Registration No. 333-
As filed with the Securities and Exchange Commission on March 22, 2000
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------
Hub Group, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 36-4007085
State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
377 East Butterfield Road, Suite 700
Lombard, Illinois 60148
(Address of Principal Executive Offices) (Zip Code)
Hub Group, Inc. 1999 Long-Term Incentive Plan
(Full Title of the Plan)
Mark A. Yeager
Hub Group, Inc.
377 East Butterfield Road, Suite 700
Lombard, Illinois 60148
(Name and Address of Agent For Service)
(630) 271-3600
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
========================================================================================================================
Proposed Proposed
Title Of Maximum Maximum
Securities Amount Offering Price Aggregate Amount of
To Be Registered To Be Registered Per Share(1) Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
Class A Common Stock, par
value $.01 per share..... 600,000 Shares(2) $16.0625 $9,637,500.00 $2,544.30
========================================================================================================================
(1) Pursuant to Rule 457(h)(1), the offering price of the Class A
Common Stock was computed on the basis of the average of the high
and low sales prices of the Class A Common Stock on the Nasdaq
Stock Market on March 17, 2000.
(2) The number of shares of Class A Common Stock to be registered may
be adjusted in accordance with the provisions of the Plan in the
event that, during the period that the Plan is in effect, the
number of shares of Class A Common Stock is increased or decreased
or such shares are changed into or exchanged for a different number
or kind of shares of stock or other securities of the Company
through reorganization, merger or consolidation, recapitalization,
stock split, split-up, combination, exchange of shares, declaration
of any Class A Common Stock dividends or similar events without
receipt of consideration by the Company. Accordingly, this
Registration Statement covers, in addition to the number of shares
of Class A Common Stock stated above, an indeterminate number of
shares which by reason of any such events may be issued in
accordance with the provisions of the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by Hub
Group, Inc., a Delaware corporation (the "Company"), with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), File No. 0-27754,
are incorporated by reference herein and shall be deemed to be a part
hereof:
(a) The Company's Annual Report on Form 10-K for the Year ended
December 31, 1998;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, June 30 and September 30, 1999, respectively;
and
(c) The description of Class A Common Stock included in the
Company's Registration Statement on Form 8-A filed with
the Commission on February 13, 1996.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference and shall be deemed a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(a) The Delaware General Corporation Law ("DGCL") (Section 145)
gives the Company broad powers to indemnify its present and former
directors and officers and those of affiliated entities 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, subject to
specified conditions and exclusions, gives such 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-law, agreement, vote of
stockholders or otherwise.
(b) Article Eleventh of the Certificate of Incorporation of the
Registrant permits, and Article VI of the By-Laws of the Registrant
provides for, indemnification of directors, officers, employees and agents
to the fullest extent permitted by law.
(c) In accordance with Section 102(b)(7) of the DGCL, the
Company's Certificate of Incorporation provides that directors shall not be
liable for monetary damages for breaches of their fiduciary duties as
directors except to the extent such exemption from liability or limitation
thereof is not permitted under the DGCL as the same exists or may be
amended from time to time.
II-1
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index which 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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts
or events arising after the effective
date of the registration statement (or
the most recent post-effective
amendment thereof) which, individually
or in the aggregate, represent a
fundamental change in the information
set forth in the registration
statement;
(iii) To include any material information
with respect to the plan of
distribution not previously disclosed
in the registration statement or any
material change to such information in
the registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information
required to be included in a post-effective
amendment by those paragraphs is contained in
periodic reports filed with or furnished to the
Commission by the registrant pursuant to section
13 or section 15(d) of the Exchange Act that are
incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such
post-effective amendment shall be deemed to be a
new registration statement relating to the
securities offered therein, and the offering of
such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
II-2
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the
Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in
the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions,or otherwise, the registrant has
been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection
with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe 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 Village of Lombard, State of Illinois, on
March 22, 2000.
HUB GROUP, INC.
By /s/ David P. Yeager
----------------------------------------
David P. Yeager
Chief Executive Officer and Vice Chairman
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Phillip C. Yeager, David P. Yeager, Thomas L. Hardin and Mark A.
Yeager and each of them, such person's true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for and in
the name, place and stead of such person, in any and all capacities, to
sign any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Commission, and
hereby grants to such attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as
such person might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, and each of them, 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 indicated on March 22, 2000.
Title
------
/s/ David P. Yeager
- ---------------------- Vice-Chairman, Chief Executive Officer
David P. Yeager and Director
/s/ Jay E. Parker
- ---------------------- Vice President-Finance and Chief Financial Officer
Jay E. Parker (Principal Financial and Accounting Officer)
/s/ Phillip C. Yeager
- ---------------------- Chairman and Director
Phillip C. Yeager
/s/ Thomas L. Hardin
- ---------------------- President, Chief Operating Officer and Diretor
Thomas L. Hardin
Charles R. Reaves
- ---------------------- Director
Charles R. Reaves
/s/ Martin P. Slark
- ---------------------- Director
Martin P. Slark
/s/ Gary D. Eppen
- ---------------------- Director
Gary D. Eppen
II-4
EXHIBIT INDEX
Exhibit Description of Exhibit
Number ----------------------
- -------
4.1 Certificate of Incorporation, as amended (incorporated by reference
to Exhibits 3.1 and 3.3 to Registration Statement on Form S-1,
Registration Statement No. 33-90210)
4.2 By-Laws (incorporated by reference to Exhibit 3.2 to Registration
Statement on Form S-1, Registration Statement No. 33-90210)
4.3 Hub Group, Inc. 1999 Long-Term Incentive Plan
5.1 Opinion of Mayer, Brown & Platt
23.1 Consent of Mayer, Brown & Platt (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
II-5
HUB GROUP, INC.
1999 LONG-TERM INCENTIVE PLAN
-----------------------------
HUB GROUP, INC.
1999 LONG-TERM INCENTIVE PLAN
-----------------------------
SECTION 1
---------
GENERAL
-------
1.1 Purpose. The Hub Group, Inc. 1999 Long-Term Incentive Plan
(the "Plan") has been established by Hub Group, Inc. (the "Company") to:
(a) attract and retain key executive and managerial employees;
(b) attract and retain the services of experienced and knowledgeable
directors;
(c) motivate participating employees, by means of appropriate incentives,
to achieve long-range goals;
(d) provide incentive compensation opportunities that are competitive with
those of other corporations; and
(e) further identify Participants' interests with those of the Company's
other shareholders through compensation that is based on the Company's
common stock;
and thereby promote the long-term financial interest of the Company and the
Related Companies, including the growth in value of the Company's equity
and enhancement of long-term shareholder return.
1.2 Defined Terms. Capitalized terms used herein which are not
otherwise defined in the Plan shall have the meaning set forth in subsection
7.19 hereof.
1.3 Participation. Subject to the terms and conditions of the
Plan, the Committee shall determine and designate, from time to time, from
among the employees of the Employers who are key executives or managerial
employees, those persons who will be granted one or more Awards under the
Plan, and thereby become "Participants" in the Plan. Subject to the terms
and conditions of the Plan, the Board, after recommendation of the
Directors who are not Eligible Directors, shall determine and designate,
from time to time, from among the Eligible Directors of the Company those
Eligible Directors who will be granted Options under the Plan, and thereby
become "Participants" in the Plan. In the discretion of the Committee, and
subject to the terms of the Plan, a Participant may be granted any Award
permitted under the provisions of the Plan, and more than one Award may be
granted to a Participant; provided, however, that Participants who are
Eligible Directors may only be granted Options under Sections 2 and 6 of
the Plan and the right to receive an Option under Section 6 shall be
subject to the limitations of that Section. Except as otherwise
-1-
provided by the Committee (or the Board with respect to an Award to an
Eligible Director) and consented to by the Participant, or except as
otherwise provided in the Plan, an Award under the Plan shall not affect
any previous Award under the Plan or an award under any other plan
maintained by the Company or the Related Companies.
1.4 Operation and Administration. The operation and administration
of the Plan, including the Awards made under the Plan, shall be subject to
the provisions of Section 7.
SECTION 2
---------
OPTIONS
------
2.1 Definitions. The grant of an Option under this Section 2
entitles the Participant to purchase shares of Stock at a price fixed at
the time the Option is granted, or at a price determined under a method
established at the time the Option is granted, subject to the terms of this
Section 2. Options granted under this Section 2 may be either Incentive
Stock Options or Non-Qualified Stock Options, as determined in the
discretion of the Committee; provided, however, that any Option granted to
an Eligible Director shall be a Non-Qualified Stock Option.
2.2 Eligibility. The Committee (or the Board in the case of
Options granted to Eligible Directors) shall designate the Participants to
whom Options are to be granted under this Section 2 and shall determine the
number of shares of Stock to be subject to each such Option. Consistent
with the requirements of section 422 of the Code, to the extent that the
aggregate fair market value of Stock with respect to which Incentive Stock
Options are exercisable for the first time by any individual during any
calendar year (under all plans of the Company and all Related Companies)
exceeds $100,000, such options shall be treated as Non-Qualified Stock
Options.
2.3 Price. The determination and payment of the purchase price of
a share of Stock under each Option granted under this Section 2 shall be
subject to the following:
(a) The purchase price shall be established by the Committee (or the
Board in the case of Options granted to Eligible Directors) or
shall be determined by a method established by the Committee (or
the Board in the case of Options granted to Eligible Directors) at
the time the Option is granted; provided, however, that in no
event shall such price be less than the greater of (i) 100% of the
Fair Market Value of a share of Stock as of the date on which the
Option is granted; or (ii) the par value of a share of Stock on
such date.
(b) Subject to the following provisions of this subsection 2.3, the
full purchase price of each share of Stock purchased upon the
exercise of any Option shall be paid at the
-2-
time of such exercise and, as soon as practicable thereafter, a
certificate representing the shares so purchased shall be
delivered to the person entitled thereto.
(c) The purchase price shall be payable in cash or in shares of Stock
(valued at Fair Market Value as of the day of exercise), or in any
combination thereof, as determined by the Committee (or the Board
in the case of Options granted to Eligible Directors).
(d) A Participant may elect to pay the purchase price upon the exercise of
an Option through the following cashless exercise procedures: The
Participant shall notify the Corporate Secretary of the intent to
exercise. Written instructions will then be prepared and delivered to
the Company and the broker indicating the Participant's cashless
election and instructing the Company to deliver to the broker the
Common Stock issuable upon exercise. The exercise of the Option
will be executed on the same day that the broker is able to sell the
stock. The broker will then withhold from the proceeds of the sale
and deliver to the Company an amount, in cash, equal to the Option
exercise price. An additional amount for federal and state tax
withholdings, not to exceed the statutory minimum required tax
withholding, may also be withheld and delivered to the Company at
the Participant's election.
2.4 Exercise. Except as otherwise expressly provided in the Plan,
an Option granted under this Section 2 shall be exercisable in accordance
with the following terms of this subsection 2.4:
(a) The terms and conditions relating to exercise of an Option shall
be established by the Committee (or the Board in the case of
Options granted to Eligible Directors), and may include, without
limitation, conditions relating to completion of a specified
period of service or achievement of performance standards prior to
exercise of the Option.
(b) No Option may be exercised by a Participant: (i) prior to the date on
which the Participant completes one continuous year of employment with
the Company or any Related Company or one continuous year of service
as an Eligible Director, as applicable, after the date as of which
the Option is granted (provided, however, that the Committee (or the
Board in the case of Options granted to Eligible Directors) may
permit earlier exercise following the Participant's Date of
Termination or Termination of Service, as applicable, by reason of
death or Disability); or (ii) after the Expiration Date applicable to
that Option.
(c) The exercise of an Option will result in the surrender of the
corresponding rights under a tandem Stock Appreciation Right, if
any.
2.5 Post-Exercise Limitations. The Committee (or the Board in the
case of Options granted to Eligible Directors), in its discretion, may
impose such restrictions on shares of Stock acquired pursuant to the
exercise of an Option granted under this Section 2 (including stock
acquired pursuant to the exercise of a tandem Stock Appreciation Right) as
it determines
-3-
to be desirable, including, without limitation, restrictions relating to
disposition of the shares and forfeiture restrictions based on service,
performance and such other factors as the Committee (or the Board in the
case of Options granted to Eligible Directors) determines to be
appropriate.
2.6 Expiration Date. The "Expiration Date" with respect to an
Option granted under this Section 2 means the date established as the
Expiration Date by the Committee (or the Board in the case of Options
granted to Eligible Directors) at the time of the grant; provided, however,
that the Expiration Date with respect to any Option shall not be later than
the earliest to occur of:
(a) the ten-year anniversary of the date on which the Option is granted;
(b) if the Participant's Date of Termination or Termination of
Service, as applicable, occurs by reason of Retirement, death or
Disability, the one-year anniversary of such Date of Termination
or Termination of Service; or
(c) if the Participant's Date of Termination or Termination of
Service, as applicable, occurs for reasons other than Retirement,
death or Disability, the 60-day period following such Date of
Termination or Termination of Service.
2.7 Reload of Option. In the event the Participant exercises an
Option granted under this Section 2 and pays all or a portion of the
purchase price in Common Stock, in the manner permitted by subsection 2.3,
such Participant may, in the Committee's discretion (or the Board's
discretion in the case of Options granted to Eligible Directors), be issued
a new Option to purchase additional shares of Stock equal to the number of
shares of Stock surrendered to the Company in such payment. Such new Option
shall have an exercise price equal to the Fair Market Value per share on
the date such new Option is granted, shall first be exercisable six months
from the date of grant of the new Option and shall have an Expiration Date
on the same date as the Expiration Date of the original Option so exercised
by payment of the purchase price in shares of Stock.
2.8 Dividend Equivalents. The Committee (or the Board in the case
of Options granted to Eligible Directors) may award Dividend Equivalents
with respect to Options. The award of Dividend Equivalents shall permit the
Participant to earn an amount equal to the dividends payable with respect
to the number of shares of Stock subject to the Option for the period the
Option is outstanding and unexercised. The right to payment of such earned
dividends shall be subject to such restrictions and limitations as may be
imposed by the Committee (or the Board in the case of Options granted to
Eligible Directors).
-4-
SECTION 3
---------
STOCK APPRECIATION RIGHTS
------------------------
3.1 Definition. Subject to the terms of this Section 3, a "Stock
Appreciation Right" granted under the Plan entitles the Participant to
receive, in cash or Stock (as determined in accordance with subsection
3.4), value equal to all or a portion of the excess of: (a) the Fair Market
Value of a specified number of shares of Stock at the time of exercise;
over (b) a specified price which shall not be less than 100% of the Fair
Market Value of the Stock at the time the Stock Appreciation Right is
granted, or, if granted in tandem with an Option, the exercise price with
respect to shares under the tandem Option.
3.2 Eligibility. Subject to the provisions of the Plan, the
Committee shall designate the Participants to whom Stock Appreciation
Rights are to be granted under the Plan, shall determine the exercise price
or a method by which the price shall be established with respect to each
such Stock Appreciation Right, and shall determine the number of shares of
Stock on which each Stock Appreciation Right is based. A Stock Appreciation
Right may be granted in connection with all or any portion of a previously
or contemporaneously granted Option or not in connection with an Option. If
a Stock Appreciation Right is granted in connection with an Option, then,
in the discretion of the Committee, the Stock Appreciation Right may, but
need not be granted in tandem with the Option.
3.3 Exercise. The exercise of Stock Appreciation Rights shall be
subject to the following:
(a) If a Stock Appreciation Right is not in tandem with an Option, then
the Stock Appreciation Right shall be exercisable in accordance with
the terms established by the Committee in connection with such rights;
provided, however, that except as otherwise expressly provided in the
Plan, no Stock Appreciation Right may be exercised by a Participant
(i) prior to the date on which he completes one continuous year of
employment with the Company or any Related Company after the date as
of which the Stock Appreciation Right is granted (provided, however,
that the Committee may permit earlier exercise following the
Participant's Date of Termination by reason of death or Disability);
or (ii) after the Expiration Date applicable to that Stock
Appreciation Right.
(b) If a Stock Appreciation Right is in tandem with an Option, then
the Stock Appreciation Right shall be exercisable at the time the
tandem Option is exercisable. The exercise of a Stock Appreciation
Right will result in the surrender of the corresponding rights
under the tandem Option.
3.4 Settlement of Award. Upon the exercise of a Stock Appreciation
Right, the value to be distributed to the Participant, in accordance with
subsection 3.1, shall be distributed in
-5-
shares of Stock (valued at their Fair Market Value at the time of
exercise), in cash, or in a combination thereof, in the discretion of the
Committee.
3.5 Post-Exercise Limitations. The Committee, in its discretion,
may impose such restrictions on shares of Stock acquired pursuant to the
exercise of a Stock Appreciation Right as it determines to be desirable,
including, without limitation, restrictions relating to disposition of the
shares and forfeiture restrictions based on service, performance and such
other factors as the Committee determines to be appropriate.
3.6 Expiration Date. If a Stock Appreciation Right is in tandem
with an Option, then the "Expiration Date" for the Stock Appreciation Right
shall be the Expiration Date for the related Option. If a Stock
Appreciation Right is not in tandem with an Option, then the "Expiration
Date" for the Stock Appreciation Right shall be the date established as the
Expiration Date by the Committee; provided, however, that subject to the
following provisions of this subsection 3.6, the Expiration Date with
respect to any Stock Appreciation Right shall not be later than the
earliest to occur of:
(a) the ten-year anniversary of the date on which the Stock Appreciation
Right is granted;
(b) if the Participant's Date of Termination occurs by reason of
Retirement, death or Disability, the one-year anniversary of such
Date of Termination.
(c) if the Participant's Date of Termination occurs by reason other
than Retirement, death, or Disability, 60 days after such Date of
Termination.
3.7 Dividend Equivalents. The Committee may award Dividend
Equivalents with respect to Stock Appreciation Rights. The award of
Dividend Equivalents shall permit the Participant to earn an amount equal
to the dividends payable with respect to the number of shares of Stock that
are subject to the Stock Appreciation Rights for the period the Stock
Appreciation Rights are outstanding and unexercised. The right to payment
of such earned dividends shall be subject to such restrictions and
limitations as may be imposed by the Committee.
SECTION 4
---------
RESTRICTED STOCK
----------------
4.1 Definition. Subject to the terms of this Section 4, Awards of
"Restricted Stock" under the Plan are grants of Stock to Participants, the
vesting of which is subject to such conditions as may be established by the
Committee.
4.2 Eligibility. The Committee shall designate the Participants to
whom Restricted Stock is to be granted, and the number of shares of Stock
that are subject to each such Award.
-6-
4.3 Terms and Conditions of Awards. Shares of Restricted Stock
granted to Participants under the Plan shall be subject to the following
terms and conditions:
(a) Restricted Stock granted to Participants may not be sold, assigned,
transferred, pledged or otherwise encumbered, except as hereinafter
provided, for a period of not less than one year after the time of
the grant of such Stock (the "Restricted Period"). Except for such
restrictions, the Participant as owner of such shares shall have all
the rights of a shareholder, including but not limited to the right to
vote such shares and, except as otherwise provided by the Committee,
the right to receive all dividends paid on such shares. The
Committee may, in its discretion, at any time after the date of the
award of Restricted Stock, adjust the length of the Restricted Period
to account for individual circumstances of a Participant or group
of Participants, but in no case shall the length of the Restricted
Period be less than one year.
(b) Except as otherwise determined by the Committee, a Participant
whose Date of Termination occurs prior to the end of the
Restricted Period for any reason shall forfeit all shares of
Restricted Stock remaining subject to any outstanding Restricted
Stock Award.
(c) The Committee may, in its discretion, condition the vesting of shares
of Restricted Stock on the achievement of performance goals.
(d) Each certificate issued in respect of shares of Restricted Stock
granted under the Plan shall be registered in the name of the
Participant and, at the discretion of the Committee, each such
certificate may be deposited in a bank designated by the
Committee. Each such certificate shall bear the following (or a
similar) legend:
"The transferability of this certificate and the shares
of stock represented hereby are subject to the terms and
conditions (including forfeiture) contained in the Hub
Group, Inc. 1999 Long-Term Incentive Plan and an
agreement entered into between the registered owner and
Hub Group, Inc. A copy of such plan and agreement is on
file in the office of the Secretary of Hub Group, Inc.,
377 East Butterfield Road, Suite 700, Lombard, Illinois
60148."
(e) Subject to the limitations of the Plan and the Award of Restricted
Stock, at the end of the Restricted Period for Restricted Stock,
such Restricted Stock will be transferred free of all restrictions
to a Participant (or his or her legal representative, beneficiary
or heir).
-7-
SECTION 5
---------
PERFORMANCE UNITS
-----------------
5.1 Definition. Subject to the terms of this Section 5, the Award
of "Performance Units" under the Plan entitles the Participant to receive
value for the units at the end of a Performance Period to the extent
provided under the Award. The number of units earned, and value received
for them, will be contingent on the degree to which the performance
measures established at the time of the initial Award are met.
5.2 Eligibility. The Committee shall designate the Participants to
whom Performance Units are to be granted, and the number of units to be the
subject to each such Award.
5.3 Terms and Conditions of Awards. For each Participant, the
Committee will determine the number of units granted; the value of units,
which may be stated either in cash or in shares of Stock; the performance
measures used for determining whether the Performance Units are earned; the
Performance Period during which the performance measures will apply; the
relationship between the level of achievement of the performance measures
and the degree to which Performance Units are earned; whether, during or
after the Performance Period, any revision to the performance measures or
Performance Period should be made to reflect significant events or changes
that occur during the Performance Period; and the number of earned
Performance Units that will be paid in cash and/or shares of Stock.
5.4 Payment. The Committee will compare the actual performance to
the performance measures established for the Performance Period and
determine the number of units to be paid and their value. Payment for units
earned shall be wholly in cash, wholly in Stock or in a combination of the
two, in a lump sum or installments, and subject to vesting requirements and
such other conditions as the Committee shall determine. The Committee will
determine the number of earned units to be paid in cash and the number to
be paid in Stock. For Performance Units valued when granted in shares of
Stock, one share of Stock will be paid for each unit earned, or cash will
be paid for each unit earned equal to either (a) the Fair Market Value of a
share of Stock at the end of the Performance Period or (b) the value of the
Stock determined based on the average Fair Market Value for a number of
days determined by the Committee. For Performance Units valued when granted
in cash, the value of each unit earned will be paid in its initial cash
value, or shares of Stock will be distributed based on the cash value of
the units earned divided by (a) the Fair Market Value of a share of Stock
at the end of the Performance Period or (b) the value of a share of Stock
determined based on the average Fair Market Value for a number of days
determined by the Committee.
5.5 Termination during Performance Period. If a Participant's Date
of Termination occurs during a Performance Period with respect to any
Performance Shares granted to him, the Committee may determine that the
Participant will be entitled to receive all or any portion of the
Performance Shares that he would otherwise receive, and may accelerate the
-8-
determination and payment of the value of such Performance Shares or make
such other adjustments as the Committee, in its sole discretion, deems
desirable.
SECTION 6
---------
DIRECTORS AUTOMATIC OPTION GRANT
--------------------------------
6.1 Definition. The grant of an Option under this Section 6
entitles the Participant to purchase shares of Stock at a price fixed at
the time the Option is granted. An Option granted under this Section 6
shall not affect any Award previously granted under the Plan or an award
under any other plan maintained by the Company or the Related Companies. An
Option granted under this Section 6 shall be a Non-Qualified Stock Option.
6.2 Participation. As of the first business day immediately
following the date on which a person first becomes an Eligible Director,
such person shall be granted an Option to purchase 12,000 shares of Stock
(as adjusted pursuant to subsection 7.4), provided such Eligible Director
has not previously received an Award under this Section 6 or a comparable
provision of any Prior Plan or any other plan of the Company or a Related
Company.
6.3 Price. The determination and payment of the purchase price of
a share of Stock under each Option granted pursuant to this Section 6 shall
be subject to the following:
(a) The purchase price shall be the greater of (a) 100% of the Fair
Market Value of a share of Stock as of the date on which such
Option is granted; or (b) the par value of a share of such Stock
on such date.
(b) The full purchase price of each share of Stock purchased upon the
exercise of any Option shall be paid at the time of such exercise
and, as soon as practicable thereafter, a certificate representing
the shares so purchased shall be delivered to the person entitled
thereto.
(c) The purchase price shall be payable in cash or in shares of Stock
(valued at Fair Market Value as of the day of exercise), or in any
combination thereof.
(d) A Participant may elect to pay the purchase price upon the exercise of
an Option granted pursuant to this Section 6 through the following
cashless exercise procedures: The Participant shall notify the
Corporate Secretary of the intent to exercise. Written instructions
will then be prepared and delivered to the Company and the broker
indicating the Participant's cashless election and instructing the
Company to deliver to the broker the Common Stock issuable upon
exercise. The exercise of the Option will be executed on the same
day that the broker is able to sell the stock. The broker will
then withhold from the proceeds of the sale and deliver to the Company
an amount, in cash, equal to the Option exercise price. An
additional amount for federal and state
-9-
tax withholdings, not to exceed the statutory minimum required tax
withholding, may also be withheld and delivered to the Company at
the Participant's election.
6.4 Exercise. An Option granted under this Section 6 shall be
first exercisable with respect to each 1/3 of the number of shares of Stock
subject to the Option on the date of each of the first, second and third
annual anniversaries of the date as of which the Option is granted,
respectively, but only if the Participant continues to serve as a Director
until such annual anniversary (or is employed by the Company or any Related
Company until such anniversary). Notwithstanding the foregoing, 100% of an
Option granted to a Participant under this Section 6 will become fully
exercisable on the date the Participant ceases to be a Director if such
cessation occurs by reason of the Participant's death or Disability. An
Option granted under this Section 6 will not be exercisable after the
Expiration Date applicable to that Option, and all rights to purchase
shares of Stock pursuant to the Option shall cease as of the Option's
Expiration Date.
6.5 Expiration Date. The "Expiration Date" with respect to an
Option granted under this Section 6 means the earliest to occur of:
(a) the ten-year anniversary of the date on which the Option is granted;
(b) if the Participant's Termination of Service occurs by reason of death,
Disability or Retirement, the one-year anniversary of his Termination
of Service; and
(c) if the Participant's Termination of Service occurs for reasons
other than Retirement, death or Disability, the three-month
anniversary of his Termination of Service.
A Participant shall not be permitted to exercise an Option granted under
this Section 6 after the Participant's Termination of Service except to the
extent that the Option is exercisable immediately prior to such cessation.
For purposes of this subsection 6.5, if, at the time of a Participant's
Termination of Service, he is employed by the Company or a Related Company,
then the Expiration Date of the Participant's Option under this subsection
6.5 shall be determined by substituting, in paragraphs 6.5(b) and (c), the
Participant's Date of Termination.
SECTION 7
---------
OPERATION AND ADMINISTRATION
----------------------------
7.1 Effective Date. The Plan was adopted by the Board effective
March 10, 1999 (the "Effective Date"). The Plan shall be unlimited in
duration and, in the event of Plan termination, shall remain in effect as
long as any Awards under it are outstanding; provided, however, that no
Awards may be granted under the Plan on a date that is more than ten years
from the date the Plan is adopted.
-10-
7.2 Shares Subject to Plan. The shares of Stock with respect to
which Awards may be made under the Plan shall be shares currently
authorized but unissued or currently held or subsequently acquired by the
Company as treasury shares, including shares purchased in the open market
or in private transactions. Subject to the provisions of subsection 7.4,
the number of shares of Stock which may be issued with respect to Awards
under the Plan shall not exceed 600,000 shares in the aggregate. Except as
otherwise provided herein, any shares subject to an Award which for any
reason expires or is terminated without issuance of shares (whether or not
cash or other consideration is paid to a Participant in respect of such
shares) shall again be available under the Plan.
7.3 Individual Limits on Awards. Notwithstanding any other
provision of the Plan to the contrary, no Participant shall receive any
Award of an Option or a Stock Appreciation Right under the Plan to the
extent that the sum of:
(a) the number of shares of Stock subject to such Award;
(b) the number of shares of Stock subject to all other prior Awards of
Options and Stock Appreciation Rights under the Plan within the
one-year Company fiscal year period that includes the date of the
Award; and
(c) the number of shares of Stock subject to all other prior stock
options and stock appreciation rights granted to the Participant
under other plans or arrangements of the Company and Related
Companies within the one-year Company fiscal year period that
includes the date of the Award;
would exceed the Participant's Individual Limit under the Plan. Subject to
the provisions of subsection 7.4, the determination made under the
foregoing provisions of this subsection 7.3 shall be based on the shares
subject to the awards at the time of grant, regardless of when the awards
become exercisable. Subject to the provisions of subsection 7.4, a
Participant's "Individual Limit" shall be 50,000 shares of Stock.
7.4 Adjustments to Shares.
(a) If the Company shall effect any subdivision or consolidation of shares
of Stock or other capital readjustment, payment of stock dividend,
stock split, combination of shares or recapitalization or other
increase or reduction of the number of shares of Stock outstanding
without receiving compensation therefor in money, services or property,
then the Committee shall adjust (i) the number of shares of Stock
available under the Plan; (ii) the number of shares available under
any individual or other limits; (iii) the number of shares of Stock
subject to outstanding Awards and the number of shares of Stock
subject to future automatic grant as provided in Section 6; and (iv)
the per-share price under any outstanding Award and the per-share
purchase price under any future automatic grant as provided in Section
6 to the extent that the Participant is required to pay a purchase
price per share with respect to the Award.
-11-
(b) If the Company is reorganized, merged or consolidated or is party to
a plan of exchange with another corporation, pursuant to which
reorganization, merger, consolidation or plan of exchange the
shareholders of the Company receive any shares of stock or other
securities or property, or the Company shall distribute securities of
another corporation to its shareholders, there shall be substituted
for the shares subject to outstanding Awards an appropriate number
of shares of each class of stock or amount of other securities or
property which were distributed to the shareholders of
the Company in respect of such shares, subject to the following:
(i) If the Committee determines that the substitution
described in accordance with the foregoing provisions
of this paragraph (b) would not be fully consistent with
the purposes of the Plan or the purposes of the outstanding
Awards under the Plan, the Committee may make such other
adjustments to the Awards to the extent that the Committee
determines such adjustments are consistent with the purposes
of the Plan and of the affected
Awards.
(ii) All or any of the Awards may be canceled by the Committee
on or immediately prior to the effective date of the
applicable transaction, but only if the Committee gives
reasonable advance notice of the cancellation
to each affected Participant, and only if either: (A) the
Participant is permitted to exercise the Award for a
reasonable period prior to the effective date of the
cancellation; or (B) the Participant receives payment
or other benefits that the Committee determines to be
reasonable compensation for the value of the canceled Awards.
(iii) Upon the occurrence of a reorganization of the
Company or any other event described in this
paragraph (b), any successor to the Company shall be
substituted for the Company to the extent that the
Company and the successor agree to such
substitution.
(c) Upon (or, in the discretion of the Committee, immediately prior
to) the sale to (or exchange with) a third party unrelated to the
Company of all or substantially all of the assets of the Company,
all Awards shall be canceled. If Awards are canceled under this
paragraph (c) then, with respect to any affected Participant,
either:
(i) the Participant shall be provided with reasonable
advance notice of the cancellation, and the
Participant shall be permitted to exercise the Award
for a reasonable period prior to the effective date
of the cancellation; or
(ii) the Participant shall receive payment or other
benefits that the Committee determines to be
reasonable compensation for the value of the
canceled Awards.
-12-
The foregoing provisions of this paragraph (c) shall also apply to
the sale of all or substantially all of the assets of the Company
to a related party, if the Committee determines such application
is appropriate.
(d) In determining what action, if any, is necessary or appropriate
under the foregoing provisions of this subsection 7.4, the
Committee shall act in a manner that it determines to be
consistent with the purposes of the Plan and of the affected
Awards and, where applicable or otherwise appropriate, in a manner
that it determines to be necessary to preserve the benefits and
potential benefits of the affected Awards for the Participants and
the Employers.
(e) The existence of this Plan and the Awards granted hereunder shall
not affect in any way the right or power of the Company or its
shareholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, any merger or consolidation of the
Company, any issue of bonds, debentures, preferred or prior preference
stocks ahead of or affecting the Company's Stock or the rights thereof,
the dissolution or liquidation of the Company, any sale or transfer of
all or any part of its assets or business, or any other corporate act
or proceeding, whether of a similar character or otherwise.
(f) Except as expressly provided by the terms of this Plan, the issue
by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, for cash or
property or for labor or services, either upon direct sale, upon
the exercise of rights or warrants to subscribe therefor or upon
conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to Awards
then outstanding hereunder.
(g) Awards under the Plan are subject to adjustment under this
subsection 7.4 only during the period in which they are considered
to be outstanding under the Plan, with the determination of
whether an Award is outstanding to be made by the Committee.
7.5 Limit on Distribution. Distribution of shares of Stock or other
amounts under the Plan shall be subject to the following:
(a) Notwithstanding any other provision of the Plan, the Company shall
have no liability to deliver any shares of Stock under the Plan or
make any other distribution of benefits under the Plan unless such
delivery or distribution would comply with all applicable laws and
the applicable requirements of any securities exchange or similar
entity.
(b) In the case of a Participant who is subject to Section 16(a) and
16(b) of the Securities Exchange Act of 1934, the Committee may,
at any time, add such conditions and limitations to any Award to
such Participant, or any feature of any such Award, as the
-13-
Committee, in its sole discretion, deems necessary or desirable to
comply with Section 16(a) or 16(b) and the rules and regulations
thereunder or to obtain any exemption therefrom.
7.6 Liability for Cash Payments. Subject to the provisions of this
Section 7, an Employer shall be liable for payment of cash due under the
Plan with respect to any Participant to the extent that such benefits are
attributable to the services rendered for that Employer by the Participant.
Any disputes relating to liability of Employers for cash payments shall be
resolved by the Committee.
7.7 Performance-Based Compensation. To the extent that the
Committee determines that it is necessary or desirable to conform any
Awards under the Plan with the requirements applicable to
"Performance-Based Compensation", as that term is used in Code section
162(m)(4)(C), it may, at or prior to the time an Award is granted, take
such steps and impose such restrictions with respect to such Award as it
determines to be necessary to satisfy such requirements, including without
limitation:
(a) The establishment of performance goals that must be satisfied
prior to the payment or distribution of benefits under such
Awards.
(b) The submission of such Awards and performance goals to the
Company's shareholders for approval and making the receipt of
benefits under such Awards contingent on receipt of such approval.
(c) Providing that no payment or distribution be made under such
Awards unless the Committee certifies that the goals and the
applicable terms of the Plan and Agreement reflecting the Awards
have been satisfied.
To the extent that the Committee determines that the foregoing requirements
relating to Performance-Based Compensation do not apply to Awards under the
Plan because the Awards constitute Options or Stock Appreciation Rights,
the Committee may, at the time the Award is granted, conform the Awards to
alternative methods of satisfying the requirements applicable to
Performance-Based Compensation.
7.8 Withholding. All Awards and other payments under the Plan are
subject to withholding of all applicable taxes, which withholding
obligations may be satisfied, with the consent of the Committee, through
the surrender of shares of Stock which the Participant already owns, or to
which a Participant is otherwise entitled under the Plan; provided,
however, that withholding through the surrender of shares may not exceed
the amount necessary to satisfy the statutory minimum required tax
withholding,.
7.9 Transferability. Awards under the Plan are not transferable
except as designated by the Participant by will or by the laws of descent and
distribution. To the extent that the Participant who receives an Award under
the Plan has the right to exercise such Award, the
-14-
Award may be exercised during the lifetime of the Participant only by the
Participant. Notwithstanding the foregoing provisions of this subsection
7.9, the Committee may permit awards under the Plan to be transferred to or
for the benefit of the Participant's family, subject to such limits as the
Committee may establish.
7.10 Administration. The authority to control and manage the
operation and administration of the Plan shall be vested in the Committee
in accordance with Section 8.
7.11 Notices. Any notice or document required to be filed with the
Committee under the Plan will be properly filed if delivered or mailed by
registered mail, postage prepaid, to the Committee, in care of the Company,
at its principal executive offices. The Committee may, by advance written
notice to affected persons, revise such notice procedure from time to time.
Any notice required under the Plan (other than a notice of election) may be
waived by the person entitled to notice.
7.12 Form and Time of Elections. Unless otherwise specified
herein, each election required or permitted to be made by any Participant
or other person entitled to benefits under the Plan, and any permitted
modification or revocation thereof, shall be in writing filed with the
Committee at such times, in such form, and subject to such restrictions and
limitations, not inconsistent with the terms of the Plan, as the Committee
shall require.
7.13 Agreement With Company. At the time of an Award to a
Participant under the Plan, the Committee will require a Participant to
enter into an agreement ("Agreement") with the Company in a form specified
by the Committee, evidencing the Award under the Plan, agreeing to the
terms and conditions of the Plan and agreeing to such additional terms and
conditions, not inconsistent with the Plan, as the Committee may, in its
sole discretion, prescribe.
7.14 Limitation of Implied Rights.
(a) Neither a Participant nor any other person shall, by reason of the
Plan, acquire any right in or title to any assets, funds or property
of the Employers whatsoever, including, without limitation, any
specific funds, assets, or other property which the Employers, in
their sole discretion, may set aside in anticipation of a liability
under the Plan. A Participant shall have only a contractual right to
the amounts, if any, payable under the Plan, unsecured by any assets
of the Employers. Nothing contained in the Plan shall constitute a
guarantee by any of the Employers that the assets of the Employers
shall be sufficient to pay any benefits to any person.
-15-
(b) Neither the Plan nor Awards granted under the Plan shall confer any
right upon a Participant to continue as an employee or Director for
any period of time or give any Participant any right or claim to any
benefit under the Plan, unless such right or claim has specifically
accrued under the terms of the Plan. Subject to the provisions of
Section 4 (relating to Restricted Stock Awards), no Award under the
Plan shall confer upon the holder thereof any right as a shareholder
of the Company prior to the date on which he fulfills all service
requirements and other conditions for receipt of shares of Stock under
the Plan.
7.15 Benefits Under Qualified Retirement Plans. Awards to a
Participant (including the grant and the receipt of benefits) under the
Plan shall be disregarded for purposes of determining the Participant's
benefits under any Qualified Retirement Plan.
7.16 Evidence. Evidence required of anyone under the Plan may be
by certificate, affidavit, document or other information which the person
acting on it considers pertinent and reliable, and signed, made or
presented by the proper party or parties.
7.17 Action by Employers. Any action required or permitted to be
taken by any Employer shall be by resolution of its board of directors, or
by action of one or more members of the board (including a committee of the
board) who are duly authorized to act for the board, or by a duly
authorized officer of the Employer.
7.18 Gender and Number. Where the context admits, words in any
gender shall include any other gender, words in the singular shall include
the plural and the plural shall include the singular.
7.19 Defined Terms. For purposes of the Plan, the terms listed below
shall be defined as follows:
(a) Award. The term "Award" shall mean any award or benefit granted to
any Participant under the Plan, including, without limitation, the
grant of Options, Stock Appreciation Rights, Restricted Stock,
Performance Units, and Dividend Equivalents.
(b) Board. The term "Board" shall mean the Board of Directors of the
Company.
(c) Code. The term "Code" means the Internal Revenue Code of 1986, as
amended. A reference to any provision of the Code shall include
reference to any successor provision of the Code.
(d) Committee. The term "Committee" means the committee designated in
accordance with Section 8 to administer the Plan.
(e) Date of Termination. A Participant's "Date of Termination" shall be
the date that his employment with all Employers and Related Companies
terminates for any reason;
-16-
provided that a Date of Termination shall not be deemed to occur
by reason of a transfer of the Participant between the Company and
a Related Company (including an Employer) or between two Related
Companies (including Employers); and further provided that a
Participant's employment shall not be considered terminated while
the Participant is on a leave of absence from an Employer or a
Related Company approved by the Participant's employer.
(f) Director. The term "Director" means a member of the Board of
Directors of the Company.
(g) Disability. A Participant shall be considered to have a
"Disability" during the period in which he is unable, by reason of
a medically determinable physical or mental impairment, to engage
in any substantial gainful activity, which condition, in the
opinion of a physician selected by the Committee, is expected to
have a duration of not less than 120 days.
(h) Eligible Director. Each Director who is not an employee of the
Company or any Related Company.
(i) Employer. The Company and each Related Company which, with the
consent of the Company, adopts the Plan for the benefit of its
eligible employees are referred to collectively as the "Employers"
and individually as an "Employer".
(j) Exchange Act. The term "Exchange Act" means the Securities Exchange
Act of 1934, as amended.
(k) Fair Market Value. The "Fair Market Value" of a share of Stock of
the Company as of any date shall be the closing market composite
price for such Stock as reported for the NASDAQ Stock Exchange on
that date or, if Stock is not traded on that date, on the next
preceding date on which Stock was traded.
(l) Incentive Stock Option. An Option that is intended to satisfy the
requirements applicable to an "incentive stock option" described in
section 422(b) of the Code.
(m) Non-Qualified Option. An Option that is not intended to be an
"incentive stock option" as that term is described in section 422(b)
of the Code.
(n) Option. The term "Option" shall mean any Incentive Stock Option or
Non-Qualified Stock Option granted under the Plan.
(o) Performance-Based Compensation. The term "Performance-Based
Compensation" shall have the meaning ascribed to it in section 162(m)
(4)(C) of the Code.
-17-
(p) Prior Plans. The term "Prior Plans" means the Hub Group, Inc. 1997
Long-Term Incentive Plan and the Hub Group, Inc. 1996 Long-Term
Incentive Plan.
(q) Qualified Retirement Plan. The term "Qualified Retirement Plan"
means any plan of the Company or a Related Company that is
intended to be qualified under section 401(a) of the Internal Revenue
Code of 1986, as amended.
(r) Related Companies. The term "Related Company" means (i) any
corporation, partnership, joint venture or other entity during any
period in which it owns, directly or indirectly, at least thirty
percent of the voting power of all classes of stock of the Company
(or successor to the Company) entitled to vote; and (ii) any
corporation, partnership, joint venture or other entity during any
period in which either:
(A) it is effectively controlled by; or
(B) at least a thirty percent of its voting or profits interest
is owned, directly or indirectly, by;
the Company, any entity that is a successor to the Company or any
entity that is a Related Company by reason of clause (i) next
above.
(s) Retirement. "Retirement" in the case of a Participant who is not an
Eligible Director shall mean the occurrence of the Participant's Date
of Termination for reasons other than death or Disability on or after
the date on which the Participant (i) attains age 55, or (ii) attains
age 50 and has completed at least 10 continuous years of service with
the Company and the Related Companies. "Retirement" in the case of a
Participant who is an Eligible Director shall mean the occurrence of
the Eligible Director's Termination of Service on or after his
attainment of age 65 for reasons other than death or Disability.
(t) SEC. "SEC" shall mean the Securities and Exchange Commission.
(u) Stock. The term "Stock" shall mean shares of common stock of the
Company.
(v) Termination of Service. The term "Termination of Service" shall mean
the date on which an individual ceases to be a Director.
SECTION 8
---------
COMMITTEE
---------
8.1 Selection of Committee. The Committee shall be selected by the
Board, and shall consist of not less than two members of the Board, or such
greater number as may be required for compliance with SEC Rule 16b-3 or the
requirements of section 162(m) of the Code and regulations thereunder.
-18-
8.2 Powers of Committee. The authority to manage and control the
operation and administration of the Plan shall be vested in the Committee,
subject to the following:
(a) Subject to the provisions of the Plan, the Committee will have
authority and discretion to select employees to receive Awards, to
determine the time or times of receipt, to determine the types of
Awards and the number of shares covered by the Awards, to establish
the terms, conditions, performance criteria, restrictions, and other
provisions of such Awards, and to cancel or suspend Awards. In making
such Award determinations, the Committee may take into account
the nature of services rendered by the respective employee, his
present and potential contribution to the Company's success and such
other factors as the Committee deems relevant.
(b) Subject to the provisions of the Plan, the Committee will have
authority and discretion to determine the extent to which Awards
under the Plan will be structured to conform to the requirements
applicable to Performance-Based Compensation as described in Code
section 162(m), and to take such action, establish such
procedures, and impose such restrictions at the time such Awards
are granted as the Committee determines to be necessary or
appropriate to conform to such requirements.
(c) The Committee will have the authority and discretion to interpret
the Plan, to establish, amend, and rescind any rules and
regulations relating to the Plan, to determine the terms and
provisions of any agreements made pursuant to the Plan, and to
make all other determinations that may be necessary or advisable
for the administration of the Plan.
(d) Any interpretation of the Plan by the Committee and any decision made
by it under the Plan is final and binding on all persons.
(e) Except as otherwise expressly provided in the Plan, where the
Committee is authorized to make a determination with respect to
any Award, such determination shall be made at the time the Award
is made, except that the Committee may reserve the authority to
have such determination made by the Committee in the future (but
only if such reservation is made at the time the Award is granted
and is expressly stated in the Agreement reflecting the Award).
8.3 Delegation by Committee. Except to the extent prohibited by
the provisions of Rule 16b-3, the rules relating to Performance-Based
Compensation, applicable state law, the applicable rules of any stock
exchange, or any other applicable rules, the Committee may allocate all or
any portion of its responsibilities and powers to any one or more of its
members and may delegate all or any part of its responsibilities and powers
to any person or
-19-
persons selected by it. Any such allocation or delegation may be revoked by
the Committee at any time.
8.4 Information to be Furnished to Committee. The Employers and
Related Companies shall furnish the Committee with such data and
information as may be required for it to discharge its duties. The records
of the Employers and Related Companies as to an employee's or Participant's
employment, termination of employment, leave of absence, reemployment and
compensation shall be conclusive on all persons unless determined to be
incorrect. Participants and other persons entitled to benefits under the
Plan must furnish the Committee such evidence, data or information as the
Committee considers desirable to carry out the terms of the Plan.
8.5 Liability and Indemnification of Committee. No member or
authorized delegate of the Committee shall be liable to any person for any
action taken or omitted in connection with the administration of the Plan
unless attributable to his own fraud or willful misconduct; nor shall the
Employers be liable to any person for any such action unless attributable
to fraud or willful misconduct on the part of a director or employee of the
Employers. The Committee, the individual members thereof, and persons
acting as the authorized delegates of the Committee under the Plan, shall
be indemnified by the Employers against any and all liabilities, losses,
costs and expenses (including legal fees and expenses) of whatsoever kind
and nature which may be imposed on, incurred by or asserted against the
Committee or its members or authorized delegates by reason of the
performance of a Committee function if the Committee or its members or
authorized delegates did not act dishonestly or in willful violation of the
law or regulation under which such liability, loss, cost or expense arises.
This indemnification shall not duplicate but may supplement any coverage
available under any applicable insurance.
SECTION 9
---------
CHANGE IN CONTROL
-----------------
9.1 Acceleration of Awards. Subject to the provisions of
subsection 7.4 (relating to the adjustment of shares), and except as
otherwise provided in the Plan or the Award Agreement reflecting the
applicable Award, upon the occurrence of a Change in Control:
(a) All outstanding Options (regardless of whether in tandem with SARs)
shall become fully exercisable.
(b) All outstanding SARs (regardless of whether in tandem with Options)
shall become fully exercisable.
(c) All Restricted Stock and Performance Units shall become fully vested.
-20-
9.2 Definition of Change in Control. For purposes of the Plan, the
term "Change in Control" means a change in the beneficial ownership of the
Company's voting stock or a change in the composition of the Board which
occurs as follows:
(a) Any "person" (as such term is used in Section 13(d) and 14(d)(2)
of the Exchange Act is or becomes a beneficial owner, directly or
indirectly, of stock of the Company representing 30 percent or
more of the total voting power of the Company's then outstanding
stock.
(b) A tender offer (for which a filing has been made with the SEC which
purports to comply with the requirements of Section 14(d) of the
Exchange Act and the corresponding SEC rules) is made for the stock
of the Company, which has not been negotiated and approved by the
Board. In case of a tender offer described in this paragraph (b),
the Change in Control will be deemed to have occurred upon the first
to occur of (i) any time during the offer when the person (using the
definition in (a) above) making the offer owns or has accepted for
payment stock of the Company with 25 percent or more of the total
voting power of the Company's stock, or (ii) three business days
before the offer is to terminate unless the offer is withdrawn first,
if the person making the offer could own, by the terms of the offer
plus any shares owned by this person, stock with 50 percent or more
of the total voting power of the Company's stock when the offer
terminates.
(c) Individuals who were the Board's nominees for election as
directors of the Company immediately prior to a meeting of the
shareholders of the Company involving a contest for the election
of directors shall not constitute a majority of the Board
following the election.
SECTION 10
----------
AMENDMENT AND TERMINATION
-------------------------
The Board may, at any time, amend or terminate the Plan, provided
that, subject to subsection 7.4 (relating to certain adjustments to
shares), no amendment or termination may materially adversely affect the
rights of any Participant or beneficiary under any Award made under the
Plan prior to the date such amendment is adopted by the Board.
-21-
March 22, 2000
Hub Group, Inc.
377 East Butterfield Road, Suite 700
Lombard, Illinois 60148
Ladies and Gentlemen:
We have acted as special counsel to Hub Group, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of 600,000 shares of its Class A Common
Stock, $.01 par value per share (the "Shares"), to be offered pursuant to
the Hub Group, Inc. 1999 Long-Term Incentive Plan (the "Plan").
In rendering the opinions expressed herein, we have examined or
are otherwise familiar with, and have relied upon, the Company's
Certificate of Incorporation, the Company's By-Laws, the Plan, the
Company's Registration Statement on Form S-8 (the "Registration Statement")
relating to the Shares, relevant resolutions of the Board of Directors of
the Company, and such other documents, records and certificates as we have
deemed necessary or appropriate for the purposes of this opinion letter. We
have assumed the authenticity, accuracy and completeness of all documents,
records and certificates submitted to us as originals, the conformity to
the originals of all documents, records and certificates submitted to us as
copies and the authenticity, accuracy and completeness of the originals of
all documents, records and certificates submitted to us as copies. We have
also assumed the legal capacity and genuineness of the signatures of
persons signing all documents in connection with which the opinions
expressed herein are rendered.
Based upon and subject to the foregoing, we are of the opinion
that the Shares are duly authorized for issuance and when issued in
accordance with the provisions of the Plan will be legally issued, fully
paid and non-assessable shares of the Company.
We are admitted to practice law in the State of Illinois and we
express no opinions as to matters under or involving any laws other than
the laws of the State of Illinois, the federal laws of the United States of
America and the General Corporation Law of the State of Delaware.
Hub Group, Inc.
March 22, 2000
Page 2
We hereby consent to the filing of this opinion letter as an
Exhibit to the Registration Statement.
Very truly yours,
/s/ Mayer, Brown & Platt
-------------------------
MAYER, BROWN & PLATT
PJN:MAP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement on Form S-8 of our reports
dated February 15, 1999 (except with respect to the matter discussed in
Note 17, as to which the date is March 22, 1999) included in Hub Group,
Inc.'s Form 10-K for the year ended December 31, 1998 and to all references
to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
------------------------------------
Arthur Andersen LLP
Chicago, Illinois
March 17, 2000