Registration
Number 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
MERCURY COMPUTER SYSTEMS, INC.
(Exact name of issuer as specified in its charter)
Massachusetts 04-2741391
(State of Incorporation) (IRS Employer Identification Number)
199 Riverneck Road, Chelmsford, MA 01824
(Address of Principal Executive Offices)
(978) 256-1300
(Registrant's telephone number, including area code)
MERCURY COMPUTER SYSTEMS, INC.
1998 Stock Option Plan For
Non-Employee Directors
(Full title of the Plan)
Anthony J. Medaglia, Jr., Esquire
Hutchins, Wheeler & Dittmar
A Professional Corporation
l01 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
(Name, address and telephone number of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
---------------------------- -------------------------- -------------------------- -------------------------- --------------------
Title of Proposed Proposed
securities Amount maximum maximum
to be to be offering aggregate Amount of
registered registered price offering registration
per share price fee
---------------------------- -------------------------- -------------------------- -------------------------- --------------------
---------------------------- -------------------------- -------------------------- -------------------------- --------------------
---------------------------- -------------------------- -------------------------- -------------------------- --------------------
---------------------------- -------------------------- -------------------------- -------------------------- --------------------
Common Stock, $.01 par 49,870 shares $ 7.813 $ 389,634.31
value
---------------------------- -------------------------- -------------------------- -------------------------- --------------------
---------------------------- -------------------------- -------------------------- -------------------------- --------------------
Common Stock, $.01 par 14,220 shares $17.000 241,740.00
value
---------------------------- -------------------------- -------------------------- -------------------------- --------------------
---------------------------- -------------------------- -------------------------- -------------------------- --------------------
Common Stock, $.01 par 15,440 shares $27.500 424,600.00
value
---------------------------- -------------------------- -------------------------- -------------------------- --------------------
---------------------------- -------------------------- -------------------------- -------------------------- --------------------
TOTAL 79,530 shares $1,055,974.30 $263.99
---------------------------- -------------------------- -------------------------- -------------------------- --------------------
</TABLE>
(1) Also registered hereunder are such additional number of shares of
Common Stock, presently indeterminable, as may be necessary to satisfy
the antidilution provisions of the Plan to which this Registration
Statement relates.
(2) The registration fee has been calculated with respect to the 79,530
shares registered on the basis of the price at which options may be
exercised.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference the documents listed in (a) through
(c) below. In addition, all documents subsequently filed by the Company pursuant
to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
(prior to filing of a Post-Effective Amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold) shall be deemed to be incorporated by reference in this
Registration Statement and to be a part thereof from the date of filing of such
documents.
(a) The Company's latest annual report filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 or the latest Prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933, which
contains either directly or by incorporation by reference audited
financial statements for the Company's latest fiscal year for which such
statements have been filed.
(b) All of the reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since the end of the fiscal
year covered by the annual report or the Prospectus referred to in (a)
above.
(c) The description of the Company's Common Stock which is contained in
the Registration Statement filed by the Company under the Securities
Exchange Act of 1934, including any amendment or report filed for the
purpose of updating such description.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the authorization and issuance of the Common Stock offered
hereby will be passed upon for the Company by Hutchins, Wheeler & Dittmar, A
Professional Corporation, Boston, Massachusetts. Anthony J. Medaglia, Jr., a
stockholder of Hutchins, Wheeler & Dittmar, A Professional Corporation, and the
clerk of the Company beneficially owns 27,750 shares of the Company's Common
Stock.
Item 6. Indemnification of Directors and Officers
Section 67 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts provides as follows:
"Section 67. Indemnification of directors, officers, employees and other agents
of a corporation, and persons who serve at its request as directors, officers,
employees or other agents of another organization, or who serve at its request
in any capacity with respect to any employee benefit plan, may be provided by it
to whatever extent shall be specified in or authorized by (i) the articles of
organization or (ii) a by-law adopted by the stockholders or (iii) a vote
adopted by the holders of a majority of the shares of stock entitled to vote on
the election of directors. Except as the articles of organization or by-laws
otherwise require, indemnification of any persons referred to in the preceding
sentence who are not directors of the corporation may be provided by it to the
extent authorized by the directors. Such indemnification may include payment by
the corporation of expenses incurred in defending a civil or criminal action or
proceeding in advance of the final disposition of such action or proceeding,
upon receipt of an undertaking by the person indemnified to repay such payment
if he shall be adjudicated to be not entitled to indemnification under this
section which undertaking may be accepted without reference to the financial
ability of such person to make repayment. Any such indemnification may be
provided although the person to be indemnified is no longer an officer,
director, employee or agent of the corporation or of such other organization or
no longer serves with respect to any such employee benefit plan.
<PAGE>
No indemnification shall be provided for any person with respect to any matter
as to which he shall have been adjudicated in any proceeding not to have acted
in good faith in the reasonable belief that his action was in the best interest
of the corporation or to the extent that such matter relates to service with
respect to an employee benefit plan, in the best interests of the participants
or beneficiaries of such employee benefit plan.
The absence of any express provision for indemnification shall not limit any
right of indemnification existing independently of this section.
A corporation shall have power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or other agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or other agent of another organization or with
respect to any employee benefit plan, against any liability incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability."
Article 6 of the Restated Articles of Organization, as amended, of the Company
reads as follows:
Article 6.
"Other lawful provisions for the conduct and regulation of the business and
affairs of the Corporation, for its voluntary dissolution or for limiting,
defining or regulating the powers of the Corporation, or of its directors or
stockholders, or of any class of stockholders are as follows: [...]
No Director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a Director
notwithstanding any statutory provision or other law imposing such liability,
except for liability of a director (i) for any breach of the Director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 61 or 62 of Chapter 156 of the Massachusetts General
Laws, or (iv) for any transaction from which the Director derived an improper
personal benefit."
Article 7 of the Amended By-Laws of the Company provides as follows:
Article 7.
Indemnification of Directors and Officers
Section 7.1 Definitions
"For purposes of this Article 7:
(a) 'Director/officer' means any person who is serving or has served as a
Director, officer or employee of the Corporation appointed or elected by the
Board of Directors or the stockholders of the Corporation, or any Director,
officer or employee of the Corporation who is serving or has served at the
request of the Corporation as a Director, officer, trustee, principal, partner,
employee or other agent of any other organization.
(b) 'Proceeding' means any action, suit or proceeding, civil or criminal,
brought or threatened in or before any court, tribunal, administrative or
legislative body or agency.
(c) 'Expense' means any fine or penalty, and any liability fixed by a judgment,
order, decree or award in a Proceeding, any amount reasonably paid in settlement
of a Proceeding and any professional fees and other disbursements reasonably
incurred in connection with a Proceeding.
<PAGE>
Section 7.2 Right to Indemnification
Except as limited by law or as provided in Sections 7.3 and 7.4 of this Article
7, each Director/officer (and his heirs and personal representatives) shall be
indemnified by the Corporation against any Expense incurred by such
Director/officer in connection with each Proceeding in which he or she is
involved as a result of his or her serving or having served as a
Director/officer.
Section 7.3 Indemnification Not Available
No indemnification shall be provided to a Director/officer with respect to a
Proceeding as to which it shall have been adjudicated that he or she did not act
in good faith in the reasonable belief that his or her action was in the best
interests of the Corporation.
Section 7.4 Compromise or Settlement
In the event that a Proceeding is compromised or settled so as to impose any
liability or obligation on a Director/officer or upon the Corporation, no
indemnification shall be provided as to said Director/officer with respect to
such Proceeding if such Director/officer shall have been adjudicated not to have
acted in good faith in the reasonable belief that his or her action was in the
best interests of the Corporation.
Section 7.5 Advances
The Corporation shall pay sums on account of indemnification in advance of a
final disposition of a Proceeding upon receipt of an undertaking by the
Director/officer to repay such sums if it is subsequently established that he or
she is not entitled to indemnification pursuant to Sections 7.3 and 7.4 hereof,
which undertaking may be accepted without reference to the financial ability of
such person to make repayment.
Section 7.6 Not Exclusive
Nothing in this Article 7 shall limit any lawful rights to indemnification
existing independently of this Article 7.
Section 7.7 Insurance
The provisions of this Article 7 shall not limit the power of the Board of
Directors to authorize the purchase and maintenance of insurance on behalf of
any Director/officer against any Expense whether or not the Corporation would
have the power to indemnify such Director/officer against such Expense under
this Article 7."
Item 7. Exemption from Registration Claimed
Not Applicable.
<PAGE>
Item 8. Exhibits
Number Description
4.1 1998 Stock Option Plan for Non-Employee Directors
5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation
23.1 Consent of Independent Public Accountants
23.2 Consent of Hutchins, Wheeler & Dittmar, A
Professional Corporation (included in Exhibit 5.1)
Item 9. Undertakings
The undersigned Registrant hereby undertakes the following:
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of 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)(l)(i) and (a)(l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
<PAGE>
(c) The undersigned Registrant hereby undertakes, that, insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
-registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Chelmsford, Massachusetts on December 28, 2000.
MERCURY COMPUTER SYSTEMS, INC.
By /s/ James R. Bertelli
James R. Bertelli
President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ James R. Bertelli President, Chief Executive December 28, 2000
James R. Bertelli Officer and Director
G. Mead Wyman Vice President, Chief
G. Mead Wyman Financial Officer and
Treasurer
/s/ Gordon B. Baty Director December 28, 2000
Gordon B. Baty
/s/ Albert P. Belle Isle Director December 28, 2000
Albert P. Belle Isle
James A. Dwyer Director
/s/ Sherman N. Mullin Director December 28, 2000
Sherman N. Mullin
/s/ Melvin Sallen Director December 28, 2000
Melvin Sallen
</TABLE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
to
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
MERCURY COMPUTER SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
<PAGE>
Exhibit 4.5
MERCURY COMPUTER SYSTEMS, INC.
1998 STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
1. PURPOSE
The purpose of this Mercury Computer Systems, Inc. 1998 Stock Option Plan
for Non-Employee Directors (the "Plan") is to attract and retain the services of
experienced and knowledgeable independent directors who are not employees
(sometimes referred to herein collectively as "Participants") of Mercury
Computer Systems, Inc. ("Mercury") for the benefit of Mercury and its
stockholders and to provide additional incentive for such Participants to
continue to work in the best interests of Mercury and its stockholders through
continuing ownership of its common stock.
2. SHARES SUBJECT TO THE PLAN
The total number of shares of common stock, par value $.01 per share
("Shares"), of Mercury for which options may be granted under the Plan shall not
exceed 100,000 in the aggregate, subject to adjustment in accordance with
Section 9 hereof.
3. ELIGIBILITY; GRANT OF OPTION
On September 30 of each of 1998, 1999, 2000, 2001 and 2002, each person
who is then a member of the Board of Directors of Mercury (the "Board") and who
is not then an employee of Mercury or any subsidiary shall be granted an option
to acquire the Formula Number of Shares under the Plan. Any options granted
prior to stockholder approval of this Plan shall become effective as of their
date of grant only upon stockholder approval of this Plan in accordance with
Section 13 hereof. The options shall be non-qualified options not intended to
meet the requirements of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
The Formula Number shall be that number equal to one percent (1%) of the
net income of Mercury for the most recent fiscal year ending prior to the grant
date as shown on Mercury's audited financial statements divided by the fair
market value of a share of Mercury common stock, as determined under Section 5
hereof, on the first day of such most recent fiscal year, divided by the number
of the non-employee Directors of Mercury granted options hereunder on such grant
date. No fractional shares shall be issued.
4. OPTION AGREEMENT
Each option granted under the Plan shall be evidenced by an option
agreement (the "Agreement") duly executed on behalf of Mercury and by the
director to whom such option is granted, which Agreements shall comply with and
be subject to the terms and conditions of the Plan.
5. OPTION EXERCISE PRICE
Subject to the provisions of Section 9 hereof, the option exercise price
for an option granted under the Plan shall be the fair market value of the
Shares of the common stock of Mercury covered by the option on the date of grant
of the option. For the purposes hereof, the fair market value of the Shares of
the common stock of Mercury shall be determined as follows. If such shares are
then listed on any national securities exchange, the fair market value shall be
the mean between the high and low sales prices, if any, on the largest such
exchange on the date of the grant of the option or, if none, shall be determined
by taking a weighted average of the means between the highest and lowest sales
<PAGE>
prices on the nearest date before and the nearest date after the date of grant
in accordance with Treasury Regulations Section 25.2512-2. If the shares are not
then listed on any such exchange, the fair market value of such shares shall be
the mean between the high and low sales prices, if any, as reported in the
National Association of Securities Dealers Automated Quotation System National
Market System ("NASDAQ/NMS") for the date of the grant of the option, or, if
none, shall be determined by taking a weighted average of the means between the
highest and lowest sales on the nearest date before and the nearest date after
the date of grant in accordance with Treasury Regulations Section 25.2512-2. If
the shares are not then either listed on any such exchange or quoted in
NASDAQ/NMS, the fair market value shall be the mean between the average of the
"Bid" and the average of the "Ask" prices, if any, as reported in the National
Daily Quotation Service for the date of the grant of the option, or, if none,
shall be determined by taking a weighted average of the means between the
highest and lowest sales prices on the nearest date before and the nearest date
after the date of grant in accordance with Treasury Regulations Section
25.2512-2. If the fair market value cannot be determined under the preceding
three sentences, it shall be determined by the Company's independent auditors.
6. TIME AND MANNER OF EXERCISE OF OPTION
(a) Options granted under the Plan shall, subject to the provisions of
Section 7, be exercisable as provided in this Section 6(a). The options granted
under this Plan shall vest 1/3 on each of the first, second, and third
anniversaries of the date of grant. Following the third anniversary of the date
of grant, all options granted pursuant to a particular grant shall be
exercisable in full.
(b) To the extent that the right to exercise an option has accrued and is
in effect, the option may be exercised in full at one time or in part from time
to time by giving written notice, signed by the person or persons exercising the
option, to Mercury, stating the number of Shares with respect to which the
option is being exercised, accompanied by payment in full for such Shares, which
payment must be in cash or certified check payable to the order of the Company;
provided, however, that there shall be no such exercise at any one time as to
fewer than Two Hundred Fifty (250) Shares or all of the remaining Shares then
purchasable by the person or persons exercising the option, if fewer than Two
Hundred Fifty (250) Shares. Upon such exercise, delivery of a certificate for
paid-up non-assessable Shares shall be made at the principal Massachusetts
office of Mercury to the person or persons exercising the option at such time,
during ordinary business hours, not more than thirty (30) days from the date of
receipt of the notice by Mercury, as shall be designated in such notice, or at
such time, place and manner as may be agreed upon by Mercury and the person or
persons exercising the option.
7. TERM OF OPTIONS
(a) Each option shall expire ten (10) years from the date of the granting
thereof, but shall be subject to earlier termination as herein provided.
(b) In the event of the death of an optionee, the option granted to such
optionee may be exercised, to the extent the optionee was entitled to do so on
the date of such optionee's death, by the estate of such optionee or by any
person or persons who acquired the right to exercise such option by bequest or
inheritance or otherwise by reason of the death of such optionee. Such option
may be exercised at any time within one (1) year after the date of death of such
optionee, at which time the option shall terminate, or prior to the date on
which the option otherwise expires by its terms, whichever is earlier.
(c) In the event that an optionee ceases to be a director of Mercury, the
option granted to such optionee may be exercised by him, but only to the extent
that under Section 6 hereof the right to exercise the option has accrued and is
in effect. Such option may be exercised at any time within one (1) month after
the date such optionee ceases to be a director of Mercury, at which time the
option shall terminate, but in any event prior to the date on which the option
expires by its terms, whichever is earlier, unless termination as a director (a)
was by Mercury for cause, in which case the option shall terminate immediately
at the time the optionee ceases to be a director of Mercury, (b) was because the
optionee has become disabled (within the meaning of Section 22(e)(3) of the
Code), or (c) was by reason of the death of the optionee. In the case of death,
see Section 7(b) of the Plan. In the case of disability, the option may be
exercised, to the extent then exercisable under Section 6 hereof, at any time
within one (1) year after the date of termination of the optionee's directorship
with Mercury, at which time the option shall terminate, but in any event prior
to the date on which the option otherwise expires by its terms, whichever is
earlier.
<PAGE>
8. OPTIONS NOT TRANSFERABLE
The right of any optionee to exercise an option granted to him under the
Plan shall not be assignable or transferable by such optionee otherwise than by
will or the laws of descent and distribution, or pursuant to a qualified
domestic relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act, or the rules thereunder. Any option granted
under the Plan shall be exercisable during the lifetime of such optionee only by
him. Any option granted under the Plan shall be null and void and without effect
upon the bankruptcy of the optionee, or upon any attempted assignment or
transfer, except as herein provided, including without limitation any purported
assignment, whether voluntary or by operation of law, pledge, hypothecation or
other disposition, attachment, trustee process or similar process, whether legal
or equitable, upon such option.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
In the event that the outstanding Shares of the common stock of Mercury
are changed into or exchanged for a different number or kind of shares or other
securities of Mercury or of another corporation by reason of any reorganization,
merger, consolidation, recapitalization, reclassification, stock split-up,
combination of shares or dividends payable in capital stock, appropriate
adjustment shall be made in the number and kind of shares as to which
outstanding options, or portions thereof then unexercised, shall be exercisable,
to the end that the proportionate interest of the optionee shall be maintained
as before the occurrence of such event, and such adjustment in outstanding
options shall be made without change in the total price applicable to the
unexercised portion of such options and with a corresponding adjustment in the
option price per share.
10. RESTRICTIONS ON ISSUE OF SHARES
Notwithstanding the provisions of Section 6 hereof, Mercury may delay the
issuance of Shares covered by the exercise of any option and the delivery of a
certificate for such Shares until one of the following conditions shall be
satisfied:
(i) the Shares with respect to which an option has been
exercised are at the time of the issue of such Shares effectively registered
under applicable Federal and state securities acts now in force or hereafter
amended; or
(ii) counsel for Mercury shall have given an opinion, which
opinion shall not be unreasonably conditioned or withheld, that such Shares are
exempt from registration under applicable Federal and state securities acts now
in force or hereafter amended.
It is intended that all exercises of options shall be effective.
Accordingly, Mercury shall use its best efforts to bring about compliance with
the above conditions within a reasonable time, except that Mercury shall be
under no obligation to cause a registration statement or a post-effective
amendment to any registration statement to be prepared at its expense solely for
the purpose of covering the issue of Shares in respect of which any option may
be exercised, except as otherwise agreed to by Mercury in writing.
11. RIGHTS OF HOLDER ON PURCHASE FOR INVESTMENT; SUBSEQUENT REGISTRATION
Unless the Shares to be issued upon exercise of an option granted under
the Plan have been effectively registered under the Securities Act of 1933, as
now in force or hereafter amended, Mercury shall be under no obligation to issue
any Shares covered by any option unless the person who exercises such option, in
whole or in part, shall give a written representation and undertaking to Mercury
which is satisfactory in form and scope to counsel to Mercury and upon which, in
the opinion of such counsel, Mercury may reasonably rely, that he is acquiring
the Shares issued to him pursuant to such exercise of the option for his own
account as an investment and not with a view to, or for sale in connection with,
the distribution of any such Shares, and that he will make no transfer of the
same except in compliance with any rules and regulations in force at the time of
such transfer under the Securities Act of 1933, or any other applicable law, and
that if Shares are issued without such registration a legend to this effect may
be endorsed upon the securities so issued. In the event that Mercury shall,
nevertheless, deem it necessary or desirable to register under the Securities
Act of 1933 or other applicable statutes any Shares with respect to which an
option shall have been exercised, or to qualify any such Shares for exemption
from the Securities Act of 1933 or other applicable statutes, then Mercury shall
take such action at its own expense and may require from each optionee such
information in writing for use in any registration statement, prospectus,
preliminary prospectus or offering circular as is reasonably necessary for such
purpose and may require reasonable indemnity to Mercury and its officers and
directors from such holder against all losses, claims, damages and liabilities
arising from such use of the information so furnished and caused by any untrue
statement of any material fact therein or caused by the omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made.
<PAGE>
12. LOANS PROHIBITED
Mercury shall not, directly or indirectly, lend money to an optionee or
to any person or persons entitled to exercise an option by reason of the death
of an optionee for the purpose of assisting him or them in the acquisition of
Shares covered by an option granted under the Plan.
13. APPROVAL OF STOCKHOLDERS
The Plan shall be subject to approval by the vote of stockholders holding
at least a majority of the voting stock of Mercury voting in person or by proxy
at a duly held stockholders' meeting, or by written consent of all of the
stockholders, and shall take effect immediately as of its date of adoption upon
such approval.
14. EXPENSES OF THE PLAN
All costs and expenses of the adoption and administration of the Plan
shall be borne by Mercury, and none of such expenses shall be charged to any
optionee.
15. TERMINATION AND AMENDMENT OF PLAN
Unless sooner terminated as herein provided, the Plan shall terminate ten
(10) years from the date upon which the Plan was duly approved by the
stockholders. The Board may at any time terminate the Plan or make such
modification or amendment thereof as it deems advisable, provided however that,
except as provided in Section 9 hereof, no modification or amendment to the
provisions of the Plan may be made more than once every six (6) months other
than to comport with changes in the Code, the Employee Retirement Income
Security Act, or the rules thereunder, if the effect of such amendment or
modification would be to change (i) the requirements for eligibility under the
Plan, (ii) the timing of the grants of options to be granted under the Plan or
the exercise price or vesting schedule thereof, or (iii) the number of Shares
subject to options to be granted under the Plan either in the aggregate or to
one director. Any amendment to the provisions of the Plan which (i) materially
increases the number of Shares which may be subject to options granted under the
Plan, (ii) materially increases the benefits accruing to Participants under the
Plan, or (iii) materially modifies the requirement for eligibility to
participate in the Plan, shall be subject to approval by the stockholders of
Mercury obtained in the manner stated in Section 13 hereof. Termination or any
modification or amendment of the Plan shall not, without the consent of an
optionee, affect his rights under an option previously granted to him.
16. LIMITATION OF RIGHTS IN THE OPTION SHARES
An optionee shall not be deemed for any purpose to be a stockholder of
Mercury with respect to any of the options except to the extent that the option
shall have been exercised with respect thereto and, in addition, a certificate
shall have been issued theretofore and delivered to the optionee.
17. NOTICES
Any communication or notice required or permitted to be given under the
Plan shall be in writing, and mailed by registered or certified mail or
delivered by hand, if to Mercury, to its principal place of business, attention:
President, and, if to an optionee, to the address as appearing on the records of
Mercury.
18. COMPLIANCE WITH RULE 16b-3
--------------------------
It is the intention of Mercury that the Plan comply in all respects with
Rule 16b-3 promulgated under Section 16(b) of the Securities Exchange Act of
1934 (the "Act") and that Participants remain disinterested persons for purposes
of administering other employee benefit plans of Mercury and having transactions
under such other plans be exempt from Section 16(b) of the Act. Therefore, if
any Plan provision is found not to be in compliance with Rule 16b-3 or if any
Plan provisions would disqualify Participants from remaining disinterested
persons, that provisions shall be deemed null and void, and in all events the
Plan shall be construed in favor of its meeting the requirements of Rule 16b-3.
APPROVED BY BOARD OF DIRECTORS: June 15, 1998
------------------------
APPROVED BY THE STOCKHOLDERS: October 27, 1998
----------------------
<PAGE>
Exhibit 5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation
December 28, 2000
Mercury Computer Systems, Inc.
199 Riverneck Road
Chelmsford, MA 01824
Ladies and Gentlemen:
We are general counsel to Mercury Computer Systems, Inc., a Massachusetts
corporation (the "Company"), and as such counsel we are familiar with the
corporate proceedings taken in connection with the adoption of the Company's
1998 Stock Option Plan for Non-Employee Directors. We are also familiar with the
registration statement on Form S-8 to which a copy of this opinion will be
attached as an exhibit.
As such counsel, we have examined the corporate records of the Company,
including the Restated Articles of Organization, By-laws, stock records, minutes
of meetings of its Board of Directors and stockholders and such other documents
as we have deemed necessary as a basis for the opinions herein expressed.
Based upon the foregoing, and having regard for such legal considerations as we
deem relevant, we are of the opinion that:
1. The Company is duly organized and validly existing under the laws of the
Commonwealth of Massachusetts;
2. The Company has authorized the issuance of 40,000,000 shares of common stock
having a par value of $.01 per share and 1,000,000 shares of preferred stock
having a par value of $.01 per share.
3. The shares of common stock issuable pursuant to the Plan, when sold in
accordance with the terms thereof, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 and to the reference to us under the caption
"Interests of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
/s/Hutchins, Wheeler & Dittmar
HUTCHINS, WHEELER & DITTMAR
A Professional Corporation
<PAGE>
Exhibit 23.1 Consent of Independent Public Accountants
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated August 17, 2000 relating to the
financial statements and financial statement schedule of Mercury Computer
Systems, Inc., which appears in Mercury Computer Systems, Inc.'s Annual Report
on Form 10-K for the year ended June 30, 2000.
PricewaterhouseCooper LLP
Boston, Massachusetts
December 28, 2000
