-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GN4055LvvhCe2I0+UE0XMHsNULUv6f/eIC1zV2MPWXOeVS6l0Lknmxg4OHgxXJen +HvnSjiAVO2o/NHdPP2+0A== 0000950152-03-005991.txt : 20030606 0000950152-03-005991.hdr.sgml : 20030606 20030606164750 ACCESSION NUMBER: 0000950152-03-005991 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20030606 EFFECTIVENESS DATE: 20030606 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LAYNE CHRISTENSEN CO CENTRAL INDEX KEY: 0000888504 STANDARD INDUSTRIAL CLASSIFICATION: CONSTRUCTION SPECIAL TRADE CONTRACTORS [1700] IRS NUMBER: 480920712 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-105930 FILM NUMBER: 03736204 BUSINESS ADDRESS: STREET 1: 1900 SHAWNEE MISSION PKWY CITY: MISSION WOODS STATE: KS ZIP: 66205-2001 BUSINESS PHONE: 9133620510 MAIL ADDRESS: STREET 1: 1900 SHAWNEE MISSION PKWY CITY: MISSION WOODS STATE: KS ZIP: 66205-2001 FORMER COMPANY: FORMER CONFORMED NAME: LAYNE INC DATE OF NAME CHANGE: 19930328 S-8 1 l01197asv8.txt LAYNE CHRISTENSEN S-8 As filed with the Securities and Exchange Commission June 6, 2003 Registration Statement No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------------- LAYNE CHRISTENSEN COMPANY (Exact name of registrant as specified in its charter) Delaware 48-0920712 - --------------------------------- ------------------------------------ (State or other jurisdiction (I.R.S. Employer Identification No.) of incorporation or organization) 1900 Shawnee Mission Parkway, Mission Woods, Kansas 66205 --------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) LAYNE CHRISTENSEN COMPANY 2002 STOCK OPTION PLAN ---------------------- (Full title of plan) Steven F. Crooke, Layne Christensen Company 1900 Shawnee Mission Parkway, Mission Woods, Kansas 66205 --------------------------------------------------------- (Name and address of agent for service) (913) 362-0510 -------------- (Telephone number, including area code, of agent for service) Please send copies of all correspondence to: Layne Christensen Company 1900 Shawnee Mission Parkway Mission Woods, Kansas 66205 Attn: Steven F. Crooke, Vice President and General Counsel (913) 362-0510 =============================================================================== CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum Amount of Title of securities Amount to be offering aggregate offering registration to be registered registered price per share (1) price (1) fee - ------------------- ------------ ------------------- ------------------ ------------ Shares of Common Stock $.01 par value 300,000 shares $ 7.72 $ 2,316,000 $ 188.00
=============================================================================== (1) Pursuant to Rule 457(h) of the Securities Act of 1933, and solely for the purposes of calculating the amount of the registration fee, the proposed maximum offering price per share and proposed maximum aggregate offering price is based on the average of the high and low prices of the Common Stock on June 3, 2003, in the over-the-counter market as quoted on the National Association of Securities Dealers Automated Quotation National Market System. (2) The provisions of Rule 416 shall apply to this registration statement and the number of shares registered on this registration statement automatically shall increase or decrease as a result of stock splits, stock dividends on similar transactions. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents have been previously filed by Layne Christensen Company (the "Company") with the Securities and Exchange Commission (the "Commission") and are incorporated by reference into this Registration Statement: (i) the Annual Report on Form 10-K filed for the fiscal year ended January 31, 2003, (ii) the Quarterly Report on Form 10-Q for the quarter ended April 30, 2003, and (iii) the description of the Common Stock contained in the Company's Registration Statement on Form 8-A (File No. 0-20578), including any amendments or reports filed for the purpose of updating such description. Additionally, all documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") after the date hereof and prior to the termination of the Layne Christensen Company 2002 Stock Option Plan or the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents, except that in no event shall any information included in any such document in response to Item 402(i), (k) or (l) of Regulation S-K be deemed to constitute a part of this Registration Statement. Any statements contained 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 also is or is 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. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The validity of the shares of the Registrant's common stock registered pursuant to this Registration Statement will be passed upon by Steven F. Crooke, Vice President and General Counsel of the Registrant. As of June 6, 2003, Mr. Crooke did not own any shares of the Registrant's common stock, but had been granted options exercisable with respect to 25,000 shares of the Registrant's common stock. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. (a) Section 145 of the General Corporation Law of Delaware (the "DGCL") gives Delaware corporations broad powers to indemnify their present and former directors and officers and those of affiliated corporations against expenses incurred in the defense of any lawsuit to which they are made parties by reason of being or having been such directors or officers, including expenses relating to liabilities under the Securities Act of 1933, as amended (the "Securities Act"), subject to specified conditions and exclusions, and gives a director or officer who successfully defends an action the right to be so indemnified, and authorizes the Company to buy directors' and officers' liability insurance. Such indemnification is not exclusive of any other rights to which those indemnified may be entitled under any by-laws, agreement, vote of the stockholders or otherwise. (b) The Company's Bylaws provide that the Company shall indemnify officers and directors of the Company to the fullest extent permitted by and in the manner permissible under the DGCL. (c) In accordance with Section 102(b)(7) of the DGCL, the Company's Restated Certificate of Incorporation provides that directors shall not be personally liable for monetary damages for breaches of their fiduciary duty as directors except for (1) breaches of their duty of loyalty to the Company or its stockholders, (2) acts or omissions not in good faith or which involve intentional misconduct or knowing violations of law, (3) under Section 174 of the DGCL (unlawful payment of dividends) or (4) transactions from which a director derives an improper personal benefit. 2 (d) The Company has obtained directors and officers liability insurance for each of its directors and executive officers which (subject to certain limits and deductibles) (i) insures such persons against loss arising from certain claims made against them by reason of such persons being a director or officer, and (ii) insures the Company against loss which it may be required or permitted to pay as indemnification due such persons for certain claims. Such insurance may provide coverage for certain matters as to which the Company may not be permitted by law to provide indemnification. (e) For information regarding the Company's undertaking to submit to adjudication the issue of indemnification for violation of the securities laws, see "Undertakings," Item 9 hereof. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. A list of the exhibits included as part of this Registration Statement is set forth in the Exhibit Index which immediately precedes such exhibits and is incorporated herein 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 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) 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 Registrant 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 (1)(i) and (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 Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each 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 (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 an employee benefit 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 Securities Act of 1933 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 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 Act and will be governed by the final adjudication of such issue. 4 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 the City of Mission Woods, State of Kansas, on June 4, 2003. LAYNE CHRISTENSEN COMPANY By: /s/ A.B. Schmitt -------------------------------- Name: A. B. Schmitt ------------------------------- Title: President and Chief Executive Officer ------------------------------------- POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints Andrew B. Schmitt and Steven F. Crooke, and each of them, his true and lawful attorneys-in-fact and agents, 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 all documents relating thereto, 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, full power and authority to do and perform each and every act and thing necessary or advisable to be done in and about the premises, 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 his substitute or substitutes, lawfully may 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/ A.B. Schmitt President, Chief Executive Officer and Director June 4, 2003 - -------------------------- (Principal Executive Officer) A. B. Schmitt /s/ Jerry W. Fanska Vice President--Finance and Treasurer June 4, 2003 - -------------------------- (Principal Financial and Accounting Officer) Jerry W. Fanska /s/ Robert J. Dineen Director June 4, 2003 - -------------------------- Robert J. Dineen /s/ Edward A. Gilhuly Director June 4, 2003 - -------------------------- Edward A. Gilhuly /s/ Todd A. Fisher Director June 4, 2003 - -------------------------- Todd A. Fisher /s/ Donald K. Miller Director June 4, 2003 - -------------------------- Donald K. Miller /s/ Sheldon R. Erikson Director June 4, 2003 - -------------------------- Sheldon R. Erikson
5 INDEX TO EXHIBITS SEQUENTIALLY EXHIBIT NO. DESCRIPTION NUMBERED PAGE - ----------- ----------- ------------- 4(a) Specimen stock certificate (filed as * Exhibit 4(1) to the Registrant's Registration Statement on Form S-1, S.E.C. File No. 33-48432 and incorporated herein by reference). 4(b) Restated Certificate of Incorporation * of Layne Christensen Company (filed as Exhibit 3(1) to the Registrant's Annual Report on Form 10-K for the fiscal year ended January 31, 1996 and incorporated herein by reference). 4(c) Bylaws of Layne, Inc. (filed as Exhibit * 3(2) to the Registrant's Registration Statement on Form S-1, S.E.C. File No. 33-48432 and incorporated herein by reference). 4(d) Layne Christensen Company 2002 Stock Option Plan 7 5 Opinion of Steven F. Crooke, Vice President 18 and General Counsel, for the Registrant, with respect to the legality of Registrant's common stock registered hereby. 23(a) Consent of Registrant's Independent 19 Accountants. 23(b) Consent of Steven F. Crooke, the Registrant's 18 Counsel (contained in the Opinion of Counsel filed as Exhibit 5). 25 Power of Attorney (included on Signature page * to original filing of this Registration Statement). * Incorporated herein by reference. 6 EX-4.D 3 l01197aexv4wd.txt EXHIBIT 4(D) EXHIBIT 4(d) LAYNE CHRISTENSEN COMPANY 2002 STOCK OPTION PLAN Layne Christensen Company, a Delaware corporation (the "Company"), desires to provide additional incentive for key employees to promote the success of the Company and any subsidiaries by allowing such employees to share in the future growth of the business and to participate in the ownership of the Company. Accordingly, the Company hereby establishes the 2002 Stock Option Plan of Layne Christensen Company (the "Plan") to offer eligible employees the opportunity to become owners of capital stock of the Company under stock options, certain of which are intended to qualify as incentive stock options under Section 422 of the Internal Revenue Code of 1986, as amended, and certain of which are intended to be nonqualified stock options. The Plan is adopted, as follows, effective March 1, 2002. ARTICLE I DEFINITIONS Whenever the following terms are used in this Plan, they shall have the meaning specified below unless the context clearly indicates to the contrary. The masculine pronoun shall include the feminine and neuter, and the singular the plural, where the context so indicates. 1.1 BOARD -- "Board" shall mean the Board of Directors of the Company. Members of the Board shall be referred to as "Directors." 1.2 CHANGE OF CONTROL -- "Change of Control" for purposes of this Plan shall mean a change in control of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (in effect on the date hereof) promulgated under the Securities Exchange Act of 1934, as in effect on the date hereof; provided, however, that, without limitation, such a Change of Control shall be deemed to occur when either (i) a person (other than KKR Associates, L.P. and/or any of its affiliates, or a Director nominated or selected by the Committee or an Officer elected by the Board) acquires beneficial ownership (as defined by Securities and Exchange Commission Rule 13d-3) of 25% or more of the combined voting power of the Company's voting securities, or (ii) less than a majority of the Directors are persons who were either nominated or selected by the Board. 1.3 CODE -- "Code" shall mean the Internal Revenue Code of 1986, as amended. 1.4 COMMITTEE -- "Committee" means (i) the Board or (ii) one or more committees of the Board to whom the Board has delegated all or part of its authority under this Plan. 1.5 COMPANY -- "Company" shall mean Layne Christensen Company, a Delaware corporation. 1.6 EMPLOYEE -- An individual employed by the Company or a Subsidiary. 1.7 EXCHANGE ACT -- "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 1.8 FAIR MARKET VALUE - the "Fair Market Value" of a share of the Stock as of any applicable date shall be: (a) the closing price of the Stock on the principal exchange on which shares of the Stock are then trading, if any, on the day previous to such date, or, if shares were not traded on the day previous to such date, then on the next preceding trading day during which a sale occurred; (b) if the Stock is not so listed on a principal exchange but is traded on the Nasdaq Stock Market (whether Nasdaq National Market or Nasdaq Small Cap Market), the closing price, regular way, of the security on the Nasdaq Stock Market on the day previous to such date, or if no such reported sale of the security shall have occurred on such date, on the latest preceding date on which there was a reported sale, or (c) if the Stock is not listed for trading on a principal exchange or the Nasdaq Stock Market, the average of the closing bid and asked prices as reported by the Nasdaq Over the Counter Bulletin Board, or, if no such prices shall have been so reported for such date, on the latest preceding date for which such prices were reported; or (d) if the Stock is not publicly traded on an exchange and is not listed on the Nasdaq Stock Market, the Nasdaq Over the Counter Bulletin Board or a successor quotation system, the fair market value of the security as determined in good faith by the Committee. 1.9 INCENTIVE STOCK OPTION -- "Incentive Stock Option" shall mean an option granted hereunder which qualifies under Section 422 of the Code as an incentive stock option and which is designated as an Incentive Stock Option by the Committee. 1.10 KEY EMPLOYEE -- "Key Employee" shall mean any Employee of the Company who, in the sole discretion of the Committee, has made or is expected to make, a significant contribution to the Company. 1.11 NONQUALIFIED STOCK OPTION -- "Nonqualified Stock Option" shall mean an option granted hereunder which is not an Incentive Stock Option and which is designated as a Nonqualified Stock Option by the Committee. 1.12 OFFICER -- "Officer" shall mean an officer of the Company or any Subsidiary as defined in the Securities and Exchange Commission Rule 16a - 1(f), as amended. 2 1.13 OPTION -- "Option" shall mean an option to purchase common stock of the Company granted under the Plan. "Option" includes both Incentive Stock Options and Nonqualified Stock Options. 1.14 OPTIONEE -- "Optionee" shall mean an Employee to whom an Option has been granted under the Plan. 1.15 OPTION PERIOD -- "Option Period" shall mean the period during which an Option may be exercised as determined by the Committee under the terms of Section 4.3(a) hereof and as set forth in the individual Option Agreement. 1.16 PERMANENT DISABILITY -- "Permanent Disability" shall mean a condition of permanent disability as determined in good faith by a majority of the Committee. 1.17 PLAN -- "Plan" shall mean the 2002 Stock Option Plan of Layne Christensen Company 1.18 RETIREMENT -- "Retirement" shall mean retirement from the Company at age 62 or older (or such earlier age as may be approved by the Committee). 1.19 SECURITIES ACT -- "Securities Act" shall mean the Securities Act of 1933, as amended. 1.20 STOCK -- "Stock" or "Shares" shall mean shares of the common stock of the Company. 1.21 SUBSIDIARY -- "Subsidiary" or "Subsidiaries" shall mean subsidiary corporations or a subsidiary corporation of the Company within the meaning of Section 424(f) of the Code. 1.22 TERMINATION OF EMPLOYMENT -- "Termination of Employment" shall mean the time when the employer-employee relationship between the Company or a Subsidiary and the Optionee ceases for any reason. The Committee, in its absolute discretion, shall determine the effect of all matters and questions relating to Termination of Employment including, but not limited to, whether a particular leave of absence constitutes a Termination of Employment; provided, however, that with respect to Incentive Stock Options, a leave of absence shall constitute a Termination of Employment if, and to the extent that, such leave of absence interrupts employment for the purposes of Section 422(a)(2) of the Code and the then applicable rulings and regulations under such Section. ARTICLE II STOCK SUBJECT TO PLAN 2.1 STOCK SUBJECT TO PLAN -- Options granted under this Plan shall be granted solely with respect to shares of Stock. Subject to any adjustments made pursuant to the provisions of Section 2.4 hereof, the aggregate number of shares of stock which may be issued under this Plan shall not exceed 600,000. The shares of Stock issuable and deliverable upon the exercise of an 3 Option, or any portion thereof, may be either previously authorized but unissued shares or issued shares which have been reacquired by the Company. 2.2 INCENTIVE STOCK OPTION - $100,000 LIMITATION -- The aggregate fair market value (determined as of the time the Incentive Stock Option is granted) of the Stock with respect to which Incentive Stock Options are exercisable for the first time by an Optionee during any calendar year under the Plan (or any other plan of the Company or its Subsidiaries which qualifies as an incentive stock option plan under Section 422 of the Code) shall not exceed $100,000. If the fair market value (determined as of the time the Option is granted) of the Stock with respect to which Options are exercisable by an Optionee exceeds $100,000 during any calendar year, the amount in excess of $100,000 shall be treated as Options which are not Incentive Stock Options. 2.3 UNEXERCISED OPTIONS -- If any Option expires or is canceled without having been fully exercised, the number of shares subject to such Option but as to which such Option was not exercised prior to its expiration or cancellation may again be made available for grant hereunder, subject to the limitations of Sections 2.1 and 2.2. 2.4 ADJUSTMENTS IN COMPANY'S SHARES -- In the event the Stock is changed into or exchanged for a different number or kind of securities of the Company by reason of merger, consolidation, recapitalization, reclassification, stock split, stock dividend or combination of shares, the Committee shall make an appropriate and equitable adjustment in the number and kind of shares (a) as to which Options may be granted, including adjustments of the limitation in Section 2.1; and (b) as to which Options, or portions thereof unexercised, shall be exercisable, to the end that after such event each Optionee's proportionate interest shall be maintained as before the occurrence of such event; provided, however, that no such adjustment shall be made which would disqualify an Incentive Stock Option within the meaning of Section 424(h) of the Code. Such adjustment in an outstanding Option shall be made with any necessary corresponding adjustment in Option price per share and without change in the total price applicable to the Options or the unexercised portion of the Options (except for any change in the aggregate price resulting from rounding-off of share quantities or prices). Any such adjustment made by the Committee shall be final and binding upon all Optionees, the Company and all other interested persons. ARTICLE III ELIGIBILITY AND GRANTING OF OPTIONS 3.1 ELIGIBILITY -- (a) Options to purchase shares of Stock shall be granted under this Plan only to Key Employees of the Company and its Subsidiaries. (b) Incentive Stock Option - Ownership Limitation -- Notwithstanding the provisions of subsection (a), no Incentive Stock Option shall be granted under this Plan to any Employee of the Company or its Subsidiaries who, immediately before the Option is granted, owns (either directly or by application of the rules contained in Section 424(d) of the Code) stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or its Subsidiaries. This ownership limitation shall not apply if at the time the Incentive Stock Option is granted (i) the option price is at least 110% of the fair 4 market value of the stock subject to such Incentive Stock Option, and (ii) such Incentive Stock Option will expire no later than five years from the date on which it is granted. 3.2 GRANTING OF OPTIONS -- (a) The Committee shall from time to time and in its absolute discretion: (i) Determine which Key Employees (including those to whom Options have been previously granted under the Plan) should be granted Options; (ii) Determine the number of shares to be subject to such Options granted to such selected Key Employees, and determine whether such Options are to be Incentive Stock Options or Nonqualified Stock Options; and (iii) Determine the terms and conditions of such Options, consistent with the Plan. (b) Upon the selection of a Key Employee to be granted an Option, the Committee shall grant such Option and may impose such conditions on the grant of such Option as it deems appropriate. Without limiting the generality of the preceding sentence, the Committee may, in its discretion and on such terms as it deems appropriate, require as a condition on the grant of an Option to an Optionee that the Optionee surrender for cancellation some or all of the unexercised Options which have been previously granted to him. An Option the grant of which is conditioned upon such surrender may have an option price lower (or higher) than the option price of the surrendered Option, may cover the same (or a lesser or greater) number of shares as the surrendered Option, may contain such other terms as the Committee deems appropriate and shall be exercisable in accordance with its terms, without regard to the number of shares, price, option period or any other term or condition of the surrendered Option. (c) No Option may be granted hereunder after ten (10) years from the earlier of (i) the date the Plan is adopted by the Committee or (ii) the date the Plan is approved by the stockholders of the Company. (d) An Option shall be deemed granted on the date the Committee approves the granting of such Option; provided, however, that any Option shall terminate thirty (30) days after the date upon which it shall have been granted unless a Stock Option Agreement duly executed by the Optionee shall have been redelivered to the Company within such thirty (30) day period. ARTICLE IV TERMS OF OPTION 4.1 OPTION AGREEMENT -- Each Option shall be evidenced by a written Stock Option Agreement, which shall be executed by the Optionee and an authorized officer of the Company. The terms and conditions of a Stock Option Agreement shall be consistent with the Plan, but the Committee shall have the power and authority to include such other terms and 5 conditions which are not inconsistent with the Plan. Stock Option Agreements evidencing Incentive Stock Options shall contain such terms and conditions as may be necessary to qualify such Options as "incentive stock options" under Section 422 of the Code. 4.2 OPTION PRICE -- The price of the shares subject to each Option shall be determined by the Committee and set forth in the respective Stock Option Agreement; provided, however, that the price per share for shares subject to an Incentive Stock Option shall (i) be not less than 100% of the Fair Market Value of such shares on the date such Incentive Stock Option is granted and (ii) be not less than 110% of the Fair Market Value of such shares on the date such Incentive Stock Option is granted in the case of a grant to an Optionee then owning (within the meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of stock of the Company or its Subsidiaries. 4.3 PERIOD AND EXERCISE OF OPTION -- (a) PERIOD -- Subject to the provisions of the Stock Option Agreement and the other restrictions contained in the Plan, an Option shall become exercisable at such times and in such installments (which may be cumulative) as the Committee shall provide in the terms of each individual Option Agreement, and the period during which such Option (or installment) may be exercised shall terminate at such times as the Committee shall provide in the terms of each individual Option Agreement. The Committee may adopt a resolution after an Option is granted and on such terms and conditions as it deems appropriate whereby the time during which such Option or any portion thereof may be exercised is accelerated. Each Option shall expire, in all cases, upon the first to occur of the following events: (i) in the case of an Incentive Stock Option, the expiration of ten (10) years from the date the Incentive Stock Option is granted; (ii) if an Optionee owned (either directly or by application of the rules contained in Section 425(d) or the Code) stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or its Subsidiaries immediately before an Incentive Stock Option is granted to such Optionee, then the expiration of five (5) years from the date the Incentive Stock Option is granted; (iii) the time of the Optionee's Termination of Employment unless such Termination of Employment results from his death, Permanent Disability or Retirement; (iv) the expiration of thirty (30) days from the time of the Optionee's Termination of Employment by reason of his Permanent Disability or Retirement; (v) the expiration of ninety (90) days from the time of the Optionee's Termination of Employment by reason of his death; or 6 (vi) the Optionee shall engage in willful misconduct which injures the Company or any of its Subsidiaries. Except as set forth in subsections (iii), (iv) and (v) above, an Incentive Stock Option shall not be exercisable during the Option Period unless the Optionee shall have been continuously employed by the Company or a Subsidiary from the date the Incentive Stock Option was granted until its date of exercise. Upon expiration of the Option Period, as accelerated if applicable, the Option shall terminate with respect to all shares of Stock not already actually purchased and paid for in full by the Optionee. (b) PERSONS ELIGIBLE TO EXERCISE -- An Option granted hereunder (or portion thereof) shall be exercisable only by the Optionee; provided, however, that in the event of an Optionee's death, the heirs, executors or personal representatives of such Optionee may exercise the Option subject to the time periods set forth above in Section 4.3(a). (c) PARTIAL EXERCISE -- Any exercisable portion of the Option or the entire Option, if then wholly exercisable, may be exercised in whole or in part during the applicable Option Period; provided, however, that the Company shall not be required to issue fractional shares and the Committee may, by the terms of the Option, require any partial exercise to be with respect to a specified minimum number of shares. (d) MANNER OF EXERCISE -- An exercisable Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company or his office of all of the following prior to the time when such Option or portion thereof becomes unexercisable under the terms of this Plan or the applicable Stock Option Agreement: (i) Notice in writing signed by the Optionee or other person then entitled to exercise such Option or portion thereof, stating that such Option or portion thereof is exercised, such notice complying with all applicable rules established by the Committee; (ii) Full payment for the shares with respect to which such Option or portion thereof is exercised through one or more of the following methods: A. Cash or certified bank check; or B. By delivery to the Company of certificates representing the number of Shares then owned by the Optionee, the Fair Market Value of which equals the purchase price of the Stock purchased pursuant to the Option, properly endorsed for transfer to the Company; provided however, that Shares used for this purpose must have been held by the Optionee for such minimum period of time as may be established from time to time by the Committee; and provided further that the Fair Market 7 Value of any Shares delivered in payment of the purchase price upon exercise of the Options shall be the Fair Market Value as of the exercise date, which shall be the date of delivery of the certificates for the Stock used as payment of the Option Price. In lieu of actually surrendering to the Company the stock certificates representing the number of Shares then owned by the Optionee, the Committee may, in its discretion permit the Optionee to submit to the Company a statement affirming ownership by the Optionee of such number of Shares and request that such Shares, although not actually surrendered, be deemed to have been surrendered by the Optionee as payment of the exercise price; (iii) Such representations and documents as the Committee, in its absolute discretion, deems necessary or advisable to effect compliance with all applicable provisions of the Securities Act and any other federal or state securities laws or regulations. The Committee may, in its absolute discretion, also take whatever additional actions it deems appropriate to effect such compliance including, without limitation, placing legends on share certificates and issuing stop-transfer orders to transfer agents and registrars; (iv) Full payment (in cash or by check) to the Company of all amounts which, under federal, state or local law, it is required to withhold in connection with the exercise of the Option; and (v) In the event the Option or portion thereof shall be exercised by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option. 4.4 CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES -- The Company shall not be required to issue or deliver any certificate or certificates for shares of Stock purchased upon the exercise of any Option or portion thereof prior to fulfillment of all of the following conditions: (a) The completion of any registration or other qualification of or notice regarding such shares under any state or federal law or under the rules or regulations of the Securities and Exchange Commission or any other governmental regulatory body, which the Committee shall, in its absolute discretion, deem necessary or advisable; (b) The obtaining of any approval or other clearance from any state or federal governmental agency which the Committee shall, in its absolute discretion, determine to be necessary or advisable; and (c) The lapse of such reasonable period of time following the exercise of the Option as the Committee may establish from time to time for reasons of administrative convenience, provided that, upon issuance, the shares shall be considered issued and outstanding as of the date such Option was exercised. 8 4.5 RIGHTS AS STOCKHOLDERS -- The holders of Options shall not be, nor have any of the rights or privileges of, stockholders of the Company in respect of any shares purchasable upon the exercise of any part of an Option unless and until certificates representing such shares have been issued by the Company to such holders. 4.6 REORGANIZATION, CHANGE IN CONTROL, OR LIQUIDATION -- In the event the Company shall not be the surviving corporation in any merger, consolidation, or reorganization, or in the event of acquisition by another corporation of all or substantially all of the assets of the Company, every Option outstanding hereunder may be assumed (with appropriate changes) by the surviving, continuing, successor or purchasing corporation, as the case may be, subject to any applicable provisions of the Code or replaced with new Options of comparable value (in accordance with Section 424(a) of the Code). In the event (i) that such surviving, continuing, successor or purchasing corporation, as the case may be, does not assume or replace the outstanding Options hereunder, or (ii) of liquidation or dissolution of the Company, the Committee may provide that each Optionee shall have the right, within a period commencing not more than thirty (30) days immediately prior to and ending on the day immediately prior to such merger, consolidation, reorganization or acquisition by another corporation of all or substantially all of the assets of the Company or the liquidation or dissolution of the Company, to exercise the Optionee's outstanding Options to the extent of all or any part of the aggregate number of shares subject to such Option(s). In the event of a Change of Control the Committee may accelerate the time at which Options granted under this Plan may be exercised by the Optionee. 4.7 TRANSFER RESTRICTIONS -- The Committee, in its absolute discretion, may impose such other restrictions on the transferability of the shares purchasable upon the exercise of an Option as it deems appropriate. Any such other restriction shall be set forth in the respective Stock Option Agreement and may be referred to on the certificates evidencing such shares. The Committee may require the Employee to give the Company prompt notice of any disposition of shares of stock, acquired by exercise of an Incentive Stock Option, within two (2) years from the date of granting such Option or one (1) year after the transfer of such shares to such Employee. The Committee may direct that the certificates evidencing shares acquired by exercise of an Option refer to such requirement to give prompt notice of disposition. ARTICLE V ADMINISTRATION 5.1 DUTIES AND POWERS OF THE COMMITTEE -- The Committee shall have the power to interpret this Plan and any Stock Option Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent herewith and to interpret, amend, or revoke any such rules. Any such interpretations and rules in regard to Incentive Stock Options shall be consistent with the basic purpose of the Plan to grant "incentive stock options" within the meaning of Section 422 of the Code. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to this Plan or an Option. 5.2 EXPENSES: INDEMNIFICATION -- All reasonable expenses and liabilities actually incurred in connection with the administration of the Plan shall be borne by the Company. The Committee may employ attorneys, consultants, accountants, appraisers, brokers or other 9 persons. The Company and its Officers and Directors shall be fully justified in relying, or acting in good faith upon the advice, opinion, valuations or information furnished by such persons. All actions taken and all interpretations and determinations made by the Committee in good faith shall be final and binding upon all Optionees, the Company and all other interested persons. Each person who is or shall have been a member of the Committee shall be indemnified and held harmless by the Company against and from any and all loss, cost, liability or expense that may be imposed upon or reasonably incurred by such person in connection with or resulting from any claim, action, suit or proceeding to which such person may be or becomes a party or in which such person may be or becomes involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by such person in settlement thereof (with the Company's written approval) or paid by such person in satisfaction of a judgment in any such action, suit or proceeding, except a judgment in favor of the Company based upon a finding of such person's lack of good faith; subject, however, to the condition that upon the institution of any claim, action, suit or proceeding against such person, such person shall, in writing, give the Company notice and an opportunity, at its own expense, to handle his own defense. The foregoing right of indemnification shall not be exclusive of any other right to which such person may be entitled as a matter of law or otherwise or any other right or power that the Company may have to indemnify or hold such person harmless. ARTICLE VI MISCELLANEOUS 6.1 OPTIONS NOT TRANSFERABLE -- Neither an Option nor any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Optionee or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition is voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that this Section 6.1 shall not prevent transfers by will or by the applicable laws of descent and distribution. 6.2 AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN -- No Option shall be granted pursuant to this Plan after February 29, 2012, on which date this Plan will terminate except as to Options then outstanding under the Plan. Options outstanding as of February 29, 2012, shall remain in effect until they are exercised or they expire. The Committee may at any time before such date amend, modify or terminate the Plan; provided, however, that, except as provided in Section 2.4, the Committee may not, without further approval by the holders of a majority of the issued and outstanding shares of Stock, (a) increase the maximum number of shares of Stock as to which Options may be granted pursuant to this Plan, (b) change the class of Employees eligible to be granted options pursuant to this Plan, (c) extend the period during which Options may be granted or exercised, 10 (d) change the provisions of Article IV hereof with respect to the determination of the option price, other than to change the manner of determining the fair market value of shares of Stock to conform with any then applicable provisions of the Code or the regulations issued thereunder, or (e) amend or modify the Plan in a manner requiring shareholder approval under Rule 16b-3. No amendment, modification or termination of this Plan may adversely affect the rights of any Optionee under any then outstanding Option granted hereunder without the consent of such Optionee. 6.3 APPROVAL OF PLAN BY SHAREHOLDERS -- This Plan will be submitted for the approval of the Company's shareholders within twelve (12) months after the date of the Board's initial adoption of the Plan and thereafter at any such time as may be required under the Code, Securities Act or the Exchange Act. Options may be granted prior to such shareholder approval; provided, however, that (a) such Options shall not be exercisable prior to the time when the shareholders shall have approved the Plan, and (b) if the shareholders have not approved the Plan by the end of the twelve (12) month period, all Options previously granted under the Plan shall thereupon be canceled and become null and void. 6.4 EFFECT OF PLAN UPON OTHER COMPENSATION PLANS -- Nothing in this Plan shall be construed to limit the right of the Company (a) to establish any other forms of incentive or other compensation for Employees, or (b) to grant or assume options otherwise than under this Plan in connection with any proper corporate purpose including, without limitation, the grant or assumption of options in connection with the acquisition by purchase, lease, merger, consolidation or otherwise, of the business, stock or assets of any corporation, firm or association. 6.5 EFFECT OF PLAN UPON EMPLOYMENT -- Nothing in this Plan shall be construed as an obligation of the Company or its Subsidiaries to continue the employment of any Employee. 6.6 TITLES -- Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Plan. 6.7 GOVERNING LAW -- The laws of the State of Kansas shall govern the interpretation, validity and performance of the terms of this Plan regardless of the law that might be applied under principles of conflicts of laws. 6.8 CONFORMITY TO SECURITIES LAWS -- The Plan is intended to conform to the extent necessary with all provisions of the Securities Act and the Exchange Act, and any and all regulations and rules promulgated by the Securities and Exchange Commission thereunder including, without limitation, Rule 16b-3. Notwithstanding anything herein to the contrary, the Plan shall be administered, and Options shall be granted and may be exercised, only in such manner as to conform to such laws, rules and regulations. To the extent permitted by applicable law, the Plan and Options granted hereunder shall be deemed amended to the extent necessary to conform to such laws, rules and regulations. EX-5 4 l01197aexv5.txt EXHIBIT 5 EXHIBIT 5 LAYNE CHRISTENSEN COMPANY 1900 Shawnee Mission Parkway o Mission Woods, Kansas 66205 o (913) 362-0510 o Fax: (913) 362-0133 STEVEN F. CROOKE Vice President, General Counsel and Secretary June 6, 2003 Board of Directors LAYNE CHRISTENSEN COMPANY 1900 Shawnee Mission Parkway Mission Woods, Kansas 66205 Gentlemen: Reference is made to the Registration Statement on Form S-8 (the "Registration Statement") of Layne Christensen Company, a Delaware corporation (the "Company"), to be filed with the Securities and Exchange Commission on or about June 6, 2003, for the purpose of registering under the Securities Act of 1933, as amended, 300,000 shares of Common Stock, par value $.01 per share ("Common Stock"), of the Company. Said 300,000 shares of Common Stock are proposed to be issued pursuant to the Layne Christensen 2002 Stock Option Plan. I have examined the Company's Restated Certificate of Incorporation and all amendments thereto, the Bylaws of the Company, as presently in effect, minutes of the applicable meetings of the Board of Directors, Compensation Committee of the Board of Directors and stockholders of the Company, together with such other corporate records, certificates of public officials and other documents as I have deemed relevant to this opinion. Based upon the foregoing, it is my opinion that: 1. The Company is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware. 2. All necessary corporate action has been taken to authorize the issuance of the aforesaid 300,000 shares of Common Stock and all such shares as shall be issued and paid for as described in the Registration Statement shall be, when so issued, legally issued, fully paid and nonassessable. I hereby consent to the reference to myself under the heading "Interests of Named Experts and Counsel" in the Registration Statement. I also consent to the inclusion of this opinion in the Registration Statement as an exhibit thereto. Sincerely, /s/ Steven F. Crooke Steven F. Crooke SFC/cg EX-23.A 5 l01197aexv23wa.txt EXHIBIT 23(A) EXHIBIT 23(a) INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Layne Christensen Company on Form S-8 of our reports dated March 31, 2003 and April 3, 2003, appearing in the Annual Report on Form 10-K of Layne Christensen Company for the year ended January 31, 2003. /s/ Deloitte & Touche LLP Kansas City, Missouri June 6, 2003 -----END PRIVACY-ENHANCED MESSAGE-----