As filed with the Securities and Exchange Commission on
June 28, 1996.
Registration Statement No. 333- _____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
US ORDER, INC.
(Exact name of Registrant as specified in its Charter)
Delaware 54-1551807
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
US Order, Inc.
13873 Park Center Road
Suite 353
Herndon, Virginia 22071
(Address of principal executive office, including zip code)
US ORDER, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
John C. Backus, Jr.
US Order, Inc.
13873 Park Center Road
Suite 353
Herndon, Virginia 22071
(703) 834-9480
(Name, address, including zip code, and telephone number
including area code, of agent for service)
With copies to:
David M. Carter, Esq.
Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219-4074
804-788-8200
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share(1) price fee
Common Stock, 1,000,000 $13.63 $13,630,000 $4,700
$.001 par shares
value
(1) Calculated pursuant to Rule 457(c) on the basis of
$13.63 per share, which was the average of the high and low
prices of the Common Stock as quoted on the NASDAQ National
Market on June 26, 1996.
[Page]
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange
Commission (the "Commission").
Item 2. Registrant Information and Employee Plan Annual
Information.
Not required to be filed with the Commission.
[Page]
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by US Order, Inc. (the
"Company" or "US Order") with the Commission (File No. 0-25838)
are incorporated herein by reference and made a part hereof:
(a) the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995;
(b) the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996; and
(c) the description of the Company's Common Stock
contained in the Company's Registration Statement filed with the
Commission under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, all documents filed by the Company
pursuant to Section 13(a) and 13(c) of the Exchange Act after the
date of the Prospectus and prior to the termination of the
offering of shares of the Company's Common Stock pursuant to the
US Order, Inc. 1996 Employee Stock Purchase Plan (the "Plan"),
any definitive proxy or information statement filed pursuant to
Section 14 of the Exchange Act in connection with any subsequent
meeting of shareholders and any reports filed pursuant to Section
15(d) of the Exchange Act prior to any such termination of the
offering of shares, shall be deemed to be incorporated by
reference in the Prospectus and to be a part hereof
from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for purposes of the Prospectus to the extent that a
statement contained herein or in any other subsequently filed
document that is or is deemed to be incorporated by reference
herein modifies or supersedes such earlier statement. Any such
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of the
Prospectus.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law
("DGCL") authorizes, inter alia, a corporation generally to
indemnify any person ("indemnitee") who was or is a
party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding
(other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation, in a similar position
with another corporation or entity, 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. With respect to actions or suits by or in
the right of the corporation; however, an indemnitee who acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation is generally
limited to attorneys' fees and other expenses, and no
indemnification shall be made if such person is adjudged liable
to the corporation unless and only to the extent that a court of
competent jurisdiction determines that indemnification is
appropriate. Section 145 further provides that any
indemnification shall be made by the corporation only as
authorized in each specific case upon a determination by the (i)
stockholders, (ii) board of directors by a majority voted of a
quorum consisting of directors who were not parties to such
action, suit or proceeding or (iii) independent counsel if a
quorum of disinterested directors so directs, that
indemnification of the indemnitee is proper because
he has met the applicable standard of conduct. Section 145
provides that indemnification pursuant to its provisions
is not exclusive of other rights of indemnification to which a
person may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 7.02 of the Company's Amended and Restated Bylaws,
a copy of which is filed as Exhibit 3.2 to the Registration
Statement and incorporated herein by reference, provides, in
substance, that directors, officers, employees and agents shall
be indemnified to the fullest extent permitted by Section 145 of
the DGCL.
Articles VIII and IX of the Company's Amended and Restated
Certificate of Incorporation, a copy of which is filed as Exhibit
3.1 to the Registration Statement and incorporated herein
by reference, limits the liability of directors of the Company to
the Company or its stockholders (in their capacity as directors
but not in their capacity as officers) to the fullest extent
permitted by the DGCL. Specifically, directors of the Company
will not be personally liable for monetary damages for breach of
a director's fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of loyalty to
the Company or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for unlawful payments of
dividends or unlawful stock repurchases or redemptions as
provided in Section 174 of the DGCL or (iv) for any transaction
from which the director derived an improper personal benefit.
The Restated Certificate of Incorporation also provides that if
the DGCL is amended after the approval of the Restated
Certificate of Incorporation to authorize corporate action
further eliminating or limiting the personal liability of
directors, then the liability of a director of the Company will
be eliminated or limited to the full extent permitted by the
DGCL, as so amended.
The Company intends to enter into indemnification
agreements with certain of its directors providing for
indemnification to the fullest extent permitted by the laws of
the State of Delaware. These agreements provide for
specific procedures to better assure the directors' rights to
indemnification, including procedures for directors to
submit claims, for determination of directors' entitlement to
indemnification (including the allocation of the burden
of proof and selection of a reviewing party) and for enforcement
of directors' indemnification rights.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No.
3.1 Amended and Restated Certificate of Incorporation of
the Company (Incorporated herein by reference from Exhibit 3.1 to
the Company's Registration Statement on Form S-1 (File No. 33-
90978)).
3.2 Amended and Restated Bylaws of the Company
(Incorporated herein by reference from Exhibit 3.2 to the
Company's Registration Statement on Form S-1 (File No. 33-90978).
4.1 Article IV of the Company's Amended and Restated
Certificate of Incorporation and Section 7.03 of the Company's
Amended and Restated Bylaws (Incorporated by reference from
Exhibits 3.1 and 3.2, respectively).
5.1 Opinion of Hunton & Williams as to the legality of
the securities being registered.
10.1 US Order, Inc. 1996 Employee Stock Purchase Plan.
23.1 Consent of Hunton & Williams (included in the opinion
filed as Exhibit 5.1 to the Registration Statement).
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (included on signature page).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers
or sales are made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change in such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
2. That, for the purpose of determining any
liability under the Securities Act, each such post-
effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
3. To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act, and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act, that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions described under Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
[Page]
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
Herndon, Commonwealth of Virginia on June 28, 1996.
US ORDER, INC.
(Registrant)
By:/s/ John C. Backus, Jr.
John C. Backus, Jr.
President and Chief
Operating Officer
[Page]
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities indicated on June 28, 1996. Each of
the directors and/or officers of US Order, Inc. whose signature
appears below hereby appoints William F. Gorog, John C. Backus,
Jr., Albert N. Wergley and David M. Carter, and each of them
severally, as his attorney-in-fact to sign in his name and
behalf, in any and all capacities stated below and to file with
the Securities and Exchange Commission, any and all amendments,
including post-effective amendments to this registration
statement, making such changes in the registration statement as
appropriate, and generally to do all such things in their
behalf in their capacities as officers and directors to enable US
Order, Inc. to comply with the provisions of the Securities Act
of 1933, and all requirements of the Securities and Exchange
Commission.
Signature Title
/s/ William F. Gorog Chief Executive Officer,
William F. Gorog Chairman of the Board
and Director
(Principal Executive Officer)
/s/ John C. Backus, Jr. President, Chief Operating
John C. Backus, Jr. Officer and Director
/s/ Mark S. Lynch Vice President - Finance and
Mark S. Lynch Controller
(Principal Financial and
Accounting Officer)
/s/ T. Coleman Andrews, III Director
T. Coleman Andrews, III
/s/ Patrick F. Graham Director
Patrick F. Graham
/s/ Ross Jones Director
Ross Jones
/s/ Geoffrey S. Rehnert Director
Geoffrey S. Rehnert
Director
L. William Seidman
Director
Wesley C. Tallman
[Page]
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
EXHIBITS
filed with
REGISTRATION STATEMENT
on
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
US ORDER, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
(full title of the plan)
[Page]
EXHIBIT INDEX
Exhibit No. Description Page
3.1 Amended and Restated Certificate of
Incorporation of the Company (Incorporated
herein by reference from Exhibit 3.1 of
the Company's Registration Statement on
Form S-1 (File No. 33-90978)).
3.2 Amended and Restated Bylaws of the Company
(Incorporated herein by reference from
Exhibit 3.2 to the Company's
Registration Statement on Form S-1
(No. 33-90978).
4.1 Article IV of the Company's Amended and
Restated Certificate of Incorporation
and Section 7.03 of the Company's Amended
and Restated Bylaws (Incorporated by reference
from Exhibits 3.1 and 3.2, respectively).
5.1 Opinion of Hunton & Williams as to the
legality of the securities being registered.
10.1 US Order, Inc. 1996 Employee Stock Purchase Plan.
23.1 Consent of Hunton & Williams (included in
the opinion filed as Exhibit 5.1 to the
Registration Statement).
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (included on signature page).
Exhibit 5.1
Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
(804) 788-7216
June 27, 1996
Board of Directors
US Order, Inc.
13873 Park Center Road, Suite 353
Herndon, VA 22701
US ORDER, INC.
REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We are acting as counsel for US Order, Inc. (the "Company")
in connection with its Registration Statement on Form S-8, as
filed with the Securities and Exchange Commission, with respect
to up to 1,000,000 shares of the Company's Common Stock to be
issued by the Company (the "Shares") pursuant to the US Order,
Inc. 1996 Employee Stock Purchase Plan (the "Plan"). In
connection with the filing of the Registration Statement, you
have requested our opinion concerning certain corporate matters.
In rendering this opinion, we have relied upon, among other
things, our examination of such records of the Company and
certificates of its officers and of public officials as we have
deemed necessary.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly incorporated and
validly existing under the laws of the State of Delaware.
2. The Shares have been duly authorized and, when such
Shares have been issued in accordance with the terms of the Plan,
will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Form S-8. In giving
this consent, we do not admit that we are within the category of
persons whose consent is required by section 7 of the Securities
Act of 1933 or the rules and regulations promulgated thereunder
by the Securities and Exchange Commission.
Very truly yours,
/s/ Hunton & Williams
Exhibit 10.1
US ORDER, INC.
EMPLOYEE STOCK PURCHASE PLAN
[Page]
ARTICLE I.DEFINITIONS
1.01. Administrator. . . . . . . . . . . . . 1
1.02. Affiliate. . . . . . . . . . . . . . . 1
1.03. Beneficiary. . . . . . . . . . . . . . 1
1.05. Code . . . . . . . . . . . . . . . . . 1
1.06. Committee. . . . . . . . . . . . . . . 1
1.07. Common Stock . . . . . . . . . . . . . 2
1.08. Company. . . . . . . . . . . . . . . . 2
1.09. Compensation . . . . . . . . . . . . . 2
1.10. Date of Exercise . . . . . . . . . . . 2
1.11. Date of Grant. . . . . . . . . . . . . 2
1.12. Election Date. . . . . . . . . . . . . 2
1.13. Election Form. . . . . . . . . . . . . 2
1.15. Exchange Act . . . . . . . . . . . . . 2
1.16. Fair Market Value. . . . . . . . . . . 2
1.17. Five Percent Shareholder . . . . . . . 3
1.18. Option . . . . . . . . . . . . . . . . 4
1.19. Participant. . . . . . . . . . . . . . 4
1.20. Plan . . . . . . . . . . . . . . . . . 4
ARTICLE II.PURPOSES. . . . . . . . . . . . . . . . . . 4
ARTICLE III.ADMINISTRATION . . . . . . . . . . . . . . 5
ARTICLE IV.ELIGIBILITY . . . . . . . . . . . . . . . . 6
ARTICLE V.COMPENSATION DEDUCTIONS
5.01. Amount of Deduction. . . . . . . . . . 6
5.02. Participant's Account. . . . . . . . . 7
5.03. Changes in Payroll Deductions. . . . . 7
ARTICLE VI.OPTION GRANTS
6.01. Number of Shares . . . . . . . . . . . 8
6.02. Option Price . . . . . . . . . . . . . 8
ARTICLE VII.EXERCISE OF OPTION
7.01. Automatic Exercise . . . . . . . . . . 8
7.02. Fractional Shares. . . . . . . . . . . 9
7.03. Nontransferability . . . . . . . . . . 9
7.04. Employee Status. . . . . . . . . . . . 9
7.05. Delivery of Stock. . . . . . . . . . . 9
7.06. Vesting. . . . . . . . . . . . . . . . 9
ARTICLE VIII.WITHDRAWAL AND TERMINATION OF
EMPLOYMENT
8.01. Generally. . . . . . . . . . . . . . . 10
8.02. Subsequent Participation . . . . . . . 10
8.03. Termination of Employment. . . . . . . 10
8.04. Death of Participant . . . . . . . . . 11
ARTICLE IX.STOCK SUBJECT TO PLAN
9.01. Shares Issued. . . . . . . . . . . . . 11
9.02. Aggregate Limit. . . . . . . . . . . . 11
9.03. Reallocation of Shares . . . . . . . . 12
ARTICLE X.ADJUSTMENT UPON CHANGE IN
COMMON STOCK . . . . . . . . . . . . . . . . 12
ARTICLE XI.COMPLIANCE WITH LAW AND APPROVAL
OF REGULATORY BODIES . . . . . . . . . . . . 13
ARTICLE XII.GENERAL PROVISIONS
12.01.Effect on Employment and Service.. . . 14
12.02.Unfunded Plan. . . . . . . . . . . . . 14
12.03.Rules of Construction. . . . . . . . . 14
ARTICLE XIII.AMENDMENT . . . . . . . . . . . . . . . . 15
ARTICLE XIV.DURATION OF PLAN . . . . . . . . . . . . . 15
ARTICLE XV.EFFECTIVE DATE OF PLAN. . . . . . . . . . . 15
[Page]
US ORDER, INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I.
DEFINITIONS
1.01. Administrator means the Committee and any delegate of the
Committee that is appointed in accordance with Article III.
1.02. Affiliate means any "subsidiary" (within the meaning of
Section 424 of the Code) of the Company that the Board designates
as a participating employer in the Plan.
1.03. Beneficiary means the person or entity designated by a
Participant on a form prescribed by the Administrator, to receive
any amount payable under the Plan following a Participant's
death. A Participant may change his Beneficiary from time to
time by filing a subsequent designation form and the change will
be effective when received by the Administrator. If a designated
Beneficiary fails to survive the Participant or be in existence
on the date of his death or if the Participant fails to designate
a Beneficiary, the Participant's Beneficiary shall be determined
as follows: the Participant's surviving spouse (i.e., the person
to whom the Participant is legally married on the date of his
death) or, if none, the Participant's surviving children or, if
none, the Participant's estate.
1.04. Board means the Board of Directors of the Company.
1.05. Code means the Internal Revenue Code of 1986, and any
amendments thereto.
1.06. Committee means the Compensation Committee of the Board.
1.07. Common Stock means the common stock of the Company.
1.08. Company means US Order, Inc.
1.09. Compensation means an Employee's regular straight-time
earnings and excluding payments for overtime, shift premium,
bonuses and other special payments, commissions and other
marketing incentive payments.
1.10. Date of Exercise means each June 30 next following the
January 2 Date of Grant and each December 31 next following the
July 1 Date of Grant.
1.11. Date of Grant means each January 2 and each July 1 during
the term of the Plan.
1.12. Election Date means each December 15 immediately preceding
the January 2 Date of Grant and each June 15 immediately
preceding the July 1 Date of Grant.
1.13. Election Form means the form, prescribed by the
Administrator, that a Participant uses to authorize a reduction
in his Compensation in accordance with Article V.
1.14. Employee means any employee of the Company or an
Affiliate, other than a Five Percent Shareholder, who is
regularly scheduled to work at least twenty hours per week.
1.15. Exchange Act means the Securities Exchange Act of 1934,
as amended and as in effect on the date of this Agreement.
1.16. Fair Market Value means, on any given date, the current
fair market value of the shares of Common Stock as determined
pursuant to subsection (a) or (b) below.
(a) While the Company is a Non-Public Company, Fair
Market Value shall be determined by the Board using any
reasonable method in good faith.
(b) While the Company is a Public Company, Fair Market
Value shall be determined as follows: if the Common Stock is not
listed on an established stock exchange, the Fair Market Value
shall be the average reported "closing"price of shares of Common
Stock in the New York over-the-counter market as reported by
the National Association of Securities Dealers, Inc. If the
Common Stock is listed on an established stock exchange or
exchanges, Fair Market Value shall be the average closing price
of shares of Common Stock reported on that stock exchange
or exchanges. If the Common Stock was not traded on the date of
reference, Fair Market Value shall be determined as of the next
preceding day that the stock was traded. For purposes of this
definition, the term "Public Company" means a corporation that
has sold securities pursuant to an effective registration
statement on Form S-1 filed pursuant to the Securities Act of
1933, as amended and the term "Non-Public Company" means a
corporation that has never sold securities pursuant to an
effective registration statement on Form S-1 filed pursuant
to the Securities Act of 1933, as amended.
1.17. Five Percent Shareholder means any individual who,
immediately after the grant of an option (whether or not
granted under this Plan) owns more than five percent of the
total combined voting power or value of all classes of stock
of the Company or of an Affiliate. An individual shall be
considered to own any voting stock owned (directly or
indirectly) by or for his brothers, sisters, spouse, ancestors
or lineal descendants and shall be considered to own
proportionately any voting stock owned (directly or indirectly)
by or for a corporation, partnership, estate or trust of
which such individual is a shareholder, partner or beneficiary.
1.18. Option means a stock option that entitles the holder to
purchase from the Company a stated number of shares of Common
Stock on the terms and conditions prescribed by the Plan.
1.19. Participant means an Employee, including an Employee who
is a member of the Board, who satisfies the requirements of
Article IV and who elects to receive an Option.
1.20. Plan means the US Order, Inc. Employee Stock Purchase
Plan.
ARTICLE II.
PURPOSES
The Plan is intended to assist the Company and its
Affiliates in recruiting and retaining individuals with ability
and initiative by enabling such persons to participate in the
future success of the Company and its Affiliates and to associate
their interests with those of the Company and its shareholders.
The Plan is intended to permit the grant of Options qualifying
under Section 423 of the Code. No Option shall be invalid for
failure to qualify under Section 423 of the Code. The proceeds
received by the Company from the sale of Common Stock pursuant
to this Plan shall be used for general corporate purposes.
ARTICLE III.
ADMINISTRATION
The Plan shall be administered by the Administrator. The
Administrator shall have complete authority to interpret
all provisions of this Plan; to adopt, amend, and rescind rules
and regulations pertaining to the administration of the Plan;
and to make all other determinations necessary or advisable for
the administration of this Plan. The express grant in the Plan
of any specific power to the Administrator shall not be construed
as limiting any power or authority of the Administrator. Any
decision made, or action taken, by the Administrator or in
connection with the administration of this Plan shall be final
and conclusive. Neither the Administrator nor any member of the
Committee shall be liable for any act done in good faith with
respect to this Plan or any Option. All expenses of
administering this Plan shall be borne by the Company.
The Committee, in its discretion, may delegate to one or
more officers of the Company all or part of the Committee's
authority and duties with respect to grants and awards to
individuals who are not subject to the reporting and other
provisions of Section 16 of the Exchange Act. The Committee may
revoke or amend the terms of a delegation at any time but such
action shall not invalidate any prior actions of the Committee's
delegate or delegates that were consistent with the terms of the
Plan.
ARTICLE IV.
ELIGIBILITY
Each Employee of the Company or an Affiliate (including a
corporation that becomes an Affiliate after the adoption of this
Plan) is eligible to participate in this Plan after completing
three months' employment with the Company or an Affiliate.
Directors of the Company who are Employees of the Company or an
Affiliate may participate in this Plan. A member of the
Committee may not participate in this Plan during the time that
his participation would prevent the Committee from being
"disinterested" for purposes of Securities and Exchange
Commission Rule 16b-3 as in effect from time to time. An
Employee who has satisfied the requirements set forth in the
preceding sentences of this Article IV becomes a Participant by
completing an Election Form in accordance with Section 5.01 and
returning it to the Administrator on or before the Election Date.
ARTICLE V.
COMPENSATION DEDUCTIONS
5.01. Amount of Deduction. A payroll deduction shall be made
from the Compensation of each Participant for each payroll
period. The amount of such deduction shall be the percentage
specified by the Participant on his Election Form; provided that
such percentage shall be in multiples of one percent and shall
not exceed twenty percent. A Participant may contribute to the
Plan only by payroll deduction. A Participant's Election Form
will continue to be effective, and amounts will be deducted from
the Participant's Compensation, until the Election Form is
changed in accordance with Section 5.03 or the Participant
withdraws from the Plan or his participation otherwise ends in
accordance with Article VIII.
5.02. Participant's Account. A recordkeeping account shall be
established for each Participant. All amounts deducted from a
Participant's Compensation shall be credited to his account. No
interest will be paid or credited to the account of any
Participant; provided, however, that interest shall be paid on
any and all money which is distributed on account of a
Participant's withdrawal from the Plan. Such distributions shall
bear simple interest during the period from the date of
withholding to the date of distribution at the regular passbook
savings account rate per annum as in effect on the Date of Grant
established by a financial institution designated by the
Administrator. Where the distribution represents an excess
amount in a Participant's account after the account has been
applied to the purchase of Common Stock, the Participant's
withholding account shall be deemed to have been applied first
toward the purchase of the Common Stock under the Plan, so that
interest shall be paid on the last withholdings during the period
that results in the excess amount.
5.03. Changes in Payroll Deductions. A Participant may
discontinue his participation in the Plan as provided in Section
8.01. Except as provided in Section 8.01, a Participant's
direction to change the percentage deduction specified on his
Election Form shall be effective as of the first Date of Grant
following the date that written notice of such change (either by
revocation of participation or a new Election Form) is delivered
to the Administrator.
ARTICLE VI.
OPTION GRANTS
6.01. Number of Shares. Each Employee who is a Participant on a
Date of Grant shall be granted an Option as of that Date of
Grant. The number of shares of Common Stock subject to such
Option shall be determined by dividing the option price into the
balance credited to the Participant's account as of the Date of
Exercise next following the Date of Grant. Notwithstanding the
preceding sentence, no Participant will be granted an Option as
of any Date of Grant for more than a number of shares of Common
Stock determined by dividing $12,500 by the Fair Market Value on
the Date of Grant.
6.02. Option Price. The price per share for Common Stock
purchased on the exercise of an Option shall be the lesser of (i)
eighty-five percent of the Fair Market Value on the applicable
Date of Grant or (ii) eighty-five percent of the Fair Market
Value on the Date of Exercise.
ARTICLE VII.
EXERCISE OF OPTION
7.01. Automatic Exercise. Subject to the provisions of Articles
VIII, IX and XI, each Option shall be exercised automatically
as of the Date of Exercise next following the Option's Date of
Grant for the number of whole shares of Common Stock that may be
purchased at the option price for that Option with the balance
credited to the Participant's account.
7.02. Fractional Shares. Fractional shares will not be issued
under the Plan. Any amount remaining to the credit of the
Participant's account after the exercise of an Option shall
remain in the account and applied to the option price of the
Option next granted if the Participant continues to participate
in the Plan or, if he does not, shall be returned to the
Participant.
7.03. Nontransferability. Each Option granted under this Plan
shall be nontransferable except by will or by the laws of descent
and distribution. During the lifetime of the Participant to whom
the Option is granted, the Option may be exercised only by the
Participant. No right or interest of a Participant in any Option
shall be liable for, or subject to, any lien, obligation, or
liability of such Participant.
7.04. Employee Status. For purposes of determining the
applicability of Section 423 of the Code, and whether an
individual is employed by the Company or an Affiliate, the
Administrator may decide to what extent leaves of absence for
governmental or military service, illness, temporary disability,
or other reasons shall not be deemed interruptions of continuous
employment.
7.05. Delivery of Stock. Subject to the provisions of Articles
IX and XI, as promptly as possible following the date that such
shares become transferable, the Company will deliver certificates
evidencing the Common Stock purchased upon the Participant's
exercise of his Option.
7.06. Vesting. Participant's interest in the Common Stock
purchased upon the exercise of his Option shall be immediately
nonforfeitable. Subject to the provisions of Article XI, shares
of Common Stock purchased upon the exercise of an Option
shall be transferable as of the second Date of Grant following
the applicable Date of Exercise.
ARTICLE VIII.
WITHDRAWAL AND
TERMINATION OF EMPLOYMENT
8.01. Generally. A Participant may withdraw the payroll
deductions credited to his account under the Plan by giving
written notice to that effect to the Administrator at least
thirty days prior to the next Date of Exercise. In that event,
all of the payroll deductions credited to his account will be
paid to him promptly after receipt of his notice of withdrawal
and no further payroll deductions will be made from his
Compensation until he submits a new Election Form to the
Administrator. A Participant shall be deemed to have elected to
withdraw from the Plan in accordance with this Section 8.01 if he
ceases to be an Employee.
8.02. Subsequent Participation. A Participant who has withdrawn
his account under Section 8.01 may submit a new Election Form to
the Administrator and resume participation in the Plan as of any
subsequent Date of Grant, provided that the Administrator
receives his Election Form before the applicable Election Date.
8.03. Termination of Employment. If a Participant's employment
with the Company and its Affiliates terminates for any reason
other than death, his participation in the Plan shall cease as of
the date of termination. The balance credited to
the Participant's account as of the first day of the
month following such termination of employment shall be paid to
the Participant or, in the case of the Participant's death
following his termination of employment, to his Beneficiary, as
promptly as possible thereafter.
8.04. Death of Participant. If a Participant's employment with
the Company and its Affiliates terminates on account of the
Participant's death, his Beneficiary may elect, by written notice
received by the Administrator within thirty days of the
Participant's death (but in all events before the Date of
Exercise), to either (i) withdraw all of the payroll deductions
credited to the Participant's account or (ii) to exercise the
Option as of the Date of Exercise and receive whole shares of
Common Stock and cash representing the value of a fractional
share in accordance with Section 5.02. If the Option is
exercised, the number of shares of Common Stock issuable to the
Beneficiary shall be determined by dividing the option price into
the payroll deductions credited to the Participant's account. If
timely written notice of the Beneficiary's election is not
received by the Administrator, the Beneficiary shall be deemed to
have elected to exercise the Option.
ARTICLE IX.
STOCK SUBJECT TO PLAN
9.01. Shares Issued. Upon the exercise of any Option the
Company may deliver to the Participant (or the Participant's
broker if the Participant so directs), shares of Common Stock
from its authorized but unissued Common Stock.
9.02. Aggregate Limit. The maximum aggregate number of shares
of Common Stock that may be issued under this Plan pursuant to
the exercise of Options is 1,000,000 shares. The maximum
aggregate number of shares that may be issued under this Plan
shall be subject to adjustment as provided in Article X.
9.03. Reallocation of Shares. If an Option is terminated, in
whole or in part, for any reason other than its exercise, the
number of shares of Common Stock allocated to the Option or
portion thereof may be reallocated to other Options to be granted
under this Plan.
ARTICLE X.
ADJUSTMENT UPON CHANGE IN COMMON STOCK
The maximum number of shares as to which Options may be
granted under this Plan and the terms of outstanding Options
shall be adjusted as the Committee shall determine to be
equitably required in the event that (a) the Company (i) effects
one or more stock dividends, stock split-ups, subdivisions or
consolidations of shares or (ii) engages in a transaction to
which Section 424 of the Code applies or (b) there occurs any
other event which, in the judgment of the Committee necessitates
such action. Any determination made under this Article X
by the Committee shall be final and conclusive.
The issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any
class, for cash or property, or for labor or services, either
upon direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations
of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall
be made with respect to, the maximum number of shares as
to which Options may be granted or the terms of outstanding
Options.
ARTICLE XI.
COMPLIANCE WITH LAW AND
APPROVAL OF REGULATORY BODIES
No Option shall be exercisable, no Common Stock shall be
issued, no certificates for shares of Common Stock shall be
delivered, and no payment shall be made under this Plan except in
compliance with all applicable federal and state laws and
regulations (including, without limitation, withholding tax
requirements), any listing agreement to which the Company is a
party, and the rules of all domestic stock exchanges on which the
Company's shares may be listed. The Company shall have the right
to rely on an opinion of its counsel as to such compliance. Any
share certificate issued to evidence Common Stock for which an
Option is exercised may bear such legends and statements as the
Administrator may deem advisable to assure compliance with
federal and state laws and regulations. No Option shall be
exercisable, no Common Stock shall be issued, no certificate for
shares shall be delivered, and no payment shall be made under
this Plan until the Company has obtained such consent or approval
as the Administrator may deem advisable from regulatory
bodies having jurisdiction over such matters.
ARTICLE XII.
GENERAL PROVISIONS
12.01. Effect on Employment and Service. Neither the adoption of
this Plan, its operation, nor any documents describing
or referring to this Plan (or any part thereof) shall confer upon
any individual any right to continue in the employ of the
Company or an Affiliate or in any way affect any right and power
of the Company or an Affiliate to terminate the employment of any
individual at any time with or without assigning a reason
therefor.
12.02. Unfunded Plan. The Plan, insofar as it provides for
grants, shall be unfunded, and the Company shall not be required
to segregate any assets that may at any time be represented by
grants under this Plan. Any liability of the Company to any
person with respect to any grant under this Plan shall be
based solely upon any contractual obligations that may be created
pursuant to this Plan. No such obligation of the Company shall
be deemed to be secured by any pledge of, or other encumbrance
on, any property of the Company.
12.03. Rules of Construction. Headings are given to the articles
and sections of this Plan solely as a convenience to facilitate
reference. The reference to any statute, regulation, or other
provision of law shall be construed to refer to any amendment to
or successor of such provision of law.
ARTICLE XIII.
AMENDMENT
The Board may amend or terminate this Plan from time to
time; provided, however, that no amendment may become effective
until shareholder approval is obtained if (i) the amendment
increases the aggregate number of shares of Common Stock that may
be issued under the Plan or (ii) the amendment changes the class
of individuals eligible to become Participants. No amendment
shall, without a Participant's consent, adversely affect
any rights of such Participant under any Option outstanding at
the time such amendment is made.
ARTICLE XIV.
DURATION OF PLAN
No Option may be granted under this Plan more than ten
years after the earlier of the date this Plan is adopted by the
Board or the date this Plan is approved by shareholders in
accordance with Article XV. Options granted before that date
shall remain valid in accordance with their terms.
ARTICLE XV.
EFFECTIVE DATE OF PLAN
Options may be granted under this Plan upon its adoption
by the Board, provided that no Option shall be effective or
exercisable unless this Plan is approved by a majority of the
votes entitled to be cast by the Company's shareholders, voting
either in person or by proxy, at a duly held shareholders'
meeting.
Exhibit 23.2
ACCOUNTANTS' CONSENT
The Board of Directors and Stockholders
US Order, Inc.:
We consent to the use of our report incorporated by reference in the
registration statement on Form S-8 for the US Order, Inc. 1996 Employee
Stock Purchase Plan, which report is included in the Company's 1995 annual
report on Form 10-K.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Washington D.C.
June 27, 1996
