<PAGE> 1
As filed with the Securities and Exchange Commission on July 3, 1996
Registration No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C., 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
MARCUM NATURAL GAS SERVICES, INC.
------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 84-1169358
- ------------------------- ----------------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1675 Broadway
Suite 2150
Denver, Colorado 80202
-----------------------------------------------------
(ADDRESS AND ZIP CODE OF PRINCIPAL EXECUTIVE OFFICES)
Marcum Natural Gas Services, Inc. Amended and Restated 1991 Stock Option Plan
-----------------------------------------------------------------------------
(FULL TITLE OF THE PLAN)
Bobby W. Page, Vice President
Marcum Natural Gas Services, Inc.
1675 Broadway, Suite 2150
Denver, Colorado 80202
(303) 592-5555
----------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of Registration
Securities to be to be Offering Price Aggregate Fee
Registered Registered (1) Per Share (2) Offering Price (2)
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 500,000 shares $ 1.3125 $ 656,250 $ 226.29
$.01 per share
============================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers
an indeterminate amount of shares of Common Stock and other securities
that may be offered or sold pursuant to the anti-dilution provisions of
the Marcum Natural Gas Services, Inc. Amended and Restated 1991 Stock
Option Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to paragraphs (c) and (h) of Rule 457 under the
Securities Act, on the basis of the average of the high and low prices of
the Common Stock as reported on the Nasdaq National Market on July 1,
1996.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
On November 12, 1992, Marcum Natural Gas Services, Inc. (the
"Registrant") filed a Registration Statement on Form S-8 (Registration No.
33-54398) registering the issuance of 900,000 shares of Common Stock, par value
$.01 per share ("Common Stock"), pursuant to the Marcum Natural Gas Services,
Inc. 1991 Stock Option Plan (the "Plan"). This Registration Statement
registers the issuance of 500,000 additional shares of Common Stock pursuant to
the Amended and Restated Plan in accordance with Instruction E to Form S-8.
The securities to which this Registration Statement relates are the same class,
and are to be issued under the same employee benefit plan, as the securities
previously registered in Registration Statement No. 33-54398. Pursuant to
General Instruction E, the contents of Registration Statement No. 33-54398 are
incorporated herein by reference.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<S> <C>
4.1 Restated Certificate of Incorporation of Marcum Natural Gas Services, Inc.
as amended (incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-18, Registration No. 33-44558)
4.2 Bylaws of Marcum Natural Gas Services, Inc., as amended (incorporated by
reference to Exhibit 3.2 to the Registration Statement on Form SB-2,
Registration No. 33-82868)
4.3 Marcum Natural Gas Services, Inc. Amended and Restated 1991 Stock Option Plan
5.1 Opinion of Emens, Kegler, Brown, Hill & Ritter Co., L.P.A.
23.1 Consent of Emens, Kegler, Brown, Hill & Ritter Co., L.P.A.
(Included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
24.1 Powers of Attorney
(Included in Signature Page)
</TABLE>
II-1
<PAGE> 3
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 Denver, Colorado on the 28th day of June, 1996.
MARCUM NATURAL GAS SERVICES, INC.
By: /s/ W. Phillip Marcum
-----------------------------
W. Phillip Marcum, President
The Registrant and each person whose signature appears below does
hereby make, constitute and appoint W. Phillip Marcum, Bobby W. Page and Paul
R. Hess, and each of them, his or its true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution for him or it and in
his or its name, place and stead, in any and all capacities, to sign and file
any and all amendments (including post-effective amendments) to this
Registration Statement, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite or necessary to be done in or about the
premises as he or it might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them or their,
his or its substitute or substitutes may 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.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ W. Phillip Marcum President, Chief Executive Officer and June 28, 1996
- --------------------------------------- and Director (Principal executive officer)
W. Phillip Marcum
/s/ A. Bradley Gabbard Executive Vice President and Director June 28, 1996
- ---------------------------------------
A. Bradley Gabbard
/s/ Bobby W. Page Vice President, Secretary and Treasurer June 28, 1996
- --------------------------------------- (Principal financial officer and principal
Bobby W. Page accounting officer)
/s/ Charles E. Miller Director June 28, 1996
- ---------------------------------------
Charles E. Miller
/s/ U. E. Patrick Director June 28, 1996
- ---------------------------------------
U. E. Patrick
/s/ Basil M. Briggs Director June 28, 1996
- ---------------------------------------
Basil M. Briggs
/s/ Robert Lloyd Director June 28, 1996
- ---------------------------------------
Robert Lloyd
/s/ Stephen E. McGregor Director June 28, 1996
- ---------------------------------------
Stephen E. McGregor
/s/ Anthony D. Pell Director June 28, 1996
- ---------------------------------------
Anthony D. Pell
/s/ Albert F. Thomasson Director June 28, 1996
- ---------------------------------------
Albert F. Thomasson
</TABLE>
II-2
<PAGE> 4
MARCUM NATURAL GAS SERVICES, INC.
AMENDED AND RESTATED 1991 STOCK OPTION PLAN
FORM S-8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- ----------- ----------------------
<S> <C>
4.1 Restated Certificate of Incorporation of Marcum Natural Gas Services, Inc.
as amended (incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-18, Registration No. 33-44558).
4.2 Bylaws of Marcum Natural Gas Services, Inc., as amended (incorporated by
reference to Exhibit 3.2 to the Registration Statement on Form SB-2,
Registration No. 33-82868).
4.3 Marcum Natural Gas Services, Inc. Amended and Restated 1991 Stock Option Plan
5.1 Opinion of Emens, Kegler, Brown, Hill & Ritter Co., L.P.A.
23.1 Consent of Emens, Kegler, Brown, Hill & Ritter Co., L.P.A.
(Included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
24.1 Powers of Attorney (included in Signature Page)
</TABLE>
II-3
<PAGE> 1
EXHIBIT 4.3
MARCUM NATURAL GAS SERVICES, INC.
AMENDED AND RESTATED
1991 STOCK OPTION PLAN
EFFECTIVE DATE: JUNE 4, 1996
1. PURPOSE
The purpose of this Amended and Restated 1991 Stock Option Plan (the
"Plan") is to enable Marcum Natural Gas Services, Inc. (the "Company"), and
such of its subsidiaries (as defined in Section 424(f) of the Internal Revenue
Code of 1986 (the "Code")) as the Board of Directors of the Company (the
"Board") shall from time to time designate ("Participating Subsidiaries"), to
attract and retain qualified employees, and to provide such persons with
additional motivation to advance the interests of the Company and its
Participating Subsidiaries. The Plan provides for the grant of Stock Options,
Limited Rights and Supplemental Bonuses to employees of the Company.
2. CERTAIN DEFINITIONS
2.1 "Change of Control". The term "Change of Control" shall mean any of
the following events:
(A) any "Person," as such term is used in Sections 13(d) and 14(d) of the
Exchange Act (other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any company owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company) is or becomes the
"Beneficial Owner" as defined in Rule 13d-3 under the Exchange Act, directly or
indirectly, of 25% or more of the combined voting power of the Company's
outstanding securities;
(B) individuals who constitute the Board on the effective date of the Plan
(the "Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to such
effective date whose election, or nomination for election, by the Company's
stockholders, was approved by a vote of at least a majority of the directors
comprising the Incumbent Board (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as a nominee for
director, without objection to such nomination) shall be, for purposes of this
clause (B), considered as though such person were a member of the Incumbent
Board;
(C) the stockholders of the Company shall approve a merger, consolidation,
recapitalization, or reorganization of the Company, a reverse stock split of
outstanding voting securities, or consummation of any such transaction if
stockholder approval is not obtained, other than (1) any such transaction which
would result in at least 50% of the total voting power represented by the
voting securities of the surviving entity outstanding immediately after such
transaction being "Beneficially Owned" (as defined above) by 75% or more of the
holders of outstanding voting securities of the Company immediately prior to
the transaction, with the voting power of each such continuing holder relative
to other such continuing holders not substantially altered in the transaction,
or (2) a merger or consolidation effected to implement a recapitalization of
the Company (or similar transaction) in which no "Person" (as defined above)
acquires more than 25% of the combined voting power of the Company's then
outstanding securities; or
<PAGE> 2
(D) the stockholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets.
Notwithstanding anything in the foregoing to the contrary, no Change of
Control shall be deemed to have occurred with respect to any particular
Employee by virtue of any transaction which results in such Employee, or a
group of Persons which includes such Employee, acquiring, directly or
indirectly, 25% or more of the combined voting power of the Company's
outstanding securities.
2.2 "Common Stock". Common Stock means Common Stock, par value $0.01 per
share, of the Company.
2.3 "Disinterested Person". A Disinterested Person is a person who, at
the time he exercises discretion in administering the Plan, qualifies as a
"disinterested person" under Rule 16b-3(c)(2) under the Exchange Act.
2.4 "Employee". An Employee is an employee of the Company or any
Participating Subsidiary.
2.5 "Exchange Act". "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
2.6 "Fair Market Value". The Fair Market Value of a share of Common Stock
on any date shall be the last bid price or sale price of Common Stock as
reported in the Wall Street Journal for securities listed on the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") or
NASDAQ National Market System, respectively, for the date in question, or if no
such bid price or sale price is available, the bid price or sale price on the
next preceding date for which a bid price or sale price was so reported, unless
otherwise specified by the Committee. If the Company's stock is traded on an
exchange, the closing price of the Common Stock shall be used in lieu of bid
price or sale price. If the Common Stock is not listed on NASDAQ or NASDAQ
National Market System or traded on an exchange, the Fair Market Value shall be
such amount as determined by the Committee.
2.7 "Limited Right". A Limited Right is the right to receive payment, in
cash, following a Change of Control, of an amount equal to the product computed
by multiplying (i) the excess of (A) the higher of (x) the Minimum Price Per
Share, if the Change of Control occurs as a result of a Transaction, tender
offer or exchange offer, or (y) the highest Fair Market Value per share during
the period commencing thirty days prior to the Change of Control and ending
immediately prior to the date the Limited Right is exercised, over (B) the
option price per share under the Stock Option to which such Limited Right
relates, by (ii) the number of shares of Common Stock as to which such Limited
Right is being exercised provided that, in the case of any Incentive Stock
Option, the amount computed under part (A) of the foregoing formula shall be
equal to the Fair Market Value of Common Stock on the date the Limited Right is
in fact exercised, and provided further that, in the case of any other Limited
Right that has not been outstanding at least seven months at the time the
Change of Control occurs, the amount computed under part (A) of the foregoing
formula shall be equal to the highest amount that could be computed under part
(y) of such formula using a Fair Market Value that first became determinable
six months or more after the date of grant of the Limited Right (with such Fair
Market Value otherwise determined in accordance with the foregoing formula).
2.8 "Minimum Price Per Share". Minimum Price Per Share means the highest
gross price (before brokerage commissions and soliciting dealer's fees) paid or
to be paid for a share of Common Stock (whether
2
<PAGE> 3
by way of exchange, conversion, distribution or upon liquidation or otherwise)
in any Transaction, tender offer or exchange offer occurring prior to the date
on which such Limited Right is exercised. If the consideration paid or to be
paid in any such Transaction, tender offer or exchange offer shall consist, in
whole or in part, of consideration other than cash, the Committee shall take
such action, as in its judgment it deems appropriate, to establish the cash
value of such consideration, but such valuation shall not be less than the
value, if any, attributed to such consideration in writing by any party to such
Transaction, tender offer or exchange offer other than the Company.
2.9 "Participant". A Participant is an Employee to whom a Stock Option,
Limited Right or Supplemental Bonus is granted.
2.10 "Stock Option". A Stock Option is the right granted under the Plan
to an Employee to purchase, at such time or times and at such price or prices
("Option Price") as are determined by the Committee, the number of shares of
Common Stock determined by the Committee.
2.11 "Committee". Committee means the committee described in Section 4
hereof.
2.12 "Supplemental Bonus". A Supplemental Bonus is the right to receive
payment, in shares of Common Stock, cash or a combination of shares of Common
Stock and cash, of an amount specified by the Committee pursuant to Section
7.6.
2.13 "Transaction". A Transaction is (A) any consolidation or merger of
the Company in which the Company is not the surviving corporation other than a
merger solely to effect a reincorporation or a merger of the Company as to
which stockholder approval is not required pursuant to Sections 251(f) or 253
of the Delaware General Corporation Law, or (B) any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of 50%
or more of the assets or earning power of the Company, or (C) the adoption of
any plan or proposal for the liquidation or dissolution of the Company.
For purposes of this Plan, the Committee may, by resolution, clarify the
date as of which a Change of Control shall be deemed to have occurred.
3. INCENTIVE STOCK OPTIONS AND NONSTATUTORY STOCK OPTIONS
The Stock Options granted under the Plan may be either:
(a) Incentive Stock Options ("ISOs") which are intended to be "incentive
stock options" as that term is defined in Section 422 of the Code; or
(b) Nonstatutory Stock Options ("NSOs") which are intended to be options
that do not qualify as "incentive stock options" under Section 422 of the Code.
The individual Option Agreement(s) (as defined in Section 5.3) shall
clearly designate whether the Stock Options granted are ISOs or NSOs. Subject
to other provisions of the Plan, a Participant may receive ISOs and NSOs at the
same time, provided that the ISOs and NSOs are clearly designated as such.
Except as otherwise expressly provided herein, all of the provisions and
requirements of the Plan relating to Stock Options shall apply to ISOs and
NSOs.
3
<PAGE> 4
4. ADMINISTRATION
4.1 Committee. The Plan shall be administered by the Employee Stock
Option Committee of the Board. The Committee shall consist of at least two
members of the Board of Directors who are not employed by the Company and who
shall be Disinterested Persons. Subject to the provisions of the Plan, the
Committee shall have full authority to administer the Plan, including authority
to grant awards under the Plan and determine the terms thereof, to interpret
and construe any provision of the Plan and any Stock Option, Limited Right or
Supplemental Bonus granted thereunder, to adopt such rules and regulations for
administering the Plan, including those it may deem necessary in order to
comply with the requirements of the Code or in order that Stock Options that
are intended to be ISOs will be classified as incentive stock options under the
Code, or in order to conform to any regulation or to any change in any law or
regulation applicable thereto, and to make all other decisions and
determinations under the Plan.
4.2 Actions of Committee. All actions taken and all interpretations and
determinations made by the Committee in good faith (including determinations of
Fair market Value) shall be final and binding upon all Participants, the
Company and all other interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan, and all members of the Committee shall, in
addition to their rights as directors, be fully protected by the Company with
respect to any such action, determination or interpretation.
5. ELIGIBILITY AND PARTICIPATION
5.1 Eligible Employees. Grants of Stock Options, Limited Rights and
Supplemental Bonuses may be made to Employees. Any director of the Company or
of a Participating Subsidiary who is also an Employee shall also be eligible,
but directors who are not Employees shall not be eligible, to receive Stock
Options, Limited Rights or Supplemental Bonuses under the Plan. The Committee
shall from time to time determine the Employees to whom Stock Options shall be
granted, the number of shares of Common Stock subject to each Stock Option to
be granted to each such Employee, the Option Price of such Stock Options and
the terms and conditions of such Stock Options, subject to the provisions of
this Plan.
5.2 Option Price. Except as otherwise provided in Section 7.8, the Option
Price of any ISO or NSO shall not be less than the Fair Market Value of a share
of Common Stock on the date on which the Stock Option is granted and shall not
be less than par value of Common Stock. If an ISO is granted to an Employee
who then owns stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company or any parent or subsidiary corporation
of the Company, the Option Price of such ISO shall be at least 110% of the Fair
Market Value of the Common Stock subject to the ISO on the date such ISO is
granted, and such ISO shall not be exercisable after five years after the date
on which it was granted.
5.3 Option Agreement. Each Stock Option shall be evidenced by a written
agreement ("Option Agreement") containing such terms and provisions as the
Committee may determine, subject to the provisions of this Plan.
4
<PAGE> 5
6. SHARES OF COMMON STOCK SUBJECT TO THE PLAN
6.1 Maximum Number. The maximum aggregate number of shares of Common
Stock that may be issued under the Plan shall be 1,400,000 shares, subject to
adjustment as provided in Section 6.2. Such shares may be authorized and
unissued shares or may be treasury shares. The aggregate Fair market Value
(determined as of the time an ISO is granted) of the Common Stock as to which
all ISOs granted to an individual may first become exercisable in a particular
calendar year may not exceed $100,000; provided that to the extent that Stock
Options intended to be ISOs (together with all incentive stock options granted
under other Company plans to such individual) become exercisable in a given
year in excess of $100,000, such Stock Options shall be deemed to be NSOs and
shall be exercisable as such. If any shares of Common Stock subject to Stock
Options are not purchased or otherwise paid for before such Stock Options
expire or otherwise terminate, unless such Stock Options are surrendered upon
exercise of Limited Rights, such shares may again be made subject to Stock
Options or otherwise issued under the Plan. Shares shall be treated as issued
under the Plan and counted against the maximum number set forth in this Section
6.1, including with respect to the payment of Supplemental Bonuses, in a manner
that complies with applicable requirements under Rule 16b-3 under the Exchange
Act.
6.2 Capital Changes. In the event any changes are made to the shares of
Common Stock (whether by reason of merger, consolidation, reorganization,
recapitalization, stock dividend in excess of one percent (1%) at any single
time, stock split, combination of shares, exchange of shares, extraordinary
cash dividend, change in corporate structure or otherwise), the Committee
shall, in order to prevent dilution or enlargement of Participants' rights,
make appropriate adjustments in: (i) the number and kind of shares theretofore
made subject to Stock Options, and in the Option Price of said shares; and (ii)
the aggregate number and kind of shares which may be issued under the Plan. If
any of the foregoing adjustments shall result in a fractional share, the
fraction shall be disregarded, and the Company shall have no obligation to make
any cash or other payment with respect to such a fractional share.
7. EXERCISE OF STOCK OPTIONS
7.1 Time of Exercise. Subject to the provisions of the Plan, including
without limitation Section 7.7, the Committee, in its discretion, shall
determine the time when a Stock Option, or a portion of a Stock Option, shall
become exercisable, and the time when a Stock Option, or a portion of a Stock
Option, shall expire. Such time or times shall be set forth in the Option
Agreement evidencing such Stock Option. An ISO shall expire, to the extent not
exercised, no later than the tenth anniversary of the date on which it was
granted, and an NSO shall expire, to the extent not exercised, no later than 10
years and one day after the date on which it was granted. The Committee may
accelerate the vesting of any Participant's Stock Option by giving written
notice to the Participant. Unless otherwise determined by the Committee, the
acceleration of the exercise period of a Stock Option shall not affect the
expiration date of that Stock Option.
7.2 Surrender of Shares in Payment of Exercise Price. The Committee, in
its sole discretion, may permit a Participant to surrender to the Company
shares of Common Stock as part or full payment for the exercise of a Stock
Option. Such surrendered shares shall be valued at their Fair Market Value on
the date of exercise. Unless otherwise determined by the Committee, any such
shares surrendered by the Participant shall have been held by him for at least
six months prior to surrender.
7.3 Use of Promissory Note; Exercise Loans. The Committee may, in its
sole discretion, impose terms and conditions, including conditions relating to
the manner and timing of payments of the Option Price, on the exercise of Stock
Options. Such terms and conditions may include, but are not limited to,
permitting a
5
<PAGE> 6
Participant to deliver to the Company his promissory note as payment for the
exercise of a Stock Option; provided that, with respect to any promissory note
given as payment or partial payment for the exercise of an ISO, all terms of
such note shall be determined at the time the Stock Option is granted and set
forth in the Option Agreement. The Committee, in its sole discretion, may
authorize the Company to make a loan to a Participant in connection with the
exercise of Stock Options, or authorize the Company to arrange or guaranty
loans to a Participant by a third party, including in connection with
broker-assisted cashless exercises. The foregoing notwithstanding, a
Participant shall pay at least the par value of the Common Stock to be acquired
upon exercise of a Stock Option in the form of lawful consideration under the
Delaware General Corporation law prior to issuance of such shares.
7.4 Stock Restriction Agreement. The Committee may provide that shares of
Common Stock issuable upon the exercise of a Stock Option shall, under certain
conditions, be subject to restrictions whereby the Company has a right of first
refusal with respect to such shares or a right or obligation to repurchase all
or a portion of such shares, which restrictions may survive a Participant's
term of employment with the Company. The acceleration of time or times at
which the Stock Option becomes exercisable may be conditioned upon the
Participant's agreement to such restrictions.
7.5 Termination of Employment Before Exercise. If a Participant's
employment with the Company or a Participating Subsidiary shall terminate for
any reason other than the Participant's disability, any ISO then held by the
Participant, to the extent then exercisable under the applicable Option
Agreement(s), shall remain exercisable after the termination of his employment
for a period of three months. If the Participant's employment is terminated
because the Participant is disabled within the meaning of Section 22(e)(3) of
the Code, any ISO then held by the Participant, to the extent then exercisable
under the applicable Option Agreement(s), shall remain exercisable after the
termination of his employment for a period of one year (but in no event beyond
ten years from the date of grant of the ISO). If the Stock Option is not
exercised during the applicable period, it shall be deemed to have been
forfeited and of no further force or effect. The period and extent to which an
NSO may be exercised following termination of employment shall be determined by
the Committee.
7.6 Grant of Supplement Bonuses. The Committee, either at the time of
grant or at any time prior to exercise of any NSO or Limited Right, may provide
for a Supplemental Bonus from the Company or Participating Subsidiary in
connection with a specified number of shares of Common Stock then purchasable,
or which may become purchasable, under an NSO, or a specified number of Limited
Rights which may be or become exercisable. A Supplemental Bonus shall be
automatically payable upon the exercise of the NSO or Limited Right with regard
to which such the Supplemental Bonus was granted. A Supplemental Bonus shall
not exceed the amount necessary to reimburse the Participant for the income tax
liability incurred by him upon the exercise of the NSO or upon the exercise of
such Limited Right, calculated using the maximum combined federal and
applicable state income tax rates then in effect and taking into account the
tax liability arising from the Participant's receipt of the Supplemental Bonus,
all as determined by the Committee. The Committee may, in its discretion,
elect to pay any part or all of the Supplemental Bonus in: (i) cash; (ii)
shares of Common Stock; or (iii) any combination of cash and shares of Common
Stock; provided that bonuses payable in respect of Limited Rights shall be
payable only in cash. The Committee's election shall be made by giving written
notice to the Participant not later than 90 days after the related exercise,
which notice shall specify the portion which the Committee elects to pay in
cash, shares of Common Stock or a combination thereof. In the event any
portion is to be paid in shares of Common Stock, the number of shares to be
delivered shall be determined by dividing the amount which the Committee elects
to pay in shares of Common Stock by the Fair Market Value of one share of
Common Stock on the date of exercise. Any
6
<PAGE> 7
fractional share resulting from any such calculation shall be disregarded.
Said shares, together with any cash payable to the Participant, shall be
delivered within said 90-day period.
7.7 Option Vesting Upon Change of Control of the Company. In the event of
a Change of Control of the Company the vesting of Stock Options granted
pursuant to the Plan shall automatically be accelerated, so that all Stock
Options outstanding at the time of such Change of Control will be exercisable
immediately except as otherwise provided in Section 2.1.
7.8 Stand-Alone, Additional, Tandem, and Substitute Awards. Awards
granted under the Plan may, in the discretion of the Committee, be granted
either alone or in addition to, in tandem with, or in substitution for, any
other award granted under the Plan or any other plan of the Company or any
Participating Subsidiary or any other right of a Participant to receive payment
from the Company or any Participating Subsidiary. If an award is granted in
substitution for another such award, the Committee shall require the surrender
of such other award in consideration for the grant of the new award. Awards
granted in addition to or in tandem with other awards may be granted either as
of the same time as or a different time from the grant of such other awards.
The per share Option Price of any Stock Option:
(A) Granted in substitution for an outstanding award shall be not
less than the lesser of the Fair Market Value of a share of Common Stock
at the date such substitute award is granted or such Fair Market Value at
that date reduced to reflect the fair market value (as determined by the
Committee) at that date of the award required to be surrendered by the
Participant as a condition to receipt of the substitute award; or
(B) Retroactively granted in tandem with an outstanding award shall
be not less than the lesser of the Fair Market Value of a share of Common
Stock at the date of grant of the later award or at the date of grant of
the earlier award.
Except for the Option Price required to be paid upon the exercise of Stock
Options and except as provided in this Section 7.8, only services may be
required as consideration for the grant of any award under the Plan.
8. LIMITED RIGHTS
8.1 Grant of Limited Rights. The Committee may in its discretion grant
Limited Rights to a Participant concurrently with the grant of each ISO or at
any time with respect to any NSO. Such Limited Rights shall be exercisable
with respect to the number of shares of Common Stock which are, or may become,
purchasable under any such Stock Option. The Committee may, in its discretion,
specify the terms and conditions of such rights, including without limitation
the date or dates upon which such rights shall expire and become void and
unexercisable, except that Limited Rights granted with respect to an ISO shall
only be exercisable, and shall expire, at the time or times the ISO is
exercisable and expires, respectively. In any event, a Limited Right shall not
be exercisable within six months from the date of grant of the Limited Right.
Each Participant to whom Limited Rights are granted shall be given written
notice advising him of the grant of such rights and specifying the terms and
conditions of the rights, which shall be subject to all the provisions of this
Plan.
8.2 Exercise of Limited Rights. Subject to the limitations set forth in
Section 8.1, a Limited Right may be exercised only during the period beginning
on the first day following the occurrence of a Change of Control and ending on
the sixtieth day following such date; provided, however, that if the Change of
Control occurs prior to the expiration of six months after the date of grant of
a Limited Right, then such Limited
7
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Right shall be exercisable for a period of 60 days following expiration of such
six-month period. Upon the occurrence of a tender or exchange offer
constituting a Change of Control, a Limited Right may be exercised in such
manner regardless of whether the Board supports or opposes such tender or
exchange offer. A Participant shall exercise his Limited Rights by delivering
a written notice to the Committee specifying the number of shares with respect
to which he exercises Limited Rights and agreeing to surrender the right to
purchase an equivalent number of shares of Common Stock subject to his Stock
Option. If a Participant exercises Limited Rights, payment of his Limited
Rights shall be made in accordance with Section 8.3 on or before the thirtieth
day after the date of exercise of the Limited Rights. A Limited Right shall
remain exercisable during the exercise periods specified in accordance with
Section 8.1 and this Section in the event of a termination of employment of the
Participant holding the Limited Right after a Change of Control.
Notwithstanding the above, upon a termination of the employment of the holder
of the Limited Right before the occurrence of any Change of Control, the
Limited Right shall expire immediately.
8.3 Form of Payment. If a Participant elects to exercise Limited Rights
as provided in Section 8.2, the Company shall pay to the Participant in cash
the amount set forth in Section 2.7 hereof, calculated with respect to the
shares as to which the Participant has exercised Limited Rights, within thirty
days after the date of exercise of the Limited Rights. If such amount is not
paid in full within the prescribed period, the Company shall be liable to such
Participant for the costs of collection of such amount, including attorney's
fees.
8.4 Termination. When a Limited Right is exercised, the Stock Option to
which it relates, if any, shall cease to be exercisable to the extent of the
number of shares of Common Stock with respect to which such Limited Right was
exercised. Upon the exercise or termination of a Stock Option, any Limited
Right granted with respect thereto shall terminate to the extent of the number
of shares as to which such Stock Option was exercised or terminated.
9. NO CONTRACT OF EMPLOYMENT
Nothing in this Plan shall confer upon the Participant the right to
continue in the employ of the Company, or any Participating Subsidiary, nor
shall it interfere in any way with the right of the Company, or any such
Participating Subsidiary, to discharge the Participant at any time for any
reason whatsoever, with or without cause. Nothing in this Article 9 shall
affect any rights or obligations of the Company or any Participant under any
written contract of employment.
10. NO RIGHTS AS A STOCKHOLDER
A Participant shall have no rights as a stockholder with respect to any
shares of Common Stock subject to a Stock Option, until such Stock Option is
exercised. Except as provided in Section 6.2, no adjustment shall be made in
the number of shares of Common Stock issued to a Participant, or in any other
rights of the Participant upon exercise of a Stock Option by reason of any
dividend, distribution or other right granted to stockholders for which the
record date is prior to the date of exercise of the Participant's Stock Option.
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11. NON-TRANSFERABILITY
No Stock Option, Limited Right or Supplemental Bonus granted under this
Plan, nor any other rights acquired by a Participant under this Plan, shall be
assignable or transferable by a Participant, other than by will or the laws of
descent and distribution, or pursuant to a qualified domestic relations order
as defined under the Code or Title I of the Employee Retirement Income Security
Act of 1974, and any ISO shall be exercisable, during the Participant's
lifetime, only by him. In the event of a Participant's death, the Stock Option
or any Limited Right or Supplemental Bonus may be exercised by the personal
representative of the Participant's estate or, if no personal representative
has been appointed, by the successor or successors in interest determined under
the Participant's will or under the applicable laws of descent and
distribution.
12. COMPLIANCE WITH RULE 16B-3
It is the intent of the Company that the Plan comply in all respects with
Rule 16b-3 under the Exchange Act in connection with any award granted to a
person who is subject to Section 16 of the Exchange Act. Accordingly, if any
provision of the Plan or any agreement hereunder does not comply with the
requirements of Rule 16b-3 as then applicable to any such person, such
provision shall be construed or deemed amended to the extent necessary to
conform to such requirements with respect to such person.
13. AMENDMENT
The Company by action of the Board may amend, modify or terminate this
Plan at any time or, by action of the Committee may amend, modify or terminate
any outstanding Option Agreement, except that any such amendment, modification
or termination of the Plan shall be subject to the approval of the Company's
stockholders within one year after such Board action if such stockholder
approval is required by any federal or state law or regulation or the rules of
any stock exchange or automated quotation system on which the Common Stock may
be listed or quoted, or if the Board in its discretion determines that
obtaining such stockholder approval is for any reason advisable. Moreover, no
action may be taken by the Company without the consent of the affected
Participant which will materially impair the rights of such Participant under
any award then outstanding or which will prevent an ISO from continuing to
qualify under Section 422 of the Code.
14. REGISTRATION OF OPTIONED SHARES
No Stock Option shall be exercisable unless the Company's sale of such
optioned shares is pursuant to an applicable effective registration statement
under the Securities Act of 1933, as amended, or unless, in the opinion of
counsel to the Company, the Company's sale of such optioned shares would be
exempt from the registration requirements of the Securities Act of 1933, as
amended, and unless, in the opinion of such counsel, such sale would be exempt
from the registration or qualification requirements of applicable state
securities laws.
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<PAGE> 10
15. WITHHOLDING TAXES
The Company or a Participating Subsidiary may take such steps as the
Committee may deem necessary or appropriate for the withholding of any taxes
which the Company or the Participating Subsidiary is required by any law or
regulation or any governmental authority, whether federal, state or local,
domestic or foreign, to withhold in connection with any Stock Option, Limited
Right or Supplemental Bonus, and to take such other action as the Committee may
deem necessary or advisable to enable the Company and Participants to satisfy
obligations for the payment of tax liabilities in excess of such withholding
obligations relating to any such award. This authority shall include authority
to withhold or receive shares or other property and to make cash payments in
respect thereof in satisfaction of Participant's tax obligations.
16. FINANCING ARRANGEMENTS
The Committee, in its discretion, may enter into arrangements with one or
more banks, brokers or other financial institutions to facilitate the exercise,
and the disposition of shares acquired upon exercise, of Stock Options or
Supplemental Bonuses, including, without limitation, arrangements for the
simultaneous exercise of Stock Options (including a related Supplemental
Bonus), and sale of the shares acquired upon such exercise.
17. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board nor the submission of the
Plan to stockholders of the Company for approval shall be construed as creating
any limitations on the power or authority of the Board to adopt such other or
additional incentive or other compensation arrangements of whatever nature as
the Board may deem necessary or desirable or preclude or limit the continuation
of any other plan, practice or arrangement for the payment of compensation or
fringe benefits to employees generally, or to any class or group of employees,
which the Company or any subsidiary now has lawfully put into effect,
including, without limitation, any retirement, pension, savings and stock
purchase plan, insurance, death and disability benefits and executive
short-term incentive plans.
18. EFFECTIVE DATE
This Plan was adopted by the Board of Directors and became effective upon
approval by the Company's stockholders at the annual stockholders' meeting on
August 6, 1992. This Plan was amended by the Board of Directors and the
stockholders of the Company effective June 4, 1996. No ISO shall be granted
subsequent to ten years after the effective date of the Plan. Unless earlier
terminated by the Board, the Plan shall terminate when no shares of Common
Stock remain reserved and available for issuance and the Company has no further
obligation with respect to any award granted under the Plan.
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EXHIBIT 5.1
July 2, 1996
Marcum Natural Gas Services, Inc.
1675 Broadway, Suite 2150
Denver, Colorado 80202
Re: Registration Statement on Form S-8 Relating to the
Marcum Natural Gas Services, Inc.
Amended and Restated 1991 Stock Option Plan
Gentlemen:
We have acted as counsel for Marcum Natural Gas Services, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, on a Registration Statement on Form S-8
("Registration Statement") of the issuance and sale of 500,000 additional
shares of the Company's Common Stock, par value $.01 per share ("Shares"), to
be offered, issued and sold by the Company pursuant to the Marcum Natural Gas
Services, Inc. Amended and Restated 1991 Stock Option Plan ("Plan").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Company's
Restated Certificate of Incorporation, as amended, the Company's Bylaws, as
amended, the minutes of proceedings of the Board of Directors of the Company,
the Registration Statement, including the exhibits thereto, the Plan and such
other documents as we have deemed necessary for the purpose of rendering the
opinion below.
In rendering the opinion below, we have assumed that (a) upon issuance of
the Shares pursuant to the Plan, the Company will have a sufficient number of
authorized but unissued shares of Common Stock not restricted for other
purposes to permit the issuance of the Shares, and (b) no changes occur in the
applicable law or pertinent facts.
Based upon and subject to the foregoing and the further qualifications and
limitations set forth below, we are of the opinion that the Shares, when issued
and sold by the Company against payment therefor in accordance with the terms
of the Plan and the Registration Statement, will be validly issued, fully paid
and non-assessable.
This opinion is limited to the federal laws of the United States and to
the General Corporation Law of the State of Delaware in effect as of the date
hereof. This opinion is furnished by us solely for the benefit of the Company
in connection with the issuance of the Shares pursuant to the Plan and the
filing of the
<PAGE> 2
Marcum Natural Gas Services, Inc.
July 2, 1996
Page 2
Registration Statement. This opinion may not be relied upon by
any other person or assigned, quoted or otherwise used without our prior
written consent.
Notwithstanding the foregoing, we hereby consent to the filing of this
opinion as an exhibit to the Registration Statement.
Very truly yours,
EMENS, KEGLER, BROWN, HILL & RITTER
CO., L.P.A.
By: /s/ Paul R. Hess
----------------------------
Paul R. Hess, Vice President
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in this Registration
Statement of Marcum Natural Gas Services, Inc. on Form S-8 of our report dated
March 4, 1996 appearing in the Annual Report on Form 10-KSB of Marcum Natural
Gas Services, Inc. for the year ended December 31, 1995.
/s/ Deloitte & Touche LLP
- -------------------------
Denver, Colorado
July 2, 1996
