As filed with the Securities and Exchange Commission on April 1, 1999
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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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ZOOM TELEPHONICS, INC.
(Exact Name of Registrant as Specified in its Charter)
CANADA 04-2621506
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
207 South Street, Boston, MA 02111
(Address, Including Zip Code, of Principal Executive Offices)
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Zoom Telephonics, Inc. 1998 Employee Equity Incentive Plan
(Full title of Plan)
--------------------------
Frank B. Manning
President and Chief Executive Officer
Zoom Telephonics, Inc.
207 South Street
Boston, MA 02111
(617) 423-1072
(Name, Address and Telephone Number,
Including Area Code, of Agent For Service)
with a copy to:
Philip J. Flink, Esq.
Brown, Rudnick, Freed & Gesmer
One Financial Center, Boston, Massachusetts 02111
(617) 856-8200
--------------------------
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CALCULATION OF REGISTRATION FEE
- ------------------------------------- --------------------- ---------------------- ----------------------- --------------------
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to Be Offering Price Aggregate Registration
Securities to Be Registered Registered Per Share(1) Offering Price(1) Fee
- ------------------------------------- --------------------- ---------------------- ----------------------- --------------------
- ------------------------------------- --------------------- ---------------------- ----------------------- ====================
Common Stock, no par value 300,000 Shares (2) $4.00 $1,200,000 $333.60
- ------------------------------------- --------------------- ---------------------- ----------------------- ====================
<FN>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933, as amended, on the basis
of the average of the high and low reported price of the Common Stock of
Zoom Telephonics, Inc. on the Nasdaq National Market on March 30, 1999.
================================================================================
(2) Includes 300,000 shares of Common Stock issuable under the Zoom
Telephonics, Inc. 1998 Employee Equity IncentivePlan. Such presently
indeterminabl number of additional shares of Common Stock are also
registered hereunder as may be issued in the event of a merger,
consolidation, reorganization, recapitalization, stock dividend, stock
split or other similar change in Common Stock.
</FN>
</TABLE>
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998, filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 10 dated June
29, 1990 (File No. 0-18672), filed pursuant to Section 12 of
the Exchange Act.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, subsequent to the date hereof and 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 hereby incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained herein or
in any subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 124 of the Canada Business Corporations Act permits
indemnification of directors, officers, employees and agents of corporations
under certain conditions and subject to certain limitations.
The By-Laws of the Registrant provide for the indemnification of
directors and officers of the Registrant pursuant to Section 124 of the Canada
Business Corporation Act. The By-Laws provide for the indemnification of a
director or officer, a former director or officer, or a person who acts or acted
at the Registrant's request as a director or officer of a corporation in which
the Registrant is or was a shareholder or creditor, and his heirs and legal
representatives, against any and all costs, charges and expenses, including an
amount paid to settle an action or satisfy a judgment, reasonably incurred by
such person in respect of any civil, criminal or administrative proceeding to
which such person was made a party by reason of being or having been a director
or officer of the Registrant or such other corporation if such person acted
honestly and in good faith with a view to the best interests of the Registrant,
or, in the case of a criminal or administrative action or proceeding that is
enforced by monetary penalty, such person had reasonable grounds in believing
that the conduct was lawful. The By-Laws provide that the Registrant shall also
indemnify any such person in such other circumstances as the Canada Business
Corporations Act permits or requires. The By-Laws limit the right of any person
entitled to indemnification to claim indemnity apart from the provisions of the
By-Laws to the extent permitted by the Canada Business Corporations Act or such
other law.
The Registrant has purchased a general liability insurance policy that
covers certain liabilities of directors and officers of the Registrant arising
out of claims based upon acts or omissions in their capacities as directors or
officers.
The Registrant has entered into indemnification agreements with its
directors and certain of its officers pursuant to which the Registrant is
contractually obligated to indemnify such persons to the fullest extent
permitted by applicable law.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Number Description
4.1 Articles of Continuance, filed as Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1991
(the "1991 Form 10-K").*
4.2 By-Law No. 1 of the Registrant, filed as Exhibit 3.2 to the 1991
Form 10-K.*
4.3 By-Law No. 2 of the Registrant, filed as Exhibit 3.3 to the 1991
Form 10-K.*
4.4 Specimen Certificate of Common Stock, filed as Exhibit 4.01 to
Registration Statement No. 333-01452 on Form S-3.*
5 Legal Opinion of Thomas, Rondeau.
23.1 Consent of Thomas, Rondeau (contained in its opinion filed as Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (included on the Signature Page of this Registration
Statement).
99.1 Zoom Telephonics, Inc. 1998 Employee Equity Incentive Plan.
* Not filed herewith. In accordance with Rule 411 promulgated pursuant to
the Securities Act of 1933, as amended, reference is made to the
documents previously filed with the Commission, which are incorporated
by reference herein.
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the paragraphs is contained in periodic reports filed with or furnished
to the Commission by the information required to be included in a post effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act 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
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Registrant's Restated Certificate of Incorporation,
Restated By-Laws, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boston, Massachusetts, on
March 31, 1999.
ZOOM TELEPHONICS, INC.
By: /s/ Frank B. Manning
Frank B. Manning, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Frank B. Manning and Peter R. Kramer, and each of
them (with full power to each of them to act alone), his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<S> <C> <C>
Signature Title Date
/s/ Frank B. Manning Chairman of the Board, President March 30, 1998
Frank B. Manning and Chief Executive Officer
(Principal Executive Officer)
/s/ Robert A. Crist Principal Financial and Accounting March 30, 1998
- ------------------------------------
Robert A. Crist Officer
/s/ Peter R. Kramer Director March 30, 1998
- ------------------------------------
Peter R. Kramer
/s/ Bernard Furman Director March 30, 1998
Bernard Furman
/s/ L. Lamont Gordon Director March 30, 1998
- ------------------------------------
L. Lamont Gordon
Director March 30, 1998
J. Ronald Woods
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number
4.1 Articles of Continuance, filed as Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1991
(the "1991 Form 10-K")
4.2 By-Law No. 1 of the Registrant, filed as Exhibit 3.2 to the 1991
Form 10-K
4.3 By-Law No. 2 of the Registrant, filed as Exhibit 3.3 to the 1991
Form 10-K
4.4 Specimen Certificate of Common Stock, filed as Exhibit 4.01 to
Registration Statement No. 333-01452 on Form S-3
5 Legal Opinion of Thomas, Rondeau
23.1 Consent of Thomas,Rondeau (contained in its opinion filed as Exhibit(5)
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included on the Signature Page of this Registration
Statement)
99.1 Zoom Telephonics, Inc. 1998 Employee Equity Incentive Plan
* Not filed herewith. In accordance with Rule 411 promulgated pursuant to
the Securities Act of 1933, as amended, reference is made to the
documents previously filed with the Commission, which are incorporated
by reference herein.
<PAGE>
EXHIBIT 5
March 30, 1999
Zoom Telephonics Inc.
207 South Street
Boston, Massachusetts
U.S.A. 02111
Dear Sirs:
Re: Zoom Telephonics, Inc.
Registration Statement on Form S-8
We are Canadian counsel to Zoom Telephonics, Inc. a Canadian
corporation (the "Company"). We have been asked to deliver this opinion in
connection with the preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-8 (the "Registration Statement") relating to an
additional 300,000 shares of the Company's Common Stock, no par value (the
"Shares") issuable upon exercise of the options granted or to be granted
pursuant to the Company's 1998 Employee Equity Incentive Plan, as amended (the
"1998 Employee Equity Incentive Plan").
We are qualified to render opinions only as to the laws of the Province
of British Columbia and the federal laws of Canada applicable herein.
Accordingly, we express no opinion as to the laws of any other jurisdiction.
This opinion is subject to the qualification that with respect to the
enforceability of any document, or instrument covered by this opinion, the
rights and remedies are subject to any applicable bankruptcy or insolvency laws
or other laws affecting creditors' rights generally and no opinion is given as
to the availability on any specific instance of the remedy of specific
performance or any other equitable remedy. We take no responsibility for
updating the opinions expressed herein or taking into account any event, action,
interpretation, change of law or similar item which occurs after the date
hereof.
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
the following documents (collectively, the "Documents"):
1. a copy of the Articles of Continuance of the Company as in
effect on the date hereof;
2. a copy of By-Law No. 1 and By-Law No. 2 of the Company as in
effect on the date hereof;
3. the corporate records of the Company relating to the
proceedings of shareholders and directors of the Company;
4. the 1998 Employee Equity Incentive Plan; and
5. the Registration Statement.
In giving our opinion, we have relied as to matters in fact upon the
certificates, reports, letters and representations of public officials and of
representatives of the Company. For purposes of this opinion we have assumed
without any investigation (1) the legal capacity of each natural person and (2)
the genuineness of each signature, the completeness of each document submitted
to us as an original and the conformity to the original of each document
submitted to us as a copy.
Our opinion hereafter expressed is based solely upon (1) our view of
the Documents, (2) discussions with those attorneys who have devoted substantive
attention to the matters contained herein and (3) such review of published
sources of law as we have deemed necessary.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized and, when issued in accordance with the terms
of the 1998 Equity Incentive Plan, the Shares will be validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Yours truly,
/s/ THOMAS, RONDEAU
<PAGE>
EXHIBIT 23.2
The Board of Directors
Zoom Telephonics, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Zoom Telephonics, Inc. of our report dated February 10, 1999, except as
to note 15, which is as of March 19, 1999, relating to the consolidated balance
sheets of Zoom Telephonics, Inc. and subsidiaries as of December 31, 1997 and
1998, 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 December 31, 1998, and the related schedule, which report appears
in the December 31, 1998 annual report on Form 10-K of Zoom Telephonics, Inc.
/s/ KPMG Peat Marwick LLP
Boston, Massachusetts
March 31, 1998
<PAGE>
EXHIBIT 99.1
ZOOM TELEPHONICS, INC.
1998 EMPLOYEE EQUITY INCENTIVE PLAN
Section 1. Name and Purpose
This plan shall be known as the Zoom Telephonics, Inc. 1998 Employee
Equity Incentive Plan (the "Plan"). The purpose of the Plan is to attract and
retain employees and provide an incentive for them to assist Zoom Telephonics,
Inc. (the "Company") to achieve long-range performance goals, and to enable them
to participate in the long-term growth of the Company.
Section 2. Definitions
(a) "Award" means any Option awarded under the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(d) "Committee" means the Stock Option Committee of the Board, or such other
committee of not less than three members of the Board appointed by the
Board to administer the Plan.
(e) "Common Stock" or "Stock" means the Common Stock, no par value, of the
Company.
(f) "Company" means Zoom Telephonics, Inc. and any business entity in which
Zoom Telephonics, Inc. owns directly or indirectly 50% or more of the
total combined voting power or has a significant financial interest as
determined by the Committee.
(g) "Designated Beneficiary" means the beneficiary designated by a
Participant, in a manner determined by the Board, to receive amounts due
or exercise rights of the Participant in the event of the Participant's
death. In the absence of an effective designation by a Participant,
Designated Beneficiary shall mean the Participant's estate.
(h) "Fair Market Value" means, with respect to Common Stock or any other
property, the fair market value of such property as determined by the
Board in good faith or in the manner established by the Board from time to
time.
(i) "Nonqualified Stock Option" means an option to purchase shares of Common
Stock, awarded to a Participant under Section 6, which is not intended to
comply as an incentive stock option under Section 422 of the Code or any
successor provision.
(j) "Option" means a Nonqualified Stock Option.
(k) "Officer" means any individual who is a designated corporate officer of
the Company or is deemed an officer of the Company under Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended (or any
successor or supplementary law, rule or regulation), or is deemed an
officer under Rule 4310 of the Marketplace Rules of The Nasdaq Stock
Market, Inc (or any successor or supplementary law, rule or regulation).
(l) "Participant" means a person eligible pursuant to Section 4 hereof and
selected by the Board to receive an Award under the Plan.
Section 3. Administration
The Plan shall be administered by the Committee. The Board shall have
authority to adopt, alter and repeal such administrative rules, guidelines and
practices governing the operation of the Plan as it shall from time to time
consider advisable, and to interpret the provisions of the Plan. The Board's
decisions shall be final and binding. To the extent permitted by applicable law,
the Board may delegate to the Committee the power to make Awards to Participants
and all determinations under the Plan with respect thereto.
Section 4. Eligibility
All employees of the Company, other than Officers and directors of the
Company, are eligible to be Participants in the Plan.
Section 5. Stock Available for Awards
(a) Subject to adjustment under subsection (b), Awards may be made under the
Plan of Options to acquire not in excess of 300,000 shares of Common Stock.
If any Award in respect of shares of Common Stock expires or is terminated
unexercised or is forfeited for any reason or settled in a manner that
results in fewer shares outstanding than were initially awarded, including
without limitation the surrender of shares in payment for the Award or any
tax obligation thereon, the shares subject to such Award or so surrendered,
as the case may be, to the extent of such expiration, termination,
forfeiture or decrease, shall again be available for award under the Plan.
Common Stock issued through the assumption or substitution of outstanding
grants from an acquired Company shall not reduce the shares available for
Awards under the Plan. Shares of Common Stock issued under the Plan may
consist in whole or in part of authorized but unissued shares or treasury
shares.
(b) In the event that the Board determines that any stock dividend,
extraordinary cash dividend, creation of a class of equity securities,
recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination, exchange of shares, warrants or rights offering to
purchase Common Stock at a price substantially below fair market value, or
other similar transaction affects the Common Stock such that an adjustment
is required in order to preserve the benefits or potential benefits
intended to be made available under the Plan, then the Board, shall
equitably adjust any or all of (i) the number and kind of shares in respect
of which Awards may be made under the Plan, (ii) the number and kind of
shares subject to outstanding Awards, and (iii) the award, exercise or
conversion price with respect to any of the foregoing, and if considered
appropriate, the Board may make provision for a cash payment with respect
to an outstanding Award, provided that the number of shares subject to any
Award shall always be a whole number.
Section 6. Stock Options
(a) Subject to the provisions of the Plan, the Board may award Nonqualified
Stock Options and determine the number of shares to be covered by each
Option, the Option Price therefor and the conditions and limitations
applicable to the exercise of the Option.
(b) The Board shall establish the Option Price at the time each Option is
awarded.
(c) Each Option shall be exercisable at such times and subject to such terms
and conditions as the Board may specify in the applicable Award or
thereafter. The Board may impose such conditions with respect to the
exercise of Options, including conditions relating to applicable federal or
state securities laws, as it considers necessary or advisable.
(d) No shares shall be delivered pursuant to any exercise of an Option until
payment in full of the Option Price therefor is received by the Company.
Such payment may be made in whole or in part in cash or, to the extent
permitted by the Board at or after the award of the Option, by delivery of
a note or shares of Common Stock owned by the optionholder, including
restricted stock, valued at their Fair Market Value on the date of
delivery, by the reduction of the shares of Common Stock that the
optionholder would be entitled to receive upon exercise of the Option, such
shares to be valued at their Fair Market Value on the date of exercise,
less their Option Price (a so-called "cashless exercise"), or such other
lawful consideration as the Board may determine. In addition, an
optionholder may engage in a successive exchange (or series of exchanges)
in which the shares of Common Stock that such optionholder is entitled to
receive upon the exercise of an Option may be simultaneously utilized as
payment for the exercise of an additional Option or Options.
(e) The Board may provide for the automatic award of an Option upon the
delivery of shares to the Company in payment of an Option for up to the
number of shares so delivered.
Section 7. General Provisions Applicable to Awards
(a) Documentation. Each Award under the Plan shall be evidenced by a writing
delivered to the Participant specifying the terms and conditions thereof
and containing such other terms and conditions not inconsistent with the
provisions of the Plan as the Board considers necessary or advisable to
achieve the purposes of the Plan or comply with applicable tax and
regulatory laws and accounting principles.
(b) Board Discretion. The terms of each Award need not be identical, and the
Board need not treat Participants uniformly. Except as otherwise provided
by the Plan or a particular Award, any determination with respect to an
Award may be made by the Board at the time of award or at any time
thereafter. Without limiting the foregoing, an Award may be made by the
Board, in its discretion, to any 401(k), savings, pension, profit sharing
or other similar plan of the Company in lieu of or in addition to any cash
or other property contributed or to be contributed to such plan.
(c) Settlement. The Board shall determine whether Awards are settled in whole
or in part in cash, Common Stock, other securities of the Company, Awards
or other property. The Board may permit a Participant to defer all or any
portion of a payment under the Plan, including the crediting of interest on
deferred amounts denominated in cash and dividend equivalents on amounts
denominated in Common Stock.
(d) Termination of Employment. The Board shall determine the effect on an Award
of the disability, death, retirement or other termination of employment of
a Participant and the extent to which, and the period during which, the
Participant's legal representative, guardian or Designated Beneficiary may
receive payment of an Award or exercise rights thereunder.
(e) Change in Control. In order to preserve a Participant's rights under an
Award in the event of a change in control of the Company, the Board in its
discretion may, at the time an Award is made or at any time thereafter,
take one or more of the following actions: (i) provide for the acceleration
of any time period relating to the exercise of the Award, (ii) provide for
the purchase of the Award upon the Participant's request for an amount of
cash or other property that could have been received upon the exercise of
the Award had the Award been currently exercisable, (iii) adjust the terms
of the Award in a manner determined by the Board to reflect the change in
control, (iv) cause the Award to be assumed, or new rights substituted
therefor, by another entity, or (v) make such other provision as the Board
may consider equitable and in the best interests of the Company.
(f) Withholding. The Participant shall pay to the Company, or make provision
satisfactory to the Board for payment of, any taxes required by law to be
withheld in respect of Awards under the Plan no later than the date of the
event creating the tax liability. In the Board's discretion, such tax
obligations may be paid in whole or in part in shares of Common Stock,
including shares retained from the Award creating the tax obligation,
valued at their Fair Market Value on the date of delivery. The Company and
its affiliates may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to the Participant.
(g) Amendment of Award. The Board may amend, modify or terminate any
outstanding Award, including substituting therefor another Award of the
same or a different type, changing the date of exercise, provided that the
Participant's consent to such action shall be required unless the Board
determines that the action, taking into account any related action, would
not materially and adversely affect the Participant.
Section 8. Miscellaneous
(a) No Right To Employment. No person shall have any claim or right to be
granted an Award, and the grant of an Award shall not be construed as
giving a Participant the right to continued employment. The Company
expressly reserves the right at any time to dismiss a Participant free from
any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) No Rights As Shareholder. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
shareholder with respect to any shares of Common Stock to be distributed
under the Plan until he or she becomes the holder thereof.
(c) Governing Law. The provisions of the Plan shall be governed by and
interpreted in accordance with the laws of the Commonwealth of
Massachusetts.
(d) Indemnity. Neither the Board nor the Committee, nor any members of either,
nor any employees of the Company or any parent, subsidiary, or other
affiliate, shall be liable for any act, omission, interpretation,
construction or determination made in good faith in connection with their
responsibilities with respect to this Plan, and the Company hereby agrees
to indemnify the members of the Board, the members of the Committee, and
the employees of the Company and its parent or subsidiaries in respect of
any claim, loss, damage, or expense (including reasonable counsel fees)
arising from any such act, omission, interpretation, construction or
determination to the full extent permitted by law.
