<PAGE> 1
As filed with the Securities and Exchange Commission on March 9, 1998
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
HADCO CORPORATION
(Exact name of issuer as specified in its charter)
Massachusetts 04-2393279
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
12A Manor Parkway, Salem, New Hampshire 03079
(Address of Principal Executive Offices) (Zip Code)
--------------------
HADCO CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
OF NOVEMBER 17, 1997
(Full title of the plan)
--------------------
Stephen A. Hurwitz, Esq.
TESTA, HURWITZ & THIBEAULT, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
(Name and address of agent for service of process)
617-248-7000
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
Title of Proposed Maximum Proposed
Securities Amount Offering Maximum Amount of
to be to be Price Aggregate Registration
Registered Registered Per Share(1) Offering Price(1) Fee
- ----------- ---------- ---------------- ----------------- ------------
<S> <C> <C> <C> <C>
Common Stock 500,000 shares $48.47 $24,235,000.00 $7,149.33
(Par Value $.05)
================================================================================
</TABLE>
(1) The price of $48.47 per share, which is the average of the high and low
prices reported on the Nasdaq National Market on March 3, 1998, is set
forth solely for purposes of calculating the filing fee pursuant to Rule
457(c).
================================================================================
<PAGE> 3
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in this Item 1 will be
sent or given to employees, directors or others as specified by Rule 428(b)(1).
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions to Form S-8, such documents
are not being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
Item 2. Registration Information and Employee Plan Annual Information.
The documents containing the information specified in this Item 2 will be
sent or given to employees as specified by Rule 428(b). In accordance with the
rules and regulations of the Commission and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are incorporated by
reference in this registration statement:
(a) Registrant's Annual Report on Form 10-K, File No. 0-12102, for the year
ended October 25, 1997;
(b) All other reports filed by registrant pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act") since the end
of the fiscal year covered by the annual report referred to in (a)
above; and
(c) The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's registration statement on Form.
8-A, File No. 0-12102, filed on May 4, 1984 pursuant to Section 12(g) of
the Exchange Act, and incorporating by reference the information contained
in the Registrant's registration statement on Form S-1, File No. 2-86810,
and as amended by the Registrant's Restated Articles of Organization,
filed as Exhibit 3 to the Registrant's Quarterly Report on Form 10-Q, File
No. 0-12102, for the quarter ended April 29, 1989.
<PAGE> 4
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All documents subsequenty filed with the Commission 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 securities offered herein
have been sold or which deregisters al1 securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be a part thereof from the date of filing of such. documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interest of Named Experts and Counsel.
The validity of the Common Stock offered hereby has been passed upon by
Testa, Hurwitz & Thibeault, LLP, High Street Tower, 125 High Street, Boston,
Massachusetts 02110, special counsel to the Registrant.
Item 6. Indemnification of Directors and Officers.
Reference is made to Article V, Section 2 of the By-Laws of the
Registrant and to Section 67 of the Massachusetts Business Corporation Law.
Article V, Section 2 of the Registrant's By-Laws provides:
2. Indemnificafion. Each Director, officer, employee and other agent of the
corporation, and any person who, at the request of the corporation, serves as a
director, officer employee or other agent of another organization in which the
corporation directly or indirectly owns shares or of which it is a creditor
shall be indemnified by the corporation against any cost expense (including
attorney's fees), judgment liability and/or amount paid in settlement reasonably
incurred by or imposed upon him in connection with any action, suit or
proceeding (including any proceeding before any administrative or legislative
body or agency), to which he may be made a party or otherwise involved or with
which he shall be threatened, by reason of his being, or related to his status
as, a director, officer, employee or other agent of the corporation or of any
other organization in which the corporation directly or indirectly owns shares
or of which the corporation is a creditor, which other organization he serves or
has served as director, officer, employee or other agent at the request of the
corporation (whether or not he continues to be an officer, Director, employee or
other agent of the corporation or such other organization at the time such
action, suit or proceeding is brought or threatened), unless such
indemnification is prohibited by the Business Corporation Law of the
Commonwealth of Massachusetts. The foregoing right of indemnification shall be
in addition to any rights to which any such person may otherwise be entitled and
shall inure to the benefit of the executors or
<PAGE> 5
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administrators of each such person. The corporation may pay the expenses
incurred by any such person in defending a civil or criminal action, suit or
proceeding in advance of the final disposition of such action, suit or
proceeding, upon receipt of an undertaking by such person to repay such payment
if it is determined that such person is not entitled to indemnification
hereunder. This section shall be subject to amendment or repeal only by action
of the stockholders.
Section 67 of the Massachusetts Corporation Law provides:
Indemnification of directors, officers, employees and other agents of a
corporation, and persons who serve at its request as directors, officers,
employees or other agents of another organization, or who serve at its request
in any capacity with respect to any employee benefit plan, may be provided by it
to whatever extent shall be specified in or authorized by (i) the articles of
organization or (ii) a by-law adopted by the stockholders or (iii) a vote
adopted by the holders of a majority of the shares of stock entitled to vote on
the election of directors. Except as the articles of organization or by-laws
otherwise require, indemnification of any persons referred to in the preceding
sentence who are not directors of the corporation may be provided by it to the
extent authorized by the directors. Such indemnification may include payment by
the corporation of expenses incurred in defending a civil or criminal acton or
proceeding in advance of the final disposition of such action or proceeding,
upon receipt of an undertaking by the person indemnified to repay such payment
if he shall be adjudicated to be not entitled to indemnification under this
section which undertaking may be accepted without reference to the financial
ability of such person to make repayment. Any such indemnification may be
provided although the person to be indemnified is no longer an officer, director
employee or agent of the corporation or of such other organization or no longer
serves with respect to any such employee benefit plan.
No indemnification shall be provided for any person with respect to any
matter as to which he shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the corporation or to the extent that such matter relates to service
with respect to any employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan.
The absence of any express provision for indemnification shall not limit
any right of indemnification existing independently of this section.
A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or other agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or other agent of another organization or with
respect to any employee benefit plan, against any liability incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability.
The Registrant's Restated Articles of Organization, as amended, provide:
The Corporation eliminates the personal liability of each director to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director notwithstanding any statutory provision or other law imposing
such liability; provided, that nothing in this paragraph shall 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 knowing violation of
law, (iii)under Section sixty-one or sixy-two of Chapter 156B of the
Massachusetts General Laws, or (iv) for any transaction from which the director
derived an improper personal benefit.
Item 7. Exemption From Registration Claimed.
Not Applicable.
<PAGE> 6
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Item 8. EXHIBITS
Exhibit No. Description of Exhibit
----------- ----------------------
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
10.1 Hadco Corporation Employee Stock Purchase
Plan of November 17, 1997
23.1 Consent of Testa, Hurwitz &
Thibeault, LLP (contained in
its opinion as Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (contained on page 4 of
this Registration Statement on Form S-8).
Item 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(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
Securities and Exchange Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrants annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) the is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 6, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Salem and the State of New Hampshire, on this 4th day
of March, 1998.
HADCO CORPORATION
By: /s/ Andrew E. Lietz
-------------------------------------
Andrew E. Lietz
Chief Executive Officer, President
and Director
EACH PERSON WHOSE SIGNATURE appears below this registration statement
hereby constitutes and appoints Horace H. Irvine II and Andrew E. Lietz and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead in any and all capacities (until
revoked in writing) to sign all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 of Hadco Corporation, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission or any state securities commission
or other governmental entity pertaining to such registration and sale, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
fully to all intents and purposes as he might or could do in person thereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his substitute, may lawfully do or cause to be done by virtue
hereof.
<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ Horace H. Irvine II Chairman of the Board and Director March 4, 1998
- -------------------------
Horace H. Irvine II
/s/ Andrew E. Lietz President, Chief Executive Officer March 4, 1998
- ------------------------- and Director (Principal Executive
Andrew E. Lietz Officer)
/s/ Timothy P. Losik Chief Financial Officer, Senior Vice March 4, 1998
- ------------------------- President and Treasurer (Principal
Timothy P. Losik Financial and Principal Accounting
Officer)
/s/ Lawrence Coolidge Director March 4, 1998
- -------------------------
Lawrence Coolidge
/s/ John E. Pomeroy Director March 4, 1998
- -------------------------
John E. Pomeroy
/s/ John F. Smith Director March 4, 1998
- -------------------------
John F. Smith
/s/ Patrick Sweeney Director March 4, 1998
- -------------------------
Patrick Sweeney
/s/ James C. Taylor Director March 4, 1998
- -------------------------
James C. Taylor
/s/ Oliver O. Ward Director March 4, 1998
- -------------------------
Oliver O. Ward
<PAGE> 1
Exhibit 5.1
March 5, 1998
Hadco Corporation
12A Manor Parkway
Salem, New Hampshire 03079
Re: Registration Statement on Form S-8 Relating to the Hadco Corporation
Employee Stock Purchase Plan of November 17, 1997 (the "Plan")
--------------------------------------------------------------
Dear Sir or Madam:
Reference is made to the above-captioned Registration Statement on Form S-8
(the "Registration Statement") filed by Hadco Corporation (the "Company") on or
about March 5, 1998 with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to an additional 200,000 shares of
Common Stock, $.05 par value per share, of the Company issuable pursuant to the
Plan (the "Shares").
We have examined, are familiar with, and have relied as to factual matters
solely upon, copies of the Plan, the Company's Restated Articles of
Organization, the Company's By-Laws, as amended, the corporate records of the
Company and originals or copies of such other documents, certificates and
proceedings as we have deemed necessary for the purpose of rendering this
opinion.
We are members of the Bar of the Commonwealth of Massachusetts and are not
expert in, and express no opinion regarding, the laws of any jurisdiction other
than the Commonwealth of Massachusetts, the General Corporation Law of the State
of Delaware and the United States of America.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued in accordance with the terms of the Plan, will
be validly issued, full paid and nonassessable.
We consent to the filing of this opinion as EXHIBIT 5.1 to the Registration
Statement.
Very truly yours,
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE> 1
EXHIBIT 10.1
HADCO CORPORATION
EMPLOYEE STOCK PURCHASE PLAN OF NOVEMBER 17, 1997
1. Purpose.
(a) The purpose of the Employee Stock Purchase Plan (the "Plan") is to
provide a means by which employees of Hadco Corporation (the "Company"), and its
Affiliates, as defined in subparagraph 1(b), which are designated as provided in
subparagraph 2(b), may be given an opportunity to purchase stock of the Company.
(b) The word "Affiliate" as used in the Plan means any parent corporation
or subsidiary corporation of the Company, as those terms are defined in Sections
424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended
(the "Code").
(c) The Company, by means of the Plan, seeks to retain the services of its
employees, to secure and retain the services of new employees, and to provide
incentives for such persons to exert maximum efforts for the success of the
Company.
(d) The Company intends that the rights to purchase stock of the Company
granted under the Plan be considered options issued under an "employee stock
purchase plan" as that term is defined in Section 423(b) of the Code.
2. Administration.
(a) The Plan shall be administered by the Board of Directors (the "Board")
of the Company unless and until the Board delegates administration to an
Administrator, as provided in subparagraph 2(c). Whether or not the Board has
delegated administration, the Board shall have the final power to determine all
questions of policy and expediency that may arise in the administration of the
Plan.
(b) The Board shall have the power, subject to, and within the limitations
of, the express provisions of the Plan:
(i) To determine when and how rights to purchase stock of the Company shall
be granted and the provisions of each Offering of such rights (which need not be
identical).
(ii) To designate from time to time which Affiliates of the Company shall
be eligible to participate in the Plan.
(iii) To construe and interpret the Plan and rights granted under it, and
to establish, amend and revoke rules and regulations for its administration. The
Board, in the exercise of this power, may correct any defect, omission or
inconsistency in the Plan, in a manner and to the extent it shall deem necessary
or expedient to make the Plan fully effective.
(iv) To amend the Plan as provided in paragraph 13.
(v) Generally, to exercise such powers and to perform such acts as the
Board deems necessary or expedient to promote the best interests of the Company
and its Affiliates and to carry out the intent that the Plan be treated as an
"employee stock purchase plan" within the meaning of Section 423 of the Code.
(c) The Board may delegate administration of the Plan to a person or entity
to be determined from time to time by the Board (the "Administrator"). If
administration is delegated to an Administrator, the Administrator shall have,
in connection with the administration of the Plan, the powers theretofore
possessed by the Board, subject, however, to such resolutions, not inconsistent
with the provisions of the Plan, as may be adopted from time to time by the
Board. The Board may terminate the Administrator at any time and revest in the
Board the administration of the Plan.
A-1
<PAGE> 2
3. Shares Subject to the Plan.
(a) Subject to the provisions of paragraph 12 relating to adjustments upon
changes in stock, the stock that may be sold pursuant to rights granted under
the Plan shall not exceed in the aggregate 500,000 shares of the Company's
common stock (the "Common Stock"). If any right granted under the Plan shall for
any reason terminate without having been exercised, the Common Stock not
purchased under such right shall again become available for the Plan.
(b) The stock subject to the Plan may be new shares or treasury shares.
4. Grant of Rights; Offering.
(a) The Board or the Administrator may from time to time grant or provide
for the grant of rights to purchase Common Stock of the Company under the Plan
to eligible employees (an "Offering") on a date or dates the ("Offering
Date(s)") selected by the Board or the Administrator. The Board or the
Administrator shall establish a date during an Offering (the "Purchase Date") on
which rights granted under the Plan shall be exercised and purchases of Common
Stock carried out in accordance with such Offering. Each Offering shall be in
such form and shall contain such terms and conditions as the Board or the
Administrator shall deem appropriate, which shall comply with the requirements
of Section 423(b)(5) of the Code that all employees granted rights to purchase
stock under the Plan shall have the same rights and privileges. The terms and
conditions of an Offering shall be incorporated by reference into the Plan and
treated as part of the Plan. The provisions of separate Offerings need not be
identical, but each Offering shall include (through incorporation of the
provisions of this Plan by reference in the memorandum documenting the Offering
or otherwise) the period during which the Offering shall be effective, which
period shall not exceed twenty-seven (27) months beginning with the Offering
Date, and the substance of the provisions contained in paragraphs 5 through 8,
inclusive.
(b) Unless otherwise specified by the Board or the Administrator, there
shall be two Offerings under the Plan during each calendar year, the Offering
Dates and Purchase Dates, respectively, of each Offering shall be (i) January 1
and June 30, and (ii) July 1 and December 31.
5. Eligibility.
(a)Rights may be granted only to employees of the Company or, as the Board
or the Administrator may designate as provided in subparagraph 2(b), to
employees of any Affiliate of the Company. Except as provided in subparagraph
5(b), an employee of the Company or any Affiliate shall not be eligible to be
granted rights under the Plan, unless, on the Offering Date, such employee's
customary employment with the Company or such Affiliate is for at least twenty
(20) hours per week. An employee who becomes eligible to participate in the Plan
after any date on which rights are granted shall be granted rights on the first
date of the next Offering on which rights are granted to eligible employees
under the Plan. In addition, unless otherwise determined by the Board or the
Administrator and set forth in the terms of the applicable Offering, an employee
shall not be eligible to be granted rights under the Plan, unless he or she has
enrolled in the Plan by delivering to the Company, on a form provided by the
Company, a participation agreement, such participation agreement shall only be
effective for participation in an Offering if the participation agreement is
delivered to the Company no later than two (2) weeks before the Offering or
within such other time specified by the Board or the Administrator. Once a
participation agreement is executed and delivered to the Company, it shall be
operative (for the immediately succeeding Offering and all subsequent Offerings
for which the employee is eligible) unless affirmatively withdrawn by the
employee as provided in subparagraph 7(b) hereof.
(b) No employee shall be eligible for the grant of any rights under the
Plan if, immediately after any such rights are granted, such employee owns stock
possessing five percent (5%) or more of the total combined voting power or value
of all classes of stock of the Company or of any Affiliate. For purposes of this
subparagraph 5 (b), the rules of Section 424(d) of the Code shall apply in
determining the stock ownership of any employee, and stock which such employee
may purchase under all outstanding rights and options shall be treated as stock
owned by such employee.
A-2
<PAGE> 3
(c) An eligible employee may be granted rights under the Plan only if such
rights, together with any other rights granted under "employee stock purchase
plans" of the Company and any Affiliates, as specified by Section 423(b)(8) of
the Code, do not permit such employee's rights to purchase stock of the Company
or any Affiliate to accrue at a rate which exceeds twenty-five thousand dollars
($25,000) of fair market value of such stock (determined at the time such rights
are granted) for each calendar year in which such rights are outstanding at any
time.
(d) Officers of the Company and any designated Affiliate shall be eligible
to participate in Offerings under the Plan, provided, however, that the Board
may provide in an Offering that certain employees who are highly compensated
employees within the meaning of Section 423(b)(4)(D) of the Code shall not be
eligible to participate.
6. Rights; Purchase Price.
(a) On each Offering Date, each eligible employee, pursuant to an Offering
made under the Plan, shall be granted the right to purchase up to the number of
shares of Common Stock of the Company purchasable with a percentage not
exceeding ten percent (10%) of such employee's Earnings (as defined in
subparagraph 7(a)) during the calendar year, provided however, that the maximum
number of shares which may be purchased by any eligible employee during any
Offering shall not exceed 500 shares (subject to adjustment pursuant to Section
12).
(b) In connection with each Offering made under the Plan, the Board or the
Administrator may specify a maximum aggregate number of shares which may be
purchased by all eligible employees pursuant to such Offering. If the aggregate
purchase of shares upon exercise of rights granted under the Offering would
exceed any such maximum aggregate number, the Board or the Administrator shall
make a pro rata allocation of the shares available in as nearly a uniform manner
as shall be practicable and as it shall deem to be equitable.
(c) The purchase price of stock acquired pursuant to rights granted under
the Plan shall be not less than the lesser of:
(i) an amount equal to eighty-five percent (85%) of the fair market
value of the stock on the Offering Date; or
(ii) an amount equal to eighty-five percent (85%) of the fair market
value of the stock on the Purchase Date.
7. Participation; Withdrawal; Termination.
(a) An eligible employee may become a participant in the Plan pursuant to
an Offering by delivering a participation agreement to the Company on or before
the date which is two (2) weeks before the Offering Date, in accordance with
paragraph 5(a). Each such agreement shall authorize payroll deductions of not
less than one percent (1%) but not more than ten percent (10%) of such
employee's Earnings during the calendar year. "Earnings" is defined as an
employee's regular salary or wages (including amounts thereof elected to be
deferred by the employee, that would otherwise have been paid, under any
arrangement established by the Company intended to comply with Section 401(k),
Section 402(e)(3), Section 125, Section 402(h), or Section 403(b) of the Code,
and also including any deferrals under a non-qualified deferred compensation
plan or arrangement established by the Company), which shall include bonuses,
commissions, overtime pay, incentive pay, profit sharing, and other remuneration
paid directly to the employee, but excluding the cost of employee benefits paid
for by the Company or an Affiliate, education or tuition reimbursements, imputed
income arising under any group insurance or benefit program, traveling expenses,
business and moving expense reimbursements, income received in connection with
stock options, contributions made by the Company or an Affiliate under any
employee benefit plan, and similar items of compensation, as determined by the
Board or the Administrator. The payroll deductions made for each participant
shall be credited to an account for such participant under the Plan and shall be
deposited with the general funds of the Company. A participant may, after the
beginning of any Offering, reduce to zero such payroll deductions, but may not
make other changes in the payroll deductions during the Offering period.
A-3
<PAGE> 4
(b) At any time during an Offering, a participant may terminate his or her
payroll deductions under the Plan and withdraw from the Offering by delivering
to the Company a notice of withdrawal in such form as the Company provides. Such
withdrawal may be elected at any time prior to the end of the Offering except as
provided by the Board or the Administrator in the Offering. Upon such withdrawal
from the Offering by a participant, the Company shall distribute to such
participant all of his or her accumulated payroll deductions (reduced to the
extent, if any, such deductions have been used to acquire stock for the
participant) under the Offering, without interest, and such participant's
interest in that Offering shall be automatically terminated. A participant's
withdrawal from an Offering will have no effect upon such participant's
eligibility to participate in any other Offerings under the Plan, but such
participant will be required to deliver a new participation agreement in order
to participate in subsequent Offerings under the Plan.
(c) Rights granted pursuant to any Offering under the Plan shall terminate
immediately upon cessation of any participating employee's employment with the
Company and any designated Affiliate, for any reason, and the Company shall
distribute to such terminated employee all of his of her accumulated payroll
deductions (reduced to the extent, if any, such deductions have been used to
acquire stock for the terminated employee), under the Offering, without
interest.
(d) Rights granted under the Plan shall not be transferable by a
participant otherwise than by will or the laws of descent and distribution, or
by beneficiary designation as provided in paragraph 14, and otherwise during his
or her lifetime, shall be exercisable only by the person to whom such rights are
granted.
8. Exercise.
(a) On each Purchase Date specified therefor in the relevant Offering, each
participant's accumulated payroll deductions (without any increase for interest)
will be applied to the purchase of whole shares of stock of the Company, up to
the maximum number of shares permitted pursuant to the terms of the Plan and the
applicable Offering, at the purchase price specified in the Offering. No
fractional shares shall be issued upon the exercise of rights granted under the
Plan. The amount, if any, of accumulated payroll deductions remaining in each
participant's account after the purchase of shares which is less than the amount
required to purchase one share of stock on the final Purchase Date of an
Offering shall be held in each such participant's account for the purchase of
shares under the next Offering under the Plan, unless such participant withdraws
from such next Offering, as provided in subparagraph 7(b), or is no longer
eligible to be granted rights under the Plan, as provided in paragraph 5, in
which case such amount shall be distributed to the participant after such final
Purchase Date, without interest.
(b) No rights granted under the Plan may be exercised to any extent unless
the shares to be issued upon such exercise under the Plan (including rights
granted thereunder) are covered by an effective registration statement pursuant
to the Securities Act of 1933, as amended (the "Securities Act") and the Plan is
in material compliance with all applicable state, foreign and other securities
and other laws applicable to the Plan. If on a Purchase Date in any Offering
hereunder the Plan is not so registered or in such compliance, no rights granted
under the Plan or any Offering shall be exercised on such Purchase Date, and the
Purchase Date shall be delayed until the Plan is subject to such an effective
registration statement and such compliance, except that the Purchase Date shall
not be delayed more than twelve (12) months and the Purchase Date shall in no
event be more than twenty-seven (27) months from the Offering Date. If on the
Purchase Date of any Offering hereunder, as delayed to the maximum extent
permissible, the Plan is not registered and in such compliance, no rights
granted under the Plan or any Offering shall be exercised and all payroll
deductions accumulated during the Offering (reduced to the extent, if any, such
deductions have been used to acquire stock) shall be distributed to the
participants, without interest.
9. Covenants of the Company.
(a) During the terms of the rights granted under the Plan, the Company
shall keep available at all times the number of shares of stock required to
satisfy such rights.
(b) The Company shall seek to obtain from each federal, state, foreign or
other regulatory commission or agency having jurisdiction over the Plan such
authority as may be required to issue and sell shares of stock
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upon exercise of the rights granted under the Plan. If, after reasonable
efforts, the Company is unable to obtain from any such regulatory commission or
agency the authority which counsel for the Company deems necessary for the
lawful issuance and sale of stock under the Plan, the Company shall be relieved
from any liability for failure to issue and sell stock upon exercise of such
rights unless and until such authority is obtained.
10. Use of Proceeds From Stock.
Proceeds from the sale of stock pursuant to rights granted under the Plan
shall constitute general funds of the Company.
11. Rights as a Shareholder
A participant shall not be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares subject to rights granted
under the Plan unless and until the participant's shareholdings acquired upon
exercise of rights under the Plan are recorded in the books of the Company.
12. Adjustments Upon Changes in Stock.
(a) If any change is made in the stock subject to the Plan, or subject to
any rights granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or other transaction not involving the
receipt of consideration by the Company), the Plan and outstanding rights will
be appropriately adjusted in the class(es) and maximum number of shares subject
to the Plan and the class(es) and number of shares and price per share of stock
subject to outstanding rights. Such adjustments shall be made by the Board or
Administrator, the determination of which shall be final, binding and
conclusive. (The conversion of any convertible securities of the Company shall
not be treated as a "transaction not involving the receipt of consideration by
the Company.")
(b) In the event of: (1) a dissolution or liquidation of the Company; (2) a
merger or consolidation in which the Company is not the surviving corporation;
(3) a reverse merger in which the Company is the surviving corporation but the
shares of the Company's Common Stock outstanding immediately preceding the
merger are converted by virtue of the merger into other property, whether in the
form of securities, cash or otherwise; or (4) any other capital reorganization
in which more than fifty percent (50%) of the shares of the Company entitled to
vote are exchanged, then, as determined by the Board in its sole discretion (i)
any surviving corporation may assume outstanding rights or substitute similar
rights for those under the Plan, (ii) such rights may continue in full force and
effect, or (iii) participants' accumulated payroll deductions may be used to
purchase Common Stock immediately prior to the transaction described above and
the participants' rights under the ongoing Offering terminated.
13. Amendment of the Plan.
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in paragraph 12 relating to adjustments upon changes
in stock, no amendment shall be effective unless approved by the shareholders of
the Company within twelve (12) months before or after the adoption of the
amendment, where the amendment will:
(i) Increase the number of shares reserved for rights under the Plan;
(ii) Modify the provisions as to eligibility for participation in the
Plan (to the extent such modification requires shareholder approval in
order for the Plan to obtain employee stock purchase plan treatment under
Section 423 of the Code or to comply with the requirements of Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended ("Rule
16b-3")); or
(iii) Modify the Plan in any other way if such modification requires
shareholder approval in order for the Plan to obtain employee stock
purchase plan treatment under Section 423 of the Code or to comply with the
requirements of Rule 16b-3.
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It is expressly contemplated that the Board may amend the Plan in any
respect the Board deems necessary or advisable to provide eligible employees
with the maximum benefits provided or to be provided under the provisions of the
Code and the regulations promulgated thereunder relating to employee stock
purchase plans and/or to bring the Plan and/or rights granted under it into
compliance therewith.
(b) Rights and obligations under any rights granted before amendment of the
Plan shall not be impaired by any amendment of the Plan, except with the consent
of the person to whom such rights were granted, or except as necessary to comply
with any laws or governmental regulation, or except as necessary to ensure that
the Plan and/or rights granted under the Plan comply with the requirements of
Section 423 of the Code.
14. Designation of Beneficiary.
(a) A participant may file a written designation of a beneficiary who is to
receive any shares and cash, if any, from the participant's account under the
Plan in the event of such participant's death subsequent to the end of an
Offering but prior to delivery to the participant of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who is
to receive any cash from the participant's account under the Plan in the event
of such participant's death during an Offering.
(b) Such designation of beneficiary may be changed by the participant at
any time by written notice. In the event of the death of a participant and in
the absence of a beneficiary validly designated under the Plan who is living at
the time of such participant's death, the Company shall deliver such shares
and/or cash to the executor or administrator of the estate of the participant,
or if no such executor or administrator has been appointed (to the knowledge of
the Company), the Company, in its sole discretion, may deliver such shares
and/or cash to the spouse or to any one or more dependents or relatives of the
participant, or if no spouse, dependent or relative is known to the Company,
then to such other person as the Company may designate.
15. Termination or Suspension of the Plan.
(a) The Board may suspend or terminate the Plan at any time. Unless sooner
terminated, the Plan shall terminate at the time that all of the shares subject
to the Plan's share reserve, as increased and/or adjusted from time to time,
have been issued under the terms of the Plan. No rights may be granted under the
Plan while the Plan is suspended or after it is terminated.
(b) Rights and obligations under any rights granted while the Plan is in
effect shall not be altered or impaired by suspension or termination of the
Plan, except as expressly provided in the Plan or with the consent of the person
to whom such rights were granted, or except as necessary to comply with any laws
or governmental regulation, or except as necessary to ensure that the Plan
and/or rights granted under the Plan comply with the requirements of Section 423
of the Code.
16. Withholding of Additional Income Taxes.
(a) Upon the purchase of any shares pursuant to this Plan, the Company
shall withhold taxes in respect of any amounts that constitute compensation
includable in gross income. The Board or the Administrator, in its discretion,
may condition the purchase of any shares during an Offering on the participant's
making satisfactory arrangement for such withholding. Such arrangement may
include payment by the participant in cash or check of the amount of withholding
taxes or, authorizing the Company to withhold funds from compensation otherwise
payable to the participant.
(b) The Company may also make appropriate arrangements for satisfying
withholding obligations in the event of a disqualifying disposition of the
Common Stock by a participant. Such arrangements may include conditioning the
disposition of the Common Stock by the participant upon the payment to the
Company of an amount sufficient to satisfy such withholding requirements.
17. Notice to Company of Disqualifying Disposition.
If a participant transfers Common Stock acquired under the Plan within two
years after the first business day of the Offering in which such Common Stock
was acquired, then the participant shall immediately notify the Company in
writing of such transfer. Each participant shall provide any information about
such a transfer
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as may be requested by the Company or an Affiliate in order to assist it in
complying with tax laws. Such dispositions generally are treated as
"disqualifying dispositions" under Sections 421 and 424 of the Code, which have
certain tax consequences to participants and to the Company and its Affiliates.
18. Effective Date of Plan.
The Plan shall become effective upon the adoption of enabling resolutions
by the Company's Board of Directors (the "Effective Date"), but no rights
granted under the Plan shall be exercised unless and until the Plan has been
approved by the shareholders of the Company within 12 months before or after the
date the Plan is adopted by the Board or the Administrator, which date may be
prior to the Effective Date.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our reports
(and to all references to our Firm) included in or made a part of this
registration statement.
/S/ Arthur Andersen LLP
--------------------------
ARTHUR ANDERSEN LLP
Boston, Massachusetts
March 5, 1998
