AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 18, 2000
Registration No. __________
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MAVERICK TUBE CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
Delaware 43-1455766
- ---------------------------------------- ------------------------------------
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
16401 Swingley Ridge Road
Seventh Floor
Chesterfield, Missouri 63017
- ---------------------------------------- ------------------------------------
(Address of Principal Executive Offices) (Zip Code)
The Maverick Tube Corporation 1999 Director Stock Option Plan
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(Full Title of the Plan)
Gregg M. Eisenberg
Chairman, President and Chief Executive Officer
Maverick Tube Corporation
16401 Swingley Ridge Road, Seventh Floor
Chesterfield, Missouri 63017
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(Name and Address of Agent for Service)
(636) 733-1600
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(Telephone Number, Including Area Code, of Agent for Service)
Copies of All Correspondence to:
Robert H. Wexler, Esq.
Gallop, Johnson & Neuman, L.C.
Interco Corporate Tower
101 South Hanley Road
St. Louis, Missouri 63105
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered(1) Registered Per Share (2) Offering Price Fee
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Common Stock
$.01 Par Value 300,000 $22.50 $6,750,000 $1,782.00
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(1) Includes one attached Preferred Share Purchase Right per share.
(2) This Registration Statement, pursuant to Rule 416, covers any additional
shares of Registrant's $.01 par value common stock (the "Common Stock")
which becomes issuable under the 1999 Director Stock Option Plan by
reason of any stock dividend, stock split, recapitalization or other
similar transaction which results in an increase in the number of shares
of common stock outstanding.
(3) Estimated solely for the purpose of calculating the registration fee.
Such estimate has been calculated in accordance with Rule 457(h) under
the Securities Act of 1933, and is based upon the average of the high and
low prices per share of the Registrant's Common Stock as reported on
the National Market System of The Nasdaq Stock Market on Friday,
February 11, 2000.
-----------------------------------------------
This Registration Statement shall become effective in accordance with the
provisions of Rule 462 promulgated under the Securities Act of 1933, as
amended.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The undersigned Registrant hereby files this Registration Statement on
Form S-8 (the "Registration Statement") to register shares of Maverick Tube
Corporation ("Maverick" or the "Registrant") common stock, $.01 par value per
share, and attached Preferred Share Purchase Rights of Maverick, for issuance to
optionees under the Maverick Tube Corporation 1999 Director Stock Option Plan
(the "Plan").
Item 3. Incorporation of Documents by Reference.
The following documents filed by Maverick with the Securities and
Exchange Commission are incorporated herein by reference:
(a) Maverick's Annual Report filed on Form 10-K for the fiscal year
ended September 30, 1999, filed by Maverick pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) Maverick's Quarterly Report filed on Form 10-Q for the fiscal
quarter ended December 31, 1999, filed by Maverick, pursuant to Section 13(a) or
15(d) of the Exchange Act;
(c) The description of Maverick's common stock, which is contained in
Maverick's Registration Statement on Form 8-A, filed by Maverick on October 31,
1990 under Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description; and
(d) The description of Maverick's preferred share purchase rights,
which is contained in Maverick's Registration Statement on Form 8-A, as amended
by Maverick's Form 8-A/A (Amendment No. 1), filed by Maverick on August 5, 1998
and July 7, 1999, respectively, under Section 12 of the Exchange Act, including
any amendment or report filed for the purpose of updating such description.
All documents filed by Maverick pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date hereof 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 remaining unsold,
and all amendments or supplements filed with respect to the documents listed in
(a), (b), (c) or (d) above, shall be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof from the date of filing of
such document. Any statement contained in a document incorporated or deemed to
be incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that 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, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Copies of all documents incorporated by reference into this
Registration Statement, other than exhibits to such documents (unless the
exhibits are specifically incorporated by reference into such documents), will
be provided without charge to each person to whom a prospectus with respect to
the Plan is delivered, upon oral or written request by such person to Barry R.
Pearl, Secretary, Maverick Tube Corporation, 16401 Swingley Ridge Road,
Chesterfield, Missouri 63017, telephone: (636) 733-1600.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification by a corporation of certain officers, directors,
employees, and agents. Consistent therewith, Article III, Section 16 of
Maverick's Amended and Restated Bylaws, as amended (the "Bylaws") requires that
Maverick indemnify all persons whom it may indemnify pursuant thereto to the
fullest extent permitted by Section 145. Article III, Section 16 of the Bylaws
also provides that expenses incurred by an officer or director of Maverick or
any of its direct or indirect wholly-owned subsidiaries, in defending a civil or
criminal action, suit or proceeding, will be paid by Maverick in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such officer or director, to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by Maverick as authorized. Such expenses incurred by other employees
and agents may be so paid upon such terms and conditions, if any, as the Board
of Directors deems appropriate.
Maverick maintains a claims-made policy of directors' and officers'
liability and company reimbursement insurance. The directors' and officers'
liability portion of such policy covers all directors and officers of Maverick
and subsidiary companies, more than 50% of the outstanding voting stock of which
is directly or indirectly owned by Maverick. The policy provides for a payment
on behalf of the directors and officers up to the policy limits for all Losses
(as defined) which the directors and officers, or any of them, shall become
legally obligated to pay, from claims made against them during the policy period
for Wrongful Acts (as defined), which include: errors, misstatements, misleading
statements, acts or omissions and neglect or breach of duty in the discharge of
their duties, solely in their capacity as directors and officers of Maverick or
a subsidiary thereof, individually or collectively, or in connection with any
matter claimed against them solely by reason of their being directors or
officers of Maverick or such subsidiary. The insurance includes the cost of
defenses, appeals, bonds, settlements and judgments. The insurer's limit of
liability under the policy is $5,000,000 in the aggregate for all Losses per
year. The policy contains various reporting requirements and exclusions.
Maverick also maintains a claims-made policy which provides coverage for
Maverick, its directors and officers against loss, liability, cost or expense
(as defined) incurred under the federal securities laws.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index located at page 8 hereof.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment hereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Request For Acceleration of Effective Date or 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
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
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 Chesterfield, County of St. Louis, State of
Missouri, on February 18, 2000.
MAVERICK TUBE CORPORATION
(Registrant)
By: /s/ Gregg M. Eisenberg
------------------------------------
Gregg M. Eisenberg
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Maverick Tube
Corporation, hereby severally and individually constitute and appoint Gregg M.
Eisenberg and Barry R. Pearl, and each of them, the true and lawful attorneys
and agents of each of us to execute in the name, place and stead of each of us
(individually and in any capacity stated below) any and all amendments to this
Registration Statement on Form S-8 and all instruments necessary or advisable in
connection therewith and to file the same with the Securities and Exchange
Commission, each of said attorneys and agents to have the power to act with or
without the others and to have full power and authority to do and perform in the
name and on behalf of each of the undersigned every act whatsoever necessary or
advisable to be done in the premises as fully and to all intents and purposes as
any of the undersigned might or could do in person, and we hereby ratify and
confirm our signatures as they may be signed by our said attorneys and agents to
any and all such amendments and instruments.
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.
Name Title Date
---- ----- ----
/s/ Gregg M. Eisenberg Chairman of the Board, February 18, 2000
- -------------------------- President, Chief Executive
Gregg M. Eisenberg Officer and Director
(Principal Executive Officer)
/s/ Barry R. Pearl Vice President-Finance and February 18, 2000
- -------------------------- Administration (Principal
Barry R. Pearl Financial and
Accounting Officer)
/s/ William E. Macaulay Director February 18, 2000
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William E. Macaulay
/s/ David H. Kennedy Director February 18, 2000
- --------------------------
David H. Kennedy
/s/ C. Robert Bunch Director February 18, 2000
- --------------------------
C. Robert Bunch
/s/ C. Adams Moore Director February 18, 2000
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C. Adams Moore
/s/ Wayne P. Mang Director February 18, 2000
- --------------------------
Wayne P. Mang
Director
- --------------------------
John M. Fox
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
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4.1 Shareholder Rights Agreement dated as of July 24, 1998 between
the Registrant and Harris Trust and Savings Bank as Rights
Agent, incorporated herein by reference to Exhibit 1 of the
Registrant's Form 8-A filed on August 5, 1998, as amended by
the Registrant's Form 8-A/A (Amendment No. 1), filed on July 7,
1999 (Commission File No. 0-30146).
5.1 Opinion of Gallop, Johnson & Neuman, L.C., filed herewith.
23.1 Consent of Ernst & Young LLP, independent auditors, filed
herewith.
23.2 Consent of Gallop, Johnson & Neuman, L.C. (included in Exhibit
5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
99.1 The Maverick Tube Corporation 1999 Director Stock Option Plan,
filed herewith.
EXHIBIT 5.1
GALLOP, JOHNSON & NEUMAN, L.C.
101 S. Hanley
St. Louis, Missouri 63105
February 14, 2000
Board of Directors
Maverick Tube Corporation
16401 Swingley Ridge Road, Seventh Floor
Chesterfield, Missouri 63017
Re: Registration Statement on Form S-8 - The Maverick Tube
Corporation 1999 Director Stock Option Plan
Gentlemen:
We have served as counsel to Maverick Tube Corporation (the "Company")
in connection with the various legal matters relating to the filing of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, and the Rules and Regulations promulgated
thereunder, relating to 300,000 shares of common stock of the Company, par value
$.01 per share (the "Shares"), reserved for issuance in accordance with The
Maverick Tube Corporation 1999 Director Stock Option Plan (the "Plan").
We have examined such corporate records of the Company, such laws and
such other information as we have deemed relevant, including the Company's
Amended and Restated Certificate of Incorporation, as amended, and Amended and
Restated Bylaws, as amended, certain resolutions adopted by the Board of
Directors of the Company relating to the Plan and certificates received from
state officials and from officers of the Company. In delivering this opinion, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as certified, photostatic or conformed copies, and the
correctness of all statements submitted to us by officers of the Company.
The opinions expressed herein are limited to the Delaware General
Corporation Law, the applicable provisions of the Delaware Constitution, and the
reported judicial decisions interpreting such laws and constitutional
provisions.
Based upon the foregoing, the undersigned is of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware.
2. The Shares being offered by the Company, if issued in accordance
with the Plan, will be validly issued and outstanding and will be fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the use of our name in the Registration Statement. We also
consent to your filing copies of this opinion as an exhibit to the Registration
Statement with agencies of such states as you deem necessary in the course of
complying with the laws of such states regarding the issuance of the Shares
pursuant to the Plan.
Very truly yours,
/s/ GALLOP, JOHNSON & NEUMAN, L.C.
GALLOP, JOHNSON & NEUMAN, L.C.
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-XXXXX) pertaining to the Maverick Tube Corporation 1999 Director
Stock Option Plan of our reports dated October 29, 1999, with respect to the
consolidated financial statements of Maverick Tube Corporation incorporated by
reference in its Annual Report (Form 10-K) for the year ended September 30, 1999
and the related financial statement schedule included therein, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
St. Louis, Missouri
February 14, 2000
EXHIBIT 99.1
MAVERICK TUBE CORPORATION
1999 DIRECTOR STOCK OPTION PLAN
Section 1. Establishment and Purpose.
Maverick Tube Corporation (the "Company") hereby establishes a stock
option plan to be named the Maverick Tube Corporation 1999 Director Stock Option
Plan. The purpose of the Plan is to provide (i) further inducement to qualified
persons to become and remain Eligible Directors of the Company, and (ii)
additional incentive to Eligible Directors of the Company by encouraging them to
acquire shares of Stock upon the exercise of the Options granted hereunder in
return for services rendered by them to the Company, thereby increasing such
Eligible Directors' proprietary interest in the business of the Company. Options
granted under the Plan will not be incentive stock options within the meaning of
Section 422 of the Code.
Section 2. Definitions.
(a) Act means the Securities Exchange Act of 1934, as amended and in
effect from time to time.
(b) Administrator means the person, board of directors, committee or
entity performing the functions of the administrator of the Plan as provided for
herein, as designated by the Board from time to time and, in absence of such
designation, the Board shall be the Administrator.
(c) Board means the Board of Directors of the Company.
(d) Code means the Internal Revenue Code of 1986, as amended and in
effect from time to time.
(e) Company means Maverick Tube Corporation, a corporation organized
and existing under the laws of the State of Delaware.
(f) Eligible Director means, at any given time, a director of the
Company who is not an officer or employee of the Company or of any subsidiary
thereof and who is not a director, officer or employee of a corporation,
partnership, trust or other entity that is a beneficial owner (as defined in
Section 13(d)(3) of the Act) of ten percent or more of the Stock of the Company.
(g) Fair Market Value of a share of Stock means, for any particular
date, (i) for any period during which the Stock shall not be listed for trading
on a national securities exchange, but when the Stock is authorized as a Nasdaq
National Market security, the last transaction price per share as quoted by The
Nasdaq Stock Market (the "Nasdaq"), (ii) for any period during which the Stock
shall not be listed for trading on a national securities exchange or authorized
as a Nasdaq National Market security, but when the Stock is authorized as a
Nasdaq Small Cap Market security, the closing bid price as reported by the
Nasdaq, (iii) for any period during which the Stock shall be listed for trading
on a national securities exchange, the closing price per share of Stock on such
exchange as of the close of such trading day or (iv) the market price per share
of Stock as determined by a nationally recognized investment banking firm
selected by the Board of Directors in the event neither (i), (ii) nor (iii)
above shall be applicable. If Fair Market Value is to be determined as of a day
when the securities markets are not open, the Fair Market Value on that day
shall be the Fair Market Value on the preceding day when the markets were open.
(h) Option means an option granted under this Plan to acquire Stock.
(i) Optionee means the person to whom an Option is granted.
(j) Option Agreement means the agreement between the Company and an
Optionee setting forth the terms and provisions of an Option.
(k) Option Date means the date as of which an Option is granted, which
shall be the first business day after the 2000 annual meeting of stockholders of
the Company and the first business day after each subsequent annual meeting of
the stockholders of the Company.
(l) Period of Exercisability means the period during which an Option
may be exercised as determined under Section 6 of this Plan.
(m) Plan means the Maverick Tube Corporation 1999 Director Stock Option
Plan.
(n) Post-Death Representative(s) means the executor(s),
administrator(s) or personal representative(s) of the Optionee's estate or the
person or person(s) to whom the Optionee's rights under his or her Option pass
by the Optionee's will or the laws of descent and distribution.
(o) Rule 16b-3 means Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Act, as amended from time to time, or any
successor rule.
(p) Stock means authorized and unissued shares of $0.01 par value
common stock of the Company or shares reacquired by the Company held in its
treasury.
Section 3. Administration.
The Plan is intended to be a "formula plan" under Rule 16b-3. The
Administrator shall administer the Plan on behalf of the Company. The
Administrator may adopt, amend, and rescind from time to time such
administrative rules, and may take from time to time such actions, with or
without notice to affected Optionees, as the Administrator may deem appropriate
to implement or interpret the provisions of the Plan or to exercise any
authority, discretion or power explicitly or implicitly granted to the
Administrator under the Plan; provided however, that no such rules or actions
may be inconsistent with the provisions of the Plan or Rule 16b-3. The
Administrator may make rules or take action pursuant to this Section by any
appropriate means.
Section 4. Shares Subject to the Plan.
(a) Subject to the provisions of Section 10 hereof, a maximum of
300,000 shares of Stock may be issued pursuant to the exercise of Options
granted under the Plan.
(b) At any time during the existence of the Plan, there shall be
reserved for issuance upon the exercise of Options granted under the Plan an
amount of Stock (subject to adjustment as provided in Section 10 hereof) equal
to the total number of shares then issuable pursuant to all such Option grants
which shall have been made prior to such time. The Company in its discretion may
use reacquired shares held in the treasury in lieu of authorized but unissued
shares.
(c) If an Option terminates, in whole or in part, by expiration or for
any reason other than exercise of such Option, the shares previously reserved
for issuance upon grant of the Option shall again be available for issuance as
if such shares had never been subject to an Option.
Section 5. Granting of Options.
(a) Each person who is an Eligible Director on an Option Date
(commencing on the Option Date for 2000) shall receive an Option to acquire
7,500 shares of Stock at a per share purchase price equal to the Fair Market
Value of the Stock on the Option Date. In each subsequent year, each person who
is an Eligible Director on the Option Date shall receive an Option to acquire
7,500 shares of Stock at a per share purchase price equal to the Fair Market
Value of the Stock on the Option Date.
(b) All Options granted under the Plan shall be granted as of an Option
Date. Promptly after each Option Date, the Company shall notify the Optionee of
the grant of the Option, and shall hand deliver or mail to the Optionee an
Option Agreement, duly executed by and on behalf of the Company, with the
request that the Optionee execute and return the Option Agreement within thirty
days after the Option Date. If the Optionee shall fail to execute and return the
Option Agreement within said thirty-day period, his or her Option shall be
automatically terminated, except that if the Optionee dies within said
thirty-day period, such Option Agreement shall be effective notwithstanding the
fact that it has not been signed prior to death.
Section 6. Terms of Options.
Notwithstanding any other provision of the Plan, each Option shall be
evidenced by an Option Agreement, which shall include the substance of the
following terms and conditions:
(a) The option price for each share of Stock covered by an Option shall
be an amount equal to 100 percent of the Fair Market Value of a share of Stock
on the Option Date of such Option.
(b) The Option shall not be transferable by the Optionee other than by
will or by the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code or the regulations thereunder.
The designation of a beneficiary does not constitute a transfer. The Option
shall be exercisable during the Optionee's lifetime only by the Optionee.
(c) The Option shall be exercisable, in whole or in part, at any time
and from time to time on or after the date which is six months after the Option
Date and before its expiration, which shall occur upon the earlier of (i) the
date on which an Optionee ceases to hold office as a director of the Company for
any reason other than retirement, death or disability, (ii) the date that is
three months after the effective date of the Optionee's retirement from service
on the Board, (iii) the date that is one year after the date on which the
Optionee's service on the Board ceases due to death or disability, (iv) the date
on which the Optionee ceases to qualify as an Eligible Director for any reason
other than retirement, death or disability, and (v) the fifth anniversary of the
Option Date.
(d) An Option may be exercised only during the Period of Exercisability
determined under Section 6(c) hereof.
Section 7. No Right to Remain a Director.
The grant of an Option shall not create any right in any person to
remain as a director of the Company.
Section 8. Exercise of Options.
(a) An Option may be exercised in whole or in part during the Period of
Exercisability, except as otherwise may be provided in the Option Agreement, by
giving written notice to the Company stating the number of shares of Stock for
which the Option is being exercised, accompanied by payment in full of the
aggregate purchase price for the shares of Stock being purchased. Payment of the
aggregate purchase price for the shares of Stock may be made (i) in cash for the
full amount of such purchase price, (ii) by delivery to the Company of
certificates representing shares of Stock owned by the Optionee for longer than
six months and registered in the Optionee's name, having a Fair Market Value as
of the date of exercise and tender equal to the full amount of such purchase
price, or (iii) a combination of (i) and (ii) which collectively equals the full
amount of such purchase price.
(b) An Optionee shall have none of the rights of a stockholder with
respect to shares of Stock subject to an Option until shares of Stock are issued
to him or her upon the exercise of such Option.
Section 9. General Provisions.
The Company shall not be required to issue or deliver any certificate
for shares of Stock to an Optionee upon the exercise of an Option prior to:
(a) (i) if requested by the Company, the filing with the Company by the
Optionee or the Optionee's Post-Death Representative of a representation in
writing that at the time of such exercise it was his or her then present
intention to acquire such shares for investment and not for resale, and/or (ii)
the completion of any registration or other qualification of such shares of
Stock under any State or Federal securities laws or rulings or regulations of
any governmental regulatory body which the Company shall determine to be
necessary or advisable; and
(b) the obtaining of any other consent, approval or permit from any
State or Federal governmental agency which the Administrator may, in its sole
and absolute discretion upon the advice of counsel, determine to be necessary or
advisable.
Section 10. Adjustment Provisions.
The existence of the Plan and the Options granted hereunder shall not
affect in any way the right or power of the Board or the stockholders of the
Company to make or authorize any adjustment, recapitalization, reorganization or
other change in the Company's capital structure or its business, any merger or
consolidation of the Company with or into another entity, any issuance of bonds,
debentures, preferred or prior preference stocks ahead of or affecting the Stock
or the rights thereof, the dissolution or liquidation of the Company for any
sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding.
The shares with respect to which Options may be granted are shares of
Stock as presently constituted. If, however, the outstanding shares of Stock are
subdivided or consolidated, or such shares are exchanged for a different number
or kind of shares or securities of the Company through a reorganization, merger,
recapitalization, reclassification, stock dividend, stock split, combination of
shares or other similar transaction, the aggregate number of shares of Stock
subject to the Plan as provided in Section 4 hereof, and the shares of Stock
subject to issuance under outstanding Options under the Plan shall be
appropriately and proportionately adjusted by the Administrator. Any such
adjustment in an outstanding Option shall be made without change in the
aggregate purchase price applicable to the unexercised portion of the Option but
with an appropriate adjustment in the price for each share or other unit of any
security covered by the Option.
Notwithstanding anything to the contrary contained in this Section 10,
upon the dissolution or liquidation of the Company, or upon a reorganization,
merger or consolidation of the Company with one or more corporations as a result
of which the Company is not the surviving corporation (or, in the case of a
three-party merger where the Company, while the surviving corporation, becomes a
subsidiary of another corporation), or upon a sale of substantially all of the
assets of the Company, then the Plan shall terminate on the date and any Options
granted under the Plan shall terminate on the date before the consummation of
the transaction, and the Administrator shall have the right, but shall not be
obligated, to accelerate the time in which any Option may be exercised prior to
such termination, unless provision shall be made in writing in connection with
such transaction for the continuance of the Plan, for the assumption of Options
previously granted, or the substitution for such Options with new options to
purchase the stock of a successor corporation, or parent or subsidiary thereof,
with appropriate adjustments as to number and kind of shares and the option
price, in which event the Plan and Options previously granted shall continue in
the manner and under the terms so provided; provided, however, that the
Administrator and the Board shall have the authority to amend this Section to
require that a successor assume all obligations under any outstanding Options.
Adjustments under this Section 10 shall be made by the Administrator,
and any determination of the Administrator as to what adjustments shall be made,
and the extent thereof, shall be final, binding and conclusive. No fractional
shares of Stock shall be issued under the Plan or in connection with any such
adjustment.
Except as may otherwise be expressly provided in the Plan, the issuance
by the Company of shares of capital stock of any class or securities convertible
into shares of capital stock of any class for cash, property, labor, or
services, upon direct sale, upon the exercise of rights or warrants to subscribe
therefore, or upon conversion of shares or obligations of the Company
convertible into such shares of capital stock or other securities, and in any
case whether or not for fair value, shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number of shares of Stock
available under the Plan or subject to Options therefore granted or the purchase
price per share with respect to outstanding Options.
Section 11. Duration, Amendment and Termination.
(a) The Board may at any time terminate the Plan or make such
amendments thereto as it shall deem advisable and in the best interests of the
Company, without further action on the part of the stockholders of the Company;
provided, however, that no such termination or amendment shall, without the
consent of the Optionee, adversely affect or impair the rights of such Optionee,
and provided further, that no amendment requiring stockholder approval in order
to meet the requirements of Rule 16b-3 shall be effective unless such
stockholder approval is obtained, and provided further that the provisions
relating to eligible persons, the amount and price of awards and the timing of
awards may not be amended more than once every six months except to comport with
changes in the Code or the Employee Retirement Income Security Act of 1974, as
amended or the rules thereunder.
(b) The period during which Options may be granted under the Plan shall
terminate on November 16, 2004, unless the Plan earlier shall have been
terminated as provided above.
Section 12. Stockholder Approval.
The Plan became effective on November 16, 1999, subject to approval by
the stockholders of the Company at its annual meeting to be held on or about
February 7, 2000, or any adjournment thereof.
Section 13. Miscellaneous.
(a) An Optionee shall have no rights as a stockholder with respect to
shares issuable upon exercise of an Option until the date of the issuance of
shares to the Optionee pursuant to such exercise. No adjustment will be made for
dividends or other distributions or rights for which the record date is prior to
the date of such issuance.
(b) Nothing contained in the Plan shall be construed as giving any
Optionee, such Optionee's beneficiaries, or any other person any equity or other
interest of any kind in any assets of the Company or any subsidiary or creating
a trust of any kind or a fiduciary relationship of any kind between the Company
or any subsidiary and any such person.
(c) Nothing contained in the Plan shall be construed to prevent the
Company or any subsidiary from taking any corporate action that is deemed by the
Company or such subsidiary to be appropriate or in its best interests, whether
or not such action would have an adverse effect on the Plan or any Option
granted under the Plan. No Optionee, beneficiary or other person shall have any
claim against the Company or any subsidiary as a result of any such action.
(d) The proceeds received by the Company from the sale of shares of
Stock pursuant to the Plan shall be used for general corporate purposes.
(e) All rights and obligations under the Plan shall be governed by, and
the Plan shall be construed in accordance with, the laws of the State of
Delaware without regard to the law of conflicts. Titles and headings to sections
in the Plan are for purposes of reference only, and shall in no way limit,
define or otherwise affect the meaning or interpretation of any provisions of
the Plan.
(f) The Company shall have the right to take such action as may be
necessary in connection with any exercise of Options to satisfy any applicable
obligation to withhold amounts pursuant to Federal, State, or local tax law. The
Administrator may permit shares of Stock having an aggregate value equal to or
less than the amount required to be withheld to be used to satisfy tax
withholding requirements, and such shares shall be valued at the Fair Market
Value per share as of the date of such exercise.
(g) It is intended that the Options that may be granted and Stock
issuable under the Plan will be registered under the Securities Act of 1933, as
amended. At the time any shares of Stock are issued or transferred pursuant to
the exercise of an Option, such shares will have been accepted for trading on
The NASDAQ Stock Market or such other national securities exchange on which the
Company's Stock is then predominantly traded.
