<PAGE>
As filed with the Securities and Exchange Commission on June 17, 1994
Registration No. 33-_______________________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-----------------------
MEASUREX CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 94-1658697
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
ONE RESULTS WAY, CUPERTINO, CA 95014
(Address of principal executive office) (Zip Code)
------------------------
MEASUREX CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
-----------------------
DAVID A. BOSSEN
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
MEASUREX CORPORATION
ONE RESULTS WAY, CUPERTINO, CA 95014
(Name and address of agent for service)
(408) 255-1500
(Telephone number, including area code, of agent for service)
------------------------
This Registration Statement shall become effective immediately upon
filing with the Securities and Exchange Commission, and sales of the
registered securities will begin as soon as reasonably practicable after
such effective date.
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered per Share Price Fee
- -----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value 225,000(1) $18.50(2) $4,162,500.00(2) $1,435.34
(Employee Stock
Purchase Plan)
- -----------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the Employee Stock Purchase Plan by
reason of any stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration which results in
an increase in the number of outstanding shares of Common Stock of Measurex
Corporation.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the high and low selling
prices per share of Common Stock of Measurex Corporation on June 13, 1994 as
reported by the New York Stock Exchange.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The contents of the Registration Statement on Form S-8 (File No. 2-67736)
and all Amendments thereto filed by Measurex Corporation (the "Registrant") with
the Securities and Exchange Commission (the "SEC") are hereby incorporated
herein by reference.
Item 3. Incorporation of Documents by Reference
---------------------------------------
The Registrant hereby incorporates by reference into this Registration
Statement the following documents previously filed with the SEC:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended November 28, 1993;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended February 27, 1994; and
(c) The Registrant's Registration Statement No. 0-108770 on Form 8-A
filed with the SEC on December 20, 1988, as amended by Form 8 filed with the SEC
on July 6, 1990, in which there is described the terms, rights and provisions
applicable to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act"), after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not Applicable.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers
-----------------------------------------
The Registrant's Restated Certificate of Incorporation provides that
no director or member of the Executive Committee of the Registrant will be
personally liable to the Registrant or any of its stockholders for monetary
damages arising from the director's or member's breach of fiduciary duty.
However, this does not apply with respect to any action in which such person
would be liable under Section 174 of Title 8 of the Delaware General Corporation
Law, as amended (the "Delaware Law"), nor does it apply with respect to any
liability in which such person (i) breached his duty of loyalty to the
Registrant; (ii) did not act in good faith or, in failing to act, did not act in
good faith; (iii) acted in a manner involving intentional misconduct or a
knowing violation of law or, in failing to act, shall have acted in a manner
involving intentional misconduct or a knowing violation of law or (iv) derived
an improper personal benefit.
Pursuant to the provisions of Section 145 of the Delaware Law every
corporation has power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or agent
of the Registrant or of any corporation, partnership, joint venture, trust or
other enterprise for which he is or was serving in such capacity at the request
of the Registrant, against any and all expenses, judgments, fines and amounts
paid in settlement and reasonably incurred by him in connection with such
action, suit or proceeding. The power to indemnify applies only if such person
acted in good faith and in a manner he reasonably believed to be in the best
interests, or not opposed to the best interests, of the corporation, and with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful.
The power to indemnify applies to actions brought by or in the right
of the corporation as well, but only to the extent of defense and settlement
expenses and not to any satisfaction of a judgment or settlement of the claim
itself, and with the further limitation that in such actions no indemnification
shall be made in the event of any adjudication of negligence or misconduct
unless the court, in its discretion, feels that in the light of all the
circumstances indemnification should apply.
To the extent any of the persons referred to in the two immediately
preceding paragraphs is successful in the defense of the actions referred to
therein, such person is entitled pursuant to Section 145 of the Delaware Law to
indemnification as described above. Section 145 of the Delaware Law also grants
power to advance litigation expenses upon receipt of any undertaking to repay
such advances in the event no right to indemnification is subsequently shown. A
corporation may also obtain insurance at its expense to protect anyone who might
be indemnified, or has a right to insist on indemnification, under the statute.
The Registrant has entered into indemnification agreements with
certain of its current officers and all of its current directors which provide
for indemnification to the fullest extent permitted by the Delaware Law,
including Section 145 thereof. Such agreements have been approved by the
Registrant's stockholders. The Registrant's stockholders also approved the use
of similar agreements which may be entered into from time to time with future
directors and/or future officers of the Registrant.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
II-2
<PAGE>
Item 8. Exhibits
--------
<TABLE>
<CAPTION>
Exhibit Number Exhibit
-------------- -------
<C> <S>
5 Opinion and Consent of Brobeck, Phleger & Harrison.
23.1 Consent of Independent Accountants - Coopers & Lybrand.
23.2 Consent of Brobeck, Phleger & Harrison is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Employee Stock Purchase Plan.
</TABLE>
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, as amended (the "1933 Act"),
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement
and (iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
--------
however, that clauses (1)(i) and (1)(ii) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining any liability
under the 1933 Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof and (3) to remove from registration by means of a post-
effective amendment any of the securities being registered which remain unsold
at the termination of the Registrant's Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into this 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
1933 Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been informed that, in the opinion of the SEC, such indemnification is
against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cupertino, State of California, on this 31st day
of May, 1994.
MEASUREX CORPORATION
By /s/ David A. Bossen
-------------------
David A. Bossen
Chairman of the Board and Chief Executive
Officer
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Measurex Corporation, a
Delaware corporation, do hereby constitute and appoint David A. Bossen and Carl
A. Thomsen and each of them, the lawful attorneys and agents, with full power
and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and any one of them, determine may
be necessary or advisable or required to enable said corporation to comply with
the Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both pre-
effective and post-effective, and supplements to this Registration Statement,
and to any and all instruments or documents filed as part of or in conjunction
with this Registration Statement or amendments or supplements thereof, and each
of the undersigned hereby ratifies and confirms all that said attorneys and
agents, or any of them, shall do or cause to be done by virtue hereof. This
Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signatures Title Date
- ---------- ----- ----
/s/ David A. Bossen Chairman of the Board and Chief May 31, 1994
- ------------------- Executive Officer (Principal
(David A. Bossen) Executive Officer)
II-4
<PAGE>
Signatures Title Date
- ---------- ----- ----
/s/John C. Gingerich President and Chief Operating May 31, 1994
- -------------------- Officer
(John C. Gingerich)
/s/ Carl A. Thomsen Senior Vice President and Chief
- ------------------- Financial Officer
(Carl A. Thomsen) (Principal Financial May 31, 1994
and Accounting Officer)
/s/ John W. Larson Director May 31, 1994
- ------------------
(John W. Larson)
/s/ J. W. McKittrick Director May 31, 1994
- --------------------
(J. W. McKittrick)
/s/ Graham Tyson Director May 31, 1994
- ----------------
(Graham Tyson)
/s/ Paul Bancroft III Director May 31, 1994
- ---------------------
(Paul Bancroft III)
/s/ Dwight C. Baum Director May 31, 1994
- ------------------
(Dwight C. Baum)
/s/ Orion L. Hoch Director May 31, 1994
- -----------------
(Orion L. Hoch)
/s/ Jeffery T. Grade Director May 31, 1994
- --------------------
(Jeffery T. Grade)
II-5
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
MEASUREX CORPORATION
<PAGE>
EXHIBIT INDEX
-------------
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------- ------- ----
5 Opinion and Consent of Brobeck, Phleger & Harrison.
23.1 Consent of Independent Accountants -
Coopers & Lybrand.
23.2 Consent of Brobeck, Phleger & Harrison is
contained in Exhibit 5.
24 Power of Attorney. Reference is made to
page II-4 of this Registration Statement.
99.1 Employee Stock Purchase Plan.
<PAGE>
EXHIBIT 5
Opinion and Consent of Brobeck, Phleger & Harrison
<PAGE>
[LETTERHEAD OF BROBECK, PHLEGER & HARRISON]
June 16, 1994
Measurex Corporation
One Results Way
Cupertino, CA 95014
RE:MEASUREX CORPORATION -- REGISTRATION STATEMENT FOR OFFERING OF
---------------
225,000 SHARES OF COMMON STOCK
------------------------------
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of 225,000 shares of
the Common Stock of Measurex Corporation (the "Company") under the Company's
Employee Stock Purchase Plan. We advise you that, in our opinion, when such
shares have been issued and sold pursuant to the applicable provisions of the
Employee Stock Purchase Plan and in accordance with the Registration Statement,
such shares will be validly issued, fully paid and non-assessable shares of the
Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ BROBECK, PHLEGER & HARRISON
-------------------------------
BROBECK, PHLEGER & HARRISON
<PAGE>
EXHIBIT 23.1
Consent of Independent Accountants - Coopers & Lybrand
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Measurex Corporation on Form S-8 of our report dated December 15, 1993, on
our audits of the consolidated financial statements and financial statement
schedules of Measurex Corporation as of November 28, 1993 and November 29, 1992,
and for each of the three fiscal years in the period ended November
28, 1993, which report is included in the Annual Report on Form 10-K.
/s/ COOPERS & LYBRAND
---------------------
COOPERS & LYBRAND
San Jose, California
June 16, 1993
2
<PAGE>
EXHIBIT 23.2
Consent of Brobeck, Phleger & Harrison is contained in Exhibit 5
<PAGE>
EXHIBIT 24
Power of Attorney. Reference is made to page II-4 of this Registration
Statement.
<PAGE>
EXHIBIT 99.1
EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
MEASUREX CORPORATION
--------------------
EMPLOYEE STOCK PURCHASE PLAN
(AMENDED AND RESTATED EFFECTIVE DECEMBER 14, 1993)
--------------------------------------------------
I. PURPOSE
-------
The Measurex Corporation Employee Stock Purchase Plan (the "Plan") is
intended to provide eligible employees of Measurex Corporation (the "Company")
and such of its wholly-owned United States and Canadian subsidiaries
("Participating Subsidiaries") as the Board of Directors of the Company shall
from time to time designate, with an opportunity to acquire a proprietary
interest in the Company through their participation in a plan which will allow
them to purchase common stock of the Company at a discount through regular
payroll deductions.
II. ADMINISTRATION
--------------
The Plan shall be administered by the Company's Board of Directors
(the "Board") or by a committee (the "Committee") comprised of at least three
Board members appointed from time to time by, and serving at the pleasure of,
the Board. If the Committee is appointed, no member of the Committee while
serving as such shall be, or during the one-year period prior to such service
shall have been, eligible to participate in the Plan or any other stock option,
stock appreciation, stock bonus or other stock plan of the Company or its
affiliates (including Participating Subsidiaries), except to the extent such
member may become entitled to one or more periodic option grants pursuant to the
automatic grant provisions of the Company's 1993 Stock Option Plan (or the
predecessor 1981 Stock Option Plan).
The Plan Administrator (whether the Board or the Committee) shall have
full authority to administer the Plan, including authority to interpret and
construe any provision of the Plan and to adopt such rules and regulations for
administering the Plan as it may deem necessary. Decisions of the Plan
Administrator shall be final and binding on all parties who have an interest in
the Plan.
III. PURCHASE PERIODS
----------------
The Plan shall be implemented in a series of Purchase Periods over the
term of the Plan. Each Purchase Period shall have a commencement date
determined by the Plan Administrator and shall be of a duration of three months.
The commencement date of the first Purchase Period shall be June 1, 1980,
provided (i) the Plan shall have been
<PAGE>
approved prior to such date by the Company's shareholders and (ii) the Company
shall have complied with all applicable requirements of the Securities Act of
1933 (as amended), all applicable listing requirements of any securities
exchange on which the Company's common stock is listed and all other applicable
requirements established by law or regulation. No two Purchase Periods shall
run concurrently, and no Purchase Period shall have a commencement date later
than the first day of the second fiscal quarter of fiscal year 2000.
IV. ELIGIBILITY AND PARTICIPATION
-----------------------------
(a) Every employee of the Company or a Participating Subsidiary is
eligible to participate in the Plan during a Purchase Period if on the
commencement date of such Purchase Period the employee:
(i) has completed at least six months of service with the Company or
a Participating Subsidiary;
(ii) is not employed on a basis which customarily requires less than
20 hours of service per week or less than five months of service per calendar
year; and
(iii) is on the payroll of either the Company or any Participating
Subsidiary.
(b) In order to participate in the Plan for a particular Purchase
Period, an eligible employee must complete the enrollment forms prescribed by
the Plan Administrator (including a purchase right agreement and a payroll
deduction authorization) and file such forms, no later than 15 days prior to the
commencement date of the Purchase Period, with the Plan Administrator or its
designate.
(c) The payroll deduction authorized by a participating employee may
be at any rate from 2% through 10% (in a multiple of 1%) of the salary or wages
(including bonuses, commissions, overtime pay and any salary deferral
contributions made to the qualified Code Section 401(k) program in effect under
the Company's Savings and Deferred Profit-Sharing Plan) paid to such employee
during the relevant Purchase Period. The deduction rate so authorized shall
continue in effect for the entire Purchase Period and each subsequent Purchase
Period, unless the employee shall, not less than 15 days prior to the
commencement of a Purchase Period, elect a different rate by filing the
appropriate form with the Plan Administrator or its designate. The new rate
shall become effective as of the Purchase Period commencing immediately after
the filing of such form. Payroll deductions, however, will automatically cease
if the employee's right to purchase is terminated in accordance with Section
VI(d) or (e).
2
<PAGE>
V. STOCK SUBJECT TO PLAN
---------------------
(a) The stock which is purchasable by employees under the Plan shall
be the Company's authorized but unissued shares of common stock, $0.01 par value
("Stock"), or shares of such Stock reacquired by the Company and held as
Treasury shares, including shares purchased on the open market. The total
number of shares which may be sold to employees under the Plan shall not exceed
1,225,000/*/ shares (subject to adjustment under subparagraph (b) below).
(b) In the event any change is made to the Stock purchasable under the
Plan (whether by reason of merger, consolidation, reorganization,
recapitalization, stock dividend, stock split, combination of shares, exchange
of shares or other change in corporate structure effected without the Company's
receipt of consideration), then unless such change is the result of a
transaction described in Section VI(j), appropriate adjustments shall be made by
the Plan Administrator to (I) the class and maximum number of shares purchasable
under the Plan and (II) the class and number of shares and price per share of
Stock subject to outstanding purchase rights held by employees under the Plan.
VI. PURCHASE RIGHTS
---------------
An eligible employee who participates in the Plan for a particular
Purchase Period shall have the right to purchase Stock upon the terms and
conditions set forth below and shall execute an agreement embodying such terms
and conditions and such other provisions, not inconsistent with the Plan, as the
Plan Administrator may deem advisable.
(a) Purchase Price. The Purchase Price per share for each purchase
--------------
period commencing on or after April 25, 1990 shall be the lesser of (i) 85% of
------
the fair market value per share of Stock on the date on which the purchase right
is granted or (ii) 85% of the fair market value per share of Stock on the date
on which the right is exercised. For purposes of the preceding sentence, the
fair market value per share of Stock on any relevant date shall be the mean of
the highest and lowest selling prices per share, as officially quoted on the New
York Stock Exchange--Composite Tape, on such date, or, if there are no selling
- -------------
/*/ The number of shares has been adjusted to reflect (i) the two-for-one
stock split effected on January 3, 1984, (ii) the two-for-one stock split
effected on February 20, 1987 and (iii) the 225,000-share increase authorized by
the Board on December 14, 1993, subject to shareholder approval at the 1994
Annual Meeting. From and after December 31, 1993, the maximum number of shares
which may be issued under the Plan shall not exceed 322,797 shares, subject to
adjustment in the event of certain changes in corporate structure.
3
<PAGE>
prices quoted for such date, then on the immediately preceding date for which
such quotations exist.
(b) Number of Shares. The number of shares purchasable by a
----------------
participant for any particular Purchase Period shall be the number of whole
shares obtained by dividing the balance credited to the participant's individual
account under the Plan as of the last day of the Purchase Period by the Purchase
Price in effect for such Purchase Period.
(c) Payment. Payment for Stock under the Plan shall be effected by
-------
means of the participant's authorized payroll deductions, which shall begin with
the first pay period which ends coincident with or immediately following the
commencement date of the relevant Purchase Period and shall terminate with the
pay period ending with or immediately prior to the last day of the Purchase
Period. The amounts so deducted shall be credited to the Plan account
maintained on the participant's behalf on the Company's books, and to the extent
it is practicable to deposit the deducted amounts in an interest-bearing account
maintained for Plan participants with a responsible bank or other financial
institution, the amounts credited to participant's account shall accrue interest
at the same rate as the interest-bearing account. Should it not be practicable
to establish or maintain such an interest-bearing account, then the deducted
amounts may be commingled with the general assets of the Company and used for
its general corporate purposes without the payment of interest.
(d) Termination of Purchase Right. A participant may, at any time
-----------------------------
prior to the last 15 days of the Purchase Period, terminate his/her purchase
right by filing the prescribed notification form with the Plan Administrator or
its designate. Any amounts deducted from the participant's pay or otherwise
collected from him/her by reason of his/her participation in the Plan for such
Purchase Period shall be refunded, and no further amounts will be collected from
the participant (by payroll deduction or otherwise) during the remainder of the
Purchase Period. The termination of such right shall be irrevocable with respect
to the Purchase Period to which it pertains and shall require the participant to
re-enroll in the Plan (by making a timely filing of a new purchase right
agreement and payroll deduction authorization) if he/she wishes to resume
participation in a subsequent Purchase Period.
(e) Termination of Employment. If a participant ceases to be an
-------------------------
Employee for any reason (including death or retirement) during a Purchase
Period, his/her purchase right shall immediately terminate and all payroll
deductions previously collected from the participant for that Purchase Period
shall be refunded to the participant or the personal representative of his/her
estate. For all purposes under the Plan, an individual shall be deemed to be an
Employee for so long as such individual remains in the employ of the Company or
any Participating Subsidiary.
4
<PAGE>
(f) Exercise. Each purchase right other than a right which has been
--------
previously terminated in accordance with Section VI(d) or (e) shall be exercised
automatically on the last business day of the Purchase Period. The exercise of
the purchase right shall be effected by applying the amount credited to each
participant's account on the exercise date to the purchase of whole shares of
Stock at the Purchase Price. Any amount remaining in the participant's account
after such application shall be held for the purchase of Stock in the next
Purchase Period.
(g) Proration of Purchase Rights. If the total number of shares of
----------------------------
Stock for which purchase rights are to be exercised on any particular date
exceeds the number of shares then available for issuance under the Plan, the
Plan Administrator shall make a pro-rata allocation of the available shares on a
uniform and non-discriminatory basis, and any payroll deductions not applied to
the purchase of Stock shall be refunded to the participants.
(h) Rights as Shareholder. A participant shall have no rights as a
---------------------
shareholder with respect to shares covered by any purchase right granted him/her
under the Plan until such right is exercised. No adjustments shall be made for
dividends, distributions or other rights for which the record date is prior to
the date of exercise.
As soon as practicable after the date of exercise, the participant
shall be issued a stock certificate for the number of shares for which his/her
purchase right has been exercised. Such certificate may, upon the participant's
request, be issued in the names of the participant and his/her spouse as
community property or as joint tenants with right of survivorship.
(i) Assignability. No purchase right granted under the Plan shall be
-------------
assignable or transferable by a participant, and the purchase right shall be
exercisable only by the participant.
(j) Merger or Liquidation of Company. In the event the Company or its
--------------------------------
shareholders enter into an agreement to dispose of all or substantially all of
the assets or outstanding capital stock of the Company by means of a sale,
merger or reorganization in which the Company will not be the surviving
corporation or in the event the Company is liquidated, then the Plan
Administrator may, in connection with the consummation of such sale, merger,
reorganization or liquidation, cancel each outstanding purchase right and refund
all sums previously collected from participants during the Purchase Period or,
in its discretion, provide each participant with an election to exercise one of
the two alternatives below:
A. receive a cash refund of all sums previously collected from
the participant during the Purchase Period; or
5
<PAGE>
B. have his/her outstanding purchase right exercised immediately
prior to the consummation of such sale, merger, reorganization or
liquidation and thereby have the balance of his/her account applied to the
purchase of whole shares of Stock at the Purchase Price. The balance of
the account not so applied shall be promptly refunded.
(k) Interest. Interest shall be paid on any sums refunded to a
--------
participant by reason of the termination of his/her purchase right prior to
exercise, provided and only if: (i) the refunded sums were held in an interest-
--------------------
bearing account maintained for Plan participants or (ii) the Plan Administrator
determines that payment of interest on the refunded sums is necessary to satisfy
applicable requirements of Federal or state law or regulation.
VII. AMENDMENT
---------
The Board may from time to time alter, amend, suspend or discontinue
the Plan; provided, however, that no such action shall adversely affect rights
--------
and obligations with respect to purchase rights at the time outstanding under
the Plan; and provided, further, that no such action of the Board may, without
-----------------
the approval of shareholders of the Company, increase the number of shares of
Stock issuable under the Plan (unless necessary to effect the adjustment
required by Section V(b)), extend the term of the Plan, alter the purchase price
formula so as to reduce the purchase price specified in the Plan, otherwise
materially increase the benefits accruing to participants under the Plan or
materially modify the requirements for eligibility to participate in the Plan.
IX. GENERAL PROVISIONS
------------------
(a) The Plan became effective on June 1, 1980. On February 2, 1989,
the Board amended the Plan to authorize the issuance of Treasury shares under
the Plan, including shares purchased on the open market. The Board further
amended the Plan effective April 10, 1989 to except automatic option grants
under the Company's Stock Option Plan (1981) from the requirement that members
of the Committee administering the Plan be ineligible to participate in the Plan
or any other stock option, stock bonus or stock plan of the Company. On April
25, 1990, the Company's shareholders approved an amendment and restatement of
the Plan which extended the term of the Plan to the last day of the second
fiscal quarter in fiscal year 2000 and reduced the Purchase Price for shares
offered under the Plan to the lesser of (i) 85% of the fair market value per
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share on the date on which the Purchase Period begins or (ii) 85% of the fair
market value per share on the date on which the Purchase Period ends.
(b) This December 14, 1993 restatement incorporates the amendment to
the Plan authorized by the Board on December 14, 1993 which (i) provides
explicit authority
6
<PAGE>
for eligible employees of the participating Canadian subsidiaries to participate
in the Plan and (ii) increases the number of shares available for issuance under
the Plan from 1,000,000 shares to 1,225,000 shares of Stock. The 225,000-share
increase, however, is subject to shareholder approval at the 1994 Annual
Meeting, and none of the shares subject to such increase shall be issued under
the Plan until such approval is obtained. Should shareholder approval of the
225,000-share increase not be obtained at the 1994 Annual Meeting, then that
increase shall not be implemented, and the number of shares authorized for
issuance over the term of the Plan shall be limited to 1,000,000 shares of
Stock, as adjusted from time to time pursuant to Section V(b) above.
(c) The Plan shall terminate upon the earlier of (i) the last day of
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the second fiscal quarter in fiscal year 2000 or (ii) the date on which all
shares available for issuance under the Plan shall have been sold pursuant to
purchase rights exercised under the Plan.
(d) All costs and expenses incurred in the administration of the Plan
shall be paid by the Company.
(e) Neither the action of the Company in establishing the Plan, nor
any action taken under the Plan by the Board or the Plan Administrator, nor any
provision of the Plan itself shall be construed so as to grant any person the
right to remain in the employ of the Company or any of its subsidiaries for any
period of specific duration, and such person's employment may be terminated at
any time, with or without cause.
(f) The provisions of the Plan shall be governed by the laws of the
State of Delaware.
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