As filed with the Commission on November 21, 1995 File No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ORBITAL SCIENCES CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 06-1209561
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
21700 Atlantic Boulevard
Dulles, Virginia 20166
(Address of principal executive offices, including zip code)
MACDONALD, DETTWILER AND ASSOCIATES LTD.
AMENDED AND RESTATED KEY EMPLOYEE SHARE OPTION PLAN - 1994,
KEY EMPLOYEE SHARE OPTION PLAN - 1993,
KEY EMPLOYEE SHARE OPTION PLAN - 1988, AND
EMPLOYEE SHARE OPTION PLAN - 1988
(Full title of the plans)
Leslie C. Seeman
Senior Vice President, General Counsel and Secretary
Orbital Sciences Corporation
21700 Atlantic Boulevard
Dulles, Virginia 20166
(703) 406-5000
(Name, address and telephone number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
Securities to be maximum maximum registration
to be registered offering aggregate fee(2)
registered price per offering
share(1) price(1)
<S> <C> <C> <C> <C> <C>
Common Stock 328,399(3) $6.14311 $2,017,391 $696
par value,
$.01
</TABLE>
(1) Represents the weighted average offering price of shares registered
hereunder. The offering price for each share registered hereunder, each
of which is subject to an option on the date hereof, is the actual
exercise price of such option.
(2) Registration fee consists of (a) $215.17 payable in respect of 101,412
shares subject to options at an exercise price of $6.15 per share, (b)
$39.02 payable in respect of 61,137 shares subject to options at an
exercise price of $1.85 per share, (c) $215.12 payable in respect of
81,085 shares subject to options at an exercise price of $7.69 per share,
(d) $197.97 payable in respect of 75,603 shares subject to options at an
exercise price of $7.59 per share, and (e) $28.54 payable in respect of
9,162 shares subject to options at an exercise price of $9.03 per share.
(3) Plus, pursuant to Rule 416(c), such indeterminate number of additional
shares of Common Stock as may be required in the event of a stock
dividend, reverse stock split or combination of shares, recapitalization
or other change in the Company's capital stock.
PAGE 1
Item 3. Incorporation of Documents by Reference.
Orbital Sciences Corporation (the "Registrant" or the "Company") hereby
incorporates the following documents herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995, June 30, 1995, and September 30, 1995;
(c) The Company's Report on Form 8-K dated November 2, 1995;
(d) The Company's Report on Form 8-K/A dated November 6, 1995; and
(e) The Description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under Section 12 of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act") and
all amendments or reports filed for the purpose of updating such
description.
All other documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the termination of the offering of the securities
offered hereby 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. Any statement contained herein or 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 in any subsequently filed document that also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 6. Indemnification of Directors and Officers.
The Company is a Delaware Corporation. Section 145 of the Delaware
General Corporation Law sets forth provisions that define the extent to which a
corporation organized under the laws of Delaware may indemnify directors,
officers, employees or agents. Section 145 provides as follows:
(a) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be
in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
PAGE 2
(b) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b), or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless
ordered by a court) shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b). Such determination shall be made (1) by the
board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (2) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion,
or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in this
Section. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any by-
law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under the provisions of this section.
PAGE 3
(h) For purposes of this Section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of this Section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation
if its separate existence had continued.
(i) For purposes of this Section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Paragraph Ten of the Company's Restated Certificate of Incorporation
provides that the Company shall, to the maximum extent permitted by Delaware
law, indemnify and, upon request, advance expenses to any person:
...who is or was a party or is threatened to be made a party to any
threatened, pending or completed action, suit, proceeding or claim,
whether civil, criminal, administrative or investigative, by reason of the
fact that such person is or was or has agreed to be a director or officer
of this Corporation or while a director or officer is or was serving at
the request of this Corporation as a director, officer, partner, trustee,
employee or agent of any corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit
plans, against expenses (including attorney's fees and expenses),
judgments, fines, penalties and amount paid in settlement incurred in
connection with the investigation, preparation to defend or defense of
such action, suit, proceeding or claim, provided, however, that the
foregoing shall not require this Corporation to indemnify or advance
expenses to any person in connection with any action, suit, proceeding,
claim or counterclaim initiated by or on behalf of such person. Any
person seeking indemnification under this Paragraph 10 shall be deemed to
have met the standard of conduct required for such indemnification unless
the contrary shall be established.
Section 102(b)(7) of the Delaware General Corporation Law permits
corporations to eliminate or limit the personal liability of their directors by
adding to the Certificate of Incorporation a provision eliminating or limiting
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director for (a) any
breach of any director's duty of loyalty to the corporation or its
stockholders, (b) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) payment of dividends
or repurchases or redemptions of stock other than from lawfully available
funds, or (d) any transaction from which the director derived an improper
personal benefit. Paragraph Nine of the Company's Restated Certificate of
Incorporation provides that no director of the Company shall be liable to the
Company or its stockholders for
PAGE 4
monetary damages for breach of fiduciary duty as a director, except to the
extent that exculpation from liability is not permitted under the
Delaware General Corporation Law as in effect at the time
such liability is determined.
In addition, the Company has entered into substantially identical
indemnification agreements with each of its Directors and Executive Officers
and certain other officers. The Company has agreed, to the full extent
permitted by the Delaware General Corporation Law, as amended from time to
time, to indemnify each indemnitee against all loss and expense incurred by the
indemnitee because he was, is or is threatened to be made a party to any
completed, pending or threatened action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he was a
director, officer, employee or agent of the Company or any of its affiliates,
or because the Company has a right to judgment in its favor because of his
position with the Company or any of its affiliates. The indemnitee will be
indemnified so long as he acted in good faith and in a manner reasonably
believed by him to be in or not opposed to the Company's best interests. The
agreement further provides that the indemnification thereunder is not exclusive
of any other rights the indemnitee may have under the Company's Restated
Certificate of Incorporation, By-Laws or any agreement or vote of stockholders,
nor may the Restated Certificate of Incorporation or By-Laws be amended to
effect adversely the rights of any indemnitee.
Item 8. Exhibits.
The following exhibits are filed as a part of this Registration Statement.
Where such filing is made by incorporation by reference (I/B/R) to a previously
filed statement or report, such statement or report is identified in
parentheses.
Exhibit
No. Description Page No.
3.1 Restated Certificate of I/B/R
Incorporation (Exhibit 3.1 to
the Company's Registration
Statement on Form S-1 (File
Number 33-33453) filed on
February 9, 1990 and effective
on April 24, 1990).
3.2 By-Laws of the Company (Exhibit I/B/R
3 to the Company's Quarterly
Report on Form 10-Q for the
fiscal quarter ended September
30, 1995).
4.1 Specimen Certificate of Common I/B/R
Stock (Exhibit 4.1 to the
Company's Registration
Statement on Form S-1 (File
Number 33-33453) filed on
February 9, 1990 and effective
on April 24, 1990).
4.2 Orbital Sciences Corporation I/B/R
1990 Stock Option Plan (Exhibit
4.4 to the Company's
Registration Statement on Form
S-8 (File Number 33-47789)
filed on and effective on May
11, 1992).
4.3 Orbital Sciences Corporation I/B/R
1990 Stock Option Plan for Non-
Employee Directors (Exhibit 4.5
to the Company's Registration
Statement on Form S-8 (File
Number 33-47789) filed on and
effective on May 11, 1992).
PAGE 5
4.4 Form of Indenture dated as of I/B/R
January 26, 1993 among the
Company and Security Trust
Company, National Association
as Trustee (Exhibit 4.4 to the
Company's Annual Report on Form
10-K for the fiscal year ended
December 31, 1992).
4.5 Form of 6 3/4% Convertible I/B/R
Subordinated Debenture due 2003
(Exhibit 4.5 to the Company's
Annual Report on Form 10-K for
the fiscal year ended December
31, 1992).
4.6 MacDonald, Dettwiler and
Associates Ltd. Amended and
Restated Key Employee Share
Option Plan - 1994.
4.7 MacDonald, Dettwiler and
Associates Ltd. Key Employee
Share Option Plan - 1993.
4.8 MacDonald, Dettwiler and
Associates Ltd. Key Employee
Share Option Plan - 1988, as
amended by Amendment No. 1
dated November 17, 1995.
4.9 MacDonald, Dettwiler and
Associates Ltd. Employee Share
Option Plan - 1988, as amended
by Amendment No. 1 dated
November 17, 1995.
4.10 Form of Replacement Option.
5 Opinion of Ropes & Gray.
23.1 Consent of Ropes & Gray
(contained in Exhibit 5).
23.2 Consent of KPMG Peat Marwick
LLP.
23.3 Consent of KPMG Peat Marwick
Thorne.
24 Powers of Attorney (contained
on the Signature Page of this
Registration Statement).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement; (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii)
to reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment
thereof), which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement; 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 (ii) shall not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or
PAGE 6
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 such post-effective amendment 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;
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
PAGE 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 County of Loudoun, the Commonwealth of Virginia, on
this 17th day of November, 1995.
ORBITAL SCIENCES CORPORATION
By /s/ David W. Thompson
David W. Thompson, Chairman
of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of the 17th day of November, 1995. Each person whose
signature appears below hereby authorized each of David W. Thomson, Leslie C.
Seeman and Mary Ellen Seravalli and appoints each of them singly his attorney-
in-fact, each with full power of substitution, to execute in his name, place
and stead, in any and all capacities, any post-effective amendment to this
Registration Statement and file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
making such further changes in this Registration Statement as the Company deems
appropriate.
Signature Title
/s/ David W. Thompson Chairman of the Board, President
David W. Thompson and Chief Executive Officer; Director
/s/ Carlton B. Crenshaw Senior Vice President/Finance and
Carlton B. Crenshaw Administration; Chief Financial Officer
/s/ Jeffrey V. Pirone Vice President and Controller
Jeffrey V. Pirone
/s/ Bruce W. Ferguson Executive Vice President and General
Bruce W. Ferguson Manager/Communications and Information
Systems Group; Director
/s/ James R. Thompson Executive Vice President and General
James R. Thompson Manager/Launch Systems Group; Director
PAGE 8
/s/ Jack A. Frohbieter Executive Vice President and General
Jack A. Frohbieter Manager/Space and Electronics Systems
Group; Director
/s/ Fred C. Alcorn Director
Fred C. Alcorn
/s/ Kelly H. Burke Director
Kelly H. Burke
/s/ Daniel J. Fink Director
Daniel J. Fink
/s/ Lennard A. Fisk Director
Lennard A. Fisk
/s/ Jack L. Kerrebrock Director
Jack L. Kerrebrock
/s/ J. Paul Kinloch Director
J. Paul Kinloch
/s/ Douglas S. Luke Director
Douglas S. Luke
/s/ John L. McLucas Director
John L. McLucas
/s/ Harrison H. Schmitt Director
Harrison H. Schmitt
/s/ Scott L. Webster Director
Scott L. Webster
PAGE 9
INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibits Numbered Page
3.1 Restated Certificate of Incorporation
(Exhibit 3.1 to the Company's I/B/R
Registration Statement on Form S-1
(File Number 33-33453) filed on
February 9, 1990 and effective on
April 24, 1990).
3.2 By-Laws of the Company (Exhibit 3 to I/B/R
the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended
September 30, 1995).
4.1 Specimen Certificate of Common Stock I/B/R
(Exhibit 4.1 to the Company's
Registration Statement on Form S-1
(File Number 33-33453) filed on
February 9, 1990 and effective on
April 24, 1990).
4.2 Orbital Sciences Corporation 1990 I/B/R
Stock Option Plan (Exhibit 4.4 to the
Company's Registration Statement on
Form S-8 (File Number 33-47789) filed
on and effective on May 11, 1992).
4.3 Orbital Sciences Corporation 1990 I/B/R
Stock Option Plan for Non-Employee
Directors (Exhibit 4.5 to the
Company's Registration Statement on
Form S-8 (File Number 33-47789) filed
on and effective on May 11, 1992).
4.4 Form of Indenture dated as of January I/B/R
26, 1993 among the Company and
Security Trust Company, National
Association, as Trustee (Exhibit 4.4
to the Company's Annual Report on Form
10-K for the fiscal year ended
December 31, 1992).
4.5 Form of 6 3/4% Convertible Subordinated I/B/R
Debenture due 2003 (Exhibit 4.5 to the
Company's Annual Report on Form 10-K
for the fiscal year ended December 31,
1992).
4.6 MacDonald, Dettwiler and Associates
Ltd. Key Employee Share Option Plan -
1994.
4.7 MacDonald, Dettwiler and Associates
Ltd. Key Employee Share Option Plan -
1993.
4.8 MacDonald, Dettwiler and Associates
Ltd. Key Employee Share Option Plan -
1988, as amended by Amendment No. 1
dated November 17, 1995.
4.9 MacDonald, Dettwiler and Associates
Ltd. Employee Share Option Plan -
1988, as amended by Amendment No. 1
dated November 17, 1995.
4.10 Form of Replacement Option.
PAGE 1
5 Opinion of Ropes & Gray.
23.1 Consent of Ropes & Gray (contained in
Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of KPMG Peat Marwick Thorne.
24 Powers of Attorney (contained on the
Signature Page of this Registration
Statement).
PAGE 2
MACDONALD, DETTWILER AND ASSOCIATES LTD.
AMENDED AND RESTATED KEY EMPLOYEE SHARE OPTION PLAN ("KESOP 94")
1. Purposes of the Plan
The purposes of the Key Employee Share Option Plan ("KESOP 94") of
MacDonald, Dettwiler and Associates Ltd. (the "Plan") are (i) to permit
key managers of MacDonald, Dettwiler and Associates Ltd. (the
"Corporation") and of its subsidiaries options ("Options") to purchase
common shares ("Shares") of the Corporation thereby encouraging them to
obtain an increased proprietary interest in the enterprise and provide an
additional incentive to further its growth and development, (ii) to assist
the Corporation in attracting and retaining executives with experience and
ability, and (iii) align their thinking with that of the shareholders.
2. Administration
Subject to sections 3 and 4 below, the Plan shall be administered by the
Compensation Committee (the "Committee") of the Board of Directors of the
Corporation; none of whom shall be employees of the Corporation or its
subsidiaries. The Committee shall have full and complete authority to
interpret the Plan to prescribe such rules and regulations (including
those with respect to the holding of meetings by telephone) and to make
such other determinations as it deems necessary or desirable for the
administration of the Plan. A majority of the Committee shall constitute
a quorum. Acts approved in writing by all members shall be valid acts of
the Committee.
2. Shares subject to the Plan
The Board of Directors of the Corporation shall authorize from time to
time the issue of such number of shares of the Corporation pursuant to the
Plan as may be necessary to permit the Corporation to meet its obligations
under the Plan or may satisfy its obligations under the Plan by way of
Shares purchased by or through the market. Subject to any adjustment
provided for in section 10, the aggregate number of Shares covered by
Options granted to Optionees (as hereinafter defined), with respect to any
year, pursuant to the Plan shall not, in any case, ever exceed (i) if the
total amount of Shares which may be reserved for issuance and held under
option under the Plan or any other plans granted by the Corporation
exceeds 10% of the issued and outstanding common shares of the
Corporation, such numbers of common shares as may be approved by the
shareholders of the Corporation; or (ii) the ceiling per year set from
time to time by the Board of Directors of the Corporation.
PAGE 1
4. Grant of Options
After a consultation with the Chief Executive Officer and subject to
confirmation by the Board of Directors the Committee shall from time to
time, on an annual basis, or otherwise as may be determined by the Board
of Directors, choose from among key managers those managers ("Optionees")
to whom it recommends that Options should be granted and the number of
Shares which it recommends be covered by each such grant. The date of
confirmation by the Board of Directors of the grant of an Option is
hereinafter referred to as the effective date ("Effective Date"). Each
Option shall be confirmed by an instrument in writing issued by the
Corporation to the Optionee. Any Optionee, at the time of granting of an
Option, may hold more than one Option.
5. Subscription Price
The subscription price for each Share covered by an Option shall be
established by the Committee at 100% of the market value (as hereinafter
defined) of a Share on the last trading day prior to the Effective Date.
6. Option Period
Each Option shall be exercisable by the Optionee during a period ("Option
Period") of three years from the date of vesting of any options or such
other period as is established by the Committee at the time of grant
thereof, which in any event shall be not more than ten years after the
Effective Date, and also provided that:
6.1 in the event of the death of the Optionee while in the employ of the
Corporation or any subsidiary, the Option Period for Options
outstanding at the time of death for which the right to exercise had
accrued shall terminate 12 months after the date of death (but not
after the termination date of the Option first established by the
Committee), and the Optionee's estate shall have the right prior to
such termination to exercise the Options at any time with respect to
all or, from time to time, with respect to any part of the Shares
which the Optionee had not exercised pursuant to such Options.
Options for which the right to exercise had not yet accrued may also
be similarly exercised by the Optionee's estate;
6.2 if an Optionee's employment terminates, other than by death or
disability, the Option Period for Options then outstanding and vested
shall terminate 30 days after the date of termination and the
Optionee (or the Optionee's estate in the event of death after
termination) shall have the right prior to such termination to
exercise the Options which are vested with respect to all or, from
time to time, with respect to any part of the Shares which the
Optionee had not exercised
PAGE 2
pursuant to such Options which are vested;
all unvested Options shall terminate on the date of any such
termination; and
6.3 if an Optionee's employment terminates for reason of disability, the
Option Period for Options then outstanding shall vest and terminate
on the dates as set forth in the Option as if the Optionee were still
an employee.
All rights under an Option unexercised at the termination of the Option Period
shall be forfeited.
7. Exercise of Option
The Committee may determine at the Effective Date to permit exercise of an
Option at certain times during the Option Period and to permit vesting of
the Option in varying amounts during the Option Period and if not so
determined shall vest as to 20% immediately and as to the remaining 80%
shall vest in four equal installments in the four succeeding years of the
Option. An Option may only be exercised after accrual or vesting (with
respect to that portion vested), in whole at any time, or in part from
time to time. The subscription price for Shares shall be paid in full in
cash at the time of exercise of the Option.
8. Delivery of Share Certificates
On the exercise of an Option, the Corporation shall deliver to the
Optionee or, in the event of death of the Optionee, to the Optionee's
estate, certificates for the resulting Shares registered in the name of
the Optionee.
9. Non-assignable
No Option or any interest therein shall be assignable by the Optionee
otherwise than by will or the laws governing the devolution of property in
the event of death. During the lifetime of the Optionee the Option shall
be exercisable only by the Optionee or the Optionee's legal
representative.
10. Effects of Alteration of Share Capital
In the event that the outstanding Shares of the Corporation shall be
changed into or exchanged for a different number or kind of securities of
the Corporation or of another corporation, whether through an arrangement,
amalgamation or other similar statutory procedure, or a share
recapitalization, subdivision or consolidation, then there shall be
substituted for each Share subject to any such Option, for each Share
authorized for issuance pursuant to the Plan but not yet covered by an
Option and the maximum number of shares issuable with respect to any year,
the number and kind of securities
PAGE 3
into which each outstanding share shall be so changed or for which each
such Share shall be exchanged.
In the event there shall be any change, other than as specified about in
this section, in the number oR kind of outstanding Shares of the
Corporation or of any securities into which such Shares shall have been
changed or for which it shall have been exchanged, then an equitable
adjustment shall be made in the number or kind of shares thereto for
authorized for issuance pursuant to the Plan but not yet covered by an
Option, of the Shares then subject to an Option or Options, and in the
maximum number of Shares issuable with respect to any year, such
adjustment to be reasonably determined by the Committee and to be
effective and binding for all purposes.
In the case of any such substitution or adjustment as provided for in this
section, the Option price in each Share Option agreement for each Share
covered thereby prior to such substitution or adjustment will be
proportionately and appropriately varied. Such variation shall generally
require that the number of securities covered by the Option after the
relevant event multiplied by the revised Option price shall equal the
number of shares covered by the Option prior to the relevant event
multiplied by the original Option price. No adjustment or substitution
provided for in this section shall require the Corporation in any Share
Option agreement to issue a fractional Share and the total substitution or
adjustment with respect to each Share Option agreement shall be limited
accordingly.
11. Amendment and Termination
The Board of Directors of the Corporation may from time to time amend,
suspend or terminate the Plan in whole or in part. No such amendment,
suspension or termination may, without the consent of any Optionee holding
Options then issued and outstanding and unexercised, adversely affect the
right of such Optionee.
12. Listing
The obligation of the Corporation to issue Shares pursuant to the Plan
shall be subject to the condition that listing or authorization for
listing of such Shares on the stock exchange on which the shares are
listed (the "Exchange"), if required, shall have been obtained.
13. Certain Definitions
For purposes of the Plan:
"key managers" shall include the officers or other managers of the
Corporation, or of any subsidiary of the Corporation, who in the opinion
of the Committee have
PAGE 4
demonstrated a capacity for contributing in a
substantial measure to the successful performance of the Corporation or of
such subsidiaries;
"market value" shall mean the closing price for a board lot of Shares on
the principal Exchange on which the Shares are listed on the relevant day,
or if at least one board lot of Shares shall not have been traded on that
day, on the next preceding day for which at least one board lot was so
traded and if the Shares are not listed on any Exchange shall mean the
market value as established by the Board of Directors at the date of the
agreement;
"retirement" shall mean retirement in accordance with the provisions of
the retirement plan of the Corporation or subsidiary covering the Optionee
and, if the Optionee is not covered by such a plan, as determined by the
Committee; and
"subsidiary" shall mean any corporation a majority of whose shares
normally entitled to vote in electing directors is owned directly or
indirectly by the Corporation or by other subsidiaries.
PAGE 5
MACDONALD, DETTWILER AND ASSOCIATES LTD.
KEY EMPLOYEE SHARE OPTION PLAN ("KESOP 93")
1. Purposes of the Plan
The purposes of the Key Employee Share Option Plan ("KESOP 93") of
MacDonald, Dettwiler and Associates Ltd. (the "Plan") are (i) to permit
key managers of MacDonald, Dettwiler and Associates Ltd. (the
"Corporation") and of its subsidiaries options ("Options") to purchase
common shares ("Shares") of the Corporation thereby encouraging them to
obtain an increased proprietary interest in the enterprise and provide an
additional incentive to further its growth and development, (ii) to assist
the Corporation in attracting and retaining executives with experience and
ability, and (iii) align their thinking with that of the shareholders.
2. Administration
Subject to sections 3 and 4 below, the Plan shall be administered by the
Compensation Committee (the "Committee") of the Board of Directors of the
corporation; none of whom shall be employees of the Corporation or its
subsidiaries. The Committee shall have full and complete authority to
interpret the Plan to prescribe such rules and regulations (including
those with respect to the holding of meetings by telephone) and to make
such other determinations as it deems necessary or desirable for the
administration of the Plan. A majority of the Committee shall constitute
a quorum. Acts approved in writing by all members shall be valid acts of
the Committee.
3. Shares subject to the Plan
The Board of Directors of the Corporation shall authorize from time to
time the issue of such number of shares of the Corporation pursuant to the
Plan as may be necessary to permit the Corporation to meet its obligations
under the Plan or may satisfy its obligations under the plan by way of
Shares purchased by or through the market. Subject to any adjustment
provided for in section 10, the aggregate number of Shares covered by
Options granted to Optionees (as hereinafter defined), with respect to any
year, pursuant to the Plan shall not, in any case, ever exceed (i) the
total amount of Shares which may be held under option under the guidelines
of any stock exchange on which the Shares of the Corporation are listed;
and (ii) the ceiling per year set from time to time by the Board of
Directors of the Corporation.
4. Grant of Options
After a consultation with the Chief Executive Officer and subject to
confirmation by the Board of Directors the Committee shall from time to
time, on an annual basis, or
PAGE 1
otherwise as may be determined by the Board of Directors, choose from among
key managers those managers ("Optionees") to whom it recommends that
Options should be granted and the number of Shares which it recommends
be covered by each such grant. The date of confirmation by the Board
of Directors of the grant of an Option is hereinafter referred to as
the effective date ("Effective Date"). Each Option shall be confirmed
by an instrument in writing issued by the Corporation to the Optionee.
Any Optionee, at the time of granting of an Option, may hold more than
one Option.
5. Subscription Price
The subscription price for each Share covered by an Option shall be
established by the Committee at 100% of the market value (as hereinafter
defined) of a Share on the last trading day prior to the Effectie Date.
6. Option Period
Each Option shall be exercisabale by the Optionee during a period ("Option
Period") established by the Committee which shall terminate not later than
ten years after the Effective Date, and also provided that:
6.1 in the event of the death of the Optionee while in the employ of
the Corporation or any subsidiary, the Option Period for Options
outstanding at the time of death for which the right to exercise
had accrued shall terminate 12 months after the date of death
(but not after the termination date of the Option first
established by the Committee), and the Optionee's estate shall
have the right prior to such termination to exercise the Options
at any time with respect to all or, from time to time, with
respect to any part of the Shares which the Optionee had not
exercised pursuant to such Options. Options for which the right
to exercise had not yet accrued may also be similarly exercised
by the Optionee's estate;
6.2 if an Optionee's employment terminates, other than by death or
disability, the Option Period for Options then outstanding and
vested shall terminate 30 days after the date of termination and
the Optionee (or the Optionee's estate in the event of death
after termination) shall have the right prior to such
termination to exercise the Options which are vested with
respect to all or, from time to time, with respect to any part
of the Shares which the Optionee had not exercised pursuant to
such Options which are vested; all unvested Options shall
terminate on the date of any such termination; and
PAGE 2
6.3 if an Optionee's employment terminates for reason of disability,
the Option Period for Options then outstanding shall vest and
terminate on the dates as set forth in the Option as if the
Optionee were still an employee.
All rights uner an Option unexercised at the termination of the Option Period
shall be forfeited.
7. Exercise of Option
The Committee may determine at the Effective Date to permit exercise of an
Option at certain times during the Option Period and to permit vesting of
the Option in varying amounts during the Option Period and if not so
determined shall vest as to 20% immediately and as to the remaining 80%
shall vest in four equal instalments in the four succeeding years of the
Option. An Option may only be exercised after accrual or vesting (with
respect to that portion vested), in whole at any time, or in part from
time to time. The subscription price for Shares shall be paid in full in
cash at the time of exercise of the Option.
8. Delivery of Share Certificates
On the exercise of an Option, the Corporation shall deliver to the
Optionee or, in the event of death of the Optionee, to the Optionee's
estate, certificates for the resulting Shares registered in the name of
the Optionee.
9. Non-assignable
No Option or any interest therein shall be assignable by the Optionee
otherwise than by will or the laws governing the devolution of property in
the event of death. During the lifetime of the Optionee the Option shall
be exercisable only by the Optionee or the Optionee's legal
representative.
10. Effects of Alteration of Share Capital
In the event that the outstanding Shares of the Corporation shall be
changed into or exchanged for a different number or kind of securities of
the Corporation or of another corporation, whether through an arrangement,
amalgamation or other similar statutory procedure, or a share
recapitalization, subdivision or consolidation, then there shall be
substituted for each Share subject to any such Option, for each Share
authorized for issuance pursuant to the Plan but not yet covered by an
Option and the maximum number of shares issuable with respect to any year,
the number and kind of securities into which each outstanding share shall
be so changed or for which each such Share shall be exchanged.
PAGE 3
In the event there shall be any change, other than as specified about in
this section, in the number or kind of outstanding Shares of the
Corporation or of any securities into which such Shares shall have been
changed or for which it shall have been exchanged, then an equitable
adjustment shall be made in the number or kind of shares thereto for
authorized for issuance pursuant to the Plan but not yet covered by an
Option, of the Shares then subject to an Option or Options, and in the
maximum number of Shares issuable with respect to any year, such
adjustment to be reasonably determined by the Committee and to be
effective and binding for all purposes.
In the case of any such substitution or adjustment as provided for in this
section, the Option price in each Share Option agreement for each Share
covered thereby prior to such substitution or adjustment will be
proportionately and appropriately varied. Such variation shall generally
require that the number of securities covered by the Option after the
relevant event multiplied by the revised Option price shall equal the
number of shares covered by the Option prior to the relevant event
multiplied by the original Option price. No adjustment or substitution
provided for in this section shall require the Corporation in any Share
Option agreement to issue a fractional Share and the total substitution or
adjustment with respect to each share Option agreement shall be limited
accordingly.
11. Amendment and Termination
The Board of Directors of the Corporation may from time to time amend,
suspend or terminate the Plan in whole or in part. No such amendment,
suspension or termination may, without the consent of any Optionee holding
Options then issued and outstanding and unexercised, adversely affect the
right of such Optionee.
12. Listing
The obligation of the Corporation to issue Shares pursuant to the Plan
shall be subject to the condition that listing or authorization for
listing of such Shares on the stock exchange on which the shares are
listed (the "Exchange"), if required, shall have been obtained.
13. Effective Date of Plan
The effective date of the Plan shall be June 1, 1993.
14. Certain Definitions
For purposes of the Plan:
PAGE 4
"key managers" shall include the officers or other managers of the
Corporation, or of any subsidiary of the Corporation, who in the opinion
of the Committee have demonstrated a capacity for contributing in a
substantial measure to the successful performance of the Corporation or of
such subsidiaries;
"market value" shall mean the closing price for a board lot of Shares on
the principal Exchange on which the Shares are listed on the relevant day,
or if at least one board lot of Shares shall not have been traded on that
day, on the next preceding day for which at least one board lot was so
traded and if the Shares are not listed on any Exchange shall mean the
market value as established by the Board of Directors at the date of the
agreement;
"retirement" shall mean retirement in accordance with the provisions of
the retirement plan of the Corporation or subsidiary covering the Optionee
and, if the Optionee is not covered by such a plan, as determined by the
Committee; and
"subsidiary" shall mean any corporation a majority of whose shares
normally entitled to vote in electing directors is owned directly or
indirectly by the Corporation or by other subsidiaries.
KEY EMPLOYEE SHARE OPTION PLAN
WHEREAS the board of directors of the Company approved the
establishment of the Key Employee Share Option Plan - 1994 (the "Plan");
AND WHEREAS The Toronto Stock Exchange have requested an annulment to
the Plan.
NOW THEREFORE be it resolved that the Plan be amended by deleting
paragraph 3 and replacing it with the following:
"3. Shares subject to the Plan
The Board of Directors of the Corporation shall authorize from time to
time the issue of such number of shares of the Corporation pursuant to the
Plan as may be necessary to permit the Corporation to meet its obligations
under the Plan or may satisfy its obligations under the Plan by way of
Shares purchased by or through the market. Subject to any adjustment
provided for in section 10, the aggregate number of Shares covered by
Options granted to Optionees (as hereinafter defined), with respect to any
year, pursuant to the Plan shall not, in any case, ever exceed (i) the
total amount of Shares which may be reserved for issuance and held under
option under this Plan or any other plans granted by the Corporation, 10%
of the issued and outstanding Shares of or such other number as may be
established under the guidelines of any stock
PAGE 5
exchange on which the Shares of the Corporation are listed; and (ii) the
ceiling per year set from time to time by the Board of Directors of the
Corporation."
PAGE 6
Exhibit 4.8
Dated for reference purposes
only - August 31, 1988
MACDONALD, DETTWILER AND ASSOCIATES LTD.
1988 KEY EMPLOYEE SHARE OPTION PLAN (MSOP-88)
SECTIN 1 - DEFINITIONS
This 1988 Key Employee Share Option Plan (MSOP-88) of MacDonald, Dettwiler and
Associates Ltd. established the 11th day of March, 1988 with effect from and
after April 1, 1988.
1.1 In the Plan, the following words shall have the following meaning:
"Common Shares" means the common voting shares of MacDonald Dettwiler
as from time to time constituted;
"Company" means MacDonald Dettwiler, or any subsidiary, all of whose
voting shares are owned by MacDonald Dettwiler;
"Directors" means the Board of Directors of MacDonald Dettwiler as
from time to time constituted;
"Employee" means any person who is a permanent employee of the
Company, who works for at least 25 hours per week;
"ESOP-88" means the 1988 Employee Share Option Plan of MacDonald
Dettwiler dated March 11, 1988, as from time to time amended;
"Key Employee" means those Employees who are key Employees of the
Company as determined by the Directors;
"Leaving Date" means the earliest date on which the Key Employee
completes his service and ceases to be employed with the Company
(whether caused voluntarily by resignation or involuntarily by
dismissal or disability), or on which the Key Employee dies or on
which his services are otherwise terminated;
"MacDonald Dettwiler" means MacDonald, Dettwiler and Associates Ltd.;
PAGE 1
"MSOP-II" means the Management Share Option Plan II of MacDonald
Dettwiler dated April 1, 1985, as from time to time amended;
"Option" means the right to acquire Option Shares pursuant hereto;
"Option Shares" means the number of Common Shares of MacDonald
Dettwiler for which Options are granted as determined in Article 3
hereof;
"Plan" means this Key Employee Share Option Plan (MSOP-88), as from
time to time amended;
"Secretary" means the secretary of MacDonald Dettwiler;
"Subscription" means for any Key Employee, the number of Option
Shares subscribed for;
"Subscription Price" for each of the fiscal years means the price as
established pursuant to Section 5 hereof;
"TSE" means The Toronto Stock Exchange.
SECTION 2 - ELIGIBILITY
2.1 No person may be a Key Employee or be granted an Option hereunder to
acquire Option Shares unless that person is an Employee.
2.2 The Directors shall select those Employees who are entitled to become
Key Employees for the purpose of each fiscal year during the term of
this Plan. The Directors may in their discretion appoint a committee
of not less than three persons (of which not more than one person may
be an Employee) to consider and, if thought fit, approve such
recommendations, which approval shall be deemed to be designated by
the Directors.
SECTIN 3 - NUMBER OF OPTION SHARES AND TERM
3.1 The number of Option Shares available for grant under this Plan and
MSOP II shall not exceed 400,000 Common Shares, the amount to be
granted in each fiscal year to be as determined by the Directors.
3.2 The term of this Plan shall be 5 years from March 31, 1988 to March
31, 1992 provided, however, that with respect to any granted Option
same may have a term permitting vesting in excess of the 5 years and
with respect to any vested
PAGE 2
Option same may have a term permitting exercise thereof in excess of
the 5 years.
SECTION 4 - GRANT OF OPTION
4.1 The Company shall grant Options to Key Employees in respect of each
fiscal year of the Company commencing with the fiscal year ending
March 31, 1988 to and including the fiscal year ending March 31, 1992
in the manner as hereafter provided.
4.2 Each Key Employee, for each fiscal year that he is a Key Employee
shall, subject to compliance with the terms hereof, be granted an
Option to purchase such number of Option Shares as determined by the
Directors in each fiscal year of the Plan. The Key Employee will be
entitled to earn or be vested in the amount of Option Shares granted
to a Key Employee under this Plan in equal annual instalments over a
5 year period after the date of the grant.
4.3 Any Option hereunder is not transferable.
SECTION 5 - SUBSCRIPTION PRICE
4.1 The Subscription Price for any Option Shares granted hereunder shall
be:
(a) if the Common Shares are not listed on the TSE, the price as
determined by the Directors; or
(b) if the Common Shares are listed on the TSE, the average closing
market price of the Common Shares on the TSE for the 10 days
preceding the date of the grant less the maximum discount
permitted by the TSE.
Notwithstanding the foregoing, if any Option Shares have been granted
hereunder and have not vested in the Key Employee prior to the
listing of the Common Shares on the TSE, the Subscription Price may
be changed to be the Subscription Price permitted by the TSE.
SECTION 6 - VESTING OF OPTION SHARES
5.1 Any Option granted to a Key Employee and Subscription for Option
Shares hereunder by that Key Employee shall vest in and shall entitle
that Key Employee to purchase and pay for the Option Shares contained
in any Option and subscribed for by the Key Employee at the
respective Subscription Price therefore, upon the Key Employee
achieving objectives specified by the Directors such that if the
actual achievement to the objective is 100% or more,
PAGE 3
the Key Employee shall be vested in 100% of the Option Shares
available under his grant for that fiscal year; if the actual
achievement to the objective is 50% the Key Employee will be vested
in 25% of the Option Shares available under his grant for that
fiscal year; if the actual achievement to the objective is less
than 50% the Key Employee will lose all entitlement to the Option
Shares for that fiscal year. Any achievements between such
percentages shall be pro rated. Notwithstanding the foregoing,
the Directors may grant additional Option Shares in the event of
extraordinary achievements.
6.2 The Secretary shall advise the Key Employee of the number of Option
Shares vested in each fiscal year.
6.3 Upon vesting any Option Shares may, subject to the terms hereof, be
purchased over a 3 year period from the date of the vesting. Any
Option Shares which are vested and not purchased by the expiration of
the 3 year period shall remain in the Treasury of MacDonald
Dettwiler.
SECTION 7 - SUBSCRIPTION AND EXERCISE TERMS
7.1 A Key Employee wishing to exercise any Option for vested Option
Shares shall give notice, in writing, to the Secretary exercising the
Option, subscribing for all or any part of the Option Shares then
vested and paying the applicable Subscription Price for such Option
Shares subscribed for.
7.2 Notwithstanding the foregoing, no Key Employee shall be entitled to
subscribe for any Vested Option Shares hereunder, or purchase or pay
for any vested Option Shares which are subscribed for, if such Key
Employee does not purchase his full entitlement to Option Shares
under ESOP-88 for that fiscal year, if the ESOP-88 offering is then
current and for all previous fiscal years under ESOP-88 during which
the Key Employee was a participant under both ESOP-88 and hereunder.
7.3 After receipt of payment for any Subscriptions, MacDonald Dettwiler
shall issue to each Key Employee a share certificate representing the
Option Shares purchased hereunder in the name of the Key Employee.
SECTION 8 - TERMINATION OF OPTION OR SEPARATION
8.1 If a Key Employee ceases to be an Employee for any reason whatsoever,
the Key Employee shall only have the right to purchase those Option
Shares which have vested prior to the Key Employee s Leaving Date and
shall have the right to purchase any Option Shares which are so
vested at that time, at any time or from time to time during the
balance of the 3 year period with respect thereto.
PAGE 4
8.2 If a Key Employee shall cease to be an Employee by reason of death,
the executor or personal representatives shall have the right the
same rights as set forth in paragraph 8.1 hereof with respect to the
Option Shares which have vested for that Key Employee.
SECTION 9 - GENERAL
9.1 In the event the authorized capital of the Company as presently
constituted is consolidated into a lesser number of Common Shares or
subdivided into a greater number of Common Shares, the number of
Common Shares with respect to which the Option has been granted or
subscribed for shall be decreased or increased proportionately, as
the case may be, and the price to be paid by the Employee for each
such Common Share shall be adjusted accordingly and the Employee
shall have the benefit of any stock dividend declared, from the date
as of which the Option is granted until the right to purchase the
Common Shares under the Option terminates, with respect to the Common
Share which may be purchased under the Option.
9.2 From time to time, the Directors may amend any provision of the Plan,
including increasing the Subscription Price for any unissued Option
Shares, or terminate the Plan but no amendment or termination shall
divest any Employee of his Option or any right an Employee may have
in respect thereof, which is then exercisable, without the consent of
such Employee.
UPON MOTION duly made and seconded, and after discussion, it was UNANIMOUSLY
RESOLVED that 300,000 Common Shares be and these are hereby allocated for issue
to eligible employees under the Employee Share Option Plan (ESOP-88) as at June
1, 1992 at a price per share of $3.60. Employees must pay for subscribed
shares no later than May 30, 1996. Any shares acquired under this allocation
of ESOP-88 and disposed of by employees before May 30, 1993 must be sold to the
Company for proceeds equal to cost.
PAGE 5
AMENDMENT NO. 1 TO THE 1988 KEY EMPLOYEE STOCK OPTION PLAN OF
MacDONALD, DETTWILER AND ASSOCIATES LTD.
In accordance with the Plan of Arrangement implemented pursuant to
that certain Combination Agreement dated as of August 31, 1995 and amended on
September 29, 1995 by and between MacDonald, Dettwiler and Associates Ltd.,
Orbital Sciences Corporation and 3173623 Canada Inc. (terms defined in the
Combination Agreement and not otherwise defined herein are used with the
meanings therein defined), the KESOP 88 shall be amended by deleting the words
in subsection 9.1 and replacing them with the words following:
"In the event that the outstanding Shares of the Company
shall be changed into or exchanged for a different number
or of kind of securities of the Company or of another
corporation, whether through an arrangement, amalgamation
or other similar statutory procedure, or a share
capitalization, sub-division or consolidation, then there
shall be substituted for each Share subject to any such
Option, for each share authorized for issuance pursuant to
the Plan but not yet covered by an Option and for the
maximum number of Shares issuable under the Plan with
respect to any year, the number and kind of securities into
which each outstanding Share shall be so changed or for
which each such Share shall be exchanged.
In the event that there shall be any change, other than as
specified in this subsection, in the number or kind of
outstanding Shares of the Company or of any securities
into which such Shares shall have been changed or for which
Shares shall have been exchanged, then an equitable
adjustment shall be made in the number or kind of Shares or
any such securities theretofore authorized for issuance
pursuant to the Plan but not yet covered by an Option, of
the Shares or any such securities then subject to an Option
or Options, and the maximum of Shares or any such
securities issuable under the Plan with respect to any
year, such adjustment to be reasonably determined by the
Directors and to be effective and binding for all purposes.
In the case of any such substitution or adjustment as
provided for in this subsection, the Option price for each
share option agreement for each Share covered thereby prior
to such substitution or adjustment will be proportionately
and appropriately varied. Such variation shall generally
require that the number of securities covered by the Option
after the relevant event multiplied by the revised Option
price shall equal the number of shares covered by
PAGE 6
the Option prior to the relevant event multiplied by the
original Option price. No adjustment or substitution
provided for in this subsection shall require the Company
in any share option agreement to issue a fractional Share
and the total substitution or adjustment with respect to
each share option agreement shall be limited accordingly."
Dated this 17th day of November, 1995.
Per: /s/ Robert Wallis
MacDONALD, DETTWILER
AND ASSOCIATES LTD.
PAGE 7
Exhibit 4.9
Dated for reference purposes
only August 31, 1988
MACDONALD, DETTWILER AND ASSOCIATES LTD.
1988 EMPLOYEE SHARE OPTION PLAN
SECTION 1 - DEFINITIONS
This 1988 Employee Share Option Plan of MacDonald, Dettwiler and Associates
Ltd. established the 11th day of March, 1988 with effect from and after April
1, 1988.
1.1 In the Plan, the following words shall have the following meaning:
"Act" means the Employee Share Ownership Act (British Columbia) and
the regulations thereunder as from time to time amended;
"Common Shares" means the common voting shares of MacDonald Dettwiler
as from time to time constituted;
"Company" means MacDonald Dettwiler, or any subsidiary, all of whose
voting shares are owned by MacDonald Dettwiler;
"Directors" means the Board of Directors of MacDonald Dettwiler;
"Discount Factor" means the maximum discount factor as permitted by
the rules of the TSE;
"Employee" means any person who is a permanent employee of the
Company, employed for 25 hours or more per week and who has completed
six full months of employment with the Company after his Employment
Date, and prior to March 31 of each year;
"Employee Salary" means for each Employee the current annual gross
salary, excluding bonuses but including commissions paid or payable,
if any, in respect of the applicable fiscal year;
"Employment Date" means the date at which the Employee commenced his
current employment with the Company;
PAGE 1
"Leaving Date" means the earliest date on which the Employee
completes his service and ceases to be employed with the Company
(whether caused voluntarily by resignation or involuntarily by
dismissal or disability), or on which the Employee dies or on which
his services are otherwise terminated;
"MacDonald Dettwiler" means MacDonald, Dettwiler and Associates Ltd.;
"Market Price per Share" means the closing price of the Common Shares
on the TSE;
"Option" means the right to acquire Option Shares pursuant hereto;
"Option Exercise Date" means the date 45 days after the Secretary of
MacDonald Dettwiler has given notice of Option pursuant to paragraph
4.2 hereof;
"Option Shares" mean the number of Common Shares of MacDonald
Dettwiler which are available for Options as determined in Article 3
hereof;
"Participation Factor" means 1 divided by the estimated participation
factor determined by the Directors;
"Subscription" means for any Employee, the number of Option shares
subscribed for;
"Subscription Price" for each fiscal year when the Common Shares are
not listed on the TSE means the price per Common Share determined by
the Directors, and when the Common Shares are listed on the TSE means
the average closing Market Price per Share on the TSE for the 10 days
preceding the date of calculation multiplied by (1 - the Discount
Factor);
"TSE" means The Toronto Stock Exchange;
"Total Payroll" means the aggregate Employees' Salaries for all
Employees at the end of the fiscal year.
SECTION 2 - ELIGIBILITY
2.1 No person may be granted an Option to acquire Option Shares unless
that person is an Employee.
PAGE 2
2.2 All Employees, as of the end of each fiscal year during the term
hereof may be participants hereunder whether or not such Employees
are also participants in any other employee or management share
purchase or option plan of MacDonald Dettwiler.
2.3 Any participant who ceases to be an Employee for any reason will at
his Leaving Date forfeit all rights to exercise any Option granted
hereunder.
SECTION 3 - NUMBER OF OPTION SHARES
3.1 The number of Option Shares to be available to Employees for the life
of the Plan shall not exceed 1,300,000 Common Shares and for any
fiscal year during the term hereof shall be the number of Option
Shares determined by the Directors as of the end of such fiscal year.
SECTION 4 - GRANT OF OPTION
4.1 The Company shall grant Options to Employees in respect of each
fiscal year of the Company commencing with the fiscal year ending
March 31, 1988 to and including the fiscal year ending March 31, 1992
in the manner as hereafter provided such period being called the term
hereof.
4.2 All Employees, except as hereafter provided, shall be granted an
Option on or before 90 days after the end of each fiscal year of the
Company, in such form as determined by the Secretary of the Company
and to include the total number of Option Shares available to each
Employee, and the Subscription Price thereof.
4.3 The number of Option Shares available to each Employee shall be equal
to the number of Option Shares obtained by the following formula:
(Employee Salary) x (total number of Option Shares) x
(Total Payroll) (Participation Factor) (available for
fiscal year)
4.4 If an Employee participating hereunder ceases to be an Employee prior
to June 30 of that fiscal year and forfeits his Option in accordance
with Paragraph 2.3 here, the number of Option Shares so forfeited
shall be forfeited but may be used by the Directors for allocation in
any subsequent fiscal year.
4.5 In the event that the total of all Option Shares subscribed for is
less than the total number of Option Shares available in that year,
the unsubscribed-for Option Shares be deemed to have been unissued
and shall continue to remain in the Treasury of MacDonald Dettwiler.
PAGE 3
4.6 Any Option hereunder is not transferable.
SECTION 5 - EXERCISE TERMS
5.1 The Options to acquire all or part of any Option Shares must be
exercised by notice, in writing, by an Employee to the Secretary of
MacDonald Dettwiler, exercising the Option in such form as determined
by the Secretary, on or before the Option Exercise Date, and full
payment for the Option Shares being purchased at the applicable
Subscription Price must be made to MacDonald Dettwiler on or before
the June 30 following the Option Exercise Date.
5.2 Payment for Option Shares exercised and being purchased hereunder may
be made either (i) by payment in full by June 30 following the Option
Exercise Date; or (ii) by deduction from payroll over the period from
May 1 to March 31 of the fiscal year following the grant of the
Option, as elected by the Employee at the time of exercise of the
Option. If an Employee elects to pay for Option Shares pursuant to
(ii) above, the Employee will be charged interest on the amount
outstanding from time to time calculated at the prime rate of
interest of the Company's principal bankers on May 1 of each year and
payable semi-monthly by such deduction.
5.3 No Option Shares will be issued until fully paid for.
5.4 The Employee shall as part of the purchase hereunder of the Option
Shares agree to be bound by the terms of this Plan in the form as
established by MacDonald, Dettwiler from time to time.
5.5 After receipt of payment in full for the Subscription, MacDonald
Dettwiler shall issue to each Employee a share certificate
representing the Option Shares purchased hereunder registered in the
name of the Employee.
SECTION 6 - CESSATION OF EMPLOYMENT
6.1 If an Employee (having elected to purchase shares by payroll
deduction) ceases to be an Employee, for any reason whatsoever, prior
to full payment for the Option Shares, he may elect to pay the
balance of the Subscription Price for the Option Shares or, if he
fails to so elect, he shall cease to be entitled to such Option
Shares and MacDonald Dettwiler shall pay to him the amount paid by
the Employee prior to his Leaving Date for such purchase but
excluding interest.
6.2 If, prior to June 30 of the year following the purchase by an
Employee of Option Shares, an Employee or a person who has ceased to
be an Employee (for
PAGE 4
any reason whatsoever) wishes to sell such Option
Shares, the Employee shall be required to sell to MacDonald
Dettwiler, and MacDonald Dettwiler shall be required to purchase from
the Employee the Option Shares purchased by the Employee at the
Subscription Price paid by the Employee for those shares within one
month of the Employee notifying MacDonald Dettwiler that he wishes to
sell such Option Shares.
SECTION 7 - EMPLOYEE SHARE OWNERSHIP ACT
7.1 If this plan shall be registered under the Act, the following terms
and conditions shall apply:
(a) if any Employee shall make application under the Act for,
and receive, an incentive under the Act, the share
certificates for the Option Shares shall be legended as
required by the Act and the share certificate for the
Option Shares shall be held by the authorized person on
behalf of the Employee for a period of 3 years following
the issue of those Option shares, subject to the exceptions
provided by the Act;
(b) the plan may be amended in any manner whatsoever by the
Directors in order to obtain registration under the Act;
(c) the Option Exercise Date and the issue date for the Option
may be extended by the Directors for the April 1, 1988
grant to permit registration of the Plan under the Act and
at the discretion of the Directors, no shares will be
issued until registration is obtained.
SECTION 8 - GENERAL
8.1 In the event the authorized capital of the Company as presently
constituted is consolidated into a lesser number of Common Shares or
subdivided into a greater number of Common Shares, the number of
Common Shares with respect to which the Option has been granted shall
be decreased or increased proportionately, as the case may be, and
the price to be paid by the Employee for each such Common Share shall
be adjusted accordingly and the Employee shall have the benefit of
any stock dividend declared, from the date as of which the Option is
granted until the right to purchase the Common Shares under the
Option terminates, with respect to the Common Share which may be
purchased under the Option.
PAGE 5
8.2 From time to time, the Directors may amend any provision of the Plan,
including increasing the Subscription Price for any unissued Option
Shares, or terminate the Plan but no amendment or termination shall
divest any Employee of his Option or any right an Employee may have
in respect thereof, which is then exercisable, without the consent of
such Employee.
PAGE 6
AMENDMENT NO. 1 TO THE 1988 EMPLOYEE STOCK OPTION PLAN
OF MacDONALD, DETTWILER AND ASSOCIATES LTD.
In accordance with the Plan of Arrangement implemented pursuant to
that certain Combination Agreement dated as of August 31, 1995 and amended on
September 29, 1995 by and between MacDonald, Dettwiler and Associates Ltd.,
Orbital Sciences Corporation and 3173623 Canada Inc. (terms defined in the
Combination Agreement and not otherwise defined herein are used with the
meanings therein defined), the ESOP 88 shall be amended by deleting the words
in subsection 8.1 of the ESOP 88 and replacing them with the words following:
"In the event that the outstanding Shares of the Company
shall be changed into or exchanged for a different number
or of kind of securities of the Company or of another
corporation, whether through an arrangement, amalgamation
or other similar statutory procedure, or a share
capitalization, sub-division or consolidation, then there
shall be substituted for each Share subject to any such
Option, for each share authorized for issuance pursuant to
the Plan but not yet covered by an Option and for the
maximum number of Shares issuable under the Plan with
respect to any year, the number and kind of securities into
which each outstanding Share shall be so changed or for
which each such Share shall be exchanged.
In the event that there shall be any change, other than as
specified in this subsection, in the number or kind of
outstanding Shares of the Company or of any securities
into which such Shares shall have been changed or for which
Shares shall have been exchanged, then an equitable
adjustment shall be made in the number or kind of Shares or
any such securities theretofore authorized for issuance
pursuant to the Plan but not yet covered by an Option, of
the Shares or any such securities then subject to an Option
or Options, and the maximum of Shares or any such
securities issuable under the Plan with respect to any
year, such adjustment to be reasonably determined by the
Directors and to be effective and binding for all purposes.
In the case of any such substitution or adjustment as
provided for in this subsection, the Option price for each
share option agreement for each Share covered thereby prior
to such substitution or adjustment will be proportionately
and appropriately varied. Such variation shall generally
require that the number of securities covered by the Option
after the relevant event multiplied by the revised Option
price shall equal the number of shares covered by
PAGE 7
the Option prior to the relevant event multiplied by the
original Option price. No adjustment or substitution
provided for in this subsection shall require the Company
in any share option agreement to issue a fractional Share
and the total substitution or adjustment with respect to
each share option agreement shall be limited accordingly."
Dated this 17th day of November, 1995.
Per: /s/ Robert Wallis
MacDONALD, DETTWILER
AND ASSOCIATES LTD.
PAGE 8
Exhibit 4.10
ASSUMPTION OF STOCK OPTION
This is to confirm that pursuant to the Plan of Arrangement (the "Arrangement")
among Orbital Sciences Corporation ("Orbital"), MacDonald Dettwiler Holdings
Inc. ("Acquisition") and McDonald, Dettwiler and Associates, Ltd. ("MDA"),
Orbital has assumed as of November 17, 1995 (the "Effective Date") the stock
option issued to [Name] on [Option Date] for _____________ common shares of MDA
at an exercise price equal to $Cdn _________ per share (the "MDA Option
Price") (the "Option"), a copy of which is attached hereto and which Option was
issued pursuant to the MacDonald Dettwiler [Plan Name]. As so assumed, the
Option is for __________ shares of common stock, par value $.01 per share, of
Orbital (the "Orbital Option Shares") (which is that number of shares currently
issuable under the Option multiplied by the Exchange Ratio (as such term is
defined in the Arrangement)) at an exercise price of U.S. $ [Exercise Price]
per share (which is equal to the MDA Option Price divided by the Exchange Ratio
and converted into U.S. dollars based an exchange ratio of
$U.S.__________/$Cdn________ on the Effective Date). The Orbital Options under
this Assumption of Stock Option shall vest in accordance with the vesting
schedule specified in the Option.
Except as specified herein, the term and all other terms and conditions of the
Option shall be unchanged by the assumption thereof by Orbital.
ORBITAL SCIENCES CORPORATION ACCEPTED AND ACKNOWLEDGED,
the ____ day of ______________, 1995:
By ______________________________ ___________________________________
David W. Thompson, President [Name]
and Chief Executive Officer
PAGE 1
Orbital Sciences Corporation
November 21, 1995
Page 1
Exhibit 5
November 21, 1995
Orbital Sciences Corporation
21700 Atlantic Boulevard
Dulles, Virginia 20166
Ladies and Gentlemen:
This opinion is rendered to you in connection with the Registration
Statement on Form S-8, filed on or about the date hereof with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the
"Registration Statement"), for the registration by Orbital Sciences Corporation
(the "Company") of the sale by it of 328,399 shares of the Company's common
stock, $0.01 par value per share (the "Common Stock"), from time to time
pursuant to the following stock option plans of MacDonald, Dettwiler and
Associates Ltd., a newly acquired subsidiary of the Company: Amended and
Restated Key Employee Share Option Plan - 1994, Key Employee Share Option Plan
- - 1993, Key Employee Share Option Plan - 1988, and Employee Share Option Plan -
1988, in each case as amended to date (together, the "Plans") (the 328,399
shares issuable pursuant to the Plans are collectively referred to herein as
the "Shares").
We have acted as counsel for the Company in connection with the preparation
and filing of the Registration Statement. In connection with this opinion we
have examined the Restated Certificate of Incorporation and Bylaws of the
Company and all amendments thereto and have examined and relied on the
original, or copies certified to our satisfaction, of such records of meetings
of the directors and stockholders of the Company, documents and other
instruments, including the Plans, as in our judgment were necessary or
appropriate to enable us to render the opinions express below.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing under the
laws of the State of Delaware.
2. The Shares have been duly authorized and, when issued and sold by the
Company pursuant to the Plans, will be validly issued, fully paid and non-
assessable.
PAGE 1
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement. We understand that this opinion is to be used only in
connection with the offer and sale of the Common Stock described above while
the Registration Statement is in effect.
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
PAGE 2
Exhibit 23.2
ACCOUNTANTS' CONSENT
The Board of Directors and Stockholders
Orbital Sciences Corporation:
We consent to the use of our reports incorporated by reference in the
registration statement on Form S-8, which reports are included in the Company's
1994 Annual Report on Form 10-K.
Our report on the consolidated financial statements refers to a change in
accounting for income taxes.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Washington, D.C.
November 16, 1995
PAGE 1
Exhibit 23.3
ACCOUNTANTS' CONSENT
The Board of Directors
Orbital Sciences Corporation:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Orbital Sciences Corporation of our report dated May 25, 1995,
except as to Note 8(d) which is as at September 29, 1995, with respect to the
consolidated balance sheets of MacDonald, Dettwiler and Associates Ltd. as at
March 31, 1995 and 1994, and the related consolidated statements of earnings,
retained earnings and changes in financial position for each of the years in
the three-year period ended March 31, 1995, which report appears in the Form 8-
K of Orbital Sciences Corporation dated October 19, 1995.
/s/ KPMG Peat Marwick Thorne
Chartered Accountants
Vancouver, Canada
November 17, 1995
PAGE 1
