Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan — Form S-8 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-8 Registration of Securities to be Offered to HTML 63K
Employees Pursuant to an Employee
Benefit Plan
2: EX-4.4 Instrument Defining the Rights of Security Holders HTML 56K
3: EX-5.1 Opinion re: Legality HTML 11K
4: EX-23.1 Consent of Experts or Counsel HTML 7K
5: EX-23.2 Consent of Experts or Counsel HTML 7K
EX-4.4 — Instrument Defining the Rights of Security Holders
1.Purpose.
The
purpose of the Hill International, Inc. Employee Stock Purchase Plan (the
“ESPP”) is to provide employees of Hill International, Inc., a Delaware
corporation (the “Company”), with an opportunity to be compensated through the
benefits of stock ownership and to acquire an interest in the Company through
the purchase of common stock of the Company (“Common Stock”). The Company
intends the ESPP to qualify as an employee stock purchase plan under Section
423
of the Internal Revenue Code. Accordingly, the provisions of the ESPP shall
be
construed so as to extend and limit participation in a manner consistent with
the requirements of Section 423.
2.Definitions.
(a)
“Board
of Directors”
means
the board of directors of the Company.
(b) “Code”
means
the Internal Revenue Code of 1986, as amended.
(c) “Compensation”
shall
mean all regular gross wages exclusive of commissions, overtime, shift premium,
incentive compensation, incentive payments, bonuses and other compensation;
except as the Company may otherwise determine from time to time pursuant to
rules uniformly applied.
(d) “Designated
Subsidiaries”
shall
mean the Subsidiaries which have been designated by the Board of Directors
from
time to time in its sole discretion as eligible to participate in the
ESPP.
(e) “Eligible
Employee”
means
any Employee of the Company or a Designated Subsidiary, excluding:
(1) any
Employee who customarily is employed for twenty (20) hours per week or less;
(2) any
Employee who would own (immediately after the grant of an option under the
ESPP
and applying the rules of Code Section 424(d) in determining stock ownership)
shares, and/or hold outstanding options to purchase shares, possessing five
percent (5%) or more of the total combined voting power or value of all classes
of shares of the Company or of any Parent or Subsidiary;
(3) any
employee who has been employed for a minimum of 90 days as of a Purchase Date
or
any lesser or greater minimum employment period not to exceed two years that
is
established by the Plan Administrator; and
(4) if
established by the Plan Administrator, any Employee who customarily is employed
for five (5) months or less.
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If
the
Company permits any employee of a Designated Subsidiary to participate in the
ESPP, then all employees of that Designated Subsidiary who meet the foregoing
requirements shall also be considered Eligible Employees.
(f) “Employee”
means
any common law employee employed by the Company or a Subsidiary.
(g) “Parent”
means
a
corporation (other than the Company) in an unbroken chain of corporations ending
with the Company if, at the time of the granting of the option hereunder, each
of the corporations other than the Company owns stock possessing fifty percent
(50%) or more of the total combined voting power of all classes of stock in
one
of the other corporations in such chain.
(h) “Participant”
means
an Eligible Employee who participates in the ESPP pursuant to Paragraph
3.
(i)Plan
Administrator”
means
the Company’s Board of Directors or any Board appointed committee, or by one or
more executive officers designated by the Board or the committee.
(j) “Purchase
Date”
means
the day a Participant in the ESPP gives notice to the Company of his election
to
purchases shares of the Common Stock.
(k) “Subsidiary”
means
a
corporation (other than the Company) in an unbroken chain of corporations
beginning with the Company if, at the time of the granting of the option
hereunder, each of the corporations other than the last corporation in the
unbroken chain owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
3.Eligibility
and Participation.
(a) Any
person who has been an Eligible Employee at least ninety (90) days shall be
eligible to become a Participant in the ESPP.
(b) A
person
shall cease to be an active Participant three (3) months after the date of
a
termination of employment from the Company and all Designated Subsidiaries,
for
any reason other than for cause. If such person’s employment has been terminated
for cause, he shall cease to be an active Participant on the date of such
termination. The Board of Directors shall determine, in its sole discretion,
and
on a case by case basis, whether any Participant’s employment has been
terminated for cause.
4.Grant
of Right to Purchase and Purchase Price.
(a) A
Participant is granted a right to purchase a whole number of shares at
eighty-five percent (85%) of the fair market value of the Common Stock on the
Purchase Date.
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(b) Notwithstanding
the preceding subparagraph or any other provisions of the ESPP, and
notwithstanding that fact that, in effect, a new option to purchase Common
Stock is granted each day under the ESPP to replace the option issued the
preceding day, the aggregate amount of shares which any Participant may purchase
in respect of each calendar year pursuant to all options granted to such
Participant under the ESPP throughout such calendar year may not exceed in
value
(determined at the time the shares are purchased), the amount of
$25,000.
(c) For
purposes of the preceding subparagraphs, the fair market value of a share of
Common Stock on the Purchase Date shall be determined as of each such date,
or
the most immediately preceding business day with respect to which the
information required in the following clauses is available, as follows:
(1) If
the
Common Stock is admitted to trading on any established national stock exchange
or market system on the date in question then the fair market value of a share
of Common Stock shall be equal to the closing sales price for such shares as
quoted on such national exchange or system on such date; or;
(2) if
the
Common Stock is admitted to quotation or is regularly quoted by a recognized
securities dealer but selling prices are not reported on the date in question,
then the fair market value shall be equal to the mean between the bid and asked
prices of the Common Stock reported for such date;
(3) if
there
are no such closing bid and asked prices, the average of the closing bid and
asked prices as reported by any other commercial service.
In
each
case, the applicable price shall be the price reported in such source as the
Board deems reliable; provided, however, that if there is no such reported
price
for the Common Stock for the date in question, then the fair market value shall
be equal to the price reported on the last preceding date for which such price
exists. If neither (1), (2) or (3) is applicable, then the fair market
value shall be determined by the Board in good faith on such basis as it deems
appropriate.
5.Purchase
and Delivery.
Shares
shall not be delivered unless and until payment in full of the purchase price
actually has been received by the Company. No election to purchase shares under
the ESPP shall be valid unless such full payment is received by the Company
within seven calendar days after notice of the employee’s election to purchase
such shares is received by the Company. As soon as administratively feasible
after receipt of the purchase price, the Company shall deliver to the
Participant the shares of Common Stock purchased through participation in the
ESPP. The cost of any disposition of shares of Common Stock acquired through
participation in the ESPP shall be the sole responsibility of the
Participant.
6.Stock
Subject to ESPP.
(a) The
shares of Common Stock to be sold to Participants under the ESPP may, at the
election of the Company, be either treasury shares or shares originally issued
for such purpose. The maximum number of shares made available for sale under
the
ESPP shall be 2,000,000 shares, subject to adjustment upon changes in
capitalization of the Company as provided in Paragraph 9.
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(b) A
Participant will have no interest in shares until a certificate for such shares
is issued.
(c) Shares
to
be delivered to a Participant under the ESPP will be registered in the name
of
the Participant, or if so directed by the Participant and if permissible under
applicable law, in the names of the Participant and one other person designated
by the Participant, as joint tenants with rights of survivorship.
(d) Shares
of
Common Stock purchased under the terms of the ESPP may not be sold for a period
of ninety (90) days following the Purchase Date.
7.Administration.
The Plan
Administrator shall have full and conclusive authority to interpret the ESPP;
to
prescribe, amend and rescind rules and regulations relating to the ESPP; and
to
make all other determinations necessary or advisable for the proper
administration of the ESPP, so long as such interpretation, administration
or
application regarding purchases corresponds to the requirements of Code Section
423. The Plan Administrator’s decisions shall be final and binding. The
Plan Administrator may delegate the duty to perform administrative functions
under the ESPP.
8.Transferability.
No
rights to acquire shares under the ESPP may be assigned, transferred or pledged
in any way by the Participant.
9.Adjustments
Upon Changes in Capitalization.
(a) In
the
event that the outstanding shares of Common Stock of the Company are hereafter
increased or decreased or changed into or exchanged for a different number
or
kind of shares or other securities of the Company by reason of a
recapitalization, reclassification, stock split, combination of shares, or
dividend payable in shares of Common Stock, an appropriate adjustment shall
be
made by the Plan Administrator to the number and kind of shares available for
the ESPP, and to the maximum number of shares purchasable, as specified under
Paragraph 6(a). No fractional shares shall be issued or optioned in making
any
such adjustments. All adjustments made by the Plan Administrator under this
paragraph shall be conclusive.
(b) The
right
to purchase Common Stock pursuant to the ESPP shall not affect in any way the
right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge
or
to consolidate or to dissolve, liquidate or sell, or transfer all or any part
of
its business or assets.
(c) The
Board
of Directors shall be entitled to establish limitations or procedures as the
Board of Directors determines in its sole discretion advisable which are
consistent with the ESPP.
10.Conditions
Upon Issuance of Shares.
Shares
shall not be issued pursuant to the ESPP unless the issuance and delivery of
such shares pursuant thereto shall comply with all applicable provisions of
law,
domestic or foreign, including without limitations, the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval
of
counsel for the Company with respect to such compliance.
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As
a
condition to the purchase of Common Stock, the Company may require the
Participant to represent and warrant at the time of any such purchase that
the
shares are being purchased only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required by any of the aforementioned applicable
provisions of law.
11.Legends.
The
Company reserves the right to place an appropriate legend on any certificate
representing shares of Common Stock issuable under the ESPP with any such legend
reflecting restrictions on the transfer of the shares as may be necessary to
reflect the terms of the ESPP, to assure the availability of applicable
exemptions under federal and state securities laws, or both.
12.Amendment
or Termination. The
Board
of Directors at any time may amend or terminate the ESPP without shareholder
approval; provided, however, that the Board of Directors may condition any
amendment on the approval of the shareholders of the Company if such approval
is
necessary or advisable with respect to tax, securities or other applicable
laws
to which the Company, this ESPP, or Employees are subject. No amendment or
termination of the ESPP shall adversely affect the rights of an Employee without
his consent with respect to Common Stock previously acquired under the
ESPP.
13.Notices.
All
notices or other communications by a Participant to the Company under or in
connection with the ESPP shall be deemed to have been duly given when received
in the form specified by the Company at the location, or by the person,
designated by the Company.
14.No
Contract.
The ESPP
shall not be deemed to constitute a contract between the Company or any
Subsidiary and any Employee or to be a consideration or an inducement for the
employment of any Employee. Nothing contained in the ESPP shall be deemed to
give any Employee the right to be retained in the service of the Company or
any
Subsidiary or to interfere with the right of the Company or any Subsidiary
to
discharge any Employee at any time, regardless of the effect which such
discharge shall have upon him or her as a Participant.
15.Headings
and Construction.
The
headings to Paragraphs in the ESPP have been included for convenience of
reference only. The ESPP shall be interpreted and construed in accordance with
the laws of the State of Delaware.
16.Approval
of Stockholders.
The ESPP
shall be submitted to the stockholders of the Company for their approval within
twelve (12) months after the adoption of the ESPP by the Board of Directors.
The
ESPP is conditioned upon the approval of the stockholders of the Company, and
failure to receive their approval shall render the ESPP void and of no
effect.
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IN
WITNESS WHEREOF, the Company has caused this ESPP to be executed as of this
10th
day of June, 2008.
