<PAGE> 1
As filed with the Securities and Exchange Commission on May 3, 1995
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
BTU INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 3567 04-2781248
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
23 ESQUIRE ROAD
NORTH BILLERICA, MASSACHUSETTS 01862
(508) 667-4111
(Address, of principal executive offices, including zip code)
BTU INTERNATIONAL 1993 EQUITY INCENTIVE PLAN
(Full title of the plans)
-------------------------
PAUL J. VAN DER WANSEM
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
BTU INTERNATIONAL, INC.
NORTH BILLERICA, MASSACHUSETTS 01862
(508) 667-4111
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
-----------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
========================================================================================================================
<CAPTION>
Amount Proposed maximum Proposed maximum Amount of
Title of each class of to be offering price aggregate offering registration
securities to be registered registered per share(1) price(1) fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock -- $.01 Par Value . . . 541,183 shs. $2.00 $2,204,370.4 $827.04
- -------------------------------------------------------------------------------------------------------------------------
<FN>
(1) The offering price for shares subject to options on the date hereof is the actual exercise price of such options. Of
the 541,183 shares of Common Stock to be registered hereunder, 102,900 shares are subject to options at an exercise price
of $2.00 on the date hereof. The offering price for the remaining 438,283 shares has been estimated solely for the purpose
of determining the registration fee pursuant to Rule 457(h) on the basis of the average of the high and low prices of BTU
International, Inc. Common Stock, par value $0.01, reported on the Nasdaq Stock Market on April 26 , 1995.
========================================================================================================================
</TABLE>
EXHIBIT INDEX ON PAGE 7;
PAGE 1 OF 20 PAGES.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the BTU International, Inc. 1993 Equity
Incentive Plan information required by Item 1 of this Form S-8 and the
statement of availability of registrant information, and other information
required by Item 2 of this Form will be sent or given to employees as specified
by Rule 428. In accordance with Rule 428 and the requirements of Part I of
Form S-8, such documents are not being filed with the Securities and Exchange
Commission ("Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. The registrant
shall maintain a file of such documents in accordance with the provisions of
Rule 428. Upon request, the registrant shall furnish to the Commission or its
staff a copy or copy of all of the documents included in such file.
-2-
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
------------- -- --------- -- ---------
The following documents previously filed by the Company with the
Commission pursuant to the Exchange Act are hereby incorporated by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994.
(2) The Company's Quarterly Report on Form 10-Q for the quarters
ended April 3, 1994, July 3, 1994 and October 2, 1994.
All other reports and other documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of this offering shall be incorporated
by reference into this Prospectus and shall be deemed to be a part of this
Prospectus from the date of filing of such reports and documents. Any
statement contained herein or in a document incorporated by reference shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained in this Prospectus or in any other
subsequently filed document which 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 Prospectus.
The Company shall provide, upon request, without charge to each person
to whom a copy of this Prospectus has been delivered, a copy of any or all of
the documents which have been or may be incorporated in this Prospectus by
reference, other than certain exhibits to such documents. Requests for such
copies should be directed to: BTU International, Inc., 23 Esquire Road, North
Billerica, Massachusetts 01862 (telephone: (508) 667-4111).
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 145 of the Delaware Corporation Law expressly permits a
corporation to indemnify any person who 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 is conduct was unlawful.
-3-
<PAGE> 4
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 informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in such Act and is, therefore, unenforceable.
Item 7. Exemption From Registration Claimed.
--------- ---- ------------ -------
NOT APPLICABLE.
Item 8. Exhibits.
--------
Exhibit
4.1 BTU International 1993 Equity Incentive Plan.
5.1 Opinion of Ropes & Gray.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Ropes & Gray (contained in the opinion filed as Exhibit 5
to this registration statement).
24 Powers of Attorney (included on page 5 of this registration statement
under the caption "Power of Attorney").
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 (a)(1)(ii)
shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to section 13 or section
15(d) of the 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.
-4-
<PAGE> 5
(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) The undersigned Registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X are not set forth in the prospectus,
to deliver, or cause to be delivered to each person to whom the prospectus is
sent or given, the latest quarterly report that is specifically incorporated
by reference in the prospectus to provide such interim financial information.
(d) 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.
-5-
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in North Billerica, Massachusetts, on
this 3rd day of May 1995.
BTU INTERNATIONAL
By /s/ Paul J. Van der Wansem
----------------------------
Paul J. Van der Wansem
Chief Executive Officer
POWER OF ATTORNEY
-----------------
<TABLE>
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes and constitutes Paul J. Van der Wansem and Thomas P.
Kealy, and each of them singly, his true and lawful attorneys with full power
to them, and each of them singly, to sign for him and in his name in the
capacities indicated below any and all amendments (including post-effective
amendments) to this Registration Statement and to file the same, with exhibits
thereto, and other documents in connection therewith, and he hereby ratifies
and confirms his signature as it may be signed by said attorneys, or any of
them, to any and all such amendments.
<CAPTION>
Signature Capacity in Which Signed Date
- --------- ------------------------ ----
<S> <C> <C>
/s/ Paul J. Van der Wansem Chairman of the Board, Chief May 3, 1995
- ---------------------------- Executive Officer, President and
Paul J. Van der Wansem Director (principal executive
officer)
/s/ Thomas P. Kealy Vice President, Corporate May 3, 1995
- ------------------------------ Controller and Chief Accounting
Thomas P. Kealy Officer
/s/ Alexander V. D'Aberloff Director May 3, 1995
- ---------------------------
Alexander V. D'Aberloff
/s/ David A.B. Brown Director May 3, 1995
- ---------------------------
David A.B. Brown
/s/ J. Chuan Chu Director May 3, 1995
- ------------------------------
J. Chuan Chu
</TABLE>
-6-
<PAGE> 7
<TABLE>
EXHIBIT INDEX
Number Title of Exhibit Page
------ ---------------- ----
<S> <C> <C>
4.1 1993 Equity Incentive Plan. 8
5.1 Opinion of Ropes & Gray. 19
23.1 Consent of Arthur Anderson LLP. 20
23.2 Consent of Ropes & Gray (contained in the --
opinion filed as Exhibit 5.1 to this registration
statement).
24 Powers of Attorney (included on page 6 of --
this registration statement under the caption
"Power of Attorney").
</TABLE>
-7-
<PAGE> 1
EXHIBIT 4.1
-----------
BTU INTERNATIONAL, INC.
1993 EQUITY INCENTIVE PLAN
1. PURPOSE
The purpose of this 1993 Equity Incentive Plan (the "Plan") is to
advance the interests of BTU International, Inc. (the "Company") by enhancing
its ability to attract and retain employees and other persons or entities who
are in a position to make significant contributions to the success of the
Company and its subsidiaries through ownership of shares of the Company's common
stock ("Stock").
The Plan is intended to accomplish these goals by enabling the Company
to grant Awards in the form of Options, Stock Appreciation Rights, Restricted
Stock or Unrestricted Stock Awards, Deferred Stock Awards, Performance Awards,
Loans or Supplement Grants, or combinations thereof, all as more fully described
below.
2. ADMINISTRATION
The administrator of the Plan (the "Administrator") will be the Board of
Directors of the Company (the "Board") or a committee of the Board. The
Administrator will have authority, not inconsistent with the express provisions
of the Plan and in addition to other authority granted under the Plan, to (a)
grant Awards at such time or times as it may choose; (b) determine the size of
each Award, including the number of shares of Stock subject to the Award; (c)
determine the type or types of each Award; (d) determine the terms and
conditions of each Award; (e) waive compliance by a Participant (as defined
below) with any obligations to be performed by the Participant under an Award
and waive any term or condition of an Award; (f) amend or cancel an existing
Award in whole or in part (and if an award if canceled, grant another Award in
its place on such terms as the Administrator shall specify), except that the
Administrator may not, without the consent of the holder of an Award, take any
action under this clause with respect to such Award if such action would
adversely affect the rights of such holder; (g) prescribe the form or forms of
instruments that are required or deemed appropriate under the Plan, including
any written notices and elections required of Participants, and change such
forms from time to time; (h) adopt, amend and rescind rules and regulations for
the administration of the Plan; and (i) interpret the Plan and decide any
questions and settle all controversies and disputes that may arise in connection
with the Plan. Such determinations and actions of the Administrator, and all
other determinations and actions of the Administrator made or taken under
authority granted by any provision of the Plan, will be conclusive and will bind
all parties. Nothing in this paragraph shall be construed as limiting the power
of the Administrator to make adjustments under Section 7.3 or Section 8.6.
The Administrator may, in its discretion, delegate some or all of its
powers with respect to the Plan to a committee (the "Committee"), in which event
all references (as appropriate) to the Administrator hereunder shall be deemed
to refer to the Committee. The Committee, if one is appointed, shall consist of
at least two directors. A majority of the members of the Committee shall
constitute a quorum, and all determinations of the Committee shall be made by a
majority of its members. Any determination of the Committee under the Plan may
be made without notice or meeting of the Committee by a writing signed by a
majority of the Committee members. On and after registration of the Stock under
the Securities Exchange Act of 1934 (the "1934 Act"), the
-8-
<PAGE> 2
Administrator shall delegate the power to select directors and officers to
receive Awards under the Plan and the timing, pricing and amount of such
Awards to a committee of two or more directors, all members of which shall be
disinterested persons within the meaning of Rule 16b-3 promulgated under Section
16 of the 1934 Act.
3. EFFECTIVE DATE AND TERM OF PLAN
The Plan will become effective on the date on which it is approved by
the stockholders of the Company. Grants of Awards under the plan may be made
prior to that date (but after Board adoption of the Plan), subject to such
approval of the Plan.
No Award may be granted under the Plan after February 1, 2003, but
Awards previously granted may extend beyond that date.
4. SHARES SUBJECT TO THE PLAN
Subject to the adjustment as provided in Section 8.6 below, the
aggregate number of shares of Stock that may be delivered under the Plan will be
541,183. If any Award requiring exercise by the Participant for delivery of
Stock terminates without having been exercised in full, or if any Award payable
in Stock or cash is satisfied in cash rather than Stock, the number of shares of
Stock as to which such Award was not exercised or for which cash was substituted
will be available for future grants.
Stock delivered under the Plan may be either authorized but unissued
Stock or previously issued Stock acquired by the Company and held in treasury.
No fractional shares of Stock will be delivered under the Plan.
The Administrator shall establish the maximum number of Awards that may
be granted as cash-only Awards intended to qualify under Rule 16a-1(c)(3)(i)
promulgated under Section 16 of the 1934 Act prior to the issuance of any such
Awards.
5. ELIGIBILITY AND PARTICIPATION
Those eligible to receive Awards under the Plan ("Participants") will be
persons in the employ of the Company or any of its subsidiaries ("Employees")
and other persons or entities (including without limitation non-Employee
directors of the Company or a subsidiary of the Company) who, in the opinion of
the Administrator, are in a position to make a significant contribution to the
success of the Company or its subsidiaries. A "subsidiary" for purposes of the
Plan will be a corporation in which the Company owns, directly or indirectly,
stock possessing 50% or more of the total combined voting power of all classes
of stock.
6. TYPES OF AWARDS
6.1. OPTIONS
(a) NATURE OF OPTIONS. An Option is an Award entitling the recipient on
exercise thereof to purchase Stock at a specified exercise price.
-9-
<PAGE> 3
Both "incentive stock options," as defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") (any Option intended to
qualify as an incentive stock option being hereinafter referred to as an
"ISO"), and Options that are not incentive stock options, may be granted under
the Plan. ISOs shall be awarded only to Employees.
(b) EXERCISE PRICE. The exercise price of an Option will be determined
by the Administrator subject to the following:
(1) The exercise price of an ISO shall not be less than 100%
(110% in the case of an ISO granted to a ten-percent shareholder) of the
fair market value of the Stock subject to the Option, determined as of
the time the Option is granted. A "ten-percent shareholder" is any
person who at the time of grant owns, directly or indirectly, or is
deemed to own by reason of the attribution rules of section 424(d) of
the Code, stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company or of any of its
subsidiaries.
(2) In no case may the exercise price paid for Stock which is
part of an original issue of authorized Stock be less than the par value
per share of the Stock.
(3) The Administrator may reduce the exercise price of an
Option at any time after the time of grant, but in the case of an Option
originally awarded as an ISO, only with the consent of the Participant.
(c) DURATION OF OPTIONS. The latest date on which an Option may be
exercised will be the tenth anniversary (fifth anniversary, in the case of an
ISO granted to a ten-percent shareholder) of the day immediately preceding the
date the Option was granted, or such earlier date as may have been specified by
the Administrator at the time the Option was granted.
(d) EXERCISE OF OPTIONS. Options granted under any single Award will
become exercisable at such time or times, and on such conditions, as the
Administrator may specify. The Administrator may at any time and from time to
time accelerate the time at which all or any part of the Option may be
exercised.
Any exercise of an Option must be in writing, signed by the proper
person and delivered or mailed to the Company, accompanied by (1) any documents
required by the Administrator and (2) payment in full in accordance with
paragraph (e) below for the number of shares for which the Option is exercised.
(e) PAYMENT FOR STOCK. Stock purchased on exercise of an Option must
be paid for as follows: (1) in cash or by check (acceptable to the Company in
accordance with guidelines established for this purpose), bank draft or money
order payable to the order of the Company or (2) if so provided by the
Administrator (not later than the time of grant, in the case of an ISO) (i)
through the delivery of shares of Stock which have been outstanding for at least
six months (unless the Administrator expressly approves a shorter period) and
which have a fair market value on the last business day preceding the date of
exercise equal to the exercise price, or (ii) by delivery of a promissory note
of the Option holder to the Company, payable on such terms as are specified by
the Administrator, or (iii) by delivery of an unconditional and irrevocable
undertaking by a broker to deliver promptly to the Company sufficient funds to
pay the exercise price, or (iv) by any combination of the permissible forms of
payment; PROVIDED, that if the Stock delivered upon exercise of the Option is an
original issue of authorized Stock, at least so much of the exercise price as
represents the par value of such Stock must be paid other than by the Option
holder's promissory note or personal check.
-10-
<PAGE> 4
(f) DISCRETIONARY PAYMENTS. If the fair market value of shares of
Stock subject to an Option (other than an Option which is in tandem with a Stock
Appreciation Right as described in Section 6.2 below) exceeds the exercise price
of the Option at the time of its exercise, the Administrator may cancel the
Option and cause the Company to pay in cash or in shares of Common Stock (at a
price per share equal to the fair market value per share) to the person
exercising the Option an amount equal to the difference between the fair market
value of the Stock which would have been purchased pursuant to the exercise
(determined on the date the Option is cancelled) and the aggregate exercise
price which would have been paid. The Administrator may exercise its discretion
to take such action only if it has received a written request from the person
exercising the Option, but such a request will not be binding on the
Administrator.
6.2. STOCK APPRECIATION RIGHTS.
(a) NATURE OF STOCK APPRECIATION RIGHTS. A Stock Appreciation Right is
an Award entitling the recipient on exercise of the Right to receive an amount,
in cash or Stock or a combination thereof (such form to be determined by the
Administrator), determined in whole or in part by reference to appreciation in
Stock value.
In general, a Stock Appreciation Right entitles the Participant to
receive, with respect to each share of Stock as to which the Right is exercised,
the excess of the share's fair market value on the date of exercise over its
fair market value on the date the Right was granted. However, the Administrator
may provide at the time of grant that the amount the recipient is entitled to
receive will be adjusted upward or downward under rules established by the
Administrator to take into account the performance of the Stock in comparison
with the performance of other stocks or an index or indices of other stocks.
The Administrator may also grant Stock Appreciation Rights providing that
following a change in control of the Company, as determined by the
Administrator, the holder of such Right will be entitled to receive, with
respect to each share of Stock subject to the Right, an amount equal to the
excess of a specified value (which may include an average of values) for a share
of Stock during a period preceding such change in control over the fair market
value of a share of Stock on the date the Right was granted.
(b) GRANT OF STOCK APPRECIATION RIGHTS. Stock Appreciation Rights may
be granted in tandem with, or independently of, Options granted under the Plan.
A Stock Appreciation Right granted in tandem with an Option which is not an ISO
may be granted either at or after the time the Option is granted. A Stock
Appreciation Right granted in tandem with an ISO may be granted only at the time
the Option is granted.
(c) RULES APPLICABLE TO TANDEM AWARDS. When Stock Appreciation Rights
are granted in tandem with Options, the following will apply:
(1) The Stock Appreciation Right will be exercisable only at
such time or times, and to the extent, that the related Option is
exercisable and will be exercisable in accordance with the procedure
required for exercise of the related Option.
(2) The Stock Appreciation Right will terminate and no longer
be exercisable upon the termination or exercise of the related Option,
except that a Stock Appreciation Right granted with respect to less than
the full number of shares covered by an Option will not be reduced until
the number of shares as to which the related Option has been exercised
or has terminated exceeds the number of shares not covered by the Stock
Appreciation Right.
-11-
<PAGE> 5
(3) The Option will terminate and no longer be exercisable upon
the exercise of the related Stock Appreciation Right.
(4) The Stock Appreciation Right will be transferable only with
the related Option.
(5) A Stock Appreciation Right granted in tandem with an ISO
may be exercised only when the fair market value of the Stock subject to
the Option exceeds the exercise price of such option.
(d) EXERCISE OF INDEPENDENT STOCK APPRECIATION RIGHTS. A Stock
Appreciation Right not granted in tandem with an Option will become exercisable
at such time or times, and on such conditions, as the Administrator may
specify. The Administrator may at any time accelerate the time at which all or
any part of the Right may be exercised.
Any exercise of an independent Stock Appreciation Right must be in
writing, signed by the proper person and delivered or mailed to the Company,
accompanied by any other documents required by the Administrator.
6.3. RESTRICTED AND UNRESTRICTED STOCK.
(a) NATURE OF RESTRICTED STOCK AWARD. A Restricted Stock Award
entitles the recipient to acquire, for a purchase price equal to at least par
value, shares of Stock subject to the restrictions described in paragraph (d)
below ("Restricted Stock").
(b) ACCEPTANCE OF AWARD. A Participant who is granted a Restricted
Stock Award will have no rights with respect to such Award unless the
Participant accepts the Award by written instrument delivered or mailed to the
Company accompanied by payment in full of the specified purchase price, if any,
of the shares covered by the Award. Payment may be by certified or bank check
or other instrument acceptable to the Administrator.
(c) RIGHTS AS A STOCKHOLDER. A Participant who receives Restricted
Stock will have all the rights of a stockholder with respect to the Stock,
including voting and dividend rights, subject to the restrictions described in
paragraph (d) below and any other conditions imposed by the Administrator at the
time of grant. Unless the Administrator otherwise determines, certificates
evidencing shares of Restricted Stock will remain in the possession of the
Company until such shares are free of all restrictions under the Plan.
(d) RESTRICTIONS. Except as otherwise specifically provided by the
Plan, Restricted Stock may not be sold, assigned, transferred, pledged or
otherwise encumbered or disposed of, and if the Participant ceases to be a
Participant by reason of death or otherwise suffers a Status Change (as defined
at Section 7.2 below) for any reason, must be offered to the Company for
purchase for the amount of cash paid for the Stock, or forfeited to the Company
if no cash was paid. These restrictions will lapse at such time or times, and
on such conditions, as the Administrator may specify. The Administrator may at
any time accelerate the time at which the restrictions on all or any part of the
shares will lapse.
(e) NOTICE OF ELECTION. Any Participant making an election under
Section 83(b) of the Code with respect to Restricted Stock must provide a copy
thereof to the Company within 10 days of the filing of such election with the
Internal Revenue Service.
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<PAGE> 6
(f) OTHER AWARDS SETTLED WITH RESTRICTED STOCK. The Administrator may,
at the time any Award described in this Section 6 is granted, provide that any
or all the Stock delivered pursuant to the Award will be Restricted Stock.
(g) UNRESTRICTED STOCK. The Administrator may, in its sole discretion,
approve the sale to any Participant of shares of Stock free of restrictions
under the Plan for a price which is not less than the par value of the Stock.
6.4. DEFERRED STOCK.
A Deferred Stock Award entitles the recipient to receive shares of Stock
to be delivered in the future. Delivery of the Stock will take place at such
time or times, and on such conditions, as the Administrator may specify. The
Administrator may at any time accelerate the time at which delivery of all or
any part of the Stock will take place. At the time any Award described in this
Section 6 is granted, the Administrator may provide that, at the time Stock
would otherwise be delivered pursuant to the Award, the Participant will instead
receive an instrument evidencing the Participant's right to future delivery of
Deferred Stock.
6.5. PERFORMANCE AWARDS; PERFORMANCE GOALS.
(a) NATURE OF PERFORMANCE AWARDS. A Performance Award entitles the
recipient to receive, without payment, an amount in cash or Stock or a
combination thereof (such form to be determined by the Administrator) following
the attainment of Performance Goals. Performance Goals may be related to
personal performance, corporate performance, departmental performance or any
other category of performance deemed by the Administrator to be important to the
success of the Company. The Administrator will determine the Performance Goals,
the period or period during which performance is to be measured and all other
terms and conditions applicable to the Award.
(b) OTHER AWARDS SUBJECT TO PERFORMANCE CONDITION. The Administrator
may, at the time any Award described in this Section 6 is granted, impose the
condition (in addition to any conditions specified or authorized in this Section
6 or any other provision of the Plan) that Performance Goals be met prior to the
Participant's realization of any payment or benefit under the Award.
6.6. LOANS AND SUPPLEMENTAL GRANTS.
(a) LOANS. The Company may make a loan to a Participant ("Loan"),
either on the date of or after the grant of any Award to the Participant. A
Loan may be made either in connection with the purchase of Stock under the Award
or with the payment of any Federal, state or local income tax with respect to
income recognized as a result of the Award. The Administrator will have full
authority to decide whether to make a Loan and to determine the amount, terms
and conditions of the Loan, including the interest rate (which may be zero),
whether the Loan is to be secured or unsecured or with or without recourse
against the borrower, the terms on which the Loan is to be repaid and the
conditions, if any, under which it may be forgiven.
(b) SUPPLEMENTAL GRANTS. In connection with any Award, the
Administrator may at the time such Award is made or at a later date, provide for
and grant a cash award to the Participant ("Supplemental Grant") not to exceed
an amount equal to (1) the amount of any federal, state and local income tax on
income for which the Participant may be liable with respect to the Award,
determined by assuming taxation at the highest marginal rate, plus (2) an
additional amount on a grossed-up basis intended to make the Participant whole
on an after-tax basis after discharging all the Participant's income tax
liabilities arising from all payments under this Section 6. Any payments under
this
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subsection (b) will be made at the time the Participant incurs Federal income
tax liability with respect to the Award.
7. EVENTS AFFECTING OUTSTANDING AWARDS
7.1. DEATH.
If a Participant dies, the following will apply:
(a) All Options and Stock Appreciation Rights held by the Participant
immediately prior to death, to the extent then exercisable, may be exercised by
the Participant's executor or administrator or the person or persons to whom the
Option or Right is transferred by will or the applicable laws of descent and
distribution, at any time within the one year-period ending with the first
anniversary of the Participant's death (or such shorter or longer period as the
Administrator may determine), and shall thereupon terminate. In no event,
however, shall an Option or Stock Appreciation Right remain exercisable beyond
the latest date on which it could have been exercised without regard to this
Section 7. Except as otherwise determined by the Administrator, all Options and
Stock Appreciation Rights held by a Participant immediately prior to death that
are not then exercisable shall terminate at death.
(b) Except as otherwise determined by the Administrator, all Restricted
Stock held by the Participant must be transferred to the Company (and, in the
event the certificates representing such Restricted Stock are held by the
Company, such Restricted Stock will be so transferred without any further action
by the Participant) in accordance with Section 6.3 above.
(c) Any payment or benefit under a Deferred Stock Award, Performance
Award, or Supplemental Grant to which the Participant was not irrevocably
entitled prior to death will be forfeited and the Award canceled as of the time
of death, unless otherwise determined the Administrator.
7.2. TERMINATION OF SERVICE (OTHER THAN BY DEATH).
If a Participant who is an Employee ceases to be an Employee for any
reason other than death, or if there is a termination (other than by reason of
death) of the consulting, service or similar relationship in respect of which a
non-Employee Participant was granted an Award hereunder (such termination of the
employment or other relationship being hereinafter referred to as a "Status
Change"), the following will apply:
(a) Except as otherwise determined by the Administrator, all Options
and Stock Appreciation Rights held by the Participant that were not exercisable
immediately prior to the Status Change shall terminate at the time of the Status
Change. Any Options or Rights that were exercisable immediately prior to the
Status Change will continue to be exercisable for a period of three months (or
such shorter or longer period as the Administrator may determine), and shall
thereupon terminate, unless the Award provides by its terms for immediate
termination in the event of a Status Change or unless the Status Change results
from a discharge for cause which in the opinion of the Administrator casts such
discredit on the Participant as to justify immediate termination of the Award.
In no event, however, shall an Option or Stock Appreciation Right remain
exercisable beyond the latest date on which it could have been exercised without
regard to this Section 7. For purposes of this paragraph, in the case of a
Participant who is an Employee, a Status Change shall not be deemed to have
resulted by reason of (i) a sick leave or other bona fide leave of absence
approved for purposes of the Plan by the Administrator, so long as the
Employee's right to reemployment is guaranteed either by statute or by
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contract, or (ii) a transfer of employment between the Company and a subsidiary
or between subsidiary, or to the employment of a corporation (or a parent or
subsidiary corporation of such corporation) issuing or assuming an option
in a transaction to which section 424(a) of the Code applies.
(b) Except as otherwise determined by the Administrator, all Restricted
Stock held by the Participant at the time of the Status Change must be
transferred to the Company (and, in the event the certificates representing such
Restricted Stock are held by the Company, such Restricted Stock will be so
transferred without any further action by the Participant) in accordance with
Section 6.3 above.
(c) Any payment or benefit under a Deferred Stock Award, Performance
Award, or Supplemental Grant to which the Participant was not irrevocably
entitled prior to the Status Change will be forfeited and the Award cancelled as
of the date of such Status Change unless otherwise determined by the
Administrator.
7.3. CERTAIN CORPORATE TRANSACTIONS.
In the event of a consolidation or merger in which the Company is not
the surviving corporation or which results in the acquisition of substantially
all the Company's outstanding Stock by a single person or entity or by a group
of persons and/or entities acting in concert, or in the event of the sale or
transfer of substantially all the Company's assets or a dissolution or
liquidation of the Company (a "covered transaction"), all outstanding Awards
will terminate as of the effective date of the covered transaction. Prior to
the effective date of the covered transaction, the Administrator in its sole
discretion may, with respect to any or all Awards (or any portion thereof) then
outstanding:
(a)(1) in the case of Options and Stock Appreciation Rights, make them
exercisable in full, (2) remove the restrictions from shares of Restricted
Stock, (3) cause the Company to make payment and provide benefits, in whole or
in part, under Deferred Stock Awards, Performance Awards, and Supplemental
Grants which would have been made or provided with the passage of time had the
transaction not occurred and the Participant not suffered a Status Change (or
died), (4) remove any performance-related or other conditions, and (5) forgive
all or any portion of the principal of or interest on a Loan; or
(b) with respect to an outstanding Award held by a Participant who,
following the covered transaction, will be employed by or otherwise providing
services to a corporation which is a surviving or acquiring corporation in such
transaction or an affiliate of such a corporation, arrange to have such
surviving or acquiring corporation or affiliate grant to the Participant a
replacement award which, in the judgment of the Administrator, is substantially
equivalent to the Award;
PROVIDED, that nothing in this Section 7.3 shall be construed as obligating the
Administrator to take any action under either (a) or (b) above.
8. GENERAL PROVISIONS
8.1. DOCUMENTATION OF AWARDS.
Awards will be evidenced by such written instruments, if any, as may be
prescribed by the Administrator from time to time. Such instruments may be in
the form of agreements to be executed by both the Participant and the Company,
or certificates, letters or similar instruments, which need not be executed by
the Participant but acceptance of which will evidence agreement to the terms
thereof.
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8.2. RIGHTS AS A STOCKHOLDER, DIVIDEND EQUIVALENTS.
Except as specifically provided by the Plan, the receipt of an Award
will not give a Participant rights as a stockholder; the participant will
obtain such rights, subject to any limitations imposed by the Plan or the
instrument evidencing the Award, upon actual receipt of Stock. However, the
Administrator may, on such conditions as it deems appropriate, provide that a
Participant will receive a benefit in lieu of cash dividends that would have
been payable on any or all Stock subject to the Participant's Award had such
Stock been outstanding. Without limitation, the Administrator may provide for
payment to the Participant of amounts representing such dividends, either
currently or in the future, or for the investment of such amounts on behalf of
the Participant.
8.3. CONDITIONS ON DELIVERY OF STOCK.
The Company will not be obligated to deliver any shares of Stock
pursuant to the Plan or to remove restriction from shares previously delivered
under the Plan (a) until all conditions of the Award have been satisfied or
removed, (b) until, in the opinion of the Company's counsel, all applicable
federal and state laws and regulations have been complied with, (c) if the
outstanding Stock is at the time listed on any stock exchange or national market
system, until the shares to be delivered have been listed or authorized to be
listed on such exchange or system upon official notice of notice of issuance,
and (d) until all other legal matters in connection with the issuance and
delivery of such shares have been approved by the Company's counsel. If the
sale of Stock has not been registered under the Securities Act of 1933, as
amended, the Company may require, as a condition to exercise of the Award, such
representations or agreements as counsel for the Company may consider
appropriate to avoid violation of such Act and may require that the certificates
evidencing such Stock bear an appropriate legend restricting transfer.
If an Award is exercised by the Participant's legal representative, the
Company will be under no obligation to deliver Stock pursuant to such exercise
until the Company is satisfied as to the authority of such representative.
8.4. TAX WITHHOLDING.
The Company will withhold from any cash payment made pursuant to an
Award an amount sufficient to satisfy all federal, state and local withholding
tax requirements (the "withholding requirements").
In the case of an Award pursuant to which Stock may be delivered, the
Administrator will have the right to require that the Participant or other
appropriate person remit to the Company an amount sufficient to satisfy the
withholding requirements, or make other arrangements satisfactory to the
Administrator with regard to such requirements, prior to the delivery of any
Stock. If and to the extent that such withholding is required, the
Administrator may permit the Participant or such other person to elect at such
time and in such manner as the Administrator provides to have the Company hold
back from the shares to be delivered, or to deliver to the Company, Stock having
a value calculated to satisfy the withholding requirement. In the alternative,
the Administrator may, at the time of grant of any such Award, require that the
Company withhold from any shares to be delivered Stock with a value calculated
to satisfy applicable tax withholding requirements.
If at the time an ISO is exercised the Administrator determines that the
Company could be liable for withholding requirements with respect to a
disposition of the Stock received upon exercise, the Administrator may require
as a condition of exercise that the person exercising the ISO agree (a) to
inform the Company promptly of any disposition (within the meaning of section
424(c) of the Code) of
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Stock received upon exercise, and (b) to give such security as the Administrator
deems adequate to meet the potential liability of the Company for the
withholding requirements and to augment such security from time to time in any
amount reasonably deemed necessary by the Administrator to preserve the adequacy
of such security.
8.5. NONTRANSFERABILITY OF AWARDS.
No Award (other than an Award in the form of an outright transfer of
cash or Unrestricted Stock) may be transferred other than by will or by the laws
of descent and distribution, and during an employee's lifetime an Award
requiring exercise may be exercised only by the Participant (or in the event of
the Participant's incapacity, the person or persons legally appointed to act on
the Participant's behalf).
8.6. ADJUSTMENTS IN THE EVENT OF CERTAIN TRANSACTIONS.
(a) In the event of a stock dividend, stock split or combination of
shares, recapitalization or other change in the Company's capitalization after
the effective date of the Plan, the Administrator will make appropriate
adjustments to the maximum number of shares that may be delivered under the Plan
under Section 4 above, and will also make appropriate adjustments to the number
and kind of shares of stock or securities subject to Awards then outstanding or
subsequently granted, any exercise prices relating to Awards and any other
provision of Awards affected by such change.
(b) The Administrator may also make adjustments of the type described
in paragraph (a) above to take into account material changes in law or in
accounting practices or principles, distributions to common stockholders other
than stock dividends or normal cash dividends, mergers, consolidations,
acquisitions, dispositions or similar corporate transactions, or any other
event, if the Administrator determines that adjustments are appropriate to avoid
distortion in the operation of the Plan.
8.7. EMPLOYMENT RIGHTS, ETC.
Neither the adoption of the Plan nor the grant of Awards will confer
upon any person any right to continued retention by the Company or any
subsidiary as an Employee or otherwise, or affect in any way the right of the
Company or subsidiary to terminate an employment, service or similar
relationship at any time. Except as specifically provided by the Administrator
in any particular case, the loss of existing or potential profit in Awards
granted under the Plan will not constitute an element of damages in the event of
termination of an employment, service or similar relationship even if the
termination is in violation of an obligation of the Company to the Participant.
8.8. DEFERRAL OF PAYMENTS.
The Administrator may agree at any time, upon request of the
Participant, to defer the date on which any payment under an Award will be made.
8.9. PAST SERVICES AS CONSIDERATION.
Where a Participant purchases Stock under an Award for a price equal to
the par value of the Stock the Administrator may determine that such price has
been satisfied by past services rendered by the Participant.
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9. EFFECT, DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION
Neither adoption of the Plan nor the grant of Awards to a Participant
will affect the Company's right to grant to such Participant awards that are not
subject to the Plan, to issue to such Participant Stock as a bonus or otherwise,
or to adopt other plans or arrangements under which Stock be issued to
Employees.
The Administrator may at any time or times amend the Plan or any
outstanding Award for any purpose which may at the time be permitted by law, or
may at any time terminate the Plan as to any further grants of Awards, provided
that (except to the extent expressly required or permitted by the Plan) no such
amendment will, without the approval of the stockholders of the Company,
effectuate a change for which stockholder approval is required in order for the
Plan to continue to qualify for the award of ISOs under section 422 of the Code
and to continue to qualify under Rule 16b-3 promulgated under Section 16 of the
1934 Act.
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EXHIBIT 5.1
-----------
May 3, 1995
BTU International, Inc.
23 Esquire Road
North Billerica, MA 01862
Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-8 (the "Registration Statement"), filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, for the registration of 438,283 shares of Common Stock, $.01 par value
(the "Shares"), of BTU International, Inc. (the "Company").
We have acted as counsel for the Company and are familiar with the
action taken by the Company in connection with the 1993 Equity Incentive Plan
(the "Plan"). For purposes of this opinion we have examined the Plan and such
other documents as we deemed appropriate.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized and, when the Shares have been issued and sold and
consideration received therefor by the Company in accordance with the terms of
the Plan or, will be validly issued, fully paid and non-assessable.
We hereby consent to your filing this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ ROPES & GRAY
Ropes & Gray
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the
incorporation by reference in the Registration Statement on Form S-8 of BTU
International, Inc. of our reports dated February 13, 1995 on our audits of the
consolidated financial statements and financial statement schedules of BTU
International, Inc. as of December 31, 1994 and 1993 and for each of the three
years ending December 31, 1994, which reports are included or incorporated by
reference in the Annual Report on Form 10-K of BTU International, Inc. for the
year ended December 31, 1994.
Arthur Andersen LLP
Boston, Massachusetts
May 3, 1995
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