<PAGE> 1
As filed with the Securities and Exchange Commission on December 30, 1997
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. 1998 Employee Stock Purchase Plan
-------------------------------------------------------------------
(FULL TITLE OF THE PLAN)
A. Bradley Gabbard, Executive 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)
Copies to: Paul R. Hess, Esq.
Kegler, Brown, Hill & Ritter Co., L.P.A.
65 East State Street, Suite 1800
Columbus, Ohio 43215
(614) 462-5400
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 $.01
per share 200,000 shares $0.54 $108,000 $31.86
==================================================================================================================================
</TABLE>
(1) This Registration Statement also covers such additional number of shares of
Common Stock, par value $.01 per share ("Common Stock"), and other
securities of Marcum Natural Gas Services, Inc. as may be offered or issued
pursuant to the anti-dilution provisions of the Marcum Natural Gas
Services, Inc. 1998 Employee Stock Purchase Plan (the "Plan") that is
covered by this Registration Statement.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to paragraphs (c) and (h) of Rule 457 under the Securities Act of 1933, as
amended (the "Securities Act"), on the basis of fifty percent (50%) of the
market value of the Common Stock (the offering price of shares of Common
Stock pursuant to the Plan), which market value is based on the average of
the high and low sale price of the Common Stock as reported on the Nasdaq
National Market on December 26, 1997.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been previously filed by Marcum
Natural Gas Services, Inc., a Delaware corporation and a small business issuer
(the "Registrant" or the "Small Business Issuer"), with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference
in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1996;
(b) The Registrant's Quarterly Reports on Form 10-QSB for the quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997;
(c) The Registrant's Current Report on Form 8-K dated June 27, 1997;
(d) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December
31, 1996; and
(e) The description of the Common Stock, par value $.01 per share
("Common Stock"), of Registrant contained in the Registrant's Registration
Statement on Form 8-A filed with the Commission on May 20, 1993, together with
any amendment or report filed with the Commission for the purpose of updating
such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
of this Registration Statement from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein 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 is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statements so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is incorporated under the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware provides in
regard to indemnification of directors and officers as follows:
Section 145. Indemnification of Officers, Directors, Employees and
Agents; Insurance.
(a) A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer,
<PAGE> 4
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendre or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that this conduct
was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and
<PAGE> 5
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; reference to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
In accordance with Section 102(b)(7) of the General Corporation Law of
the State of Delaware, the Registrant's Restated Certificate of Incorporation,
as amended, eliminates the personal liability of a director of the Registrant to
the Registrant or its stockholders for monetary damages for breach of their
fiduciary duties as a director, except for liability for (i) any breach of the
director's duty of loyalty to the Registrant or its stockholders; (ii) acts and
omissions not in good faith or which involved intentional misconduct or a
knowing violation of the law; (iii) unlawful payment of dividends or unlawful
stock purchases or redemptions; or (iv) any transaction for which the director
derived an improper personal benefit.
Article Ninth of the Registrant's Restated Certificate of
Incorporation, as amended, provides in regard to indemnification of directors
and officers as follows:
A. The corporation may indemnify or agree to indemnify any person who
was or is a party or is threatened to be made a party, to any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, other than an action by or in the right of the
corporation, by reason of the fact he is or was a director, officer, employee,
or agent of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, or agent of another
corporation (including a subsidiary of this corporation), domestic or foreign,
nonprofit or for profit, partnership, joint venture, trust, or other enterprise,
against expenses, including attorneys' fees, judgments, fines, and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
reasonably cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
B. The corporation may indemnify or agree to indemnify any person who
was or is a party, or is threatened to be made a party to any threatened,
pending, or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, trustee, officer, employee, or
agent of another corporation (including a subsidiary of this corporation),
domestic or foreign, nonprofit or for profit, partnership, joint venture, trust,
or other enterprise against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interest of the corporation, except that no
indemnification shall be made in respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless, and only to the extent that, the Court of Chancery, or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses as the Court of Chancery or other such court shall deem proper.
C. To the extent that a director, trustee, officer, employee, or agent
has been successful on the merits or otherwise in defense of any action, suit,
or proceeding referred to in sections A. and B. of this Article, or in defense
of any claim, issue, or matter therein, he shall be indemnified against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection therewith.
<PAGE> 6
D. Any indemnification under sections A. and B. of this Article, unless
ordered by a court, shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director,
trustee, officer, employee, or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in sections A. and B. of
this Article. Such determination shall be made (1) by a majority vote of a
quorum consisting of directors of the indemnifying corporation who were not and
are not parties to or threatened with any such action, suit, or proceeding, or
(2) if such a quorum is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by independent legal
counsel other than an attorney, or a firm having associated with it an attorney,
who has been retained by or who has performed services for the corporation or
any person to be indemnified within the past five (5) years, or (3) by the
stockholders, or (4) by the Court of Chancery or the court in which such action,
suit, or proceeding was brought. Any determination made by the disinterested
directors under section D.(1) or by independent legal counsel under section
D.(2) of this Article shall be promptly communicated to the person who
threatened or brought the action or suit by or in the right of the corporation
under Section B. of this Article, and within ten (10) days after receipt of such
notification, such person shall have the right to petition the Court of Chancery
or the court in which such action or suit was brought to review the
reasonableness of such determination.
E. No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (1) for any breach of the director's
duty of loyalty to the corporation or its stockholders; (2) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law; (3) under Section 174 of the Delaware General Corporation Law;
or (4) for any transaction from which the director derived an improper personal
benefit.
F. Expenses, including attorneys' fees, incurred in any action, suit,
or proceeding referred to in sections A. and B. of this Article, may be paid by
the corporation in advance of the final disposition of such action, suit, or
proceedings upon receipt of a written undertaking by or on behalf of the
director, trustee, officer, employee, or agent to repay such amount, if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this Article. If a majority vote of a quorum of
disinterested directors so directs by resolution, said written undertaking need
not be submitted to the corporation. Such a determination that a written
undertaking need not be submitted to the corporation shall in no way affect the
entitlement of indemnification as authorized by this Article.
G. The indemnification and advancement of expenses provided in this
Article shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the Restated
Certificate or the bylaws or any agreement, vote of stockholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
H. The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, trustee, officer, employee, or agent of another
corporation (including a subsidiary of this corporation), domestic or foreign,
nonprofit or for profit, partnership, joint venture, trust, or other enterprise
against any liability asserted against him and incurred by him in any such
capacity or arising out of his status as such whether or not the corporation
would have the power to indemnify him against such liability under this Article.
I. For purposes of this Article, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee, or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, shall stand in the same
position under the provisions of this Article with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
J. For purposes of this Article, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee, or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
Article.
<PAGE> 7
K. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
In addition, the Registrant maintains a directors' and officers'
liability insurance policy covering its directors and officers against certain
losses, including liabilities under the Securities Act, incurred by them in such
capacities to the extent such losses are not indemnified by the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
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. 1998 Employee Stock Purchase Plan.
5.1 Opinion of Kegler, Brown, Hill & Ritter Co., L.P.A.
23.1 Consent of 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 on the Signature Page of this Registration
Statement).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Small Business Issuer will:
(1) File, during any period in which it offers or sells securities,
a post-effective amendment to this Registration Statement to:
(i) Include any additional or changed material information on
the plan of distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new Registration Statement of the
securities offered, and the offering of the securities at that
time to be the initial bona fide offering.
(3) File a post-effective amendment to remove from registration any
of the securities being registered that remain unsold at the
end of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the Small Business Issuer pursuant to the foregoing
provisions, or otherwise, the Small Business Issuer 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 Small Business Issuer of expenses incurred or paid by a
director, officer or controlling person of the Small Business Issuer 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 Small Business Issuer will, unless in the opinion of its counsel
the matter has been settled by controlling
<PAGE> 8
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 29th day of December, 1997.
MARCUM NATURAL GAS SERVICES, INC.
By: /s/ W. Phillip Marcum
-----------------------------------
W. Phillip Marcum, President
The Registrant and each person whose signature appears below hereby
constitutes and appoints W. Phillip Marcum, A. Bradley Gabbard and Paul R. Hess,
and each of them, with full power to act without the joinder others, as his or
its true and lawful attorneys-in-fact and agents, 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 all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes 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, as amended,
this Registration Statement on Form S-8 has been signed below 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 December 29, 1997
- ---------------------------- and Director (Principal executive
W. Phillip Marcum officer)
/s/ A. Bradley Gabbard Executive Vice President, Chief Financial December 29, 1997
- ---------------------------- Officer, Treasurer and Director
A. Bradley Gabbard (Principal financial officer)
/s/ Gary J. Zuiderveen Principal Accounting Officer, Controller December 29, 1997
- ---------------------------- and Secretary (Principal accounting
Gary J. Zuiderveen officer)
/s/ U. E. Patrick Director December 29, 1997
- ----------------------------
U. E. Patrick
/s/ Basil M. Briggs Director December 29, 1997
- ----------------------------
Basil M. Briggs
/s/ Robert Lloyd Director December 29, 1997
- ----------------------------
Robert Lloyd
/s/ Anthony D. Pell Director December 29, 1997
- ----------------------------
Anthony D. Pell
/s/ Albert F. Thomasson Director December 29, 1997
- ----------------------------
Albert F. Thomasson
/s/ Ronald W. McKee Director December 29, 1997
- ----------------------------
Ronald W. McKee
</TABLE>
<PAGE> 10
MARCUM NATURAL GAS SERVICES, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
FORM S-8
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER 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. 1998 Employee Stock Purchase Plan
5.1 Opinion of Kegler, Brown, Hill & Ritter Co., L.P.A.
23.1 Consent of 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 on the Signature Page of this Registration Statement).
</TABLE>
<PAGE> 1
EXHIBIT 4.3
MARCUM NATURAL GAS SERVICES, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The Marcum Natural Gas Services, Inc. 1998 Employee Stock
Purchase Plan (the "Plan") is intended to provide a means for employees of
Marcum Natural Gas Services, a Delaware corporation (the "Company"), and its
subsidiaries to build equity in, and to participate in the growth in value of,
the Company through the purchase of shares of Common Stock of the Company, as
well as to provide an incentive for the employees to contribute more
significantly to the Company's long-term success. The Plan is not intended to
qualify as an "employee stock purchase plan" under Section 423 of the Internal
Revenue Code of 1986, as amended.
2. DEFINITIONS. As used in this Plan,
(a) "Account" means an account established for a Participant
pursuant to the Plan.
(b) "Agent" means American Securities Transfer & Trust, Inc., or
such other bank, trust company, broker, transfer agent or other agent or agents
selected by the Board to carry out specified functions under the Plan. An
affiliate of the Company may serve as the Agent.
(c) "Board" means the Board of Directors of the Company.
(d) "Committee" means a committee of at least three members of the
Board appointed by the Board to administer the Plan.
(e) "Common Stock" means the Common Stock, par value $.01 per share,
of the Company.
(f) "Company" means Marcum Natural Gas Services, Inc., a Delaware
corporation.
(g) "Commencement Date" means the first business date of a Plan
Period.
(h) "Compensation" means the total cash compensation paid to a
Participant by the Company or any of its Subsidiaries, including the total base
wages or salary, overtime, bonuses and sales commissions.
(i) "Employee" means any person who is employed on a full-time basis
by the Company or any of its Subsidiaries.
(j) "Market Value" means, as of any date, the closing sale price of
the Common Stock as of such date as reported on the Nasdaq Stock Market or, if
the Common Stock is listed, quoted or traded on any other quotation system
approved by the National Association of Securities Dealers, Inc. or on a
national securities exchange which constitutes the primary trading market for
the Common Stock, the closing sale price of the Common Stock on such quotation
system or national securities exchange as of such date; provided, however, that
if no sale of Common Stock was reported on such date, the fair market value
shall be equal to the closing sale price of the Common Stock on the last date on
which the Common Stock was traded.
<PAGE> 2
(k) "Participant" means an eligible Employee who elects to
participate in the Plan in accordance with the provisions of the Plan.
(l) "Pay Date" means the regular date on which the Company or any of
its Subsidiaries pays Compensation to Employees.
(m) "Plan" means the Marcum Natural Gas Services, Inc. 1998 Employee
Stock Purchase Plan.
(n) "Plan Period" means each one (1) month period during which Plan
Shares are offered for purchase to Employees Pursuant to the Plan, as described
in Section 5 hereof.
(o) "Plan Shares" means the shares of Common Stock which are
reserved for issuance or are issued by the Company to Participants pursuant to
the Plan.
(p) "Purchase Date" means the last business date of a Plan Period.
(q) "Purchase Price" means, with respect to Plan Shares in any Plan
Period, an amount equal to the lesser of (i) 50% of the Market Value of the
Common Stock on the Purchase Date, or (ii) 50% of the Market Value of the Common
Stock on the Commencement Date.
(r) "Subsidiary" means any domestic or foreign wholly-owned
subsidiary of the Company or of any wholly-owned Subsidiary and any other
domestic or foreign corporation or other legal entity in which the Company owns,
directly or indirectly, an equity interest and which has been designated by the
Committee as an entity whose employees may participate in the Plan, whether or
not such entity now exists or is hereafter organized or acquired by the Company
or a Subsidiary.
3. ADMINISTRATION.
(a) AUTHORITY OF BOARD. The Plan shall be administered by the Board
or by a Committee consisting of three or more members of the Board appointed by
the Board. The Board shall have the full and exclusive authority, in its sole
discretion, to administer and control the operation of the Plan, including, but
not limited to, the power to interpret, construe and apply the terms and
provisions of the Plan, to determine eligibility for participation under the
Plan, to adjudicate all disputed claims made under the Plan, to make all other
determinations necessary or advisable for the administration of the Plan, and to
adopt such rules and regulations for administering the Plan as it may deem
necessary or appropriate. All findings, decisions and determinations made by the
Board shall, to the fullest extent permitted by law, be final, binding and
conclusive on all persons.
(b) APPOINTMENT OF COMMITTEE AND/OR AGENT. The Board may appoint a
Committee and/or an Agent and delegate to the Committee and/or the Agent all or
any part of its powers and duties under the Plan, except its authority to amend
or terminate the Plan or to adjust the Purchase Price, in order to facilitate
the purchase and sale of Plan Shares and to provide for the day-to-day
administration of the Plan.
(c) EXPENSES. Except as provided in Section 10(d) hereof, all fees
and expenses of the Plan shall be paid by the Company, including, without
limitation, the fees and expenses of the Agent.
<PAGE> 3
(d) LIABILITY OF BOARD AND COMMITTEE; INDEMNIFICATION. No member of
the Board or of any Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any rights granted or Plan Shares
issued under the Plan. In addition to such other rights of indemnification as a
member of the Board may have as a member of the Board or as a member of the
Committee, the Company shall indemnify the members of the Board and the members
of the Committee against all costs and expenses reasonably incurred by them in
connection with any action, suit or proceeding to which they or any of them may
be a party by reason of any action taken or failure to act under or in
connection with the Plan, and against all amounts paid by them in satisfaction
of a judgment in any action, suit or proceeding, except a judgment based upon a
finding of bad faith. Upon the institution of any such action, suit or
proceeding, a Board or Committee member shall notify the Company in writing,
giving the Company an opportunity at its own expense to handle and defend the
same before such Board or Committee member undertakes to handle it on his own
behalf.
4. NUMBER OF PLAN SHARES.
(a) PLAN SHARES. The Company shall reserve 200,000 shares of Common
Stock (the "Plan Shares") for issuance to and purchase by Participants under
this Plan, subject to adjustment pursuant to Section (c) below, which shall
constitute the maximum number of shares of Common Stock which the Company can
issue to Participants pursuant to the Plan. The Plan Shares may be shares of
Common Stock now or hereafter authorized but unissued, or shares of Common Stock
already authorized, issued and held in treasury by the Company.
(b) PRO-RATION OF PURCHASE RIGHTS. If the total number of Plan
Shares which are to be purchased by Participants during any Plan Period in
accordance with the terms of the Plan exceed the number of Plan Shares then
remaining available for issuance under the Plan, then the Board shall make a pro
rata allocation of the Plan Shares remaining available in as nearly a uniform
and equitable manner as practicable. In such event, the payroll deductions to be
made pursuant to the Plan which would otherwise become effective on such date
shall be reduced accordingly. The Company shall give written notice of such
reduction to each Participant affected.
(c) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The Board shall make
or provide for such adjustments in the Purchase Price or in the number or kind
of shares of Common Stock or other securities that shall constitute Plan Shares
as the Board, in its sole discretion, exercised in good faith, determines is
required to reflect, and to prevent any enlargement or diminution of rights of
Participants due to, any (a) stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Company, (b)
merger, consolidation, combination, reorganization or partial or complete
liquidation, (c) issuance of rights or warrants to purchase stock, or (d) other
corporate transaction or event having an effect similar to any of the foregoing.
5. PLAN PERIODS. Plan Shares shall be offered for purchase under the
Plan through a series of successive Plan Periods. Each Plan Period shall have a
maximum duration of one (1) month. Unless otherwise designated by the Board,
each Plan Period shall begin on the first business day of each month, the
Commencement Date, and end on the last business day of that month, the Purchase
Date. As promptly as practicable after each Purchase Date on which a purchase of
Plan Shares occurs, the Company shall issue Plan Shares on behalf of the
Participants and deliver to the Agent on their behalf one or more certificates,
which may be in the name of the Agent or a trust account maintained by the
Agent, representing the Plan Shares purchased by all Participants during the
Plan Period.
<PAGE> 4
6. ELIGIBILITY AND PARTICIPATION.
(a) ELIGIBILITY. Except as otherwise provided in the Plan, and
except to the extent that the Board may establish other limitations on
participation in the Plan, any Employee (including any officer) who has been an
Employee of the Company or any subsidiary shall be eligible to become a
Participant and to participate in the Plan.
(b) PARTICIPATION. Participation in the Plan is voluntary and at the
complete discretion of each eligible Employee. An eligible Employee may elect to
participate in the Plan by completing and executing such enrollment, payroll
deduction and other forms as the Company or the Agent may prescribe and
delivering them to such persons and at such time prior to the commencement of
the offering period as the Company or the Agent may specify.
7. PAYROLL DEDUCTIONS.
(a) PERCENTAGE WITHHELD. Each Participant shall designate on the
prescribed enrollment form and/or payroll deduction form the percentage of
Compensation which he or she wishes to have withheld for the purchase of Plan
Shares pursuant to the Plan. Such percentage shall be stated in whole percentage
points and shall be not be less than one percent (1%) nor more than fifteen
percent (15%) of the Participant's Compensation.
(b) DEDUCTIONS. Payroll deductions for a Participant shall commence
on the first Pay Date coinciding with or immediately following the Commencement
Date of the applicable Plan Period and shall terminate on the last Pay Date
immediately prior to or coinciding with the Purchase Date of the applicable Plan
Period, unless sooner terminated by the Participant in accordance with the
provisions of this Plan. The authorized deduction shall be made on the Pay Dates
of such Plan Period by deducting from the Participant's Compensation on each
such Pay Date that percentage specified by the Participant as of the
commencement date of the Plan. Except for Participant's rights to reduce or
discontinue deductions pursuant to the provisions of the Plan, the same
percentage deduction shall be applied against the Participant's Compensation for
each Pay Date during such Plan Period, whether or not the Participant's
Compensation increases or decreases after the commencement date of such Plan
Period.
(c) PAYROLL DEDUCTION CHANGES. A Participant may discontinue his or
her participation in the Plan as provided in Section 11 hereof, or may increase
or decrease the rate of his or her payroll deductions on one (1) occasion during
a Plan Period by completing and filing with the Company or the Agent new payroll
deduction forms authorizing the change in payroll deduction rates and by
otherwise complying with the rules and procedures prescribed by the Board or the
Agent from time to time. The Board may, in its discretion, change the number of
payroll deduction changes permitted during any Plan Period. The change in rate
shall be effective on the first Pay Date following ten (10) business days after
the Company's or the Agent's receipt of new Plan forms unless otherwise
determined by the Company in its sole discretion.
(d) SUCCESSIVE PLAN PERIODS. A Participant shall automatically
participate in each successive Plan Period until the time of such Participant's
withdrawal from the Plan. A Participant shall not be required to file any
additional enrollment forms for any such successive Plan Period in order to
continue participation in the Plan. A Participant's payroll deduction instrument
shall remain in effect for successive Plan Periods unless terminated as provided
in Section 11 hereof, or unless increased or decreased as provided in Section
7(c).
<PAGE> 5
8. PURCHASE PRICE. Unless otherwise specified by the Board with respect
to a certain Plan Period prior to the commencement of such Plan Period, the
Purchase Price for each Plan Share to be purchased under the Plan with respect
to each Plan Period shall be equal to the lesser of (a) fifty percent (50%) of
the Market Value of the Common Stock as of the Purchase Date, or (b) fifty
percent (50%) of the Market Value of the Common Stock as of the Commencement
Date.
9. WITHHOLDING. The Company shall withhold, to the extent applicable,
any federal, state, local or foreign taxes with respect to the purchase of Plan
Shares by a Participant, including but not limited to any taxes due to the
difference between the Market Value of the Plan Shares and the Purchase Price
paid by the Participant.
10. ACCOUNTS.
(a) PARTICIPANT ACCOUNTS. All payroll deductions for a Participant
under the Plan shall be credited to his or her Account. A Participant may not
make any additional payments into his or her Account.
(b) PLAN SHARES PURCHASED. By participating in the Plan, a
Participant shall be deemed to elect to purchase the maximum number of Plan
Shares that can be purchased with the amount of such Participant's Account as of
the Purchase Date; provided, however, the Board may establish limitations on the
number of Plan Shares which may be purchased by a Participant during the Plan
Period or during a calendar or fiscal year.
(c) AGENT. Plan Shares credited to the Accounts of Participants
shall be held in the names and on behalf of the Participants by the Agent.
(d) WITHDRAWAL FROM ACCOUNT. Any Participant may elect to withdraw
any or all of the Plan Shares from his or her Account at any time, whereupon
such Participant shall be entitled to receive a certificate or certificates
representing the number of full Plan Shares withdrawn. Participants shall not be
permitted to withdraw fractional Plan Shares but, in lieu thereof, shall receive
cash proportionate to the Market Value of the Plan Shares on the date such
withdrawal is requested. The cost of issuing certificates shall be borne by the
Company.
(e) DIVIDENDS AND DISTRIBUTIONS. Cash dividends attributable to Plan
Shares allocated to a Participant's Account shall be reinvested by the Agent in
Plan Shares, which shall be added to the respective Participant's Account. Stock
dividends and other securities distributions attributed to Plan Shares allocated
to a Participant Account shall be held by the Agent on behalf of the
Participant.
(f) RIGHTS. All rights accruing to the Plan Shares including,
without limitation, the rights set forth in Section 10(e) above, shall belong to
and inure to the benefit of the Participant for whose Account such Plan Shares
are held.
(g) NO INTEREST. No interest shall accrue on the payroll deductions
of a Participant in the Participant's Account.
<PAGE> 6
11. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) WITHDRAWAL FROM PLAN. A Participant may terminate payroll
deductions at any time by completing and delivering the appropriate forms with
the Company or the Agent, as directed, subject to such advance notice as the
Company or the Agent may require. All further payroll deductions will cease, and
any payroll deductions previously collected from the Participant shall be held
for the purchase of Plan Shares on the next Purchase Date immediately following
such termination. The Participant may not re-commence participation in the Plan
until the next succeeding Plan Period, upon completing and delivering the
prescribed enrollment and payroll deduction forms to the Company or Agent.
(b) TERMINATION OF EMPLOYMENT. If a Participant ceases to be
employed by the Company or any of its Subsidiaries for any reason, including
death or disability, prior to the end of a Plan Period, the Participant's right
to participate in the Plan shall immediately terminate and any payroll
deductions previously collected from the Participant shall be held for the
purchase of Plan Shares on the next Purchase Date immediately following such
termination. The Board may provide that an Employee who is on a leave of absence
will be deemed to have terminated employment after a specified period.
12. AMENDMENT OR TERMINATION OF THE PLAN. The Board may, at any time
and from time to time and for any or no reason, alter, amend, modify, terminate
or discontinue the Plan with respect to any Plan Shares which have not been
issued pursuant to the Plan, including but not limited to making the following
amendments:
(a) Changing the Plan Periods;
(b) Limiting the frequency and/or number of changes in the payroll
deductions withheld during a Plan Period;
(c) Permitting payroll deductions in excess of the amount designated
by a Participant in order to adjust for delays or mistakes in the Company's
process of a properly completed withholding election;
(d) Establishing reasonable waiting and adjustment periods and/or
accounting and crediting procedures to insure that amounts applied toward the
purchase of Plan Shares for each Participant properly correspond with the
amounts withheld from the Participant's Compensation;
(e) Increasing or decreasing the maximum percentage of Compensation
that can be withheld for the purchase of Plan Shares under the Plan;
(f) Increasing the maximum number of Plan Shares; and
(g) Extending the term of the Plan;
provided, however, that no such action of the Board may impair any outstanding
Accounts, Plan Shares or outstanding rights (including rights to purchase as to
which payroll deductions have been made) under the Plan without the consent of
the affected Participants (except as provided in Section 4(c)). Neither
shareholder approval nor, except as required in the immediately preceding
sentence, Participant or Employee approval shall be required for the Board to so
modify or terminate the Plan.
<PAGE> 7
13. TRANSFERABILITY. Rights to purchase Plan Shares under the Plan
shall be exercisable only by a Participant during his or her lifetime. No rights
or interests of any Participant in the Plan, including any rights of a
Participant to purchase Plan Shares, may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by a will, or through the laws of
descent and distribution) by any Participant. Any such attempt at assignment,
pledge, transfer or other disposition shall be without effect, except that the
Company may treat such act as an election to withdraw from the Plan in
accordance with Section 11 hereof.
14. NO RIGHTS AS SHAREHOLDER. A Participant shall have no rights as a
shareholder with respect to Plan Shares until such Plan Shares are issued by the
Company on behalf of the Participant.
15. NO RIGHTS TO CONTINUED EMPLOYMENT. Nothing contained in the Plan
(or in any purchase right granted pursuant to the Plan) shall confer upon any
employee any right to continue in the employ of the Company or any of its
Subsidiaries or constitute any contract or agreement of employment or interfere
in any way with the right to the Company or its Subsidiary to reduce such
employee's compensation from the rate in existence on the Purchase Date or to
terminate such employee's employment at any time, with or without cause;
provided, however, that nothing contained in the Plan (or in any purchase right)
shall affect any contractual rights of an employee pursuant to a written
employment agreement.
16. REGULATORY APPROVALS. The implementation of the Plan, the granting
of any purchase rights under the Plan, and the issuance of Plan Shares shall be
subject to the Company's compliance with all applicable requirements of the
Securities Act of 1933, as amended, all applicable listing requirements of the
Nasdaq Stock Market, any national securities exchange or any other securities
exchange, securities market or quotation system on which the Common Stock is
listed, and all other applicable requirements established by law or regulation.
17. TERM OF PLAN. The Plan shall become effective and commence on
January 1, 1998 and shall continue in effect until the earlier of December 31,
1998 or the Purchase Date on which all remaining Plan Shares have been issued,
unless the term of the Plan is either extended or earlier terminated by the
Board under Section 12 hereof.
18. USE OF PROCEEDS. The cash proceeds from the payroll deductions
received or withheld by the Company from the issuance of Plan Shares under the
Plan may be used for any corporate purpose, and the Company shall not be
obligated to segregate such payroll deductions.
19. PLAN INSTRUMENTS. Instruments evidencing purchase rights,
enrollment forms, payroll deduction forms and the like may contain such
provisions, not inconsistent with the Plan, as the Company or Agent deems
advisable.
20. GOVERNING LAW. To the extent not otherwise governed by federal law,
the Plan and its implementation shall be governed by and construed in accordance
with the laws of the State of Delaware.
<PAGE> 1
EXHIBIT 5.1
KEGLER, BROWN, HILL & RITTER CO., L.P.A.
65 E. STATE STREET, SUITE 1800, CAPITOL SQUARE
COLUMBUS, OHIO 43215-4294
(614) 462-5400
December 29, 1997
Marcum Natural Gas Services, Inc.
1675 Broadway, Suite 2150
Denver, Colorado 80202
Gentlemen:
We have acted as counsel to Marcum Natural Gas Services, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-8 ("Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
registration of 200,000 shares of Common Stock, par value $.01 per share
("Shares"), of the Company issuable pursuant to the Marcum Natural Gas Services,
Inc. 1998 Employee Stock Purchase Plan ("Plan").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Company's
Restated Certificate of Incorporation, as amended, (ii) the Company's Bylaws, as
amended, (iii) the Registration Statement, (iv) the Plan, (v) a specimen
certificate evidencing the Shares, (vi) certain resolutions of the Board of
Directors of the Company relating to, among other things, the Plans and the
Shares, and (vii) and such other documents as we have deemed necessary or
appropriate for the purpose of rendering the opinion below.
In our examination of the documents referred to above, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as certified, conformed,
photostatic or facsimile copies, and the authenticity of the originals of such
latter documents. As to any facts material to the opinion expressed herein which
we did not independently establish or verify, we have relied upon written or
oral certificates, statements, representations and other documentation furnished
to us by officers, employees and representatives of the Company, public
officials and others.
Based upon and subject to the foregoing and the further qualifications and
limitations set forth below, we are of the opinion that the Shares to be issued
pursuant to the Plan have been duly authorized for issuance and, when issued and
sold by the Company against receipt of payment in full therefor and otherwise in
accordance with the terms and conditions of the Plan, will be validly issued,
fully paid and non-assessable.
In rendering the opinion above, we have assumed that (i) the certificates
representing the Shares will conform to the specimen thereof examined by us,
(ii) upon issuance of the Shares pursuant to the
<PAGE> 2
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 (iii) no changes occur in the applicable law or pertinent
facts.
This opinion is limited to the Federal laws of the United States of America
and 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 Registration Statement. This opinion may not be furnished to
or relied upon by any other person or entity for any purpose or assigned, quoted
or otherwise used without our prior written consent. Please note that we are
opining only as to the matters expressly set forth herein, and no opinion should
be inferred as to any other matters. We express no opinion herein with respect
to the meaning, interpretation, validity, binding nature or enforceability of
the Plan or any contract, agreement, instrument or other document entered into
pursuant to the Plan.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In giving such
consent, we do not hereby admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Kegler, Brown, Hill & Ritter Co., L.P.A.
KEGLER, BROWN, HILL & RITTER CO., L.P.A.
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
We 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 21,
1997, appearing in the Annual Report on Form 10-KSB of Marcum Natural Gas
Services, Inc. for the year ended December 31, 1996.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Denver, Colorado
December 29, 1997
