As filed with the Securities and Exchange Commission on November 5, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ADVANCED TECHNICAL PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-1581582
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 MANSELL CT. EAST, SUITE 505
ROSWELL, GEORGIA 30076
(770) 993-0291
(Address of registrant's principal executive offices)
ADVANCED TECHNICAL PRODUCTS, INC. 1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of plan)
James S. Carter
Chairman, President and Chief Executive Officer
Advanced Technical Products, Inc.
200 Mansell Ct. East, Suite 505
Roswell, Georgia 30076
(770) 993-0291
Copy to: Eric A. Blumrosen, Esq.
Gardere Wynne Sewell & Riggs, L.L.P.
333 Clay Avenue
Suite 800
Houston, Texas 77002-4086
(713) 308-5500
(Name and address, including zip code, and telephone number, including
area code, of registrant's agent for service)
CALCULATION OF REGISTRATION FEE
===============================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED SHARE (1) PRICE (1) FEE
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Common Stock, $.01 par
value ................ 1,000,000 (1) $7.75 $7,750,000 $2,155
===============================================================================
(1) Estimated in accordance with Rules 457(c) and 457(h) solely for the
purpose of calculating the registration fee on the basis of $ 7.75 per
share, the average of the high and low price of the Registrant's common
stock as reported on the National Market System of the Nasdaq Stock
Market, Inc. on November 2, 1998.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities
Act"), and the Note to Part I of Form S-8.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by Advanced Technical Products, Inc. (the
"Registrant") with the Securities and Exchange Commission are incorporated by
reference in this registration statement.
(1) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
July 3, 1998, filed pursuant to Section 13(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(2) The Registrant's current Report on Form 8-K dated March 12, 1998
filed pursuant to Section 12 of the Exchange Act.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
April 3, 1998, filed pursuant to Section 13(a) of the Exchange Act.
(4) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 filed pursuant to Section 13(a) of the Exchange Act.
(5) The description of the Registrant's Common Stock which is contained
in the Registrant's Registration Statement on Form 8-A filed pursuant to
Section 12 of the Exchange Act, including any amendment or report filed for
the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 under this
registration statement, 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The following summary is qualified in its entirety by reference to the
complete text of the General Corporation Law of the State of Delaware (the
"DGCL"), the Bylaws of the Registrant (the "Registrant Bylaws") and the Amended
and Restated Certificate of Incorporation of the Registrant (the "Registrant
Charter") referred to below.
Section 145 of the DGCL provides in relevant part that a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that such person is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful.
In addition, Section 145 of the DGCL provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue
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<PAGE>
or matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Delaware Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
Section 145 of the DGCL further provides that nothing in the above-described
provisions shall be deemed exclusive of any other rights to indemnification or
advancement of expenses to which any person may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
The Registrant Bylaws provide for the indemnification of each director,
officer, former director and former officer of Registrant, and each person who
shall have served at the request of Registrant as a director or officer of
another corporation in which Registrant owns shares of capital stock or of which
Registrant is a creditor, against expenses actually and necessarily incurred by
him or her in connection with the defense of any action, suit or proceeding in
which he or she is made a party by reason of his or her being or having been a
director or officer of Registrant or of such other corporation. The Registrant
Bylaws also provide that such indemnification shall not be deemed exclusive of
any other rights to which those indemnified may be entitled as a matter of law
or under any bylaw, agreement, vote of stockholders or otherwise.
Section 102(b)(7) of the DGCL provides that a corporation may, in its
certificate of incorporation, eliminate or limit the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director except for liability: for any breach of the
director's duty of loyalty to the corporation or its stockholders; for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; under Section 174 of the DGCL (pertaining to certain
prohibited acts including unlawful payment of dividends or unlawful purchase or
redemption of the corporation's capital stock); or for any transaction from
which the director derived an improper personal benefit. The Registrant Charter
does not contain a provision so limiting the personal liability of directors of
the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE>
ITEM 8. EXHIBITS.
4.1* -- Advanced Technical Products, Inc. 1998 Employee Stock Purchase Plan.
5.1* -- Opinion of Gardere Wynne Sewell & Riggs, L.L.P., counsel for the
Registrant.
23.1* -- Consent of KPMG Peat Marwick LLP, independent accountants.
23.2* -- Consent of Gardere Wynne Sewell & Riggs, L.L.P. (included in
Exhibit 5.1).
24.1* -- Power of Attorney (included on signature page on page II-5).
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* Filed herewith.
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<PAGE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement to include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) 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 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Exchange 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 Exchange Act and will be governed
by the final adjudication of such issue.
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<PAGE>
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 Roswell, State of Georgia, on the 4th day of
November, 1998.
ADVANCED TECHNICAL PRODUCTS, INC.
(Registrant)
By: /s/ JAMES S. CARTER
James S. Carter, CHAIRMAN OF THE
BOARD, CHIEF EXECUTIVE OFFICER AND
PRESIDENT
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints James S. Carter and Garrett L. Dominy and
each of them (with full power in each of them to act alone), his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any amendments to this Registration Statement on Form S-8,
and to file the same with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or either
of them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated below as of the day set forth opposite his name.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JAMES S. CARTER CHAIRMAN OF THE BOARD, November 4, 1998.
James S. Carter CHIEF EXECUTIVE OFFICER AND
PRESIDENT
(PRINCIPAL EXECUTIVE OFFICER)
AND DIRECTOR
/s/ GARRETT L. DOMINY EXECUTIVE VICE PRESIDENT, November 4, 1998.
Garrett L. Dominy CHIEF FINANCIAL OFFICER, ASSISTANT
SECRETARY AND TREASURER
(PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER)
AND DIRECTOR
/s/ALAN W. BALDWIN DIRECTOR November 4, 1998.
Alan W. Baldwin
/s/ROBERT C. SIGRIST DIRECTOR November 4, 1998.
Robert C. Sigrist
/s/ LAWRENCE E. WESNESKI DIRECTOR November 4, 1998.
Lawrence E. Wesneski
/s/ SAM P. DOUGLASS DIRECTOR November 4, 1998.
Sam P. Douglass
/s/GARY L. FORBES DIRECTOR November 4, 1998.
Gary L. Forbes
/s/ JOHN M. SIMON DIRECTOR November 4, 1998.
John M. Simon
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INDEX TO EXHIBITS
4.1* -- Advanced Technical Products, Inc. 1998 Employee Stock Purchase
Plan.
5.1* -- Opinion of Gardere Wynne Sewell & Riggs, L.L.P., counsel for the
Registrant.
23.1* -- Consent of KPMG Peat Marwick LLP, independent accountants.
23.2* -- Consent of Gardere Wynne Sewell & Riggs, L.L.P. (included in
Exhibit 5.1).
24.1* -- Power of Attorney (included on signature page on page II-5).
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* Filed herewith.
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EXHIBIT 4.1
ADVANCED TECHNICAL PRODUCTS, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
PURPOSE
1.01 PURPOSE. The Advanced Technical Products, Inc. 1998 Employee Stock Purchase
Plan is intended to encourage employees of Advanced Technical Products, Inc.
("ATP") to remain in its employ and participate in its growth by providing a
method whereby employees of ATP and its eligible Subsidiary Corporations
(collectively, with ATP, the "Company") will have an opportunity to acquire a
proprietary interest in the Company's long-term performance and success through
the purchase of shares of the Common Stock at a price that may be less than the
fair market value of the stock on the date of purchase from funds accumulated
through payroll deductions. It is the intention of the Company to have the Plan
qualify as an "employee stock purchase plan" under section 423 of the Internal
Revenue Code of 1986, as amended (the "Code"). The provisions of the Plan shall
be construed so as to extend and limit participation in a manner consistent with
the requirements of that section of the Code.
ARTICLE II
DEFINITIONS
2.01 "Base Pay" means regular straight-time earnings excluding payments for
overtime, shift premium, bonuses and other special payments, commissions and
other incentive payments.
2.02 "Board" means the Board of Directors of ATP.
2.03 "Common Stock" means the Common Stock, $.01 par value of ATP.
2.04 "Committee" means the committee appointed by the Board pursuant to Article
X to administer the Plan. If the Board does not appoint a Committee, or if a
Committee otherwise fails to exist at any time during the term hereof, the Board
shall perform the functions of the Committee.
2.05 "Employee" means any person who is customarily employed within the meaning
of Code section 3401, by the Company (i) 20 hours per week or more or (ii) at
least five months in any calendar year. The Committee shall determine when an
Employee's period of employment terminates and when such period of employment is
deemed to be continued during an approved leave of absence.
<PAGE>
2.06 "Offering" means any offering as described in Section 4.02 hereof
permitting Participants to
purchase Common Stock under the Plan.
2.07 "Offering Commencement Date" means the date on which an Offering will
commence, as described in Section 4.02.
2.08 "Offering Period" means the period between the Offering Commencement Date
and the Offering Termination Date, as described in Section 4.02.
2.09 "Offering Termination Date" means the last day of an Offering Period, as
described in Section 4.02.
2.10 "Participant" means an Employee who exercises an option to purchase Common
Stock under the Plan by authorizing payroll deductions under Section 5.02.
2.11 "Plan" means the Advanced Technical Products, Inc. 1998 Employee Stock
Purchase Plan, as set forth herein and as it may be amended from time to time.
2.12 "Subsidiary Corporation" means (i) any "subsidiary corporation" of ATP as
that term is defined in section 424(f) of the Code, (ii) any other entity that
is taxed as a corporation under Code Section 7701(a)(3) and is a member of the
"affiliated group" as defined in Code Section 1504(a) of which ATP is the common
parent, and (iii) any other entity as may be permitted from time to time by the
Code or the Internal Revenue Service to be an employer of employees
participating in the Plan; provided, however, that any such Subsidiary
Corporation must be designated as a participating employer in the Plan by the
Board.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.01 INITIAL ELIGIBILITY. Except as provided in Section 3.02, any Employee who
shall have completed ninety (90) days employment and shall be employed by the
Company on the date his participation in the Plan is to become effective shall
be eligible to participate in Offerings under the Plan which commence on or
after such ninety day period has concluded.
3.02 RESTRICTIONS ON PARTICIPATION. Notwithstanding any provisions of the Plan
to the contrary, no Employee shall be granted an option to purchase Common Stock
under the Plan:
(a) if, immediately after the grant, such Employee would own stock, and/or
hold outstanding options to purchase stock, possessing 5% or more of the total
combined voting power or value of all classes of stock of the Company (for
purposes of this subparagraph, the rules of section 424(d) of the Code shall
apply in determining stock ownership of any Employee) and any option granted to
an Employee which results in his stock ownership (as determined under section
423(b)(3) of the
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Code) equaling or exceeding such 5% limitation shall be entirely void as if it
had never been granted; or
(b) which permits his rights to purchase stock (i) under the Plan to
exceed $2,500 per calendar year or (ii) under all employee stock purchase plans
of the Company to accrue at a rate which exceeds $25,000 in fair market value of
the stock (determined at the time such option is granted) for each calendar year
in which such option is outstanding. For purposes of this subparagraph (b), (i)
an option accrues when the option first becomes exercisable during any calendar
year; (ii) an option accrues at a rate provided in the applicable Offering, but
in no case may such rate for any Employee exceed $25,000 of the fair market
value of stock determined at the time the option is granted for any one calendar
year; (iii) an option that has accrued under any one Offering may not be carried
over by a Participant to any other Offering; and (iv) only rights to purchase
stock that have been granted under an employee stock purchase plan that complies
with section 423 of the Code shall be taken into account.
3.03 COMMENCEMENT OF PARTICIPATION. An eligible Employee may become a
Participant by completing an authorization for a payroll deduction in accordance
with Section 5.02 on the form provided by the Company and filing it with the
Company's finance department on or before the date set therefor by the
Committee, which date shall be prior to the Offering.
ARTICLE IV
OFFERINGS
4.01 SHARES OFFERED The total number of shares of Common Stock available under
the Plan is 1,000,000 shares. If any Offering shall expire without the rights
under such Offering having been exercised in full, such unpurchased shares
covered thereby shall be added to the shares otherwise available for future
Offerings.
4.02 OFFERINGS. The Company may make periodic Offerings to eligible employees to
purchase Common Stock under the Plan, the duration of which may be for a period
of three months up to one year; provided, however, that the initial Offering
Commencement Date may be for a period of less than three months, as determined
by the Committee. Offering Periods commencing after the initial Offering Period
will commence on January 1, April 1, July 1 or October 1. With respect to each
Offering, the Committee, at its discretion, may specify the maximum number of
shares of Common Stock that may be purchased under the Offering or such other
limitations as it may deem appropriate. The number of shares of Common Stock
that may be purchased under each successive Offering shall be all or a portion
of the balance of the 1,000,000 shares authorized but not purchased previously
under the terms of this Plan.
As used in the Plan, "Offering Commencement Date" means the January 1,
April 1, July 1 or October 1, as the case may be, on which the particular
Offering begins (except with respect to the initial Offering Commencement Date,
which shall be November 1, 1998), "Offering Termination
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Date" means the March 31, June 30, September 30 or December 31, as the case may
be, on which the particular Offering terminates, and "Offering Period" means the
period from the Offering
Commencement Date to the Offering Termination Date.
ARTICLE V
PAYROLL DEDUCTIONS
5.01 OFFERING RIGHTS. With respect to each Offering, each Employee shall be
offered the opportunity to elect to have deducted from each paycheck issued
during the Offering Period an amount as determined by the Participant which
shall be withheld by the Company for the purchase on behalf of such electing
Employee of the number of whole shares of Common Stock that can be purchased
with the amount deducted for such purpose, but in no event may the number of
whole shares which may be purchased by any Participant exceed the number of
whole shares available during the Offering Period or exceed the individual
Participant allotment, if any, for the Offering Period described in Section 6.03
hereof. Fractional shares may not be purchased; any funds that are insufficient
to purchase whole shares shall remain in each affected Participant's Plan
account until the following Offering Period, at which time such funds shall be
(i) combined with the Participant's payroll deduction for the following Offering
Period and used to purchase whole shares for each affected Participant who
remains eligible to participate in such Offering Period, or (ii) returned to
each affected Participant who is not eligible to participate in the following
Offering Period.
5.02 PAYROLL DEDUCTIONS. Each Employee shall become a Participant pursuant to
the terms of an Offering by filing a written election to participate in that
Offering in the form of a payroll deduction authorization prior to the Offering
Commencement Date on the form provided by the Company for that purpose. A
Participant may elect to have his authorization continue for future Offerings
until revoked or modified in writing. A Participant may elect to have deductions
made from his pay in one of two ways. At the time a Participant files his
authorization for payroll deduction, he shall elect to have deductions made from
his pay on each payday during the time he is a Participant in an Offering at the
rate of any specified whole percentage from 1% up to and including 10% of his
Base Pay in effect at the Offering Commencement Date or the Participant shall
elect to have a specific dollar amount deducted from his pay on each payday
during the time he is a Participant pursuant to rules that may be proscribed
from time to time by the Committee; provided, however, that each payroll
deduction shall be in an amount not less than $30 per calendar month and shall
be subject to the restrictions contained in Section 3.02. In the case of a
part-time hourly Employee, such Employee's Base Pay during an Offering shall be
determined by multiplying such Employee's hourly rate of pay in effect on the
Offering Commencement Date by the number of regularly scheduled hours of work
for such Employee during such Offering. Payroll deductions shall commence with
the first regular payroll period coinciding with or ending on the Offering
Commencement Date, or at such other time as may be specified in such Offering
and shall end on the earlier of the last regular payroll period coinciding with
or ending before the Offering Termination Date or, if earlier, upon the
termination of the Participant's employment with the Company.
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5.03 METHOD OF PAYMENT; PARTICIPANT'S ACCOUNT. The Company will maintain or
cause to have maintained a Plan account on its books in the names of each
Participant. All payroll deductions made for a Participant shall be credited to
his account under the Plan. Purchases of shares of Common Stock by any
Participant pursuant to an Offering shall be made with funds accumulated in the
Participant's account through payroll deductions from the Participant's Base Pay
during the Offering Period. A Participant may not make any separate cash payment
into such account except when on leave of absence and then only as provided in
Section 5.05. The Company shall not credit a Participant's Plan account with
interest on any payroll deduction.
5.04 CHANGES IN PAYROLL DEDUCTIONS. A Participant may discontinue his
participation in the Plan as provided in Article VII, but no other change can be
made during an Offering and, specifically, a Participant may not alter the
amount of his payroll deductions for that Offering.
5.05 LEAVE OF ABSENCE. If a Participant goes on a leave of absence, such
Participant shall have the right to elect (i) to withdraw the balance in his
Plan account pursuant to Article VII, (ii) to discontinue contributions to the
Plan but remain a Participant in the Plan, or (iii) to remain a Participant in
the Plan during such leave of absence, authorizing deductions to be made from
payments by the Company to the Participant during such leave of absence and
undertaking to make cash payments to the Plan at the end of each payroll period
to the extent that amounts payable by the Company to such Participant are
insufficient to meet such Participant's authorized Plan deductions.
ARTICLE VI
TERMS AND CONDITIONS OF OFFERINGS AND OPTIONS
6.01 TERMS AND CONDITIONS. Except as provided in Section 3.02(b), all
Participants shall have the same rights and privileges, as specified below in
this Article VI.
6.02 NUMBER OF OPTION SHARES. On each Offering Commencement Date, a Participant
shall be deemed to have been granted an option to purchase shares of Common
Stock of the Company equal to the percentage of the Employee's Base Pay that he
has elected to have withheld through payroll deductions multiplied by the
Employee's Base Pay during the Offering Period, divided by the purchase price
per share determined under Section 6.04, subject to the allotments, if any, for
the Offering Period described in Section 6.03.
6.03 ALLOTMENT OF SHARES. If the total number of shares of Common Stock to be
purchased by Participants through payroll deduction under any Offering exceeds
the shares available for purchase under the Offering, the Committee may make
allotments of shares among the Participants on any basis consistent with the
terms of the Plan, and Offerings for shares, if any, in excess of the shares so
allotted shall be deemed to have lapsed.
6.04 PURCHASE PRICE. The purchase price per share at which Common Stock may be
purchased under each Offering shall be a percentage established by the Committee
prior to the Offering
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Commencement Date which is from 85% to 100% of the lesser of the fair market
value of a share of Common Stock as determined as of (i) the Offering
Commencement Date or (ii) the Offering Termination Date. In determining the
purchase price, the fair market value per share of Common Stock shall be the
closing price reported on the NASDAQ Stock Market or successor exchange for the
date on which such value is being determined; provided, however, that if the
closing sales price is not reported on such date, then the closing price on the
most recently preceding date on which such price was reported shall be used.
6.05 NONTRANSFERABILITY OF OPTIONS. An option shall not be transferable by the
Employee or Participant to whom it has been granted otherwise than by will or
the laws of descent and distribution and shall be exercisable, during the
Participant's lifetime, only by the Participant. Further, in the discretion of
the Board, the terms of any Offering may prohibit transfer under any
circumstances and provide for cancellation of the unexercised portion of any
option upon the death of a Participant.
6.06 PURCHASES. As of the Offering Termination Date, or such other date as
required by administrative operational requirements, purchases of shares of
Common Stock by any Participant pursuant to an Offering shall be made with funds
accumulated in the Participant's account through payroll deductions from the
Participant's pay or as otherwise permitted by the Board, under rules of uniform
application over the time period specified in such Offering.
6.07 OTHER PROVISIONS. Each Offering shall contain such other provisions as the
Board shall deem advisable, including restrictions on resale of Common Stock
purchased through an Offering, provided that no such provisions may in any way
conflict, or be inconsistent with the terms of the Plan as amended from time to
time.
6.08 REQUIREMENTS OF LAW. The issuance of any Common Stock hereunder is
conditioned upon registration of the Common Stock to be issued under applicable
federal and state securities laws and its listing on any applicable stock
exchange. In no event shall any Common Stock be issued hereunder prior to the
effective date of any such registration or listing application. In addition,
unless and until the Plan is approved by a proper vote of the stockholders of
the Company, the purchase price per share under Section 6.04 shall be at least
100% of the fair market value determined thereunder.
6.09 ISSUANCE OF COMMON STOCK SHARES. The shares of Common Stock purchased by
each Participant with respect to each Offering shall be considered to be issued
and outstanding to his credit as of the close of business on the Offering
Termination Date or other purchase date for the Offering as described in Section
6.06. Certificates for shares of Common Stock shall be issued in accordance with
Section 7.02 only in the name of the Participant unless the Participant, or in
the event of death, the Participant's designee, elects otherwise by written
notice to the Company and the Company gives prior written consent to such
election.
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6.10 ACCOUNT BALANCES. No interest shall accrue at any time for any amount
credited to the account of a Participant. After the close of each Offering, a
report shall be sent to each Participant stating the entries made to his
account, the number of shares of Common Stock purchased, and the applicable
purchase price of such shares.
ARTICLE VII
WITHDRAWALS FROM PARTICIPANT ACCOUNTS
7.01 WITHDRAWAL FROM OFFERING. Except for any officer of the Company who is
subject to the reporting requirements of Section 16(a) of the Securities
Exchange Act of 1934, as amended (an "Insider"), Participants may cease
participation in an Offering at any time prior to the Offering Termination Date
and withdraw all cash amounts in their accounts by providing at least fifteen
(15) days' prior written notice to the Company's finance department revoking his
payroll deduction authorization. Such withdrawals shall serve to cancel the
Participant's option, and the Participant shall thereupon cease his
participation in such Offering. Partial cash withdrawals shall not be permitted.
Cash withdrawal requests shall be made in such from and under such conditions as
may be specified from time to time by the Committee. Insiders may not make cash
withdrawals for so long as they remain Insiders.
7.02 ISSUANCE OF CERTIFICATES. As soon as practicable after each Offering
Period, each Participant will receive a stock certificate representing all of
the shares of Common Stock (in a whole number of shares) held in his account. A
Participant shall not be permitted to pledge, transfer, or sell shares of Common
Stock held in his account until they are issued in certificate form.
7.03 TERMINATION OF EMPLOYMENT. Upon termination of a Participant's employment
with the Company for any reason, whether voluntary or involuntary, his
participation in the Plan shall immediately terminate. As soon thereafter as is
practicable, the Participant shall receive (i) cash in an amount equal to the
balance in his account as of the date of his termination of employment, without
interest; (ii) a stock certificate for all whole shares of Common Stock not yet
delivered out of the account; and (iii) cash equivalent to any fractional shares
of Common Stock in the account.
ARTICLE VIII
RECAPITALIZATION OR REORGANIZATION
AND COMMON STOCK DIVIDENDS
8.01 MERGER, CONSOLIDATION, OR REORGANIZATION. In the event of a dissolution or
liquidation of the Company, or any merger, consolidation, or share exchange
pursuant to which the holders of Common Stock would receive cash, securities or
property from another person or entity, the Board, at its election, may cause
each outstanding option to terminate; provided, however, that each
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Participant shall in such event, subject to such rules and limitations of
uniform application as the Board may prescribe, be entitled to the rights of
terminating Participants provided in Article VII.
8.02 CAPITAL ADJUSTMENTS. The aggregate number of shares of Common Stock that
may be purchased by the exercise of outstanding options and the purchase price
per share covered by each such outstanding option and the number of shares of
Common Stock held in a Participant's account shall be proportionately adjusted
for any increase or decrease in the number of issued shares resulting from a
subdivision or consolidation of Common Stock shares or other capital adjustment
or the payment of a Common Stock dividend or other increase or decrease in such
shares of Common Stock effected without the receipt of consideration by the
Company.
8.03 COMPANY'S DISCRETION. The grant of an option under the Plan shall not
affect in any way the Company's right or power to make adjustments,
reclassifications, reorganizations, or changes of its capital or business or to
merge, consolidate, dissolve, liquidate, sell, or transfer all or any part of
its business or assets.
ARTICLE IX
AMENDMENT OR TERMINATION OF THE PLAN
9.01 AMENDMENT OR TERMINATION. The Board in its sole and absolute discretion may
suspend or terminate the Plan, reconstitute the Plan in whole or in part, or
amend or revise the Plan in any respect whatsoever except that (i) no amendment
shall cause any option to fail to qualify as an option under section 423 of the
Code; (ii) without approval of the stockholders, no amendment shall increase the
number shares of Common Stock that may be sold under the Plan or make any change
in the Employees or class of Employees eligible to participate in the Plan; and
(iii) without the approval of a Participant, no change shall be made in the
terms of any outstanding option adverse to the interest of the Participant. The
Plan shall terminate on the date that all shares of Common Stock authorized for
sale under the Plan have been purchased, except as otherwise extended by
authorizing additional shares under the Plan.
ARTICLE X
ADMINISTRATION
10.01 APPOINTMENT OF COMMITTEE. If the Board appoints a Committee to administer
the Plan, the Committee shall consist of one or more persons who are either
directors or employees of the Company. The Board may from time to time appoint
members of the Committee in substitution for or in addition to members
previously appointed and may fill vacancies, however caused, in the Committee.
10.02 AUTHORITY OF COMMITTEE. Subject to the express provisions of the Plan, the
Committee shall have full power and authority in its discretion to interpret and
construe any and all provisions of the
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Plan, to adopt rules and regulations for administering the Plan, and to make all
other determinations deemed necessary or advisable for administering the Plan.
The Committee's determination on the foregoing matters shall be final,
conclusive and binding on all persons. The Committee may delegate some or all of
its administrative powers and responsibilities to such other persons from time
to time as it deems appropriate.
ARTICLE XI
MISCELLANEOUS
11.01 NONTRANSFERABILITY. Except by the laws of descent and distribution, no
benefit provided hereunder shall be subject to alienation, assignment, or
transfer by a Participant (or by any person entitled to such benefit pursuant to
the terms of this Plan), nor shall it be subject to attachment or other legal
process of whatever nature, and any attempted alienation, assignment,
attachment, or transfer shall be void and of no effect whatsoever and, upon any
such attempt, the benefit shall terminate and be of no force or effect. During a
Participant's lifetime, options granted to the Participant shall be exercisable
only by the Participant. Shares of Common Stock shall be delivered only to the
Participant or death beneficiary entitled to receive the same or to the
Participant's authorized legal representative.
11.02 NO EMPLOYMENT RIGHT. Neither this Plan nor any action taken hereunder
shall be construed as giving any right to any individual to be retained as an
officer or Employee of the Company.
11.03 TAX WITHHOLDING. The Company shall have the right to deduct from all
payments hereunder any federal, state, local, or employment taxes that it deems
are required by law to be withheld with respect to such payments.
11.04 GOVERNMENT AND OTHER REGULATIONS. The obligation of the Company to deliver
shares of Common Stock or make cash payments hereunder shall be subject to all
applicable laws, rules, and regulations and to such approvals by any government
agencies or regulatory authority as may be deemed necessary or appropriate by
the Committee. If shares of Common Stock deliverable hereunder may in certain
circumstances be exempt from registration under the Securities Act of 1933, as
amended, the Company may restrict its transfer in such manner as it deems
advisable to ensure such exempt status. The Plan is intended to comply with Rule
16b-3 under the Securities Exchange Act of 1934, as amended. Any provision
inconsistent with such Rule shall be inoperative and shall not affect the
validity of the Plan. The Plan shall be subject to any provision necessary to
assure compliance with federal and state securities laws.
11.05 INDEMNIFICATION. Each person who is or at any time serves as a member of
the Board and/or the Committee shall be indemnified and held harmless by ATP
against and from (i) any loss, cost, liability, or expense that may be imposed
upon or reasonably incurred by such person in connection with or resulting from
any claim, action, suit, or proceeding to which such person may be a party or in
which such person may be involved by reason of any action or failure to act
under this Plan; and
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(ii) any and all amounts paid by such person in satisfaction of judgment in any
such action, suit, or proceeding relating to this Plan except to the extent that
any such loss, cost, liability or expense arises from the gross negligence or
wilful misconduct of such person. Each person covered by this indemnification
shall give ATP an opportunity, at its own expense, to handle and defend the same
before such person undertakes to handle and defend the same on such person's own
behalf. The foregoing right of indemnification shall not be exclusive of any
other rights of indemnification to which such persons may be entitled under the
charter or bylaws of ATP, as a matter of law, or otherwise, or any power that
ATP may have to indemnify such person or hold such person harmless.
11.06 RELIANCE ON REPORTS. Each member of the Board and the Committee shall be
fully justified in relying or acting in good faith upon any report made by the
independent public accountants of the Company and upon any other information
furnished in connection with this Plan. In no event shall any person who is or
shall have been a member of the Board and/or the Committee be liable for any
determination made or other action taken or any omission to act in reliance upon
any such report or information, or for any action taken, including the
furnishing of information, or failure to act, if in good faith.
11.07 GOVERNING LAW. All matters relating to this Plan shall be governed by the
laws of the State of Georgia, without regard to the principles of conflict of
laws thereof, except to the extent preempted by the laws of the United States.
11.08 RELATIONSHIP TO OTHER BENEFITS. No payment under this Plan shall be taken
into account in determining any benefits under any pension, retirement, profit
sharing, or group insurance plan of the Company.
11.09 EXPENSES. The expenses of implementing and administering this Plan shall
be borne by the Company.
11.10 TITLES AND HEADINGS. The titles and headings of the Articles and Sections
in this Plan are for convenience of reference only, and in the event of any
conflict, the text of this Plan, rather than such titles or headings, shall
control.
11.11 APPLICATION OF FUNDS. All funds received by the Company under the Plan
shall constitute general funds of the Company.
11.12 NONEXCLUSIVITY OF PLAN. Neither the adoption of the Plan by the Board nor
the submission of the Plan to the stockholders of the Company for approval shall
be construed as creating any limitations on the power of the Board to adopt such
other incentive arrangements as it may deem desirable, including, without
limitation, the granting of stock options otherwise than under the Plan, and
such arrangements may be either applicable generally or only in specific cases.
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EXHIBIT 5.1
November 4, 1998
Advanced Technical Products, Inc.
3353 Peachtree Rd., Suite 920
Atlanta, Georgia 30326
Re: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
As set forth in the Registration Statement (the "Registration Statement") on
Form S-8 to be filed by Advanced Technical Products, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), relating
to the issuance of up to 1,000,000 shares (the "Shares") of the Company's common
stock, par value $0.01 per share ("Common Stock"), pursuant to the Advanced
Technical Products, Inc. 1998 Employee Stock Purchase Plan (the "Plan"), certain
legal matters in connection with the Shares are being passed upon for the
Company by us. At your request, this opinion is being furnished to you for
filing as Exhibit 5.1 to the Registration Statement.
In our capacity as your counsel in the connection referred to above, we have
examined the Amended and Restated Certificate of Incorporation and Bylaws of the
Company and the originals, or copies certified or otherwise identified, of
corporate records of the Company, including minute books of the Company as
furnished to us by the Company, certificates of public officials and of
representatives of the Company, statutes and other instruments and documents as
a basis for the opinions hereinafter expressed. In giving such opinions, we have
relied upon certificates of officers of the Company with respect to the accuracy
of the material factual matters contained in such certificates.
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.
<PAGE>
Advanced Technical Products, Inc.
November 4, 1998
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Based on the foregoing, and having regard for such legal considerations as we
have deemed relevant, we are of the opinion that, when issued and sold in the
manner referred to in the Plan, the Shares will be legally and validly issued,
fully paid and nonassessable.
The foregoing opinion is limited to the federal laws of the United States of
America and the General Corporation Law of the State of Delaware, and we are
expressing no opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and further consent to the use of our name
wherever appearing in the Registration
Statement and any amendments to it.
Very truly yours,
GARDERE WYNNE SEWELL & RIGGS, L.L.P.
/s/ ERIC A. BLUMROSEN
By: Eric A. Blumrosen
The Board of Directors
Advanced Technical Products, Inc.
We consent to the use of our report incorporated herein by reference.
KPMG Peat Marwick LLP
Atlanta, GA
November 2, 1998
