As filed with the Securities and Exchange Commission on May 15, 1998
Registration No. 333-_______________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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INGRAM MICRO INC.
(Exact name of issuer as specified in its charter)
Delaware 5045 62-1644402
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation Classification Code Number) Identification No.)
or organization)
1600 E. St. Andrew Place
Santa Ana, CA 92705
(714) 566-1000
(Address of principal executive offices)
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INGRAM MICRO INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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James E. Anderson, Jr., Esq.
Senior Vice President and General Counsel
Ingram Micro Inc.
1600 E. St. Andrew Place
Santa Ana, CA 92705
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (714) 566-1000
Copy to:
Winthrop B. Conrad, Jr., Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
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CALCULATION OF REGISTRATION FEE
==========================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered (1) per Share (2) Offering Price (2) Fee
- --------------------------------------------------------------------------------------------------------------------------
Class A Common Stock 3,000,000 shares $46.81 $140,430,000 $41,427
(par value $0.01 per
share)
==========================================================================================================================
(1) Plus an indeterminate number of additional shares which may be offered
and issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(2) Estimated pursuant to Rule 457(c) under the Securities Act of 1933, as
amended, solely for the purpose of computing the registration fee,
based upon the average of the high and low prices of the securities
being registered hereby on the New York Stock Exchange Composite
Transaction Tape on May 8, 1998.
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This Registration Statement Includes a Total of 17 Pages.
Exhibit Index on Page 8.
PART I
The following documents listed under this Part I and the documents
incorporated by reference under Item 3 of Part II to this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act of 1933, as amended (the "1933 Act"), and are
incorporated herein by reference.
ITEM 1. PLAN INFORMATION
This information required to be provided to participants pursuant to
this Item is set forth in the Prospectus for the Ingram Micro Inc. 1998
Employee Stock Purchase Plan, together with the Ingram Micro Inc. 1998
Employee Stock Purchase Plan, attached to the Prospectus as Exhibit A
thereto.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The written statement required to be provided to participants pursuant
to this Item is set forth in the Prospectus referenced in Item 1 above.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Ingram Micro Inc. (the "Registrant") hereby files this Registration
Statement with the Securities and Exchange Commission (the "Commission") on
Form S-8 to register 3,000,000 shares of the Registrant's Class A Common
Stock, par value $.01 per share ("Class A Common Stock"), for issuance
pursuant to the Registrant's 1998 Employee Stock Purchase Plan (the "Plan")
and such indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions pursuant to the Plan.
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission pursuant to the
Securities and Exchange Act of 1934, as amended (the "1934 Act"),
(Commission 1934 Act File Number 001-12203) are incorporated by reference
herein:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended January 3, 1998.
(2) All other reports filed with the Commission by the Registrant
pursuant to Section 13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent
to the date hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered herein have been sold or which
deregisters all securities then remaining unsold.
(3) The description of the Registrant's Class A Common Stock
contained in the Registrant's 1934 Act registration statement on Form 8-A
dated September 19, 1996, filed with the Commission pursuant to Section 13
of the 1934 Act, including any amendment thereto or report filed for the
purpose of updating such description.
Any statement contained herein or made 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 other subsequently filed
document which is also incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement
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, see Item 3(3) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
James E. Anderson, Jr., the Registrant's General Counsel, owns
directly and indirectly securities of the Registrant, and options to
purchase such securities, with a fair market value in excess of $50,000.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which enables a corporation in its
certificate of incorporation to eliminate or limit the personal liability
of a director for violations of the director's fiduciary duty, except (i)
for breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to
section 174 of the DGCL (providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions) or (iv)
for any transaction from which a director derived an improper personal
benefit. The Registrant's certificate of incorporation eliminates the
liability of directors to the fullest extent permitted by Delaware Law.
Reference is made to section 145 of the DGCL which provides that a
corporation may indemnify directors and officers as well as other employees and
agents against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) (a "derivative action"))
if they act in good faith and in a manner they 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 their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorney's fees) incurred in connection with defense or settlement of such
action, and the statute requires court approval before there can be
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement or otherwise. The
Registrant's certificate of incorporation provides for indemnification of its
directors, officers, employees and agents to the fullest extent permitted by
Delaware Law.
In addition, the Registrant has purchased and maintains directors' and
officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit Number Exhibit
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4.01 Certificate of Incorporation of the Registrant.
(Incorporated herein by reference to Exhibit 1.01 to the
Registrant's 1933 Act Registration Statement on Form S-1,
File No. 333-09453).*
4.02 Amended and Restated Bylaws of the Registrant.
(Incorporated herein by reference to Exhibit 3.02 to the
Registrant's Form 10-K for the fiscal year ended January
3, 1998).*
5.01 Opinion of General Counsel of the Registrant.
23.01 Consent of Independent Public Accountants - Price
Waterhouse LLP.
23.02 Consent of General Counsel of the Registrant (included in
opinion filed as Exhibit 5.01).
24.01 Powers of Attorney (included on the signature page of this
registration statement).
99.01 Form of the Ingram Micro Inc. 1998 Employee Stock Purchase
Plan.
- ------------
* Incorporated by reference.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
this 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 and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
this Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference into this Registration Statement;
(2) That for the purpose of determining any liability under the
1933 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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the Registrant's Annual Report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and where applicable, each
filing of the Plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 1933
Act may be permitted to directors, officers or 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 the1933 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 1933 Act and will be governed by the
final adjudication of such issue.
EXPERTS
The financial statements incorporated in this Form S-8 by reference
to the Annual Report on Form 10-K of Ingram Micro Inc. for the year ended
January 3, 1998, have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
LEGAL MATTERS
The validity of the Class A Common Stock offered hereunder has been
passed upon by the Registrant's General Counsel.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Santa Ana, State of
California, on this 15th day of May, 1998.
INGRAM MICRO INC.
By /s/ James E. Anderson, Jr.
---------------------------------
James E. Anderson, Jr.
Senior Vice President, Secretary
and General Counsel
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, constitutes and appoints Jerre L. Stead, Michael J.
Grainger and James E. Anderson, Jr. and each of them, our true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, to do any and all acts and things and execute, in the name
of the undersigned, any and all instruments which said attorneys-in-fact
and agents may deem necessary or advisable in order to enable Ingram Micro
Inc. to comply with the Securities Act of 1933 and any requirements of the
Securities and Exchange Commission in respect thereof, in connection with
the filing with the Securities and Exchange Commission of the registration
statement on Form S-8 under the Securities Act of 1933, including
specifically but without limitation, power and authority to sign the name
of the undersigned to such registration statement, and any amendments to
such registration statement (including post-effective amendments), and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, to sign any and all
applications, registration statements, notices or other documents necessary
or advisable to comply with applicable state securities laws, and to file
the same, together with other documents in connection therewith with the
appropriate state securities authorities, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and to
perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, and any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Jerre L. Stead Chief Executive Officer (Principal Executive Officer); May 15, 1998
- ------------------------------------------ Chairman of the Board
Jerre L. Stead
/s/ Michael J. Grainger Executive Vice President and Worldwide Chief Financial May 15, 1998
- ------------------------------------------ Officer (Principal Financial Officer and Principal
Michael J. Grainger Accounting Officer)
/s/ Martha R. Ingram Director May 15, 1998
- ------------------------------------------
Martha R. Ingram
/s/ John R. Ingram Director May 15, 1998
- ------------------------------------------
John R. Ingram
/s/ David B. Ingram Director May 15, 1998
- ------------------------------------------
David B. Ingram
/s/ Don H. Davis, Jr. Director May 15, 1998
- ------------------------------------------
Don H. Davis, Jr.
/s/ Philip M. Pfeffer Director May 15, 1998
- ------------------------------------------
Philip M. Pfeffer
/s/ J. Phillip Samper Director May 15, 1998
- ------------------------------------------
J. Phillip Samper
/s/ Joe B. Wyatt Director May 15, 1998
- ------------------------------------------
Joe B. Wyatt
INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibit Numbered Page
- ------- ------- -------------
4.01 Certificate of Incorporation of the Registrant. (Incorporated herein *
by reference to Exhibit 1.01 to the Registrant's 1933 Act Registration
Statement on Form S-1, File No. 333-09453).*
4.02 Amended and Restated Bylaws of the Registrant. (Incorporated *
herein by reference to Exhibit 3.02 to the Registrant's Form 10-K for
the fiscal year ended January 3, 1998).*
5.01 Opinion of the Registrant's General Counsel. 10
23.01 Consent of Independent Public Accountants - Price Waterhouse LLP. 12
23.02 Consent of the Registrant's General Counsel (included in his opinion 10
filed as Exhibit 5.01).
24.01 Powers of Attorney (included on the signature page of this 7
registration statement).
99.01 Form of the Ingram Micro Inc. 1998 Employee Stock Purchase Plan. 14
- ------------
* Incorporated by reference.
EXHIBIT 5.01
GENERAL COUNSEL OPINION
Exhibit 5.01
[General Counsel Opinion]
May 13, 1998
Ingram Micro Inc.
1600 E. St. Andrew Place
Santa Ana, CA 92705
Ladies and Gentlemen:
I am the General Counsel of Ingram Micro Inc., a Delaware corporation
(the "Company"), and am delivering this opinion in connection with the
Company's Registration Statement on Form S-8 (the "Registration Statement")
filed with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, for the registration of 3,000,000
shares (the "Shares") of the Company's Class A Common Stock, par value
$0.01 per share, issuable pursuant to the Company's 1998 Employee Stock
Purchase Plan (the "Plan").
I have examined originals or copies of such documents, corporate
records and other instruments as I have deemed necessary for the purposes
of rendering this opinion.
On the basis of the foregoing, assuming the due execution and delivery
of certificates representing the Shares, I am of the opinion that the
Shares deliverable pursuant to the Plan have been duly authorized and, when
and to the extent issued pursuant to the Plan upon receipt by the Company
of adequate consideration therefor, will be validly issued, fully paid and
assessable.
I am licensed to practice law in the States of California, Tennessee
and Texas, and the foregoing opinion is limited to the laws of such states,
the federal laws of the United States of America and the General
Corporation Law of the State of Delaware.
I consent to the filing of this opinion as Exhibit 5.01 to the
Registration Statement.
Very truly yours,
James E. Anderson, Jr.
Senior Vice President, Secretary
and General Counsel
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS--PRICE WATERHOUSE LLP
Exhibit 23.01
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 17, 1998, which appears
on page 25 of the 1997 Annual Report to Shareowners of Ingram Micro Inc.,
which is incorporated by reference in Ingram Micro Inc.'s Annual Report on
Form 10-K for the year ended January 3, 1998. We also consent to the
incorporation by reference of our report on the Financial Statement
Schedule, which appears in such Annual Report on Form 10-K. We also
consent to the reference to us under the heading "Experts" in such
Registration Statement.
PRICE WATERHOUSE LLP
Costa Mesa, California
May 13, 1998
EXHIBIT 99.01
INGRAM MICRO INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
Exhibit 99.01
INGRAM MICRO INC.
1. Purpose of the Plan.
The purpose of the Ingram Micro Inc. 1998 Employee Stock Purchase Plan
(the "Plan") is to provide employment incentive and to encourage stock
ownership by certain officers and employees of Ingram Micro Inc. (the
"Company") and certain officers and employees of certain of its designated
subsidiaries ("Participating Subsidiaries") in order to increase their
proprietary interest in the Company's success. The Plan is intended to be
a qualified employee stock purchase plan within the meaning of Section 423
of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations and rulings thereunder. The provisions of the Plan shall be
construed accordingly.
2. Administration of the Plan.
The Plan shall be administered by the Human Resources Committee (the
"Committee") of the Company's Board of Directors as from time to time
appointed pursuant to the By-Laws of the Company. The Committee shall have
full power and authority to construe and interpret the Plan and may from
time to time adopt such rules and regulations for carrying out the Plan as
it may deem best, including, but not limited to, the determination of
purchase periods hereunder. Decisions of the Committee shall be final,
conclusive and binding upon all parties, including the Company, its
stockholders and its employees.
The Committee may in its sole discretion determine from time to time
that the Company shall offer to enter into Agreements hereunder
("Agreements") with all of the then eligible employees, provided, however,
that it shall be under no obligation to do so.
3. Participation in the Plan.
The individuals who shall be eligible to receive grants of purchase
rights under the Plan shall be all the employees (including directors who
are employees) of the Company or of any Subsidiary (as defined in Section
424(f) of the Code) of the Company, which Subsidiary has been designated by
the Committee as a Participating Subsidiary in the Plan, on the date as of
which such purchase rights are granted under the Plan (the "Grant Date"),
other than those employees who have customary employment with the Company
or Participating Subsidiary of not more than 20 hours a week or not more
than 5 months in any calendar year, within the meaning of Code Sections
423(b)(4) and (c), respectively; provided, however, that an Agreement will
be entered into with an employee of a Participating Subsidiary only if such
Agreement will, under the applicable provisions of the Code as then in
effect, qualify for the same tax treatment as would be accorded if such
employee was then an employee of the Company; and further provided, that no
individual shall be eligible to enter into an Agreement under the Plan if
immediately thereafter and after giving effect thereto, the aggregate value
or voting power of all shares of stock of the Company and any Subsidiary
then owned by such individual either directly or indirectly, within the
meaning of the applicable sections of the Code and including all shares of
stock with respect to which such individual holds options, would equal or
exceed in the aggregate 5% of the total value or combined voting power of
all classes of stock of the Company or any Subsidiary. The term
"Compensation" as used in this Plan means with respect to each eligible
employee, the total amount of base salary including commissions, shift
differentials, and sick leave pay paid to such employee on account of his
employment by his or her employer, excluding (a) over-time pay and bonuses,
(b) benefits under any other pension, profit sharing, stock bonus, phantom
stock, nonstatutory stock option, hospitalization, life insurance, long-
term disability, or other employee benefit plan (including without limiting
the foregoing, the Ingram Micro Inc. Supplemental Executive Deferred
Compensation Plan and the Ingram Micro Inc. Supplemental Executive
Retirement Plan), (c) travel, entertainment, and other business expense
allowances from which an accounting is made to the employees, (d) living
allowances, (e) imputed income attributable to employer-provided group term
life insurance and such other imputed non-cash income recognized as such by
the Code and the employee's Employer for purposes of this Plan, (f) any
home sale costs, reimbursed moving costs, employer reimbursed or employer-
subsidized meals, employer payments for the use of his or her personal car
for business purposes, location adjustments or any other similar
supplemental type of pay, and (g) severance pay. Compensation shall
include elective deferrals under any tax-qualified defined contribution
plan maintained by the Company or any subsidiary and any amount which is
contributed to such plan by the employee's employer pursuant to a salary
reduction agreement which is not includible in the gross income of the
eligible employee. under Section 125, 402(e)(3), 402(h) or 403(b) of the
Code.
4. Stock.
The stock subject to the Agreements shall be, in the discretion of the
Board of Directors of the Company, either authorized but unissued shares of
any class of the Company's Common Stock ("Common Stock") or shares of
Common Stock held in the treasury of the Company or any Subsidiary of the
Company, including shares purchased in the open market or otherwise.
Subject to adjustment in accordance with the provisions of paragraph 6(i)
hereof, the total number of shares of Common Stock which may be the subject
of such Agreements shall not exceed in the aggregate 3,000,000 shares.
In the event that any Agreement for any reason expires or is
terminated and the shares of Common Stock which are the subject thereof are
not purchased, such unpurchased shares of Common Stock may again be subject
to Agreements.
5. Number of Shares Which an Employee May Purchase.
Each Agreement shall provide that an eligible employee may elect to
purchase pursuant to the terms of the Agreement a number of shares of
Common Stock determined by the Committee but in no event greater than the
number of shares of Common Stock with a fair market value (as determined by
the Committee on the Grant Date) not in excess of 2-1/4 times 10% of the
employee's aggregate Compensation for the fiscal year next preceding the
Grant, as determined from the payroll records of the Company and the
Participating Subsidiaries.
Notwithstanding anything else contained herein, no employee may
receive a Grant which permits such employee's rights to purchase Common
Stock under this Plan and any other qualified employee stock purchase plan
(within the meaning of Section 423 of the Code) of the Company or its
Subsidiaries to accrue at a rate which exceeds $25,000 of fair market value
of Common Stock for each calendar year in which a Grant is outstanding at
any time. For purposes of this section, fair market value shall be
determined as of the Grant Date by the Committee.
6. Terms and Conditions of Agreements.
(a) General.
The Agreements shall be in such form as the Committee shall from time
to time approve, and shall contain such terms and conditions as the
Committee shall prescribe not inconsistent with the Plan.
(b) Purchase Price.
The price of a share of Common Stock pursuant to a grant shall be set
by the Committee but in no event shall be less than the lesser of:
(i) 85 percent of the fair market value of a share of Common
Stock on the Grant Date; or
(ii) 85 percent of the fair market value of a share of Common
Stock on the Purchase Date (as defined below).
(c) Payment of Purchase Price.
Each Agreement shall prescribe the method or methods pursuant to which
the purchase price of shares shall be paid by the employee.
(d) Term of Agreements.
Each Agreement shall be dated as of the date purchase rights are
granted under the Plan and shall have a stated term of not more than 27
months from such date.
(e) Date on which Shares Must be Purchased.
Each Agreement shall provide that, subject to earlier termination
pursuant to Paragraph 6(g) hereof, any shares to be purchased thereunder
must be purchased on the last day (hereinafter called the "Purchase Date")
of the stated term of the Agreement.
(f) Employee's Purchase Directions.
Each Agreement shall provide that the employee on the Purchase Date
shall purchase all of the whole shares covered by such Agreement unless the
employee shall, in the manner provided for in the Agreement, notify the
Secretary of the Company, or such other persons specified in the Agreement,
on or before the Purchase Date that the employee does not desire to
purchase any of such shares or desires to purchase fewer than all of such
shares.
(g) Termination by Employee of his Agreement.
An employee who has entered into an Agreement may at any time on or
before the Purchase Date terminate the employee's Agreement in its entirety
by written notice of such termination delivered in the manner set forth in
the Agreement to the Secretary of the Company, or to such other person or
persons as may be specified in the employee's Agreement. If there are any
funds then on deposit pursuant to the Agreement such funds shall be paid to
the employee or to the Company for payment to the employee.
(h) Termination of Employment and Change in Control.
Each Agreement shall specify the applicable rules in respect of the
effect of the death, retirement, disability or other termination of
employment of the employee and the effect, if any, of a change in control
of the Company.
(i) Adjustments.
In the event that the Committee shall determine that any stock
dividend, extraordinary cash dividend, recapitalization, reorganization,
merger, consolidation, split-up, spin-off, combination, exchange of shares,
or other similar corporate event affects the Common Stock such that an
adjustment is required in order to preserve the benefits or potential
benefits intended to be made available under this Plan, then the Committee
shall, in its sole discretion, and in such manner as the Committee may deem
equitable, adjust any or all of (1) the number and kind of shares which
thereafter may be made the subject of Agreements under the Plan, (2) the
number and kind of shares subject to outstanding Agreements and (3) the
purchase price with respect to any of the foregoing and/or, if deemed
appropriate, make provision for a cash payment to a person who has an
outstanding Agreement; provided, however, that the number of shares subject
to any Agreement shall always be a whole number.
(j) Assignability.
No rights hereunder shall be assignable or transferable except by will
or by the laws of descent and distribution. During the lifetime of an
employee who is a party to an Agreement the shares which are covered by
such Agreement may be purchased only by the employee.
(k) Employee's Agreement.
If, at the time of the purchase of shares which are covered by an
Agreement in writing, in the opinion of counsel for the Company, it is
necessary or desirable, in order to comply with any applicable laws or
regulations relating to the sale of securities, that the employee
purchasing such shares shall agree that such employee will purchase such
shares for investment and not with any present intention to resell the
same, the employee will, upon the request of the Company, execute and
deliver to the Company an agreement to such effect. The Company may also
require that a legend setting forth such investment intention be stamped or
otherwise written on the certificates for shares purchased pursuant to the
Plan.
(1) Rights as a Shareholder.
An employee who is a party to an Agreement shall have no rights as a
shareholder with respect to shares covered by such Agreement until the date
of the issuance of the shares to the employee. No adjustment will be made
for dividends or other rights for which the record date is prior to the
date of such issuance.
7. Term of Plan.
No Agreement shall be entered into after December 31, 2003.
8. Amendments.
The Board of Directors may from time to time alter, amend, suspend, or
discontinue the Plan or alter or amend any and all Agreements: provided,
however, that no such action of the Board of Directors may, without the
approval of the shareholders, make any amendment for which stockholder
approval is necessary to comply with any tax or regulatory requirement,
including for this purpose any approval requirement which is a prerequisite
for exemptive relief under Section 16(b) of the Securities Exchange Act of
1934.
9. Application of Funds.
The proceeds received by the Company from the sale of Common Stock
pursuant to an Agreement will be used for general corporate purposes.
10. No Obligation to Purchase Shares.
Entering into an Agreement shall impose no obligation upon an
employee to purchase any shares covered by such Agreement.
11. Governing Law.
This Plan and all Agreements shall be construed in accordance with and
governed by the laws of the State
of Delaware.
12. Shareholder Approval.
This Plan shall not be effective until approved by the shareholders of
the Company as provided in Section 423(b) of the Code and the regulations
thereunder.
