<PAGE> 1
As filed with the Securities and Exchange Commission on May 21, 1999
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HADCO CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Massachusetts
(State or Other Jurisdiction of Incorporation or Organization)
04-2393279
(I.R.S. Employer Identification No.)
12A Manor Parkway, Salem, New Hampshire 03079
(Address of Principal Executive Offices)
HADCO CORPORATION
1998 STOCK PLAN
(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)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Title Of Securities To Amount To Be Maximum Offering Aggregate Amount of
Be Registered Registered Price Per Share Offering Price Registration Fee
---------------------- ------------- ---------------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock 9,085 $30.31(1) $ 275,366(1) $ 76.56
(Par Value $.05)
Common Stock 990,915 $33.75(2) $33,443,381(2) $9,297.26
(Par Value $.05)
</TABLE>
(1) Such shares were issued as stock awards pursuant to the Hadco
Corporation 1998 Stock Plan at a fair market value of $30.31. Pursuant
to Rule 457(h), the aggregate offering price and the fee have been
computed based on such fair market value.
(2) The price of $33.75 per share, which is the average of the high and low
prices reported on the Nasdaq National Market on May 17, 1999, is set
forth solely for purposes of calculating the filing fee pursuant to
Rule 457(c) and has been used only for those shares without a fixed
exercise or purchase price.
<PAGE> 2
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. Registrant 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 31, 1998;
(b) Registrant's Quarterly Report on Form 10-Q, File No. 0-12102, for the
quarter ended January 30, 1999; 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 Securities Exchange Act of 1934 (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 changed by the Registrant's Restated Articles of Organization, filed
as Exhibit 3.1 to the Registrant's Registration Statement No. 333-21977
on Form S-3, as amended by the Amendment to the Restated
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<PAGE> 3
Articles of Organization of Registrant, filed as Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q, File No. 0-12102, for the
quarter ended January 31, 1998.
All documents subsequently 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 all securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be a part thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Reference is made to Article V, Section 2 of the By-Laws of the
Registrant, to Section 67 of the Massachusetts Business Corporation Law and the
Registrant's Restated Articles of Organization, as amended.
Article V, Section 2 of the Registrant's By-Laws provides:
"2. Indemnification. 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
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<PAGE> 4
to the benefit of the executors or 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 Chapter 156B 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 action or
proceeding in advance of the final disposition of such action or proceeding,
upon receipt of an undertaking by the person indemnified to repay such payment
if he shall be adjudicated to be not entitled to indemnification under this
section which undertaking may be accepted without reference to the financial
ability of such person to make repayment. Any such indemnification may be
provided although the person to be indemnified is no longer an officer, director
employee or agent of the corporation or of such other organization or no longer
serves with respect to any such employee benefit plan.
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."
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<PAGE> 5
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 sixty-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.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
4.1 Restated Articles of Organization of
Registrant (filed as Exhibit 3.1 to the
Registration Statement No. 333-21977 on
Form S-3 and incorporated herein by reference)
4.2 By-Laws of Registrant, as amended (filed as
Exhibit 3.2 to the Registration Statement
No. 333-21977 on Form S-3 and incorporated
herein by reference)
4.3 Amendment to Restated Articles of Organization
of Registrant dated March 4, 1998 (filed as
Exhibit 3.1 to Quarterly Report on Form 10-Q,
File No. 0-12102, for the quarter ended
January 31, 1998 and incorporated herein by
reference)
4.4 Hadco Corporation 1998 Stock Plan
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault,
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<PAGE> 6
LLP (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included as part of the signature
page of this Registration Statement)
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act 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.
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<PAGE> 7
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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) 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 foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933, as amended, and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933, as amended, and will be governed by the final
adjudication of such issue.
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 21st
day of May, 1999.
HADCO CORPORATION
By: /s/ Andrew E. Lietz
--------------------------
Andrew E. Lietz
President, Chief Executive
Officer and Director
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<PAGE> 8
POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE appears below hereby constitutes and
appoints Andrew E. Lietz and F. Gordon Bitter 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.
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<PAGE> 9
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 TITLE DATE
/s/ Horace H. Irvine II Chairman of the Board and May 21, 1999
- ----------------------------- Director
(Horace H. Irvine II)
/s/ Andrew E. Lietz President, Chief Executive May 21, 1999
- ----------------------------- Officer and Director
(Andrew E. Lietz) (Principal Executive Officer)
/s/ F. Gordon Bitter Senior Vice President, Chief May 21, 1999
- ----------------------------- Financial Officer and
(F. Gordon Bitter) Treasurer (Principal Financial
Officer and Principal
Accounting Officer)
/s/ Oliver O. Ward Director May 21, 1999
- -----------------------------
(Oliver O. Ward)
/s/ Patrick Sweeney Director May 21, 1999
- -----------------------------
(Patrick Sweeney)
/s/ John F. Smith Director May 21, 1999
- -----------------------------
(John F. Smith)
/s/ John E. Pomeroy Director May 21, 1999
- -----------------------------
(John E. Pomeroy)
/s/ James C. Taylor Director May 21, 1999
- -----------------------------
(James C. Taylor)
/s/ Mauro J. Walker Director May 21, 1999
- -----------------------------
(Mauro J. Walker)
/s/ Gilbert M. Roddy, Jr. Director May 21, 1999
- -----------------------------
(Gilbert M. Roddy, Jr.)
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<PAGE> 10
INDEX TO EXHIBITS
Exhibit No. Description Page
4.1 Restated Articles of Organization of Registrant
(filed as Exhibit 3.1 to the Registration Statement
No. 333-21977 on Form S-3 and incorporated herein by
reference)
4.2 By-Laws of Registrant, as amended (filed as
Exhibit 3.2 to the Registration Statement
No. 333-21977 on Form S-3 and incorporated herein by
reference)
4.3 Amendment to Restated Articles of Organization of
Registrant dated March 4, 1998 (filed as Exhibit 3.1
to Quarterly Report on Form 10-Q, File No. 0-12102,
for the quarter ended January 31, 1998 and
incorporated herein by reference)
4.4 Hadco Corporation 1998 Stock Plan
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (included
in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included as part of the signature
page to this Registration Statement)
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<PAGE> 1
EXHIBIT 4.4
HADCO CORPORATION
1998 STOCK PLAN, AS AMENDED AND RESTATED
1. PURPOSE. The purpose of the Hadco Corporation 1998 Stock Plan (the
"Plan") is to encourage valuable employees of Hadco Corporation (the "Company")
and of any present or future parent or subsidiary of the Company (collectively,
"Related Corporations") and other individuals who render services to the Company
or a Related Corporation, by providing opportunities to participate in the
ownership of the Company and its future growth through (a) the grant of options
("Non-Qualified Options") which do not qualify as "incentive stock options"
("ISOs") under Section 422(b) of the Internal Revenue Code of 1986, as amended
(the "Code"); (b) awards of stock in the Company ("Awards"); and (c)
opportunities to make direct purchases of stock in the Company ("Purchases").
Non-Qualified Options are referred to hereafter individually as an "Option" and
collectively as "Options." Options, Awards and authorizations to make Purchases
are referred to hereafter collectively as "Stock Rights." As used herein, the
terms "parent" and "subsidiary" mean "parent corporation" and "subsidiary
corporation," respectively, as those terms are defined in Section 424 of the
Code.
2. ADMINISTRATION OF THE PLAN.
A. BOARD OR COMMITTEE ADMINISTRATION. The Plan shall be
administered by the Board of Directors of the Company (the "Board") or, subject
to paragraph 2(D) relating to compliance with Section 162(m) of the Code, by a
committee appointed by the Board (the "Committee"). Hereinafter, all references
in this Plan to the "Committee" shall mean the Board if no Committee has been
appointed. Subject to ratification of the grant or authorization of each Stock
Right by the Board (if so required by applicable state law), and subject to the
terms of the Plan, the Committee shall have the authority to (i) determine to
whom (from among the class of individuals eligible under paragraph 3 to receive
Stock Rights) Options, Awards and authorizations to make Purchases shall be
granted (each such individual who receives a Stock Right hereunder being
referred to as a "Participant"); (ii) determine the time or times at which
Options, Awards and authorizations to make Purchases shall be granted; (iii)
determine the purchase price of shares subject to each Option or Purchase, which
price shall not be less than the minimum price specified in paragraph 6; (iv)
determine (subject to paragraph 7) the time or times when each Option or
Purchase shall become exercisable and the duration of the exercise period; (v)
extend the period during which outstanding Options or Purchases may be exercised
or made; (vi) determine whether restrictions including, without limitation,
repurchase options or forfeiture provisions are to be imposed on shares subject
to Options, Awards and Purchases and the nature of such restrictions, if any;
and (vii) interpret the Plan and any Stock Right and prescribe, amend and
rescind rules and regulations relating to the Plan. If the Committee determines
to issue an Option, it shall take whatever actions it deems necessary, under
Section 422 of the Code and the regulations promulgated thereunder, to ensure
that such Option is not treated as an Incentive Stock Option. The interpretation
and construction by the Committee of any provisions of the Plan or of any Stock
Right granted under the Plan shall be final unless otherwise determined by the
Board and shall be binding on all interested parties. The Committee may from
time to time adopt and amend such rules and regulations for carrying out the
Plan as it may deem advisable. No member of the Board or the Committee shall be
liable for any action or determination relating to the Plan or any Stock Right
granted under it.
B. COMMITTEE ACTIONS. The Committee may select one of its
members as its chairman, and shall hold meetings at such times and places as it
may determine. A majority of the Committee shall constitute a quorum and acts of
a majority of the members of the Committee at a meeting
<PAGE> 2
at which a quorum is present, or acts reduced to or approved in writing by all
the members of the Committee (if consistent with applicable state law), shall be
the valid acts of the Committee. From time to time the Board may increase the
size of the Committee and appoint additional members thereof, remove members
(with or without cause) and appoint new members in substitution therefor, fill
vacancies however caused, or remove all members of the Committee and thereafter
directly administer the Plan.
C. GRANT OF STOCK RIGHTS TO BOARD MEMBERS. Stock Rights may be
granted to members of the Board. All grants of Stock Rights to members of the
Board shall in all respects be made in accordance with the provisions of this
Plan applicable to other eligible persons. Members of the Board who either (i)
are eligible to receive grants of Stock Rights pursuant to the Plan or (ii) have
been granted Stock Rights may vote on any matters affecting the administration
of the Plan or the grant of any Stock Rights pursuant to the Plan, except that
no such member shall act upon the granting to himself or herself of Stock
Rights, but any such member may be counted in determining the existence of a
quorum at any meeting of the Board during which action is taken with respect to
the granting to such member of Stock Rights.
D. PERFORMANCE-BASED COMPENSATION. The Board, in its
discretion, may take such action as may be necessary to ensure that Stock Rights
granted under the Plan qualify as "qualified performance-based compensation"
within the meaning of Section 162(m) of the Code and applicable regulations
promulgated thereunder ("Performance-Based Compensation"). Such action may
include, in the Board's discretion, each or both of the following: (i) if the
Board determines that Stock Rights granted under the Plan generally shall
constitute Performance-Based Compensation, the Plan shall be administered, to
the extent required for such Stock Rights to constitute Performance-Based
Compensation, by a Committee consisting solely of two or more "outside
directors" (as defined in applicable regulations promulgated under Section
162(m) of the Code), and (ii) Stock Rights granted under the Plan may be subject
to such other terms and conditions as are necessary for compensation recognized
in connection with the exercise or disposition of such Stock Rights or the
disposition of Common Stock acquired pursuant to such Stock Rights, to
constitute Performance-Based Compensation.
3. ELIGIBLE EMPLOYEES AND OTHERS. Options, Awards and authorizations to
make Purchases may be granted to any employee, officer or director (whether or
not also an employee), consultant or advisor of the Company or any Related
Corporation. The Committee may take into consideration a recipient's individual
circumstances in determining whether to grant a Stock Right. The granting of any
Stock Right to any individual shall neither entitle that individual to, nor
disqualify such individual from, participation in any other grant of Stock
Rights.
4. STOCK. The stock subject to Stock Rights shall be authorized but
unissued shares of Common Stock of the Company, par value $0.05 per share (the
"Common Stock"), or shares of Common Stock reacquired by the Company in any
manner. The aggregate number of shares which may be issued pursuant to the Plan
is 1,000,000, subject to adjustment as provided in paragraph 12. If any Stock
Right granted under the Plan shall expire or terminate for any reason without
having been exercised in full or shall cease for any reason to be exercisable in
whole or in part or if any shares of Common Stock issued pursuant to a Stock
Right shall be forfeited for any reason, the unpurchased or forfeited shares of
Common Stock subject to such Stock Right shall again be available for grants of
Stock Rights under the Plan.
No Participant may be granted Stock Rights to acquire, in the
aggregate, more than 500,000 shares of Common Stock, subject to adjustment as
provided in paragraph 12G, under the Plan during any fiscal year of the Company.
If any Stock Right granted under the Plan shall expire or terminate for any
reason without having been exercised in full or shall cease for any reason to be
exercisable in whole or in part or if any shares of Common Stock issued pursuant
to a Stock Right shall be forfeited for any reason, the shares subject to such
Stock Right shall be included in the determination of the aggregate number of
shares of Common Stock deemed to have been granted to such Participant under the
Plan.
<PAGE> 3
5. GRANTING OF STOCK RIGHTS. Stock Rights may be granted under the Plan
at any time on or after September 15, 1998 and prior to September 14, 2008. The
date of grant of a Stock Right under the Plan will be the date specified by the
Committee at the time it grants the Stock Right; provided, however, that such
date shall not be prior to the date on which the Committee acts to approve the
grant.
6. MINIMUM PRICE.
A. PRICE FOR OPTIONS, AWARDS AND PURCHASES. The exercise price
per share specified in the agreement relating to each Option granted, and the
purchase price per share of stock granted in any Award or authorized as a
Purchase, under the Plan may not be less than the fair market value of the
Common Stock of the Company on the date of grant.
B. DETERMINATION OF FAIR MARKET VALUE. If the Company's Common
Stock is actively traded in an established over-the-counter market, the fair
market value of such Common Stock shall be the mean between the bid and ask
prices quoted in such over-the-counter market at the close of the market on the
trading day nearest preceding the date of grant. If such Common Stock is listed
on any national exchange, or traded in the Nasdaq National Market, the mean
between the high and low sale prices quoted on such exchange or market on the
trading day nearest preceding the date of the granting of the Stock Right shall
be taken as such fair market value. If the Common Stock is not publicly traded,
the fair market value shall be determined from time to time by the Board of
Directors.
7. STOCK RIGHT DURATION. Subject to earlier termination as provided in
any Individual Stock Right Agreement, each Stock Right shall expire on the date
specified by the Committee, but no more than ten years from the date of grant.
8. EXERCISE OF OPTION. Subject to the provisions of paragraphs 9
through 11, each Option granted under the Plan shall be exercisable as follows:
A. VESTING. The Option shall either be fully exercisable on
the date of grant or shall become exercisable thereafter in such installments as
the Committee may specify.
B. FULL VESTING OF INSTALLMENTS. Once an installment becomes
exercisable, it shall remain exercisable until expiration or termination of the
Option, unless otherwise specified by the Committee.
C. PARTIAL EXERCISE. Each Option or installment may be
exercised at any time or from time to time, in whole or in part, for a minimum
of one hundred (100) shares up to the total number of shares with respect to
which it is then exercisable.
D. ACCELERATION OF VESTING. The Committee shall have the right
to accelerate the date that any installment of any Option becomes exercisable.
9. TERMINATION OF STOCK RIGHTS. A Stock Right shall be subject to such
termination provisions as specified in any Individual Stock Right Agreement but
in no event later than the specified expiration date of the Stock Right.
10. TRANSFERABILITY. Any Option or right to make a Purchase granted
pursuant to this Plan shall not be assignable or transferable except by will or
by the laws of descent and distribution or pursuant to a valid domestic
relations order. During the lifetime of the Participant, any Stock Right shall
be exercisable only by the Participant to whom the Stock Right is granted; any
Stock Right granted hereunder shall be null and void and without effect upon the
bankruptcy of the Participant to whom the Stock Right is granted, or upon any
attempted assignment or transfer, including without limitation, any purported
assignment, whether voluntary or by operation of law, sale, pledge,
hypothecation or other disposition, attachment, trustee process or similar
process, whether legal or equitable, upon such Stock Right.
<PAGE> 4
11. TERMS AND CONDITIONS OF STOCK RIGHTS. Stock Rights shall be
evidenced by written instruments (which need not be identical) in such forms as
the Committee may from time to time approve. Such instruments shall conform to
the terms and conditions set forth in this Plan and may contain such other
provisions as the Committee deems advisable which are not inconsistent with the
Plan, including restrictions applicable to shares of Common Stock issuable upon
exercise of Stock Rights or grant of Awards. The Committee may from time to time
confer authority and responsibility on one or more of its own members and/or one
or more officers of the Company to execute and deliver such instruments. The
proper officers of the Company are authorized and directed to take any and all
action necessary or advisable from time to time to carry out the terms of such
instruments.
12. ADJUSTMENTS. Upon the occurrence of any of the following events, a
Participant's rights with respect to Stock Rights granted to such Participant
hereunder shall be adjusted as hereinafter provided, unless otherwise
specifically provided in the Individual Stock Right Agreement between the
Participant and the Company.
A. STOCK DIVIDENDS AND STOCK SPLITS. If the shares of Common
Stock shall be subdivided or combined into a greater or smaller number of shares
or if the Company shall issue any shares of Common Stock as a stock dividend on
its outstanding Common Stock, the number of shares of Common Stock deliverable
upon the exercise of Stock Rights shall be appropriately increased or decreased
proportionately, and appropriate adjustments shall be made in the purchase price
per share to reflect such subdivision, combination or stock dividend.
B. CONSOLIDATIONS OR MERGERS. Upon any sale of all or
substantially all of the assets of the Company, or upon any merger,
consolidation or tender offer in respect of which the stockholders holding all
of the Company's outstanding voting securities immediately prior to the
consummation thereof hold less than 50% of all of the Company's outstanding
voting securities immediately after such consummation (each of the foregoing
sale, merger, consolidation or tender offer hereinafter called an
"Acquisition"), then: (i) the date upon which all then outstanding Stock Rights
granted under this Plan become fully vested and exercisable shall be
automatically accelerated to occur immediately prior to the consummation of such
Acquisition; provided, however, that any such then outstanding Stock Rights
which are not thereupon exercised in full immediately prior to the consummation
of such Acquisition shall thereupon terminate, and (ii) the date(s) upon which
all then outstanding repurchase, forfeiture or other similar restrictions, if
any, (but not any securities law restrictions which may apply to such stock or
its disposition) on shares of stock subject to Stock Rights or granted pursuant
to an Award shall lapse shall be automatically accelerated to occur immediately
prior to the consummation of such Acquisition.
C. RECAPITALIZATION OR REORGANIZATION. In the event of a
recapitalization or reorganization of the Company (other than a transaction
described in subparagraph B above) pursuant to which securities of the Company
or of another corporation are issued with respect to the outstanding shares of
Common Stock, a Participant upon exercising a Stock Right shall be entitled to
receive for the purchase price paid upon such exercise the securities as
determined under the terms of the recapitalization or reorganization he or she
would have then received if he or she had exercised such Stock Right prior to
such recapitalization or reorganization.
D. DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, each Stock Right will terminate
immediately prior to the consummation of such proposed action or at such other
time and subject to such other conditions as shall be determined by the
Committee.
E. ISSUANCES OF SECURITIES. Except as expressly provided
herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares
<PAGE> 5
subject to Stock Rights. No adjustments shall be made for dividends
paid in cash or in property other than securities of the Company.
F. FRACTIONAL SHARES. No fractional shares shall be issued
under the Plan and the Participant shall receive from the Company cash in lieu
of such fractional shares.
G. ADJUSTMENTS. Upon the happening of any of the events
described in subparagraphs A or C above, the class and aggregate number of
shares set forth in paragraph 4 hereof that are subject to Stock Rights which
previously have been or subsequently may be granted under the Plan as well as
the per-Participant grant limit set forth in paragraph 4 shall also be
appropriately adjusted to reflect the events described in such subparagraphs.
The Committee or the Successor Board shall determine the specific adjustments to
be made under this paragraph 12 and, subject to paragraph 2, its determination
shall be conclusive and shall be binding on all interested parties.
13. EXERCISE OF STOCK RIGHT. Subject to the terms and conditions of
this Plan and any Individual Stock Right Agreement, a Stock Right granted
hereunder shall be exercisable in whole or in part by giving written notice to
the Company by mail or in person addressed to Treasurer, Hadco Corporation, 12A
Manor Parkway, Salem, New Hampshire 03079, stating the number of shares with
respect to which the Stock Right is being exercised, accompanied by payment in
full for such shares, which payment may be made (a) in United States dollars in
cash or by check, or (b) at the discretion of the Committee, through delivery of
shares of Common Stock having a fair market value equal as of the date of the
exercise to the cash exercise price of the Stock Right, or (c) at the discretion
of the Committee and consistent with applicable law, through the delivery of an
assignment to the Company of a sufficient amount of the proceeds from the sale
of the Common Stock acquired upon exercise of the Stock Right and an
authorization to the broker or selling agent to pay that amount to the Company,
which sale shall be at the Participant's direction at the time of exercise, or
(d) at the discretion of the Committee, by any combination of (a), (b) and (c)
above. There shall be no such exercise at any one time as to fewer than one
hundred (100) shares or all of the shares then purchasable by the person or
persons exercising the Stock Right, if fewer than one hundred (100) shares. A
copy of such notice shall be provided to Hamilton & Dahmen, LLP, 73 Tremont
Street, Boston, Massachusetts 02108, or to such other counsel as the Company may
hereafter designate, and to the Bank of Boston, Shareholder Services Division,
Post Office Box 644, Boston, Massachusetts 02102, or to such other Stock
Transfer Agent as the Company may hereafter designate. The Transfer Agent shall,
on behalf of the Company, prepare a certificate or certificates representing
such shares acquired pursuant to exercise of the Stock Right, shall register the
Participant as the owner of such shares on the books of the Company and shall
cause the fully executed certificate(s) representing such shares to be delivered
to the Participant as soon as practicable after payment of the purchase price in
full. The holder of a Stock Right shall not have any rights as a shareholder
with respect to the shares covered by the Stock Right, except to the extent that
one or more certificates for such shares shall be issued upon the due exercise
of the Stock Right or the grant of an Award.
14. RESTRICTIONS ON ISSUANCE OF SHARES. Notwithstanding the provisions
of Section 13 of the Plan, the Company shall have no obligation to issue or
deliver any certificate or certificates upon exercise of a Stock Right or the
grant of an Award or to remove restrictions from shares previously delivered
under the Plan until the following applicable conditions shall be satisfied in
the judgment of the Company:
(i) the shares with respect to which the Stock Right has been
exercised or the grant of an Award has been made are at the time of the
issue of such shares effectively registered under applicable Federal
and State securities acts as now in force or hereafter amended;
(ii) Counsel for the Company shall have given an opinion that
such shares are exempt from registration under Federal and State
securities acts as now in force or hereafter amended;
<PAGE> 6
(iii) all conditions of the Stock Right have been met or
removed to the satisfaction of the Company; or
(iv) the Participant has executed and delivered to the Company
such representations or agreements as the Company may consider
appropriate to satisfy the requirements of any applicable laws, rules
or regulations;
and until the Company has complied with all applicable laws and regulations,
including without limitation all regulations required by any stock exchange upon
which the Company's outstanding Common Stock is then listed. The Company may
place appropriate legends on shares of stock subject to Stock Rights in
accordance with applicable securities law rules and regulations and to evidence
any restrictions placed on such stock.
The Company shall use its best efforts to bring about compliance with
the above conditions within a reasonable time, except that the Company shall be
under no obligation to cause a registration statement or a post-effective
amendment to any registration statement to be prepared at its expense solely for
the purpose of covering the issue of shares in respect of which any Stock Right
may be exercised or Award made.
Any stock purchased or granted under the Plan prior to shareholder
approval of the Plan, in addition to any restrictions set forth in the
Individual Stock Right Agreement, may not be sold, assigned, mortgaged,
transferred, pledged, hypothecated or encumbered in any way and will be held in
escrow by the Company until shareholder approval for the Plan is obtained, and
if such shareholder approval is not obtained by June 12, 1999, the purchase or
grant of such stock, any Stock Right granted hereunder and this Plan will be
automatically rescinded and the purchase price returned to purchasing
Participants without interest.
15. REPRESENTATIONS OF PARTICIPANT. The Company may require the
Participant to deliver such written warranties and representations upon exercise
of the Stock Right or the grant of an Award that the Company deems reasonable or
necessary, including without limitation a representation that a purchase of
shares under the Stock Right is made for investment and not with a view to their
distribution (as that term is used in the Securities Act of 1933).
16. MODIFICATION OF OUTSTANDING STOCK RIGHTS. The Committee or the
Board of Directors may accelerate the exercisability of any outstanding Stock
Right, may accelerate the lapse of, or terminate, some or all restrictions on
Common Stock subject to a Stock Right, and may authorize changes to any
outstanding Stock Right with the consent of the Participant (including, without
limitation, to extend the term of a Stock Right upon termination of employment
to a date not later than ten (10) years from the original grant date) when and
subject to such conditions as are deemed to be in the best interests of the
Company and in accordance with the purposes of the Plan.
17. APPROVAL OF STOCKHOLDERS. The Plan shall be subject to approval by
the affirmative vote of stockholders holding at least a majority of the voting
stock of the Company voting in person or by proxy at or by June 12, 1999, and
the Plan shall take effect as of the date of adoption immediately upon such
approval.
18. TERM, TERMINATION AND AMENDMENT OF PLAN. The Plan shall expire at
the end of the business day on September 14, 2008 (except as to Stock Rights
outstanding on that date). The Board may at any time terminate the Plan or make
such modification or amendment thereof as it deems advisable; provided, however,
that except as provided in Section 12 the Board may not, without approval of the
stockholders of the Company obtained in the manner stated in Section 17 (i)
increase the maximum number of shares for which Stock Rights may be granted
under the Plan, or (ii) extend the expiration date of the Plan. Termination or
any modification or amendment of the Plan shall not, without consent of a
Participant, alter or impair his or her rights under a Stock Right previously
granted to him or her.
<PAGE> 7
19. APPLICATION OF FUNDS. The proceeds received by the Company from the
sale of shares pursuant to Stock Rights authorized under the Plan shall be used
for general corporate purposes.
20. WITHHOLDING OF ADDITIONAL INCOME TAXES. Upon any exercise of any
Stock Right or the vesting or transfer of restricted stock or securities
acquired on the exercise of a Stock Right hereunder, or the making of a
distribution or other payment with respect to such stock or securities, or the
purchase or award of any stock, the Company may withhold taxes in respect of
amounts that constitute compensation includable in gross income. The Committee
in its discretion may condition (i) the exercise or grant of a Stock Right, or
(ii) the vesting or transferability of restricted stock or securities acquired
by the grant of or the exercise of a Stock Right, on the Participant's making
satisfactory arrangement for such withholding. Such arrangement may include
payment by the Participant in cash or by check of the amount of the withholding
taxes or, at the discretion of the Committee, by the Participant's delivery of
previously held shares of Common Stock or the withholding of shares from the
shares of Common Stock otherwise deliverable upon exercise or grant of a Stock
Right, with such shares in each case having an aggregate fair market value (as
determined by the Board) equal to the amount of such withholding taxes. The
Company may, to the extent permitted by law, deduct any such tax obligations
from any payment of any kind otherwise due to the Participant.
21. NO RIGHT TO EMPLOYMENT OR OTHER STATUS. Nothing in the Plan nor any
grant of any Stock Right shall be deemed or construed to give any Participant
the right to be retained in employment or the service of the Company or any
Related Corporation for any period of time. The Company expressly reserves the
right at any time to dismiss or otherwise terminate its relationship with a
Participant free from any liability or claim under the Plan or any Stock Right.
22. GOVERNMENTAL REGULATION. The Company's obligation to sell and
deliver shares of the Common Stock under this Plan is subject to the approval of
any governmental authority required in connection with the authorization,
issuance or sale of such shares.
23. GOVERNING LAW. The validity and construction of the Plan and the
instruments evidencing Stock Rights shall be governed by the laws of the
Commonwealth of Massachusetts, or the laws of any jurisdiction in which the
Company or its successors in interest may then be organized.
24. REPRICING. Without the prior approval of the Company's stockholders
obtained in the manner stated in Section 17, Options issued under the Plan will
not be repriced, replaced or regranted through cancellation or by lowering the
Option exercise price of a previously granted Option.
<PAGE> 1
EXHIBIT 5.1
May 21, 1999
Hadco Corporation
12A Manor Parkway
Salem, New Hampshire 03079
Re: Registration Statement on Form S-8 Relating to the
Hadco Corporation 1998 Stock Plan (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
the date hereof with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, relating to an aggregate of 1,000,000 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, as amended, 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, fully 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 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated November 20, 1998
included in Hadco Corporation's Form 10-K for the year ended October 31, 1998
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Boston, Massachusetts
May 17, 1999
