<PAGE> 1
As filed with the Securities and Exchange Commission on January 24, 1997
Registration No. 333-___________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
XETEL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-229445
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
2525 BROCKTON DRIVE
AUSTIN, TX 78758
(Address of principal executive offices) (Zip Code)
----------------
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
----------------
ANGELO A. DECARO, JR.
PRESIDENT, CHIEF EXECUTIVE OFFICER AND DIRECTOR
2525 BROCKTON DRIVE, AUSTIN, TX 78758
(Name and address of agent for service)
(512) 435-1000
(Telephone number, including area code, of agent for service)
----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ------------- ------------ -------- ---
Employee Stock Purchase Plan:
- -----------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.0001 par value 1,000,000 shares $4.44 $4,440,000 $1,346
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the XeTel Corporation Employee
Stock Purchase Plan, by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
the outstanding shares of Common Stock of XeTel Corporation
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the average of
the high and low selling prices per share of Common Stock of XeTel
Corporation on January 21, 1997, as reported on the Nasdaq National
Market.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
XeTel Corporation (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission ("SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended March 30, 1996, filed with the SEC on June 14,
1996;
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended June 29, 1996 and September 28, 1996, filed
with the SEC on August 13, 1996 and November 12, 1996,
respectively;
(c) The Registrant's Registration Statement No. 00-27482 on Form
8-A filed with the SEC on January 3, 1996, pursuant to Section
12(b) of the Securities Exchange Act of 1934 (the "1934 Act"),
in which there is described the terms, rights and provisions
applicable to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Pursuant to the Delaware General Corporation Law (the "Delaware Law"),
the Registrant has adopted provisions in its Second Restated Certificate of
Incorporation and Restated Bylaws that purport to eliminate the personal
liability of the directors to the Registrant and its stockholders for monetary
damages for breach of the directors' fiduciary duties in certain circumstances.
These provisions do not eliminate the directors' fiduciary duties to the
Registrant, and in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under
Delaware Law. The Registrant's Restated Bylaws require the Registrant to
indemnify its directors and executive officers to the fullest extent permitted
by the Delaware Law and permits indemnification of employees and other agents.
Notwithstanding such provisions in the Registrant's Second Restated Certificate
of Incorporation and Restated Bylaws, each director will continue to be subject
to liability for breach of the director's duty of loyalty to the Registrant, for
acts or omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for actions leading to improper personal benefit to
the director and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware Law. These provisions also are not
applicable to, and therefore do not affect, a director's responsibilities under
any other law, such as the federal securities laws or state or federal
environmental laws. The Registrant has also entered into indemnification
agreements with each of its current
<PAGE> 3
directors and executive officers that provide for such indemnification,
including circumstances in which indemnification and the advancement of expenses
are discretionary under the Delaware Law. The Registrant believes that the
limitation of liability provisions in its Second Restated Certificate of
Incorporation and Restated Bylaws and the indemnification agreements will
enhance the Registrant's ability to continue to attract and retain qualified
individuals to serve as directors and executive officers. The Registrant is not
aware of any pending litigation or proceeding involving a director, officer or
employee of the Registrant to which any of such indemnification agreements would
apply.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining the Rights of Stockholders. Reference is
made to the Registrant's Registration No. 00-27482 on Form 8-A
which is incorporated herein by reference pursuant to Item
3(b) to this Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement
99.1 Employee Stock Purchase Plan.
99.2 Stock Purchase Agreement.
99.3 Enrollment/Change Form.
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 1933 Act to reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 Act each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof and (3) to remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the Registrant's
Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers or controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that, in the opinion of the SEC, such indemnification is against public
policy as expressed in the 1933 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
II-2
<PAGE> 4
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in City of Austin, State of Texas, on this 21st day of January,
1997.
XETEL CORPORATION
By: /s/ Angelo A. DeCaro, Jr.
-----------------------------------------------
Angelo A. DeCaro, Jr.
President, Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of XeTel Corporation, a
Delaware corporation, do hereby constitute and appoint Angelo A. DeCaro, Jr.,
the lawful attorney-in-fact and agent with full power and authority to do any
and all acts and things and to execute any and all instruments which said
attorney and agent, determine may be necessary or advisable or required to
enable said corporation to comply with the Securities Act of 1933, as amended,
and any rules or regulations or requirements of the Securities and Exchange
Commission in connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted include the
power and authority to sign the names of the undersigned officers and directors
in the capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that said attorney and agent, shall do or cause to be done by virtue hereof.
This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Angelo A. Decaro, Jr. President, Chief Executive January 21, 1997
- ------------------------------ Officer and Director
Angelo A. DeCaro, Jr. (Principal Executive Officer)
/s/ Richard S. Chilinski Vice President, Chief Financial January 21, 1997
- ------------------------------ Officer and Assistant Secretary
Richard S. Chilinski (Principal Financial and
Accounting Officer)
/s/ Kozo Sato Chairman of the Board January 21, 1997
- ------------------------------
Kozo Sato
/s/ Julian C. Hart Vice President, Chief Technical January 21, 1997
- ------------------------------ Officer and Director
Julian C. Hart
/s/ Ronald W. Guire Secretary and Director January 21, 1997
- ------------------------------
Ronald W. Guire
/s/ Raimon L. Conlisk Director January 21, 1997
- ------------------------------
Raimon L. Conlisk
</TABLE>
II-4
<PAGE> 6
EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining the Rights of Stockholders. Reference is
made to the Registrant's Registration No. 00-27482 on Form 8-A
which is incorporated herein by reference pursuant to Item
3(b) to this Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Employee Stock Purchase Plan.
99.2 Stock Purchase Agreement.
99.3 Enrollment/Change Form.
<PAGE> 1
EXHIBIT 5
Opinion and consent of Brobeck, Phleger & Harrison LLP
January 24, 1997
XeTel Corporation
2525 Brockton Drive
Austin, TX 78758
Re: XeTel Corporation (the "Company")
Registration Statement for 1,000,000 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of the 1,000,000
shares of Common Stock available for issuance under the Company's Employee Stock
Purchase Plan. We advise you that, in our opinion, when such shares have been
issued and sold pursuant to the applicable provisions of the Company's Employee
Stock Purchase Plan and in accordance with the Registration Statement, such
shares will be validly issued, fully paid and nonassessable shares of the
Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 19, 1996, appearing in XeTel
Corporation's Annual Report on Form 10-K for the year ended March 30, 1996.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Austin, Texas
January 20, 1997
<PAGE> 1
EXHIBIT 99.1
XETEL CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the
interests of XeTel Corporation by providing eligible employees of the
Corporation with the opportunity to acquire a proprietary interest in the
Corporation through participation in a payroll- deduction based employee stock
purchase plan designed to qualify under Section 423 of the Code.
Capitalized terms herein shall have the meanings assigned to
such terms in the attached Appendix.
II. ADMINISTRATION OF THE PLAN
The Plan Administrator shall have full authority to interpret
and construe any provision of the Plan and to adopt such rules and regulations
for administering the Plan as it may deem necessary in order to comply with the
requirements of Code Section 423. Decisions of the Plan Administrator shall be
final and binding on all parties having an interest in the Plan. The Plan
Administrator may designate one or more employees of the Corporation to carry
out the day to day administration of the Plan.
III. STOCK SUBJECT TO PLAN
A. The stock purchasable under the Plan shall be shares of
authorized but unissued or reacquired Common Stock, including shares of Common
Stock purchased on the open market. The maximum number of shares of Common Stock
which may be issued over the term of the Plan shall not exceed One Million
(1,000,000) shares.
B. Should any change be made to the Common Stock by reason of
any stock split, stock dividend, recapitalization, combination of shares,
exchange of shares or other change affecting the outstanding Common Stock as a
class without the Corporation's receipt of consideration, appropriate
adjustments shall be made to (i) the maximum number and class of securities
issuable under the Plan, (ii) the maximum number and class of securities
purchasable per Participant on any one Purchase Date and (iii) the number and
class of securities and the price per share in effect under each outstanding
purchase right in order to prevent the dilution or enlargement of benefits
thereunder.
<PAGE> 2
IV. PURCHASE PERIODS
A. Shares of Common Stock shall be offered for purchase under
the Plan through a series of successive purchase periods until such time as (i)
the maximum number of shares of Common Stock available for issuance under the
Plan shall have been purchased or (ii) the Plan shall have been sooner
terminated.
B. The duration of each purchase period shall be determined by
the Plan Administrator. The initial purchase period shall commence on the
Effective Date and shall end on the last business day of the Corporation's
second fiscal quarter for its 1998 fiscal year; the next purchase period shall
commence on the first business day of the Corporation's third fiscal quarter for
its 1998 fiscal year and shall end on the last business day of the Corporation's
fourth quarter for its 1998 fiscal year. Until otherwise designated by the Plan
Administrator prior to the start date, subsequent purchase periods shall
commence on the first business day of the Corporation's first and third fiscal
quarters for each fiscal year and end on the last business day of the
Corporation's second and fourth fiscal quarters for each fiscal year.
V. ELIGIBILITY
A. Each Eligible Employee shall be eligible to enter a
purchase period under the Plan which begins on or after his or her completion of
any minimum Service period established by the Plan Administrator as a condition
to participation in that purchase period, provided he or she remains an Eligible
Employee on the start date of that period.
B. To participate in the Plan for a particular purchase
period, the Eligible Employee must complete the enrollment forms prescribed by
the Plan Administrator (including a stock purchase agreement and a payroll
deduction authorization) and file such forms with the Plan Administrator (or its
designate) during the enrollment period established for that purchase period by
the Plan Administrator.
VI. PAYROLL DEDUCTIONS
A. The Plan Administrator shall, prior to the start of each
purchase period, determine the maximum percentage of Cash Earnings which each
Participant may contribute to the Plan through payroll deductions during that
purchase period; provided, however, that the maximum percentage shall in no
event exceed fifteen percent (15%) of such Cash Earnings. Each Participant may
then authorize a level of payroll deduction to be in effect for such purchase
period in any multiple of one percent (1%) of the Cash Earnings paid to him or
her during that purchase period, up to the maximum percentage established by the
Plan Administrator for such purchase period. The rate of payroll deduction
authorized by each Participant shall continue in effect from purchase period to
purchase period, except to the extent such rate is changed in accordance with
the following guidelines:
2.
<PAGE> 3
(i) The Participant may, during the enrollment period prior
to the commencement of any new purchase period, increase the rate of
his or her payroll deduction by filing the appropriate form with the
Plan Administrator. The new rate (which may not exceed the maximum
percentage authorized by the Plan Administrator for that purchase
period and must be in one percent (1%) increments) shall become
effective on the first purchase period following the filing of such
form.
(ii) The Participant may, during the enrollment period prior
to the commencement of any new purchase period, decrease the rate of
his or her payroll deduction by filing the appropriate form with the
Plan Administrator. The new rate (which must be at least one percent
(1%) of his or her Cash Earnings) shall become effective on the first
purchase period following the filing of such form.
B. Payroll deductions shall begin on the first pay day
following the start date of the purchase period and shall (unless sooner
terminated by the Participant) continue through the pay day ending with or
immediately prior to the last day of the purchase period. The amounts so
collected shall be credited to the Participant's book account under the Plan,
but no interest shall be paid on the balance from time to time outstanding in
such account. The amounts collected from the Participant shall not be held in
any segregated account or trust fund and may be commingled with the general
assets of the Corporation and used for general corporate purposes.
C. Payroll deductions shall automatically cease upon the
termination of the Participant's purchase right in accordance with the
provisions of the Plan.
D. The Participant's acquisition of Common Stock under the
Plan on any Purchase Date shall neither limit nor require the Participant's
acquisition of Common Stock on any subsequent Purchase Date.
VII. PURCHASE RIGHTS
A. GRANT OF PURCHASE RIGHT. A Participant shall be granted a
separate purchase right on the start date of each purchase period in which he or
she participates. The purchase right shall provide the Participant with the
right to purchase shares of Common Stock on the Purchase Date upon the terms set
forth below. The Participant shall execute a stock purchase agreement embodying
such terms and such other provisions (not inconsistent with the Plan) as the
Plan Administrator may deem advisable.
Under no circumstances shall purchase rights be granted under
the Plan to any Eligible Employee if such individual would, immediately after
the grant, own (directly or indirectly within the meaning of Code Section
424(d)), or hold outstanding options or other
3.
<PAGE> 4
rights to purchase, stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Corporation or any
Corporate Affiliate.
B. EXERCISE OF THE PURCHASE RIGHT. Each purchase right shall
be automatically exercised on the Purchase Date, and shares of Common Stock
shall accordingly be purchased on behalf of each Participant on such date. The
purchase shall be effected by applying the Participant's payroll deductions for
the purchase period ending on such Purchase Date to the purchase of whole shares
of Common Stock (subject to the limitation on the maximum number of shares
purchasable per Participant on any one Purchase Date and any other limitation
imposed by the Plan Administrator) at the purchase price in effect for that
Purchase Date.
C. PURCHASE PRICE. The purchase price per share at which
Common Stock will be purchased on the Participant's behalf on each Purchase Date
shall not be less than eighty-five percent (85%) of the lower of (i) the Fair
Market Value per share of Common Stock on the start date of the purchase period
or (ii) the Fair Market Value per share of Common Stock on that Purchase Date.
The Plan Administrator shall determine the exact percentage discount prior to
the start of each purchase period.
D. NUMBER OF PURCHASABLE SHARES. The number of shares of
Common Stock purchasable by a Participant on each Purchase Date shall be the
number of whole shares obtained by dividing the amount collected from the
Participant through payroll deductions during the purchase period ending with
that Purchase Date by the purchase price in effect for the Participant for that
Purchase Date. However, the maximum number of shares of Common Stock purchasable
per Participant on any one Purchase Date shall not exceed the number specified
by the Plan Administrator for that Purchase Date prior to the start date of the
purchase period ending with that Purchase Date. Until otherwise designated by
the Plan Administrator, the maximum number of shares of Common Stock purchasable
per Participant on any one Purchase Date shall not exceed 1,500 shares, subject
to periodic adjustments in the event of certain changes in the Corporation's
capitalization.
E. EXCESS PAYROLL DEDUCTIONS. Any payroll deductions not
applied to the purchase of shares of Common Stock on any Purchase Date because
they are not sufficient to purchase a whole share of Common Stock shall be held
for the purchase of Common Stock on the next Purchase Date. However, any payroll
deductions not applied to the purchase of Common Stock by reason of the
limitation on the maximum number of shares purchasable by the Participant on the
Purchase Date shall be promptly refunded.
F. TERMINATION OF PURCHASE RIGHT. The following provisions
shall govern the termination of outstanding purchase rights:
(i) A Participant may, at any time prior to the last day of
the purchase period, terminate his or her outstanding purchase right by
filing the appropriate form with the Plan Administrator (or its
designate),
4.
<PAGE> 5
and no further payroll deductions shall be collected from the
Participant with respect to the terminated purchase right. Any payroll
deductions collected during the purchase period in which such
termination occurs shall be applied to the purchase of shares on the
next scheduled Purchase Date.
(ii) The termination of such purchase right shall be
irrevocable, and the Participant may not subsequently rejoin the
purchase period for which the terminated purchase right was granted. In
order to resume participation in any subsequent purchase period, such
individual must re-enroll in the Plan (by making a timely filing of the
prescribed enrollment forms) during the enrollment period for that new
purchase period.
(iii) Should the Participant voluntarily or involuntarily
cease to remain an Eligible Employee for any reason (including death,
disability or change in status) while his or her purchase right remains
outstanding, then that purchase right shall immediately terminate. All
of the Participant's payroll deductions for the purchase period in
which the purchase right so terminates shall be applied to the purchase
of shares on the next scheduled Purchase Date.
(iv) Should the Participant cease to remain in active service
by reason of an approved unpaid leave of absence during a purchase
period, then all the payroll deductions collected to date on his or her
behalf for that purchase period shall be held for the purchase of
shares on his or her behalf on the next scheduled Purchase Date. In no
event, however, shall any further payroll deductions be collected on
the Participant's behalf during such leave. Upon the Participant's
return to active service, he or she may resume participation in any
purchase period commencing after such return by re-enrolling in the
Plan during the enrollment period for that purchase period.
G. CORPORATE TRANSACTION. Each outstanding purchase right
shall automatically be exercised, immediately prior to the effective date of any
Corporate Transaction, by applying the payroll deductions of each Participant
for the purchase period in which such Corporate Transaction occurs to the
purchase of whole shares of Common Stock at a purchase price per share equal to
eighty-five percent (85%) (or such greater percentage as the Plan Administrator
may have established for the purchase period in which such Corporate Transaction
occurs) of the lower of (i) the Fair Market Value per share of Common Stock on
the start date of the purchase period in which such Corporate Transaction occurs
or (ii) the Fair Market Value per share of Common Stock immediately prior to the
effective date of such Corporate Transaction. However, the applicable limitation
on the number of shares of Common Stock purchasable per Participant shall
continue to apply to any such purchase.
5.
<PAGE> 6
The Corporation shall use reasonable efforts to provide prior
written notice of the occurrence of any Corporate Transaction, and Participants
shall, following the receipt of such notice, have the right to terminate their
outstanding purchase rights prior to the effective date of the Corporate
Transaction.
H. PRORATION OF PURCHASE RIGHTS. Should the total number of
shares of Common Stock to be purchased pursuant to outstanding purchase rights
on any particular date exceed the number of shares then available for issuance
under the Plan, the Plan Administrator shall make a pro-rata allocation of the
available shares on a uniform and nondiscriminatory basis, and the payroll
deductions of each Participant, to the extent in excess of the aggregate
purchase price payable for the Common Stock pro-rated to such individual, shall
be refunded.
I. ASSIGNABILITY. No purchase right granted under the Plan
shall be assignable or transferable by the Participant other than by will or by
the laws of descent and distribution following the Participant's death, and
during the Participant's lifetime, the purchase right shall be exercisable only
by the Participant.
J. STOCKHOLDER RIGHTS. A Participant shall have no stockholder
rights with respect to the shares subject to his or her outstanding purchase
right until the shares are purchased on the Participant's behalf in accordance
with the provisions of the Plan and the Participant has become a holder of
record of the purchased shares.
VIII. ACCRUAL LIMITATIONS
A. No Participant shall be entitled to accrue rights to
acquire Common Stock pursuant to any purchase right outstanding under this Plan
if and to the extent such accrual, when aggregated with (i) rights to purchase
Common Stock accrued under any other purchase right granted under this Plan and
(ii) similar rights accrued under other employee stock purchase plans within the
meaning of Code Section 423 of the Corporation or any Corporate Affiliate, would
otherwise permit such Participant to purchase more than Twenty- Five Thousand
Dollars ($25,000) worth of stock of the Corporation or any Corporate Affiliate
(determined on the basis of the Fair Market Value of such stock on the date or
dates such rights are granted) for each calendar year such rights are at any
time outstanding.
B. For purposes of applying such accrual limitations to the
purchase rights granted under the Plan, the following provisions shall be in
effect:
(i) The right to acquire Common Stock under each
outstanding purchase right shall accrue on the Purchase Date in effect
for the purchase period for which such right is granted.
(ii) No right to acquire Common Stock under any outstanding
purchase right shall accrue to the extent the Participant has
6.
<PAGE> 7
already accrued in the same calendar year the right to acquire Common
Stock under one (1) or more other purchase rights at a rate equal to
Twenty-Five Thousand Dollars ($25,000) worth of Common Stock
(determined on the basis of the Fair Market Value per share on the date
or dates of grant) for each calendar year such rights were at any time
outstanding.
C. If by reason of such accrual limitations, any purchase
right of a Participant does not accrue for a particular purchase period, then
the payroll deductions which the Participant made during that purchase period
with respect to such purchase right shall be promptly refunded.
D. In the event there is any conflict between the provisions
of this Article and one or more provisions of the Plan or any instrument issued
thereunder, the provisions of this Article shall be controlling.
IX. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Plan was adopted by the Board on November 4, 1996 and
shall become effective on the Effective Date, provided no purchase rights
granted under the Plan shall be exercised, and no shares of Common Stock shall
be issued hereunder, until (i) the Plan shall have been approved by the
stockholders of the Corporation and (ii) the Corporation shall have complied
with all applicable requirements of the 1933 Act (including the registration of
the shares of Common Stock issuable under the Plan on a Form S-8 registration
statement filed with the Securities and Exchange Commission), all applicable
listing requirements of any stock exchange (or the Nasdaq National Market, if
applicable) on which the Common Stock is listed for trading and all other
applicable requirements established by law or regulation. In the event such
stockholder approval is not obtained, or such compliance is not effected, within
ten (10) months after the date on which the Plan is adopted by the Board, the
Plan shall terminate and have no further force or effect, and all sums collected
from Participants during the initial purchase period hereunder shall be
refunded.
B. Unless sooner terminated by the Board, the Plan shall
terminate upon the earliest of (i) the last business day of the Corporation's
fiscal year 2007, (ii) the date on which all shares available for issuance under
the Plan shall have been sold pursuant to purchase rights exercised under the
Plan or (iii) the date on which all purchase rights are exercised in connection
with a Corporate Transaction. No further purchase rights shall be granted or
exercised, and no further payroll deductions shall be collected, under the Plan
following such termination.
X. AMENDMENT OF THE PLAN
The Board may alter, amend, suspend or discontinue the Plan at
any time to become effective immediately following the close of any purchase
period. However, the
7.
<PAGE> 8
Board may not, without the approval of the Corporation's stockholders, (i)
materially increase the number of shares of Common Stock issuable under the Plan
or the maximum number of shares purchasable per Participant on any one Purchase
Date, except for permissible adjustments in the event of certain changes in the
Corporation's capitalization, (ii) alter the purchase price formula so as to
reduce the purchase price payable for the shares of Common Stock purchasable
under the Plan or (iii) materially increase the benefits accruing to
Participants under the Plan or materially modify the requirements for
eligibility to participate in the Plan.
XI. GENERAL PROVISIONS
A. All costs and expenses incurred in the administration of
the Plan shall be paid by the Corporation.
B. Nothing in the Plan shall confer upon the Participant any
right to continue in the employ of the Corporation or any Corporate Affiliate
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Corporation (or any Corporate Affiliate employing such
person) or of the Participant, which rights are hereby expressly reserved by
each, to terminate such person's employment at any time for any reason, with or
without cause.
8.
<PAGE> 9
SCHEDULE A
CORPORATIONS PARTICIPATING IN
EMPLOYEE STOCK PURCHASE PLAN
AS OF THE EFFECTIVE DATE
XeTel Corporation
<PAGE> 10
APPENDIX
The following definitions shall be in effect under the Plan:
A. BOARD shall mean the Corporation's Board of Directors.
B. CASH EARNINGS shall mean the (i) gross base salary payable
to a Participant by one or more Participating Corporations during such
individual's period of participation in one or more purchase periods under the
Plan before deduction of any income or employment taxes plus (ii) any pre-tax
contributions made by the Participant to any Code Section 401(k) salary deferral
plan or any Code Section 125 cafeteria benefit program now or hereafter
established by the Corporation or any Corporate Affiliate plus (iii) all gross
overtime payments, bonuses, commissions, current profit-sharing distributions
and other incentive-type payments before deduction of any income or employment
taxes. However, Cash Earnings shall NOT include any contributions (other than
Code Section 401(k) or Code Section 125 contributions) made on the Participant's
behalf by the Corporation or any Corporate Affiliate under any employee benefit
or welfare plan now or hereafter established.
C. CODE shall mean the Internal Revenue Code of 1986, as
amended.
D. COMMON STOCK shall mean the Corporation's common stock.
E. CORPORATE AFFILIATE shall mean any parent or subsidiary
corporation of the Corporation as determined in accordance with Code Section
424, whether now existing or subsequently established.
F. CORPORATE TRANSACTION shall mean either of the following
stockholder- approved transactions to which the Corporation is a party:
(i) a merger or consolidation in which securities
possessing more than fifty percent (50%) of the total combined voting
power of the Corporation's outstanding securities are transferred to a
person or persons different from the persons holding those securities
immediately prior to such transaction, or
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Corporation in complete
liquidation or dissolution of the Corporation.
<PAGE> 11
G. CORPORATION shall mean XeTel Corporation, a Delaware
corporation, and any corporate successor to all or substantially all of the
assets or voting stock of XeTel Corporation which shall by appropriate action
adopt the Plan.
H. EFFECTIVE DATE shall mean January 17, 1997.
I. ELIGIBLE EMPLOYEE shall mean any person who is employed by
a Participating Corporation on a basis under which he or she is regularly
expected to render more than twenty (20) hours of service per week for more than
five (5) months per calendar year for earnings considered wages under Code
Section 3401(a).
J. FAIR MARKET VALUE per share of Common Stock on any relevant
date shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the
Nasdaq National Market, then the Fair Market Value shall be the closing
selling price per share of Common Stock on the date in question, as
such price is reported by the National Association of Securities
Dealers on the Nasdaq National Market or any successor system. If there
is no closing selling price for the Common Stock on the date in
question, then the Fair Market Value shall be the closing selling price
on the last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be the closing selling price
per share of Common Stock on the date in question on the Stock Exchange
determined by the Plan Administrator to be the primary market for the
Common Stock, as such price is officially quoted in the composite tape
of transactions on such exchange. If there is no closing selling price
for the Common Stock on the date in question, then the Fair Market
Value shall be the closing selling price on the last preceding date for
which such quotation exists.
K. 1933 ACT shall mean the Securities Act of 1933, as amended.
L. PARTICIPANT shall mean any Eligible Employee of a
Participating Corporation who is actively participating in the Plan.
M. PARTICIPATING CORPORATION shall mean the Corporation and
such Corporate Affiliate or Affiliates as may be authorized from time to time by
the Board to extend the benefits of the Plan to their Eligible Employees. The
Participating Corporations in the Plan as of the Effective Time are listed in
attached Schedule A.
A-2
<PAGE> 12
N. PLAN shall mean the Corporation's Employee Stock Purchase
Plan, as set forth in this document.
O. PLAN ADMINISTRATOR shall mean the committee of two (2) or
more Board members appointed by the Board to administer the Plan.
P. PURCHASE DATE shall mean the last business day of each
purchase period.
Q. SERVICE shall mean an individual's performance of services
for the Corporation or any Corporate Affiliate as an employee, subject to the
control and direction of the employer entity as to both the work to be performed
and the manner and method of performance.
R. STOCK EXCHANGE shall mean either the American Stock
Exchange or the New York Stock Exchange.
A-3
<PAGE> 1
EXHIBIT 99.2
XETEL CORPORATION
STOCK PURCHASE AGREEMENT
I hereby elect to participate in the Employee Stock Purchase Plan (the
"ESPP") for the purchase period specified below, and I hereby subscribe to
purchase shares of Common Stock of XeTel Corporation (the "Corporation") in
accordance with the provisions of this Agreement and the ESPP. I hereby
authorize payroll deductions from each of my paychecks during the purchase
period in the 1% multiple of my cash earnings (not to exceed a maximum of 10%)
specified in my attached Enrollment Form.
The ESPP is comprised of a series of successive purchase periods. The
initial purchase period will begin on January 17, 1997 and end on the last
business day of the Corporation's second fiscal quarter for its 1998 fiscal
year. Unless otherwise designated by the Plan Administrator, subsequent purchase
periods will begin on the first business day of the Corporation's first and
third fiscal quarters for each fiscal year and end on the last business day of
the Corporation's second and fourth fiscal quarters for each fiscal year. My
participation will automatically remain in effect from purchase period to
purchase period in accordance with my payroll deduction authorization, unless I
withdraw from the ESPP or change the rate of my payroll deduction or unless my
employment status changes. I may reduce or increase the rate of my payroll
deductions to be effective at the beginning of the next purchase period.
My payroll deductions will be accumulated for the purchase of shares of
the Common Stock on the last business day of the purchase period. The purchase
price per share will be not less than 85% of the lower of (i) the fair market
value per share of Common Stock on the start date of the purchase period or (ii)
the fair market value per share on the purchase date. I will also be subject to
ESPP restrictions (i) limiting the maximum number of shares which I may purchase
during any purchase period to 1,500 shares and (ii) prohibiting me from
purchasing more than $25,000 worth of Common Stock for each calendar year my
purchase right remains outstanding.
I can stop contributing to the ESPP at any time prior to the last
business day of the purchase period; all my payroll deductions for that period
will be applied to the purchase of shares of Common Stock at the end of the
period. However, I may not rejoin that particular purchase period at any later
date. Upon the termination of my employment for any reason or my loss of
eligible employee status, my participation in the ESPP will immediately cease
and all my payroll deductions for the purchase period in which my employment
terminates or my loss of eligibility occurs will automatically be applied to the
purchase of shares of Common Stock at the end of that purchase period. Should I
die while an ESPP participant, my payroll deductions will automatically cease;
all payroll deductions for the purchase period in which I die will be applied to
the purchase of shares of Common Stock at the end of that period.
If I take an unpaid leave of absence, my payroll deductions will
immediately cease, and any payroll deductions for the purchase period in which
my leave begins will be applied to the purchase of shares of Common Stock at the
end of that purchase period. In order to participate in the ESPP upon my return
to active service, I must re-enroll in the next purchase period during the
enrollment period for that period.
A stock certificate for the shares purchased on my behalf at the end of
each purchase period will automatically be deposited into a brokerage account
which the Corporation will open on my behalf. I authorize the broker to notify
the Corporation of any sale or disposition of my ESPP shares, and I will satisfy
all applicable income and employment tax withholding requirements at the time of
such sale or disposition.
The Corporation has the right, exercisable in its sole discretion, to
amend or terminate the ESPP at any time, with such amendment or termination to
become effective immediately following the exercise of outstanding purchase
rights at the end of any current purchase period. Should the Corporation elect
to terminate the ESPP, I will have no further rights to purchase shares of
Common Stock pursuant to this Agreement.
I have received a copy of the Question and Answer Summary summarizing
the major features of the ESPP. I have read this Agreement and hereby agree to
be bound by the terms of both this Agreement and the ESPP. The effectiveness of
this Agreement is dependent upon my eligibility to participate in the ESPP.
Date:_______________, 199__ __________________________________
Signature of Employee
Printed Name:
Start Date of my Purchase Period: _____________, 199_
<PAGE> 1
EXHIBIT 99.3
XETEL CORPORATION
EMPLOYEE STOCK PURCHASE PLAN ("ESPP")
ENROLLMENT/CHANGE FORM
Action Complete Sections:
------ ------------------
SECTION 1:
- ----------
/ / New Enrollment 2, 3, 7 and sign attached
ACTIONS Stock Purchase Agreement
/ / Payroll Deduction Change 2, 4, 7
/ / Terminate Payroll Deductions 2, 5, 7
/ / Leave of Absence 2, 6, 7
================================================================================
SECTION 2:
- ---------- Name
PERSONNEL ------------------------------------------------------
DATA Last First MI Dept.
Home Address
----------------------------------------------
Street
------------------------------------------------------
City State Zip Code
Social Security #: / // // / - / // / - / // // // /
================================================================================
SECTION 3: Effective with the
- ---------- Period Beginning:
NEW Payroll Deduction Amount: _____%
ENROLLMENT of cash earnings*
/ /Initial Purchase Period**
/ / * Must be a multiple of 1% up to
------------------------- a maximum of 10% of cash earnings
/ / **Payroll deductions will commence
------------------------- with the first pay day following
the start date of the initial
purchase period.
================================================================================
SECTION 4:
- ----------
PAYROLL Effective with the I authorize the following new level
DEDUCTION Purchase Period of payroll deduction: % of cash
CHANGE Beginning: earnings* ----
-------------------
Month, Day and Year
* Must be a multiple of 1% up to a
maximum of 10% of cash earnings
NOTE: You may reduce or increase your rate of payroll deductions
to become effective as of the start date of the next
purchase period.
================================================================================
SECTION 5:
- ----------
Effective with the Your election to
TERMINATE Pay Period Beginning: terminate your payroll
PAYROLL ------------------- deductions for the
DEDUCTIONS Month, Day and Year balance of the purchase
period cannot be changed,
and you may not rejoin
the purchase period at a
later date. You will not
be able to resume
participation in the ESPP
prior to the commencement
of the next purchase
period.
Your ESPP payroll deductions collected to date for the
purchase period in which you file this termination notice
will be applied to the purchase of shares of XeTel
Corporation at the end of the purchase period.
NOTE: If your employment terminates for any reason or your
eligibility status changes (LESS THAN 20 hrs/wk or LESS
THAN 5 months/yr), you will immediately cease to
participate in the ESPP, and your ESPP payroll deductions
collected in that purchase period will automatically be
applied to the purchase of shares of XeTel Corporation at
the end of the purchase period.
================================================================================
SECTION 6
- ---------
LEAVE OF
ABSENCE In connection with an approved leave of absence, your ESPP
payroll deductions to date in the current purchase period
will be applied to purchase shares of XeTel Corporation at
end of the purchase period. In order to resume
participation in the ESPP upon your return, you must
re-enroll in a new purchase period during the enrollment
period for that period.
================================================================================
SECTION 7
- ---------
AUTHORIZATION
I hereby authorize the specific action or actions indicated above.
- ---------------------- -----------------------------------
Date Signature of Employee
