As filed with the Securities and Exchange Commission on July 9, 1998.
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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CAL DIVE INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 95-3409686
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
400 N. SAM HOUSTON PARKWAY E., SUITE 400, HOUSTON, TEXAS 77060
(Address of principal executive offices, including zip code)
CAL DIVE INTERNATIONAL, INC.
AMENDED 1995 INCENTIVE COMPENSATION PLAN
(Full title of the plan)
Andrew C. Becher, Senior Vice President and General Counsel
Cal Dive International, Inc.
400 N. Sam Houston Parkway E.
Suite 400
Houston, Texas 77060
(281) 618-0400
(281) 618-0400
(Telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED(1) SHARE (2) PRICE (2) FEE
- --------------------------------------------------------------------------------
Common Stock, 1,454,483 shares $26 7/8 $39,089,230 $11,531.32
No par value
- --------------------------------------------------------------------------------
(1) Represents the maximum number of shares of Common Stock of the Registrant
which could be purchased of stock set aside for issuance under
(2) Pursuant to Rule 457(c), the per share price is estimated, solely for the
purpose of determining the registration fee, based upon the average of the
high and low prices for such common stock on July 8, 1998 as reported on
The Nasdaq National Market.
================================================================================
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Cal Dive International, Inc.
(the "Company") (File No. 0-22739) with the Commission pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and are
incorporated by reference herein:
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
Company's latest annual report on Form 10-K.
c. The descriptions of the Company's capital stock contained in the Company's
Registration Statement on Form S-1 (Registration No. 333-50751).
All documents filed with the Commission by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all such securities then remaining to be sold shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part hereof, except
as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Andrew C. Becher, Senior Vice President and General Counsel of the
Company, hold options to purchase 100,000 shares of Common Stock at an exercise
price of $4.50.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 7 of the Company's Bylaws provides that the Company shall
indemnify the directors and officers to such extent as permitted by Minnesota
Statutes, Section 302A.521, as now enacted or hereafter amended.
In addition, as allowed by Minnesota Statutes, Section 302A.251, Article
IX of the Company's 1997 Amended and Restated Articles of Incorporation provides
that a director of the Company shall not be
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personally liable to the Company or its stockholders for monetary damages for
certain types of breaches of fiduciary duty as a director.
Further, the Company has purchased director and officer liability
insurance that insures directors and officers against certain liabilities in
connection with the performance of their duties as directors and officers,
including liabilities under the Securities Act of 1933, as amended, and provides
for payment to the Company of costs incurred by it in indemnifying its directors
and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with this Registration Statement on Form
S-8:
EXHIBIT
NUMBER DESCRIPTION
5.1 Opinion of Andrew C. Becher, Senior Vice President and General
Counsel, Cal Dive International, Inc., as to the legality of Common
Stock of the Company (filed electronically herewith)
23.1 Consent of Arthur Andersen LLP (filed electronically herewith)
23.2 Consent of Andrew C. Becher, Senior vice President and General
Counsel, Cal Dive International. Inc. (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page and filed
electronically herewith)
99.2 Amended 1995 Incentive Compensation Plan (filed electronically
herewith)
ITEM 9. UNDERTAKINGS.
(A) RULE 415 OFFERING.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information
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set forth in the registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
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 Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered 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) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the 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) STATEMENT REQUIRED BY ITEM 512(H) IN CONNECTION WITH FILING OF REGISTRATION
STATEMENT ON FORM S-8.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas on July 6, 1998.
CAL DIVE INTERNATIONAL, INC.
By /s/ OWEN KRATZ
Owen Kratz
Chairman and Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned directors and officers of Cal Dive International,
Inc., do hereby severally constitute and appoint Owen Kratz and Andrew C.
Becher, and each of them singly, our true and lawful attorneys and agents, to do
any and all things and acts in our names in the capacities indicated below and
to execute any and all instruments for us and in our names in the capacities
indicated below which said Owen Kratz or Andrew C. Becher, or either of them,
may deem necessary or advisable to enable Cal Dive International, Inc. to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with the
Registration Statement on Form S-8 relating to the offering of Common Stock,
including specifically, but not limited to, power and authority to sign for us
or any of us in our names in the capacities indicated below the Registration
Statement and any and all amendments (including post-effective amendments)
thereto; and we hereby ratify and confirm all that Owen Kratz and Andrew C.
Becher, or either of them, shall 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.
SIGNATURE TITLE DATE
/s/ OWEN KRATZ Chairman, Chief Executive Officer, June 30, 1998
Owen Kratz and Director
/s/ S. JAMES NELSON Executive Vice President and Chief June 30, 1998
S. James Nelson Financial Officer
/s/ A. WADE PURSELL Chief Accounting Officer June 30, 1998
A. Wade Pursell
/s/ GORDON F. AHALT Director June 30, 1998
Gordon F. Ahalt
/s/ WILLIAM E. MACAULAY Director June 30, 1998
William E. Macaulay
/s/ DAVID H. KENNEDY Director June 30, 1998
David H. Kennedy
___________________ Director June 30, 1998
Thomas M. Ehret
___________________ Director June 30, 1998
Jean-Bernard Fay
___________________ Director June 30, 1998
Kenneth Hulls
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EXHIBIT 1
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION MANNER OF FILING
5.1 Opinion of Andrew C. Becher, Senior Vice President and General Counsel,
Cal Dive International, Inc., as to the legality of Common Stock of the
Company (filed electronically herewith)
23.1 Consent of Arthur Andersen LLP (filed electronically herewith)
23.2 Consent of Andrew C. Becher, Senior Vice President and General Counsel,
Cal Dive International, Inc. (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page and filed electronically
herewith)
99.1 Amended 1995 Incentive Compensation Plan (filed electronically herewith)
7
EXHIBIT 5.1
July 9, 1998
Cal Dive International, Inc.
400 N. Sam Houston Parkway E.
Suite 400
Houston, Texas 77060
Gentlemen:
The undersigned, as General Counsel for Cal Dive International, Inc., a
Minnesota Corporation (the "Company"), is rendering this opinion in connection
with the registration, pursuant to a Registration Statement on form S-8 being
filed with the Securities and Exchange Commission (the "Registration Statement")
under the Securities Act of 1933, as amended, of the offering and sale to
certain employees and directors of the Company of up to 1,454,483 shares of the
Company's common stock, no par value per share (the "Common Stock") which may be
issued upon the exercise of certain stock options (the "Options") which may be
granted under the Company's 1995 Amended Incentive Compensation Plan
(the"Plan").
In such capacity, I have examined the corporate documents of the Company,
including its 1997 Amended and Restated Articles of Incorporation, its 1997
Amended and Restated By-Laws and resolutions adopted by our Board of Directors
and committees thereof. I have also examined the Registration Statement,
together with the exhibits thereto, and such other documents which I have deemed
necessary for the purposes of expressing the opinion contained herein. I have
relied on representations made by and certificates of the officers of the
Company and public officials with respect to certain facts material to my
opinion. I have made no independent investigation regarding such representations
and certificates.
Based on the foregoing, I am of the opinion that the Options when issued
in accordance with the Plan, will be duly exercised in accordance with their
respective terms, and the Common Stock issued thereupon will be validly issued,
fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Andrew C. Becher
General Counsel
ACB:sg
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated February 19,
1998 included in Cal Dive International Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1997 and to all references to our Firm included in
this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Houston, Texas
July 9, 1998
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EXHIBIT 99.1
1995 AMENDED LONG TERM INCENTIVE PLAN
OF
CAL DIVE INTERNATIONAL, INC.
1. OBJECTIVES. The 1995 Amended Long Term Incentive Plan of Cal Dive
International, Inc. (the "Plan") is designed to retain key executives and other
selected employees and reward them for making major contributions to the success
of Cal Dive International, Inc., a Minnesota corporation and its Subsidiaries
(the "Company"). These objectives are to be accomplished by making awards under
the Plan and thereby providing Participants (as hereinafter defined) with a
proprietary interest in the growth and performance of the Company and its
Subsidiaries.
2. DEFINITIONS. As used herein, the terms set forth below shall have the
following respective meanings:
"Award" means the grant of any form of stock option, stock appreciation
right, stock award or cash award, whether granted singly, in combination or in
tandem, to a Participant pursuant to any applicable terms, conditions and
limitations as the Committee or the Board may establish in order to fulfill the
objectives of the Plan.
"Award Agreement" means a written agreement between the Company and a
Participant that sets forth the terms, conditions and limitations applicable to
an Award.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means such Compensation Committee of the Board as is
designated by the Board to administer the Plan. The Committee shall be
constituted to permit the Plan to comply with Rule 16b-3.
"Common Stock" means the Common Stock of the Company.
"Director" means an individual serving as a member of the Board.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Fair Market Value" means, as of a particular date, but subject to the
provisions of other Company agreements binding the Participant from time to time
(such as the Company's Amended and Restated Shareholders Agreement) which shall
take precedence, (i) if the shares of Common
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Stock are listed on a national securities exchange, the mean between the highest
and lowest sales price per share of Common Stock on the consolidated transaction
reporting system for the principal such national securities exchange on that
date, or, if there shall have been no such sale so reported on that date, on the
last preceding date on which such a sale was so reported, (ii) if the shares of
Common Stock are not so listed but are quoted on the Nasdaq National Market, the
mean between the highest and lowest sales price per share of Common Stock on the
Nasdaq National Market on that date, or, if there shall have been no such sale
so reported on that date, on the last preceding date on which such a sale was so
reported (iii) if the Common Stock is not so listed or quoted, the mean between
the closing bid and asked price on that date, or if there are no quotations
available for such date, on the last preceding date on which such quotations
shall be available, as reported by Nasdaq, or, if not reported by Nasdaq, by the
National Quotation Bureau, Inc. or (iv) if none of the foregoing apply, as
determined in the discretion of the Company's Board from time to time.
"Participant" means an employee or Director of the Company or any of its
Subsidiaries to whom an Award has been made under this Plan.
"Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act, or any
successor rule.
"Subsidiary" means any corporation of which the Company directly or
indirectly owns shares representing more than 50% of the voting power of all
classes or series of capital stock of such corporation which have the right to
vote generally on matters submitted to a vote of the stockholders of such
corporation.
3. ELIGIBILITY. Employees of the Company and its Subsidiaries eligible
for an Award under this Plan are those who hold positions of responsibility and
whose performance, in the judgment of the Committee, can have a significant
effect on the success of the Company and its Subsidiaries.
4. COMMON STOCK AVAILABLE FOR AWARDS. There shall be available for
Awards granted wholly or partly in Common Stock (including rights or options
which may be exercised for or settled in Common Stock) during the term of this
Plan, up to (but not to exceed) 10% of the issued and outstanding Common Stock
(as adjusted for any subsequent stock splits, stock dividends,
recapitalizations, or similar events). This 10% will be calculated in the
aggregate, when combined with all other outstanding options or other rights to
purchase Common Stock. The Board of Directors and the appropriate officers of
the Company shall from time to time take whatever actions are necessary to file
required documents with governmental authorities and stock exchanges and
transaction reporting systems to make shares of Common Stock available for
issuance pursuant to Awards. Common Stock related to Awards that are forfeited
or terminated, expire unexercised or if settled in a manner such that all or
some of the shares covered by an Award are not issued to a Participant, or are
exchanged for Awards that do not involve Common Stock, shall immediately become
available for Awards hereunder. The Committee may from time to time adopt and
observe such procedures concerning the counting of shares against the Plan
maximum as it may deem
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appropriate under Rule 16b-3.
5. ADMINISTRATION. Except for approval of Awards and Participants as
described in Section 6, this Plan shall be administered by the Committee, which
shall have full and exclusive power to interpret this Plan and to adopt such
rules, regulations and guidelines for carrying out this Plan as it may deem
necessary or proper, all of which powers shall be exercised in the best
interests of the Company and in keeping with the objectives of this Plan. The
Committee may, in its discretion, provide for the extension of the
exercisability of an Award, accelerate the vesting or exercisability of an
Award, eliminate or make less restrictive any restrictions contained in an
Award, waive any restriction or other provision of this Plan or an Award or
otherwise amend or modify an Award in any manner that is either (i) not adverse
to the Participant holding such Award or (ii) consented to by such Participant.
The Committee may correct any defect or supply any omission or reconcile any
inconsistency in this Plan or in any Award in the manner and to the extent the
Committee deems necessary or desirable to carry it into effect. Any decision of
the Committee in the interpretation and administration of this Plan shall lie
within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned. No member of the Committee shall be liable for
anything done or omitted to be done by him or her, by any member of the
Committee or by any officer of the Company in connection with the performance of
any duties under this Plan, except for his or her own willful misconduct or as
expressly provided by statute.
6. AWARDS. The Committee shall determine, subject to Board approval of
each Participant, the type or types of Awards to be made to each Participant
under this Plan. Each Award made hereunder shall be embodied in an Award
Agreement, which shall contain terms, conditions and limitations as shall be
determined by the Committee in its sole discretion and shall be signed by the
Participant and by the Chief Executive Officer, or Chief Financial Officer for
and on behalf of the Company. Awards may consist of those listed in this
Paragraph 6 and may be granted singly, in combination or in tandem. Awards may
also be made in combination or in tandem with, in replacement of, or as
alternatives to, grants or rights (i) under this Plan or any other employee plan
of the Company or any of its Subsidiaries, including the plan of any acquired
entity, or (ii) made to any Company or Subsidiary employee by the Company or any
Subsidiary. An Award may provide for the granting or issuance of additional,
replacement or alternative Awards upon the occurrence of specified events,
including the exercise of the original Award.
(a) STOCK OPTION. An Award may consist of a right to purchase a
specified number of shares of Common Stock at a specified price that is not less
than the Fair Market Value of the Common Stock on the date of grant. A stock
option may be in the form of an incentive stock option ("ISO") which, in
addition to being subject to applicable terms, conditions and limitations
established by the Committee, complies with Section 422 of the Code and may, at
the discretion of the Committee, be converted at any time to a Stock
Appreciation Right as specified in the Participant's Stock Option Agreement. The
maximum number of shares which may be issued hereunder as ISO's is 600,000.
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(b) STOCK APPRECIATION RIGHT. An award may consist of a right to receive
a payment, in cash or Common Stock, equal to the excess of the Fair Market Value
or other specified valuation of a specified number of shares of Common Stock on
the date the stock appreciation right ("SAR") is exercised over a specified
"Exercise Price" as set forth in the applicable Award Agreement.
(c) STOCK AWARD. An Award may consist of Common Stock. All or part of
any stock award may be subject to conditions established by the Committee, and
set forth in the Award Agreement, which may include, but are not limited to,
continuous service with the Company and its Subsidiaries, accelerated vesting
based upon events such as a change in control of the Company, achievement of
specific business objectives, increases in specified indices, attaining
specified growth rates and other comparable measurements of performance and the
right of the Committee to convert the Award to a Stock Appreciation Right. Such
Awards may be based on Fair Market Value or other specified valuations. The
certificates evidencing shares of Common Stock issued in connection with a stock
award shall contain appropriate legends and restrictions describing the terms
and conditions of the restrictions applicable thereto.
(d) CASH AWARD. An award may be denominated in cash with the amount of
the eventual payment subject to future service and such other restrictions and
conditions as may be established by the Committee, and set forth in the Award
Agreement, including, but not limited to the same conditions for a Stock Award.
7. PAYMENT OF AWARDS.
(a) GENERAL. Payment of Awards may be made in the form of cash or Common
Stock or combinations thereof and may include such restrictions as the Committee
shall determine, including in the case of Common Stock, restrictions on transfer
and forfeiture provisions. As used herein, "Restricted Stock" means Common Stock
that is restricted or subject to forfeiture provisions.
(b) DEFERRAL. With the approval of the Committee, payments may be
deferred, either in the form of installments or a future lump sum payment. The
Committee may permit selected Participants to elect to defer payments of some or
all types of Awards in accordance with procedures established by the Committee.
Any deferred payment, whether elected by the Participant or specified by the
Award Agreement or by the Committee, may be forfeited if and to the extent that
the Award Agreement so provides.
(c) DIVIDENDS AND INTEREST. Dividends or dividend equivalent rights may
be extended to and made part of any Award denominated in Common Stock or units
of Common Stock, subject to such terms, conditions and restrictions as the
Committee may establish. The Committee may also establish rules and procedures
for the crediting of interest on deferred cash payments and dividend equivalents
for deferred payment denominated in Common Stock or units of Common Stock.
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(d) SUBSTITUTION OF AWARDS. At the discretion of the Committee, a
Participant may be offered an election to substitute an Award for another Award
or Awards of the same or different type.
8. STOCK OPTION EXERCISE. The price at which shares of Common Stock may
be purchased under a stock option shall be paid in full at the time of exercise
in cash or, if permitted by the Committee, by means of tendering Common Stock
valued at Fair Market Value on the date of exercise, or any combination thereof.
The Committee shall determine acceptable methods for tendering Common Stock to
exercise a stock option as it deems appropriate. If permitted by the Committee,
payment may be made by successive exercises by the Participant. The Committee
may provide for loans from the Company to permit the exercise or purchase of
Awards and may provide for procedures to permit the exercise or purchase of
Awards by use of the proceeds to be received from the sale of Common Stock
issuable pursuant to an Award.
9. TAX WITHHOLDING. The Company shall have the right to deduct
applicable taxes from any Award payment and withhold, at the time of delivery or
vesting of cash or shares of Common Stock under this Plan, an appropriate amount
of cash or number of shares of Common Stock or a combination thereof for payment
of taxes required by law or to take such other action as may be necessary in the
opinion of the Company to satisfy all obligations for withholding of such taxes.
The Committee may also permit withholding to be satisfied by the transfer to the
Company of shares of Common Stock theretofore owned by the holder of the Award
with respect to which withholding is required. If shares of Common Stock are
used to satisfy tax withholding, such shares shall be valued based on the Fair
Market Value when the tax withholding is required to be made.
10. AMENDMENT, MODIFICATION, SUSPENSION OR TERMINATION. The Board may
amend, modify, suspend or terminate this Plan for the purpose of meeting or
addressing any changes in legal requirements or for any other purpose permitted
by law except that (i) no amendment or alteration that would impair the rights
of any participant under any Award previously granted to such Participant shall
be made without such Participant's consent and (ii) no amendment or alteration
shall be effective prior to approval by the Company's stockholders to the extent
such approval is then required pursuant to Rule 16b-3 in order to preserve the
applicability of any exemption provided by such rule to any Award then
outstanding (unless the holder of such Award consents) or to the extent
stockholder approval is otherwise required by applicable legal requirements.
11. NO GUARANTEE OF AND TERMINATION OF EMPLOYMENT.
a. Holder and the Company acknowledge and agree that this Option
is not intended and should not be construed to grant the Holder any right to
continued employment with the Company or to otherwise define the Terms of
Holder's employment or service with the Company.
b. This Option, to the extent vested, may be exercised in
whole or in part at any
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time prior to termination of employment. On termination of employment (for
whatever reason), all options and Awards which are not vested at that time shall
be forfeited. To the extent a Stock Option or Stock Appreciation Right is vested
at termination of employment, the employee or director (or his executor or
beneficiary in the event of his death) may exercise the Option or Stock
Appreciation Right until the earlier to occur of (1) expiration of the Option or
Stock Appreciation Right by its terms; or (2) sixty (60) days after termination
of employment.
12. ASSIGNABILITY. Unless otherwise determined by the Committee and
provided in the Award Agreement, no Award or any other benefit under this Plan
shall be assignable or otherwise transferable except by will or the laws of
descent and distribution or pursuant to a qualified domestic relations order as
defined by the Code or Title I of the Employee Retirement Income Security Act,
or the rules thereunder. The Committee may prescribe and include in applicable
Award Agreements other restrictions on transfer. Any attempted assignment of an
Award or any other benefit under this Plan in violation of this Paragraph 12
shall be null and void.
13. ADJUSTMENTS.
(a) The existence of outstanding Awards shall not affect in any manner
the right or power of the Company or its stockholders to make or authorize any
or all adjustments, recapitalizations, changes of control or other changes in
the capital stock of the Company or any merger or consolidation of the Company,
or any issue of bonds, debentures, preferred or prior preference stock (whether
or not such issue is prior to, on a parity with or junior to the Common Stock)
or the dissolution or liquidation of the Company, or any sale or transfer of all
or any part of its assets or business, or any other corporate act or proceeding
of any kind, whether or not of a character similar to that of the acts or
proceedings enumerated above.
(b) In the event of any subdivision or consolidation of outstanding
shares of Common Stock or declaration of a dividend payable in shares of Common
Stock or recapitalizations or reclassification or other transaction involving an
increase or reduction in the number of outstanding shares of Common Stock, the
Committee may adjust proportionally (i) the number of shares of Common Stock
reserved under this Plan and covered by outstanding Awards denominated in Common
Stock or units of Common Stock; (ii) the exercise or other price in respect of
such Awards; and (iii) the appropriate Fair Market Value and other price
determinations for such Awards. In the event of any consolidation or merger of
the Company with another corporation or entity or the adoption by the Company of
a plan of exchange affecting the Common Stock or any distribution to holders of
Common Stock of securities or property (other than normal cash dividends or
dividends payable in Common Stock), the Committee shall make such adjustments or
other provisions as it may deem equitable, including adjustments to avoid
fractional shares, to give proper effect to such event. In the event of a
corporate merger, consolidation, acquisition of property or stock, separation,
change of control or liquidation, the Committee shall be authorized to issue or
assume stock options, regardless of whether in a transaction to which Section
424(a) of the Code applies, by means of substitution of new options for
previously issued options or an assumption of previously issued options, or to
make provision for the acceleration of the exercisability of, or lapse of
restrictions with respect to, Awards and the termination of
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unexercised options in connection with such transaction.
14. RESTRICTIONS. No Common Stock or other form of payment shall be
issued with respect to any Award unless the Company shall be satisfied based on
the advice of its counsel that such issuance will be in compliance with
applicable federal and state securities laws. It is the intent of the Company
that this Plan comply with Rule 16b-3 with respect to persons subject to Section
16 of the Exchange Act unless otherwise provided herein or in an Award
Agreement, that any ambiguities or inconsistencies in the construction of this
Plan be interpreted to give effect to such intention, and that if any provision
of this Plan is found not to be in compliance with rule 16b-3, such provision
shall be null and void to the extent required to permit this Plan to comply with
Rule 16b-3. Certificates evidencing shares of Common Stock delivered under this
Plan may be subject to such stop transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations and other requirements
of the Securities and Exchange Commission, any securities exchange or
transaction reporting system upon which the Common Stock is then listed and any
applicable federal and state securities law. The Committee may cause a legend or
legends to be placed upon any such certificates to make appropriate reference to
such restrictions.
15. UNFUNDED PLAN. Insofar as it provides for Awards of Common Stock,
cash or rights thereto, this Plan shall be unfunded. Although bookkeeping
accounts may be established with respect to Participants who are entitled to
cash, Common Stock or rights thereto under this Plan, any such accounts shall be
used merely as a bookkeeping convenience. The Company shall not be required to
segregate any assets that may at any time be represented by cash, Common Stock
or rights thereto, nor shall this Plan be construed as providing for such
segregation, nor shall the Company nor the Board nor the committee be deemed to
be a trustee of any cash, Common Stock or rights thereto to be granted under
this Plan. Any liability or obligation of the Company to any Participant with
respect to a grant of cash, Common Stock or rights thereto under this Plan shall
be based solely upon any contractual obligations that may be created by this
Plan and any Award Agreement, and no such liability or obligation of the Company
shall be deemed to be secured by any pledge or other encumbrance on any property
of the Company. Neither the Company nor the Board nor the Committee shall be
required to give any security or bond for the performance of any obligation that
may be created by this Plan.
16. GOVERNING LAW. This Plan and all determinations made and actions
taken pursuant hereto, to the extent not otherwise governed by mandatory
provisions of the Code or the securities laws of the United States, shall be
governed by and construed in accordance with the laws of the State of Texas.
17. EFFECTIVE DATE OF PLAN. This Plan shall be effective as of the date
(the "Effective Date") it is approved by the Board of Directors of the Company.
Notwithstanding the foregoing, the adoption of this Plan is expressly
conditioned upon the approval by the holders of a majority of shares of Common
Stock present, or represented, and entitled to vote at a meeting of the
Company's stockholders held on or before November 3, 1995. If the stockholders
of the Company should fail to approve this Plan prior to such date, this Plan
shall terminate and cease to be of any further force or effect and all grants of
Awards hereunder shall be null and void.
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