<PAGE>
As filed with the Securities and Exchange Commission on April 23, 1997.
Subject to amendment.
Registration No.333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------
WESTERBEKE CORPORATION
(Exact name of issuer as specified in its charter)
DELAWARE 041925880
(State or other jurisdiction (I.R.S. Employer
of incorporation Identification No.)
or organization)
----------
Avon Industrial Park
Avon, Massachusetts 02322
(Address of principal executive offices)
----------
WESTERBEKE CORPORATION
1996 STOCK OPTION PLAN
(Full title of the plan)
----------
JOHN H. WESTERBEKE, JR.
President
Westerbeke Corporation
Avon Industrial Park
Avon, Massachusetts 02322
(508) 588-7700
(Name, address and telephone number,
including area code, of agent for service)
----------
Copy to:
THOMAS M. HAYTHE, Esq.
Haythe & Curley
237 Park Avenue
New York, New York 10017
----------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the
Registration Statement becomes effective.
----------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================
Proposed
Title of Proposed maximum maximum Amount of
securities to Amount to offering aggregate registration
be registered be registered price per share* offering price* fee
<S> <C> <C> <C> <C>
Common Stock 150,000 $2.9375 $440,625.00 $133.52
($.01 par
value)
===============================================================================
</TABLE>
* Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h)(1) under the Securities Act of 1933, as
amended, on the basis of the average of the high and low prices of the
Common Stock on April 18, 1997, as reported on the NASDAQ National Market
System.
Page 1 of 34 pages
<PAGE>
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The Company hereby states that (i) the documents listed in (a) through
(c) below are incorporated by reference in this Registration Statement and (ii)
all documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
October 26, 1996.
(b) Quarterly Report on Form 10-Q for the quarter ended January 25,
1997.
(c) The description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A, filed on July 2, 1986.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Thomas M. Haythe, Esq., a partner in the law firm of Haythe & Curley,
the Company's Counsel, is a director of the Company. As of April 18, 1997, Mr.
Haythe held options under the Company's Stock Option Plan to purchase 11,220
shares of the Company's Common Stock.
<PAGE>
3
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article Sixth of the Certificate of Incorporation of the Company
provides that the Company shall indemnify and hold harmless any director,
officer, employee or agent of the Company from and against any all expenses and
liabilities that may be imposed upon or incurred by him in connection with, or
as a result of, any proceeding in which he may become involved, as a party or
otherwise, by reason of the fact that he is or was such a director, officer,
employee or agent of the Company, whether or not he continues to be such at the
time such expenses and liabilities shall have been imposed or incurred, to the
extent permitted by the laws of the State of Delaware, as they may be amended
from time to time.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The Exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
Item 9. Undertakings.
------------
The undersigned Registrant hereby undertakes, except as otherwise
specifically provided in the rules of the Securities and Exchange Commission
promulgated under the Securities Act of 1933:
(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 this Registration
<PAGE>
4
Statement (or the most recent post-effective amendment hereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(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 paragraphs (1)(i) and (1)(ii) do not apply if this
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 by the Registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in
this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; 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 offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a
<PAGE>
5
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
6
POWER OF ATTORNEY
The Registrant and each person whose signature appears below hereby
appoints John H. Westerbeke, Jr. and Thomas M. Haythe as attorneys-in-fact with
full power of substitution, severally, to execute in the name and on behalf of
the Registrant and each such person, individually and in each capacity stated
below, one or more amendments (including post-effective amendments) to this
Registration Statement as the attorney-in-fact acting in the premises deems
appropriate and to file any such amendment to this Registration Statement with
the Securities and Exchange Commission.
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 Avon and Commonwealth of Massachusetts on the 22nd
day of April, 1997.
WESTERBEKE CORPORATION
By /s/ John H. Westerbeke, Jr.
------------------------------
John H. Westerbeke, Jr.
Chairman of the Board
and President
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>
Signature Title Date
- ------------------------------- --------------------- ----
<S> <C>
/s/ John H. Westerbeke, Jr. Chairman of the
- ------------------------------- Board, President and 4/22/97
John H. Westerbeke, Jr. Principal Executive
Officer
</TABLE>
<PAGE>
7
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------- --------------------- ----
<S> <C> <C>
/s/ Carleton F. Bryant III Executive Vice 4/22/97
- ------------------------------- President, Chief
Carleton F. Bryant III Operating Officer
and Principal
Financial and
Accounting Officer
/s/ Gerald Bench Director 4/22/97
- -------------------------------
Gerald Bench
/s/ Thomas M. Haythe Director 4/22/97
- -------------------------------
Thomas M. Haythe
/s/ Nicholas H. Safford Director 4/22/97
- -------------------------------
Nicholas H. Safford
/s/ James W. Storey Director 4/22/97
- -------------------------------
James W. Storey
/s/ John H. Westerbeke, Sr. Director 4/22/97
- -------------------------------
John H. Westerbeke, Sr.
</TABLE>
<PAGE>
8
CONSENT OF INDEPENDENT ACCOUNTANTS
[LETTERHEAD OF PEAT MARWICK LLP]
Consent of Independent Auditors
-------------------------------
To the Board of Directors and Stockholders
of Westerbeke Corporation:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Westerbeke Corporation of our report dated December 20, 1996
relating to the consolidated balance sheets of Westerbeke Corporation and
subsidiary as of October 26, 1996 and October 28, 1995, and the related
consolidated statements of operations, changes in stockholders' equity, and cash
flows for each of the years in the three-year period ended October 26, 1996, and
related schedule, which report appears in the October 26, 1996 annual report on
Form 10-K of Westerbeke Corporation.
/s/ KPMG Peat Marwick LLP
Boston, Massachusetts
April 22, 1997
<PAGE>
9
CONSENT OF COUNSEL
The consent of Haythe & Curley is contained in their opinion filed as
Exhibit 5 to this Registration Statement.
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Number Description of Exhibit Page
- ------ ---------------------- ----
<S> <C> <C> <C>
4(i) - Copy of the Plan 11
4(ii) - Form of Stock Option Certificate 18
4(iii) - Form of Incentive Stock Option 26
Certificate
5 - Opinion of Haythe & Curley 34
23(i) - Consent of KPMG Peat Marwick LLP 8
(See "Consent of Independent
Accountants" in the Registration
Statement)
23(ii) - Consent of Haythe & Curley
(contained in Exhibit 5)
24 - Power of Attorney (See "Power 6
of Attorney" in the Registration
Statement)
</TABLE>
<PAGE>
EXHIBIT 4(i)
WESTERBEKE CORPORATION
1996 STOCK OPTION PLAN
1. Purposes of Plan. The purposes of the Plan, which shall be known as
----------------
the Westerbeke Corporation 1996 Stock Option Plan and is hereinafter referred to
as the "Plan", are (i) to provide incentives for key employees, directors,
consultants and other individuals providing services to Westerbeke Corporation
(the "Company") and its subsidiary corporations (within the meaning of Section
424(f) of the Internal Revenue Code of 1986, as amended (the "Code"), and
referred to herein as "Subsidiary") by encouraging their ownership of the common
stock, $.01 par value, of the Company (the "Stock") and (ii) to aid the Company
in retaining such key employees, directors, consultants and other individuals
upon whose efforts the Company's success and future growth depends, and
attracting other such employees, directors, consultants and other individuals.
2. Administration. The Plan shall be administered by the Stock Option
--------------
Committee (the "Committee") of the Board of Directors, as hereinafter provided.
For purposes of administration, the Committee, subject to the terms of the Plan,
shall have plenary authority to establish such rules and regulations, to make
such determinations and interpretations, and to take such other administrative
actions as it deems necessary or advisable. All determinations and
interpretations made by the Committee shall be final, conclusive and binding on
all persons, including optionees and their legal representatives and
beneficiaries.
The Committee shall be appointed from time to time by the Board of
Directors and shall consist of not fewer than three of its members. Unless
otherwise determined by the Board of Directors, no member of the Board of
Directors who serves on the Committee shall be eligible to participate in the
Plan. The Board of Directors shall designate one of the members of the
Committee as its Chairman. The Committee shall hold its meetings at such times
and places as it may determine. A majority of its members shall constitute a
quorum. All determinations of the Committee shall be made by a majority of its
members. Any decision or determination reduced to writing and signed by all
members shall be as effective as if it had been made by a majority vote at a
meeting duly called and held. The Committee may appoint a secretary (who need
not be a member of the Committee). No member of the Committee shall be liable
for any act or omission with respect to his service on the Committee, if he acts
in good faith and in a manner he reasonably believes to be in or not opposed to
the best interests of the Company.
3. Stock Available for Options. There shall be available for options
---------------------------
under the Plan a total of 150,000 shares of Stock, subject to any adjustments
which may be made pursuant to Section 5(f) hereof. Shares of Stock used for
<PAGE>
2
purposes of the Plan may be either authorized and unissued shares, or previously
issued shares held in the treasury of the Company, or both. Shares of Stock
covered by options which have terminated or expired prior to exercise shall be
available for further options hereunder. The maximum number of shares of Stock
which may be subject to options granted to any individual in any two-year period
shall not exceed 100,000 shares, subject to any adjustments which may be made
pursuant to Section 5(f) hereof.
4. Eligibility. Options under the Plan may be granted to key employees of
-----------
the Company or any Subsidiary, including officers or directors of the Company or
any Subsidiary, and to directors, consultants and other individuals providing
services to the Company or any Subsidiary. Options may be granted to eligible
individuals whether or not they hold or have held options previously granted
under the Plan or otherwise granted or assumed by the Company. In selecting
individuals for options, the Committee may take into consideration any factors
it may deem relevant, including its estimate of the individual's present and
potential contributions to the success of the Company and its Subsidiaries.
Service as a director, officer or consultant of or to the Company or any
Subsidiary shall be considered employment for purposes of the Plan (and the
period of such service shall be considered the period of employment for purposes
of Section 5(d) of the Plan); provided, however, that incentive stock options
may be granted under the Plan only to an individual who is an "employee", as
such term is used in Section 422 of the Code, of the Company or any Subsidiary.
5. Terms and Conditions of Options. The Committee shall, in its
-------------------------------
discretion, prescribe the terms and conditions of the options to be granted
hereunder, which terms and conditions need not be the same in each case, subject
to the following:
(a) Option Price. The price at which each share of Stock covered by an
------------
option granted under the Plan may be purchased shall be determined by the
Committee and shall not be less than the market value per share of Stock on the
date of grant of the option. The date of grant of an option shall be the date
specified by the Committee in its grant of the option.
(b) Option Period. The period for exercise of an option shall in no event
-------------
be more than ten years from the date of grant, or in the case of any option
intended to be an incentive stock option granted to an individual owning, on the
date of grant, stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company or any Subsidiary, more than five years
from the date of grant. Options may, in the discretion of the Committee, be
made exercisable in installments during the option period. Any shares not
purchased on any applicable installment date may be purchased thereafter at any
time before the expiration of the
<PAGE>
3
option period. The Committee shall have the authority at any time to accelerate
the exercisability of all or any portion of any option granted under the Plan.
(c) Exercise of Options. In order to exercise an option, the Optionee
-------------------
shall deliver to the Company written notice specifying the number of shares of
Stock to be purchased, together with cash or a certified or bank cashier's check
payable to the order of the Company in the full amount of the purchase price
therefor; provided that, for the purpose of assisting an Optionee to exercise an
option, the Company may make loans to the Optionee or guarantee loans made by
third parties to the Optionee, on such terms and conditions as the Board of
Directors may authorize; and provided further that such purchase price may be
paid in shares of Stock owned by the Optionee for a period of at least six
months having a market value on the date of exercise equal to the aggregate
purchase price, or in a combination of cash and Stock. For purposes of this
Section 5(c), the market value per share of Stock shall be the last sale price
regular way on the date of reference, or, in case no sale takes place on such
date, the average of the high bid and low bid prices, in either case on the
principal national securities exchange on which the Stock is listed or admitted
to trading, or if the Stock is not listed or admitted to trading on any national
securities exchange, the last sale price reported on the National Market System
of the National Association of Securities Dealers Automated Quotation System
("NASDAQ") on such date, or the average of the closing high bid and low asked
prices of the Stock in the over-the-counter market reported on NASDAQ on such
date, whichever is applicable, or if there are no such prices reported on NASDAQ
on such date, as furnished to the Committee by any New York Stock Exchange
member selected from time to time by the Committee for such purpose. If there
is no bid or asked price reported on any such date, the market value shall be
determined by the Committee in accordance with the regulations promulgated under
Section 2031 of the Code, or by any other appropriate method selected by the
Committee. If the Optionee so requests, shares of Stock purchased upon exercise
of an option may be issued in the name of the Optionee or another person. An
Optionee shall have none of the rights of a stockholder until the shares of
Stock are issued to him. An option may not be exercised for less than ten
shares of Stock, or the number of shares of Stock remaining subject to such
option, whichever is smaller.
(d) Effect of Termination of Employment. An option may not be exercised
-----------------------------------
after the Optionee has ceased to be in the employ of the Company or any
Subsidiary, except in the following circumstances:
(i) If the Optionee's employment is terminated by action of his
employer, or by reason of disability or retirement under any retirement plan
maintained by the Company or any Subsidiary, the option may be exercised by
the Optionee within three months after such termination, but only as to any
shares exercisable on the date the Optionee's employment so terminates;
<PAGE>
4
(ii) In the event of the death of the Optionee during the three month
period after termination of employment covered by (i) above, the person or
persons to whom his rights are transferred by will or the laws of descent
and distribution shall have a period of one year from the date of his death
to exercise any options which were exercisable by the Optionee at the time
of his death;
(iii) In the event of the death of the Optionee while employed, the
option shall thereupon become exercisable in full, and the person or persons
to whom the Optionee's rights are transferred by will or the laws of descent
and distribution shall have a period of one year from the date of the
Optionee's death to exercise such option. The provisions of the foregoing
sentence shall apply to any outstanding options which are incentive stock
options to the extent permitted by Section 422(d) of the Code and such
outstanding options in excess thereof shall, immediately upon the occurrence
of the event described in the preceding sentence, be treated for all
purposes of the Plan as nonstatutory stock options and shall be immediately
exercisable as such as provided in the foregoing sentence.
Notwithstanding any provision of the Plan to the contrary, the Committee shall
have the authority to extend the period during which any option may be
exercised; provided, however, that an option may not be exercised more than
eighteen (18) months after termination of employment and in no event shall any
option be exercisable more than ten years from the date of grant thereof.
Nothing in the Plan or in any option granted pursuant to the Plan (in the
absence of an express provision to the contrary) shall confer on any individual
any right to continue in the employ of the Company or any Subsidiary or
interfere in any way with the right of the Company to terminate his employment
at any time.
(e) Nontransferability of Options. Except as provided in the next
-----------------------------
sentence, (i) during the lifetime of an Optionee, options held by such Optionee
shall be exercisable only by him and (ii) no option shall be transferable other
than by will or the laws of descent and distribution. The Committee shall have
the authority to make any option transferable in whole or in part by the
optionee to members of the family of the optionee or to trusts for the benefit
of, or partnerships or other entities beneficially owned by, the optionee or
members of his family.
(f) Adjustments for Change in Stock Subject to Plan. In the event of a
-----------------------------------------------
reorganization, recapitalization, stock split, stock dividend, combination of
shares, merger, consolidation, rights offering, extraordinary dividend or
divestiture (including a spin-off) or any other change in the corporate
structure or shares of the Company, (i) except as provided in (ii) below, the
Committee shall make such adjustments, if any, as it deems appropriate in the
number and kind of shares subject to the Plan, in the number and kind of shares
covered by outstanding options, or in the option price
<PAGE>
5
per share, or both and (ii) the Board of Directors of the Company shall make
such adjustments, if any, as it deems appropriate in the maximum number of
shares which may be subject to options granted to all directors of the Company
and in the maximum number of shares which may be subject to options granted to
each director, in each case pursuant to Section 5(j), in the number and kind of
shares covered by outstanding options, or in the option price per share, or
both, with respect to options held by directors of the Company.
(g) Acceleration of Exercisability of Options Upon Occurrence of
------------------------------------------------------------
Certain Events. In connection with any merger or consolidation in which the
- --------------
Company is not the surviving corporation and which results in the holders of the
outstanding voting securities of the Company (determined immediately prior to
such merger or consolidation) owning less than a majority of the outstanding
voting securities of the surviving corporation (determined immediately following
such merger or consolidation), or any sale or transfer by the Company of all or
substantially all its assets or any tender offer or exchange offer for or the
acquisition, directly or indirectly, by any person or group of all or a majority
of the then outstanding voting securities of the Company, all outstanding
options under the Plan shall become exercisable in full, notwithstanding any
other provision of the Plan or of any outstanding options granted thereunder, on
and after (i) the fifteenth day prior to the effective date of such merger,
consolidation, sale, transfer or acquisition or (ii) the date of commencement of
such tender offer or exchange offer, as the case may be. The provisions of the
foregoing sentence shall apply to any outstanding options which are incentive
stock options to the extent permitted by Section 422(d) of the Code and such
outstanding options in excess thereof shall, immediately upon the occurrence of
the event described in clause (i) or (ii) of the foregoing sentence, be treated
for all purposes of the plan as nonstatutory stock options and shall be
immediately exercisable as such as provided in the foregoing sentence.
Notwithstanding the foregoing, in no event shall any option be exercisable after
the date of termination of the exercise period of such option specified in
Sections 5(b), 5(d) and 5(j)(2).
(h) Registration, Listing and Qualification of Shares of Stock. Each
----------------------------------------------------------
option shall be subject to the requirement that if at any time the Board of
Directors shall determine that the registration, listing or qualification of the
shares of Stock covered thereby upon any securities exchange or under any
federal or state law, or the consent or approval of any governmental regulatory
body is necessary or desirable as a condition of, or in connection with, the
granting of such option or the purchase of shares of Stock thereunder, no such
option may be exercised unless and until such registration, listing,
qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Board of Directors. The Company may
require that any person exercising an option shall make such representations and
agreements and furnish such information as it deems appropriate to assure
compliance with the foregoing or any other applicable legal requirement.
<PAGE>
6
(i) Other Terms and Conditions. The Committee may impose such other
--------------------------
terms and conditions, not inconsistent with the terms hereof, on the grant or
exercise of options, as it deems advisable.
(j) Terms and Conditions of Options Granted to Directors.
----------------------------------------------------
Notwithstanding any provision contained in the Plan to the contrary, during any
period when any member of the Committee shall not be a "disinterested person" as
defined in Rule 16b-3 under the Securities Exchange Act of 1934, as such Rule
was in effect at April 30, 1991, then, the terms and conditions of options
granted under the Plan to any director of the Company during such period shall
be as follows:
(1) The price at which each share of Stock subject to an option may be
purchased shall, subject to any adjustments which may be made pursuant to
Section 5(f), in no event be less than the market value per share of Stock on
the date of grant, and provided further that in the event the option is intended
to be an incentive stock option pursuant to Section 6 and the Optionee owns on
the date of grant securities possessing more than 10% of the total combined
voting power of all classes of securities of the Company or of any Subsidiary,
the price per share shall not be less than 110% of the market value per share of
Stock on the date of grant.
(2) The option may be exercised to purchase shares of Stock covered by
the option not sooner than six months following the date of grant. The option
shall terminate and no shares of Stock may be purchased thereunder more than ten
years after the date of grant, provided that if the option is intended to be an
incentive stock option pursuant to Section 6 and the Optionee owns on the date
of grant stock possessing more than 10% of the total combined voting power of
all classes of securities of the Company or of any Subsidiary, the option shall
terminate and no shares of Stock may be purchased thereunder more than five
years after the date of grant.
(3) The maximum number of shares of Stock which may be subject to
options granted to all directors pursuant to this Section 5(j) shall be 150,000
shares in the aggregate. The maximum number of shares of Stock which may be
subject to options granted to any director who is an officer or employee of the
Company is 100,000. The maximum number of shares of Stock which may be subject
to options granted to any director who is not an officer or employee of the
Company shall be 20,000 shares.
6. Additional Provisions Applicable to Incentive Stock Options. The
-----------------------------------------------------------
Committee may, in its discretion, grant options under the Plan to eligible
employees which constitute "incentive stock options" within the meaning of
Section 422 of the Code, provided, however, that (a) the aggregate market value
of the Stock with respect to which incentive stock options are exercisable for
the first time by the Optionee during any calendar year shall not exceed the
limitation set forth in Section
<PAGE>
7
422(d) of the Code, (b) if the Optionee owns on the date of grant securities
possessing more than 10% of the total combined voting power of all classes of
securities of the Company or of any Subsidiary, the price per share shall not be
less than 110% of the market value per share on the date of grant and (c)
Section 5(d)(ii) hereof shall not apply to any incentive stock option.
7. Amendment and Termination. Unless the Plan shall theretofore have
-------------------------
been terminated as hereinafter provided, the Plan shall terminate on, and no
option shall be granted hereunder after, December 31, 2005; provided, however,
that the Board of Directors may at any time prior to that date terminate the
Plan. The Board of Directors may at any time amend the Plan or the terms of any
option outstanding under the Plan; provided, however, that, except as
contemplated in Section 5(f), the Board of Directors shall not, without approval
by a majority of the votes cast thereon by the stockholders of the Company at a
meeting of stockholders at which a proposal to amend the Plan is voted upon, (i)
increase the maximum number of shares of Stock for which options may be granted
under the Plan, (ii) amend the Plan to change the minimum option price, (iii)
amend the Plan to extend the period during which options may be granted or
exercised, or (iv) except as otherwise provided in the Plan, amend the
requirements as to the class of individuals eligible to receive options. No
termination or amendment of the Plan or any option outstanding under the Plan
may, without the consent of an Optionee, adversely affect the rights of such
Optionee under any option held by such Optionee.
8. Effectiveness of Plan. The Plan will not be made effective unless
---------------------
approved at a meeting of stockholders of the Company duly called and held for
such purpose by a majority of the votes cast thereon by the stockholders of the
Company, and no option granted hereunder shall be exercisable prior to such
approval.
9. Withholding. It shall be a condition to the obligation of the
-----------
Company to issue shares of Stock upon exercise of an option, that the Optionee
(or any beneficiary or person entitled to act under Section 5(d) hereof) pay to
the Company, upon its demand, such amount as may be requested by the Company for
the purpose of satisfying any liability to withhold federal, state or local
income or other taxes. If the amount requested is not paid, the Company may
refuse to issue such shares of Stock.
10. Other Actions. Nothing contained in the Plan shall be construed
-------------
to limit the authority of the Company to exercise its corporate rights and
powers, including but not by way of limitation, the right of the Company to
grant or assume options for proper corporate purposes other than under the Plan
with respect to any employee or other person, firm, corporation or association.
<PAGE>
EXHIBIT 4(ii)
WESTERBEKE CORPORATION
Stock Option Certificate
Under 1996 Stock Option Plan
--------------------------------------
Date of Grant:
Name of Optionee:
Number of Shares:
Price Per Share:
This is to certify that, effective on the date of grant specified above,
the Stock Option Committee (the "Committee") of the Board of Directors of
Westerbeke Corporation (the "Company") has granted to the above-named optionee
(the "Optionee") an option to purchase from the Company, for the price per share
set forth above, the number of shares of Common Stock, $.01 par value (the
"Stock"), of the Company set forth above pursuant to the Westerbeke Corporation
1996 Stock Option Plan (the "Plan"). This option is not intended to be treated
as an "incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"). The terms and conditions of the
option granted hereby, in addition to the terms and conditions contained in the
Plan, are as follows:
1. The price at which each share of Stock subject to this option may
be purchased shall be the price set forth above, subject to any adjustments
which may be made pursuant to Section 9 hereof.
<PAGE>
2
2. Subject to the terms and conditions set forth herein, this option
may be exercised at any time to purchase any or all shares of Stock covered by
this option only in accordance with the following schedule:
Cumulative Percentage
of Aggregate Number of
Shares of Stock Covered
by Option which May be
Exercise Period Purchased
--------------- -----------------------
Within one year from date of grant. . . . . . 0%
Beginning one year from date of grant . . . . 20%
Beginning two years from date of grant. . . . 40%
Beginning three years from date of grant. . . 60%
Beginning four years from date of grant . . . 80%
Beginning five years from date of grant . . . 100%
less, in the case of each exercise period, the number of shares of Stock, if
any, previously purchased hereunder. This option shall terminate and no shares
of Stock may be purchased hereunder more than ten years from date of grant.
3. Except as provided in Section 7 hereof, this option may not be
exercised unless the Optionee is in the employ of the Company or one of its
parent or subsidiary corporations (within the meaning of Section 424(e) and (f)
of the Code, and referred to herein as "Parent" and "Subsidiary", respectively)
at the time of such exercise and shall have been such employee continuously
since the date of the grant of this option. For purposes of this option,
<PAGE>
3
service as a director, officer or consultant of the Company shall be considered
employment.
4. Subject to the terms and conditions set forth herein, the
Optionee may exercise this option at any time as to all or any of the shares of
Stock then purchasable in accordance with Section 2 hereof by delivering to the
Company written notice specifying:
(i) the number of whole shares of Stock to be purchased
together with payment in full of the aggregate option price of such
shares, provided that this option may not be exercised for less than
ten (10) shares of Stock or the number of shares of Stock remaining
subject to option, whichever is smaller;
(ii) the name or names in which the stock certificate or
certificates are to be registered;
(iii) the address to which dividends, notices, reports,
etc. are to be sent; and
(iv) the Optionee's social security number.
Only one Stock certificate will be issued unless the Optionee otherwise requests
in writing. Payment shall be in cash, or by certified or bank cashier's check
payable to the order of the Company, free from all collection charges; provided,
however, that payment may be made in shares of Stock owned by the Optionee for a
period of at least six (6) months having a market value on the date of exercise
equal to the aggregate purchase price, or in a combination of cash and Stock.
For purposes of this option, the market value per share of Stock shall be the
last sale price regular way on
<PAGE>
4
the date of reference, or, in case no sale takes place on such date, the average
of the high bid and low bid prices, in either case on the principal national
securities exchange on which the Stock is listed or admitted to trading, or if
the Stock is not listed or admitted to trading on any national securities
exchange, the last sale price reported on the National Market System of the
National Association of Securities Dealers Automated Quotation System ("NASDAQ")
on such date, or the average of the closing high bid and low asked prices of the
Stock in the over-the-counter market reported on NASDAQ on such date, whichever
is applicable, or if there are no such prices reported on NASDAQ on such date,
as furnished to the Committee by any New York Stock Exchange member selected
from time to time by the Committee for such purpose. If there is no bid or
asked price reported on any such date, the market value shall be determined by
the Committee in accordance with the regulations promulgated under Section 2031
of the Code, or by any other appropriate method selected by the Committee. If
the Optionee so requests, shares of Stock purchased upon exercise of an option
may be issued in the name of the Optionee or another person. No Optionee shall
be entitled to any rights as a stockholder of the Company in respect of any
shares of Stock covered by this option until such shares of Stock shall have
been paid for in full and issued to the Optionee.
<PAGE>
5
5. As soon as practicable after the Company receives payment for
shares of Stock covered by this option, it shall deliver a certificate or
certificates representing the shares of Stock so purchased to the Optionee.
Such certificate shall be registered in the name of the Optionee, or in such
other name or names as the Optionee shall request.
6. This option is personal to the Optionee and during the Optionee's
lifetime may be exercised only by the Optionee. This option shall not be
transferable other than by will or the laws of descent and distribution.
7. In the event that the Optionee's employment as an employee of the
Company or of any Subsidiary or Parent (hereinafter the "Optionee's employment")
is terminated prior to the time that this option has been fully exercised, this
option shall be exercisable, as to any remaining shares of Stock subject hereto,
only in the following circumstances:
(i) if the Optionee's employment is terminated by action of
his employer, or by reason of disability or retirement under any
retirement plan maintained by the Company or any Subsidiary or Parent,
this option may be exercised by the Optionee within three months after
such termination, but only as to any shares exercisable on the date
the Optionee's employment so terminates;
(ii) in the event of the death of the Optionee during the
three month period after termination of the Optionee's employment
covered by (i)
<PAGE>
6
above, the person or persons to whom his rights are transferred by
will or the laws of descent and distribution shall have a period of
one year from the date of his death to exercise any options which were
exercisable by the Optionee at the time of his death; and
(iii) in the event of the death of the Optionee while
employed, the option shall thereupon become exercisable in full, and
the person or persons to whom the Optionee's rights are transferred by
will or the laws of descent and distribution shall have a period of
one year from the date of the Optionee's death to exercise such
option.
Notwithstanding the foregoing, this option shall in no event be exercisable
after the date of termination of such option specified in Section 2 hereof.
8. This option does not confer on the Optionee any right to continue
in the employ of the Company or interfere in any way with the right of the
Company to determine the terms of the Optionee's employment.
9. In the event of a reorganization, recapitalization, stock split,
stock dividend, combination of shares, merger, consolidation, rights offering,
extraordinary dividend or divestiture (including a spin-off) or any other change
in the corporate structure or shares of the Company, the Committee shall make
such adjustments, if any, as it deems appropriate in the number and kind of
shares covered by this option, or in the option price per share hereunder, or
both.
<PAGE>
7
10. This option shall be subject to the requirement that if at any
time the Board of Directors shall determine that the registration, listing or
qualification of the shares of Stock covered hereby upon any securities exchange
or under any federal or state law, or the consent or approval of any
governmental regulatory body is necessary or desirable as a condition of, or in
connection with, the granting of this option or the purchase of shares of Stock
hereunder, this option may not be exercised unless and until such registration,
listing, qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board of Directors. The Committee
may require that the person exercising this option shall make such
representations and agreements and furnish such information as it deems
appropriate to assure compliance with the foregoing or any other applicable
legal requirements.
11. This option and the terms and conditions herein set forth are
subject in all respects to the terms and conditions of the Plan, which shall be
controlling. All interpretations or determinations of the Committee shall be
binding and conclusive upon the Optionee and his legal representatives on any
question arising hereunder or under the Plan.
<PAGE>
8
12. All notices hereunder to the Company shall be delivered or mailed
to the following address:
Westerbeke Corporation
Avon Industrial Park
Avon, Massachusetts 02322
Attention: Secretary, Stock Option
Committee
Such address for the service of notices may be changed at any time provided
notice of such change is furnished in advance to the Optionee.
WESTERBEKE CORPORATION
By_________________________________
<PAGE>
EXHIBIT 4(iii)
WESTERBEKE CORPORATION
Incentive Stock Option Certificate
Under 1996 Stock Option Plan
--------------------------------------
Date of Grant:
Name of Optionee:
Number of Shares:
Price Per Share:
This is to certify that, effective on the date of grant specified above,
the Stock Option Committee (the "Committee") of the Board of Directors of
Westerbeke Corporation (the "Company") has granted to the above-named optionee
(the "Optionee") an option to purchase from the Company, for the price per share
set forth above, the number of shares of Common Stock, $.01 par value (the
"Stock"), of the Company set forth above pursuant to the Westerbeke Corporation
1996 Stock Option Plan (the "Plan"). This option is intended to be treated as
an "incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"). The terms and conditions of the
option granted hereby, in addition to the terms and conditions contained in the
Plan, are as follows:
1. The price at which each share of Stock subject to this option may
be purchased shall be the price set forth above, subject to any adjustments
which may be made pursuant to Section 9 hereof, provided that it shall in no
event be
<PAGE>
2
less than the Fair Market Value per share of Stock on the date of grant, and
provided further that in the event the Optionee owns on the date of grant
securities possessing more than ten percent (10%) of the total combined voting
power of all classes of securities of the Company or of an Affiliate, the price
per share shall not be less than one hundred ten percent (110%) of the Fair
Market Value per share of Stock on the date of grant.
2. Subject to the terms and conditions set forth herein, this option
may be exercised at any time to purchase any or all shares of Stock covered by
this option only in accordance with the following schedule:
Cumulative Percentage
of Aggregate Number of
Shares of Stock Covered
by Option which May be
Exercise Period Purchased
--------------- -----------------------
Within one year from date of grant. . . . . . 0%
Beginning one year from date of grant . . . . 20%
Beginning two years from date of grant. . . . 40%
Beginning three years from date of grant. . . 60%
Beginning four years from date of grant . . . 80%
Beginning five years from date of grant . . . 100%
less, in the case of each exercise period, the number of shares of Stock, if
any, previously purchased hereunder. This option shall terminate and no shares
of Stock may be purchased hereunder more than ten years from date of grant,
<PAGE>
3
provided that if the Optionee owns on the date of grant securities possessing
more than ten percent (10%) of the total combined voting power of all classes of
securities of the Company or of an Affiliate, this Option shall terminate and no
shares of Stock may be purchased hereunder more than five (5) years after the
date of grant.
3. Except as provided in Section 7 hereof, this option may not be
exercised unless the Optionee is in the employ of the Company or one of its
parent or subsidiary corporations (within the meaning of Section 424(e) and (f)
of the Code, and referred to herein as "Parent" and "Subsidiary", respectively)
at the time of such exercise and shall have been such employee continuously
since the date of the grant of this option.
4. Subject to the terms and conditions set forth herein, the
Optionee may exercise this option at any time as to all or any of the shares of
Stock then purchasable in accordance with Section 2 hereof by delivering to the
Company written notice specifying:
(i) the number of whole shares of Stock to be purchased
together with payment in full of the aggregate option price of such
shares, provided that this option may not be exercised for less than
ten (10) shares of Stock or the number of shares of Stock remaining
subject to option, whichever is smaller;
(ii) the name or names in which the stock certificate or
certificates are to be registered;
(iii) the address to which dividends, notices, reports,
etc. are to be sent; and
<PAGE>
4
(iv) the Optionee's social security number.
Only one Stock certificate will be issued unless the Optionee otherwise requests
in writing. Payment shall be in cash, or by certified or bank cashier's check
payable to the order of the Company, free from all collection charges; provided,
however, that payment may be made in shares of Stock owned by the Optionee for a
period of at least six (6) months having a market value on the date of exercise
equal to the aggregate purchase price, or in a combination of cash and Stock.
For purposes of this option, the market value per share of Stock shall be the
last sale price regular way on the date of reference, or, in case no sale takes
place on such date, the average of the high bid and low bid prices, in either
case on the principal national securities exchange on which the Stock is listed
or admitted to trading, or if the Stock is not listed or admitted to trading on
any national securities exchange, the last sale price reported on the National
Market System of the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") on such date, or the average of the closing high bid
and low asked prices of the Stock in the over-the-counter market reported on
NASDAQ on such date, whichever is applicable, or if there are no such prices
reported on NASDAQ on such date, as furnished to the Committee by any New York
Stock Exchange member selected from time to time by the Committee for such
<PAGE>
5
purpose. If there is no bid or asked price reported on any such date, the
market value shall be determined by the Committee in accordance with the
regulations promulgated under Section 2031 of the Code, or by any other
appropriate method selected by the Committee. If the Optionee so requests,
shares of Stock purchased upon exercise of an option may be issued in the name
of the Optionee or another person. No Optionee shall be entitled to any rights
as a stockholder of the Company in respect of any shares of Stock covered by
this option until such shares of Stock shall have been paid for in full and
issued to the Optionee.
5. As soon as practicable after the Company receives payment for
shares of Stock covered by this option, it shall deliver a certificate or
certificates representing the shares of Stock so purchased to the Optionee.
Such certificate shall be registered in the name of the Optionee, or in such
other name or names as the Optionee shall request.
6. This option is personal to the Optionee and during the Optionee's
lifetime may be exercised only by the Optionee. This option shall not be
transferable other than by will or the laws of descent and distribution.
7. In the event that the Optionee's employment as an employee of the
Company or of any Subsidiary or Parent (hereinafter the "Optionee's employment")
is terminated prior to the time that this option has been fully exercised,
<PAGE>
6
this option shall be exercisable, as to any remaining shares of Stock subject
hereto, only in the following circumstances:
(i) if the Optionee's employment is terminated by action of
his employer, or by reason of disability or retirement under any
retirement plan maintained by the Company or any Subsidiary or Parent,
this option may be exercised by the Optionee within three months after
such termination, but only as to any shares exercisable on the date
the Optionee's employment so terminates;
(ii) in the event of the death of the Optionee during the
three month period after termination of the Optionee's employment
covered by (i) above, the person or persons to whom his rights are
transferred by will or the laws of descent and distribution shall have
a period of one year from the date of his death to exercise any
options which were exercisable by the Optionee at the time of his
death; and
(iii) in the event of the death of the Optionee while
employed, the option shall thereupon become exercisable in full, and
the person or persons to whom the Optionee's rights are transferred by
will or the laws of descent and distribution shall have a period of
one year from the date of the Optionee's death to exercise such
option.
Notwithstanding the foregoing, this option shall in no event be exercisable
after the date of termination of such option specified in Section 2 hereof.
8. This option does not confer on the Optionee any right to continue
in the employ of the Company or
<PAGE>
7
interfere in any way with the right of the Company to determine the terms of the
Optionee's employment.
9. In the event of a reorganization, recapitalization, stock split,
stock dividend, combination of shares, merger, consolidation, rights offering,
extraordinary dividend or divestiture (including a spin-off) or any other change
in the corporate structure or shares of the Company, the Committee shall make
such adjustments, if any, as it deems appropriate in the number and kind of
shares covered by this option, or in the option price per share hereunder, or
both.
10. This option shall be subject to the requirement that if at any
time the Board of Directors shall determine that the registration, listing or
qualification of the shares of Stock covered hereby upon any securities exchange
or under any federal or state law, or the consent or approval of any
governmental regulatory body is necessary or desirable as a condition of, or in
connection with, the granting of this option or the purchase of shares of Stock
hereunder, this option may not be exercised unless and until such registration,
listing, qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board of Directors. The Committee
may require that the person exercising this option shall make such
representations and agreements and furnish such information as it deems
appropriate to assure
<PAGE>
8
compliance with the foregoing or any other applicable legal requirements.
11. This option and the terms and conditions herein set forth are
subject in all respects to the terms and conditions of the Plan, which shall be
controlling. All interpretations or determinations of the Committee shall be
binding and conclusive upon the Optionee and his legal representatives on any
question arising hereunder or under the Plan.
12. All notices hereunder to the Company shall be delivered or mailed
to the following address:
Westerbeke Corporation
Avon Industrial Park
Avon, Massachusetts 02322
Attention: Secretary, Stock Option
Committee
Such address for the service of notices may be changed at any time provided
notice of such change is furnished in advance to the Optionee.
WESTERBEKE CORPORATION
By_________________________________
<PAGE>
EXHIBIT 5
[LETTERHEAD OF HAYTHE & CURLEY]
April 22, 1997
Westerbeke Corporation
Avon Industrial Park
Avon, Massachusetts 02322
Dear Sirs:
We have acted as counsel for Westerbeke Corporation, a Delaware
corporation (the "Company"), in connection with the registration statement
on Form S-8 being filed by the Company under the Securities Act of 1933
with respect to 150,000 shares (the "Option Shares") of the Company's
common stock, $.01 par value (the "Common Stock"), which have been or are
to be offered by the Company pursuant to the Company's 1996 Stock Option
Plan (the "Stock Option Plan").
In connection with such registration statement, we have examined such
records and documents and such questions of law as we have deemed
appropriate for purposes of this opinion. On the basis of such examination,
we advise you that in our opinion the Option Shares have been duly and
validly authorized and, when issued and paid for in accordance with the
terms of the Stock Option Plan and stock options duly granted or to be
granted thereunder, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
foregoing registration statement.
Very truly yours,
/s/ Haythe & Curley
