<PAGE> 1
As filed with the Securities and Exchange Commission on March 23, 2000
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
AMERICAN COIN MERCHANDISING, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-1093721
(State of Incorporation) (I.R.S. Employer Identification No.
---------------
5560 CENTRAL AVENUE
BOULDER, CO 80301
(303) 444-2559
(Address of principal executive offices)
---------------
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
---------------
RANDALL J. FAGUNDO
PRESIDENT AND CHIEF EXECUTIVE OFFICER
AMERICAN COIN MERCHANDISING, INC.
5560 CENTRAL AVENUE
BOULDER, CO 80301
(303) 444-2559
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
COPIES TO:
JAMES H. CARROLL, ESQ.
COOLEY GODWARD LLP
2595 CANYON BOULEVARD, SUIT 250
BOULDER, COLORADO 80302
(303) 546-4000
---------------
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum
Offering Proposed Maximum
Title of Securities Amount to be Price per Share Aggregate Amount of
to be Registered Registered (1) Offering Price (1) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, par value 194,875 shares $2.84 $553,445 $146.00
$.01 per share
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share and aggregate
offering price are based upon the average of the high and low prices of
Registrant's Common Stock on March 22, 2000 as reported on the Nasdaq
National Market.
2.
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by American Coin Merchandising, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in a
registration statement filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
(d) All reports and other documents subsequently filed by the Company
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 herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not Applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the Company has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act.
The Company's Bylaws also provide that the Company will indemnify its directors
and officers and may indemnify its employees and other agents to the fullest
extent not prohibited by Delaware law.
The Company's Restated Certificate of Incorporation provides for the
elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Company and its stockholders. These provisions do
not eliminate the directors' duty of care and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief will
remain available under Delaware law. In addition, each director will continue to
be subject to liability for breach of the director's duty of loyalty to the
Company, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision does not affect a director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws.
The Company has entered into indemnity agreements with each of its
directors and executive officers. Such indemnity agreements contain provisions
which are in some respects broader than the specific indemnification provisions
contained in Delaware law.
EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
3.
<PAGE> 4
EXHIBITS
EXHIBIT
NUMBER
5 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this
Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 Employee Stock Purchase Plan.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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 to such information in the registration statement;
provided, however, that paragraphs (a)(i) and (a)(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 issuer pursuant to
section 13(a) or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) 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 herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) 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.
2. 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 Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
4.
<PAGE> 5
3. 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 foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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.
5.
<PAGE> 6
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 the City of Boulder, State of Colorado, on March 23, 2000.
AMERICAN COIN MERCHANDISING, INC.
By: /s/ Randall J. Fagundo
----------------------
Randall J. Fagundo
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Randall J. Fagundo and W. John Cash, and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and 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 connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
6.
<PAGE> 7
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C> <C>
/s/ Randall J. Fagundo President, Chief Executive March 23, 2000
- -------------------------------------------- Officer and Director (Principal
RANDALL J. FAGUNDO Executive Officer)
/s/ W. John Cash Senior Vice President, Chief March 23, 2000
- -------------------------------------------- Financial Officer, Treasurer and
W. JOHN CASH Corporate Secretary
(Principal Financial and
Accounting Officer)
/s/ John A. Sullivan Chairman of the Board March 23, 2000
- --------------------------------------------
JOHN A. SULLIVAN
/s/ Richard P. Bermingham Director March 23, 2000
- --------------------------------------------
RICHARD P. BERMINGHAM
/s/ Bruce W. Krysiak Director March 23, 2000
- --------------------------------------------
BRUCE W. KRYSIAK
/s/ Richard D. Jones Director March 23, 2000
- --------------------------------------------
RICHARD D. JONES
/s/ J. Gregory Theisen Director March 23, 2000
- --------------------------------------------
J. GREGORY THEISEN
</TABLE>
7.
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
5 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit
5 to this Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 Employee Stock Purchase Plan.
</TABLE>
<PAGE> 1
EXHIBIT 5
[Letterhead of Cooley Godward LLP]
March 23, 2000
American Coin Merchandising, Inc.
5560 Central Avenue
Boulder, CO 80301
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by American Coin Merchandising, Inc. (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the offering of up to 194,875 shares
of the Company's Common Stock, $.01 par value, (the "Shares") pursuant to its
Employee Stock Purchase Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plan, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
/s/ James H. Carroll
- --------------------
James H. Carroll
JHC:eqp
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
American Coin Merchandising, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of American Coin Merchandising, Inc. of our report dated February 22, 1999,
relating to the consolidated balance sheets of American Coin Merchandising, Inc.
and subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of operations, stockholders' equity and cash flows for each of the
years in the three-year period ended December 31, 1998 and the related schedule,
which report appears in the December 31, 1998 annual report on Form 10-K of
American Coin Merchandising, Inc.
KPMG LLP
Boulder, Colorado
March 22, 2000
<PAGE> 1
EXHIBIT 99.1
EMPLOYEE STOCK PURCHASE PLAN
1. Purpose.
(a) The purpose of the Plan is to provide a means by which employees of
American Coin Merchandising, Inc. ("ACMI") and its Affiliates, as defined in
subparagraph 1(b), which are designated as provided in subparagraph 2(b), may be
given an opportunity to purchase stock of ACMI.
(b) The word "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of ACMI, as those terms are defined in
Section 424, subsections (e) and (f), respectively, of the Internal Revenue
Code, as amended (the "Code").
(c) ACMI, by means of the Plan, seeks to retain the services of its
employees, to secure and retain the services of new employees, and to provide
incentives for such persons to exert maximum efforts for the success of ACMI.
(d) ACMI intends that the rights to purchase stock of ACMI granted
under the Plan be considered options issued under an "employee stock purchase
plan" as that term is defined in Section 423 of the Code.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors (the
"Board") of ACMI unless and until the Board delegates administration to a
Committee, as provided in subparagraph 2(c). Whether or not the Board has
delegated administration, the Board shall have the final power to determine all
questions of policy and expediency that may arise in the administration of the
Plan.
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(i) To designate from time to time which Affiliates of ACMI shall
be eligible to participate in the Plan.
(ii) To construe and interpret the Plan and any rights granted
under it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan, in a manner and to the extent it
shall deem necessary or expedient to make the Plan fully effective.
(iii) To amend the Plan as provided in paragraph 13.
(iv) Generally, to exercise such powers and to perform such acts
as the Board deems necessary or expedient to promote the best interests of ACMI.
<PAGE> 2
(c) The Board may delegate administration of the Plan to a Committee
composed of not fewer than two (2) members of the Board (the "Committee"). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore possessed
by the Board, subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the Board. The
Board may abolish the Committee at any time and revest in the Board the
administration of the Plan.
3. SHARES SUBJECT TO THE PLAN. Subject to the provisions of paragraph 12
relating to adjustment upon changes in stock, 200,000 shares of ACMI's common
stock (the "Common Stock") shall be available to be sold pursuant to rights
granted under the Plan. Effective as of July 1 of each year during the term of
the Plan, the shares of Common Stock available to be sold pursuant to rights
granted under the Plan shall be increased to a number of shares equal to three
percent (3%) of the issued and outstanding Common Stock on the date of the
annual meeting of the shareholders held during the preceding calendar quarter.
4. GRANT OF RIGHTS; OFFERING. The Board hereby grants the right to purchase
Common Stock of ACMI under the Plan to eligible employees (an "Offering") on
July 1 of each year during the term of the Plan (the "Offering Dates"). Each
Offering shall be made in accordance with the substance of the provisions
contained in paragraphs 5 through 8, inclusive.
5. ELIGIBILITY.
(a) All employees of ACMI and each Affiliate designated in accordance with
subparagraph 2(b) shall be eligible employees, unless excluded from eligibility
under this paragraph 5. An employee of ACMI or any Affiliate shall not be
eligible to purchase shares under the Plan, unless, on the Offering Date, or on
the October 1, January 1, or April 1 following the Offering Date (each, an
"Eligibility Date"), such employee has been in the employ of ACMI or any
Affiliate for six (6) months preceding such Eligibility Date. In addition, no
employee of ACMI or any Affiliate shall be eligible to purchase shares under the
Plan, unless, on the Eligibility Date, such employee's customary employment with
ACMI or such Affiliate is at least twenty (20) hours per week and at least five
(5) months per calendar year.
(b) No employee shall be eligible for the purchase of any shares under
the Plan if, immediately after any such purchase, such employee owns stock
possessing five percent (5%) or more of the total combined voting power or value
of all classes of stock of ACMI or of any Affiliate. For purposes of this
subparagraph 5(c), Section 423(b)(3) of the Code shall apply in determining the
stock ownership of any employee, and stock which such employee may purchase
under all outstanding rights and options shall be treated as stock owned by such
employee.
(c) An eligible employee may purchase shares under the Plan only if
such purchases, together with any other purchases under "employee stock purchase
plans" of ACMI and any Affiliates, do not permit such employee's rights to
purchase stock of ACMI or any Affiliate to accrue at a rate which exceeds
twenty-five thousand dollars ($25,000) of fair market value of such stock
(determined at the date of grant of such rights) for each calendar year.
<PAGE> 3
6. RIGHTS; PURCHASE PRICE.
(a) On each Eligibility Date, each eligible employee shall be granted
the right to purchase the number of shares of Common Stock of ACMI purchasable
with up to ten percent (10%) of such employee's Earnings (as defined in
subparagraph 7(a)) during the period beginning on the first day of the calendar
quarter coincident with or next preceding such Eligibility Date and ending on
the last day of such calendar quarter (each such quarter, a "Purchase Period").
(b) The purchase price of Common Stock acquired pursuant to the Plan
shall be the lesser of eighty-five percent (85%) of the fair market value of the
Common Stock on the Offering Date and eighty-five percent (85%) of the fair
market value of the Common Stock on the Purchase Date. The "Purchase Date" for
purposes of the Plan, shall be the last day of the calendar quarter that
commences on the Eligibility Date, unless such day is not a stock market trading
day, in which case the "Purchase Date" shall be the next stock market trading
day immediately following the last day of such calendar quarter. The fair market
value of the Common Stock on an applicable date shall be determined by the
closing price of the Common Stock on such date.
(c) The maximum aggregate number of shares available to be purchased by
all eligible employees under an Offering shall be the number of shares remaining
available under the Plan on the Eligibility Date. If the aggregate purchase of
shares of Common Stock upon exercise of rights granted under the Offering would
exceed the maximum aggregate number of shares available, ACMI shall make a pro
rata allocation of the shares available in a uniform and equitable manner.
7. PARTICIPATION; WITHDRAWAL; TERMINATION.
(a) An eligible employee may become a participant in the Plan by
delivering an Authorization of Payroll Deduction to ACMI in such form as ACMI
provides. Such form shall be delivered to such person and at such time as ACMI
shall determine in a nondiscriminatory manner and communicate to all eligible
employees. Each such authorization shall authorize payroll deductions of up to
ten percent (10%) of such employee's Earnings during the Purchase Period.
"Earnings" is defined as an employee's basic or regular rate of compensation
during the Purchase Period, including all salary, wages and other remuneration
paid to an employee (including amounts elected to be deferred by the employee,
that would otherwise have been paid, under any cash or deferred arrangement
established by ACMI) but excluding overtime pay, commissions (except for route
merchandisers, whose commissions are considered as part of their basic or
regular rate of compensation), bonuses, profit sharing, any special payments for
extraordinary services, the cost of employee benefits paid for by ACMI,
education or tuition reimbursements, imputed income arising under any ACMI group
insurance or benefit program, traveling expenses, business and moving expense
reimbursements, income received in connection with stock options, and
contributions made by ACMI under any employee benefit plan. The payroll
deductions made for each participant shall be credited to an account for such
participant under the Plan and shall be deposited with the general funds of
ACMI. A participant may reduce, increase or begin such payroll deductions
<PAGE> 4
effective at the beginning of any Purchase Period. A participant may make
additional payments into his or her account with respect to a Purchase Period
only if expressly permitted by ACMI for such Purchase Period on a
nondiscriminatory basis and only if the participant has not had the maximum
amount withheld during the Purchase Period.
(b) At any time a participant may terminate his or her payroll
deductions under the Plan and withdraw from the Plan by delivering to ACMI a
notice of withdrawal in such form as ACMI provides. Such withdrawal may be
elected at any time prior to the end of the Purchase Period. Upon such
withdrawal from the Plan by a participant, ACMI shall distribute to such
participant all of his or her accumulated payroll deductions, without interest,
and such participant's interest in the Plan shall be automatically terminated. A
participant's withdrawal from the Plan will have no effect upon such
participant's eligibility to participate subsequently in the Plan but such
participant will be required to deliver a new Authorization of Payroll
Deductions in order to participate in subsequent purchases under the Plan.
(c) The right to purchase shares under the Plan shall terminate
immediately upon cessation of any participant employee's employment with ACMI or
an Affiliate, for any reason, and ACMI shall distribute to such terminated
employee all of his or her accumulated payroll deductions, without interest.
(d) The right to purchase shares under Plan shall not be transferable,
and shall be exercisable only by the employee.
8. PURCHASE.
(a) On each Purchase Date, each participant's accumulated payroll
deductions and any additional amounts paid into his or her account with ACMI's
express authorization (without any increase for interest) will be applied to the
purchase of shares (including fractional shares) of Common Stock of ACMI, up to
the maximum number of shares permitted pursuant to the terms of the Plan, at the
purchase price specified above. Any amounts remaining in a participant's account
after the purchase of the maximum number of shares permitted under the Plan on a
Purchase Date shall be distributed to the participant within a reasonable period
of time after said Purchase Date, without interest.
(b) No shares may be purchased under the Plan unless the Plan is
covered by an effective registration statement pursuant to the Securities Act of
1933, as amended (the "Securities Act"). If on any Eligibility Date hereunder
the Plan is not so registered, no rights granted under the Plan shall be
exercised on said Eligibility Date and all payroll deductions accumulated during
the Purchase Period shall be distributed to the participants, without interest.
9. COVENANTS OF ACMI.
(a) During the term of the Plan, ACMI shall keep available at all times
the number of shares of stock required to satisfy rights under the Plan.
<PAGE> 5
(b) ACMI shall seek to obtain from each regulatory commission or agency
having jurisdiction over the Plan such authority as may be required to issue and
sell shares of stock upon exercise of the rights granted under the Plan. If,
after reasonable efforts, ACMI is unable to obtain from any such regulatory
commission or agency the authority which counsel for ACMI deems necessary for
the lawful issuance and sale of stock under the Plan, ACMI shall be relieved
from any liability for failure to issue and sell stock upon exercise of such
rights unless and until such authority is obtained.
10. USE OF PROCEEDS FROM STOCK. Proceeds from the sale of stock pursuant to
rights granted under the Plan shall constitute general funds of ACMI.
11. RIGHTS AS A STOCKHOLDER. A participant shall not be deemed to be the
holder of, or to have any of the rights of a holder with respect to, any shares
subject to rights granted under the Plan unless and until certificates
representing such shares shall have been issued.
12. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan (through
merger, consolidation, reorganization, recapitalization, stock dividend,
combination of shares, exchange of shares, change in corporate structure or
otherwise), the Plan will be appropriately adjusted in the classes and maximum
number of shares subject to the Plan.
(b) In the event of: (1) a dissolution or liquidation of ACMI; (2) a
merger or consolidation in which ACMI is not the surviving corporation; (3) a
reverse merger in which ACMI is the surviving corporation but the shares of
ACMI's Common Stock outstanding immediately preceding the merger are converted
by virtue of the merger into other property, whether in the form of securities,
cash or otherwise; or (4) any other capital reorganization in which more than
fifty percent (50%) of the shares of ACMI entitled to vote are exchanged, then,
as determined by the Board in its sole discretion (i) any surviving corporation
may assume outstanding rights or substitute similar rights for those under the
Plan, (ii) such rights may continue in full force and effect, or (iii)
participants' accumulated payroll deductions may be used to purchase Common
Stock immediately prior to the transaction described above and the participants'
rights under the Plan terminated.
13. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in paragraph 12 relating to adjustments upon changes
in stock, no amendment shall be effective unless approved by the stockholders of
ACMI within twelve (12) months before or after the adoption of the amendment,
where the amendment will:
(i) Increase the number of shares reserved for rights under the
Plan;
<PAGE> 6
(ii) Modify the provisions as to eligibility for participation
in the Plan (to the extent such modification requires stockholder approval in
order for the Plan to obtain employee stock purchase plan treatment under the
Code); or
(iii) Modify the Plan in any other way if such modification
requires stockholder approval in order for the Plan to obtain employee stock
purchase plan treatment under the Code or to comply with the requirements of the
Securities Exchange Act.
It is expressly contemplated that the Board may amend the Plan in any respect
the Board deems necessary or advisable to provide eligible employees with the
maximum benefits provided or to be provided under the provisions of the Code and
the regulations promulgated thereunder relating to employee stock purchase plans
or to bring the Plan into compliance therewith. Without limiting the generality
of the foregoing, the Board shall have the authority to amend the Plan in order
to change the provisions relating to when and how rights to purchase Common
Stock shall be granted and the terms of future Offerings of such rights under
the Plan, and stockholder approval of any such amendments shall not be required
except as expressly provided otherwise in this paragraph 13 above.
(b) Rights and obligations under any rights granted before amendment of
the Plan shall not be impaired by any amendment of the Plan, except with the
consent of the person to whom such rights were granted.
14. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate ten (10) years from the date the
Plan is adopted by the Board or approved by the stockholders of ACMI, whichever
is earlier. No rights may be granted under the Plan while the Plan is suspended
or after it is terminated.
(b) Rights and obligations granted while the Plan is in effect shall
not be altered or impaired by suspension or termination of the Plan, except with
the consent of the person to whom such rights were granted.
15. EFFECTIVE DATE OF PLAN. The Plan was adopted by the Board of Directors
of ACMI effective July 1, 1999, and will be submitted for approval by the
holders of a majority of the Common Stock of ACMI present and represented at the
annual meeting of the stockholders currently intended to be held May 9, 2000.
Shares will be issued under the Plan prior to such formal stockholder approval,
and will qualify under the Code as purchases under an employee stock purchase
plan.
<PAGE> 7
EMPLOYEE STOCK PURCHASE PLAN
PARTICIPATION AGREEMENT
The undersigned employee of _________________________ ("ACMI") or one of
its Affiliates hereby authorizes his or her employer to withhold $_______ [not
more than 10% of basic or regular rate of compensation] from each regular
paycheck under the terms of ACMI's Employee Stock Purchase Plan. Such amounts
shall be credited to the account of the undersigned under the Plan and shall be
applied to the purchase of shares of ACMI common stock on September 30, December
31, March 31 and June 30 of each year. ACMI shall deposit such withheld amounts
in the general funds of ACMI, and shall have no obligation to maintain such
amounts in a separate account.
The undersigned acknowledges receipt of a copy of the Plan, and agrees that
his or her rights (including participation, withdrawal and termination) shall be
subject to the terms and conditions of the Plan. This Participation Agreement
shall continue in force until terminated by the undersigned in writing.
-------------------------
Date:____________________
