17,000 shares of Common Stock as of the first date after the Effective
Date on which he or she is elected or appointed or otherwise becomes an Eligible
Director.
(b) As of each fifth year anniversary (i.e., fifth anniversary, tenth
anniversary, fifteenth anniversary, etc.) of the date of each Eligible Director-
's initial grant pursuant to Section 5(a), provided such Eligible Director is
continuing in office after such anniversary date, such Eligible Director shall
be granted an option to purchase 17,000 shares of Common Stock.
(c) The options granted will be nonstatutory stock options not intended
to qualify under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), and shall have the following terms and conditions:
(i) Price. The purchase price per share of Common Stock deliverable
upon the exercise of each option shall be 100% of the Fair Market Value (as
hereinafter defined) per share of the Common Stock on the date the option
is granted. For purposes of this Plan, "Fair Market Value" shall mean the
closing price per share of the Common Stock on the American Stock Exchange
on the date in question, or, if the Common Stock shall not have traded on
such date, the closing price per share of the Common Stock on the first
date prior thereto on which the Common Stock was so traded.
(ii) Payment. The option exercise price shall be payable in full in
United States dollars upon the exercise of the option and may be paid in
cash or by cashier's or certified check. Notwithstanding the preceding
sentence, an Eligible Director may use shares of Common Stock which were
acquired by the Eligible Director more than six months prior to the option
exercise date to pay the exercise price. If this alternative medium of
payment is chosen, the Common Stock surrendered by the Eligible Director in
payment of the exercise price shall be deemed to be the equivalent of cash
in the amount of the Fair Market Value of the Common Stock surrendered
(determined as of the date of the exercise of the options).
(iii) Exercisability and Term of Options. Subject to Section 7,
options shall be exercisable in whole or in part on the following
schedule: beginning on the first anniversary of the date of grant, up to
five thousand (5,000) of the shares of Common Stock covered by the option;
beginning on the second anniversary of the date of grant, up to eight
thousand (8,000) of the shares of Common Stock covered by the option;
beginning on the third anniversary of the date of grant, up to eleven
thousand (11,000) of the shares of Common Stock covered by the option;
beginning on the fourth anniversary of the date of grant, up to fourteen
thousand (14,000) of the shares of Common Stock covered by the option; and
beginning on the fifth anniversary of the date of grant, for up to all of
the shares of Common Stock covered by the option. To the extent an option
becomes exercisable, it shall remain exercisable until the tenth (10th)
anniversary of the date of grant (the "Scheduled Expiration Date"), or if
earlier, when terminated as provided in Section 5(iv).
(iv) Termination of Service as Eligible Director.
(A) Upon cessation of service as an Eligible Director for reasons
other than death, options not immediately exercisable on the date of
cessation of service shall be forfeited and only those options that
are immediately exercisable on the date of cessation of service shall
be exercisable by the Participant within thirty (30) days after the
cessation of service, but not after the Scheduled Expiration Date,
or they shall be forfeited.
(B) Upon the death of a Participant while serving as an Eligible
Director, all options, whether or not previously exercisable, shall be
exercisable by the Participant's heirs or legal representatives within
one year after the date of such death, but not after the Scheduled
Expiration Date, or they shall be forfeited.
(v) Nontransferability of Options. No option shall be transferable by
a Participant otherwise than by will or the laws of descent and distribu-
tion, and during the lifetime of the Participant to whom an option is
granted it may be exercised only by the Participant or by the Participant's
guardian or legal representative.
(vi) Listing and Registration. Each option shall be subject to the
requirement that if at any time the Board shall determine, in its discre-
tion, that the listing, registration or qualification of the Common Stock
subject to such option upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental regulatory
body, is necessary or desirable as a condition of, or in connection with,
the granting of such option or the issue or purchase of shares thereunder,
no such option may be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected
or obtained free of any condition not acceptable to the Board.
(vii) Option Agreement. Each option granted hereunder shall be evi-
denced by an agreement with the Company which shall contain the terms and
provisions set forth herein and shall otherwise be consistent with the
provisions of the Plan.
6. ADJUSTMENT OF AND CHANGES IN COMMON STOCK
In the event of a stock split, stock dividend, subdivision or combina-
tion of the Common Stock or other change in the capitalization of the Company
affecting the Common Stock, the number of shares of Common Stock authorized by
the Plan shall be increased or decreased proportionately, as the case may be,
and the number of shares of Common Stock subject to any outstanding option shall
be increased or decreased proportionately, as the case may be, and a correspond-
ing adjustment shall be made in the purchase price per share of Common Stock
thereunder.
7. CHANGE IN CONTROL
Upon the occurrence of a Change in Control (as hereinafter defined) of
the Company, each option then outstanding immediately prior to such Change in
Control shall become immediately exercisable notwithstanding the requirements of
Section 5(c)(iii) hereof. A "Change in Control" shall be deemed to have
occurred if any of the events set forth below shall occur:
(a) The acquisition in one or more transactions, other than from the
Company, by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of a number of the voting securi-
ties of the Company ("Company Voting Securities") in excess of 15% of the
Company Voting Securities ; or
(b) Any election has occurred of persons to the Board that causes two-
thirds of the Board to consist of persons other than (i) persons who were
members of the Board on the Effective Date and (ii) persons who were
nominated for elections as members of the Board at a time when two-thirds
of the Board consisted of persons who were members of the Board on the
Effective Date; provided, however, that any person nominated for election
by a Board at least two-thirds of whom constituted persons described in
clauses (i) and/or (ii) or by persons who were themselves nominated by such
Board shall, for this purpose, be deemed to have been nominated by a Board
composed of persons described in clause (i); or
(c) Approval by the stockholders of the Company of a reorganization,
merger or consolidation, unless, following such reorganization, merger or
consolidation, all or substantially all of the individuals and entities who
were the respective beneficial owners of the outstanding shares of Common
Stock of the Company (the "Outstanding Company Common Stock") and Company
Voting Securities immediately prior to such reorganization, merger or
consolidation, following such reorganization, merger or consolidation
beneficially own, directly or indirectly, more than 80% of, respectively,
the then outstanding shares of common stock and the combined voting power
of the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting
from such reorganization, merger or consolidation in substantially the same
proportion as their ownership of the Outstanding Company Common Stock and
Company Voting Securities immediately prior to such reorganization, merger
of consolidation, as the case may be; or
(d) Approval by the stockholders of the Company of (i) a complete
liquidation or dissolution of the Company or (ii) a sale or other disposi-
tion of substantially all of the assets of the Company.
8. NO RIGHTS OF STOCKHOLDERS
Neither a Participant nor a Participant's legal representative shall be,
or have any of the rights and privileges of, a stockholder of the Company in
respect of any shares purchasable upon the exercise of any option, in whole or
in part, unless and until certificates for such shares shall have been issued.
9. PLAN AMENDMENTS
The Plan may be amended by the Board, from time to time, as it shall
deem advisable or to conform to any change in any law or regulation applicable
thereto; provided, however, that the Board may not, without the authorization
and approval of stockholders; (i) increase the number of shares which may be
purchased pursuant to options hereunder, either individually or in the aggre-
gate, except as permitted by Section 7, (ii) change the requirements of Sec-
tion 5(a) that option grants be priced at Fair Market Value, except as permitted
by Section 7, (iii) modify in any respect the class of individuals who consti-
tute Eligible Directors, or (iv) materially increase the benefits accruing to
Participants hereunder. The provisions of Sections 3 and 5 may not be amended
more often than once every six months, other than to comport with changes in the
Code, the Employee Retirement Income Security Act, or the rules under either
such statute.
10. DURATION OF PLAN
The Plan shall terminate on the fifteenth (15th) anniversary of the
Effective Date, unless the Plan is extended or terminated at an earlier date by
the Board.
APPROVED AND ADOPTED BY THE BOARD OF
DIRECTORS ON MARCH 18, 1996 AND THE
STOCKHOLDERS OF THE COMPANY ON
MAY 10, 1996
/s/ Jane Merandi, Secretary
Exhibit 4.4
This document constitutes part
of a prospectus covering securities
that have been registered under
the Securities Act of 1933.
Date of Grant: July 1, 1996
Number of Shares of Common Stock
Subject to Option: 17,000
Option Price: $------- per share
Expiration Date: Specified in
Exhibit "A"
NONQUALIFIED STOCK OPTION AGREEMENT
This Nonqualified Stock Option Agreement (the "Agreement") effective
as of July 1, 1996, by and between Alamco, Inc., a Delaware corporation (the
"Company"), and -------------- the "Optionee").
W I T N E S S E T H
WHEREAS, the Company desires to increase the proprietary and vested
interest of the non-employee directors of the Company through the grant to such
directors of options to purchase shares of the Company's Common Stock, par value
$0.10 per share ("Common Stock"), and by enabling such directors to participate
in the long-term growth and financial success of the Company; and
WHEREAS, the Company desires that each option granted be evidenced
by a written agreement between the Company and the Optionee containing certain
terms and conditions; and
NOW, THEREFORE, it is agreed as follows:
1. Number of Shares; Option Price. The Company grants to the
Optionee as of the Date of Grant indicated above (the "Date of Grant") the right
and option to purchase (the "Option") on the terms and conditions hereinafter
set forth, all or any part of the number of shares of Common Stock specified on
Exhibit "A" at a purchase price per share equal to the Option Price specified at
the top of this page (the "Option Price"). The Option is not intended to be an
"incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as in effect from time to time (the "Code").
2. Subject to Terms of Plan. The Options granted hereunder are
granted pursuant to the Alamco, Inc. 1996 Stock Option Plan for Non-Employee
Directors (the "Plan"), and it is understood and agreed that, except as express-
ly provided herein, the Option shall be subject to all the terms and conditions
of the Plan in effect from time to time. In the event of any inconsistency
between the terms of this Agreement and the Plan, the terms of this Agreement
shall prevail.
3. Exercise of Option.
(a) Limitations on Exercise. The Option may be exercised in
whole or in part at any time (or from time to time) on or after the
date first exercisable as set forth on Exhibit "A" (the "Exercise
Date") and prior to the Expiration Date set forth on Exhibit "A"
(the "Expiration Date") provided, however, that, except as provided
in paragraph 3(b) below and Section 7 of the Plan, the Option shall
expire at the earlier of (i) 30 days after the Optionee ceases to be
a director of the Company and (ii) the generally applicable Expira-
tion Date of the Option.
(b) Exercise after Death. Upon the death of an Optionee
while serving as a director, all Options, whether or not previously
exercisable, shall be exercisable by the Optionee's heirs or legal
representatives within one (1) year after the date of such death,
but not after the Expiration Date, or they shall be forfeited.
(c) Method of Exercise. The Option shall be exercised by
delivering to the Secretary of the Company, at the Company's office
in Clarksburg, West Virginia, a signed written notice in a form
acceptable to the Company which identifies the Option and specifies
the number of shares with respect to which the Option is being exer-
cised and by paying the full Option Price for such shares. The
Option Price may be paid in cash or by cashier's or certified
check. Notwithstanding the preceding, an Optionee may use shares of
Common Stock which were acquired by the director more than six
months prior to the Option Exercise Date. If this alternative
medium of payment is chosen, the Common Stock surrendered by the
Optionee in payment of the Option Price shall be deemed to be the
equivalent of cash in the amount of that Common Stock's fair market
value (determined as of the date of the exercise of the Options).
The date of exercise shall be the date the Company receives both
such written notice and payment. A form of notice of exercise
satisfactory to the Company is set forth in Exhibit "B" hereto. The
Optionee shall not have any of the rights and privileges of a
stockholder until certificates for such shares are issued, which the
Company shall do promptly.
(d) Fractional Shares. No fractional shares may be pur-
chased at any time.
4. Non-Transferability of the Option. The Option shall be
transferable only by will or by the laws of descent and distribution and, during
the Optionee's lifetime, shall be exercisable only by the Optionee.
5. Compliance with Securities Laws. No shares of Common Stock
may be purchased under the Option unless, prior to the purchase thereof, the
Company shall have determined that the issuance and sale of such shares by the
Company to the Optionee will not constitute a violation of the Securities Act of
1933, as amended (the "Securities Act"), or any applicable state securities
law. As a condition to any exercise of the Option, the Optionee shall, if
requested by the Company, submit a written statement, in form satisfactory to
the Company, to the effect that the shares then to be purchased upon exercise of
the Option will be purchased for the Optionee's own account for investment and
not with a view to the distribution thereof within the meaning of the Securities
Act. The Company shall also have the right, in its discretion, to cause the
certificates representing the shares then being purchased hereunder to be
appropriately legended to refer to such undertaking or to any legal restrictions
imposed upon the transferability thereof by reason of such undertaking.
The Option is subject to the further condition that if the listing,
registration or qualification of the Common Stock subject hereto on any stock
exchange on which the Company's stock may be then listed or under any state or
federal law, or if the consent or approval of any governmental regulatory body
shall be necessary or desirable as a condition of, or in connection with, the
granting of the Option or purchase of shares hereunder, the Option may not be
exercised, in whole or in part, unless and until such listing, registration,
qualification, consent or approval shall have been effected or obtained.
6. Discretion of the Company. Any decision made or action taken
by the Company or by the Board of Directors of the Company or by any committee
of the Board administering this Agreement (the "Committee") arising out of or in
connection with the construction, administration, interpretation or effect of
the Option or this Agreement shall be within the absolute discretion of the
Company, the Board of Directors or the Committee, as the case may be, and shall
be final, conclusive and binding upon all persons.
7. Inalienability of Benefits and Interest. Except as expressly
provided herein, the Option and the rights and privileges conferred hereby shall
not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, and any such attempted action shall
be void. No interest of the Optionee herein shall be in any manner liable for
or subject to debts, contracts, liabilities, engagements, or torts of the
Optionee. If the Optionee shall become bankrupt or shall attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge the Option, then
the Company in its discretion may hold the Option or any part hereof to or for
the benefit of the Optionee, Optionee's spouse, children, blood relatives, or
other dependents, or any of them, in such manner and in such proportions as the
Board may consider proper.
8. Governing Law. All questions pertaining to the validity,
construction, and effect of the Plan and any rules and regulations relating to
the Plan, provisions of the Option and this Agreement shall be determined in
accordance with the Code and the laws of the State of Delaware, other than the
conflict of law provisions thereof.
9. Change in Federal Income Tax Laws. In the event of changes in
the Code, or the regulations, rulings or other interpretations thereof affecting
the federal income tax consequences of the Option, the Committee shall have the
power to take such action as it deems necessary or desirable to amend the Option
for the purpose of permitting the Optionee to obtain favorable federal income
tax treatment in connection with the Option or the disposition of shares
obtained through the exercise of the Option.
10. Notices. Any notice or communication required or permitted to
be given under this Agreement shall be sent by certified mail, postage prepaid,
to the following addresses (or to such other address as either party may
designate from time to time by written notice to the other party):
If to the Company, to:
Alamco, Inc.
200 West Main Street
P. O. Box 1740
Clarksburg, WV 26301-1740
If to the Optionee, to the address appearing in the Company's
records for such Optionee.
11. Changes in Capitalization. If the Company shall at any time
increase or decrease the number of outstanding shares of Common Stock or change
in any way the rights and privileges of such shares by means of the payment of a
stock dividend or any other distribution upon such shares payable in Common
Stock, or through a stock split, subdivision, combination or other change in the
recapitalization of the Company affecting the Common Stock, then the number of
the shares of Common Stock subject to the Option shall be increased or decreased
proportionately and a corresponding adjustment shall be made in the purchase
price per share of Common Stock thereunder.
12. Change in Control. Upon the occurrence of a Change in
Control (as hereinafter defined) of the Company, each Option then outstanding
immediately prior to such Change in Control shall become immediately exercisable
notwithstanding the requirements of Section 3(a) hereof. A "Change in Control"
shall be deemed to have occurred if any of the events set forth below shall
occur:
(a) The acquisition in one or more transactions, other than
from the Company, by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) of beneficial owner-
ship (within the meaning of Rule 13d-3 promulgated under the Ex-
change Act) of a number of the voting securities of the Company
("Company Voting Securities") in excess of 15% of the Company Voting
Securities ; or
(b) Any election has occurred of persons to the Board that
causes two-thirds of the Board to consist of persons other than (i)
persons who were members of the Board on the Effective Date and (ii)
persons who were nominated for elections as members of the Board at
a time when two-thirds of the Board consisted of persons who were
members of the Board on the Effective Date; provided, however, that
any person nominated for election by a Board at least two-thirds of
whom constituted persons described in clauses (i) and/or (ii) or by
persons who were themselves nominated by such Board shall, for this
purpose, be deemed to have been nominated by a Board composed of
persons described in clause (i); or
(c) Approval by the stockholders of the Company of a reorga-
nization, merger or consolidation, unless, following such reorgani-
zation, merger or consolidation, all or substantially all of the
individuals and entities who were the respective beneficial owners
of the outstanding shares of Common Stock of the Company (the
"Outstanding Company Common Stock") and Company Voting Securities
immediately prior to such reorganization, merger or consolidation,
following such reorganization, merger or consolidation beneficially
own, directly or indirectly, more than 80% of, respectively, the
then outstanding shares of common stock and the combined voting
power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such reorganization, merger or consolida-
tion in substantially the same proportion as their ownership of the
Outstanding Company Common Stock and Company Voting Securities
immediately prior to such reorganization, merger of consolidation,
as the case may be; or
(d) Approval by the stockholders of the Company of (i) a
complete liquidation or dissolution of the Company or (ii) a sale or
other disposition of substantially all of the assets of the Company.
13. Successors. The Option shall be binding upon and inure to
the benefit of any successor or successors of the Company and any person who,
upon the death of the Optionee, acquires any rights hereunder pursuant to the
provisions of paragraph 3(b) above.
IN WITNESS WHEREOF, the Company has caused the Option to be executed
as of the date of grant first above written.
ATTEST: ALAMCO, INC.
- ------------------------ By: --------------------------
DATE: RECEIPT ACKNOWLEDGED:
- ------------------------ ------------------------------
Optionee
EXHIBIT "A"
TO NONQUALIFIED STOCK OPTION AGREEMENT
EXERCISE AND EXPIRATION DATES
Number of Date First Expiration
Shares Exercisable Date
5,000 July 1, 1997 June 30, 2006
3,000 July 1, 1998 June 30, 2006
3,000 July 1, 1999 June 30, 2006
3,000 July 1, 2000 June 30, 2006
3,000 July 1, 2001 June 30, 2006
EXHIBIT "B"
TO NONQUALIFIED STOCK OPTION AGREEMENT
NOTIFICATION OF EXERCISE OF STOCK OPTION
- ------------------------------------------------------------------------------
To: Alamco, Inc.
200 West Main Street
P. O. Box 1740
Clarksburg, WV 26302-1740
I hereby elect to exercise my stock option granted on --------------
- --------------------, at $ ----------- per share to the extent of --------------
shares of Common Stock. Payment in the amount of $----------------- (Option
Price times the number of shares) is enclosed in the form of -------------.
Please issue a stock certificate for the shares being purchased as
follows:
Name: ------------------------------------------
Address: ---------------------------------------
City: --------------------------- State: -------
Zip:-----------
Social Security Number: -----------------------------
Date: --------------------
-----------------------------
(Printed name of Optionee)
Exhibit 5.1
June 21, 1996
U. S. Securities and Exchange Commission
450 - 5th Street, N.W.
Washington, DC 20549
RE: REGISTRATION STATEMENT ON FORM S-8 FOR ALAMCO, INC.
Dear Sir/Madam:
I am acting as counsel to Alamco, Inc., a Delaware corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended, covering
170,000 shares (the "Shares") of the Company's Common Stock, par value $0.10 per
share, which may be issued to non-employee directors of the Company upon
exercise of stock options granted under the Alamco, Inc. 1996 Stock Option Plan
for Non-Employee Directors (the "Plan").
I am familiar with the Registration Statement and the Plan. I have
reviewed a certified copy of the Company's Certificate of Incorporation, as
amended, certificates of public officials, corporate proceedings of the Company,
and other documents as needed to express the opinions contained herein.
On the basis of the foregoing, I am of the opinion that:
(1) The Company is duly incorporated and legally existing under
the laws of the State of Delaware and has an authorized capital consisting of
16,000,000 shares of capital stock, par value $0.10 per share, of which 15,-
000,000 shares have been designated as Common Stock, and 1,000,000 shares
designated as Preferred Stock, par value $1.00 per share, and;
(2) The Shares have been duly authorized and reserved for issuance
pursuant to the Plan, and when issued in accordance with the provisions of the
Plan, the shares will be validly issued, fully paid and non-assessable.
I consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Bridget D. Furbee
Bridget D. Furbee
Vice President,
Administration and
Legal Affairs
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Alamco, Inc. and subsidiaries on Form S-8 of our report dated February 28,
1996, on our audits of the consolidated financial statements of Alamco, Inc.
and subsidiaries as of December 31, 1995 and 1994, and for the years ended
December 31, 1995, 1994 and 1993, which report is included in the Annual
Report on Form 10-K for the year ended December 31, 1995. We also consent
to the reference to our firm as "Experts" under Item 3 in this Registration
Statement on Form S-8.
/s/ Coopers & Lybrand L.L.P.
- -----------------------------------
COOPERS & LYBRAND L.L.P.
600 Grant Street
Pittsburgh, Pennsylvania
June 19, 1996
