<PAGE> 1
As filed with the Securities and Exchange Commission on July 22, 1998
Registration No. _________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
MOORE-HANDLEY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 63-0819773
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3140 PELHAM PARKWAY
PELHAM, ALABAMA 35124
(Address of Principal Executive Offices
including Zip Code)
MOORE-HANDLEY, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
L. WARD EDWARDS
3140 PELHAM PARKWAY
PELHAM, ALABAMA 35124
(205) 663-8011
(Name, address and telephone number of agent for service)
===============================================================================
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
Proposed Proposed
maximum maximum
Title of offering aggregate Amount of
securities to Amount to be price per offering registration
be registered registered unit price fee
- ------------- ---------- --------- -------- -------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.10
per share 300,000 $3.25(2) 975,000(2) $287.63
====================================================================================================
</TABLE>
(1) To be offered pursuant to the Moore-Handley, Inc. Stock Purchase Plan
(the "Plan"). Such indeterminable number of additional shares as may
be distributed by the operation of the recapitalization provisions of
the Plans is hereby also registered.
(2) Computed pursuant to Rule 457(h) solely for the purpose of determining
the registration fee, based upon an assumed price of $3.25 per share,
the average of the bid and ask prices of the Registrant's Common Stock
as reported on the Nasdaq Stock Market on July 21, 1998.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Incorporated by reference in this Registration Statement are the
following documents heretofore filed by Moore-Handley, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"):
(a) The Company's latest annual report filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act;
(b) All other reports filed by the Company pursuant to
Section 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the annual report
referred to in (a) above; and
(c) The description of the Company's Common Stock, par
value $.10 per share (the "Common Stock"), contained
in a registration statement filed under the Exchange
Act, and any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
The Delaware General Corporation Law (the "Delaware Law") permits a
Delaware corporation to include a provision in its Certificate of
Incorporation, and the Company's Restated Certificate of Incorporation so
provides, eliminating or limiting the personal liability of a director to the
Corporation or its Stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision may not eliminate or limit the
liability of a director (i) for any such of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware Law which makes directors personally
liable for unlawful dividends or unlawful stock repurchases or redemptions.
Under Delaware law, directors and officers may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any threatened, pending or completed
<PAGE> 4
action, suit or proceeding whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation (a
"derivative action")) if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interest of the Company
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe their conduct was unlawful. In derivative actions, indemnification
extends only to expenses (including attorneys' fees) incurred in connection
with defense or settlement of such an action and, in the event such person
shall have been adjudged to be liable to the corporation, only to the extent
that a proper court shall have determined that such person is fairly and
reasonably entitled to indemnity for such expenses.
The Company's Restated Certificate of Incorporation provides, among
other things, that each person who was or is made a party to, or is threatened
to be made a party to, or is involved in, any action, suit or proceeding by
reason of the fact that he is the legal representative, or is or was a director
or officer of the Company (or was serving at the request of the Company as a
director, officer, employee or agent for another entity) while serving in such
capacity, shall be indemnified and held harmless by the Company to the full
extent authorized by the Delaware Law, as in effect (or, to the extent
indemnification is broadened, as it may be amended), against all expenses,
liability or loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amount to be paid in settlement) reasonably incurred by
such person in connection therewith. The Company's Restated Certificate of
Incorporation also provides that the right of indemnification conferred to the
director, officer or legal representative by the Company's Restated Certificate
of Incorporation shall include the right to be paid by the Company for expenses
in defending the proceedings specified above, in advance of their final
disposition. The Company may also, by action of its Board of Directors, provide
indemnification to its employees and agents with the same scope and effect as
the foregoing indemnification of directors and officers.
The Company maintains directors' and officers' reimbursement and
liability insurance pursuant to standard form policies. The risks covered by
such policies include certain liabilities under the securities law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
An Exhibit Index, containing a list of all exhibits filed with this
Registration Statement, is included on page 6.
Item 9. Undertakings
(a) Rule 415 Offering. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this Registration Statement to:
(i) include any Prospectus required by Section 10(a)(3) of
the Securities Act, unless the information is contained in
periodic reports filed
2
<PAGE> 5
by the Registrant pursuant to section 13 or section 15(d) of
the Exchange Act that are incorporated by reference in the
Registration Statement;
(ii) reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement, unless the information is contained in periodic
reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement;
(iii) 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 file a post-effective amendment to remove from
registration any of the securities being registered which remain
unsold at the termination of the offering.
(b) Subsequent Exchange Act Documents. 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 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
section 15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Indemnification. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
3
<PAGE> 6
SIGNATURES
The Registrant. 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 Pelham, State of Alabama
on the 15th day of July, 1998.
MOORE-HANDLEY, INC.
By: /s/ L. Ward Edwards
--------------------------------
L. Ward Edwards
Vice President-Finance
Treasurer and Secretary
Each person whose signature appears below does hereby make,
constitute and appoint William Riley and L. Ward Edwards and each of them, with
full power to act without the other, his true and lawful attorney-in-fact and
agent, in his name, place and stead to execute on his behalf, as a director of
Moore-Handley, Inc. (the "Company"), the Registration Statement of the Company
on Form S-8 (the "Registration Statement") for the registration of shares of
the Company's common stock, par value $.10 ("Common Stock"), in connection with
the Moore-Handley, Inc. Stock Purchase Plan and any and all amendments
(including post-effective amendments) to the Registration Statement, and file
the same with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission (the "SEC") pursuant to the
Securities Act of 1933 (the "Act"), and any and all other instruments which
either of said attorneys-in-fact and agents deems necessary or advisable to
enable the Company to comply with the Act, the rules, regulations and
requirements of the SEC in respect thereof, and the securities or Blue Sky laws
of any State or other governmental subdivision, giving and granting to each of
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
4
<PAGE> 7
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ William Riley
- -------------------------------
William Riley Chairman of the Board and July 15, 1998
Director
/s/ Pierce E. Marks, Jr.
- -------------------------------
Pierce E. Marks, Jr. President, Chief Executive July 15, 1998
Officer and Director
/s/ L. Ward Edwards
- -------------------------------
L. Ward Edwards Vice President - Finance and July 15, 1998
Director
/s/ Michael B. Strubbs
- -------------------------------
Michael B. Strubbs Director July 15, 1998
/s/ Ronald J. Juvonen
- -------------------------------
Ronald J. Juvonen Director July 14, 1998
</TABLE>
5
<PAGE> 8
<TABLE>
<CAPTION>
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
- ----------- ----------------------
<S> <C>
4.1 Specimen Certificate of Common Stock, $.10 par value
per share, of the Company (incorporated by reference
to the relevant exhibit to the Company's Registration
Statement on Form S-1 (Registration No. 33-3032)).
4.2 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Company's Annual
Report on Form 10-K for the year ended December 31,
1987, and as amended on May 7, 1987).
4.3 Bylaws of the Company (incorporated by reference to
the Company's Annual Report on Form 10-K for the year
ended December 31, 1987, and as amended on May 7,
1987).
5 Opinion of Debevoise & Plimpton (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Debevoise & Plimpton (included in
Exhibit 5).
24 Powers of Attorney (filed herewith - see page 4 of the
Registration Statement).
99 Moore-Handley, Inc. Stock Purchase Plan (filed herewith).
</TABLE>
<PAGE> 1
EXHIBIT 5
July 21, 1998
Moore-Handley, Inc.
Highway 31 South
Pelham, Alabama 35124
Dear Sirs:
We have acted as counsel to Moore-Handley, Inc., a Delaware
corporation (the "Company"), in connection with the filing by the Company of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
300,000 shares of the Company's common stock, par value $.10 per share (the
"Common Stock"), to be issued pursuant to the Moore-Handley, Inc. Employee
Stock Purchase Plan (the "Plan").
We have examined the originals, or copies certified or
otherwise identified to our satisfaction, of the Plan and such other corporate
records, documents, certificates or other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion set forth below. In
rendering such opinion, we have assumed that (i) the exercise price of options
to be granted pursuant to the Plan will not be less than the par value of
Common Stock subject thereto and (ii) grants of Common Stock subject to
restrictions on transferability pursuant to the Plan will be made only for past
services to the Company having an aggregate value not less than the aggregate
par value of the Common Stock so granted.
Based on the foregoing, we are of the opinion that authorized
but not previously issued shares of Common Stock which may be issued under the
Plan have been duly authorized and when issued in accordance with the terms of
the Plan will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the Company's Registration Statement. In giving such consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933 or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Debevoise & Plimpton
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Moore-Handley, Inc. Employee Stock Purchase Plan.
of our report dated February 20, 1998, with respect to the financial statements
of Moore-Handley, Inc. included in its Annual Report (Form 10-K) for the year
ended December 31, 1997, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Birmingham, Alabama
July 21, 1998
<PAGE> 1
EXHIBIT 99
THE MOORE-HANDLEY, INC.
EMPLOYEE STOCK PURCHASE PLAN
SECTION I.
PURPOSE
The purpose of The Moore-Handley, Inc. Employee Stock
Purchase Plan (the "Plan") is to encourage and facilitate stock ownership by
Employees by providing a continued opportunity to purchase Common Stock,
generally through voluntary after-tax payroll deductions. Except as provided
for in Section 5 hereof, the Plan is intended to be a qualified employee stock
purchase plan under Section 423 of the Code.
SECTION II.
DEFINITIONS
A. Definitions. Whenever used herein, the following terms
shall have the respective meanings set forth below:
1. "Board" means the Board of Directors of the Company.
2. "Code" means the Internal Revenue Code of 1986, as
amended.
3. "Common Stock" means the common stock, par value
$.10, of the Company.
4. "Company" means Moore-Handley, Inc., a Delaware
corporation.
5. "Compensation" means base salary, determined without
regard to any salary reduction contributions under a
qualified cash or deferred arrangement or a
cafeteria plan, in each case meeting the applicable
requirements of the Code.
6. "Current Option Holder" means Employees and
directors of the Company who own stock options as of
the Effective Date and who have elected to
participate in the Plan in accordance with Section 5
hereof.
7. "Custodian" means the bank, trust company or other
entity selected by the Plan Administrator to serve
as the custodian under the Plan.
8. "Date of Exercise" means the last trading day of
each calendar month.
<PAGE> 2
9. "Date of Grant" means the date upon which an Option
is granted, as set forth in Section 6.3.
10. "Effective Date" means March 30, 1998.
Notwithstanding the foregoing, no purchase of Common
Stock or exercise of Nonqualified Options shall
occur pursuant to Section 5 and no Option shall be
exercised pursuant to Section 6 prior to the date,
if any, as of which the Plan is approved by
shareholders.
11. "Employees" means all officers and employees of the
Company and of any Subsidiary whose employees are
expressly permitted to participate in the Plan by
the Plan Administrator.
12. "Employer" means the Company and any Subsidiary
whose employees are expressly permitted to
participate in the Plan by the Plan Administrator.
13. "Fair Market Value" means, on any date, the closing
price of the last trade of the Common Stock as
reported on the National Association of Securities
Dealers Automatic Quotation system (or on such other
recognized quotation system on which the trading
price of the Common Stock is quoted at the relevant
time) on such date. In the event that there are no
Common Stock transactions reported on such system on
such date, Fair Market Value shall mean the closing
price of the last trade on the immediately preceding
date on which Common Stock transactions were so
reported.
14. "Individual Account" means a separate account
maintained by the Custodian for each Employee
participating under Section 6 hereof.
15. "Nonqualified Option" means an option granted under
Section 5 to a participating Employee to purchase
shares of Common Stock.
16. "Option" means an option granted under Section 6 to
a participating Employee to purchase shares of
Common Stock. To the extent contemplated by Section
5 the term Option shall include Nonqualified
Options.
17. "Option Price" has the meaning set forth in Section
6.7.
18. "Parent" means any corporation, other than the
Company, in an unbroken chain of corporations ending
with the Company if, at the time of the granting of
the Option, each of the corporations other than the
Company owns stock possessing 50% or more of the
total combined voting power of all classes of stock
in one of the other corporations in the chain.
2
<PAGE> 3
19. "Payroll Contributions" means an Employee's
after-tax contributions of Compensation by payroll
deduction pursuant to Section 6.5.
20. "Plan Administrator" means a committee comprised
solely of directors or solely of officers of the
Company selected by the Board.
21. "Plan Year" means for the first Plan Year, the
period beginning on the Effective Date and ending on
December 31, 1998 and for each succeeding Plan Year,
a period of twelve months commencing on January 1
and ending on the next December 31.
22. "Promissory Note" means a full recourse promissory
note described in Section 5 hereof.
23. "Qualified Stock Purchases" means purchases of
Common Stock pursuant to the exercise of Options
granted under Section 6, which are intended to be
qualified under Section 423 of the Code.
24. "Subsidiary" means each of the Company's direct or
indirect majority-owned subsidiaries.
25. "Terminating Event" means a participating Employee's
termination of employment for any reason, Unpaid
Leave or any other event which causes such Employee
to no longer meet the requirements of Section 4.
26. "Unpaid Leave" means an unpaid leave of absence or
any leave of absence that does not meet the
requirements of Treasury Regulation Section
1.421-7(h)(2).
27. "Withdrawn Shares" means any shares which have been
retained in an Employee's Individual Account for
less than six months.
SECTION III.
ADMINISTRATION
The Plan shall be administered by the Plan Administrator. The
Plan Administrator shall have authority to make rules and regulations for the
administration of the Plan, and its interpretations and decisions with regard
thereto shall be final and conclusive. The Plan Administrator may delegate
responsibility for the day to day operation and administration of the Plan to
any officer or employee or group of officers or employees of the Company or any
of its Subsidiaries.
3
<PAGE> 4
SECTION IV.
ELIGIBILITY
A. General Rule. Except as otherwise provided herein, all
Employees shall be eligible to participate in the benefits available under
Section 6, but only the Current Option Holders shall be eligible to participate
under Section 5.
B. Exclusions. Notwithstanding the provisions of Section 4.1,
any Employee (i) whose customary employment is 20 hours or less per week, (ii)
who has been employed for less than 90 days, (iii) who is on an Unpaid Leave,
(iv) who terminates employment or is terminated for any reason, or (v) who,
after an Option is granted, owns stock (as defined by Sections 423(b)(3) and
424(d) of the Code) possessing five percent or more of the total combined
voting power or value of all classes of stock of the Company or of a Parent or
any Subsidiary, shall not be eligible to participate in Section 6 of the Plan.
SECTION V.
NONQUALIFIED STOCK PURCHASES AND STOCK OPTIONS
A. Nonqualified Stock Purchases.
(a) Participation. Each Current Option Holder shall be
entitled to purchase hereunder the number of shares of Common Stock equal to
the number of stock options currently held by such Current Option Holder. A
Current Option Holder may participate under this Section 5 by (i) completing
and forwarding an enrollment form to the Plan Administrator or its designee,
(ii) surrendering, for cancellation, all stock options held by such Current
Option Holder and (iii) satisfying such other conditions as the Plan
Administrator shall establish. The purchase price for such shares shall be
$2.625 per share and may be paid in cash or with a Promissory Note described in
subsection (c) below. The closing of any purchase under this Section 5 shall be
required to occur on or before June 30, 1998. The purchase price set forth
herein is the price paid by the Company in certain recent repurchase
transactions.
(b) Operation of Stock Purchases. The provisions of this
Section 5 pertain to a one-time offer to sell a limited number of securities to
a limited group of officers and directors.
(c) Promissory Note. Each Current Option Holder who elects to
purchase shares with a Promissory Note shall be required to execute a
Promissory Note, in a form acceptable to the Company, which will provide for
the entire principal balance to become due and payable on the third anniversary
of the purchase of shares under this Section 5 (or, if earlier, upon the
termination of the Current Option Holder's employment). Interest on the
Promissory Note will accrue at an annual rate equal to the rate of interest
paid by the Company on its principal revolving line of credit as in effect on
the date of such purchase. Interest will be payable annually on each of the
first, second and third anniversaries of the date of purchase of shares.
4
<PAGE> 5
(d) Purchase of Shares. As soon as practicable, but not later
than five business days following the full payment of cash or the principal
balance and accrued interest on the Promissory Note, the Custodian shall issue
that number of whole shares of Common Stock purchased.
B. Nonqualified Options. Any Employee who does not satisfy
the eligibility requirements set forth in Section 4 hereof, may nonetheless be
granted a Nonqualified Option to purchase Common Stock under the same terms and
conditions as described in Section 6 below, provided that, the exercise price
to be paid by each Employee participating in this Section 5.2 shall be an
amount equal to 100% of the Fair Market Value of a share of Common Stock on the
Date of Grant.
SECTION VI.
QUALIFIED STOCK PURCHASES
A. Stock to Be Issued. Subject to the provisions of Sections
6.8 and 11.3, the number of shares of Common Stock issuable pursuant to Options
under this Section 6 and Section 5.2 of the Plan shall not exceed 300,000 less
that number of shares purchased under Section 5.1 of the Plan on or before June
30, 1998, if any. The shares to be delivered pursuant to Options under the Plan
may consist, in whole or in part, of treasury stock or authorized but unissued
Common Stock, not reserved for any other purpose.
B. Shareholder Approval. The Plan will be submitted for the
approval of the Company's shareholders not later than 12 months after the
Effective Date. No Options granted under this Section 6 may be exercised prior
to such shareholder approval. If shareholders do not grant such approval, this
Section 6 shall be rendered void and without effect.
C. Grant of Options. Subject to Sections 4 and 6.2, the
Company may offer Options under the Plan to all Employees. Options will be
granted on the Effective Date and may be granted on such other date or dates as
shall be determined by the Plan Administrator. The term of each Option shall
end on the date which is 27 months from the Date of the Grant (or on such
earlier date as shall be determined by the Plan Administrator). The number of
whole shares of Common Stock subject to each Option shall be the lesser of (i)
the quotient of (A) the Payroll Contributions authorized by each participating
Employee in accordance with Section 6.5 for the term of the Option divided by
(B) the Option Price for each share of Common Stock purchased pursuant to such
Option, excluding all fractions, or (ii) such maximum number of shares as may
be established by the Plan Administrator, which may be established as a fixed
number or vary based on a predetermined formula.
D. Participation. An Employee who meets the requirements in
Section 4 may participate in the Plan under this Section 6 by completing and
forwarding an enrollment form to the Plan Administrator or its designee, and by
satisfying such other conditions as the Plan Administrator shall establish from
time to time. Eligible Employees who elect to participate in the Plan shall
authorize a payroll deduction from the Employee's Compensation to be made as of
any future payroll period. Any election to
5
<PAGE> 6
authorize payroll deductions shall be effective on such date as the Plan
Administrator may determine after the date of the receipt of the enrollment
form by the Plan Administrator or its designee.
E. Payroll Contributions. There shall be an Individual
Account for each participating Employee to which shall be credited the amount
of any Payroll Contributions and the number of full or fractional shares of
Common Stock that are purchased by such Employee, pursuant to the terms of the
Plan. An Employee may authorize Payroll Contributions in terms of whole number
percentages, of the Compensation that the Employee receives during each
payroll period; provided that (i) no Employee shall be entitled to make Payroll
Contributions for any Plan Year in excess of $25,000, and (ii) no Employee
shall be permitted to purchase Common Stock pursuant to Options under the Plan
or under any other employee stock purchase plan of the Company or a Parent or
any Subsidiary which is intended to qualify under Section 423 of the Code, at a
rate which exceeds $25,000 in Fair Market Value (determined at the time the
Option is granted) for each calendar year in which such Option granted to such
Employee is outstanding at any time. In the event of a participating Employee's
Terminating Event, (i) no further Payroll Contributions by such Employee shall
be permitted and (ii) his outstanding Options shall terminate. Employees on
short-term disability may make Payroll Contributions.
F. Exercise of Options. Each participating Employee
automatically and without any act on his part will be deemed to have exercised
his Option on each Date of Exercise to the extent that the balance then in his
Individual Account is sufficient to purchase at the Option Price whole shares
of Common Stock. Any amount in the participating Employee's Individual Account
on a Date of Exercise not applied to the purchase of Common Stock shall
continue to be held in such account and applied as of the earliest subsequent
Date of Exercise at which such amount can be so applied in accordance with the
terms hereof.
G. Option Price. Except as provided in Section 5.2, the
Option Price per share of Common Stock (the "Option Price") to be paid by each
participating Employee on each exercise of his Option shall be an amount equal
to 85% (or such greater percentage as the Board or its designee may authorize)
of the Fair Market Value of a share of Common Stock on the Date of Grant or, if
authorized by the Board at the Date of Grant, the lesser of (i) 85% (or such
greater percentage as the Board or its designee may authorize) of the Fair
Market Value of a share of Common Stock on the Date of Grant or (ii) 85% (or
such greater percentage as the Board or its designee may authorize) of the Fair
Market Value of a share of Common Stock on the Date of Exercise.
H. Canceled, Terminated or Forfeited Options. Any shares of
Common Stock subject to an Option which for any reason is canceled, terminated
or otherwise settled without the issuance of any Common Stock shall again be
available for Options under the Plan.
6
<PAGE> 7
SECTION VII.
DEDUCTION CHANGES AND PLAN WITHDRAWALS
A. Deduction Changes. Subject to Section 6.5, a participating
Employee may increase or decrease his Payroll Contributions, as of any time as
the Plan Administrator shall determine, commencing after the receipt of proper
notice of such change by the Plan Administrator or its designee. If an Employee
ceases to make Payroll Contributions at any time prior to a Terminating Event,
any cash balance then held in his Individual Account shall automatically be
distributed to such Employee as soon as practicable after the effective date of
such cessation.
B. Withdrawals. An Employee may at any time (subject to such
notice requirements as the Plan Administrator may from time to time prescribe),
and for any reason, cease participation in Section 6 of the Plan and withdraw
all or any portion of the shares of Common Stock and cash, if any, in his
Individual Account pursuant to Section 9. The Employee may thereafter
recommence participation in Section 6 on the date the Plan Administrator shall
determine following completion of re-enrollment pursuant to Section 6.4. Upon
an Employee's Terminating Event, any and all cash held in his Individual
Account shall be distributed to him as soon as practicable thereafter. Without
limiting the generality of the foregoing, upon the termination of an Employee's
employment, all shares and any cash held in his Individual Account shall be
distributed to him as soon as practicable thereafter.
SECTION VIII.
ISSUANCE OF CERTIFICATES
While maintained by the Custodian, all shares shall be held
in the name of the Custodian or its nominee, or in street name. The Company
shall issue certificates to an Employee who is to receive a distribution of
shares pursuant to Section 9 as soon as practicable following the event giving
rise to such distribution under such Section 9. Such certificates may be
registered only in the name of the Employee. Notwithstanding the foregoing, the
Company shall issue certificates to an Employee upon such Employee's request to
the Plan Administrator or its designee as soon as practicable following such
request.
SECTION IX.
WITHDRAWALS AND DISTRIBUTIONS
All or a portion of the shares of Common Stock allocated to
an Employee's Individual Account may be withdrawn by an Employee at any time.
Upon termination of employment, all amounts and shares of Common Stock held for
the benefit of any Employee shall be distributed to such Employee. Any
withdrawal or other distribution shall be made in the form of cash or stock, as
elected by the Committee. To the extent of a withdrawal or distribution of an
Employee's shares in the form of cash, the
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Employee shall receive an amount per share equal to the proceeds received from
the sale of such shares net of his allocable share of any related brokerage
fees and other expenses incurred in connection with the sale of such shares.
All fractional shares shall be paid in cash at the average sale price of such
shares sold on behalf of Employees on the day of such sales.
SECTION X.
MISCELLANEOUS PROVISIONS
A. Withholding. The Employer or its designee may make such
provisions and take such action as it may deem necessary or appropriate for the
withholding of any taxes which the Employer is required by law or regulation of
any governmental authority, whether Federal, state or local, to withhold in
connection with Payroll Contributions. Each participating Employee, however,
shall be responsible for the payment of all individual tax liabilities relating
to any such amounts.
B. Rights Not Transferable. Rights under the Plan are not
transferable by a participating Employee other than by will or the laws of
descent and distribution of the state wherein the Employee is domiciled at the
time of his death, and are exercisable during the Employee's lifetime only by
the Employee.
C. Adjustments in Capitalization; Mergers. In the event of
any stock dividend or stock split, recapitalization (including, without
limitation, the payment of an extraordinary dividend), merger, consolidation,
combination, spin off, distribution of assets to shareholders (other than
ordinary cash dividends), exchange of shares, or other similar corporate
change, (i) shares credited to each Employee's Individual Account shall be
adjusted in the same manner as all other outstanding shares of Common Stock in
connection with such event, (ii) the Board or a committee thereof shall
determine the kind of shares which may be acquired under the Plan after such
event, and (iii) the aggregate number of shares of Common Stock available under
Sections 5.1 or 6.1 or subject to outstanding Options and the respective
exercise prices applicable to outstanding Options may be appropriately adjusted
by the Board or a committee thereof, in its discretion, and the determination
of the Board or a committee thereof shall be conclusive. Except as otherwise
determined by the Board, a merger or a similar reorganization which the Company
does not survive, a liquidation or distribution of the Company, or a sale of
all or substantially all of the assets of the Company, shall cause the Plan to
terminate and all shares of Common Stock and cash, if any, in the Individual
Accounts of participating Employees shall be distributed to each Employee
pursuant to Section 9 as soon as practicable unless any surviving entity agrees
to assume the obligations hereunder.
D. Amendment of the Plan. The Board or its delegate may at
any time, or from time to time, amend the Plan in any respect; provided that
shareholder approval shall be required to amend the Plan to (i) change the
number of shares of Common Stock reserved for issuance under Section 5.1 or
Section 6.1 of the Plan, (ii) decrease the Option Price below a price computed
in the manner stated in Section 5.2 or 6.7, or (iii) alter the requirements for
eligibility to participate in the Plan under Section 6. No amendment,
modification, or termination of the Plan shall in any manner adversely affect
the rights of any Employee under the Plan, without the consent of the Employee.
The Plan shall
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terminate at any time at the discretion of the Board or its delegate. Upon
termination of the Plan, all shares of Common Stock and cash, if any, in the
Individual Accounts of participating Employees shall be distributed to each
Employee pursuant to Section 9 as soon as practicable.
E. Requirements of Law. The Company's obligation to deliver
Common Stock under the Plan shall be subject to all applicable laws, rules and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
F. Custodial Arrangement. All cash and Common Stock allocated
to an Employee's Individual Account under the Plan shall be held by the
Custodian in its capacity as a custodian for the Employee with respect to such
cash and Common Stock. Nothing contained in the Plan, and no action taken
pursuant to the Plan, shall create or be construed to create a trust of any
kind, or a fiduciary relationship between the Company and its officers or the
Board or the Plan Administrator or the Custodian, on the one hand, and any
Employee, the Company or any other person or entity, on the other hand.
G. No Right to Continuous Employment. The Plan and any right
to purchase Common Stock granted hereunder shall not confer upon any Employee
any right with respect to continuance of employment by the Company or any
Subsidiary, nor shall they restrict or interfere in any way with the right of
the Company or any Subsidiary by which an Employee is employed to terminate his
employment at any time.
H. Indemnification. Each person who is or shall have been a
member of the Board or the Plan Administrator shall be indemnified and held
harmless by the Company and each Employer against and from any loss, cost,
liability, or expense that may be imposed upon or reasonably incurred by him in
connection with or resulting from any claim, action, suit, or proceeding to
which he may be made a party or in which he may be involved by reason of any
action taken or failure to act under the Plan (in the absence of bad faith) and
against and from any and all amounts paid by him in settlement thereof, with
the Company's approval, or paid by him in satisfaction of any judgment in any
such action, suit, or proceeding against him, provided he shall give the
Company an opportunity, at its own expense, to handle and defend the same
before he undertakes to handle and defend it on his own behalf. The foregoing
right of indemnification shall not be exclusive and shall be independent of any
other rights of indemnification to which such persons may be entitled under the
Company's Certificate of Incorporation or ByLaws, by contract, as a matter of
law, or otherwise.
I. No Limitation on Compensation. Nothing in the Plan shall
be construed to limit the right of the Company to establish other plans.
J. No Constraint on Corporate Action. Nothing in this Plan
shall be construed (i) to limit, impair or otherwise affect the Company's right
or power to make adjustments, reclassifications, reorganizations or changes of
its capital or business structure, or to merge or consolidate, or dissolve,
liquidate, sell, or transfer all or any part of its business or assets or (ii)
except as provided in Section 11.4, to limit the right or power of the Company
or any of its subsidiaries or affiliates to take any action which such entity
deems to be necessary or appropriate.
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K. Governing Law. The Plan shall be construed in accordance
with and governed by the laws of Delaware, without regard to principles of
conflict of laws.
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