<PAGE>
This document contains 18 pages. The exhibit index is located on page 4.
As filed with the Securities and Exchange Commission on September 16, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GENRAD, INC.
(Exact name of issuer as specified in its charter)
MASSACHUSETTS 04-1360950
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
7 TECHNOLOGY PARK DRIVE, WESTFORD, MASSACHUSETTS 01886-0033
(Address of principal executive offices)
----------
1991 EQUITY INCENTIVE PLAN
(Full title of plan)
JAMES F. LYONS Copy to:
GENRAD, INC. CONSTANTINE ALEXANDER, ESQ.
7 TECHNOLOGY PARK DRIVE NUTTER, MCCLENNEN & FISH, LLP
WESTFORD, MA 01886-0033 ONE INTERNATIONAL PLACE
(978) 589-7000 BOSTON, MASSACHUSETTS 02110-2699
(Name, address and telephone (617) 439-2000
number of agent for service)
----------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF Proposed maximum Proposed maximum Amount of
SECURITIES TO BE REGISTERED Amount being registered (1) offering price per share aggregate offering price registration fee
<S> <C> <C> <C> <C>
Common Stock,
$1.00 par value per share 500,000 Shares $17.94(2) $8,970,000.00(2) $2,493.66(2)
</TABLE>
(1) This Registration Statement covers 500,000 shares of Common Stock which
may be issued under the Registrant's 1991 Equity Incentive Plan. In
addition, this Registration Statement also covers an indeterminate number
of additional shares of Common Stock which may be issued under said Plan
as a result of a stock dividend, stock split or other recapitalization.
(2) Calculated pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended, based upon 500,000 shares underlying awards to be made
under the 1991 Equity Incentive Plan at an assumed per share exercise
price of $17.94, representing the average of the high and low prices per
share of the Common Stock as reported on the New York Stock Exchange on
SEPTEMBER 15, 1999.
- -------------------------------------------------------------------------------
<PAGE>
In accordance with General Instruction E to Form S-8, the contents of the
Registrant's Registration Statements on Form S-8 (File Nos. 33-42789, 33-52009,
33-53871, 333-05235 and 333-64329), relating to the Registrant's 1991 Equity
Incentive Plan, are incorporated by reference in this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
See the Exhibit Index immediately preceding the exhibits attached hereto.
-2-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Westford, Massachusetts, on the 16th day of
September 1999.
GenRad, Inc.
By: /s/ Walter A. Shephard
------------------------
Walter A. Shephard
Vice President, Chief Financial Officer
and Clerk
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
behalf of the Registrant in the capacities and on the dates indicated.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ James F. Lyons Chairman of the Board, President September 16, 1999
- --------------------- and Chief Executive Officer
James F. Lyons
/s/ Walter A. Shephard Vice President, Chief Financial September 16, 1999
- ---------------------- Officer and Clerk
Walter A. Shephard
/s/ Craig C. Campbell Director of Corporate Accounting September 16, 1999
- --------------------- and Principal Accounting Officer
Craig C. Campbell
/s/ William S. Antle, III Director September 16, 1999
- -------------------------
William S. Antle, III
/s/ Russell A. Gullotti Director September 16, 1999
- -----------------------
Russell A. Gullotti
/s/ Lowell B. Hawkinson Director September 16, 1999
- -----------------------
Lowell B. Hawkinson
/s/ William G. Sheerer Director September 16, 1999
- ----------------------
William G. Sheerer
/s/ Adrianna Stadecker Director September 16, 1999
- ----------------------
Adriana Stadecker
/s/ Ed Zschau Director September 16, 1999
- ---------------------
Ed Zschau
-3-
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. TITLE
Exhibit 4 1991 Equity Incentive Plan, as amended through
May 13, 1999
Exhibit 5 Opinion of Nutter, McClennen & Fish, LLP
Exhibit 23.1 Consent of Nutter, McClennen & Fish, LLP
(contained in Exhibit 5)
Exhibit 23.2 Consent of PricewaterhouseCoopers LLP
-4-
<PAGE>
Exhibit 4
GenRad, Inc.
1991 EQUITY INCENTIVE PLAN
March 29, 1991,
AS AMENDED THROUGH MAY 13, 1999
1. PURPOSE.
The purpose of this plan (the "Plan") is to secure for GenRad, Inc.
(the "Company") and its shareholders the benefits arising from capital stock
ownership by employees, officers and employee directors of, and consultants or
advisors to, the Company who are expected to contribute to the Company's future
growth and success. Except where the context otherwise requires, the term
"Company" shall include all present and future subsidiaries of the Company as
defined in Sections 424(c) and 424(f) of the Internal Revenue Code of 1986, as
amended or replaced from time to time (the "Code").
2. TYPE OF OPTIONS AND AWARDS; ADMINISTRATION.
(a) TYPES OF OPTIONS AND AWARDS. Options granted pursuant to the
Plan shall be authorized by action of the Board of Directors of the Company (or
a Committee designated by the Board of Directors) and may be either incentive
stock options ("Incentive Stock Options") meeting the requirements of Section
422 of the Code or non-statutory options which are not intended to meet the
requirements of Section 422 of the Code. Awards granted pursuant to the Plan
shall be authorized by action of the Board of Directors of the Company (or a
Committee designated by the Board of Directors) and shall meet the requirements
of Section 13 of the Plan.
(b) ADMINISTRATION. The Plan will be administered by the Board of
Directors of the Company, whose construction and interpretation of the terms and
provisions of the Plan shall be final and conclusive. The Board of Directors may
in its sole discretion (i) grant options to purchase shares of the Company's
Common Stock, $1.00 par value ("Common Stock"), and issue shares upon exercise
of such options as provided in the Plan and (ii) make awards for the purchase to
the express provisions of the Plan, to construe the respective option
agreements, wards and the Plan, to prescribe, amend and rescind rules and
regulations relating to the Plan, to determine the terms and provisions of the
respective option agreements and awards, which need not be identical, and to
make all other determinations in the judgment of the Board of Directors
necessary or desirable for the administration of the Plan. The Board of
Directors may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any option agreement or award in the manner and
to the extent it shall deem expedient to carry the Plan into effect and it shall
be the sole and final judge of such expediency. No director or person acting
pursuant to authority delegated by the Board of Directors shall be liable for
any action or determination made in good faith. The Board of Directors may, to
the full extent permitted by or consistent with applicable laws or regulations
(including, without limitation, applicable law and Rule 16b-3 promulgated under
the Securities Exchange Act of 1934 (the "Exchange Act"), or any successor rule
("Rule 16b-3")), delegate any or all of its powers under the Plan to a committee
(the "Committee") appointed by the Board of Directors, and if the Committee is
so appointed all references to the Board of Directors in the Plan shall mean and
relate to such Committee.
<PAGE>
(c) APPLICABILITY OF RULE 16B-3. Those provisions of the Plan which
make express reference to Rule 16b-3 shall apply only to such persons as are
required to file reports under Section 16(a) of the Exchange Act (a "Reporting
Person").
3. ELIGIBILITY.
(a) GENERAL. Options and awards may be granted or made to persons
who are, at the time of grant, key employees, officers or directors (so long as
such directors are also employees) of, or consultants or advisors to, the
Company; PROVIDED, that the class of persons to whom Incentive Stock Options may
be granted shall be limited to all employees of the Company; and PROVIDED
FURTHER that non-employee directors of the Company are not eligible to receive
options or awards of restricted stock under the Plan. A person who has been
granted an option or award may, if he or she is otherwise eligible, be granted
additional options or awards if the Board of Directors shall so determine.
(b) GRANT OF OPTIONS TO DIRECTORS AND OFFICERS. The selection of a
director or an officer (as the terms "director" and "officer" are defined for
purposes of Rule 16b-3) as a participant, the timing of the option grant or
award, the exercise price of the option or the sale price of the award and the
number of shares for which an option or award may be granted to such director or
officer shall be determined either (i) by the Board of Directors, of which all
members shall be "disinterested persons" (as hereinafter defined), or (ii) by a
committee of two or more directors having full authority to act in the matter,
of which all members shall be "disinterested persons." For the purposes of the
Plan, a director shall be deemed to be "disinterested" only if such person
qualifies as a "disinterested person" within the meaning of Rule 16b-3, as such
term is interpreted from time to time.
4. STOCK SUBJECT TO PLAN.
Subject to adjustment as provided in Section 16 below, the maximum
number of shares of Common Stock of the Company which may be issued and sold
under the Plan is 9,250,000 shares. In addition, in no event shall any eligible
recipient of an option or an award receive in any calendar year an award or
grant under the Plan for more than 500,000 shares of Common Stock. If an option
or award granted under the Plan shall expire or terminate for any reason without
having been exercised in full, the unpurchased shares subject to such option or
award shall again be available for subsequent option grants or awards under the
Plan. If shares issued upon exercise of an option or award under the Plan are
tendered to the Company in payment of the exercise price of an option or award
granted under the Plan, such tendered shares shall again be available for
subsequent option grants or awards under the Plan; PROVIDED, that in no event
shall (i) the total number of shares issued pursuant to the exercise of
Incentive Stock Options under the Plan, on a cumulative basis, exceed the
maximum number of shares authorized for issuance under the Plan exclusive of
shares made available for issuance pursuant to this sentence of (ii) the total
number of shares issued pursuant to the exercise of options by Reporting
Persons, on a cumulative basis, exceed the maximum number of shares authorized
for issuance under the Plan exclusive of shares made available for issuance
pursuant to this sentence.
5. FORMS OF OPTION AGREEMENTS.
As a condition to the grant of an option under the Plan, each
recipient of an option shall execute an option agreement in such form not
inconsistent with the Plan as may be approved by the Board of Directors. Such
option agreements may differ among recipients.
<PAGE>
6. PURCHASE PRICE UPON EXERCISE OF OPTIONS.
(a) GENERAL. The purchase price per share of stock deliverable upon
the exercise of an option shall be determined by the Board of Directors,
PROVIDED, HOWEVER, that in the case of an Incentive Stock Option, the exercise
price shall not be less than 100% of the fair market value of such stock, as
determined by the Board of Directors, at the time of grant of such option, or
less than 110% of such fair market value in the case of options described in
Section 11(b).
(b) PAYMENT OF PURCHASE PRICE. Options granted under the Plan may
provide for the payment of the exercise price by delivery of cash or a check to
the order of the Company in an amount equal to the exercise price of such
options, or, to the extent provided in the applicable option agreement, (i) by
delivery to the Company of shares of Common Stock of the Company already owned
by the optionee having a fair market value equal in amount to the exercise price
of the options being exercised, (ii) by any other means (including without
limitation by delivery of a promissory note of the optionee payable on such
terms as are specified by the Board of Directors) which the Board of Directors
determines are consistent with the purpose of the Plan and with applicable laws
and regulations (including, without limitation, the provisions of Rule 16b-3 and
Regulation T promulgated by the Federal Reserve Board) or (iii) by any
combination of such methods of payment. The fair market value of any shares of
the Company's Common Stock or other non-cash consideration which may be
delivered upon exercise of an option shall be determined in such manner as may
be prescribed by the Board of Directors.
7. OPTION PERIOD.
Each option and all rights thereunder shall expire on such date as
shall be set forth in the applicable option agreement, except that such date, in
the case of an Incentive Stock Option, shall in no case be later than ten years
after the date on which the option is granted.
8. EXERCISE OF OPTION.
Each option granted under the Plan shall be exercisable in full or
in installments at such time or times and during such period as shall be set
forth in the agreement evidencing such option, subject to the provisions of the
Plan.
9. NONTRANSFERABILITY OF OPTIONS.
Incentive Stock Options, and all options granted to Reporting
Persons, shall not be assignable or transferable by the person to whom it is
granted, either voluntarily or by operation of law, except by will or the laws
of descent and distribution, and, during the life of the optionee, shall be
exercisable only by the optionee; PROVIDED, HOWEVER, that non-statutory options
may be transferred pursuant to a qualified domestic relations order (as defined
in Rule 16b-3); and PROVIDED FURTHER, that the Board, at the time any option is
granted or thereafter, may permit the optionee to transfer the option to members
of his or her family or to trusts or other entities primarily for the benefit of
the optionee and/or members of his or her immediate family.
10. EFFECT OF TERMINATION OF EMPLOYMENT OR OTHER RELATIONSHIP.
The Board of Directors shall determine the period of time during
which an optionee may exercise an option following (i) the termination of the
optionee's employment or other
<PAGE>
relationship with the Company or (ii) the death or disability of the optionee.
Such periods shall be set forth in the agreement evidencing such option.
11. INCENTIVE STOCK OPTIONS.
Options granted under the Plan which are intended to be Incentive
Stock Options shall be subject to the following additional terms and conditions:
(a) EXPRESS DESIGNATION. All Incentive Stock Options granted under
the Plan shall, at the time of grant, be specifically designated as such in the
option agreement covering such Incentive Stock Options.
(b) 10% SHAREHOLDER. If any employee to whom an Incentive Stock
Option is to be granted under the Plan is, at the time of the grant of such
option, the owner of stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company (after taking into account the
attribution of stock ownership rules of Section 424(d) of the Code), then the
following special provisions shall be applicable to the Incentive Stock Option
granted to such individual:
(i) The purchase price per share of the Common Stock
subject to such Incentive Stock Option shall not be less than 110%
of the fair market value of one share of Common Stock at the time of
grant; and
(ii) The option exercise period shall not exceed five
years from the date of grant.
(c) DOLLAR LIMITATION. For so long as the Code shall so provide,
options granted to any employee under the Plan (and any other incentive stock
option plans of the Company) which are intended to constitute Incentive Stock
Options shall not constitute Incentive Stock Options to the extent that such
options, in the aggregate, become exercisable for the first time in any one
calendar year for the shares of Common Stock with an aggregate fair market value
(determined as of the respective date or dates of grant) of more than $100,000.
(d) TERMINATION OF EMPLOYMENT, DEATH OR DISABILITY. No Incentive
Stock Option may be exercised unless, at the time of such exercise, the optionee
is, and has been continuously since the date of grant of his or her option,
employed by the Company, except that:
(i) an Incentive Stock Option may be exercised within
the period of three months after the date the optionee ceases to be
an employee of the Company (or within such lesser period as may be
specified in the applicable option agreement), PROVIDED, that the
agreement with respect to such option may designate a longer
exercise period and that the exercise after such three-month period
shall be treated as the exercise of a non-statutory option under the
Plan.
(ii) if the optionee dies while in the employ of the
Company, or within three months after the optionee ceases to be such
an employee, the Incentive Stock Option may be exercised by the
person to whom it is transferred by will or the laws of descent and
distribution within the period of one year after the date of death
(or within such lesser period as may be specified in the applicable
option agreement); and
<PAGE>
(iii) if the optionee becomes disabled (within the
meaning of Section 2(e)(3) of the Code or any successor provision
thereto) while in the employ of the Company, the Incentive Stock
Option may be exercised within the period of one year after the date
the optionee ceases to be such an employee because of such
disability (or within such lesser period as may be specified in the
applicable option agreement).
For all purposes of the Plan and any option or award granted hereunder,
"employment" shall be defined in accordance with the provisions of Section
1.421-7(h) of the Income Tax Regulations (or any successor regulations).
Notwithstanding the foregoing provisions, no Incentive Stock Option may be
exercised after its expiration date.
12. ADDITIONAL PROVISIONS.
(a) ADDITIONAL OPTION PROVISIONS. The Board of Directors may, in its
sole discretion, include additional provisions in any option granted under the
Plan, including without limitation restrictions on transfer, repurchase rights,
commitments to pay cash bonuses, to make, arrange for or guaranty loans or to
transfer other property to optionees upon exercise of options, or such other
provisions as shall be determined by the Board of Directors; PROVIDED, that such
additional provisions shall not be inconsistent with any other term or condition
of the Plan.
(b) ACCELERATION, EXTENSION, ETC. The Board of Directors may, in its
sole discretion, (i) accelerate the date or dates on which all or any particular
option or options granted under the Plan may be exercised or (ii) extend the
dates during which all, or any particular option or options granted under the
Plan may be exercised; PROVIDED, HOWEVER, that no such extension shall be
permitted if it would cause the Plan to fail to comply with Section 422 of the
Code or with Rule 16b-3.
13. AWARDS.
A restricted stock award ("award") shall consist of the sale and
issuance by the Company of shares of Common Stock, and purchase by the recipient
of such shares, subject to the terms, conditions and restrictions described in
the document evidencing the award and in this Section 13 and elsewhere in the
Plan.
(a) EXECUTION OF RESTRICTED STOCK AWARD AGREEMENT. As a condition to
an award under the Plan, each recipient of an award shall execute an agreement
in such form, which may differ among recipients, as shall be specified by the
Board of Directors at the time of such award.
(b) PRICE. The Board of Directors shall determine the price at which
shares of Common Stock shall be sold to recipients of awards under the Plan. The
Board of Directors may, in its discretion, issue shares pursuant to awards
without the payment of any cash purchase price by the recipients or issue shares
pursuant to awards at a purchase price below the then fair market value of the
Common Stock. If a purchase price is required to be paid, it shall be paid in
cash or by check payable to the order of the Company at the time that the award
is accepted by the recipient.
(c) NUMBER OF SHARES. The award shall specify the number of shares
of Common Stock granted thereunder.
<PAGE>
(d) RESTRICTIONS ON TRANSFER. In addition to such other terms,
conditions and restrictions upon awards as shall be imposed by the Board of
Directors, all shares issued pursuant to an award shall be subject to the
following restrictions:
(i) All shares of Common Stock subject to an award
(including any shares issued pursuant to paragraph (e) of this
Section) shall be subject to certain restrictions on disposition and
obligations of resale to the Company as provided in subparagraph
(ii) below for the period specified in the document evidencing the
award, and shall not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of until such restrictions lapse.
The period during which such restrictions are applicable is referred
to as the "Restricted Period."
(ii) In the event that a recipient's employment with the
Company (or consultancy or advisory relationship, as the case may
be) is terminated within the Restricted Period, whether such
termination is voluntary or involuntary, with or without cause, or
because of the death or disability of the recipient, the Company
shall have the right and option for a period of three months
following such termination to buy for cash that number of the shares
of Common Stock purchased under the award as to which the
restrictions on transfer and the forfeiture provisions contained in
the award have not then lapsed, at a price equal to the price per
share originally paid by the recipient. If such termination occurs
within the last three months of the applicable restrictions, the
restrictions and repurchase rights of the Company shall continue to
apply until the expiration of the Company's three-month option
period.
(iii) Notwithstanding subparagraphs (i) and (ii) above,
the Board of Directors may, in its discretion, either at the time
that an award is made or at any time thereafter, waive its right to
repurchase shares of Common Stock upon the occurrence of any of the
events described in this paragraph (d) or remove or modify any part
or all of the restrictions. In addition, the Board of Directors may,
in its discretion, impose upon the recipient of an award at the time
of such award such other restrictions on any shares of Common Stock
issued pursuant to such awards at the Board of Directors may deem
advisable.
(e) ADDITIONAL SHARES. Any shares received by a recipient of an
award as a stock dividend on, or as a result of stock splits, combinations,
exchanges of shares, reorganizations, mergers, consolidations or otherwise with
respect to, shares of Common Stock received pursuant to such award shall have
the same status and shall bear the same restrictions, all on a proportionate
basis, as the shares initially purchased pursuant to such award.
(f) TRANSFERS IN BREACH OF AWARD. If any transfer of shares
purchased pursuant to an award is made or attempted contrary to the terms of the
Plan and of such award, the Board of Directors shall have the right to purchase
for the account of the Company, from the owner thereof or his or her transferee
at any time before or after the transfer, that number of the shares of Common
Stock as to which the restrictions on transfer and forfeiture provisions have
not then lapsed at the price paid for such shares by the person to whom they
were awarded under the Plan. In addition to any other legal or equitable
remedies which it may have, the Company may enforce its rights by specific
performance to the extent permitted by law. The Company may refuse for any
purpose to recognize as a shareholder of the Company any transferee who receives
any shares contrary to the provisions of the Plan and the applicable award, and
the
<PAGE>
Company may retain and/or recover all dividends on such shares which were paid
or payable subsequent to the date on which the prohibited transfer was made or
attempted.
(g) ADDITIONAL AWARD PROVISIONS. The Board of Directors may, it its
sole discretion, include additional provisions in any award granted under the
Plan, including without limitation commitments to pay cash bonuses, make,
arrange for or guarantee loans or transfer other property to recipients upon the
grant of awards, or such other provisions as shall be determined by the Board of
Directors.
14. GENERAL RESTRICTIONS.
(a) INVESTMENT REPRESENTATIONS. The Company may require any person
to whom an option or award is granted, as a condition of exercising such option
or purchasing the shares subject to the award, to give written assurances in
substance and form satisfactory to the Company to the effect that such person is
acquiring the Common Stock subject to the option or award for his or her own
account for investment and not with any present intention of selling or
otherwise distributing the same, and to such other effects as the Company deems
necessary or appropriate in order to comply with federal and applicable state
securities laws.
(b) COMPLIANCE WITH SECURITIES LAWS. Each option and award shall be
subject to the requirement that if, at any time, counsel to the Company shall
determine that the listing, registration or qualification of the shares subject
to such option or award upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental or regulatory body,
or that the disclosure of non-public information or the satisfaction of any
other condition is necessary as a condition of, or in connection with, the
issuance or purchase of shares thereunder, such option or award may not be
exercised, in whole or in part, unless such listing, registration,
qualification, consent or approval or satisfaction of such condition shall have
been effected or obtained on conditions acceptable to the Board of Directors.
Nothing herein shall be deemed to require the Company to apply for or to obtain
such listing, registration or qualification, or to satisfy such condition.
15. RIGHTS AS A SHAREHOLDER.
The holder of an option or recipient of an award shall have no
rights as a shareholder with respect to any shares covered by the option or
award (including, without limitation, any rights to receive dividends or
non-cash distributions with respect to such shares) until the date of issue of a
stock certificate to him or her for such shares. No adjustment shall be made for
dividends or other rights for which the record date is prior to the date such
stock certificate is issued.
16. ADJUSTMENT PROVISIONS FOR RECAPITALIZATION AND RELATED TRANSACTIONS.
(a) GENERAL. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar transaction, (i) the outstanding shares of
Common Stock are increased or decreased or are exchanged for a different number
or kind of shares or other securities of the Company, or (ii) additional shares
or new or different shares or other securities of the Company or other non-cash
assets are distributed with respect to such shares of Common Stock or other
securities, an appropriate and proportionate adjustment may be made in (x) the
maximum number and kind of shares reserved for issuance under the
<PAGE>
Plan, (y) the number and kind of shares or other securities subject to then
outstanding options under the Plan, and (z) the price for each share subject to
any then outstanding options under the Plan, without changing the aggregate
purchase price as to which such options remain exercisable, PROVIDED that no
adjustment shall be made pursuant to this Section 16 if such adjustment would
cause the Plan to fail to comply with Section 422 of the Code or with Rule
16b-3.
(b) BOARD AUTHORITY TO MAKE ADJUSTMENTS. Any adjustments under this
Section 16 will be made by the Board of Directors, whose determination as to
what adjustments, if any, will be made and the extent thereof will be final,
binding and conclusive. No fractional shares will be issued under the Plan on
account of any such adjustments.
17. MERGER, CONSOLIDATION, ASSET SALE, LIQUIDATION, ETC.
(a) GENERAL. In the event of a consolidation or merger or sale of
all or substantially all of the assets of the Company in which outstanding
shares of Common Stock are exchanged for securities, cash or other property of
any other corporation or business entity or in the event of a liquidation of the
Company, the Board of Directors of the Company, or the board of directors of any
corporation assuming the obligations of the Company, may, in its discretion,
take any one or more of the following actions, as to outstanding options and
awards: (i) provide that such options shall be assumed, or equivalent options
shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof), PROVIDED that any such options substituted for Incentive
Stock Options shall meet the requirements of Section 424(a) of the Code, (ii)
upon written notice to the optionees, provide that all unexercised options will
terminate immediately prior to the consummation of such transaction unless
exercised by the optionee within a specified period following the date of such
notice, (iii) in the event of a merger under the terms of which holders of the
Common Stock of the Company will receive upon consummation thereof a cash
payment for each share surrendered in the merger (the "Merger Price"), make or
provide for a cash payment to the optionee equal to the difference between (A)
the Merger Price times the number of shares of Common Stock subject to such
outstanding options (to the extent then exercisable at prices not in excess of
the Merger Price) and (B) the aggregate exercise price of all such outstanding
options in exchange for the termination of such options, and (iv) provide that
all or any outstanding options shall become exercisable in full and all
restrictions on outstanding awards shall terminate immediately prior to such
event.
(b) SUBSTITUTE OPTIONS. The Company may grant options under the Plan
in substitution for options held by employees of another corporation who become
employees of the Company, or a subsidiary of the Company, as the result of a
merger or consolidation of the employing corporation with the Company or a
subsidiary of the Company, or as a result of the acquisition by the Company, or
one of its subsidiaries, of property or stock of the employing corporation. The
Company may direct that substitute options be granted on such terms and
conditions as the Board of Directors considers appropriate in the circumstances.
18. CHANGE IN CONTROL.
Notwithstanding any other provision of the Plan and except as
otherwise provided in the relevant option or award agreement, in the event of a
"Change in Control of the Company" (as defined below), the exercise dates of all
options then outstanding shall be accelerated in full, any restrictions on
exercising outstanding options issued pursuant to the Plan prior to any given
date shall terminate and any restrictions on and rights of the Company to
repurchase shares covered
<PAGE>
by outstanding awards issued pursuant to the Plan shall terminate. For purposes
of the Plan, a "Change in Control of the Company" shall occur or deemed to have
occurred only if (i) any "person," as such term is used in Section 13(d) and
14(d) of the Exchange Act (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the Company, or
any corporation owned directly or indirectly by the shareholder of the Company
in substantially the same proportion as their ownership of stock of the
Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's then
outstanding securities; (ii) during any period of two consecutive years ending
during the term of the Plan (not including any period prior to the adoption of
the Plan), individuals who at the beginning of such period constitute the Board
of Directors of the Company, and any new director (other than a director
designated by a person who has entered into an agreement with the Company to
effect any transaction described in clause (i), (iii) or (iv) of this Section
18) whose election by the Board of Directors or nomination for election by the
Company's shareholders was approved by a vote of at least two-thirds of the
directors then still in office who were either directors at the beginning of the
period or whose election or whose nomination for election was previously so
approved (collectively, the "Disinterested Directors"), cease for any reason to
constitute a majority of the Board of Directors; (iii) the shareholders of the
Company approve a merger or consolidation of the Company with any other
corporation, other than (A) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 50% of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation or (B) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no "person" (as hereinabove defined) acquires more
than 50% of the combined voting power of the Company's then outstanding
securities; or (iv) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets which, in either
case, has not previously been approved by a majority of the Disinterested
Directors.
19. NO SPECIAL EMPLOYMENT RIGHTS.
Nothing contained in the Plan or in any option or award shall confer
upon any recipient of an award or optionee any right with respect to the
continuation of his or her employment by the Company or interfere in any way
with the right of the Company at any time to terminate such employment or to
increase or decrease the compensation of the optionee.
20. OTHER EMPLOYEE BENEFITS.
Except as to plans which by their terms include such amounts as
compensation, neither the amount of any compensation deemed to be received by an
employee as a result of the exercise of an option or the sale of shares received
upon such exercise nor the value of an award granted to an employee will
constitute compensation with respect to which any other employee benefits of
such employee are determined, including, without limitation, benefits under any
bonus, pension, profitsharing, life insurance or salary continuation plan,
except as otherwise specifically determined by the Board of Directors.
<PAGE>
21. AMENDMENT OF THE PLAN.
(a) The Board of Directors may at any time, and from time to time,
modify or amend the Plan in any respect, except that if at any time the approval
of the shareholders of the Company is required as to such modification or
amendment under Section 422 of the Code or any successor provision with respect
to Incentive Stock Options or under Rule 16b-3 with respect to options held by
or awards made to Reporting Persons, the Board of Directors may not effect such
modification or amendment without such approval.
(b) The termination or any modification or amendment of the Plan
shall not, without the consent of an optionee or recipient of an award, affect
his or her rights under an option or award previously granted to him or her.
With the consent of the optionee or recipient of the award affected, the Board
of Directors may amend outstanding option agreements or awards in a manner not
inconsistent with the Plan. The Board of Directors shall have the right to amend
or modify (i) the terms and provisions of the Plan and of any outstanding
Incentive Stock Options granted under the Plan to the extent necessary to
qualify any or all such options for such favorable federal income tax treatment
(including deferral of taxation upon exercise) as may be afforded incentive
stock options under Section 422 of the Code and (ii) the terms and provisions of
the Plan and of any outstanding option or award to the extent necessary to
ensure the qualification of the Plan under Rule 16b-3 or any successor rule.
22. WITHHOLDING.
(a) The Company shall have the right to deduct from payments of any
kind otherwise due to the optionee or recipient of an award any federal, state
or local taxes of any kind required by law to be withheld with respect to any
shares issued upon exercise of options under the Plan or the purchase of shares
subject to the award. Subject to the prior approval of the Company, which may be
withheld by the Company in its sole discretion, the optionee or recipient of an
award may elect to satisfy such obligations, in whole or in part, (i) by causing
the Company to withhold shares of Common Stock otherwise issuable pursuant to
the exercise of an option or the purchase of shares subject to an award or (ii)
by delivering to the Company shares of Common Stock already owned by the
optionee or award recipient. The shares so delivered or withheld shall have a
fair market value equal to such withholding obligation. The fair market value of
the shares used to satisfy such withholding obligation shall be determined by
the Company as of the date that the amount of tax to be withheld is to be
determined. An optionee or award recipient who has made an election pursuant to
this Section 22(a) may only satisfy his or her withholding obligation with
shares of Common Stock which are not subject to any repurchase, forfeiture,
unfulfilled vesting or other similar requirements.
(b) Notwithstanding the foregoing, in the case of a Reporting
Person, no election to use shares for the payment of withholding taxes shall be
effective unless made in compliance with any applicable requirements of Rule
16b-3.
(c) If the recipient of an award under the Plan elects, in
accordance with Section 83(b) of the Code, to recognize ordinary income in the
year of acquisition of any shares awarded under the Plan, the Company will
require at the time of such election an additional payment for withholding tax
purposes based on the difference, if any, between the purchase price of such
shares and the fair market value of such shares as of the date immediately
preceding the date of the award.
<PAGE>
23. CANCELLATION AND NEW GRANT OF OPTIONS, ETC.
The Board of Directors shall have the authority to effect, at any
time and from time to time, with the consent of the affected optionees, (i) the
cancellation of any or all outstanding options under the Plan and the grant in
substitution therefor of new options under the Plan covering the same or
different number of shares of Common Stock and having an option exercise price
per share which may be lower or higher than the exercise price per share of the
cancelled options or (ii) the amendment of the terms of any and all outstanding
options under the Plan to provide an option exercise price per share which is
higher or lower than the then current exercise price per share of such
outstanding options.
24. EFFECTIVE DATE AND DURATION OF THE PLAN.
(a) EFFECTIVE DATE. The Plan shall become effective when adopted by
the Board of Directors, but no Incentive Stock Option granted under the Plan
shall become exercisable unless and until the Plan shall have been approved by
the Company's shareholders. If such shareholder approval is not obtained within
twelve months after the date of the Board's adoption of the Plan, no options
previously granted under the Plan shall be deemed to be Incentive Stock Options
and no Incentive Stock Options shall be granted thereafter. Amendments to the
Plan not requiring shareholder approval shall become effective when adopted by
the Board of Directors; amendments requiring shareholder approval (as provided
in Section 21) shall become effective when adopted by the Board of Directors,
but no Incentive Stock Option issued after the date of such amendment shall
become exercisable (to the extent that such amendment to the Plan was required
to enable the Company to grant such Incentive Stock Option to a particular
optionee) unless and until such amendment shall have been approved by the
Company's shareholders. If such shareholder approval is not obtained within
twelve months of the Board's adoption of such amendment, any Incentive Stock
Options granted on or after the date of such amendment shall terminate to the
extent that such amendment to the Plan was required to enable the Company to
grant such option to a particular optionee. Subject to this limitation, options
and awards may be granted under the Plan at any time after the effective date
and before the date fixed for termination of the Plan.
(b) TERMINATION. Unless sooner terminated in accordance with Section
17, the Plan shall terminate, with respect to Incentive Stock Options, upon the
earlier of (i) the close of business on the day next preceding the tenth
anniversary of the date of its adoption by the Board of Directors, or (ii) the
date on which all shares available for issuance under the Plan shall have been
issued pursuant to the exercise or cancellation of options or the final vesting
of awards granted under the Plan. Unless sooner terminated in accordance with
Section 17, the Plan shall terminate with respect to options which are not
Incentive Stock Options and awards on the date specified in (ii) above. If the
date of termination is determined under (i) above, then options outstanding on
such date shall continue to have force and effect in accordance with the
provisions of the instruments evidencing such options.
<PAGE>
25. PROVISION FOR FOREIGN PARTICIPANTS.
The Board of Directors may, without amending the Plan, modify awards
or options granted to participants who are foreign nationals or employed outside
the United States to recognize differences in law, rules, regulations or customs
of such foreign jurisdictions with respect to tax, securities, currency,
employee benefit or other matters.
Adopted by the Board of Directors on
March 29, 1991
<PAGE>
EXHIBIT 5
NUTTER, McCLENNEN & FISH, LLP
ATTORNEYS AT LAW
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2699
TELEPHONE: 617-439-2000 FACSIMILE: 617-973-9748
CAPE COD OFFICE DIRECT DIAL NUMBER
HYANNIS, MASSACHUSETTS
September 16, 1999
GenRad, Inc.
7 Technology Park Drive
Westford, MA 01886
Gentlemen/Ladies:
Reference is made to the registration statement on Form S-8 (the
"Registration Statement") which GenRad, Inc. (the "Company") is filing
concurrently herewith with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, (the "Securities Act"), with respect to
500,000 shares of the Company's common stock, $1.00 par value per share (the
"Common Stock"), issuable pursuant to the Company's 1991 Equity Incentive Plan,
as amended to date (the "Incentive Plan"), and an indeterminate number of shares
of such Common Stock which may be issued or become issuable under the Plan by
reason of stock dividends, stock splits or other recapitalizations executed
hereafter.
We have acted as legal counsel for the Company in connection with
the adoption of and amendments to the Plan, are familiar with the Company's
Articles of Organization and By-laws, both as amended to date (collectively, the
"Organizational Documents"), and have examined such other documents as we have
deemed necessary for this opinion. Based upon the foregoing, we are of the
opinion that:
1. When issued and paid for in compliance with the terms of the
Plan, the Organizational Documents and the Massachusetts Business
Corporation Law, the 500,000 shares of Common Stock referred to above will be
duly and validly issued, fully paid and non-assessable; and
2. The additional shares of Common Stock which may become issuable
under the Plan by reason of stock dividends, stock splits or other
recapitalizations hereafter executed, if and when issued in accordance with the
terms of the Plan and upon compliance with the applicable provisions
of law and of the Company's Organizational Documents, will be duly and validly
issued, fully paid and non-assessable.
We understand that this opinion letter is to be used in connection
with the Registration Statement and hereby consent to the filing of this opinion
letter with and as a part of the Registration Statement and of any amendments
thereto. It is understood that this opinion letter is to be used in connection
with the offer and sale of the aforesaid shares only while the Registration
Statement, as it may be amended from time to time as contemplated by Section
10(a)(3) of the Securities Act, is effective under the Securities Act.
Very truly yours,
/s/ Nutter, McLennen & Fish, LLP
Nutter, McClennen & Fish, LLP
ARH/JCC2
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 24, 1999, except for Notes 2
and 12 which are as of April 7, 1999, which appears in GenRad, Inc.'s Annual
Report on Form 10-K for the year ended January 2, 1999. We also consent to the
incorporation by reference of our report dated January 24, 1999 relating to the
financial statement schedule, which appears in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
September 16, 1999
764451.1
