<PAGE> 1
As filed with the Securities and Exchange Commission on January 30, 1995
REGISTRATION STATEMENT NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
DYNATECH CORPORATION
(Exact name of Registrant as specified in its charter)
Massachusetts 04-2258582
(State of incorporation) (I.R.S. Employer Identification Number)
3 NEW ENGLAND EXECUTIVE PARK
BURLINGTON, MASSACHUSETTS 01803-5087
(617) 272-6100
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
DYNATECH CORPORATION
1994 STOCK OPTION AND INCENTIVE PLAN
(Full Title of the Plan)
----------------------
JOHN F. RENO
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DYNATECH CORPORATION
3 NEW ENGLAND EXECUTIVE PARK
BURLINGTON, MASSACHUSETTS 01803-5087
(617) 272-6100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------
With copies to:
EDWARD T. O'DELL, P.C.
GOODWIN, PROCTER & HOAR
EXCHANGE PLACE
53 STATE STREET
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
----------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
<CAPTION>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
Being Registered Registered (1) Offering Price Per Share Aggregate Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock . . . . . 450,000 shares $34.875(2) $15,693,750 $5,412
=================================================================================================================================
<FN>
(1) Plus such additional number of shares as may be required pursuant to the 1994 Stock Option and Incentive Plan
(the "Plan") in the event of a stock dividend, reverse stock split, split-up, recapitalization or other similar
event or forfeited under the terms of the Plan.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended (the "Securities
Act"), solely for purposes of determining the registration fee and is based upon the market value of outstanding shares
of Dynatech Corporation Common Stock on January 26, 1995, utilizing the average of the high and low sale prices reported
on the NASDAQ National Market System on that date.
=================================================================================================================================
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
Dynatech Corporation (the "Company") hereby incorporates by reference
the documents listed in (a) through (d) below, which have previously been filed
with the Securities and Exchange Commission.
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1994, filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) All other reports filed since March 31, 1994 pursuant to
Section 13(a) or 15(d) of the Exchange Act;
(c) The Proxy Statement for the Company's annual meeting of
stockholders held on July 26, 1994, mailed to stockholders on
or about June 17, 1994; and
(d) The description of the Company's Common Stock contained in its
registration statement, filed with the Securities and Exchange
Commission under Section 12 of the Exchange Act, and any
amendments or reports filed for the purpose of updating such
description.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Company pursuant to Sections 13(a) and 13(c),
Section 14 and Section 15(d) of the Exchange Act prior to the filing of a
post-effective amendment hereto that indicates that all securities offered
hereunder have been sold or that deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 67 of Chapter 156B of the General Laws of the Commonwealth of
Massachusetts provides that a corporation may indemnify any director or officer
(among others) except as to any matter as to which he or she is adjudicated in
any proceeding 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 67
further provides that a corporation has the power to purchase and maintain
insurance policies on behalf of any such officer or director against liability
incurred by him or her in such capacity or arising out of his or her status as
such, whether or not the corporation has the power to indemnify such officer or
director against such liability.
The Restated Articles of Organization of Dynatech, as amended (the
"Articles of Organization") provide that directors and officers of Dynatech
shall be indemnified by Dynatech for all expenses incurred by them in
connection with any proceeding in which they are involved as a result of
serving or having served as a director or officer of Dynatech or of any other
organization at Dynatech's direction; provided that no indemnification shall be
provided to a director or officer with respect to a matter as to which it
shall have been adjudicated in any proceeding that he did not act in good faith
in the reasonable belief that his action was in the best interests of Dynatech.
As to any matter disposed of by a compromise payment by the party seeking
indemnification, pursuant to a consent decree or otherwise, no indemnification
shall be paid unless such compromise is approved by a majority of directors who
are not parties to the subject proceeding, by legal counsel in a written
opinion, or by a majority of stockholders present in person or by proxy at a
meeting at which a quorum is present. The provisions of the Articles of
Organization of Dynatech do not limit any lawful rights to indemnification
existing independently of such provisions.
As permitted by Massachusetts law, the Articles of Organization
provide that a director of Dynatech will not be personally liable to Dynatech
or its stockholders for monetary damages arising out of the director's breach
of his or her fiduciary duty, except to the extent that the Massachusetts
Business Corporation Law ("MBCL") does not permit exemption from such
liability. Currently, the MBCL provides that a director remains potentially
liable for monetary damages for (i)
2
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any breach of the director's duty of loyalty to Dynatech or its stockholders,
(ii) any acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law, (iii) any improper payment of a
dividend, improper repurchase of Dynatech's stock, or certain loans to
directors and officers of Dynatech in violation of Section 61 or 62 of MBCL, or
(iv) any transaction from which a director derives an improper benefit.
Dynatech has purchased directors' and officers' liability insurance,
which insures against certain losses arising from claims against directors or
officers of Dynatech by reason of certain acts, including a breach of duty,
neglect, error, misstatement, misleading statement, omission or other act done
or wrongfully attempted or any of the foregoing so alleged by any claimant or
any claim against an officer or director of Dynatech solely by reason of his
being such officer or director.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
Exhibit Description
- ------- -----------
4.1 Dynatech Corporation 1994 Stock Option and Incentive Plan
5.1 Opinion of Goodwin, Procter & Hoar as to the legality of the
securities being registered
23.1 Consent of Coopers & Lybrand, Independent Accountants
23.2 Consent of Goodwin, Procter & Hoar (included in Exhibit 5.1 of
this registration statement)
24 Powers of Attorney (included on page 5 of this registration statement)
Item 9. Undertakings.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(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; and
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
herein 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 undersigned registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the registration
statement;
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof; 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
offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
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<PAGE> 4
Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has
been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
4
<PAGE> 5
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 the City of Boston, Commonwealth of Massachusetts, on
January 26, 1994.
DYNATECH CORPORATION
By: /s/ John F. Reno
-------------------------------------
John F. Reno
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Dynatech Corporation hereby severally constitute John F. Reno,
Robert H. Hertz and Edward T. O'Dell, and each of them singly, our true and
lawful attorneys with full power to them, and each of them singly, to sign for
us and in our names in the capacities indicated below, the Registration
Statement filed herewith and any and all amendments to said Registration
Statement, and generally to do all such things in our names and in our
capacities as officers and directors to enable Dynatech Corporation to comply
with the provisions of the Securities Act of 1933 and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ Richard K. Lochridge Chairman of the Board January 26, 1995
- --------------------------------------------- and Director
RICHARD K. LOCHRIDGE
/s/ John F. Reno President, Chief Executive January 26, 1995
- --------------------------------------------- Officer and Director
JOHN F. RENO
/s/ Robert H. Hertz Chief Financial Officer and Treasurer January 26, 1995
- --------------------------------------------- (Principal Financial Officer)
ROBERT H. HERTZ
/s/ John C. Maag Corporate Controller January 26, 1995
- --------------------------------------------- (Principal Accounting Officer)
JOHN C. MAAG
/s/ Theodore Cohn Director January 26, 1995
- ---------------------------------------------
THEODORE COHN
/s/ James B. Hangstefer Director January 26, 1995
- ---------------------------------------------
JAMES B. HANGSTEFER
/s/ Warren A. Law Director January 26, 1995
- ---------------------------------------------
WARREN A. LAW
Director January __, 1995
- ---------------------------------------------
PAULA STERN
/s/ O. Gene Gabbard Director January 26, 1995
- ---------------------------------------------
O. GENE GABBARD
/s/ William R. Cook Director January 26, 1995
- ---------------------------------------------
WILLIAM R. COOK
/s/ Robert G. Paul Director January 26, 1995
- ---------------------------------------------
ROBERT G. PAUL
</TABLE>
5
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<TABLE>
EXHIBIT INDEX
<CAPTION>
Exhibit No. Description Page*
- ---------- ----------- ----
<S> <C> <C>
4.1 Dynatech Corporation 1994 Stock Option and
Incentive Plan
5.1 Opinion of Goodwin, Procter & Hoar as to the legality
of the securities being registered
23.1 Consent of Coopers & Lybrand
23.2 Consent of Goodwin, Procter & Hoar (included in
Exhibit 5 of this registration statement)
24 Powers of Attorney (included on page 5 of this
registration statement)
______________________________
<FN>
* Refers to sequentially numbered copy.
</TABLE>
6
<PAGE> 1
EXHIBIT 4.1
DYNATECH CORPORATION
1994 STOCK OPTION AND INCENTIVE PLAN
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
The name of the plan is the Dynatech Corporation 1994 Stock Option and
Incentive Plan (the "Plan"). The purpose of the Plan is to encourage and enable
the officers, employees and Directors of Dynatech Corporation and its
Subsidiaries upon whose judgment, initiative and efforts the Company largely
depends for the successful conduct of its business to acquire a proprietary
interest in the Company. It is anticipated that providing such persons with a
direct stake in the Company's welfare will assure a closer identification of
their interests with those of the Company, thereby stimulating their efforts on
the Company's behalf and strengthening their desire to remain with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended.
"Award" or "Awards," except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock
Options, Restricted Stock Awards, Unrestricted Stock Awards and Performance
Share Awards.
"Board" means the Board of Directors of the Company.
"Cause" means and shall be limited to a vote of the Board of Directors
resolving that the participant should be dismissed as a result of (i) any
material breach by the participant of any agreement to which the participant and
the Company are parties, (ii) any act (other than retirement) or omission to act
by the participant which may have a material and adverse effect on the business
of the Company or any Subsidiary or on the participant's ability to perform
services for the Company or any Subsidiary, including, without limitation, the
commission of any crime (other than ordinary traffic violations), (iii) any
material misconduct or neglect of duties by the participant in connection with
the business or affairs of the Company or any Subsidiary, (iv) the performance
of duties in an incompetent manner after notice to the participant and the
expiration of a 90 day period during which the participant has an opportunity to
correct such incompetence, and (v) any unlawful conduct or act of moral
turpitude by the participant.
"Change of Control" is defined in Section 13.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Committee" means any Committee of the Board referred to in Section 2.
"Disability" means disability as set forth in Section 22(e)(3) of the Code.
"Disinterested Person" means a Non-Employee Director who qualifies as such
under Rule 16b-3(c)(2)(i) promulgated under the Act, or any successor definition
under said Rule.
"Effective Date" means the date on which the Plan is approved by
shareholders as set forth in Section 15.
"Electoral Event" means any contested election of Directors, or any tender
or exchange offer for the Stock, not approved by the Prior Directors, by any
Person other than the Company or a Subsidiary.
A-1
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the related rules, regulations and interpretations.
"Fair Market Value" on any given date means the last reported sale price at
which Stock is traded on such date or, if no Stock is traded on such date, the
most recent date on which Stock was traded, as reflected on the NASDAQ National
Market System, or if applicable, any other national stock exchange on which the
Stock is traded.
"Incentive Stock Option" means any Stock Option designated and qualified as
an "incentive stock option" as defined in Section 422 of the Code.
"Non-Employee Director" means a member of the Board who is not also a
current or former officer or employee of the Company or any Subsidiary.
"Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Option" or "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5.
"Outside Director" means a member of the Board who qualifies as such under
Section 162(m) of the Code and the regulations promulgated thereunder.
"Performance Share Award" means an Award granted pursuant to Section 8.
"Person" shall include any natural person, any entity, any "affiliate" of
any such natural person or entity as such term is defined in Rule 405 under the
Securities Act of 1933 and any "group" (within the meaning of such term in Rule
13d-5 promulgated under the Act).
"Prior Directors" means the persons sitting on the Board immediately prior
to any Electoral Event (or, if there has been no Electoral Event, those persons
sitting on the Board on the date of adoption by the Board of this Plan) and any
future Director of the Company who has been nominated or elected by a majority
of the Prior Directors who are then members of the Board.
"Restricted Stock Award" means an Award granted pursuant to Section 6.
"Stock" means the Common Stock of the Company, subject to adjustments
pursuant to Section 3.
"Subsidiary" means any corporation or other entity (other than the Company)
in any unbroken chain of corporations or other entities, beginning with the
Company if each of the corporations or entities (other than the last corporation
or entity in the unbroken chain) owns stock or other interests possessing 50% or
more of the total combined voting power of all classes of stock or other
interests in one of the other corporations or entities in the chain.
"Unrestricted Stock Award" means an Award granted pursuant to Section 7.
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT PARTICIPANTS
AND DETERMINE AWARDS
(a) Committee. The Plan shall be administered by a Committee consisting of
all of the Outside Director members of the Compensation Committee of the Board,
or by any other committee of not less than two Outside Directors performing
similar functions, as appointed by the Board from time to time. Each member of
the Committee shall be a Disinterested Person.
(b) Powers of Committee. The Committee shall have the power and authority
to grant Awards consistent with the terms of the Plan, including the power and
authority:
(i) to select the officers and other employees of the Company and its
Subsidiaries to whom Awards may from time to time be granted;
A-2
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(ii) to determine the time or times of grant, and the extent, if any,
of Incentive Stock Options, Non-Qualified Stock Options, Restricted Stock,
Unrestricted Stock, and Performance Shares or any combination of the
foregoing, granted to any one or more participants;
(iii) to determine the number of shares to be covered by any Award;
(iv) to determine and modify the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any Award,
which terms and conditions may differ among individual Awards and
participants, and to approve the form of written instruments evidencing the
Awards;
(v) to accelerate the exercisability or vesting of all or any portion
of any Option;
(vi) subject to the provisions of Section 5(a)(iii), to extend the
period in which Stock Options may be exercised;
(vii) to determine whether, to what extent, and under what
circumstances Stock and other amounts payable with respect to an Award
shall be deferred either automatically or at the election of the
participant and whether and to what extent the Company shall pay or credit
amounts constituting interest (at rates determined by the Committee) or
dividends or deemed dividends on such deferrals; and
(viii) to adopt, alter and repeal such rules, guidelines and practices
for administration of the Plan and for its own acts and proceedings as it
shall deem advisable; to interpret the terms and provisions of the Plan and
any Award (including related written instruments); to make all
determinations it deems advisable for the administration of the Plan; to
decide all disputes arising in connection with the Plan; and to otherwise
supervise the administration of the Plan.
All decisions and interpretations of the Committee shall be binding on all
persons, including the Company and Plan participants.
SECTION 3. SHARES ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION
(a) Shares Issuable. The aggregate maximum number of shares of Stock
reserved and available for issuance under the Plan shall be 450,000.* For
purposes of this limitation, the shares of Stock underlying any Awards which are
forfeited, cancelled, reacquired by the Company, satisfied without the issuance
of Stock or otherwise terminated (other than by exercise) shall be added back to
the shares of Stock available for issuance under the Plan so long as the
participants to whom such Awards had been previously granted received no
benefits of ownership of the underlying shares of Stock to which the Award
related. Subject to such overall limitation, shares of Stock may be issued up to
such maximum number pursuant to any type or types of Award; provided, however,
that (i) no more than 100,000 Stock Options may be granted to any one individual
participant during any one-year period, (ii) no more than 90,000 shares of
Restricted Stock and Unrestricted Stock may be granted under the Plan, and (iii)
no more than 20,000 shares of Restricted Stock and Unrestricted Stock may be
granted to any one individual participant. Shares issued under the Plan may be
authorized but unissued shares or shares reacquired by the Company.
(b) Stock Dividends, Mergers, etc. In the event of a stock dividend, stock
split or similar change in capitalization affecting the Stock, the Committee
shall make appropriate adjustments in (i) the number and kind of shares of stock
or securities on which Awards may thereafter be granted, (ii) the number and
kind of shares remaining subject to outstanding Awards, and (iii) the option or
purchase price in respect of such shares. In the event of any merger,
consolidation, dissolution or liquidation of the Company, the Committee in its
sole discretion may, as to any outstanding Awards, make such substitution or
adjustment in the aggregate
- ---------------
* Including unused shares presently reserved under 1992 Stock Option Plan.
A-3
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number of shares reserved for issuance under the Plan and the number and
purchase price (if any) of shares subject to such Awards as it may determine and
as may be permitted by the terms of such transaction, or amend or terminate such
Awards upon such terms and conditions as it shall provide (which, in the case of
the termination of the vested portion of any Award, shall require payment or
other consideration which the Committee deems equitable in the circumstances).
(c) Substitute Awards. The Committee may grant Awards under the Plan in
substitution for stock and stock based awards held by employees of another
corporation who concurrently become employees of the Company or a Subsidiary as
the result of a merger or consolidation of the employing corporation with the
Company or a Subsidiary or the acquisition by the Company or a Subsidiary of
property or stock of the employing corporation. The Committee may direct that
the substitute awards be granted on such terms and conditions as the Committee
considers appropriate in the circumstances.
SECTION 4. ELIGIBILITY
Participants in the Plan will be such full or part-time officers and other
employees of the Company and its Subsidiaries who are responsible for or
contribute to the management, growth or profitability of the Company and its
Subsidiaries and who are selected from time to time by the Committee, in its
sole discretion. Non-Employee Directors are also eligible to participate in the
Plan but only to the extent provided in Section 5(b) and Section 7 below.
SECTION 5. STOCK OPTIONS
Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve.
Stock Options granted under the Plan may be either Incentive Stock Options
or Non-Qualified Stock Options. To the extent that any Option does not qualify
as an Incentive Stock Option, it shall constitute a Non-Qualified Stock Option.
No Incentive Stock Option shall be granted under the Plan after June 15,
2004.
(a) Stock Options Granted to Employees. The Committee in its discretion
may grant Stock Options to employees of the Company or any Subsidiary. Stock
Options granted to employees pursuant to this Section 5(a) shall be subject to
the following terms and conditions and shall contain such additional terms and
conditions, not inconsistent with the terms of the Plan, as the Committee shall
deem desirable:
(i) Exercise Price. The exercise price per share for the Stock
covered by a Stock Option granted pursuant to this Section 5(a) shall be
determined by the Committee at the time of grant but shall not be less than
100% of Fair Market Value on the date of grant. If an employee owns or is
deemed to own (by reason of the attribution rules applicable under Section
424(d) of the Code) more than 10% of the combined voting power of all
classes of stock of the Company or any Subsidiary or parent corporation and
an Incentive Stock Option is granted to such employee, the option price of
such Incentive Stock Option shall be not less than 110% of Fair Market
Value on the grant date.
(ii) Grant of Options in Lieu of Cash Bonus. Upon the request of an
employee and with the consent of the Committee, such employee may elect
each calendar year to receive a Non-Qualified Stock Option in lieu of cash
bonus to which he may become entitled during the following calendar year
pursuant to any other plan of the Company, but only if such employee makes
an irrevocable election to
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<PAGE> 5
waive receipt of all or a portion of such cash bonus. Such election
shall be made on or before the date set by the Committee which date
shall be no later than 15 days preceding January 1 of the calendar year
in which the cash bonus would otherwise be paid. A Non-Qualified Stock
Option shall be granted to each employee who made such an irrevocable
election on the date the waived cash bonus would otherwise be paid;
provided, however, that with respect to an employee who is subject to
Section 16 of the Act, if such grant date is not at least six months
and one day from the date of the election, the grant shall be delayed
until the date which is six months and one day from the date of the
election (or the next following business day, if such date is not a
business day). The exercise price per share shall be determined by the
Committee but shall not be less than 50% of the Fair Market Value of
the Stock on the date the Stock Option is granted. The number of shares
subject to the Stock Option shall be determined by dividing the amount
of the waived cash bonus by the difference between the Fair Market
Value of a single share of Stock on the date the Stock Option is
granted and the exercise price per Stock Option. The Stock Option shall
be granted for the whole number of shares so determined; the value of
any fractional share shall be paid in cash. An employee may revoke his
election under this Section 5(a)(ii) on a prospective basis at any
time; provided, however, that with respect to an employee who is
subject to Section 16 of the Act, such revocation shall only be
effective six months and one day following the date of such revocation.
(iii) Option Term. The term of each Stock Option shall be
fixed by the Committee, but no Incentive Stock Option shall be
exercisable more than ten years after the date the option is granted.
If an employee owns or is deemed to own (by reason of the attribution
rules of Section 424(d) of the Code) more than 10% of the combined
voting power of all classes of stock of the Company or any Subsidiary
or parent corporation and an Incentive Stock Option is granted to such
employee, the term of such option shall be no more than five years
from the date of grant.
(iv) Exercisability; Rights of a Shareholder. Stock Options
shall become vested and exercisable at such time or times, whether or
not in installments, as shall be determined by the Committee at or
after the grant date; provided, however, that Stock Options granted in
lieu of cash bonus shall be exercisable immediately. The Committee may
at any time accelerate the exercisability of all or any portion of any
Stock Option. An optionee shall have the rights of a shareholder only
as to shares acquired upon the exercise of a Stock Option and not as
to unexercised Stock Options.
(v) Method of Exercise. Stock Options may be exercised in
whole or in part, by giving written notice of exercise to the Company,
specifying the number of shares to be purchased. Payment of the
purchase price may be made by one or more of the following methods:
(A) In cash, by certified or bank check or other instrument
acceptable to the Committee;
(B) In the form of shares of Stock that are not then subject to
restrictions under any Company plan and that have been held by
the optionee for at least six months, if permitted by the
Committee in its discretion. Such surrendered shares shall be
valued at Fair Market Value on the exercise date; or
(C) By the optionee delivering to the Company a properly
executed exercise notice together with irrevocable instructions
to a broker to promptly deliver to the Company cash or a check
payable and acceptable to the Company to pay the purchase price;
provided that in the event the optionee chooses to pay the
purchase price as so provided, the optionee and the broker shall
comply with such procedures and enter into such agreements of
indemnity and other agreements as the Committee shall prescribe
as a condition of such payment procedure. Payment instruments
will be received subject to collection.
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The delivery of certificates representing the shares of Stock to be purchased
pursuant to the exercise of a Stock Option will be contingent upon receipt from
the optionee (or a purchaser acting in his stead in accordance with the
provisions of the Stock Option) by the Company of the full purchase price for
such shares and the fulfillment of any other requirements contained in the Stock
Option or applicable provisions of laws.
(vi) Non-transferability of Options. No Stock Option shall be
transferable by the optionee otherwise than by will or by the laws of
descent and distribution and all Stock Options shall be exercisable, during
the optionee's lifetime, only by the optionee.
(vii) Annual Limit on Incentive Stock Options. To the extent required
for "incentive stock option" treatment under Section 422 of the Code, the
aggregate Fair Market Value (determined as of the time of grant) of the
Stock with respect to which Incentive Stock Options granted under this Plan
and any other plan of the Company or its Subsidiaries become exercisable
for the first time by an optionee during any calendar year shall not exceed
$100,000.
(viii) Form of Settlement. Shares of Stock issued upon exercise of a
Stock Option shall be free of all restrictions under the Plan, except as
otherwise provided in this Plan.
(b) Stock Options Granted to Non-Employee Directors.
(i) Automatic Grant of Options. Each Non-Employee Director who is
serving as Director of the Company on June 16, 1994 and who has served as a
Director of the Company continuously for fifteen years or more as of such
date shall automatically be granted on July 1, 1994 a Non-Qualified Stock
Option to purchase 15,000 shares of Stock. Each Non-Employee Director who
is serving as a Director of the Company on June 16, 1994 and who has served
as a Director of the Company for more than five years, but less than
fifteen years as of such date shall automatically be granted on July 1,
1994 a Non-Qualified Option to purchase 7,500 shares of Stock. Each
Non-Employee Director who is serving as Director of the Company on June 16,
1994 and who has served as a Director of the Company for less than five
years as of such date shall automatically be granted on July 1, 1994 a
Non-Qualified Stock Option to purchase 5,000 shares of Stock. Each
Non-Employee Director who is first elected as a Director after June 16,
1994 shall automatically be granted on the date first elected as a Director
a Non-Qualified Stock Option to purchase 5,000 shares of Stock. Each
Non-Employee Director who is serving as Director of the Company on the
fifth business day after each annual meeting of stockholders, beginning
with the 1995 annual meeting, shall automatically be granted on such day a
Non-Qualified Stock Option to purchase 1,500 shares of Stock. The exercise
price per share for the Stock covered by a Stock Option granted hereunder
shall be equal to the Fair Market Value of the Stock on the date the Stock
Option is granted.
(ii) Exercise; Termination; Non-transferability.
(A) Except as provided in Section 13, no Option granted under
Section 5(b)(i) may be exercised prior to the date which is six months
after the date upon which it was granted. No Option issued under this
Section 5(b) shall be exercisable after the expiration of ten years from
the date upon which such Option is granted.
(B) If the Non-Employee Director ceases to be a Director for Cause,
the Options shall terminate immediately on the date on which he ceases
to be a Director.
(C) No Stock Option granted under this Section 5(b) shall be
transferable by the optionee otherwise than by will or by the laws of
descent and distribution, and such Options shall be exercisable, during
the optionee's lifetime only by the optionee. Any Option granted to a
Non-Employee Director and outstanding on the date of his death may be
exercised by the legal
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representative or legatee of the optionee for a period of six
months from the date of death or until the expiration of the
stated term of the option, if earlier.
(D) Options granted under this Section 5(b) may be exercised
only by written notice to the Company specifying the number of
shares to be purchased. Payment of the full purchase price of the
shares to be purchased may be made by one or more of the methods
specified in Section 5(a)(v). An optionee shall have the rights
of a shareholder only as to shares acquired upon the exercise of
a Stock Option and not as to unexercised Stock Options.
(iii) Limited to Non-Employee Directors. The provisions of this
Section 5(b) shall apply only to Options granted or to be granted to
Non-Employee Directors, and shall not be deemed to modify, limit or
otherwise apply to any other provision of this Plan or to any Option issued
under this Plan to a participant who is not a Non-Employee Director of the
Company. To the extent inconsistent with the provisions of any other
Section of this Plan, the provisions of this Section 5(b) shall govern the
rights and obligations of the Company and Non-Employee Directors respecting
Options granted or to be granted to Non-Employee Directors. The provisions
of this Section 5(b) which affect the price, date of exercisability, option
period or amount of shares under an option shall not be amended more than
once in any six-month period, other than to comport with changes in the
Code or ERISA.
SECTION 6. RESTRICTED STOCK AWARDS
(a) Nature of Restricted Stock Award. The Committee may grant Restricted
Stock Awards to any employee of the Company or any Subsidiary. A Restricted
Stock Award is an Award entitling the recipient to acquire, at no cost or for a
purchase price determined by the Committee, shares of Stock subject to such
restrictions and conditions as the Committee may determine at the time of grant
("Restricted Stock"). Conditions may be based on continuing employment and/or
achievement of pre-established performance goals and objectives. In addition, a
Restricted Stock Award may be granted to an employee by the Committee in lieu of
a cash bonus due to such employee pursuant to any other plan of the Company.
(b) Acceptance of Award. A participant who is granted a Restricted Stock
Award shall have no rights with respect to such Award unless the participant
shall have accepted the Award within 60 days (or such shorter date as the
Committee may specify) following the award date by making payment to the
Company, if required, by certified or bank check or other instrument or form of
payment acceptable to the Committee in an amount equal to the specified purchase
price, if any, of the shares of Stock covered by the Award and by executing and
delivering to the Company a written instrument that sets forth the terms and
conditions of the Restricted Stock in such form as the Committee shall
determine.
(c) Rights as a Shareholder. Upon complying with Section 6(b) above, a
participant shall have the rights of a shareholder with respect to the voting of
the Restricted Stock, subject to non-transferability restrictions and Company
repurchase or forfeiture rights described in this Section 6 and subject to such
other conditions contained in the written instrument evidencing the Restricted
Stock Award. Unless the Committee shall otherwise determine, certificates
evidencing shares of the Restricted Stock shall remain in the possession of the
Company until such shares are vested as provided in Section 6(e) below.
(d) Restrictions. Shares of Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of except as
specifically provided herein. In the event of termination of employment by the
Company and its Subsidiaries for any reason (including death, retirement,
Disability, and for Cause), the Company shall have the right, at the discretion
of the Committee, to repurchase Restricted Stock with respect to which
conditions have not lapsed at their purchase price, or to require forfeiture of
such shares to the Company if acquired at no cost, from the participant or the
participant's legal representative. The Company must exercise such right of
repurchase or forfeiture not later than the 90th day following such
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termination of employment (unless otherwise specified in the written instrument
evidencing the Restricted Stock Award).
(e) Vesting of Restricted Stock. The Committee at the time of grant shall
specify the date or dates and/or the attainment of pre-established performance
goals, objectives and other conditions on which the non-transferability of the
Restricted Stock and the Company's right of repurchase or forfeiture shall
lapse. Subsequent to such date or dates and/or the attainment of such
pre-established performance goals, objectives and other conditions, the shares
on which all restrictions have lapsed shall no longer be Restricted Stock and
shall be deemed "vested."
(f) Waiver, Deferral and Reinvestment of Dividends. The written instrument
evidencing the Restricted Stock Award may require or permit the immediate
payment, waiver, deferral or investment of dividends paid on the Restricted
Shares.
SECTION 7. UNRESTRICTED STOCK AWARDS
(a) Grant or Sale of Unrestricted Stock. The Committee may, in its sole
discretion, grant (or sell at a purchase price determined by the Committee) to
any employees of the Company or any Subsidiary shares of Stock free of any
restrictions under the Plan ("Unrestricted Stock"). Shares of Unrestricted Stock
may be granted or sold as described in the preceding sentence in respect of past
services or other valid consideration, or in lieu of any cash compensation due
to such employee.
(b) Elections to Receive Unrestricted Stock In Lieu of Compensation. Upon
the request of an employee and with the consent of the Committee, each employee
may, pursuant to an irrevocable written election delivered to the Company no
later than the date or dates specified by the Committee, receive a portion of
the cash compensation otherwise due to him in Unrestricted Stock (valued at Fair
Market Value on the date or dates the cash compensation would otherwise be paid,
or on the effective date of the election, if later). With respect to any
employee who is subject to Section 16 of the Act, such irrevocable election
shall become effective no earlier than six months and one day following the date
of such election and the revocation of such election shall be effective six
months and one day following the date of the revocation.
(c) Elections to Receive Unrestricted Stock in Lieu of Directors'
Fees. Each Non-Employee Director may, pursuant to an irrevocable written
election delivered to the Company, receive all or a portion of his cash
director's fees in Unrestricted Stock (valued at Fair Market Value on the date
or dates the director's fees would otherwise be paid, or on the effective date
of the election, if later). Such election shall be effective no earlier than six
months and one day following the date of such election. Any revocation of such
election shall be effective six months and one day following the date of the
revocation.
SECTION 8. PERFORMANCE SHARE AWARDS
(a) Nature of Performance Shares. A Performance Share Award is an award
entitling the recipient to acquire shares of Stock upon the attainment of
specified performance goals. The Committee may make Performance Share Awards
independent of or in connection with the granting of any other Award under the
Plan. Performance Share Awards may be granted under the Plan to any employees of
the Company or any Subsidiary, including those who qualify for awards under
other performance plans of the Company. The Committee in its sole discretion
shall determine whether and to whom Performance Share Awards shall be made, the
performance goals applicable under each such Award, the periods during which
performance is to be measured, and all other limitations and conditions
applicable to the awarded Performance Shares; provided, however, that the
Committee may rely on the performance goals and other standards applicable to
other performance unit plans of the Company in setting the standards for
Performance Share Awards under the Plan.
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(b) Restrictions on Transfer. Performance Share Awards and all rights with
respect to such Awards may not be sold, assigned, transferred, pledged or
otherwise encumbered.
(c) Rights as a Shareholder. A participant receiving a Performance Share
Award shall have the rights of a shareholder only as to shares actually received
by the participant under the Plan and not with respect to shares subject to the
Award but not actually received by the participant. A participant shall be
entitled to receive a stock certificate evidencing the acquisition of shares
under a Performance Share Award only upon satisfaction of all conditions
specified in the written instrument evidencing the Performance Share Award (or
in a performance plan adopted by the Committee).
(d) Termination. Except as may otherwise be provided by the Committee at
any time prior to termination of employment, a participant's rights in all
Performance Share Awards shall automatically terminate upon the participant's
termination of employment by the Company and its Subsidiaries for any reason
(including death, Disability and for Cause).
(e) Acceleration, Waiver, Etc. At any time prior to the participant's
termination of employment by the Company and its Subsidiaries, the Committee may
in its sole discretion accelerate, waive or, subject to Section 11, amend any or
all of the goals, restrictions or conditions imposed under any Performance Share
Award.
SECTION 9. TAX WITHHOLDING
(a) Payment by Participant. Each participant shall, no later than the date
as of which the value of an Award or of any Stock or other amounts received
thereunder first becomes includable in the gross income of the participant for
Federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Committee regarding payment of any Federal, state, or local
taxes of any kind required by law to be withheld with respect to such income.
The Company and its Subsidiaries shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
participant.
(b) Payment in Shares. A participant may elect to have such tax
withholding obligation satisfied, in whole or in part, by (i) authorizing the
Company to withhold from shares of Stock to be issued pursuant to any Award a
number of shares with an aggregate Fair Market Value (as of the date the
withholding is effected) that would satisfy the withholding amount due, or (ii)
transferring to the Company shares owned by the participant with an aggregate
Fair Market Value (as of the date the withholding is effected) that would
satisfy the withholding amount due. With respect to any participant who is
subject to Section 16 of the Act, the following additional restrictions shall
apply:
(A) the election to satisfy tax withholding obligations relating to an
Award in the manner permitted by this Section 9(b) shall be made either (1)
during the period beginning on the third business day following the date of
release of quarterly or annual summary statements of revenues of the
Company and ending on the twelfth business day following such date, or (2)
at least six months prior to the date as of which the receipt of such an
Award first becomes a taxable event for Federal income tax purposes;
(B) such election shall be irrevocable;
(C) such election shall be subject to the consent or disapproval of
the Committee; and
(D) the Stock withheld to satisfy tax withholding, if granted at the
discretion of the Committee, must pertain to an Award which has been held
by the participant for at least six months from the date of grant of the
Award.
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SECTION 10. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer to the employment of the Company from a Subsidiary or from
the Company to a Subsidiary, or from one Subsidiary to another; or
(b) an approved leave of absence for military service or sickness, or for
any other purpose approved by the Company, if the employee's right to
re-employment is guaranteed either by a statute or by contract or under the
policy pursuant to which the leave of absence was granted or if the Committee
otherwise so provides in writing.
SECTION 11. AMENDMENTS AND TERMINATION
The Board may, at any time, amend or discontinue the Plan and the Committee
may, at any time, amend or cancel any outstanding Award (or provide substitute
Awards at the same or reduced exercise or purchase price or with no exercise or
purchase price, but such price, if any, must satisfy the requirements which
would apply to the substitute or amended Award if it were then initially granted
under this Plan) for the purpose of satisfying changes in law or for any other
lawful purpose, but no such action shall adversely affect rights under any
outstanding Award without the holder's consent. To the extent required by the
Code to ensure that Options granted hereunder qualify as Incentive Stock Options
and to the extent required by the Act to ensure that Awards and Options granted
under the Plan are exempt under Rule 16b-3 promulgated under the Act, Plan
amendments shall be subject to approval by the Company's shareholders.
SECTION 12. STATUS OF PLAN
With respect to the portion of any Award which has not been exercised and
any payments in cash, shares of Stock or other consideration not received by a
participant, a participant shall have no rights greater than those of a general
creditor of the Company unless the Committee shall otherwise expressly determine
in connection with any Award or Awards. In its sole discretion, the Committee
may authorize the creation of trusts or other arrangements to meet the Company's
obligations to deliver Stock or make payments with respect to Awards hereunder,
provided that the existence of such trusts or other arrangements is consistent
with the provision of the foregoing sentence.
SECTION 13. CHANGE OF CONTROL PROVISIONS
Upon the occurrence of a Change of Control as defined in this Section 13:
(a) Each Stock Option shall automatically become fully exercisable
notwithstanding any provision to the contrary herein.
(b) Restrictions and conditions on Restricted Stock Awards shall
automatically be deemed waived, and the recipients of such Awards shall become
entitled to receipt of the Stock subject to such Awards unless the Committee
shall otherwise expressly provide at the time of grant.
(c) "Change of Control" shall mean the occurrence of any one of the
following events:
(i) when, without the prior approval of the Prior Directors of the
Company, any Person is or becomes the beneficial owner (as defined in
Section 13(d) of the Act and the Rules and Regulations promulgated
thereunder), together with all Affiliates and Associates (as such terms are
used in Rule 12b-2 of the General Rules and Regulations promulgated under
the Act) of such Person, directly or indirectly, of 25% or more of the
outstanding Stock, (ii) the failure of the Prior Directors to constitute a
majority of the Board at any time with the two years following any
Electoral Event, or (iii) any other
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event that the Prior Directors shall determine constitutes an effective
change in the control of the Company.
SECTION 14. GENERAL PROVISIONS
(a) No Distribution; Compliance with Legal Requirements. The Committee may
require each person acquiring shares of Stock pursuant to an Award to represent
to and agree with the Company in writing that such person is acquiring the
shares without a view to distribution thereof.
No shares of Stock shall be issued pursuant to an Award until all
applicable securities law and other legal and stock exchange requirements have
been satisfied. The Committee may require the placing of such stop-orders and
restrictive legends on certificates for Stock and Awards as it deems
appropriate.
(b) Delivery of Stock Certificates. Delivery of stock certificates to
participants under this Plan shall be deemed effected for all purposes when the
Company or a share transfer agent of the Company shall have delivered such
certificates in the United States mail, addressed to the participant, at the
participant's last known address on file with the Company.
(c) Other Compensation Arrangements; No Employment Rights. Nothing
contained in this Plan shall prevent the Board from adopting other or additional
compensation arrangements, including trusts, subject to shareholder approval if
such approval is required; and such arrangements may be either generally
applicable or applicable only in specific cases. The adoption of the Plan and
the grant of Awards do not confer upon any employee any right to continued
employment with the Company or any Subsidiary.
SECTION 15. EFFECTIVE DATE OF PLAN
The Plan shall become effective upon approval by the holders of a majority
of the shares of capital stock of the Company present or represented and
entitled to vote at a meeting of shareholders. Subject to such approval by the
shareholders, and to the requirement that no Stock may be issued hereunder prior
to such approval, Stock Options and other Awards may be granted hereunder on and
after adoption of the Plan by the Board.
SECTION 16. GOVERNING LAW
This Plan shall be governed by Massachusetts law except to the extent such
law is preempted by federal law.
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EXHIBIT 5.1
GOODWIN, PROCTER & HOAR
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
January 26, 1995
Dynatech Corporation
3 New England Executive Park
Burlington, MA 01803
Re: Registration under the Securities Act of 1933 on Form S-8 of 450,000
shares of Common Stock to be issued and sold pursuant to the
Dynatech Corporation 1994 Stock Option and Incentive Plan
--------------------------------------------------------------------
Ladies and Gentlemen:
This opinion relates to an aggregate of 450,000 shares of Common
Stock, par value $0.20 per share (the "Stock"), of Dynatech Corporation, a
Massachusetts corporation (the "Company"), which are the subject matter of a
registration statement (the "Registration Statement") to be filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"). The Stock is to be issued pursuant to options granted under the
Dynatech Corporation 1994 Stock Option and Incentive Plan (the "Plan").
We have acted as counsel to the Company in connection with the
Registration Statement. In that connection, we have examined the originals, or
copies certified or otherwise identified to our satisfaction, of the following:
(a) the Restated Articles of Organization of the Company, as amended; (b) the
By-laws of the Company, as amended; (c) the records of certain meetings of the
stockholders of the Company; (d) the records of certain meetings of the Board
of Directors of the Company; (e) a copy of the Plan; and (f) the Registration
Statement including all exhibits thereto. In our examination we have assumed
the genuineness of all signatures, the legal capacity of all natural persons,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified or
photostatic copies, and the authenticity of the originals of such copies.
<PAGE> 2
GOODWIN, PROCTER & HOAR
Dynatech Corporation
January 26, 1995
Page 2
For the purposes of this opinion we assume that the issuance and sale
of the Stock will be made in the manner and upon the terms set forth in the
Plan and the Registration Statement.
Based on and subject to the foregoing, we are of the opinion that:
(1) the Company is a duly organized and validly existing
corporation under the laws of the Commonwealth of
Massachusetts; and
(2) the Stock when issued and sold in accordance with the Plan
will be validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar
GOODWIN, PROCTER & HOAR
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Dynatech Corporation on Form S-8 of our reports dated May 23,
1994, on our audits of the consolidated financial statements and financial
statement schedules of Dynatech Corporation as of March 31, 1994 and 1993, and
for each of the three years in the period ended March 31, 1994, which reports
are included in the Annual Report on Form 10-K of Dynatech Corporation for the
year ended March 31, 1994.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
January 26, 1995
