<PAGE> 1
As filed with the Securities and Exchange Commission on February 11, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PERKINELMER, INC.
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2052042
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
45 WILLIAM STREET, WELLESLEY, MASSACHUSETTS 02481
(Address of Principal Executive Offices) (Zip Code)
VIVID TECHNOLOGIES, INC. 1989 COMBINATION STOCK OPTION PLAN
VIVID TECHNOLOGIES, INC. 1996 EQUITY INCENTIVE PLAN
VIVID TECHNOLOGIES, INC. 1996 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
VIVID TECHNOLOGIES, INC. 1999 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
TERRANCE L. CARLSON
SENIOR VICE PRESIDENT AND
GENERAL COUNSEL
PERKINELMER, INC.
45 WILLIAM STREET
WELLESLEY, MASSACHUSETTS 02481
(Name and Address of Agent for Service)
(781) 237-5100
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE REGISTERED PRICE OFFERING REGISTRATION
REGISTERED PER SHARE ($) PRICE ($) FEE ($)
---------- ---------------- ------------- --------- -------
<S> <C> <C> <C> <C>
Vivid Technologies, Inc. 1989 38,324 22.6968 (3) 869,832.16 229.64
Combination Stock Option Plan, as
amended (1)(2)
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE REGISTERED PRICE OFFERING REGISTRATION
REGISTERED PER SHARE ($) PRICE ($) FEE ($)
---------- ---------------- ------------- --------- -------
<S> <C> <C> <C> <C>
Vivid Technologies, Inc. 1996 Equity 83,967 39.8230 (3) 3,343,817.84 882.77
Incentive Plan (1)(2) 29,663 51.8125 (4) 1,536,914.19 405.75
Vivid Technologies, Inc. 1996 7,256 57.3671 (3) 416,255.68 109.89
Nonemployee Director Stock Option Plan 12,904 51.8125 (4) 68,588.50 176.51
(1)(2)
Vivid Technologies, Inc. 1999 Equity 18,942 19.4892 (3) 369,164.53 97.46
Incentive Plan (1)(2) 29,356 51.8125 (4) 1,521,007.75 401.55
Total for all plans: 220,412 -- 8,725,580.55 2,303.55
</TABLE>
(1) The Registrant is registering shares of its common stock, $1.00 par
value per share, which are issuable in accordance with the terms of
this plan.
(2) Pursuant to Agreement and Plan of Merger, dated as of October 4, 1999,
among PerkinElmer, Inc., Venice Acquisition Corp. and Vivid
Technologies, Inc., the Registrant has assumed the Vivid Technologies,
Inc. 1989 Combination Stock Option Plan, as amended, Vivid
Technologies, Inc. 1996 Equity Incentive Plan, Vivid Technologies, Inc.
1996 Nonemployee Director Stock Option Plan and Vivid Technologies,
Inc. 1999 Equity Incentive Plan under which certain options are
outstanding and certain additional options may be granted to purchase
common stock, $1.00 par value per share, of PerkinElmer, Inc.
(3) These shares under this plan are issuable upon the exercise of
currently outstanding options with fixed exercise prices. Pursuant to
Rule 457(h)(1) under the Securities Act of 1933, the aggregate offering
price and the fee have been computed based on the weighted average per
share exercise price at which the outstanding options under this plan
may be exercised.
(4) Price estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(c) and (h) under the Securities Act of 1933,
and based on the average of the high and the low prices of the
Registrant's common stock on February 3, 2000, as listed on the New
York Stock Exchange.
EXPLANATORY NOTE
This registration statement has been prepared in accordance with the
requirements of Form S-8 and relates to the Registrant's common stock being
offered pursuant to the (1) Vivid Technologies, Inc. 1989 Combination Stock
Option Plan, (2) Vivid Technologies, Inc. 1996 Equity Incentive Plan, (3) Vivid
Technologies, Inc. 1996 Nonemployee Director Stock Option Plan, and (4) Vivid
Technologies, Inc. 1999 Equity Incentive Plan.
<PAGE> 3
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Securities Act"), the information required by Part I is included in
documents which will be sent or given to participants in the (1) Vivid
Technologies, Inc. 1989 Combination Stock Option Plan, (2) Vivid Technologies,
Inc. 1996 Equity Incentive Plan, (3) Vivid Technologies, Inc. 1996 Nonemployee
Director Incentive Plan, and (4) Vivid Technologies, Inc. 1999 Equity Incentive
Plan.
<PAGE> 4
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this registration statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act, or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act that contains
audited financial statements for the Registrant's latest fiscal year
for which such statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
document referred to in (1) above.
(3) The description of the common stock of the Registrant,
$1.00 par value per share (the "Common Stock"), contained in a
registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
<PAGE> 5
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
II-2
<PAGE> 6
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock being offered hereby will be
passed upon for the Company by Hale and Dorr LLP, Boston, Massachusetts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67, Chapter 156B of the General Laws of the
Commonwealth of Massachusetts, as amended (the "Massachusetts Business
Corporation Law"), and
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<PAGE> 7
Article V, Section 9 of the Registrant's Bylaws, to which reference is hereby
made, contain provisions authorizing indemnification by the Registrant of
directors, officers, employees or agents against certain liabilities and
expenses, which they may incur as directors, officers, employees or agents of
the Registrant or of certain other entities. Section 67, Chapter 156B of the
Massachusetts Business Corporation Law provides that the indemnification of
directors, officers, employees and agents of a corporation and persons who serve
at the corporation's request as directors, officers, employees and other agents
of another organization may be provided to whatever extent as shall be specified
by (i) the articles of organization of the corporation or (ii) a bylaw 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. Unless otherwise
provided in the articles of organization or the bylaws, the indemnification of
any persons described above who are not directors of the corporation may be
provided by the corporation 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 prior to the final
disposition of such action or proceeding, upon receipt of an undertaking by the
indemnified person to repay such payment if he shall be adjudicated to be not
entitled to indemnification under Section 67, Chapter 156B of the Massachusetts
Business Corporation Law. Any 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. Indemnification may not be
provided for any person with respect to any matter as to which that person shall
have been adjudicated in any proceeding to not have acted in good faith in the
reasonable belief that his action was in the best interest of the corporation.
Section 65, Chapter 156B of the Massachusetts Business Corporation Law
provides a limitation on the imposition of liability under other sections of the
Massachusetts Business Corporation Law. Under this Section, a director, officer
or incorporator of a corporation is to perform his duties in good faith and in a
manner he reasonably believes to be in the best interests of the corporation and
with such care as an ordinarily prudent person in a like position would use
under similar circumstances. Such director, officer or incorporator is entitled
to rely on information, opinions, reports or records, including financial
statements, books of accounts and other financial records, which are prepared by
or presented by or under the supervision of (i) one or more officers or
employees of the corporation whom the director, officer or incorporator
reasonably believes to be reliable and competent in the matters presented, or
(ii) counsel, public accountants or other persons as to matters that the
director, officer or incorporator reasonably believes to be within such a
person's professional expert competence, or (iii) in the case of a director, a
duly constituted committee of the Board of Directors upon which he does not
serve, as to matters within its delegated authority, which committee the
director reasonably believes to merit confidence. If a director, officer or
incorporator performs his duties in the manner that is set forth above, that
fact shall be an absolute defense to any claim asserted against him except as
expressly provided by statute.
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<PAGE> 8
Section 13, Chapter 156B of the Massachusetts Business Corporation Law
provides that the articles of organization of a corporation may contain a
provision eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of a fiduciary
duty as a director notwithstanding any provision of law imposing such liability;
provided, however, that such provision shall not eliminate or limit the
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 Sections 61 or 62, Chapter 156B of the Massachusetts Business
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. Article Six of the Restated Articles of Organization
of the Registrant contains a provision consistent with Section 13, Chapter 156B
of the Massachusetts Business Corporation Law and provides that to the fullest
extent permitted by the Massachusetts Business Corporation Law, a director of
the Registrant shall not be personally liable to the Registrant or its
stockholder for monetary damages for breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability.
Section 9 of Article V of the Bylaws of the Registrant contains
provisions relating to the indemnification of directors and officers of the
Registrant, which are consistent with Section 67, Chapter 156B of the
Massachusetts Business Corporation Law. This Section provides that no
indemnification will be provided to any person who was or is a director or
officer with respect to any matter as to which such person shall have been
finally 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;
nor shall indemnification be provided where the corporation is required or has
undertaken to submit to a court the question of whether or not indemnification
by it is against public policy and it has been finally determined that such
indemnification is against public policy; provided, however, that, prior to such
final adjudication, the corporation may compromise and settle any such claims
and liabilities and pay such expenses, if such settlement or payment, or both,
appears, in the judgment of a majority of those members of the Board of
Directors who are not directly involved in such matters, to be for the best
interest of the corporation as evidenced by a resolution to that effect adopted
after receipt by the corporation of a written opinion of counsel for the
corporation that, based upon the facts available to such counsel such person has
not acted in a manner that would prohibit indemnification.
Section 67, Chapter 156B of the Massachusetts Business Corporation Law
also contains provisions authorizing a corporation to obtain insurance on behalf
of any director, officer, employee or agent of the corporation against
liabilities, whether or not the corporation would have the power to indemnify
against such liabilities. The Registrant maintains directors' and officers'
liability and company reimbursement liability insurance. Subject to certain
deductibles, such insurance will pay up to $50,000,000 per year on claims or
errors and omissions against the Registrant's directors and officers and will
reimburse the Registrant for amounts paid to indemnify directors and officers
against the costs of such claims pursuant to the Registrant's Bylaws.
II-5
<PAGE> 9
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS
1. 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 this
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in
this registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in this registration statement or any material
change to such information in this registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the
II-6
<PAGE> 10
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
2. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-7
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Town of Wellesley, Massachusetts on February 11, 2000.
PerkinElmer, Inc.
By: /s/ Gregory L. Summe
--------------------------------------------
Gregory L. Summe
President, Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
We, the undersigned officers and directors of PerkinElmer, Inc. hereby
severally constitute Gregory L. Summe, Robert F. Friel, Terrance L. Carlson and
David E. Redlick, 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 on Form S-8 filed
herewith and any and all subsequent amendments to said registration statement,
and generally to do all such things in our names and behalf in our capacities as
officers and directors to enable PerkinElmer, Inc. to comply with all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by said attorneys, or any of
them, to this registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gregory L. Summe President, Chief Executive February 11, 2000
- --------------------------------- Officer and Chairman of the Board
Gregory L. Summe of Directors (Principal Executive
Officer)
/s/ Robert F. Friel Senior Vice President and Chief February 11, 2000
- --------------------------------- Financial Officer (Principal
Robert F. Friel Financial Officer)
</TABLE>
II-8
<PAGE> 12
<TABLE>
<S> <C> <C>
/s/ Gregory D. Perry Corporate Controller (Principal February 11, 2000
- --------------------------------- Accounting Officer)
Gregory D. Perry
/s/ Tamara J. Erickson Director February 11, 2000
- ---------------------------------
Tamara J. Erickson
/s/ Kent F. Hansen Director February 11, 2000
- ----------------------------------
Kent F. Hansen
/s/ John F. Keane Director February 11, 2000
- ------------------------------------
John F. Keane
/s/ Nicholas A. Lopardo Director February 11, 2000
- ---------------------------------
Nicholas A. Lopardo
Director February 11, 2000
- -----------------------------------
Greta E. Marshall
/s/ Michael C. Ruettgers Director February 11, 2000
- ---------------------------------
Michael C. Ruettgers
/s/ Gabriel Schmergel Director February 11, 2000
- ---------------------------------
Gabriel Schmergel
Director February 11, 2000
- ------------------------------
John Larkin Thompson
Director February 11, 2000
- -----------------------------------
G. Robert Tod
</TABLE>
II-9
<PAGE> 13
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4.1 Restated Articles of Organization of the Registrant filed with the Securities and Exchange
Commission on March 30, 1999 as Exhibit 3.1 to the Registrant's Annual Report on Form 10-K and
incorporated herein by reference.
4.2 Articles of Amendment to Restated Articles of Organization of the Registrant filed with the
Securities and Exchange Commission on November 5, 1999 as Exhibit 3 to the Registrant's Current
Report on Form 8-K and incorporated herein by reference.
4.3 Bylaws of the Registrant filed with the Securities and Exchange Commission on March 24,
1998 as Exhibit 3.2 to the Registrant's Annual Report on Form 10-K and incorporated herein
by reference.
4.4 The Rights Agreement dated as of January 25, 1995 between the Registrant and the First
National Bank of Boston filed with the Securities and Exchange Commission on January 27,
1995 as Exhibit 4.1 to the Registrant's Current Report on Form 8-K and incorporated herein
by reference.
4.5 Specimen Certificate of Common Stock, $1.00 par value per share, of the Registrant filed with
the Securities and Exchange Commission on November 5, 1999 as Exhibit 4 to the Registrant's
Current Report on Form 8-K and incorporated herein by reference.
#5.1 Opinion of Hale and Dorr LLP.
#10.1 Vivid Technologies, Inc. 1989 Combination Stock Option Plan, as amended.
#10.2 Vivid Technologies, Inc. 1996 Equity Incentive Plan.
#10.3 Vivid Technologies, Inc. 1996 Nonemployee Director Stock Option Plan.
#10.4 Vivid Technologies, Inc. 1999 Equity Incentive Plan.
#23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
#23.2 Consent of Arthur Andersen LLP, Boston, MA.
</TABLE>
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<PAGE> 14
<TABLE>
<S> <C>
#23.3 Consent of Arthur Andersen LLP, San Jose, CA.
#23.4 Consent of PricewaterhouseCoopers LLP, Dallas, TX.
#23.5 Consent of PricewaterhouseCoopers LLP, Stamford, CT.
#24.1 Power of Attorney (included on pages II-8 and II-9 of this Registration statement).
</TABLE>
- ---------------
# Filed herewith
II-11
<PAGE> 1
EXHIBIT 5.1
HALE AND DORR LLP
Counsellors At Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
February 11, 2000
PerkinElmer, Inc.
45 William Street
Wellesley, Massachusetts 02481
Re: Vivid Technologies, Inc. Equity Incentive Plans
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to an aggregate of 220,412 shares of Common Stock, $1.00 par value per
share (the "Shares"), of PerkinElmer, Inc., a Massachusetts corporation (the
"Company"), issuable under the following plans (the "Plans"):
(1) Vivid Technologies, Inc. 1989 Combination Stock Option Plan,
(2) Vivid Technologies, Inc. 1996 Equity Incentive Plan,
(3) Vivid Technologies, Inc. 1996 Nonemployee Director Stock Option Plan,
and
(4) Vivid Technologies, Inc. 1999 Equity Incentive Plan,
We have examined the Restated Articles of Organization of the Company,
as amended to date, and the Bylaws of the Company, as amended to date, and
originals, or copies certified to our satisfaction, of all pertinent records of
the meetings of the directors and stockholders of the Company, the Registration
Statement and such other documents relating to the Company as we have deemed
material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
completeness and accuracy of all corporate records provided to us, the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the
<PAGE> 2
PerkinElmer, Inc.
February 11, 2000
Page 2
authenticity of the originals of such latter documents and the legal competence
of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer
and sale of the Shares in accordance with the Plans, to register and qualify the
Shares for sale under all applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or
jurisdiction other than the state laws of The Commonwealth of Massachusetts and
the federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and, when the Shares are issued
and paid for in accordance with the terms and conditions of the Plans, the
Shares will be validly issued, fully paid and nonassessable.
It is understood that this opinion is to be used only by the Company in
connection with the offer and sale of the Shares under the Securities Act while
the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein under the caption "Interests of Named Experts and Counsel." In
giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
--------------------------------------
HALE AND DORR LLP
<PAGE> 1
EXHIBIT 10.1
VIVID TECHNOLOGY, INC.
1989 COMBINATION STOCK OPTION PLAN
(AS AMENDED THROUGH MAY 7, 1996)
Section I. Purpose of the Plan.
The purposes of this Vivid Technology, Inc. 1989 Combination Stock
Option Plan (the "1989 Plan") are (i) to provide long-term incentives and
rewards to those key employees (the "Employee Participants") of Vivid
Technologies, Inc. (the "Corporation") and its subsidiaries (if any), and any
other persons (the "Non-employee Participants") who are in a position to
contribute to the long-term success and growth of the Corporation and its
subsidiaries, (ii) to assist the Corporation in retaining and attracting
executives and key employees with requisite experience and ability, and (iii) to
associate more closely the interests of such executives and key employees with
those of the Corporation's stockholders. The term "key employees" shall include
division and department managers, supervisory personnel and other persons who
are also employees of the Corporation or of a Parent or Subsidiary who the Board
of Directors or the Committee shall deem to be valuable contributors to the
success of the Corporation.
Section II. Definitions.
Code. The "Code" is the Internal Revenue Code of 1986, as it may be
amended from time to time.
Common Stock. "Common Stock" is the $.01 par value common stock of the
Corporation.
Committee. "Committee" is defined in Section III, paragraph (a).
Corporation. "Corporation" is defined in Section I.
Corporation ISOs. "Corporation ISOs" are all stock options (including
1989 Plan ISOs) which (i) are Incentive Stock Options and (ii) are granted on or
after January 1, 1989 under any plans (including this 1989 Plan) of the
Corporation, a Parent Corporation and/or a Subsidiary Corporation.
Employee Participants. "Employee Participants" is defined in Section I.
Fair Market Value. The "Fair Market Value" of any property is the value
of the property as reasonably determined by the Committee.
Inventive Stock Option. An "Incentive Stock Option" is a stock option
which is treated as an incentive stock option under Section 422A of the Code.
1989 Plan. "1989 Plan" is defined in Section I.
<PAGE> 2
1989 Plan ISOs. "1989 Plan ISOs" are Stock Options which are Incentive
Stock Options.
Non-employee Participants. "Non-employee Participants" is defined in
Section I.
Non-qualified Option. A "Non-qualified Option" is a Stock Option which
does not qualify as an Incentive Stock Option or for which the Committee
provides, in the terms of such option and at the time such option is granted,
that the option shall not be treated as an Incentive Stock Option.
Parent Corporation. "Parent Corporation" has the meaning provided in
Section 425(e) of the Code.
Participants. "Participants" are all persons who are either Employee
Participants or Non-employee Participants.
Permanent and Total Disability. "Permanent and Total Disability" has
the meaning provided in Section 22(e)(3) of the Code.
Stock Options. "Stock Options" are rights granted pursuant to this 1989
Plan to purchase shares of Common Stock at a fixed price.
Subsidiary Corporation. "Subsidiary Corporation" has the meaning
provided in Section 425(f) of the Code.
Ten Percent Stockholder. "Ten Percent Stockholder" means, with respect
to a 1989 Plan ISO, any individual who directly or indirectly owns stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Corporation or any Parent Corporation or any Subsidiary Corporation
at the time such 1989 Plan ISO is granted.
Section III. Administration.
(a) The Committee. The Plan shall be administered by the Board of
Directors of the Corporation, or if the Board so determines, by a Compensation
Committee designated by the Board of Directors of the Corporation (the
administering body is hereafter referred to as the "Committee"). The Committee
shall serve at the pleasure of the Board of Directors, which may from time to
time, and in its sole discretion, discharge any member, appoint additional new
members in substitution for those previously appointed and/or fill vacancies
however caused. A majority of the Committee shall constitute a quorum and the
acts of a majority of the members present at any meeting at which a quorum is
present shall be deemed the action of the Committee.
(b) Authority and Discretion of the Committee. Subject to the express
provisions of this 1989 Plan and provided that all actions taken shall be
consistent with the purposes of this 1989 Plan, and subject to ratification by
the Board of Directors only if required by applicable law, the Committee shall
have full and complete authority and
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the sole discretion to: (i) determine those persons who shall constitute
Employee Participants and Non-employee Participants; (ii) select the
Participants to whom Stock Options shall be granted under this 1989 Plan; (iii)
determine the size and the form of the Stock Options, if any, to be granted to
any Participant; (iv) determine the time or times such Stock Options shall be
granted including the grant of Stock Options in connection with other awards
made, or compensation paid, to the Participant; (v) establish the terms and
conditions upon which such Stock Options may be exercised and/or transferred,
including the exercise of Stock Options in connection with other awards made, or
compensation paid, to the Participant; (vi) make or alter any restrictions and
conditions upon such Stock Options and the Stock received on exercise thereof,
including, but not limited to, providing for limitations on the Participant's
right to keep any Stock received on termination of employment; and (vii) adopt
such rules and regulations, establish, define and/or interpret these and any
other terms and conditions, and make all determinations (which may be on a
case-by-case basis) deemed necessary or desirable for the administration of this
1989 Plan. Notwithstanding any provision of this 1989 Plan to the contrary, only
Employee Participants shall be eligible to receive 1989 Plan ISOs.
(c) Applicable Law. This 1989 Plan, and all Stock Options shall be
governed by the law of the state in which the Corporation is incorporated.
Section IV. Terms of Stock Options.
(a) Agreements. Stock Options shall be evidenced by a written agreement
between the Corporation and the Participant awarded the Stock Option. Said
agreement shall be in such form, and contain such terms and conditions (not
inconsistent with this 1989 Plan) as the Committee may determine. If the Stock
Option described therein is not intended to be an Incentive Stock Option, such
agreement shall include the following, or a similar statement: "This stock
option is not intended to be an Incentive Stock Option, as that term is
described in Section 422A of the Internal Revenue Code of 1986, as amended."
(b) Term. Stock Options shall be for such periods as may be determined
by the Committee, provided that in the case of 1989 Plan ISOs, the term of any
such 1989 Plan ISO shall not extend beyond three months after the time the
Participant ceases to be an employee of the Corporation. Notwithstanding the
foregoing, the Committee may provide in a 1989 Plan ISO that in the event of the
Permanent and Total Disability or death of the Participant, the 1989 Plan ISO
may be exercised by the Participant or his estate (if applicable) for a period
of up to one year after the date of such Permanent and Total Disability or
Death. In no event may a 1989 Plan ISO be exercisable (including provisions, if
any, for exercise in installments) subsequent to ten years after the date of
grant, or, in the case of 1989 Plan ISOs granted to Ten Percent Stockholders,
more than five years after the date of grant.
(c) Purchase Price. The purchase price of shares purchased pursuant to
any Stock Option shall be determined by the Committee, and shall be paid by the
employee in full upon exercise, (a) in cash, (b) by delivery of shares of Common
Stock (valued at their Fair Market Value on the date of such exercise), (c) any
other property (valued at its Fair
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Market Value on the date of such exercise), or (d) any combination of cash,
stock and other property, each of the foregoing only as the Committee, in its
sole discretion, may permit. In no event will the purchase price of Common Stock
subject to a 1989 Plan ISO be less than the Fair Market Value of the Common
Stock on the date of the issuance of the 1989 Plan ISO, provided that in the
case of 1989 Plan ISOs granted to Ten Percent Stockholders, the purchase price
shall not be less than 110% of the Fair Market Value of the Common Stock on the
date of issuance of the 1989 Plan ISO.
(d) Further Restrictions as to Incentive Stock Options. To the extent
that the aggregate Fair Market Value of Common Stock with respect to which
Corporation ISOs (determined without regard to this section) are exercisable for
the first time by any Employee Participant during any calendar year exceeds
$100,000, such Corporation ISOs shall be treated as options which are not
Incentive Stock Options.
(e) Restrictions. At the discretion of the Committee, the Common Stock
issued pursuant to the Stock Options granted hereunder may be subject to the
restrictions on vesting or transferability.
(f) Withholding of Taxes. Pursuant to applicable Federal, state, local
or foreign laws, the Corporation may be required to collect income or other
taxes upon the grant of a Stock Option to, or exercise of a Stock Option by, a
holder. The Corporation may require, as a condition to the exercise of a Stock
Option, or demand, at such other time as it may consider appropriate, that the
Employee pay the Corporation the amount of any taxes which the Corporation may
determine is required to be withheld or collected, and the Employee shall comply
with the requirement or demand of the Corporation.
(g) Securities Law Compliance. Upon exercise (or partial exercise) of a
Stock Option, the Employee shall make such representations and furnish such
information as may, in the opinion of counsel for the Corporation, be
appropriate to permit the Corporation to issue or transfer Stock in compliance
with the provisions of applicable federal or state securities laws. The
Corporation, in its discretion, may postpone the issuance and delivery of Stock
upon any exercise of this Option until completion of such registration or other
qualification of such shares under any federal or state laws, or stock exchange
listing, as the Corporation may consider appropriate. The Corporation may
require that prior to the issuance or transfer of Stock upon exercise of a Stock
Option, the Employee enter into a written agreement to comply with any
restrictions on subsequent disposition that the Corporation deems necessary or
advisable under any applicable federal and state securities laws. Certificates
of Stock issued hereunder may be legended to reflect such restrictions.
(h) Right to Stock Option. No employee of the Corporation or any other
person shall have any claim or right to be a participant in this 1989 Plan or to
be granted a Stock Option hereunder. Neither this 1989 Plan nor any action taken
hereunder shall be construed as giving any person any right to be retained in
the employ of the Corporation. Nothing contained hereunder shall be construed as
giving any person any equity or interest of any kind in any assets of the
Corporation or creating a trust of any kind or a fiduciary relationship of any
kind between the Corporation and any such person. As to
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any claim for any unpaid amounts under this 1989 Plan, any person having a claim
for payments shall be an unsecured creditor.
(i) Indemnity. Neither the Board of Directors nor the Committee, nor
any members of either, nor any employees of the Corporation or any subsidiary,
shall be liable for any act, omission, interpretation, construction or
determination made in good faith in connection with their responsibilities with
respect to this 1989 Plan, and the Corporation hereby agrees to indemnify the
members of the Board of Directors, the members of the Committee, and the
employees of the Corporation and its subsidiaries in respect of any claim, loss,
damage, or expense (including counsel fees) arising from any such act, omission,
interpretation, construction or determination to the full extent permitted by
law.
(j) Participation by Foreigners. Without amending this 1989 Plan,
except to the extent required by the Code in the case of Incentive Stock
Options, the Committee may modify grants made to participants who are foreign
nationals or employed outside the United States so as to recognize differences
in local law, tax policy, or custom.
Section V. Amendment and Termination; Adjustments Upon Changes in
Stock.
The Board of Directors of the Corporation may at any time, and from
time to time, amend, suspend or terminate this 1989 Plan in whole or in part;
provided, however, that the Board of Directors may not materially increase the
benefits accruing to Participants, increase the number of shares of Common Stock
reserved for purposes of this 1989 Plan, extend the term of this 1989 Plan or
materially modify the requirements to be a Participant in this 1989 Plan without
further approval by the affirmative vote of at least a majority of the holders
of the outstanding shares of Common Stock. Except as provided herein, no
amendment, suspension or termination of this 1989 Plan may affect the rights of
a Participant to whom a Stock Option has been granted without such Participant's
consent. The Committee is specifically authorized to convert the unexercised
portion of any 1989 Plan ISO granted to an Employee Participant to a
Non-qualified Option at any time prior to the exercise, in full, of such 1989
Plan ISO. If there shall be any change in the Common Stock or to any Stock
Option granted under this 1989 Plan through merger, consolidation,
reorganization, recapitalization, stock dividend, stock split or other change in
the corporate structure of the Corporation, appropriate adjustments may be made
by the Board of Directors of the Corporation (or if the Corporation is not the
surviving corporation in any such transaction, the Board of Directors of the
surviving corporation) in the aggregate number and kind of shares subject to
this 1989 Plan, and the number and kind of shares and the price per share
subject to outstanding options, provided that such adjustment does not affect
the qualification of any 1989 Plan ISO as an Incentive Stock Option. In
connection with the foregoing, the Board of Directors may issue new Stock
Options in exchange for outstanding Stock Options.
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Section VI. Shares of Stock Subject to the Plan.
The number of shares of Common Stock that may be the subject of awards
under this 1989 Plan shall not exceed an aggregate of 1,250,000 shares. Shares
to be delivered under this 1989 Plan may be either authorized but unissued
shares of Common Stock or treasury shares. Any shares subject to an option
hereunder which for any reason expires unexercised, shares reacquired by the
Corporation because restrictions do not lapse, shares returned because payment
is made hereunder in stock of equivalent value rather than in cash, and/or
shares reacquired for a recipient for any other reason shall, at such time, no
longer count towards the aggregate number of shares which have been the subject
of Stock Options issued hereunder, and such number of shares shall be subject to
further awards under this 1989 Plan, provided the total number of shares then
eligible for award under this 1989 Plan may not exceed the total specified in
the first sentence of this Section VI.
Section VII. Effective Date and Term of this Plan.
The effective date of this 1989 Plan is June 22, 1989 (the "Effective
Date") and awards under this 1989 Plan may be made for a period of ten years
commencing on the Effective Date. The period during which a Stock Option may be
exercised may extend beyond that time as provided herein.
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EXHIBIT 10.2
VIVID TECHNOLOGIES, INC.
1996 EQUITY INCENTIVE PLAN
Section 1. Purpose
The purpose of the Vivid Technologies, Inc. 1996 Equity Incentive Plan
(the "Plan") is to attract and retain key employees, directors, advisors and
consultants to provide an incentive for them to assist Vivid Technologies, Inc.
(the "Company") to achieve long-range performance goals, and to enable them to
participate in the long-term growth of the Company.
Section 2. Definitions
(a) "Affiliate" means any business entity in which the Company owns
directly or indirectly 50% or more of the total combined voting power
or has a significant financial interest as determined by the Committee.
(b) "Award" means any Option, Stock Appreciation Right, Performance or
Award Share, or Restricted Stock awarded under the Plan.
(c) "Award Share" means a share of Common Stock awarded to an employee,
director, advisor or consultant without payment therefor.
(d) "Board" means the Board of Directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(f) "Committee" means a committee of not less than three members of the
Board appointed by the Board to administer the Plan. Alternatively, if
the Board so designates, the President of the Company shall serve as
the sole member of the Committee.
(g) "Common Stock" or "Stock" means the Common Stock, par value $.01 per
share, of the Company.
(h) "Company" means Vivid Technologies, Inc.
(i) "Designated Beneficiary" means the beneficiary designated by a
Participant, in a manner determined by the Board, to receive amounts
due or exercise rights of the Participant in the event of the
Participant's death. In the absence of an effective designation by a
Participant, Designated Beneficiary shall mean the Participant's
estate.
(j) "Fair Market Value" means, with respect to Common Stock or any other
property, the fair market value of such property as determined by the
Board in good faith or in the manner established by the Board from time
to time.
(k) "Incentive Stock Option" means an option to purchase shares of Common
Stock awarded to a Participant under Section 6 which is intended to
meet the requirements of Section 422 of the Code or any successor
provision.
(l) "Nonstatutory Stock Option" means an option to purchase shares of
Common Stock awarded to a Participant under Section 6 which is not
intended to be an Incentive Stock Option.
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(m) "Option" means an Incentive Stock Option or a Nonstatutory Stock
Option.
(n) "Participant" means a person selected by the Board to receive an Award
under the Plan.
(o) "Performance Cycle" or "Cycle" means the period of time selected by the
Board during which performance is measured for the purpose of
determining the extent to which an award of Performance Shares has been
earned.
(p) "Performance Shares" mean shares of Common Stock which may be earned by
the achievement of performance goals awarded to a Participant under
Section 8.
(q) "Restricted Period" means the period of time selected by the Board
during which an award of Restricted Stock may be forfeited to the
Company.
(r) "Restricted Stock" means shares of Common Stock subject to forfeiture
awarded to a Participant under Section 9.
(s) "Stock Appreciation Right" or "SAR" means a right to receive any excess
in value of shares of Common Stock over the exercise price awarded to a
Participant under Section 7.
(t) "Stock Unit" means an award of Common Stock or units that are valued in
whole or in part by reference to, or otherwise based on, the value of
Common Stock, awarded to a Participant under Section 10.
Section 3. Administration
The Plan shall be administered by the Board. The Board shall have
authority to adopt, alter and repeal such administrative rules, guidelines and
practices governing the operation of the Plan as it shall from time to time
consider advisable, and to interpret the provisions of the Plan. The Board's
decisions shall be final and binding. To the extent permitted by applicable law,
the Board may delegate to the Committee the power to make Awards to Participants
and all determinations under the Plan with respect thereto.
Section 4. Eligibility
All employees and, in the case of Awards other than Incentive Stock
Options, directors, advisors and consultants of the Company or any Affiliate
capable of contributing significantly to the successful performance of the
Company, other than a person who has irrevocably elected not to be eligible, are
eligible to be Participants in the Plan.
Section 5. Stock Available for Awards
(a) Subject to adjustment under subsection (b), Awards may be made under
the Plan of Options to acquire not in excess of 750,000 shares of
Company Common Stock. Other Awards may be made as the Board may
determine, provided that a maximum of 750,000 shares of Common Stock
may be issued under this Plan. If any Award in respect of shares of
Common Stock expires or is terminated unexercised or is forfeited for
any reason or settled in a manner that results in fewer shares
outstanding than were initially awarded, including without limitation
the surrender of shares in payment for the Award or any tax obligation
thereon, the shares subject to such Award or so surrendered, as the
case may be, to the extent of such expiration, termination, forfeiture
or decrease, shall again be available for award under the Plan,
subject, however, in the case of Incentive Stock Options, to any
limitation required
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under the Code. Common Stock issued through the assumption or
substitution of outstanding grants from an acquired company shall not
reduce the shares available for Awards under the Plan. Shares issued
under the Plan may consist in whole or in part of authorized but
unissued shares or treasury shares.
(b) In the event that the Board determines that any stock dividend,
extraordinary cash dividend, creation of a class of equity securities,
recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination, exchange of shares, warrants or rights offering
to purchase Common Stock at a price substantially below fair market
value, or other similar transaction affects the Common Stock such that
an adjustment is required in order to preserve the benefits or
potential benefits intended to be made available under the Plan, then
the Board, subject, in the case of Incentive Stock Options, to any
limitation required under the Code, shall equitably adjust any or all
of (i) the number and kind of shares in respect of which Awards may be
made under the Plan, (ii) the number and kind of shares subject to
outstanding Awards, and (iii) the award, exercise or conversion price
with respect to any of the foregoing, and if considered appropriate,
the Board may make provision for a cash payment with respect to an
outstanding Award, provided that the number of shares subject to any
Award shall always be a whole number.
Section 6. Stock Options
(a) Subject to the provisions of the Plan, the Board may award Incentive
Stock Options and Nonstatutory Stock Options and determine the number
of shares to be covered by each Option, the option price therefor and
the conditions and limitations applicable to the exercise of the
Option. The terms and conditions of Incentive Stock Options shall be
subject to and comply with Section 422 of the Code, or any successor
provision, and any regulations thereunder.
(b) The Board shall establish the option price at the time each Option is
awarded, which price shall not be less than 100% of the Fair Market
Value of the Common Stock on the date of award with respect to
Incentive Stock Options.
(c) Each Option shall be exercisable at such times and subject to such
terms and conditions as the Board may specify in the applicable Award
or thereafter. The Board may impose such conditions with respect to the
exercise of Options, including conditions relating to applicable
federal or state securities laws, as it considers necessary or
advisable.
(d) No shares shall be delivered pursuant to any exercise of an Option
until payment in full of the option price therefor is received by the
Company. Such payment may be made in whole or in part in cash or, to
the extent permitted by the Board at or after the award of the Option,
by delivery of a note or shares of Common Stock owned by the
optionholder, including Restricted Stock, valued at their Fair Market
Value on the date of delivery, or such other lawful consideration as
the Board may determine.
(e) The Board may provide for the automatic award of an Option upon the
delivery of shares to the Company in payment of an Option for up to the
number of shares so delivered.
(f) In the case of Incentive Stock Options the following additional
conditions shall apply:
(i) Such options shall be granted only to employees of the
Company, and shall not be granted to any person who owns stock
that possesses more than ten percent of the total combined
voting power of all classes of stock of the Company or of its
parent or
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subsidiary corporation (as those terms are defined in section
422(b) of the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder), unless, at the time
of such grant, the exercise price of such option is at least
110% of the fair market value of the stock that is subject to
such option and the option shall not be exercisable more than
five years after the date of grant;
(ii) Such options shall not be exercisable more than ten years from
the date hereof and shall not be exercisable more than ten
years from the date of grant;
(iii) Such options shall, by their terms, be transferable by the
optionee only by will or the laws of descent and distribution,
and shall be exercisable only by such employee during his
lifetime.
Section 7. Stock Appreciation Rights
Subject to the provisions of the Plan, the Board may award SARs in
tandem with an Option (at or after the award of the Option), or alone and
unrelated to an Option. SARs in tandem with an Option shall terminate to the
extent that the related Option is exercised, and the related Option shall
terminate to the extent that the tandem SARs are exercised.
Section 8. Performance Shares
(a) Subject to the provisions of the Plan, the Board may award Performance
Shares and determine the number of such shares for each Performance
Cycle and the duration of each Performance Cycle. There may be more
than one Performance Cycle in existence at any one time, and the
duration of Performance Cycles may differ from each other. The payment
value of Performance Shares shall be equal to the Fair Market Value of
the Common Stock on the date the Performance Shares are earned or, in
the discretion of the Board, on the date the Board determines that the
Performance Shares have been earned.
(b) The Board shall establish performance goals for each Cycle, for the
purpose of determining the extent to which Performance Shares awarded
for such Cycle are earned, on the basis of such criteria and to
accomplish such objectives as the Board may from time to time select.
During any Cycle, the Board may adjust the performance goals for such
Cycle as it deems equitable in recognition of unusual or non-recurring
events affecting the Company, changes in applicable tax laws or
accounting principles, or such other factors as the Board may
determine.
(c) As soon as practicable after the end of a Performance Cycle, the Board
shall determine the number of Performance Shares which have been earned
on the basis of performance in relation to the established performance
goals. The payment values of earned Performance Shares shall be
distributed to the Participant or, if the Participant has died, to the
Participant's Designated Beneficiary, as soon as practicable
thereafter. The Board shall determine, at or after the time of award,
whether payment values will be settled in whole or in part in cash or
other property, including Common Stock or Awards.
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Section 9. Restricted Stock
(a) Subject to the provisions of the Plan, the Board may award shares of
Restricted Stock and determine the duration of the Restricted Period
during which, and the conditions under which, the shares may be
forfeited to the Company and the other terms and conditions of such
Awards. Shares of Restricted Stock may be issued for no cash
consideration or such minimum consideration as may be required by
applicable law.
(b) Shares of Restricted Stock may not be sold, assigned, transferred,
pledged or otherwise encumbered, except as permitted by the Board,
during the Restricted Period. Shares of Restricted Stock shall be
evidenced in such manner as the Board may determine. Any certificates
issued in respect of shares of Restricted Stock shall be registered in
the name of the Participant and unless otherwise determined by the
Board, deposited by the Participant, together with a stock power
endorsed in blank, with the Company. At the expiration of the
Restricted Period, the Company shall deliver such certificates to the
Participant or if the Participant has died, to the Participant's
Designated Beneficiary.
Section 10. Stock Units
(a) Subject to the provisions of the Plan, the Board may award Stock Units
subject to such terms, restrictions, conditions, performance criteria,
vesting requirements and payment rules as the Board shall determine.
(b) Shares of Common Stock awarded in connection with a Stock Unit Award
shall be issued for no cash consideration or such minimum consideration
as may be required by applicable law. Such shares of Common Stock may
be designated as Award Shares by the Board.
Section 11. General Provisions Applicable to Awards
(a) Documentation. Each Award under the Plan shall be evidenced by a
writing delivered to the Participant specifying the terms and
conditions thereof and containing such other terms and conditions not
inconsistent with the provisions of the Plan as the Board considers
necessary or advisable to achieve the purposes of the Plan or comply
with applicable tax and regulatory laws and accounting principles.
(b) Board Discretion. Each type of Award may be made alone, in addition to
or in relation to any other type of Award. The terms of each type of
Award need not be identical, and the Board need not treat Participants
uniformly. Except as otherwise provided by the Plan or a particular
Award, any determination with respect to an Award may be made by the
Board at the time of award or at any time thereafter. Without limiting
the foregoing, an Award may be made by the Board, in its discretion, to
any 401(k), savings, pension, profit sharing or other similar plan of
the Company in lieu of or in addition to any cash or other property
contributed or to be contributed to such plan.
(c) Settlement. The Board shall determine whether Awards are settled in
whole or in part in cash, Common Stock, other securities of the
Company, Awards or other property. The Board may permit a Participant
to defer all or any portion of a payment under the Plan, including the
crediting of interest on deferred amounts denominated in cash and
dividend equivalents on amounts denominated in Common Stock.
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(d) Dividends and Cash Awards. In the discretion of the Board, any Award
under the Plan may provide the Participant with (i) dividends or
dividend equivalents payable currently or deferred with or without
interest, and (ii) cash payments in lieu of or in addition to an Award.
(e) Termination of Employment. The Board shall determine the effect on an
Award of the disability, death, retirement or other termination of
employment of a Participant and the extent to which, and the period
during which, the Participant's legal representative, guardian or
Designated Beneficiary may receive payment of an Award or exercise
rights thereunder.
(f) Change in Control. In order to preserve a Participant's rights under an
Award in the event of a change in control of the Company, the Board in
its discretion may, at the time an Award is made or at any time
thereafter, take one or more of the following actions: (i) provide for
the acceleration of any time period relating to the exercise or
realization of the Award, (ii) provide for the purchase of the Award
upon the Participant's request for an amount of cash or other property
that could have been received upon the exercise or realization of the
Award had the Award been currently exercisable or payable, (iii) adjust
the terms of the Award in a manner determined by the Board to reflect
the change in control, (iv) cause the Award to be assumed, or new
rights substituted therefor, by another entity, or (v) make such other
provision as the Board may consider equitable and in the best interests
of the Company.
(g) Withholding. The Participant shall pay to the Company, or make
provision satisfactory to the Board for payment of, any taxes required
by law to be withheld in respect of Awards under the Plan no later than
the date of the event creating the tax liability. In the Board's
discretion, such tax obligations may be paid in whole or in part in
shares of Common Stock, including shares retained from the Award
creating the tax obligation, valued at their Fair Market Value on the
date of delivery. The Company and its Affiliates may, to the extent
permitted by law, deduct any such tax obligations from any payment of
any kind otherwise due to the Participant.
(h) Foreign Nationals. Awards may be made to Participants who are foreign
nationals or employed outside the United States on such terms and
conditions different from those specified in the Plan as the Board
considers necessary or advisable to achieve the purposes of the Plan or
comply with applicable laws.
(i) Amendment of Award. The Board may amend, modify or terminate any
outstanding Award, including substituting therefor another Award of the
same or a different type, changing the date of exercise or realization
and convening an Incentive Stock Option to a Nonstatutory Stock Option,
provided that the Participant's consent to such action shall be
required unless the Board determines that the action, taking into
account any related action, would not materially and adversely affect
the Participant.
Section 12. Miscellaneous
(a) No Right To Employment. No person shall have any claim or right to be
granted an Award, and the grant of an Award shall not be construed as
giving a Participant the right to continued employment. The Company
expressly reserves the right at any time to dismiss a Participant free
from any liability or claim under the Plan, except as expressly
provided in the applicable Award.
(b) No Rights As Shareholder. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights
as a shareholder with respect to any shares of Common Stock to be
distributed under the Plan until he or she becomes the holder thereof.
A
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Participant to whom Common Stock is awarded shall be considered the
holder of the Stock at the time of the Award except as otherwise
provided in the applicable Award.
(c) Effective Date. Subject to the approval of the shareholders of the
Company, the Plan shall be effective on October 8, 1996. Prior to such
approval, Awards may be made under the Plan expressly subject to such
approval.
(d) Amendment of Plan. The Board may amend, suspend or terminate the Plan
or any portion thereof at any time, provided that no amendment shall be
made without shareholder approval if such approval is necessary to
comply with any applicable tax requirement.
(e) Governing Law. The provisions of the Plan shall be governed by and
interpreted in accordance with the laws of the State of Delaware.
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EXHIBIT 10.3
VIVID TECHNOLOGIES, INC.
1996 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose. The purpose of this 1996 Nonemployee Director Stock Option
Plan is to attract and retain the services of experienced and knowledgeable
independent directors of the Corporation for the benefit of the Corporation and
its stockholders and to provide additional incentives for such independent
directors to continue to work for the best interests of the Corporation and its
stockholders through continuing ownership of its common stock.
2. Definitions. As used herein, each of the following terms has the
indicated meaning:
"Affiliate" means any individual, corporation, partnership, association,
joint-stock company, trust, unincorporated association or other entity (other
than the Corporation) that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, the
Corporation including, without limitation, any member of an affiliated group of
which the Corporation is a common parent corporation as provided in Section 1504
of the Internal Revenue Code of 1986, as amended,.
"Corporation" means Vivid Technologies, Inc.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Eligible Director" means each director of the Corporation who is not
then an employee of the Corporation.
"Fair Market Value" means the last sale price of the Shares as reported
on the National Association of Securities Dealers Automated Quotation System
("NASDAQ") or on a national securities exchange on which the Shares may be
traded on the date of the granting of the Option. If the Shares are not publicly
traded, the fair market value shall mean the fair market value of the Shares as
determined by the Board of Directors.
"Option" means the contractual right to purchase Shares upon the
specific terms set forth in this Plan.
"Option Exercise Period" means the period commencing on the date of
grant of an Option pursuant to this Plan and ending ten years from the date of
grant.
"Plan" means this Vivid Technologies, Inc. 1996 Nonemployee Director
Stock Option Plan.
"Shares" means the Common Stock, $.01 par value, of the Corporation.
<PAGE> 2
3. Stock Subject to the Plan. The aggregate number of Shares that may be
issued and sold under the Plan shall be 125,000 shares. The Shares to be issued
upon exercise of Options granted under this Plan shall be made available, at the
discretion of the Board of Directors, from (i) treasury Shares and/or Shares
reacquired by the Corporation for such purposes, including Shares purchased in
the open market, (ii) authorized but unissued Shares, and (iii) Shares
previously reserved for issuance upon exercise of Options which have expired or
been terminated. If any Option granted under this Plan shall expire or terminate
for any reason without having been exercised in full, the unpurchased Shares
covered thereby shall become available for grant as additional Options under the
Plan so long as it shall remain in effect.
4. Administration of the Plan. The Plan shall be administered by the
Board of Directors of the Corporation (the "Board"). The Board shall, subject to
the provisions of the Plan, grant options under the Plan and shall have the
power to construe the Plan, to determine all questions as to eligibility, and to
adopt and amend such rules and regulations for the administration of the Plan as
it may deem desirable. The Board may delegate any and all of its authority
hereunder to one or more Committees of the Board.
5. Eligibility; Grant of Options. Each Eligible Director will be granted
an Option to purchase 10,000 shares of Common Stock (the "Initial Option")
effective on the date he or she is first elected to the Board; provided, however
that no Eligible Director elected to the Board prior to October 10, 1996 shall
receive an Initial Option. In addition, each Eligible Director who has served as
a Director for a full fiscal year will be entitled to receive options to
purchase an additional 2,500 shares of Common Stock (the "Additional Options")
on June 30 of each year (provided the Director continues to be an Eligible
Director on that date) until the Director has received Additional Options to
purchase 25,000 shares of Common Stock.
6. Terms of Options and Limitations Thereon.
(a) Option Agreement. Each Option granted under this Plan shall
be evidenced by an option agreement between the Corporation and the Option
holder and shall be upon such terms and conditions not inconsistent with this
Plan as the Board may determine. Each Option shall explicitly state that it is
not intended to be an "incentive stock option" as that term is defined in
Section 422A of the Internal Revenue Code.
(b) Price. The price at which any Shares may be purchased
pursuant to the exercise of an Option shall be the Fair Market Value of the
Shares on the date of grant, but in no event shall the price be less than the
par value of the Shares.
(c) Exercise of Options. Subject to Paragraph 7 of this Plan,
each Option granted under this Plan may be exercised in full at one time or in
part from time to time only during the Option Exercise Period by the giving of
written notice, signed by the person or persons exercising the Option, to the
Corporation stating the numbers of Shares with respect to which the Option is
being exercised, accompanied by full payment for such Shares pursuant to section
7(b) hereof; provided, however, (i) if a person to whom an Option has been
granted is permanently disabled or dies during the Option Exercise Period, the
portion of such Option then exercisable, as
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provided in Paragraph 7(a) shall be exercisable by him or her or by the
executors, administrators, legatees or distributees of his or her estate during
the 12 months following his or her or death or permanent disability and, (ii) if
a person to whom an Option has been granted ceases to be a director of the
Corporation for any cause other than death or permanent disability, the portion
of Option then exercisable shall be exercisable during the thirty (30) day
period following the date such person ceased to be a director, but, in any
event, only to the extent vested pursuant to Paragraph 7(a) hereof.
(d) Non-Assignability. No Option or right or interest in an
Option shall be assignable or transferable by the holder except by will or the
laws of descent and distribution and during the lifetime of the holder shall be
exercisable only by him or her.
7. Vesting; Payment.
(a) Subject to Paragraph 8 of this Plan, Options granted under
this Plan may be exercised as follows: (i) the Initial Options may be exercised
during the Option Exercise Period at the rate of 20% per year, commencing one
year after the date of grant, such that the Option may be exercised in full from
and after five years from the date of grant, and (ii) the Additional Options may
be exercised during the Option Exercise Period at any time after six months from
the date of grant.
(b) If a person to whom an Option is granted ceases to be an
Eligible Director, then each Option issued to said person shall be exercisable,
during the remainder of the Option Exercise Period or such shorter period as
specified in subparagraph 6(c), only as to the number of Shares as to which the
Option was exercisable immediately prior to said termination of affiliation,
unless otherwise determined by the Board of Directors.
(c) The purchase price of Shares upon exercise of an Option
shall be paid by the Option holder in full upon exercise and may be paid (i) in
cash or, if the Corporation's shares are traded on NASDAQ or a national
securities exchange; (ii) by delivery of Shares having a Fair Market Value on
the date of exercise equal to the purchase price, or (iii) any combination of
cash and Shares.
(d) No Shares shall be issued or transferred upon exercise of
any Option under this Plan unless and until all legal requirements applicable to
the issuance or transfer of such shares and such other requirements as are
consistent with the Plan have been complied with to the satisfaction of the
Board, including without limitation those described in Paragraph 10 hereof.
8. Stock Adjustments.
(a) If the Corporation is a party to any "Change in Control"
event, then all Options outstanding as of the date of the Change in Control
event and not then exercisable shall become fully exercisable to the full extent
of the original grant; provided, however, that if the rights granted under this
Paragraph 8(a) would cause an otherwise eligible transaction to be ineligible
for pooling of interest accounting treatment or the Board determines that such
rights
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would otherwise have an adverse effect on the Corporation, then the Board shall
have the power to make arrangements, which shall be binding upon the holders of
unexpired Options, for the substitution of new options for, or the assumption by
another corporation of, any unexpired Options then outstanding hereunder. For
purposes of the Plan, a "Change in Control" event shall include the following:
(x) (i) An acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a "Person") of the
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of the then outstanding shares of common stock of
the Corporation (the "Outstanding Corporation Common Stock") or the combined
voting power of the then outstanding voting securities of the Corporation
entitled to vote generally in the election of directors (the "Outstanding
Corporation Voting Securities") or (ii) the approval by the stockholders of the
Corporation of a reorganization, merger, consolidation, complete liquidation or
dissolution of the Corporation, the sale or disposition of all or substantially
all of the assets of the Corporation or similar corporate transaction (in each
case referred to in this Paragraph 8(a) as a "Corporate Transaction") or, if
consummation of such Corporate Transaction is subject, at the time of such
approval by stockholders, to the consent of any government or governmental
agency, the obtaining of such consent (either explicitly or implicitly);
excluding, however, the following: (i) any acquisition by, or consummation of a
Corporate Transaction with, any subsidiary of the Corporation or by an employee
benefit plan (or related trust) sponsored or maintained by the Corporation or an
Affiliate, (ii) the acquisition by, or consummation of a Corporate Transaction
with, any Person who beneficially owned, immediately prior to such acquisition
or Corporate Transaction, directly or indirectly, 20% or more of the Outstanding
Corporation Common Stock or Outstanding Corporation Voting Securities, or (iii)
any Corporate Transaction, if more than a majority of the beneficial ownership
of the Outstanding Corporation Voting Securities after the Corporate Transaction
is held directly or indirectly by Persons who held directly or indirectly the
beneficial ownership of the Outstanding Corporation Voting Securities before the
Corporate Transaction; or
(y) A change in the composition of the Board of Directors such that the
individuals who, as of October 9, 1996, constitute the Board (such Board shall
be hereinafter referred to as the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, for purposes of
this Paragraph 8(a), that any individual who becomes a member of the Board
subsequent to such date whose election, or nomination for election by the
Corporation's stockholders, was approved by a vote of at least a majority of
those individuals who are members of the Board and who were also members of the
Incumbent Board (or deemed to be such pursuant to this proviso) shall be
considered as though such individual were a member of the Incumbent Board; but,
provided, further, that any such individual whose initial assumption of office
occurs as a result of either an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board shall not be so considered as a member
of the Incumbent Board.
(b) If by reason of recapitalization, reclassification, stock
split-up, combination of shares, separation (including a spin-off) or dividend
on the Stock payable in Shares, the
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outstanding Shares of the Corporation are increased or decreased or changed into
or exchanged for a different number or kind of shares or other securities of the
Corporation, the Board shall conclusively determine the appropriate adjustment
in the exercise prices of outstanding Options and in the number and kind of
shares as to which outstanding Options shall be exercisable.
(c) In the event of a transaction of the type described in
Paragraphs (a) and (b) above, the total number of Shares on which Options may be
granted under this Plan shall be appropriately adjusted by the Board.
9. No Rights Other Than Those Expressly Created. No person affiliated
with the Corporation or other person shall have any claim or right to be granted
an Option hereunder. Neither this Plan nor any action taken hereunder shall be
construed as (i) giving any Option holder any right to continue to be affiliated
with the Corporation, (ii) giving any Option holder any equity or interest of
any kind in any assets of the Corporation, or (iii) creating a trust of any kind
or a fiduciary relationship of any kind between the Corporation and any such
person. No Option holder shall have any of the rights of a stockholder with
respect to Shares covered by an Option until such time as the Option has been
exercised and Shares have been issued to such person.
10. Miscellaneous.
(a) Withholding of Taxes. Pursuant to applicable federal, state,
local or foreign laws, the Corporation may be required to collect income or
other taxes upon the grant of an Option to, or exercise of an Option by, a
holder. The Corporation may require, as a condition to the exercise of an
Option, that the recipient pay the Corporation, at such time as the Board
determines, the amount of any taxes which the Board may determine is required to
be withheld.
(b) Securities Law Compliance. Upon exercise of an Option, the
holder shall be required to make such representations and furnish such
information as may, in the opinion of counsel for the Corporation, be
appropriate to permit the Corporation to issue or transfer the Shares in
compliance with the provisions of applicable federal or state securities laws.
The Corporation, in its discretion, may postpone the issuance and delivery of
Shares upon any exercise of an Option until completion of such registration or
other qualification of such Shares under any federal or state laws, or stock
exchange listing, as the Corporation may consider appropriate. The Corporation
is not obligated to register or qualify the Shares under federal or state
securities laws and may refuse to issue such Shares if neither registration nor
exemption therefrom is practical. The Board may require that prior to the
issuance or transfer of any Shares upon exercise of an Option, the recipient
enter into a written agreement to comply with any restrictions on subsequent
disposition that the Board or the Corporation deems necessary or advisable under
any applicable federal and state securities laws. Certificates representing the
Shares issued hereunder may be legended to reflect such restrictions.
(c) Indemnity. The Board shall not be liable for any act,
omission, interpretation, construction or determination made in good faith in
connection with its responsibilities with respect to the Plan, and the
Corporation hereby agrees to indemnify the members of the Board, in respect of
any claim, loss, damage, or expense (including counsel fees)
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arising from any such act, omission, interpretation, construction or
determination to the full extent permitted by law.
11. Effective Date; Amendment; Termination.
(a) The effective date of this Plan shall be the date of the
approval of stockholders of the Corporation holding at least a majority of the
voting stock of the Corporation.
(b) The date of grant of any Option granted hereunder shall be
the date upon which the Eligible Director to whom the Option is granted becomes
a director of the Corporation.
(c) The Board, or any Committee who has been delegated the
authority to do so, may at any time, and from time to time, amend, suspend or
terminate this Plan in whole or in part. Except as provided herein, no
amendment, suspension or termination of this Plan may adversely affect the
rights of any person under an Option that has been granted to such person
without such person's consent.
(d) This Plan shall terminate ten years from its effective date,
and no Option shall be granted under this Plan thereafter, but such termination
shall not affect the validity of Options granted prior to the date of
termination.
Dates of Board of Director Adoption: October 8, 1996.
Dates of Stockholder Adoption: October , 1996.
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EXHIBIT 10.4
VIVID TECHNOLOGIES, INC.
1999 EQUITY INCENTIVE PLAN
SECTION 1. PURPOSE
The purpose of the Vivid Technologies, Inc. 1998 Equity Incentive Plan
(the "Plan") is to attract and retain employees, directors, advisors and
consultants, to provide an incentive for them to assist Vivid Technologies, Inc.
(the "Corporation") to achieve long-range performance goals, and to enable them
to participate in the long-term growth of the Corporation.
SECTION 2. DEFINITIONS
(a) "Affiliate" means any business entity in which the Corporation owns
directly or indirectly 50% or more of the total combined voting power or
has a significant financial interest as determined by the Committee.
(b) "Annual Meeting" means the annual meeting of shareholders or special
meeting in lieu of annual meeting of shareholders at which one or more
directors are elected.
(c) "Award" means any Option, Stock Appreciation Right, Performance Share,
Restricted Stock, or Stock Award awarded under the Plan.
(d) "Award Share" means a share of Common Stock awarded to an employee,
director, advisor or consultant without payment therefor.
(e) "Board" means the Board of Directors of the Corporation.
(f) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(g) "Committee" means the Compensation Committee of the Board, or such other
committee of not less than two members of the Board appointed by the Board
to administer the Plan, provided that the members of such Committee must be
Non-Employee Directors as defined in Rule 16b-3(b) promulgated under the
Securities Exchange Act of 1934, as amended.
(h) "Common Stock" or "Stock" means the Common Stock, par value $.01 per share,
of the Corporation.
(i) "Corporation" means Vivid Technologies, Inc.
(j) "Designated Beneficiary" means the beneficiary designated by a Participant,
in a manner determined by the Board, to receive amounts due or exercise
rights of the Participant in the event of the Participant's death. In the
absence of an effective designation by a Participant, Designated
Beneficiary shall mean the Participant's estate.
(k) "Eligible Director" means each director of the Corporation who is not then
an employee of the Corporation or affiliated with any holder of more than
5% of the outstanding voting stock of the Corporation.
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(l) "Fair Market Value" means, with respect to Common Stock, the last sale
price of the Common Stock as reported on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or on a national
securities exchange on which the Common Stock may be traded on the date of
the granting of the Award, or if such date is not a business day, the first
business day preceding such grant. If the Common Stock is not publicly
traded, the fair market value shall mean the fair market value of the
Common Stock as determined by the Board of Directors.
(m) "Incentive Stock Option" means an option to purchase shares of Common
Stock, awarded to a Participant under Section 6, which is intended to meet
the requirements of Section 422 of the Code or any successor provision.
(n) "Nonqualified Stock Option" means an option to purchase shares of Common
Stock, awarded to a Participant under Section 6, which is not intended to
be an Incentive Stock Option.
(o) "Option" means an Incentive Stock Option or a Nonqualified Stock Option.
(p) "Participant" means a person selected by the Board to receive an Award
under the Plan.
(q) "Performance Cycle" or "Cycle" means the period of time selected by the
Board during which performance is measured for the purpose of determining
the extent to which an award of Performance Shares has been earned.
(r) "Performance Shares" mean shares of Common Stock which may be earned by the
achievement of performance goals, awarded to a Participant under Section 8.
(s) "Restricted Period" means the period of time selected by the Board during
which an award of Restricted Stock may be forfeited to the Corporation.
(t) "Restricted Stock" means shares of Common Stock subject to forfeiture,
awarded to a Participant under Section 9.
(u) "Stock Appreciation Right" or "SAR" means a right to receive any excess in
value of shares of Common Stock over the reference price, awarded to a
Participant under Section 7.
(v) "Stock Award" means an award of Common Stock, including an Award Share, or
an award of Common Stock and other rights granted as units that are valued
in whole or in part by reference to, or otherwise based on, the value of
Common Stock, awarded to a Participant under Section 10.
SECTION 3. ADMINISTRATION
The Plan shall be administered by the Board, or if the Board so
determines, by the Committee. The Committee shall serve at the pleasure of the
Board, which may from time to time, and in its sole discretion, discharge any
member, appoint additional new members in substitution for those previously
appointed and/or fill vacancies however caused. A majority of the Committee
shall constitute a quorum and the acts of a majority of the members present at
any meeting at which a quorum is present shall be deemed the action of the
Committee. The Board, including the Committee, shall have authority to adopt,
alter and repeal such administrative rules, guidelines and practices governing
the operation of the Plan as it shall from time to time consider
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advisable, and to interpret the provisions of the Plan. The Board's decisions
shall be final and binding. To the extent permitted by applicable law, the Board
may delegate to the Committee the power to make Awards to Participants and all
determinations under the Plan with respect thereto.
SECTION 4. ELIGIBILITY
All employees and, in the case of Awards other than Incentive Stock
Options, directors, advisors and consultants of the Corporation or any Affiliate
capable of contributing significantly to the successful performance of the
Corporation, other than a person who has irrevocably elected not to be eligible,
are eligible to be Participants in the Plan.
SECTION 5. STOCK AVAILABLE FOR AWARDS
(a) Subject to adjustment under subsection (b), the maximum aggregate number of
shares of Common Stock available for issuance under the Plan is 300,000
shares. If any Award in respect of shares of Common Stock expires or is
terminated unexercised or is forfeited for any reason or settled in a
manner that results in fewer shares outstanding than were initially
awarded, including without limitation the surrender of shares in payment
for the Award or any tax obligation thereon, the shares subject to such
Award or so surrendered, as the case may be, to the extent of such
expiration, termination, forfeiture or decrease, shall again be available
for award under the Plan, subject, however, in the case of Incentive Stock
Options, to any limitation required under the Code. Common Stock issued
through the assumption or substitution of outstanding grants from an
acquired corporation shall not reduce the shares available for Awards under
the Plan. Shares issued under the Plan may consist in whole or in part of
authorized but unissued shares or treasury shares.
(b) In the event that the Board determines that any stock dividend,
extraordinary cash dividend, creation of a class of equity securities,
recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination, exchange of shares, warrants or rights offering to
purchase Common Stock at a price substantially below fair market value, or
other similar transaction affects the Common Stock such that an adjustment
is required in order to preserve the benefits or potential benefits
intended to be made available under the Plan, then the Board, subject, in
the case of Incentive Stock Options, to any limitation required under the
Code, shall equitably adjust any or all of (i) the number and kind of
shares in respect of which Awards may be made under the Plan, (ii) the
number and kind of shares subject to outstanding Awards, and (iii) the
award, exercise or conversion price with respect to any of the foregoing,
and if considered appropriate, the Board may make provision for a cash
payment with respect to an outstanding Award, provided that the number of
shares subject to any Award shall always be a whole number.
SECTION 6. STOCK OPTIONS
(a) Subject to the provisions of the Plan, the Board may award Incentive Stock
Options and Nonqualified Stock Options and determine the number of shares
to be covered by each Option, the option price therefor and the conditions
and limitations applicable to the exercise of the Option. The terms and
conditions of Incentive Stock Options shall be subject to and comply with
Section 422 of the Code, or any successor provision, and any regulations
thereunder.
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(b) The Board shall establish the option price at the time each Option is
awarded.
(c) Each Option shall be exercisable at such times and subject to such terms
and conditions as the Board may specify in the applicable Award or
thereafter. The Board may impose such conditions with respect to the
exercise of Options, including conditions relating to applicable federal or
state securities laws, as it considers necessary or advisable.
(d) No shares shall be delivered pursuant to any exercise of an Option until
payment in full of the option price therefor is received by the
Corporation. Such payment may be made in whole or in part in cash or, to
the extent permitted by the Board at or after the award of the Option, by
delivery of a note or shares of Common Stock owned by the optionholder,
including Restricted Stock, valued at their Fair Market Value on the date
of delivery, by the reduction of the shares of Common Stock that the
optionholder would be entitled to receive upon exercise of the Option, such
shares to be valued at their Fair Market Value on the date of exercise,
less their option price (a so-called "cashless exercise"), or such other
lawful consideration as the Board may determine. In addition, to the extent
permitted by the Board, an optionholder may engage in a successive exchange
(or series of exchanges) in which the shares of Common Stock that such
optionholder is entitled to receive upon the exercise of an Option may be
simultaneously utilized as payment for the exercise of an additional Option
or Options.
(e) The Board may provide for the automatic award of an Option upon the
delivery of shares to the Corporation in payment of an Option for up to the
number of shares so delivered.
(f) In the case of Incentive Stock Options the following additional conditions
shall apply to the extent required under Section 422 of the Code for the
options to qualify as Incentive Stock Options:
(i) Such options shall be granted only to employees of the Corporation,
and shall not be granted to any person who owns stock that possesses
more than ten percent of the total combined voting power of all
classes of stock of the Corporation or of its parent or subsidiary
corporation (as those terms are defined in Section 422(b) of the
Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder), unless, at the time of such grant, the
exercise price of such option is at least 110% of the fair market
value of the stock that is subject to such option and the option shall
not be exercisable more than five years after the date of grant;
(ii) The option price with respect to Incentive Stock Options shall not be
less than 100% of the Fair Market Value of the Common Stock on the
date of award.
(iii) Such options shall, by their terms, be transferable by the
optionholder only by the laws of descent and distribution, and shall
be exercisable only by such optionholder during his lifetime.
(iv) Such options shall not be granted more than ten years from the
effective date of the Plan and shall not be exercisable more than ten
years from the date of grant.
(v) To the extent that the aggregate Fair Market Value of Common Stock
with respect to which Incentive Stock Options (determined without
regard to this section) are
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exercisable for the first time by any employee Participant during any
calendar year exceeds $100,000 (or such other amount as may be
proscribed by the Code), such Incentive Stock Options shall be treated
as options which are not Incentive Stock Options.
SECTION 7. STOCK APPRECIATION RIGHTS
Subject to the provisions of the Plan, the Board may award SARs in
tandem with an Option (at or after the award of the Option), or alone and
unrelated to an Option. SARs in tandem with an Option shall terminate to the
extent that the related Option is exercised, and the related Option shall
terminate to the extent that the tandem SARs are exercised.
SECTION 8. PERFORMANCE SHARES
(a) Subject to the provisions of the Plan, the Board may award Performance
Shares and determine the number of such shares for each Performance Cycle
and the duration of each Performance Cycle. There may be more than one
Performance Cycle in existence at any one time, and the duration of
Performance Cycles may differ from each other. Unless otherwise determined
by the Board, the payment value of Performance Shares shall be equal to the
Fair Market Value of the Common Stock on the date the Performance Shares
are earned or, in the discretion of the Board, on the date the Board
determines that the Performance Shares have been earned.
(b) The Board shall establish performance goals for each Cycle, for the purpose
of determining the extent to which Performance Shares awarded for such
Cycle are earned, on the basis of such criteria and to accomplish such
objectives as the Board may from time to time select. During any Cycle, the
Board may adjust the performance goals for such Cycle as it deems equitable
in recognition of unusual or non-recurring events affecting the
Corporation, changes in applicable tax laws or accounting principles, or
such other factors as the Board may determine.
(c) As soon as practicable after the end of a Performance Cycle, the Board
shall determine the number of Performance Shares which have been earned on
the basis of performance in relation to the established performance goals.
The payment values of earned Performance Shares shall be distributed to the
Participant or, if the Participant has died, to the Participant's
Designated Beneficiary, as soon as practicable thereafter. The Board shall
determine, at or after the time of award, whether payment values will be
settled in whole or in part in cash or other property, including Common
Stock or Awards.
SECTION 9. RESTRICTED STOCK
(a) Subject to the provisions of the Plan, the Board may award shares of
Restricted Stock and determine the duration of the Restricted Period during
which, and the conditions under which, the shares may be forfeited to the
Corporation and the other terms and conditions of such Awards. Shares of
Restricted Stock may be issued for no cash consideration or such minimum
consideration as may be required by applicable law.
(b) Shares of Restricted Stock may not be sold, assigned, transferred, pledged
or otherwise encumbered, except as permitted by the Board, during the
Restricted Period. Shares of
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Restricted Stock shall be evidenced in such manner as the Board may
determine. Any certificates issued in respect of shares of Restricted Stock
shall be registered in the name of the Participant and unless otherwise
determined by the Board, deposited by the Participant, together with a
stock power endorsed in blank, with the Corporation. At the expiration of
the Restricted Period, if the Corporation holds such certificates, the
Corporation shall deliver such certificates to the Participant or if the
Participant has died, to the Participant's Designated Beneficiary.
SECTION 10. STOCK AWARDS
(a) Subject to the provisions of the Plan, the Board may award Stock Awards
subject to such terms, restrictions, conditions, performance criteria,
vesting requirements and payment rules, if any, as the Board shall
determine.
(b) Shares of Common Stock awarded in connection with a Stock Award shall be
issued for no cash consideration or such minimum consideration as may be
required by applicable law. Such shares of Common Stock may be designated
as Award Shares by the Board.
SECTION 11. OPTIONS GRANTED TO NON-EMPLOYEE DIRECTORS
(a) Unless otherwise determined by the Board, each Eligible Director shall
automatically be granted a Nonqualified Option to acquire 10,000 shares of
Common Stock effective as of the date he or she is first elected to the
Board or, with respect to Eligible Directors serving on the Board as of the
Effective Date of the Plan, as of the date of the 1999 Annual Meeting of
the Corporation, in each case, the option price for which shall be the Fair
Market Value of the Common Stock on such date and the expiration of which
shall be the tenth anniversary thereof. Each Nonqualified Option issued
pursuant to this Section 11(a) shall become exercisable in 20% installments
beginning on January 1 of the first year after the grant date, and on
January 1 of each year thereafter, until such option is fully exercisable
on January 1 of the fifth year following the grant date.
(b) Unless otherwise determined by the Board, each Eligible Director who has
served as a Director for six months shall automatically be granted a
Nonqualified Option to acquire 2,500 shares of Common Stock as of January 1
of each year, beginning with a Nonqualified Option granted as of the date
of the 1999 Annual Meeting, the option price for which shall be the Fair
Market Value of the Common Stock on such date and the expiration of which
shall be the tenth anniversary thereof. Each Nonqualified Option granted
pursuant to this Section 11(b) may be exercised on and after the date that
is six months after the date of grant.
(c) In addition, the Board may provide for such other terms and conditions of
the Options granted pursuant to this Section 11 as it may determine in its
sole discretion and as shall be set forth in the applicable Option
agreements, including, without limitation, acceleration of exercise upon a
change of control, termination of the Options, and the effect on such
Options of the death, retirement or other termination of service as a
director of the option holder. Notwithstanding the foregoing, nothing
herein shall preclude the Board from granting Awards to such non-employee
directors in addition to, or in substitution for, those provided for in
this Section 11.
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SECTION 12. GENERAL PROVISIONS APPLICABLE TO AWARDS
(a) Documentation. Each Award under the Plan shall be evidenced by a written
document delivered to the Participant specifying the terms and conditions
thereof and containing such other terms and conditions not inconsistent
with the provisions of the Plan as the Board considers necessary or
advisable to achieve the purposes of the Plan or comply with applicable tax
and regulatory laws and accounting principles.
(b) Securities Laws. The Participant shall make such representations and
furnish such information as may, in the opinion of counsel for the
Corporation, be appropriate to permit the Corporation to issue or transfer
the Stock in compliance with the provisions of applicable federal or state
securities laws. The Corporation, in its discretion, may postpone the
issuance and delivery of any Stock until completion of such registration or
other qualification of such shares under any federal or state laws, or
stock exchange listing as the Corporation may consider appropriate. The
Corporation may require that prior to the issuance or transfer of Stock,
the Participant enter into a written agreement to comply with any
restrictions on subsequent disposition that the Corporation deems necessary
or advisable under any applicable federal and state securities laws.
Certificates of Stock issued hereunder may be legended to reflect such
restrictions.
(c) Board Discretion. Each type of Award may be made alone, in addition to or
in relation to any other type of Award. The terms of each type of Award
need not be identical, and the Board need not treat Participants uniformly.
Except as otherwise provided by the Plan or a particular Award, any
determination with respect to an Award may be made by the Board at the time
of award or at any time thereafter. Without limiting the foregoing, an
Award may be made by the Board, in its discretion, to any 401(k), savings,
pension, profit sharing or other similar plan of the Corporation in lieu of
or in addition to any cash or other property contributed or to be
contributed to such plan.
(d) Settlement. The Board shall determine whether Awards are settled in whole
or in part in cash, Common Stock, other securities of the Corporation,
Awards, other property or such other methods as the Board may deem
appropriate. The Board may permit a Participant to defer all or any portion
of a payment under the Plan, including the crediting of interest on
deferred amounts denominated in cash and dividend equivalents on amounts
denominated in Common Stock. If shares of Common Stock are to be used in
payment pursuant to an Award and such shares were acquired upon the
exercise of a stock option (whether or not granted under this Plan), such
shares must have been held by the Participant for at least six months.
(e) Dividends and Cash Awards. In the discretion of the Board, any Award under
the Plan may provide the Participant with (i) dividends or dividend
equivalents payable currently or deferred with or without interest, and
(ii) cash payments in lieu of or in addition to an Award.
(f) Termination of Employment. The Board shall determine the effect on an Award
of the disability, death, retirement or other termination of employment of
a Participant and the extent to which, and the period during which, the
Participant's legal representative, guardian or Designated Beneficiary may
receive payment of an Award or exercise rights thereunder. The Board shall
have complete discretion, exercisable either at the time the Award is made
or at any time while the Award remains outstanding, to accelerate the
vesting of any Award or any part of any Award remaining unvested upon the
termination of employment of a Participant or
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<PAGE> 8
to extend the period of time for which an Option is to remain exercisable
following the termination of employment of a Participant, provided,
however, that in no event shall such Option be exercisable after the
specified expiration date of such Option.
(g) Change in Control. In order to preserve a Participant's rights under an
Award in the event of a Change in Control of the Corporation, the Board in
its discretion may, at the time an Award is made or at any time thereafter,
take one or more of the following actions: (i) provide for the acceleration
of any time period relating to the exercise or realization of the Award,
(ii) provide for the purchase of the Award for an amount of cash or other
property that could have been received upon the exercise or realization of
the Award had the Award been currently exercisable or payable, (iii) adjust
the terms of the Award in a manner determined by the Board to reflect the
Change in Control, (iv) cause the Award to be assumed, or new rights
substituted therefor, by another entity, or (v) make such other provision
as the Board may consider equitable and in the best interests of the
Corporation, provided that, in the case of an action taken with respect to
an outstanding Award, the Participant's consent to such action shall be
required unless the Board determines that the action, taking into account
any related action, would not materially and adversely affect the
Participant. Unless otherwise provided in any Award, for purposes hereof a
"Change in Control" of the Corporation shall mean: (i) the acquisition by
any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of the then outstanding
shares of common stock of the Corporation (the "Outstanding Corporation
Common Stock"); provided, however, that any acquisition by the Corporation
or its subsidiaries, or any employee benefit plan (or related trust) of the
Corporation or its subsidiaries of 20% or more of Outstanding Corporation
Common Stock shall not constitute a Change in Control; and provided,
further, that any acquisition by a corporation with respect to which,
following such acquisition, more than 50% of the then outstanding shares of
common stock of such corporation, is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners of the Outstanding Corporation Common Stock
immediately prior to such acquisition in substantially the same proportion
as their ownership, immediately prior to such acquisition, of the
Outstanding Corporation Common Stock, shall not constitute a Change in
Control; or (ii) any transaction which results in the Continuing Directors
(as defined in the Certificate of Incorporation of the Corporation)
constituting less than a majority of the Board; or (iii) consummation by
the Corporation of (i) a reorganization, merger or consolidation, in each
case, with respect to which all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Corporation
Common Stock immediately prior to such reorganization, merger or
consolidation do not, following such reorganization, merger or
consolidation, beneficially own, directly or indirectly, more than 50% of
the then outstanding shares of common stock of the corporation resulting
from such a reorganization, merger or consolidation or (ii) the sale or
other disposition of all or substantially all of the assets of the
Corporation, excluding a sale or other disposition of assets to a
subsidiary of the Corporation.
(h) Withholding. The Corporation shall have the power and the right to deduct
or withhold, or require a Participant to remit to the Corporation an amount
sufficient to satisfy federal, state and local taxes (including the
Participant's FICA obligation) required to be withheld with respect to an
Award or any dividends or other distributions payable with respect thereto.
In the Board's discretion, such tax obligations may be paid in whole or in
part in shares of
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<PAGE> 9
Common Stock, including shares retained from the Award creating the tax
obligation, valued at their Fair Market Value on the date of delivery. The
Corporation and its Affiliates may, to the extent permitted by law, deduct
any such tax obligations from any payment of any kind otherwise due to the
Participant.
(i) Amendment of Award. The Board may amend, modify or terminate any
outstanding Award, including substituting therefor another Award of the
same or a different type, changing the date of exercise or realization and
converting an Incentive Stock Option to a Nonqualified Stock Option,
provided that the Participant's consent to such action shall be required
unless the Board determines that the action, taking into account any
related action, would not materially and adversely affect the Participant.
(j) Awards Not Transferable. Except as otherwise provided by the Board, Awards
under the Plan are not transferable other than as designated by the
participant by will or by the laws of descent and distribution.
SECTION 13. MISCELLANEOUS
(a) No Right To Employment. No person shall have any claim or right to be
granted an Award, and the grant of an Award shall not be construed as
giving a Participant the right to continued employment. The Corporation
expressly reserves the right at any time to dismiss a Participant free from
any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) No Rights As Shareholder. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
shareholder with respect to any shares of Common Stock to be distributed
under the Plan until he or she becomes the holder thereof. A Participant to
whom Common Stock is awarded shall be considered the holder of the Stock at
the time of the Award except as otherwise provided in the applicable Award.
(c) Effective Date. Subject to the approval of the shareholders of the
Corporation, the Plan shall be effective on February 24, 1999 (the
"Effective Date"). Prior to such approval, Awards may be made under the
Plan expressly subject to such approval. Awards under the Plan may be made
for a period of ten years commencing on the Effective Date. The period
during which an Award may be exercise may extend beyond that time as
provided herein.
(d) Amendment of Plan. The Board may amend, suspend or terminate the Plan or
any portion thereof at any time, provided that no amendment shall be made
without shareholder approval if such approval is necessary to comply with
any applicable requirement of the laws of the jurisdiction of incorporation
of the Corporation, any applicable tax requirement, any applicable rules or
regulation of the Securities and Exchange Commission, including Rule
16(b)-3 (or any successor rule thereunder), or the rules and regulations of
The Nasdaq Stock Market or any other exchange or stock market over which
the Corporation's securities are listed.
(e) Governing Law. The provisions of the Plan shall be governed by and
interpreted in accordance with the laws of the jurisdiction of
incorporation of the Corporation.
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<PAGE> 10
(f) Indemnity. Neither the Board nor the Committee, nor any members of either,
nor any employees of the Corporation or any parent, subsidiary, or other
affiliate, shall be liable for any act, omission, interpretation,
construction or determination made in good faith in connection with their
responsibilities with respect to this Plan, and the Corporation hereby
agrees to indemnify the members of the Board, the members of the Committee,
and the employees of the Corporation and its parent or subsidiaries in
respect of any claim, loss, damage, or expense (including reasonable
counsel fees) arising from any such act, omission, interpretation,
construction or determination to the full extent permitted by law.
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<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
January 23, 1999 (except with respect to the matters discussed in Notes 8 and
27, for which the date is November 19, 1999) on PerkinElmer, Inc.'s financial
statement for the year ended January 3, 1999, included in its report on Form
8-K, dated November 23, 1999, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
---------------------------
Boston, Massachusetts
February 9, 2000
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of our
report dated December 1, 1997, covering the historical statements of ILC
Technology, Inc. included in PerkinElmer, Inc.'s Form 8-K/A, dated March 30,
1999, and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
--------------------------
San Jose, California
February 9, 2000
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
registration statement on Form S-8 of PerkinElmer, Inc., (formerly EG&G, Inc.)
of our report dated April 9, 1998, relating to the consolidated financial
statements of Lumen Technologies, Inc. (formerly BEC Group, Inc.) which appears
in PerkinElmer, Inc.'s covering the historical statements of ILC Technology,
Inc. included in PerkinElmer, Inc.'s (formerly EG&G, Inc.'s) Report on Form
8-K/A dated March 30, 1999.
/s/ PricewaterhouseCoopers LLP
-------------------------------
PricewaterhouseCoopers LLP
Dallas, Texas
February 9, 2000
<PAGE> 1
EXHIBIT 23.5
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
registration statement on Form S-8 of PerkinElmer, Inc., of our report dated
September 30, 1998, relating to the combined financial statements of the
Analytical Instruments Division of the Perkin-Elmer Corporation, which appears
in the Current Report on Form 8-K/A of PerkinElmer, Inc., dated August 11, 1999.
/s/ PricewaterhouseCoopers LLP
-------------------------------
PricewaterhouseCoopers LLP
Stamford, Connecticut
February 10, 2000
