exv10w12



 





Exhibit 10.12 




1999 EMPLOYEE STOCK PURCHASE PLAN




(AS AMENDED BY THE BOARD OF DIRECTORS ON NOVEMBER 13, 2006)




     1. Purpose.



          This Newpark Resources, Inc. 1999 Employee Stock Purchase Plan (the “Plan”) is intended as an
incentive to encourage stock ownership by employees of Newpark Resources, Inc., a Delaware
corporation (“Newpark”), and Subsidiaries which it may have from time to time (Newpark and its
Subsidiaries together being referred to herein as the “Company”), so that they may acquire a
proprietary interest, or increase their proprietary interest, in the Company, and to encourage them
to remain in the employ of the Company and its Subsidiaries. “Subsidiary” shall mean each
corporation which (i) is or becomes a “subsidiary corporation” of Newpark, within the definition
contained in Section 424(f) of the Internal Revenue Code of 1986, as amended (the “Code”), (ii)
conducts its principal business operations in the United States, and (iii) is designated to have
its employees participate in this Plan by the Committee (as defined below). It is further intended
that the Plan qualify as an “employee stock purchase plan” within the meaning of Section 423 of the
Code.




     2. Administration.



          2.1 The Plan shall be administered by the Compensation Committee (the “Committee”) of
Newpark’s Board of Directors (the “Board”). Each member of the Committee shall be a “Non-Employee
Director” as that term is defined in Rule 16b-3 promulgated by the Securities and Exchange
Commission pursuant to the Securities and Exchange Act of 1934, as amended, but no action of the
Committee shall be invalid if this requirement is not met. The Committee shall select one of its
members as Chairman and shall act by vote of a majority of a quorum or by unanimous written
consent. A majority of its members shall constitute a quorum. The Committee shall be governed by
the provisions of the Company’s Bylaws and of Delaware law applicable to the Board, except as
otherwise provided herein or determined by the Board.




          2.2 The Committee shall have full and complete authority, in its discretion, but subject to
the express provisions of the Plan: to designate which corporations shall be “Subsidiaries” under
this Plan, to determine when the first offering shall be made; to determine the aggregate number of
shares of common stock, $0.01 par value per share, of Newpark (“Common Stock”), to be made
available for each offering, and to adopt such rules and regulations and to make all other
interpretations, constructions or determinations deemed necessary or desirable for the
administration of the Plan in its discretion. All interpretations and constructions of the Plan by
the Committee, and all of its actions hereunder, shall be binding and conclusive on all persons for
all purposes.




          2.3 The Company hereby agrees to indemnify and hold harmless each Committee member and each
employee of the Company, and the estate and heirs of such Committee member or employee, against all
claims, liabilities, expenses, penalties, damages or other pecuniary losses, including legal fees,
which such Committee member or employee or his or her estate or heirs may suffer as a result of his
or her responsibilities, obligations or duties in connection with the Plan, to the extent that
insurance, if any, does not cover the payment of such items.




     3. Eligibility.



          3.1 Each regular full-time employee of the Company shall be eligible to participate in the
Plan, provided such employee has been employed continuously by the Company for at least 90 days as
of the Effective Date or any subsequent Offering Date (in each case as defined in paragraph 4
below).




          3.2 The term “employee” shall have the same meaning as the term “employee” as defined in
Treasury Regulation Section 1.421-7(h), and shall include officers, directors who are also
employees and employees on Participant Leaves of Absence (as defined in paragraph 22), but shall
exclude employees whose customary employment is for less than 20 hours per week or for less than
five months in any calendar year.




          3.3 Any provision of the Plan to the contrary notwithstanding, no employee shall be granted an
award:




 









 








          (a) if, immediately after the grant, such employee would own stock, and/or hold outstanding
options to purchase stock, possessing 5% or more of the total combined voting power or value of all
classes of stock of Newpark or of any subsidiary or parent of Newpark, determinations of employee
stock ownership being made for this purpose in accordance with Section 424(d) of the Code; or




          (b) which permits such employee’s rights to purchase stock under all employee stock purchase
plans (within the meaning of Section 423 of the Code) for the Company to accrue at a rate which
exceeds $10,000 in fair market value of such stock (determined at the time the award is made) for
each calendar year in which such award would be outstanding at any time, within the meaning of
Section 423(b)(8) of the Code.




     4. Offering Dates.



          The Plan will be implemented by a continuous series of offerings, each of which shall commence
on the first business day after the completion of the immediately prior offering (the “Offering
Date”) and shall terminate six months after the applicable Offering Date (the “Termination Date”).
The first offering shall be made as soon after stockholder approval of the Plan as is determined by
the Committee in its sole discretion (the “Effective Date”). No offering shall be made if in the
opinion of the Committee the Common Stock available under the Plan has been so substantially
exhausted as to make an offering to all eligible employees impractical under the Plan.




     5. Participation.



          An eligible employee may become a participant by completing and filing an authorization for a
payroll deduction on the form provided by the Committee. Payroll deductions shall become effective
on the first Offering Date after a participant has filed an authorization and shall terminate upon
the earlier to occur of (i) the participant’s request to have payroll deductions discontinued, as
set forth in paragraph 6.3, or (ii) the ceasing for any reason of the participant to meet the
eligibility requirements of paragraph 3, in which event the provisions of paragraph 9.2 shall
apply. Each participant will receive an award on each Offering Date, and all participants will have
the same rights and privileges under the Plan.




     6. Payroll Deductions.



          6.1 At the time a participant files an authorization for a payroll deduction, he or she shall
elect to have deductions made from his or her Annualized Base Pay, as hereinafter defined, on each
payday during the time he or she is a participant. The minimum deduction permitted hereunder shall
be $5.00 per week, and the maximum deduction shall be 10% of the participant’s Annualized Base Pay.
For purposes of the Plan, the term “Annualized Base Pay” shall mean the participant’s current
annualized base pay from the Company (excluding overtime and all other extra compensation such as
bonuses and contributions to pension, profit sharing, health and life insurance and other plans).




          6.2 All payroll deductions made for a participant shall be credited to his or her account
under the Plan and held with other Company funds. A participant may not make any separate cash
payment into such account, except as provided in paragraph 22.




          6.3 A participant may elect to have payroll deductions completely discontinued at any time,
but an election to discontinue payroll deductions during an offering shall be deemed to be an
election to withdraw pursuant to paragraph 9.1. No change in payroll deductions other than complete
discontinuance can be made during an offering, and, specifically, once an offering has commenced, a
participant may not alter the rate of his or her payroll deductions for such offering.




     7. Granting of Awards.



          7.1 On each Offering Date, the Committee shall determine the number of available shares of
Common Stock which will be sold to participants in such offering. On each Offering Date, each
participant shall be granted an award to purchase up to that number of available shares which is
equal to the total number of available shares for such offering multiplied by a fraction, the
numerator of which is the amount of payroll deductions from such



 









 






participant’s Annualized Base Pay authorized by such participant for the offering period
beginning on such Offering Date, and the denominator of which is the total amount of payroll
deductions from the Annualized Base Pay of all participants authorized by such participants for the
offering period beginning on such Offering Date. The purchase price of each such share shall be the
lower of:




          (a) 95% of the fair market value per share of the Common Stock on the Offering Date, or




          (b) 95% of the fair market value per share of the Common Stock on the Termination Date.




          7.2 The fair market value of a share of Common Stock shall be equal to the closing price of
the Common Stock for the last preceding day on which Newpark’s shares were traded, and the method
for determining the closing price shall be determined by the Committee.




     8. Exercise of Awards.



          8.1 Unless a participant gives written notice to the Committee as hereinafter provided, the
participant’s award will be exercised automatically for such participant on the Termination Date
for the purchase of as many full shares of Common Stock (no fractional shares shall be issued under
this Plan) as the accumulated payroll deductions in such participant’s account at that time will
purchase at the applicable purchase price (but not to exceed the maximum number of shares subject
to the award), and such shares shall be credited to the participant’s account at such time. The
amount remaining in the account of a participant after the exercise in full of an award shall be
carried forward in the participant’s account and be available for the next succeeding offering to
the extent such remaining amount is attributable to fractional shares; such remaining amount shall
be refunded to the participant to the extent it exceeds the amount attributable to fractional
shares.




          8.2 No participant may purchase during any calendar year Common Stock under this and all other
employee stock purchase plans (within the meaning of Section 423 of the Code) of the Company having
a fair market value (determined at the time the award is made) in excess of $10,000. When a
participant has purchased the maximum amount of stock which may be purchased in any calendar year,
all amounts credited to such participant’s account under the Plan in excess of the amount applied
to the purchase of such stock shall be returned to the participant, payroll deductions for the
participant shall cease and the participant shall be ineligible to participate in any additional
offering during such calendar year.




          8.3 Upon a participant’s death, the participant’s beneficiary (or executor or administrator,
as determined under paragraph 12) shall have the right to elect, by written notice given to the
Committee before the earlier of the Termination Date of the current offering or the expiration of a
period of 60 days beginning with the date of the participant’s death, either to:




          (a) withdraw all of the payroll deductions previously credited to the participant’s account,
or




          (b) apply to the exercise of the participant’s award any amount in such participant’s account
as of the date of death, and thereby purchase Common Stock on the Termination Date next following
the date of the participant’s death, with any excess payroll deductions in such account being
returned to such beneficiary (or other person entitled thereto under paragraph 12) without
interest.




     If the Committee does not receive any such written notice of election within the time
specified in this paragraph 8.3, the beneficiary (or executor or administrator, as determined under
paragraph 12) shall be deemed to have automatically elected to exercise the participant’s award
pursuant to subparagraph (b) of this paragraph 8.3.



     9. Withdrawal.



          9.1 By written notice to the Committee at any time during any offering, a participant may
elect to withdraw all the accumulated payroll deductions in such participant’s account as of the
Termination Date of such offering, without interest. A participant shall be deemed to have elected
to make such a withdrawal if such participant elects to discontinue payroll deductions completely
during an offering as described in paragraph 6.3. A



 









 






participant who withdraws all or any part of the amount credited to such participant’s account
during an offering, or who elects to discontinue payroll deductions completely during an offering
under paragraph 6.3, shall be deemed to have given notice of his or her intention to cease to be a
participant for that offering and any succeeding offerings, and all payroll deductions under the
Plan with respect to such participant shall be discontinued; provided, however, that such
participant may become a participant in any succeeding offering for which he or she is otherwise
eligible in accordance with the Plan, if the participant files with the Committee a new
authorization for payroll deductions in accordance with paragraph 5.




          9.2 Upon the ceasing of a participant to meet the eligibility requirements of paragraph 3, or
the termination of the participant’s employment for any reason, including retirement, except as
provided in paragraph 8.3, he or she shall immediately cease to be a participant, any award which
he or she may have been granted under the Plan shall immediately expire and shall not be exercised,
and the payroll deductions and shares previously credited to his or her account shall be returned
to him or her within 30 days after such cessation or termination, without interest.




     10. Delivery.



          As promptly as practicable after each Termination Date, the Company will deliver to each
participant, as appropriate, any Common Stock purchased upon the exercise of his or her award and
any cash to which he or she may be entitled.




     11. Stock.



          11.1 The stock to be sold to participants under the Plan shall be Common Stock of Newpark. The
maximum number of shares of Common Stock which shall be made available for sale under the Plan
during all offerings under the Plan shall be 1,000,000 shares, subject to adjustment upon changes
in capitalization of the Company as provided in paragraph 15.




          11.2 Stock to be delivered to a participant under the Plan will be registered in the name of
the participant.




          11.3 No participant will have any interest in stock covered by an award until such award has
been exercised. Any shares which are subject to sale pursuant to an award made under the Plan but
which are not purchased on the Termination Date of the related offering shall be available for sale
pursuant to awards made in subsequent offerings under the Plan.




     12. Designation of Beneficiary.



          A participant may file with the Committee, and change from time to time, a written designation
of a beneficiary who is to receive any payroll deductions and shares of Common Stock credited to
the participant’s account under the Plan in the event of such participant’s death. Upon receipt by
the Committee at the participant’s death of proof of the identity and existence of a beneficiary
validly designated by the participant under the Plan, the Company shall deliver such Common Stock
and cash to such beneficiary. In the event of the death of a participant who has not filed a
written designation of a beneficiary, the Company shall deliver such cash and Common Stock to the
executor or administrator of the estate of the participant, or, if no such executor or
administrator has been appointed (to the knowledge of the Committee), at the direction of the
Committee acting in its discretion, to the spouse or to any one or more dependents or relatives of
the participant, or, if no spouse, dependent, or relative is known to the Committee, to such other
person as the Committee may designate. No designated beneficiary shall, prior to the death of the
participant, acquire any interest in the cash or Common Stock credited to a participant’s account
under the Plan.




     13. Transferability.



          Neither awards, payroll deductions credited to a participant’s account nor any rights to
receive Common Stock under the Plan may be assigned, transferred, pledged, or otherwise disposed of
in any way by the participant,



 









 






except that payroll deductions and shares credited to a participant’s account shall be
transferable by will or the laws of descent and distribution or as provided by paragraph 12. Any
attempted assignment, transfer, pledge or other disposition prohibited by the preceding sentence
shall be without effect, except that the Company may treat such act as an election to withdraw
funds in accordance with paragraph 9.




     14. Use of Funds.



          All payroll deductions received or held by the Company under the Plan may be used by the
Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll
deductions.




     15. Changes in Capitalization.



          15.1 The number and class of shares of stock covered by each outstanding award, the purchase
price per share thereof, and the maximum number and class of shares of stock issuable upon exercise
of all awards under the Plan shall be proportionately adjusted in the event of any increase or
decrease in the number of the issued shares of Common Stock of the Company which results from a
split-up or consolidation of shares, payment of a stock dividend or dividends exceeding a total of
2.5% for which the record dates occur in any one fiscal year, a recapitalization (other than the
conversion of convertible securities according to their terms), a combination of shares or other
like capital adjustment, so that upon exercise of the award, the participant shall receive the
number and class of shares such participant would have received had such participant been the
holder of the number of shares of Common Stock for which the award is being exercised upon the date
of such change or increase or decrease in the number of issued shares of the Company. If any
adjustment hereunder would create a fractional share or a right to acquire a fractional share, such
fractional share shall be disregarded and the number of shares available under this Plan or the
number of shares to which any participant is entitled shall be the next lower number of whole
shares, rounding all fractions downward.




          15.2 Upon a reorganization, merger or consolidation of Newpark with one or more corporations
as a result of which Newpark is not the surviving corporation or in which Newpark survives as a
wholly-owned subsidiary of another corporation, or upon a sale of all or substantially all of the
property of the Company to another corporation, or any dividend or distribution to stockholders of
more than ten percent (10%) of the Company’s assets, adequate adjustment or other provisions shall
be made by the Company or other party to such transaction so that there shall remain and/or be
substituted for the Common Stock subject to each award, the shares, securities, cash or assets
which would have been issuable in respect of such award, as if the participant had been the owner
of such Common Stock as of the applicable date. Any share, securities, cash or assets so
substituted shall be subject to similar successive adjustments.




     16. Securities Registration.



          16.1 If the Company shall deem it necessary to register under the Securities Act of 1933, as
amended (the “Securities Act”), or other applicable statutes any shares with respect to which an
award shall have been made, then the Company will use reasonable efforts to maintain the
effectiveness of a Registration Statement under the Securities Act before delivery of such shares.
If the shares of stock of the Company shall be listed on any national securities exchange at the
time of exercise of any award, then whenever required, the Company shall make prompt application
for the listing on such stock exchange of such shares, at the sole expense of the Company.




          16.2 Notwithstanding any other provision of this Plan or any award hereunder, the Company
shall be under no obligation to issue shares under the Plan while, in the opinion of its counsel,
any applicable legal requirement for the issuance of such shares may not be satisfied, including
but not limited to the requirements of the Securities Act and Delaware or other state securities
laws. The Company shall use its best efforts to satisfy all such applicable legal requirements. If
any shares are issued upon exercise of an award under the Plan without registration under the
Securities Act, then the award shares shall bear a suitable restrictive legend and the acceptance
of such Award Shares shall be subject to the execution of an investment letter by the participant,
in form and substance satisfactory to the Committee.





 









 





     17. Amendment or Termination.



          The Board may at any time terminate or amend the Plan. No such termination shall affect awards
previously made, nor may an amendment make any change in any award theretofore granted which would
adversely affect the rights of any participant, nor may an amendment be made without prior approval
of the stockholders of the Company if such amendment would:




          (a) Permit the sale of more shares of Common Stock than are authorized under paragraph 11 of
the Plan;




          (b) Effect any change in the designation of eligible employees under paragraph 3 of the Plan;
or




          (c) Materially increase the benefits accruing to participants under the Plan.




     18. Application of Proceeds.



          Proceeds from the sale of award shares shall constitute a part of the general funds of the
Company.




     19. Successors in Interest.



          The provisions of this Plan and the actions of the Committee shall be binding on all heirs and
successors of the Company and each participant.




     20. Withholding Taxes.



          The Company shall have the right at the time of purchase of any shares of Common Stock
hereunder to make adequate provision for any federal, state, local or foreign taxes which it
believes are or may be required by law to be withheld with respect to such purchase, to ensure the
payment of any such taxes, including by withholding from the participant’s salary.




     21. Continued Employment.



          This Plan and awards hereunder shall not impose any obligation on the Company to continue to
employ any participant. Moreover, no provision of this Plan or any document executed or delivered
pursuant hereto shall be deemed modified in any way by any employment contract between a
participant (or other employee) and the Company.




     22. Leaves of Absence.



          22.1 For purposes of participation in this Plan, a person on leave of absence shall be deemed
to be an employee for the first 90 days of such leave of absence, or, if longer, the period for
which the participant’s reemployment is guaranteed by statute (a “Participant Leave Of Absence”).




     Such employee’s employment for all purposes of this Plan, and such employee’s participation in
this Plan and right to exercise any award, shall be deemed to have terminated at the close of
business on the last day of such Participant Leave Of Absence and the provisions of paragraph 6.3
shall apply, unless such employee returns to employment (as defined in paragraph 3.2) before the
close of business on such last day. Termination by the Company of any Participant’s Leave of
Absence, other than termination of such Participant Leave of Absence on return to employment (as
defined in paragraph 3.2), shall terminate such employee’s employment for all purposes of this
Plan, and shall terminate such employee’s participation in the Plan and right to exercise any
award, and the provisions of paragraph 6.3 shall apply.



          22.2 While a participant is on a Participant Leave Of Absence treated as employment under the
provisions of paragraph 22.1, such participant shall have the right to continue participation in
the Plan, and to apply to the exercise of awards (i) any amounts in such participant’s account as
of the commencement of such Participant Leave Of Absence, (ii) any amounts which the participant
authorizes the Company to deduct from any payments made by the Company to such participant during
such Participant Leave Of Absence, and (iii) any amounts paid by the participant to the Company to
the extent that the amounts set forth in clauses (i) and (ii) of this sentence are less



 









 






than the amounts such participant could have had deducted from such participant’s Annualized
Base Pay if such participant had actually worked for the Company during the period of his or her
Participant Leave Of Absence.




     23. Term of Plan.



          This Plan was adopted by the Board as of March 25, 1999, approved by the stockholders of
Newpark as of May 26, 1999, and shall terminate on March 24, 2009. No award shall be made under the
Plan after such termination, but awards made prior thereto shall be unaffected by such termination.




     24. Governing Law.



          The Plan shall be construed in accordance with, and governed by, the laws of the State of
Delaware.




     25. Relationship to Other Employee Benefit Plans.



          The excess of the fair market value of Common Stock purchased hereunder on its date of
purchase over the amount actually paid for such Common Stock hereunder shall not be deemed to be
salary or other compensation to any participant for purposes of any pension, thrift,
profit-sharing, stock option or any other employee benefit plan now maintained or hereafter adopted
by the Company.




     26. Other Documents.



          All documents prepared, executed or delivered in connection with this Plan shall be, in
substance and form, as established and modified by the Committee or by persons under its direction
and supervision; provided, however, that all such documents shall be subject in every respect to
the provisions of this Plan, and in the event of any conflict between the terms of any such
document and this Plan, the provisions of this Plan shall prevail.




     27. Notices.



          All notices or other communications by a participant to the Committee under or in connection
with the Plan shall be deemed to have been duly given when received in the form specified by the
Committee at the location or by the person designated by the Committee for the receipt thereof.




     28. Severability.



          If any of the provisions of the Plan shall be held invalid, the remainder of the Plan shall
not be affected thereby.