<PAGE>
As filed with the Securities and Exchange Commission on September 30, 1999
Registration No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
HUTCHINSON TECHNOLOGY INCORPORATED
(Exact name of Registrant as specified in its charter)
MINNESOTA 41-0901840
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
40 WEST HIGHLAND PARK 55350
HUTCHINSON, MINNESOTA (Zip Code)
(Address of principal executive offices)
HUTCHINSON TECHNOLOGY INCORPORATED
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
John A. Ingleman
Vice President, Chief Financial Officer and Secretary
40 West Highland Park
Hutchinson, Minnesota 55350
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (320) 587-3797
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to to be offering price offering registration
be registered registered (1) per share (1) (2) price (1) (2) fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,500,000 $27.0625 $40,593,750 $11,286
$.01 par value shares
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
</TABLE>
(1) The Registration Statement relates to 1,500,000 shares of Common
Stock to be offered pursuant to the Hutchinson Technology
Incorporated Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of the registration fee pursuant
to Rule 457(h)(1) based on the average of the high and low sales
prices per share of the Registrant's Common Stock on September 24,
1999 as reported on the Nasdaq National Market.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
HUTCHINSON TECHNOLOGY INCORPORATED
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of Hutchinson Technology Incorporated (the
"Company") filed with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are, as of their respective dates, incorporated by reference and made a
part hereof:
(1) The Annual Report on Form 10-K of the Company for the fiscal year
ended September 27, 1998 filed pursuant to Section 15(d) of the Exchange
Act (File No. 0-14709).
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual Report
referred to in (1) above (File No. 0-14709).
(3) The description of the Company's Common Stock which is contained
in the Registration Statement on Form 8-A (Registration No. 0-14709) filed
on June 9, 1986 under the Exchange Act and all amendments and reports filed
for the purpose of updating such description.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment that indicates that all of the shares of Common Stock offered have
been sold or that deregisters all shares of the Common Stock then remaining
unsold shall be deemed to be incorporated by reference in and a part of this
Registration Statement from the date of filing of such documents.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or incorporated herein by reference or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is subject to Minnesota Statutes Chapter 302A, the Minnesota
Business Corporation Act (the "Corporation Act"). Section 302A.521 of the
Corporation Act provides in substance that, unless prohibited by its articles of
incorporation or bylaws, a corporation must indemnify an officer or director who
is made or threatened to be made a party to a proceeding by reason of his
official capacity against judgments, penalties, fines, settlements and
reasonable expenses, including attorneys' fees and disbursements, incurred by
such person in connection with the proceeding, if certain criteria are met.
These criteria, all of which must be met by the person seeking indemnification,
are (a) that such person has not been indemnified by another organization for
the same judgments, penalties, fines, settlements and expenses; (b) that such
person must have acted in good faith; (c) that no improper personal benefit was
obtained by such person and such person satisfied certain statutory conflicts of
interest provisions, if applicable; (d) that in the case of a criminal
proceeding, such person had no reasonable cause to believe that the conduct was
unlawful; and (e) that such person must have acted in a manner he
II-1
<PAGE>
reasonably believed was in the best interests of the corporation or in
certain limited circumstances, not opposed to the best interests of the
corporation. The determination as to eligibility for indemnification is made
by the members of the corporation's board of directors or a committee of the
board who are at the time not parties to the proceedings under consideration,
by special legal counsel, by the shareholders who are not parties to the
proceedings or by a court. Section 4.01 of the Restated By-Laws of the
Registrant requires indemnification by the Registrant in such manner, under
such circumstances and to such extent as required or permitted by Section
302A.521 of the Corporation Act, as amended from time to time, or as required
or permitted by other provisions of law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
4.1 Restated Articles of Incorporation of the Registrant, as amended by
Articles of Amendment dated January 27, 1988 and as amended by
Articles of Amendment dated January 21, 1997 (incorporated by
reference to Exhibit 3.1 to the Registrant's Quarterly Report on Form
10-Q for the quarter ended June 29, 1997, File No. 0-14709).
4.2 Restated By-Laws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended December 29, 1996, File No. 0-14709).
4.3 Note Purchase Agreement dated as of April 20, 1994, providing for
the placement of $20,000,000 of senior unsecured notes with
Teachers Insurance and Annuity Association of America (incorporated
by reference to Exhibit 4.10 to the Company's Quarterly Report on
Form 10-Q for the quarter ended March 27, 1994, File No. 0-14709),
Amendment dated as of March 15, 1996 (incorporated by reference to
Exhibit 4.2 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 24, 1996, File No. 0-14709), Amendment dated as
of February 24, 1997 (incorporated by reference to Exhibit 4.2 to
the Company's Quarterly Report on Form 10-Q for the quarter ended
March 30, 1997, File No. 0-14709), Amendment dated as of December
16, 1998 (incorporated by reference to Exhibit 4.2 to the Company's
Quarterly Report on Form 10-Q for the quarter ended December 27,
1998, File No. 0-14709), Amendment dated as of March 3, 1999
(incorporated by reference to Exhibit 4.2 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 28, 1999,
File No. 0-14709) and Amendment dated as of August 16, 1999.
4.4 Note Purchase Agreement dated as of April 20, 1994, providing for the
placement of $5,000,000 of senior unsecured notes with Central Life
Assurance Company (incorporated by reference to Exhibit 4.11 to the
Company's Quarterly Report on Form 10-Q for the quarter ended
March 27, 1994, File No. 0-14709), Amendment dated as of March 15,
1996 (incorporated by reference to Exhibit 4.3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 24, 1996,
File No. 0-14709), Amendment dated as of February 24, 1997
(incorporated by reference to Exhibit 4.3 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 30, 1997, File
No. 0-14709), Amendment dated as of December 16, 1998 (incorporated by
reference to Exhibit 4.3 to the Company's Quarterly Report on Form
10-Q for the quarter ended December 27, 1998, File No. 0-14709),
Amendment dated as of March 3, 1999 (incorporated by reference to
Exhibit 4.3 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 28, 1999, File No. 0-14709) and Amendment dated
as of August 16, 1999.
4.5 Note Purchase Agreement dated as of April 20, 1994, providing for the
placement of $5,000,000 of senior unsecured notes with Modern Woodmen
of America (incorporated by reference to Exhibit 4.12 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 27, 1994,
File No. 0-14709), Amendment dated as of March 15, 1996 (incorporated
by reference to Exhibit 4.4 to the Company's Quarterly Report
II-2
<PAGE>
on Form 10-Q for the quarter ended March 24, 1996, File No.
0-14709), Amendment dated as of February 24, 1997 (incorporated by
reference to Exhibit 4.4 to the Company's Quarterly Report on Form
10-Q for the quarter ended March 30, 1997, File No. 0-14709),
Amendment dated as of December 16, 1998 (incorporated by reference
to Exhibit 4.4 to the Company's Quarterly Report on Form 10-Q for
the quarter ended December 27, 1998, File No. 0-14709),
Amendment dated as of March 3, 1999 (incorporated by reference to
Exhibit 4.4 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 28, 1999, File No. 0-14709) and Amendment dated
as of August 16, 1999.
4.6 Note Purchase Agreement dated as of July 26, 1996, providing for
the placement of $15,000,000 of senior unsecured notes with
Metropolitan Insurance and Annuity Company (incorporated by
reference to Exhibit 4.6 to the Company's Annual Report on Form
10-K for the fiscal year ended September 29, 1996, File No.
0-14709), Amendment dated as of February 24, 1997 (incorporated by
reference to Exhibit 4.6 to the Company's Quarterly Report on Form
10-Q for the quarter ended March 30, 1997, File No. 0-14709),
Amendment dated as of December 16, 1998 (incorporated by reference
to Exhibit 4.6 to the Company's Quarterly Report on Form 10-Q for
the quarter ended December 27, 1998, File No. 0-14709),
Amendment dated as of March 3, 1999 (incorporated by reference to
Exhibit 4.5 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 28, 1999, File No. 0-14709) and Amendment dated
as of August 16, 1999.
4.7 Note Purchase Agreement dated as of July 26, 1996, providing for
the placement of $10,000,000 of senior unsecured notes with
Metropolitan Life Insurance Company (incorporated by reference to
Exhibit 4.7 to the Company's Annual Report on Form 10-K for the
fiscal year ended September 29, 1996, File No. 0-14709), Amendment
dated as of February 24, 1997 (incorporated by reference to Exhibit
4.7 to the Company's Quarterly Report on Form 10-Q for the quarter
ended March 30, 1997, File No. 0-14709), Amendment dated as of
December 16, 1998 (incorporated by reference to Exhibit 4.7 to the
Company's Quarterly Report on Form 10-Q for the quarter ended
December 27, 1998, File No. 0-14709), Amendment dated as of
March 3, 1999 (incorporated by reference to Exhibit 4.6 to the
Company's Quarterly Report on Form 10-Q for the quarter ended March
28, 1999, File No. 0-14709) and Amendment dated as of August 16, 1999.
4.8 Note Purchase Agreement dated as of July 26, 1996, providing for the
placement of $25,000,000 of senior unsecured notes with Teachers
Insurance and Annuity Association of America (incorporated by
reference to Exhibit 4.8 to the Company's Annual Report on Form 10-K
for the fiscal year ended September 29, 1996, File No. 0-14709),
Amendment dated as of February 24, 1997 (incorporated by reference to
Exhibit 4.8 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 30, 1997, File No. 0-14709), Amendment dated as of
December 16, 1998 (incorporated by reference to Exhibit 4.8 to the
Company's Quarterly Report on Form 10-Q for the quarter ended
December 27, 1998, File No. 0-14709), Amendment dated as of March
3, 1999 (incorporated by reference to Exhibit 4.7 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 28, 1999,
File No. 0-14709) and Amendment dated as of August 16, 1999.
4.9 Financing Agreement between the Company and The CIT Group/Business
Credit, Inc., as Agent and a Lender, dated December 31, 1998
(incorporated by reference to Exhibit 4.9 to the Company's Quarterly
Report on Form 10-Q for the quarter ended December 27, 1998, File No.
0-14709).
5 Opinion of Faegre & Benson LLP, counsel for the Registrant.
23.1 Consent of Faegre & Benson LLP (included in Exhibit 5 to this
Registration Statement).
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
24 Powers of Attorney (included with signatures to this Registration
Statement).
99 Hutchinson Technology Incorporated Employee Stock Purchase Plan.
II-3
<PAGE>
ITEM 9. UNDERTAKINGS.
A. The Company 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a twenty percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in 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
Registration Statement is on Form S-3 or Form S-8, and 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 Company pursuant to Section 13 or Section 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 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 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) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, 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 Company pursuant to the foregoing provisions, or otherwise, the
Company 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 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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 and will be governed by the final adjudication of such issue.
II-4
<PAGE>
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 Hutchinson and State of Minnesota on the 29th day of
September, 1999.
HUTCHINSON TECHNOLOGY INCORPORATED
By /s/ WAYNE M. FORTUN
---------------------------------
Wayne M. Fortun
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
Each of the undersigned hereby appoints Jeffrey W. Green, Wayne M. Fortun
and John A. Ingleman, and each of them (with full power to act alone), as
attorneys and agents for the undersigned, with full power of substitution, for
and in the name, place and stead of the undersigned, to sign and file with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
any and all amendments and exhibits to this Registration Statement and any and
all applications, instruments and other documents to be filed with the
Securities and Exchange Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite and necessary or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
/s/ WAYNE M. FORTUN President and Chief Executive Officer September 29, 1999
- ------------------------- (Principal Executive Officer and
Wayne M. Fortun Director)
Vice President, Chief Financial
/s/ JOHN A. INGLEMAN Officer and Secretary (Principal September 29, 1999
- ------------------------- Financial Officer and Principal
John A. Ingleman Accounting Officer)
/s/ W. THOMAS BRUNBERG Director September 29, 1999
- -------------------------
W. Thomas Brunberg
/s/ ARCHIBALD COX, JR. Director September 29, 1999
- -------------------------
Archibald Cox, Jr.
/s/ HARRY C. ERVIN, JR. Director September 29, 1999
- -------------------------
Harry C. Ervin, Jr.
/s/ JEFFREY W. GREEN Director September 29, 1999
- -------------------------
Jeffrey W. Green
II-5
<PAGE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
Director September __, 1999
- -------------------------
Russell Huffer
/s/ STEVEN E. LANDSBURG Director September 29, 1999
- -------------------------
Steven E. Landsburg
/s/ RICHARD B. SOLUM Director September 29, 1999
- -------------------------
Richard B. Solum
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
-------
<S> <C> <C>
4.1 Restated Articles of Incorporation of the Registrant, as
amended by Articles of Amendment dated January 27, 1988 and
as amended by Articles of Amendment dated January 21, 1997
(incorporated by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 29, 1997, File No. 0-14709).
4.2 Restated By-Laws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended December 29, 1996,
File No. 0-14709).
4.3 Note Purchase Agreement dated as of April 20, 1994,
providing for the placement of $20,000,000 of senior
unsecured notes with Teachers Insurance and Annuity
Association of America (incorporated by reference to
Exhibit 4.10 to the Company's Quarterly Report on Form 10-Q
for the quarter ended March 27, 1994, File No. 0-14709),
Amendment dated as of March 15, 1996 (incorporated by
reference to Exhibit 4.2 to the Company's Quarterly Report
on Form 10-Q for the quarter ended March 24, 1996, File
No. 0-14709), Amendment dated as of February 24, 1997
(incorporated by reference to Exhibit 4.2 to the Company's
Quarterly Report on Form 10-Q for the quarter ended
March 30, 1997, File No. 0-14709), Amendment dated as of
December 16, 1998 (incorporated by reference to Exhibit 4.2
to the Company's Quarterly Report on Form 10-Q for the
quarter ended December 27, 1998, File No. 0-14709),
Amendment dated as of March 3, 1999 (incorporated by
reference to Exhibit 4.2 to the Company's Quarterly Report
on Form 10-Q for the quarter ended March 28, 1999, File No.
0-14709) and Amendment dated as of August 16, 1999........................Electronically Filed
4.4 Note Purchase Agreement dated as of April 20, 1994, providing for
the placement of $5,000,000 of senior unsecured notes with Central
Life Assurance Company (incorporated by reference to Exhibit 4.11
to the Company's Quarterly Report on Form 10-Q for the quarter
ended March 27, 1994, File No. 0-14709), Amendment dated as of
March 15, 1996 (incorporated by reference to Exhibit 4.3 to the
Company's Quarterly Report on Form 10-Q for the quarter ended March
24, 1996, File No. 0-14709), Amendment dated as of February 24,
1997 (incorporated by reference to Exhibit 4.3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 30, 1997,
File No. 0-14709), Amendment dated as of December 16, 1998
(incorporated by reference to Exhibit 4.3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended December 27,
1998, File No. 0-14709), Amendment dated as of March 3, 1999
(incorporated by reference to Exhibit 4.3 to the Company's
Quarterly Report on
II-7
<PAGE>
Form 10-Q for the quarter ended March 28, 1999, File No. 0-14709)
and Amendment dated as of August 16, 1999.................................Electronically Filed
4.5 Note Purchase Agreement dated as of April 20, 1994,
providing for the placement of $5,000,000 of senior
unsecured notes with Modern Woodmen of America (incorporated
by reference to Exhibit 4.12 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 27, 1994,
File No. 0-14709), Amendment dated as of March 15, 1996
(incorporated by reference to Exhibit 4.4 to the Company's
Quarterly Report on Form 10-Q for the quarter ended
March 24, 1996, File No. 0-14709), Amendment dated as of
February 24, 1997 (incorporated by reference to Exhibit 4.4
to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 30, 1997, File No. 0-14709), Amendment
dated as of December 16, 1998 (incorporated by reference to
Exhibit 4.4 to the Company's Quarterly Report on Form 10-Q
for the quarter ended December 27, 1998, File No. 0-14709),
Amendment dated as of March 3, 1999 (incorporated by
reference to Exhibit 4.4 to the Company's Quarterly Report
on Form 10-Q for the quarter ended March 28, 1999, File No.
0-14709) and Amendment dated as of August 16, 1999........................Electronically Filed
4.6 Note Purchase Agreement dated as of July 26, 1996, providing
for the placement of $15,000,000 of senior unsecured notes
with Metropolitan Insurance and Annuity Company
(incorporated by reference to Exhibit 4.6 to the Company's
Annual Report on Form 10-K for the fiscal year ended
September 29, 1996, File No. 0-14709), Amendment dated as of
February 24, 1997 (incorporated by reference to Exhibit 4.6
to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 30, 1997, File No. 0-14709), Amendment
dated as of December 16, 1998 (incorporated by reference to
Exhibit 4.6 to the Company's Quarterly Report on Form 10-Q
for the quarter ended December 27, 1998, File No. 0-14709),
Amendment dated as of March 3, 1999 (incorporated by
reference to Exhibit 4.5 to the Company's Quarterly Report
on Form 10-Q for the quarter ended March 28, 1999, File No.
0-14709) and Amendment dated as of August 16, 1999........................Electronically Filed
4.7 Note Purchase Agreement dated as of July 26, 1996, providing
for the placement of $10,000,000 of senior unsecured notes
with Metropolitan Life Insurance Company (incorporated by
reference to Exhibit 4.7 to the Company's Annual Report on
Form 10-K for the fiscal year ended September 29, 1996, File
No. 0-14709), Amendment dated as of February 24, 1997
(incorporated by reference to Exhibit 4.7 to the Company's
Quarterly Report on Form 10-Q for the quarter ended
March 30, 1997, File No. 0-14709), Amendment dated as of
December 16, 1998 (incorporated by reference to Exhibit 4.7
to the Company's Quarterly Report on Form 10-Q for the
quarter ended December 27, 1998, File No. 0-14709),
Amendment dated as of March 3, 1999 (incorporated by
reference to
II-8
<PAGE>
Exhibit 4.6 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 28, 1999, File No. 0-14709) and Amendment dated
as of August 16, 1999.....................................................Electronically Filed
4.8 Note Purchase Agreement dated as of July 26, 1996, providing
for the placement of $25,000,000 of senior unsecured notes
with Teachers Insurance and Annuity Association of America
(incorporated by reference to Exhibit 4.8 to the Company's
Annual Report on Form 10-K for the fiscal year ended
September 29, 1996, File No. 0-14709), Amendment dated as of
February 24, 1997 (incorporated by reference to Exhibit 4.8
to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 30, 1997, File No. 0-14709), Amendment
dated as of December 16, 1998 (incorporated by reference to
Exhibit 4.8 to the Company's Quarterly Report on Form 10-Q
for the quarter ended December 27, 1998, File No. 0-14709),
Amendment dated as of March 3, 1999 (incorporated by
reference to Exhibit 4.7 to the Company's Quarterly Report
on Form 10-Q for the quarter ended March 28, 1999, File No.
0-14709) and Amendment dated as of August 16, 1999........................Electronically Filed
4.9 Financing Agreement between the Company and The CIT
Group/Business Credit, Inc., as Agent and a Lender, dated
December 31, 1998 (incorporated by reference to Exhibit 4.9
to the Company's Quarterly Report on Form 10-Q for the
quarter ended December 27, 1998, File No. 0-14709).
5 Opinion of Faegre & Benson LLP, counsel for the Registrant................Electronically Filed
23.1 Consent of Faegre & Benson LLP (included in Exhibit 5 to
this Registration Statement).
23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants...............................................................Electronically Filed
24 Powers of Attorney (included with signatures to this
Registration Statement)...................................................Electronically Filed
99 Hutchinson Technology Incorporated Employee Stock Purchase
Plan......................................................................Electronically Filed
</TABLE>
II-9
<PAGE>
EXHIBIT 4.3
Dated as of August 16, 1999
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Amerus Life Insurance Company
c/o Amerus Capital Management
699 Walnut Street, Suite 1700
Des Moines, Iowa 50309-3945
Modern Woodmen of America
1701 First Avenue
Rock Island, Illinois 61201
Ladies and Gentlemen:
Reference is made to those certain Note Purchase Agreements between
Hutchinson Technology Incorporated, a Minnesota corporation (the "COMPANY"), and
each of Teachers Insurance and Annuity Association of America, Central Life
Assurance Company and Modern Woodmen of America (collectively, the
"PURCHASERS"), each dated as of April 20, 1994, as heretofore amended
(collectively, as amended, the "AGREEMENTS"), pursuant to which the Purchasers
purchased the 7.46% Senior Notes of the Company in the aggregate original
principal amount of $30,000,000 (the "Notes"). The addressees of this letter
agreement (collectively, the "NOTEHOLDERS") are the registered holders of 100%
of the aggregate outstanding principal amount of the Notes as reflected in the
Note Register required to be maintained by the Company pursuant to Section 10.1
of each of the Agreements, and the Noteholders whose signatures are affixed
below hold 100% of the aggregate unpaid principal amount of the Notes
outstanding as of the date hereof.
The Company has informed the Noteholders that it desires to amend the
Agreements in certain respects as of the date hereof, and the Noteholders have
agreed to such amendment as more fully described below in this letter agreement
(the "AMENDMENT").
1. AMENDMENT. Section 8.1(e) of each of the Agreements is
amended by restating such section in its entirety as follows:
(e) (i) default shall be made in the payment of any
amount due, whether on an interest payment date or on a date fixed for
prepayment, at stated maturity, by acceleration or declaration or
otherwise, under or in respect of any Funded Debt or Current Debt of
the Company (other than the Notes) or any Subsidiary, and such default
shall continue beyond the period of grace, if any, allowed with respect
thereto; or (ii) default shall be made in the due performance
<PAGE>
or observance of any covenant, provision, agreement or condition
contained in any document evidencing or providing for the issuance or
securing of any Funded Debt or Current Debt of the Company (other than
the Notes) or any Subsidiary having an original principal amount in
excess of $1,500,000, if the effect of any such default referred to in
this clause (ii) is to cause or to permit the holder or holders of
such Debt (or a trustee or agent on behalf of such holders) to cause
any payment or payments in respect of any such Debt to become due prior
to the scheduled due date thereof; or
2. MISCELLANEOUS. Except as specifically amended hereby, all
terms and provisions of each of the Agreements shall remain in full force and
effect. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Capitalized terms used but not otherwise
defined in this Amendment shall have the meanings assigned to them by each of
the Agreements.
-2-
<PAGE>
If you are in agreement with the foregoing, please so indicate by
executing the form of acknowledgment set forth below, whereupon this Amendment
shall become a binding agreement effective as of the date hereof.
Very truly yours,
HUTCHINSON TECHNOLOGY
INCORPORATED
By /s/ John A. Ingleman
---------------------------
Its CFO
-----------------------
Agreed to and accepted as of
the date first above written.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By /s/ Diane Hom
-------------------------------------------------------
Its Director-Private Placements
-------------------------------------------------
AMERUS LIFE INSURANCE COMPANY
By /s/ Roger D. Fors
-------------------------------------------------------
Its Vice President Investment Management and Research
-------------------------------------------------
MODERN WOODMEN OF AMERICA
By /s/ Nick S. Coin
-------------------------------------------------------
Its Manager, Securities Division
-------------------------------------------------------
<PAGE>
EXHIBIT 4.4
Dated as of August 16, 1999
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Amerus Life Insurance Company
c/o Amerus Capital Management
699 Walnut Street, Suite 1700
Des Moines, Iowa 50309-3945
Modern Woodmen of America
1701 First Avenue
Rock Island, Illinois 61201
Ladies and Gentlemen:
Reference is made to those certain Note Purchase Agreements between
Hutchinson Technology Incorporated, a Minnesota corporation (the "COMPANY"), and
each of Teachers Insurance and Annuity Association of America, Central Life
Assurance Company and Modern Woodmen of America (collectively, the
"PURCHASERS"), each dated as of April 20, 1994, as heretofore amended
(collectively, as amended, the "AGREEMENTS"), pursuant to which the Purchasers
purchased the 7.46% Senior Notes of the Company in the aggregate original
principal amount of $30,000,000 (the "Notes"). The addressees of this letter
agreement (collectively, the "NOTEHOLDERS") are the registered holders of 100%
of the aggregate outstanding principal amount of the Notes as reflected in the
Note Register required to be maintained by the Company pursuant to Section 10.1
of each of the Agreements, and the Noteholders whose signatures are affixed
below hold 100% of the aggregate unpaid principal amount of the Notes
outstanding as of the date hereof.
The Company has informed the Noteholders that it desires to amend the
Agreements in certain respects as of the date hereof, and the Noteholders have
agreed to such amendment as more fully described below in this letter agreement
(the "AMENDMENT").
1. AMENDMENT. Section 8.1(e) of each of the Agreements is
amended by restating such section in its entirety as follows:
(e) (i) default shall be made in the payment of any
amount due, whether on an interest payment date or on a date fixed for
prepayment, at stated maturity, by acceleration or declaration or
otherwise, under or in respect of any Funded Debt or Current Debt of
the Company (other than the Notes) or any Subsidiary, and such default
shall continue beyond the period of grace, if any, allowed with respect
thereto; or (ii) default shall be made in the due performance
<PAGE>
or observance of any covenant, provision, agreement or condition
contained in any document evidencing or providing for the issuance or
securing of any Funded Debt or Current Debt of the Company (other than
the Notes) or any Subsidiary having an original principal amount in
excess of $1,500,000, if the effect of any such default referred to in
this clause (ii) is to cause or to permit the holder or holders of
such Debt (or a trustee or agent on behalf of such holders) to cause
any payment or payments in respect of any such Debt to become due prior
to the scheduled due date thereof; or
2. MISCELLANEOUS. Except as specifically amended hereby, all
terms and provisions of each of the Agreements shall remain in full force and
effect. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Capitalized terms used but not otherwise
defined in this Amendment shall have the meanings assigned to them by each of
the Agreements.
-2-
<PAGE>
If you are in agreement with the foregoing, please so indicate by
executing the form of acknowledgment set forth below, whereupon this Amendment
shall become a binding agreement effective as of the date hereof.
Very truly yours,
HUTCHINSON TECHNOLOGY
INCORPORATED
By /s/ John A. Ingleman
---------------------------
Its CFO
-----------------------
Agreed to and accepted as of
the date first above written.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By /s/ Diane Hom
-------------------------------------------------------
Its Director-Private Placements
-------------------------------------------------
AMERUS LIFE INSURANCE COMPANY
By /s/ Roger D. Fors
-------------------------------------------------------
Its Vice President Investment Management and Research
-------------------------------------------------
MODERN WOODMEN OF AMERICA
By /s/ Nick S. Coin
-------------------------------------------------------
Its Manager, Securities Division
-------------------------------------------------------
<PAGE>
EXHIBIT 4.5
Dated as of August 16, 1999
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Amerus Life Insurance Company
c/o Amerus Capital Management
699 Walnut Street, Suite 1700
Des Moines, Iowa 50309-3945
Modern Woodmen of America
1701 First Avenue
Rock Island, Illinois 61201
Ladies and Gentlemen:
Reference is made to those certain Note Purchase Agreements between
Hutchinson Technology Incorporated, a Minnesota corporation (the "COMPANY"), and
each of Teachers Insurance and Annuity Association of America, Central Life
Assurance Company and Modern Woodmen of America (collectively, the
"PURCHASERS"), each dated as of April 20, 1994, as heretofore amended
(collectively, as amended, the "AGREEMENTS"), pursuant to which the Purchasers
purchased the 7.46% Senior Notes of the Company in the aggregate original
principal amount of $30,000,000 (the "Notes"). The addressees of this letter
agreement (collectively, the "NOTEHOLDERS") are the registered holders of 100%
of the aggregate outstanding principal amount of the Notes as reflected in the
Note Register required to be maintained by the Company pursuant to Section 10.1
of each of the Agreements, and the Noteholders whose signatures are affixed
below hold 100% of the aggregate unpaid principal amount of the Notes
outstanding as of the date hereof.
The Company has informed the Noteholders that it desires to amend the
Agreements in certain respects as of the date hereof, and the Noteholders have
agreed to such amendment as more fully described below in this letter agreement
(the "AMENDMENT").
1. AMENDMENT. Section 8.1(e) of each of the Agreements is
amended by restating such section in its entirety as follows:
(e) (i) default shall be made in the payment of any
amount due, whether on an interest payment date or on a date fixed for
prepayment, at stated maturity, by acceleration or declaration or
otherwise, under or in respect of any Funded Debt or Current Debt of
the Company (other than the Notes) or any Subsidiary, and such default
shall continue beyond the period of grace, if any, allowed with respect
thereto; or (ii) default shall be made in the due performance
<PAGE>
or observance of any covenant, provision, agreement or condition
contained in any document evidencing or providing for the issuance or
securing of any Funded Debt or Current Debt of the Company (other than
the Notes) or any Subsidiary having an original principal amount in
excess of $1,500,000, if the effect of any such default referred to in
this clause (ii) is to cause or to permit the holder or holders of
such Debt (or a trustee or agent on behalf of such holders) to cause
any payment or payments in respect of any such Debt to become due prior
to the scheduled due date thereof; or
2. MISCELLANEOUS. Except as specifically amended hereby, all
terms and provisions of each of the Agreements shall remain in full force and
effect. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Capitalized terms used but not otherwise
defined in this Amendment shall have the meanings assigned to them by each of
the Agreements.
-2-
<PAGE>
If you are in agreement with the foregoing, please so indicate by
executing the form of acknowledgment set forth below, whereupon this Amendment
shall become a binding agreement effective as of the date hereof.
Very truly yours,
HUTCHINSON TECHNOLOGY
INCORPORATED
By /s/ John A. Ingleman
---------------------------
Its CFO
-----------------------
Agreed to and accepted as of
the date first above written.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By /s/ Diane Hom
-------------------------------------------------------
Its Director-Private Placements
-------------------------------------------------
AMERUS LIFE INSURANCE COMPANY
By /s/ Roger D. Fors
-------------------------------------------------------
Its Vice President Investment Management and Research
-------------------------------------------------
MODERN WOODMEN OF AMERICA
By /s/ Nick S. Coin
-------------------------------------------------------
Its Manager, Securities Division
-------------------------------------------------------
<PAGE>
EXHIBIT 4.6
Dated as of August 16, 1999
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
CIG & Co.
c/o CIGNA Investments, Inc.
900 Cottage Grove Road
Hartford, Connecticut 06152
Ladies and Gentlemen:
Reference is made to those certain Note Purchase Agreements between
Hutchinson Technology Incorporated, a Minnesota corporation (the "COMPANY"), and
each of Metropolitan Life Insurance Company and Metropolitan Insurance and
Annuity Company (each, a "SERIES A PURCHASER" and collectively, the "SERIES A
PURCHASERS") and Teachers Insurance and Annuity Association of America (the
"SERIES B PURCHASER"), each dated as of July 26, 1996, as heretofore amended
(each, as amended, an "AGREEMENT" and collectively, the "AGREEMENTS"), providing
for the issuance to the Series A Purchasers of the 7.85% Senior Notes due 2003
of the Company in the aggregate original principal amount of $25,000,000 (the
"SERIES A NOTES"), and the issuance to the Series B Purchaser of the 8.07%
Senior Note due 2006 of the Company in the original principal amount of
$25,000,000 (the "SERIES B NOTE"). The addressees of this letter agreement
(collectively, the "NOTEHOLDERS"), are the registered holders of 100% of the
aggregate outstanding principal amount of the Series A Notes and the Series B
Note (collectively, the "NOTES") as reflected in the Note Register required to
be maintained by the Company pursuant to Section 10.1 of each of the Agreements,
and the Noteholders whose signatures are affixed below hold 100% of the
aggregate unpaid principal amount of the Notes outstanding as of the date
hereof.
The Company has informed the Noteholders that it desires to amend the
Agreements in certain respects as of the date hereof, and the Noteholders have
agreed to such amendments as more fully described below in this letter agreement
("this Amendment").
Now, therefore, the Company and the Noteholders (by their acceptance
hereof) hereby agree as follows as follows:
1. AMENDMENT. Section 8.1(e) of each of the Agreements is
amended by restating such section in its entirety as follows:
(e) (i) default shall be made in the payment of any
amount due, whether on an interest payment date or on a date fixed for
prepayment, at stated
<PAGE>
maturity, by acceleration or declaration or otherwise, under or in
respect of any Funded Debt or Current Debt of the Company (other
than the Notes) or any Subsidiary, and such default shall continue
beyond the period of grace, if any, allowed with respect thereto; or
(ii) default shall be made in the due performance or observance of
any covenant, provision, agreement or condition contained in any
document evidencing or providing for the issuance or securing of any
Funded Debt or Current Debt of the Company (other than the Notes) or
any Subsidiary having an original principal amount in excess of
$1,500,000, if the effect of any such default referred to in this
clause (ii) is to cause or to permit the holder or holders of such
Debt (or a trustee or agent on behalf of such holders) to cause any
payment or payments in respect of any such Debt to become due prior
to the scheduled due date thereof; or
2. MISCELLANEOUS. Except as specifically amended hereby, all
terms and provisions of each of the Agreements shall remain in full force and
effect. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Capitalized terms used but not otherwise
defined in this Amendment shall have the meanings assigned to them by each of
the Agreements.
<PAGE>
If you are in agreement with the foregoing, please so indicate by
executing the form of acknowledgment set forth below, whereupon this Amendment
shall become a binding agreement effective as of the date hereof.
Very truly yours,
HUTCHINSON TECHNOLOGY
INCORPORATED
By /s/ John A. Ingleman
---------------------------
Its CFO
-----------------------
Agreed to and accepted as of the date first above written.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By /s/ Diane Hom
-----------------------------------------------------
Its Director-Private Placements
-------------------------------------------------
CIG & CO.
By /s/ Edward Lewis
-----------------------------------------------------
Its Partner
-------------------------------------------------
<PAGE>
EXHIBIT 4.7
Dated as of August 16, 1999
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
CIG & Co.
c/o CIGNA Investments, Inc.
900 Cottage Grove Road
Hartford, Connecticut 06152
Ladies and Gentlemen:
Reference is made to those certain Note Purchase Agreements between
Hutchinson Technology Incorporated, a Minnesota corporation (the "COMPANY"), and
each of Metropolitan Life Insurance Company and Metropolitan Insurance and
Annuity Company (each, a "SERIES A PURCHASER" and collectively, the "SERIES A
PURCHASERS") and Teachers Insurance and Annuity Association of America (the
"SERIES B PURCHASER"), each dated as of July 26, 1996, as heretofore amended
(each, as amended, an "AGREEMENT" and collectively, the "AGREEMENTS"), providing
for the issuance to the Series A Purchasers of the 7.85% Senior Notes due 2003
of the Company in the aggregate original principal amount of $25,000,000 (the
"SERIES A NOTES"), and the issuance to the Series B Purchaser of the 8.07%
Senior Note due 2006 of the Company in the original principal amount of
$25,000,000 (the "SERIES B NOTE"). The addressees of this letter agreement
(collectively, the "NOTEHOLDERS"), are the registered holders of 100% of the
aggregate outstanding principal amount of the Series A Notes and the Series B
Note (collectively, the "NOTES") as reflected in the Note Register required to
be maintained by the Company pursuant to Section 10.1 of each of the Agreements,
and the Noteholders whose signatures are affixed below hold 100% of the
aggregate unpaid principal amount of the Notes outstanding as of the date
hereof.
The Company has informed the Noteholders that it desires to amend the
Agreements in certain respects as of the date hereof, and the Noteholders have
agreed to such amendments as more fully described below in this letter agreement
("this Amendment").
Now, therefore, the Company and the Noteholders (by their acceptance
hereof) hereby agree as follows as follows:
1. AMENDMENT. Section 8.1(e) of each of the Agreements is
amended by restating such section in its entirety as follows:
(e) (i) default shall be made in the payment of any
amount due, whether on an interest payment date or on a date fixed for
prepayment, at stated
<PAGE>
maturity, by acceleration or declaration or otherwise, under or in
respect of any Funded Debt or Current Debt of the Company (other
than the Notes) or any Subsidiary, and such default shall continue
beyond the period of grace, if any, allowed with respect thereto; or
(ii) default shall be made in the due performance or observance of
any covenant, provision, agreement or condition contained in any
document evidencing or providing for the issuance or securing of any
Funded Debt or Current Debt of the Company (other than the Notes) or
any Subsidiary having an original principal amount in excess of
$1,500,000, if the effect of any such default referred to in this
clause (ii) is to cause or to permit the holder or holders of such
Debt (or a trustee or agent on behalf of such holders) to cause any
payment or payments in respect of any such Debt to become due prior
to the scheduled due date thereof; or
2. MISCELLANEOUS. Except as specifically amended hereby, all
terms and provisions of each of the Agreements shall remain in full force and
effect. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Capitalized terms used but not otherwise
defined in this Amendment shall have the meanings assigned to them by each of
the Agreements.
<PAGE>
If you are in agreement with the foregoing, please so indicate by
executing the form of acknowledgment set forth below, whereupon this Amendment
shall become a binding agreement effective as of the date hereof.
Very truly yours,
HUTCHINSON TECHNOLOGY
INCORPORATED
By /s/ John A. Ingleman
---------------------------
Its CFO
-----------------------
Agreed to and accepted as of the date first above written.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By /s/ Diane Hom
-----------------------------------------------------
Its Director-Private Placements
-------------------------------------------------
CIG & CO.
By /s/ Edward Lewis
-----------------------------------------------------
Its Partner
--------------------------------------------------
<PAGE>
EXHIBIT 4.8
Dated as of August 16, 1999
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
CIG & Co.
c/o CIGNA Investments, Inc.
900 Cottage Grove Road
Hartford, Connecticut 06152
Ladies and Gentlemen:
Reference is made to those certain Note Purchase Agreements between
Hutchinson Technology Incorporated, a Minnesota corporation (the "COMPANY"), and
each of Metropolitan Life Insurance Company and Metropolitan Insurance and
Annuity Company (each, a "SERIES A PURCHASER" and collectively, the "SERIES A
PURCHASERS") and Teachers Insurance and Annuity Association of America (the
"SERIES B PURCHASER"), each dated as of July 26, 1996, as heretofore amended
(each, as amended, an "AGREEMENT" and collectively, the "AGREEMENTS"), providing
for the issuance to the Series A Purchasers of the 7.85% Senior Notes due 2003
of the Company in the aggregate original principal amount of $25,000,000 (the
"SERIES A NOTES"), and the issuance to the Series B Purchaser of the 8.07%
Senior Note due 2006 of the Company in the original principal amount of
$25,000,000 (the "SERIES B NOTE"). The addressees of this letter agreement
(collectively, the "NOTEHOLDERS"), are the registered holders of 100% of the
aggregate outstanding principal amount of the Series A Notes and the Series B
Note (collectively, the "NOTES") as reflected in the Note Register required to
be maintained by the Company pursuant to Section 10.1 of each of the Agreements,
and the Noteholders whose signatures are affixed below hold 100% of the
aggregate unpaid principal amount of the Notes outstanding as of the date
hereof.
The Company has informed the Noteholders that it desires to amend the
Agreements in certain respects as of the date hereof, and the Noteholders have
agreed to such amendments as more fully described below in this letter agreement
("this Amendment").
Now, therefore, the Company and the Noteholders (by their acceptance
hereof) hereby agree as follows as follows:
1. AMENDMENT. Section 8.1(e) of each of the Agreements is
amended by restating such section in its entirety as follows:
(e) (i) default shall be made in the payment of any
amount due, whether on an interest payment date or on a date fixed for
prepayment, at stated
<PAGE>
maturity, by acceleration or declaration or otherwise, under or in
respect of any Funded Debt or Current Debt of the Company (other
than the Notes) or any Subsidiary, and such default shall continue
beyond the period of grace, if any, allowed with respect thereto; or
(ii) default shall be made in the due performance or observance of
any covenant, provision, agreement or condition contained in any
document evidencing or providing for the issuance or securing of any
Funded Debt or Current Debt of the Company (other than the Notes) or
any Subsidiary having an original principal amount in excess of
$1,500,000, if the effect of any such default referred to in this
clause (ii) is to cause or to permit the holder or holders of such
Debt (or a trustee or agent on behalf of such holders) to cause any
payment or payments in respect of any such Debt to become due prior
to the scheduled due date thereof; or
2. MISCELLANEOUS. Except as specifically amended hereby, all
terms and provisions of each of the Agreements shall remain in full force and
effect. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Capitalized terms used but not otherwise
defined in this Amendment shall have the meanings assigned to them by each of
the Agreements.
<PAGE>
If you are in agreement with the foregoing, please so indicate by
executing the form of acknowledgment set forth below, whereupon this Amendment
shall become a binding agreement effective as of the date hereof.
Very truly yours,
HUTCHINSON TECHNOLOGY
INCORPORATED
By /s/ John A. Ingleman
---------------------------
Its CFO
-----------------------
Agreed to and accepted as of the date first above written.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By /s/ Diane Hom
-----------------------------------------------------
Its Director-Private Placements
-------------------------------------------------
CIG & CO.
By /s/ Edward Lewis
-----------------------------------------------------
Its Partner
-------------------------------------------------
<PAGE>
EXHIBIT 5
FAEGRE & BENSON LLP
2200 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402
612-336-3000
September 30, 1999
Board of Directors
Hutchinson Technology Incorporated
40 West Highland Park
Hutchinson, Minnesota 55350
Gentlemen:
In connection with the Registration Statement on Form S-8 under the
Securities Act of 1933, as amended (the "Registration Statement"), relating to
the offering of up to 1,500,000 shares of Common Stock, par value $.01 per share
(the "Shares"), of Hutchinson Technology Incorporated, a Minnesota corporation
(the "Company"), pursuant to the Hutchinson Technology Incorporated Employee
Stock Purchase Plan, we have examined such corporate records and other
documents, including the Registration Statement, and have reviewed such matters
of law as we have deemed relevant hereto, and, based upon such examination and
review, it is our opinion that all necessary corporate action on the part of the
Company has been taken to authorize the issuance and sale of the Shares and
that, when issued and sold as contemplated in the Registration Statement, the
Shares will be legally and validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
FAEGRE & BENSON LLP
<PAGE>
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 October 29,
1998, incorporated by reference in Hutchinson Technology Incorporated and
Subsidiaries' Form 10-K for the year ended September 27, 1998 and to all
references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota
September 29, 1999
<PAGE>
EXHIBIT 99
SEPTEMBER 27, 1999
HUTCHINSON TECHNOLOGY INCORPORATED
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE AND SCOPE OF PLAN. The purpose of this Hutchinson
Technology Incorporated Employee Stock Purchase Plan (the "Plan") is to
provide the employees of Hutchinson Technology Incorporated (the "Company")
and its subsidiaries with an opportunity to acquire a proprietary interest in
the Company through the purchase of its common stock and, thus, to develop a
stronger incentive to work for the continued success of the Company. The Plan
is intended to be an "employee stock purchase plan" within the meaning of
Section 423 of the Internal Revenue Code, and shall be interpreted and
administered in a manner consistent with such intent.
2. DEFINITIONS.
2.1. The terms defined in this section are used (and
capitalized) elsewhere in this Plan:
(a) "AFFILIATE" means each domestic or foreign
corporation that is a "parent corporation" or "subsidiary
corporation" of the Company, as defined in Sections 424(e) and
424(f) of the Code or any successor provision and whose
participation in the Plan the Board of Directors has expressly
approved.
(b) "BOARD OF DIRECTORS" means the Board of Directors of
the Company.
(c) "CODE" means the Internal Revenue Code of 1986, as
amended from time to time.
(d) "COMMITTEE" means three or more Disinterested Persons
designated by the Board of Directors to administer the Plan
under Section 13.
(e) "COMMON STOCK" means the par value $.01 per share
common stock of the Company.
(f) "COMPANY" means Hutchinson Technology Incorporated.
(g) "COMPENSATION" means the gross cash compensation
(including wage, salary, commission, bonus, and overtime
earnings) paid by the Company or any Affiliate to a
Participant in accordance with the terms of employment.
(h) "DISINTERESTED PERSON" means a member of the Board of
Directors who is considered a disinterested person within the
meaning of Exchange Act Rule 16b-3 or any successor
definition.
1
<PAGE>
(i) "ELIGIBLE EMPLOYEE" means any employee of the Company
or an Affiliate whose customary employment is at least 20
hours per week; provided, however, that "Eligible Employee"
shall not include any person who would be deemed, for purposes
of Section 423(b)(3) of the Code, to own stock possessing 5%
or more of the total combined voting power or value of all
classes of stock of the Company.
(j) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended from time to time.
(k) "FAIR MARKET VALUE" of a share of Common Stock as of
any date means, if the Company's Common Stock is listed on a
national securities exchange or traded in the national market
system, the closing price for such Common Stock on such
exchange or market on said date, or, if no sale has been made
on such exchange or market on said date, on the last preceding
day on which any sale shall have been made. If such
determination of Fair Market Value is not consistent with the
then current regulations of the Secretary of the Treasury
applicable to plans intended to qualify as an "employee stock
purchase plan" within the meaning of Section 423(b) of the
Code, however, Fair Market Value shall be determined in
accordance with such regulations. The determination of Fair
Market Value shall be subject to adjustment as provided in
Section 14.
(l) "PARTICIPANT" means an Eligible Employee who has
elected to participate in the Plan in the manner set forth in
Section 4.
(m) "PLAN" means this Hutchinson Technology Incorporated
Employee Stock Purchase Plan, as amended from time to time.
(n) "PURCHASE PERIOD" means a calendar quarter or such
other period of time as may be adopted by the Committee.
(o) "RECORDKEEPING ACCOUNT" means the account maintained
in the books and records of the Company recording the amount
withheld from each Participant through payroll deductions made
under the Plan.
3. SCOPE OF THE PLAN. Shares of Common Stock may be sold by
the Company to Eligible Employees at any time after this Plan has been
approved by the shareholders of the Company, but not more than 1,500,000
shares of Common Stock (subject to adjustment as provided in Section 14)
shall be sold to Eligible Employees pursuant to this Plan. All sales of
Common Stock pursuant to this Plan shall be subject to the same terms,
conditions, rights and privileges.
2
<PAGE>
4. ELIGIBILITY AND PARTICIPATION. To be eligible to
participate in the Plan for a given Purchase Period, an employee must be an
Eligible Employee on the first day of such Purchase Period. An Eligible
Employee may elect to participate in the Plan by filing an election form with
the Company before the first day of a Purchase Period that authorizes regular
payroll deductions from Compensation beginning with the first payday in such
Purchase Period and continuing until the Plan is terminated or the Eligible
Employee withdraws from the Plan, modifies his or her authorization, or
ceases to be an Eligible Employee, as hereinafter provided.
5. AMOUNT OF COMMON STOCK EACH ELIGIBLE EMPLOYEE MAY PURCHASE.
5.1. Subject to the provisions of this Plan, each Eligible
Employee shall be offered the right to purchase on the last day of the
Purchase Period the maximum number of shares of Common Stock (including
fractional shares) that can be purchased at the price specified in
Section 5.2 with the entire balance in the Participant's Recordkeeping
Account; provided, however, that the Fair Market Value (determined on
the first day of any Purchase Period) of shares of Common Stock that
may be purchased by a Participant during such Purchase Period shall not
exceed the excess, if any, of (i) $25,000 over (ii) the Fair Market
Value (determined on the first day of the relevant Purchase Period) of
shares of Common Stock previously acquired by the Participant in any
prior Purchase Period during such calendar year. Notwithstanding the
foregoing, no Eligible Employee shall be granted an option to acquire
shares of Common Stock under this Plan which permits the Eligible
Employee's rights to purchase shares of Common Stock under this Plan
and all employee stock purchase plans (within the meaning of Section
423(b) of the Code), if any, of the Company and its Affiliates to
accrue at a rate which exceeds $25,000 of Fair Market Value (determined
at the time such option is granted) for each calendar year in which
such option is outstanding at any time. If the purchases by all
Participants would otherwise cause the aggregate number of shares of
Common Stock to be sold under the Plan to exceed the number specified
in Section 3, however, each Participant shall be allocated a ratable
portion of the maximum number of shares of Common Stock which may be
sold.
5.2. The purchase price of each share of Common Stock sold
pursuant to this Plan will be the lesser of:
(a) 85% of the Fair Market Value of such share on the
first day of the Purchase Period, or
(b) 85% of the Fair Market Value of such share on the
last day of the Purchase Period.
6. METHOD OF PARTICIPATION.
6.1. The Company shall give notice to each Eligible
Employee of the opportunity to purchase shares of Common Stock pursuant
to this Plan and the terms and conditions for such offering. Such
notice is subject to revision by the Company at any time
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prior to the date of purchase of such shares. The Company contemplates
that for tax purposes the first day of a Purchase Period will be the
date of the offering of such shares.
6.2. Each Eligible Employee who desires to participate in
the Plan for a Purchase Period shall signify his or her election to do
so by signing and filing with the Company an election form developed by
the Committee. An Eligible Employee may elect to have any whole percent
of Compensation withheld as a payroll deduction, but not exceeding ten
percent (10%) per pay period. An election to participate in the Plan
and to authorize payroll deductions as described herein must be made
before the first day of a Purchase Period. The election shall be
effective for the first pay period in the Purchase Period immediately
following the filing of such election form and shall remain in effect
until the Plan is terminated or such Participant withdraws from the
Plan, modifies his or her authorization, or ceases to be an Eligible
Employee, as hereinafter provided.
7. RECORDKEEPING ACCOUNT.
7.1. The Company shall maintain a Recordkeeping Account
for each Participant. Payroll deductions pursuant to Section 6 will be
credited to such Recordkeeping Accounts on each payday.
7.2. No interest will be credited to a Participant's
Recordkeeping Account.
7.3. The Recordkeeping Account is established solely for
accounting purposes, and all amounts credited to the Recordkeeping
Account will remain part of the general assets of the Company.
7.4. A Participant may not make any separate cash payment
into a Recordkeeping Account.
8. RIGHT TO ADJUST PARTICIPATION; WITHDRAWALS FROM RECORDKEEPING
ACCOUNT.
8.1. A Participant may at any time withdraw from the Plan.
If a Participant withdraws from the Plan, the Company will pay to the
Participant in cash the entire balance in such Participant's
Recordkeeping Account and no further deductions will be made from the
Participant's Compensation during such Purchase Period. A Participant
who withdraws from the Plan will not be eligible to reenter the Plan
until the next succeeding Purchase Period.
8.2. Except as otherwise provided in Section 8.1, a
Participant may only increase or decrease the deductions from his or
her Compensation as of the first pay period in any Purchase Period.
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8.3. Notification of a Participant's election (i) to
withdraw from the Plan and terminate deductions or (ii) to increase or
decrease deductions shall be made by signing and filing with the
Company an appropriate form developed by the Committee.
9. TERMINATION OF EMPLOYMENT. If the employment of a Participant
is terminated for any reason, including death, disability, or retirement, the
entire balance in the Participant's Recordkeeping Account will be refunded in
cash to the Participant within 15 days after the date of termination of
employment.
10. PURCHASE OF SHARES.
10.1. As of the last day of the Purchase Period, the entire
balance in each Participant's Recordkeeping Account will be used to
purchase shares (including fractional shares) of Common Stock (subject
to the limitations of Section 5) unless the Participant has filed an
appropriate form with the Company in advance of that date (which elects
to receive all or a portion of the balance in cash). Any amount in a
Participant's Recordkeeping Account that is not used to purchase shares
pursuant to this Section 10.1 will be refunded to the Participant.
10.2. Promptly after the end of each Purchase Period, a
certificate for the number of shares of Common Stock purchased by all
Participants shall be issued and delivered to an agent selected by the
Company. The agent will hold such certificate for the benefit of all
Participants who have purchased shares of Common Stock and will
maintain an account for each Participant reflecting the number of
shares (including fractional shares) credited to the account of each
Participant. Each Participant will be entitled to direct the voting of
all shares credited to such Participant's account by the agent. Each
Participant may also direct such agent to sell such shares and
distribute the net proceeds of such sale to the Participant. At any
time after the Participant has satisfied the minimum holding period
requirements established by Section 423(a)(1) of the Code, a
Participant may request from the agent a certificate representing the
shares of Common Stock credited to the Participant's account, in which
case the agent shall transfer a certificate for such shares directly to
the Participant; provided, however, that the agent shall not be
required to issue a certificate representing a fractional share and may
instead pay the Participant a cash amount representing the fair market
value of such fractional share.
11. RIGHTS AS A SHAREHOLDER. A Participant shall not be
entitled to any of the rights or privileges of a shareholder of the Company
with respect to shares of Common Stock, including the right to vote or direct
the voting or to receive any dividends that may be declared by the Company,
until (a) the Participant actually has paid the purchase price for such
shares and (b) certificates for such shares have been issued either to the
agent or to the Participant, both as provided in Section 10.
12. RIGHTS NOT TRANSFERABLE. A Participant's rights under this
Plan are exercisable only by the Participant during his or her lifetime, and
may not be sold, pledged, assigned, transferred or
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disposed of in any manner other than by will or the laws of descent and
distribution. Any attempt to sell, pledge, assign, transfer or dispose of the
same shall be null and void and without effect. The amounts credited to a
Recordkeeping Account may not be sold, pledged, assigned, transferred or
disposed of in any way, and any attempted sale, pledge, assignment, transfer
or other disposition of such amounts will be null and void and without effect.
13. ADMINISTRATION OF THE PLAN. This Plan shall be administered
by the Committee, which is authorized to make such uniform rules as may be
necessary to carry out its provisions. The Committee shall determine any
questions arising in the administration, interpretation and application of
this Plan, and all such determinations shall be conclusive and binding on all
parties. If the Board of Directors has not designated a committee to
administer this Plan, then the Compensation Committee of the Board of
Directors shall constitute the Committee.
14. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. In the event of
any change in the Common Stock of the Company by reason of stock dividends,
stock splits, reverse stock splits, corporate separations, recapitalizations,
mergers, consolidations, combinations, exchanges of shares and the like, the
aggregate number and class of shares available under this Plan and the
number, class and purchase price of shares available but not yet purchased
under this Plan, may be adjusted appropriately by the Committee.
15. REGISTRATION OF CERTIFICATES. Stock certificates will be
registered in the name of the Participant, or jointly in the name of the
Participant and another person, as the Participant may direct on an
appropriate form filed with the Company or the agent.
16. AMENDMENT OF PLAN. The Board of Directors may at any time
amend this Plan in any respect which shall not adversely affect the rights of
Participants pursuant to shares previously acquired under the Plan, except
that, without shareholder approval, no amendment shall be made to (a)
increase the number of shares reserved under this Plan, or (b) change the
designation of corporations whose employees may be eligible to participate in
the Plan.
17. EFFECTIVE DATE OF PLAN. This Plan shall be effective upon
approval thereof by the shareholders of the Company. All rights of
Participants in any offering hereunder shall terminate at the earlier of (a)
the day that Participants become entitled to purchase a number of shares of
Common Stock equal to or greater than the number of shares remaining
available for purchase or (b) at any time, at the discretion of the Board of
Directors. Except as otherwise determined by the Board of Directors, upon
termination of this Plan, the Company shall pay to each Participant cash in
an amount equal to the entire balance in such Participant's Recordkeeping
Account.
18. GOVERNMENTAL REGULATIONS AND LISTING. All rights granted or
to be granted to Eligible Employees under this Plan are expressly subject to
all applicable laws and regulations and to the approval of all governmental
authorities required in connection with the authorization, issuance, sale or
transfer of the shares of Common Stock reserved for this Plan, including,
without limitation, there being a current registration statement of the
Company under the Securities Act of 1933, as amended, covering the shares of
Common Stock purchasable on the last day of the
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Purchase Period applicable to such shares, and if such a registration
statement shall not then be effective, the term of such Purchase Period shall
be extended until the first business day after the effective date of such a
registration statement, or post-effective amendment thereto. If applicable,
all such rights hereunder are also similarly subject to effectiveness of an
appropriate listing application to a national market system covering the
shares of Common Stock under the Plan upon official notice of issuance.
19. MISCELLANEOUS.
19.1. This Plan shall not be deemed to constitute a
contract of employment between the Company and any Participant, nor
shall it interfere with the right of the Company to terminate any
Participant and treat him or her without regard to the effect which
such treatment might have upon him or her under this Plan.
19.2. Wherever appropriate as used herein, the masculine
gender may be read as the feminine gender, the feminine gender may be
read as the masculine gender, the singular may be read as the plural
and the plural may be read as the singular.
19.3. This Plan, and all agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of
Minnesota.
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