<PAGE> 1
As filed with the Securities and Exchange Commission on October 10, 1997
Registration Statement No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
ALPHA-BETA TECHNOLOGY, INC.
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-2997834
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
THREE BIOTECH PARK
ONE INNOVATION DRIVE
WORCESTER, MA 01605
(Address of principal executive offices)
ALPHA-BETA TECHNOLOGY, INC.
1997 STOCK OPTION AND GRANT PLAN
(Full title of the Plan)
-------------------------------
SPIROS JAMAS
President and Chief Executive Officer
ALPHA-BETA TECHNOLOGY, INC.
Three Biotech Park
One Innovation Drive
Worcester, MA 01605
(Name and address of agent for service)
(508) 798-6900
(Telephone number, including area code, of agent for service)
----------------------------
Copies to:
JOHN J. EGAN III, ESQ.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
Boston, Massachusetts 02109
(617) 570-1000
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Proposed Maximum Amount of
Registered Registered (1) Share (2) Aggregate Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 837,165 $2.984375 $2,498,414.30 $757.10
$0.01 par value
==============================================================================================================================
(1) Plus such additional number of shares as may be required pursuant to the option plan in the event of a stock dividend,
stock split, split-up, recapitalization or other similar event.
(2) This estimate is made pursuant to Rule 457(c) and Rule 457(h)(1) under the Securities Act of 1933, as amended, solely for
the purpose of determining the amount of the registration fee and is based solely upon the market value of outstanding
shares of the Company's common stock on October 8, 1997 utilizing the average of the high and low prices reported on the
Nasdaq National Market on that date.
==============================================================================================================================
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Alpha-Beta Technology, Inc. (the "Company") hereby incorporates by
reference the documents listed in (a) through (d) below, which have previously
been filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, filed with the Commission on March 28, 1997
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1997, filed with the Commission on May 14, 1997
pursuant to the Exchange Act;
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1997, filed with the Commission on August 14, 1997
pursuant to the Exchange Act; and
(d) The description of the Company's common stock, par value $.01 per
share, contained in the Company's Registration Statement on Form
8-A, filed with the Commission on April 11, 1992 pursuant to Section
12 of the Exchange Act, as amended by Form 8-A/A filed with the
Commission on November 1, 1993.
In addition, all documents subsequently filed with the Commission by the
Company pursuant to Sections 13(a) and 13(c), Section 14 and Section 15(d) of
the Exchange Act prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
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 hereof to the extent that a statement contained herein or in any
subsequently filed document which also is incorporated or 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 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Massachusetts corporation. Reference is made to Chapter
156B, Section 13 of the Massachusetts Business Corporation Law (the "MBCL"),
which enables a corporation in its original articles of organization or an
amendment thereto to eliminate or limit the personal liability of a director for
monetary damages for violations of the director's fiduciary duty, except (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Sections
61 and 62 of the MBCL (providing for liability of directors for authorizing
unauthorized distributions and for making loans to directors, officers and
certain shareholders) or (iv) for any transaction from which a director derived
an improper personal benefit.
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Reference also is made to Chapter 156B, Section 67 of the MBCL, which
provides that a corporation may indemnify directors, officers, employees and
other agents and persons who serve at its request as directors, officers,
employees or other agents of another organization or who serve at its request in
any capacity with respect to any employee benefit plan, to the extent specified
or authorized by the articles of organization, a by-law adopted by the
stockholders or a vote adopted by the holders of a majority of the shares of
stock entitled to vote on the election of directors. Such indemnification may
include payment by the corporation of expenses incurred in defending a civil or
criminal action or proceeding in advance of the final disposition of such action
or proceeding, upon receipt of an undertaking by the person indemnified to repay
such payment if he shall be adjudicated to be not entitled to indemnification
under Section 67 which undertaking may be accepted without reference to the
financial ability of such person to make repayment. Any such indemnification may
be provided although the person to be indemnified is no longer an officer,
director, employee or agent of the corporation or of such other organization or
no longer serves with respect to any such employee benefit plan. No
indemnification shall be provided, however, for any person with respect to any
matter as to which he shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the corporation or to the extent that such matter relates to service
with respect to an employee benefit plan, in the best interest of the
participants or beneficiaries of such employee benefit plan.
Article VI of the Restated Articles of Organization of the Company
provides that, except under certain circumstances, directors of the Company
shall not be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duties as a director.
Article VI of the Restated Articles of Organization of the Company
provides for indemnification of the officers and directors of the Company to the
full extent permitted by applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
<TABLE>
<CAPTION>
Exhibit
- -------
<S> <C>
4.1 Alpha-Beta Technology, Inc. 1997 Stock Option and Grant Plan.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the securities being registered.
23.1 Consent of Counsel (included in Exhibit 5.1 hereto).
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
24.1 Power of Attorney (included in signature page of this Registration Statement).
</TABLE>
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, as amended (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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low
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or high and of the estimated maximum offering range may
be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein
do 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 undersigned registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(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 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
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 foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the 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.
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SIGNATURES
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 Worcester, The Commonwealth of Massachusetts, on
October 10, 1997.
ALPHA-BETA TECHNOLOGY, INC.
By: /s/ Spiros Jamas
-------------------------------------
Spiros Jamas,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
Each person whose signature appears below constitutes and appoints Spiros
Jamas and D. Davidson Easson, Jr. and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities to sign any or all amendments
or 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 each of said
attorneys-in-fact and agents 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 their substitutes, may lawfully do or cause to be done by virtue
hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Spiros Jamas President, Chief Executive Officer October 10, 1997
- ---------------------------- and Director (Principal Executive
Spiros Jamas Officer)
/s/ D. Davidson Easson, Jr. Executive Vice President, Treasurer, October 10, 1997
- ---------------------------- Chief Operating Officer and Director
D. Davidson Easson, Jr.
/s/ Gustav A. Christensen Chairman of the Board of Directors October 10, 1997
- ----------------------------
Gustav A. Christensen
/s/ Bernard Canavan Director October 10, 1997
- ----------------------------
Bernard Canavan
Director October __, 1997
- ----------------------------
Lawrence C. Hoff
/s/ Michael E. Porter Director October 10, 1997
- ----------------------------
Michael E. Porter
/s/ Peter H. Levine, M.D. Director October 10, 1997
- ----------------------------
Peter H. Levine, M.D.
/s/ William Romeo Vice President of Finance October 10, 1997
- ----------------------------
William Romeo
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Alpha-Beta Technology, Inc. 1997 Stock Option and Grant Plan
5.1 Opinion of Goodwin, Procter & Hoar LLP as
to the legality of the securities being registered
23.1 Consent of Counsel (included in
Exhibit 5.1 hereto)
23.2 Consent of Arthur Andersen LLP, Independent
Public Accountants
24.1 Power of Attorney (included in signature page
of this Registration Statement)
</TABLE>
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EXHIBIT 4.1
ALPHA-BETA TECHNOLOGY, INC.
1997 STOCK OPTION AND GRANT PLAN
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
The name of the plan is the Alpha-Beta Technology, Inc. 1997 Stock
Option and Grant Plan (the "Plan"). The purpose of the Plan is to encourage and
enable the officers, employees, Independent Directors (as defined below),
consultants, advisors and other key persons of Alpha-Beta Technology, Inc. (the
"Company") and its Subsidiaries (as defined below) upon whose judgment,
initiative and efforts the Company largely depends for the successful conduct of
its business to acquire a proprietary interest in the Company. It is anticipated
that providing such persons with a direct stake in the Company's welfare will
assure a closer identification of their interests with those of the Company,
thereby stimulating their efforts on the Company's behalf and strengthening
their desire to remain with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended.
"Award" or "Awards," except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock
Options and outright grants of Stock under the Plan.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Committee" has the meanings specified in Section 2.
"Director Fees" are defined in Section 5(b).
"Fair Market Value" of the Stock on any given date means (i) if the
Stock is admitted to quotation on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ"), the Fair Market Value on any given date
shall not be less than the average of the highest bid and lowest asked prices of
the Stock reported for such date or, if no bid and asked prices were reported
for such date, for the last day preceding such date for which such prices were
reported; or (ii) if the Stock is admitted to trading on a national securities
exchange or the NASDAQ National Market System, the Fair Market Value on any date
shall not be less than the closing price reported for the Stock on such exchange
or system for such date or, if no sales were reported for
<PAGE> 2
such date, for the last date preceding such date for which a sale was reported;
or (iii) if the Stock is not publicly traded on a securities exchange or traded
in the over-the-counter market or, if traded or quoted, there are no
transactions or quotations within the last ten trading days or trading has been
halted for extraordinary reasons, the Fair Market Value on any given date shall
be determined in good faith by the Committee with reference to the rules and
principles of valuation set forth in Section 20.2031-2 of the Treasury
Regulations.
"Incentive Stock Option" means any Stock Option designated and
qualified as an "incentive stock option" as defined in Section 422 of the Code.
"Independent Director" means a member of the Board who is not also an
employee of the Company or any Subsidiary.
"Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Option" or "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5.
"Stock" means the Common Stock, par value $.01 per share, of the
Company, subject to adjustments pursuant to Section 3.
"Subsidiary" means any corporation or other entity (other than the
Company) in any unbroken chain of corporations or other entities, beginning with
the Company, if each of the corporations or entities (other than the last
corporation or entity in the unbroken chain) owns stock or other interests
possessing 50% or more of the economic interest or the total combined voting
power of all classes of stock or other interests in one of the other
corporations or entities in the chain.
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT PARTICIPANTS
AND DETERMINE AWARDS
(a) COMMITTEE. The Plan shall be administered by the Board of
Directors of the Company, or at the discretion of the Board by a committee of
the Board of not less than two "Non-Employee Directors" within the meaning of
Rule 16b-3(b)(3)(i) under the Act, or any successor definition under said rule.
Each member of the Committee shall be an "Outside Director" within the meaning
of Section 162(m) of the Code and the regulations promulgated thereunder. All
references herein to the Committee shall be deemed to refer to the entity then
responsible for administration of this Plan at the relevant time (i.e., either
the Board of Directors or a committee of the Board, as applicable).
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(b) POWERS OF COMMITTEE. The Committee shall have the power and
authority to grant Awards consistent with the terms of the Plan, including the
power and authority:
(i) to select the officers, employees, Independent Directors,
consultants, advisors and key persons of the Company and its
Subsidiaries to whom Awards may from time to time be granted;
(ii) to determine the time or times of grant, and the extent,
if any, of Incentive Stock Options, Non-Qualified Stock Options or
Stock, or any combination of the foregoing, granted under the Plan to
any one or more participants;
(iii) to determine the number of shares of Stock to be covered
by any Award;
(iv) to determine and modify from time to time the terms and
conditions, including restrictions, not inconsistent with the terms of
the Plan, of any Award, which terms and conditions may differ among
individual Awards and participants, and to approve the form of written
instruments evidencing the Awards;
(v) to accelerate at any time the exercisability or vesting of
all or any portion of any Award and/or to include provisions in Awards
providing for such acceleration;
(vi) to impose any limitations on Awards granted under the
Plan, including limitations on transfers, repurchase provisions and the
like and to exercise repurchase rights or obligations;
(vii) subject to the provisions of Section 5(a)(ii), to extend
at any time the period in which Stock Options may be exercised;
(viii) to determine at any time whether, to what extent, and
under what circumstances Stock and other amounts payable with respect
to an Award shall be deferred either automatically or at the election
of the participant and whether and to what extent the Company shall pay
or credit amounts constituting interest (at rates determined by the
Committee) or dividends or deemed dividends on such deferrals; and
(ix) at any time to adopt, alter and repeal such rules,
guidelines and practices for administration of the Plan and for its own
acts and proceedings as it shall deem advisable; to interpret the terms
and provisions of the Plan and any
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Award (including related written instruments); to make all
determinations it deems advisable for the administration of the Plan;
to decide all disputes arising in connection with the Plan; and to
otherwise supervise the administration of the Plan.
All decisions and interpretations of the Committee shall be binding on
all persons, including the Company and Plan participants.
(c) DELEGATION OF AUTHORITY TO GRANT AWARDS. The Committee, in its
discretion, may delegate to the Chief Executive Officer of the Company all or
part of the Committee's authority and duties with respect to the granting of
Stock Options at Fair Market Value, to individuals who are not subject to the
reporting and other provisions of Section 16 of the Act or "covered employees"
within the meaning of Section 162(m) of the Code. Any such delegation by the
Committee shall include a limitation as to the amount of Stock Options that may
be granted each year. The Committee may revoke or amend the terms of a
delegation at any time but such action shall not invalidate any prior actions of
the Committee's delegate or delegates that were consistent with the terms of the
Plan.
SECTION 3. STOCK ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION
(a) STOCK ISSUABLE. The maximum number of shares of Stock reserved
and available for issuance under the Plan (whether pursuant to outright grants
or options) shall be such aggregate number of shares of Stock as does not exceed
the sum of (i) 837,165 shares; plus (ii) as of each June 30 and December 31
after December 31, 1996, an additional positive number equal to five percent
(5%) of the shares of Stock issued by the Company during that six month period;
provided, however, that the maximum number of shares of Stock for which
Incentive Stock Options may be granted under the Plan shall not exceed 837,165
shares, and the maximum number of shares of stock which may be the subject of
outright grants shall not exceed 100,000 shares. For purposes of the foregoing
limitations, the shares of Stock underlying any Awards which are forfeited,
canceled, reacquired by the Company, satisfied without the issuance of Stock or
otherwise terminated shall be added back to the shares of Stock available for
issuance under the Plan. Stock Options with respect to no more than 200,000
shares of Stock may be granted to any one individual participant during any one
calendar year period. The shares available for issuance under the Plan may be
authorized but unissued shares of Stock or shares of Stock reacquired by the
Company.
(b) RECAPITALIZATIONS. Subject to Section 3(c), if, through or as a
result of any merger, consolidation, sale of all or substantially all of the
assets of the Company, reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split or other similar transaction, the
outstanding shares of Stock are increased or
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decreased or are exchanged for a different number or kind of shares or other
securities of the Company or any successor company, or additional shares or new
or different shares or other securities of the Company or any successor Company
or other non-cash assets are distributed with respect to such shares of Stock or
other securities, the Committee shall make an appropriate or proportionate
adjustment in (i) the maximum number of shares reserved for issuance under the
Plan, (ii) the number of Stock Options that can be granted to any one individual
participant, (iii) the number and kind of shares or other securities subject to
any then outstanding Awards under the Plan, and (iv) the price for each share
subject to any then outstanding Stock Options under the Plan, without changing
the aggregate exercise price (i.e., the exercise price multiplied by the number
of shares) as to which such Stock Options remain exercisable. The adjustment by
the Committee shall be final, binding and conclusive. No fractional shares of
Stock shall be issued under the Plan resulting from any such adjustment, but the
Committee in its discretion may make a cash payment in lieu of fractional
shares.
(c) MERGERS AND OTHER TRANSACTIONS. In the case of (i) the
dissolution or liquidation of the Company, (ii) a merger, reorganization or
consolidation in which a majority of the outstanding voting power of the Company
is acquired by another person or entity (other than a holding company formed by
the Company), (iii) the sale of all or substantially all of the assets of the
Company to an unrelated person or entity, or (iv) the sale of all of the Stock
of the Company to an unrelated person or entity (in each case, a "Transaction"),
the Plan and all Awards granted hereunder shall terminate upon the effectiveness
of the Transaction, unless provision is made in connection with the Transaction
for the assumption of Awards theretofore granted, or the substitution of such
Awards with new Awards of the successor entity or parent thereof, with
appropriate adjustment as to the number and kind of shares and, if appropriate,
the per share exercise prices, as provided in Section 3(b) above. In the event
of such termination, each optionee shall be permitted, within a specified period
determined by the Committee, to exercise all outstanding Options held by such
optionee whether or not otherwise exercisable during such period, subject to the
consummation of the Transaction.
(d) SUBSTITUTE AWARDS. The Committee may grant Awards under the Plan
in substitution for stock and stock based awards held by employees of another
corporation who become employees of the Company or a Subsidiary as the result of
a merger or consolidation of the employing corporation with the Company or a
Subsidiary or the acquisition by the Company or a Subsidiary of property or
stock of the employing corporation. The Committee may direct that the substitute
awards be granted on such terms and conditions as the Committee considers
appropriate in the circumstances.
SECTION 4. ELIGIBILITY
Participants in the Plan will be such full and part-time officers and
other
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employees, Independent Directors, consultants, advisors and other key persons of
the Company and its Subsidiaries who are responsible for or contribute to the
management, growth or profitability of the Company and its Subsidiaries as are
selected from time to time by the Committee, in its sole discretion.
SECTION 5. STOCK OPTIONS
Any Stock Option granted under the Plan shall be pursuant to a stock
option agreement which shall be in such form as the Committee may from time to
time approve. Option agreements need not be identical.
Stock Options granted under the Plan may be either Incentive Stock
Options or Non-Qualified Stock Options. Incentive Stock Options may be granted
only to employees of the Company or any Subsidiary that is a "subsidiary
corporation" within the meaning of Section 424(f) of the Code, including members
of the Board who are also employees of the Company or any such Subsidiary.
Non-Qualified Stock Options may be granted to officers, employees, Independent
Directors, consultants, advisors and other key persons of the Company and its
Subsidiaries. To the extent that any Option does not qualify as an Incentive
Stock Option, it shall be deemed a Non-Qualified Stock Option.
No Incentive Stock Option shall be granted under the Plan after April
23, 2007.
(a) TERMS OF STOCK OPTIONS. Stock Options granted under the Plan
shall be subject to the following terms and conditions and shall contain such
additional terms and conditions, not inconsistent with the terms of the Plan, as
the Committee shall deem desirable:
(i) EXERCISE PRICE. The exercise price per share for the Stock
covered by an Incentive Stock Option shall be determined by the
Committee at the time of grant but shall not be less than 100% of the
Fair Market Value on the date of grant. If an employee owns or is
deemed to own (by reason of the attribution rules applicable under
Section 424(d) of the Code) more than 10% of the combined voting power
of all classes of stock of the Company or any parent or subsidiary
corporation and an Incentive Stock Option is granted to such employee,
the option price of such Incentive Stock Option shall be not less than
110% of the Fair Market Value on the grant date. The purchase price per
share of Stock covered by a Non-Qualified Stock Option shall be
determined by the Committee at the time of grant and shall not be
subject to the restrictions described in the preceding two sentences.
(ii) OPTION TERM. The term of each Stock Option shall be fixed
by the Committee, but no Incentive Stock Option shall be exercisable
more than ten
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years after the date the option is granted. If an employee owns or is
deemed to own (by reason of the attribution rules of Section 424(d) of
the Code) more than 10% of the combined voting power of all classes of
stock of the Company or any parent or subsidiary corporation and an
Incentive Stock Option is granted to such employee, the term of such
option shall be no more than five years from the date of grant.
(iii) EXERCISABILITY; RIGHTS OF A STOCKHOLDER. Stock Options
shall become vested and exercisable at such time or times, whether or
not in installments, as shall be determined by the Committee at or
after the grant date; provided, however, that Stock Options granted in
lieu of cash compensation shall be exercisable in full as of the grant
date. The minimum number of shares with respect to which an option may
be exercised at any one time shall be one hundred (100) shares, or such
lesser number as is subject to exercise under the Stock Option at the
time. The Committee may at any time accelerate the exercisability of
all or any portion of any Stock Option. An optionee shall have the
rights of a stockholder only as to shares acquired upon the exercise of
a Stock Option and not as to unexercised Stock Options.
(iv) METHOD OF EXERCISE. Stock Options may be exercised in
whole or in part, by giving written notice of exercise to the Company,
specifying the number of shares to be purchased. Payment of the
purchase price may be made by one or more of the following methods:
(A) In cash, by certified or bank check or other
instrument acceptable to the Committee;
(B) In the form of shares of Stock that are not then
subject to restrictions under any Company plan and that have been
held by the optionee free of such restrictions for at least six
months, if permitted by the Committee in its discretion. Such
surrendered shares shall be valued at Fair Market Value on the
exercise date; or
(C) By the optionee delivering to the Company a properly
executed exercise notice together with irrevocable instructions
to a broker to promptly deliver to the Company cash or a check
payable and acceptable to the Company to pay the purchase price;
provided that in the event the optionee chooses to pay the
purchase price as so provided, the optionee and the broker shall
comply with such procedures and enter into such agreements of
indemnity and other agreements as the Committee shall prescribe
as a condition of such payment procedure.
Payment instruments will be received subject to collection. The
delivery of
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certificates representing the shares of Stock to be purchased pursuant
to the exercise of a Stock Option will be contingent upon receipt from
the optionee (or a purchaser acting in his or her stead in accordance
with the provisions of the Stock Option) by the Company of the full
purchase price for such shares and the fulfillment of any other
requirements contained in the Stock Option or applicable provisions of
law.
(v) TERMINATION. Stock Options shall terminate at such times
as are specified in the relevant Award.
(vi) ANNUAL LIMIT ON INCENTIVE STOCK OPTIONS. To the extent
required for "incentive stock option" treatment under Section 422 of
the Code, the aggregate Fair Market Value (determined as of the time of
grant) of the shares of Stock with respect to which Incentive Stock
Options granted under this Plan and any other plan of the Company or
its parent and subsidiary corporations become exercisable for the first
time by an optionee during any calendar year shall not exceed $100,000.
To the extent that any Stock Option exceeds this limit, it shall
constitute a Non-Qualified Stock Option.
(b) GRANT OF OPTIONS IN LIEU OF DIRECTOR FEES. Each Independent
Director may, pursuant to a written election delivered to the Company, receive
all of such Independent Director's cash retainer and other cash fees payable to
such Independent Director in respect of his or her attendance at any meetings of
the Board or any committee thereof ("Director Fees") in the form of
Non-Qualified Stock Options to purchase such number of shares of Stock having a
present value equal to the amount of such Director Fees as shall be determined
in accordance with the Black-Scholes option pricing model on the date or dates
the Director Fees would otherwise be paid in cash. All Non-Qualified Stock
Options granted under this Section 5(b) shall have a per share exercise price
which is equal to the per share Fair Market Value of the Stock on the date such
Non-Qualified Stock Options are granted. The Committee, in its discretion, may
grant additional Non-Qualified Stock Options to Independent Directors.
(c) NON-TRANSFERABILITY OF OPTIONS. No Stock Option shall be
transferable by the optionee otherwise than by will or by the laws of descent
and distribution and all Stock Options shall be exercisable, during the
optionee's lifetime, only by the optionee, or his or her guardian or legal
representative. Notwithstanding the foregoing, the Committee may provide in an
option agreement that the optionee may transfer, without consideration for the
transfer, his or her Non-Qualified Stock Options to members of his or her
immediate family, to trusts for the benefit of such family members, to
partnerships in which such family members are the only partners; or to
charitable organizations; provided, however, that the transferee agrees in
writing with the Company to be bound by the terms and conditions of this Plan
and the applicable Option Agreement.
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SECTION 6. GRANTS OF STOCK
Grants of Stock may be made to any officers, employees, Independent
Directors, consultants, advisors and other key persons of the Company and its
Subsidiaries. As a condition precedent to the grant of Stock to any grantee
under the Plan, the grantee shall grant to the Company such repurchase rights on
the Stock which is the subject of the grant as the Committee shall deem
necessary or appropriate. The Committee may also impose such other terms and
conditions on the grant of any Stock under the Plan as it may determine.
SECTION 7. TAX WITHHOLDING
(a) PAYMENT BY PARTICIPANT. Each participant shall, no later than the
date as of which the value of an Award or of any Stock or other amounts received
thereunder first becomes includable in the gross income of the participant for
federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Committee regarding payment of, any federal, state, or local
taxes of any kind required by law to be withheld with respect to such income.
The Company and its Subsidiaries shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
participant.
(b) PAYMENT IN STOCK. Subject to approval by the Committee, a
participant may elect to have such tax withholding obligation satisfied, in
whole or in part, by (i) authorizing the Company to withhold from shares of
Stock to be issued pursuant to any Award a number of shares with an aggregate
Fair Market Value (as of the date the withholding is effected) that would
satisfy the withholding amount due, or (ii) transferring to the Company shares
of Stock owned by the participant with an aggregate Fair Market Value (as of the
date the withholding is effected) that would satisfy the withholding amount due.
SECTION 8. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer to the employment of the Company from a Subsidiary or
from the Company to a Subsidiary, or from one Subsidiary to another; or
(b) an approved leave of absence for military service or sickness, or
for any other purpose approved by the Company, if the employee's right to
re-employment is guaranteed either by a statute or by contract or under the
policy pursuant to which the leave of absence was granted or if the Committee
otherwise so provides in writing.
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SECTION 9. AMENDMENTS AND TERMINATION
The Board may, at any time, amend or discontinue the Plan and the
Committee may, at any time, amend or cancel any outstanding Award for the
purpose of satisfying changes in law or for any other lawful purpose, but no
such action shall adversely affect rights under any outstanding Award without
the holder's consent. The Committee may provide substitute Awards at the same or
reduced exercise or purchase price or with no exercise or purchase price in a
manner not inconsistent with the terms of the Plan, but such price, if any, must
satisfy the requirements which would apply to the substitute or amended Award if
it were then initially granted under this Plan, but no such action shall
adversely affect rights under any outstanding Award without the holder's
consent. If and to the extent determined by the Committee to be required by the
Code to ensure that Incentive Stock Options granted under the Plan are qualified
under Section 422 of the Code, Plan amendments shall be subject to approval by
the Company stockholders who are eligible to vote at a meeting of stockholders.
SECTION 10. STATUS OF PLAN
With respect to the portion of any Award which has not been exercised
and any payments in cash, Stock or other consideration not received by a
participant, a participant shall have no rights greater than those of a general
creditor of the Company unless the Committee shall otherwise expressly determine
in connection with any Award or Awards.
SECTION 11. GENERAL PROVISIONS
(a) NO DISTRIBUTION; COMPLIANCE WITH LEGAL REQUIREMENTS. The
Committee may require each person acquiring Stock pursuant to an Award to
represent to and agree with the Company in writing that such person is acquiring
the shares without a view to distribution thereof.
No shares of Stock shall be issued pursuant to an Award until all
applicable securities law and other legal and stock exchange or similar
requirements have been satisfied. The Committee may require the placing of such
stop-orders and restrictive legends on certificates for Stock and Awards as it
deems appropriate.
(b) OTHER COMPENSATION ARRANGEMENTS; NO EMPLOYMENT RIGHTS. Nothing
contained in this Plan shall prevent the Board from adopting other or additional
compensation arrangements, including trusts, and such arrangements may be either
generally applicable or applicable only in specific cases. The adoption of this
Plan and the grant of Awards do not confer upon any employee any right to
continued employment with the Company or any Subsidiary.
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SECTION 12. EFFECTIVE DATE OF PLAN
This Plan shall become effective upon approval by the holders of a
majority of the votes cast at a meeting of stockholders at which a quorum is
present. Subject to such approval by the stockholders and to the requirement
that no Stock may be issued hereunder prior to such approval, Stock Options and
other awards may be granted hereunder on and after adoption of this Plan by the
Board.
SECTION 13. GOVERNING LAW
This Plan shall be governed by Massachusetts law except to the extent
such law is preempted by federal law.
DATE APPROVED BY BOARD OF DIRECTORS: April 23, 1997
DATE APPROVED BY STOCKHOLDERS: May 28, 1997
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EXHIBIT 5.1
[Letterhead of Goodwin, Procter & Hoar LLP]
October 10, 1997
Alpha-Beta Technology, Inc.
Three Biotech Park
One Innovation Drive
Worcester, Massachusetts 01605
Re: THE ALPHA-BETA TECHNOLOGY, INC. 1997 STOCK OPTION AND GRANT PLAN
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant
to the Securities Act of 1933, as amended (the "Act"), of 837,165 shares (the
"Shares") of Common Stock, par value $.01 per share (the "Common Stock"), of
Alpha-Beta Technology, Inc. (the "Company") which may be issued pursuant to the
Company's 1997 Stock Option and Grant Plan (the "Plan").
We have acted as counsel to the Company in connection with the
registration of the Shares under the Act. We have examined the Amended and
Restated Articles of Organization and the By-laws of the Company, each as
amended to date; such records of the corporate proceedings of the Company as we
deemed material; the Registration Statement on Form S-8 under the Act relating
to the Shares to be filed with the Securities and Exchange Commission on the
date hereof (the "Registration Statement"); and such other certificates,
receipts, records and documents as we considered necessary for the purposes of
this opinion.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America and The Commonwealth of
Massachusetts.
Based upon the foregoing, we are of the opinion that upon the issuance
and delivery of the Shares in accordance with the terms of the Registration
Statement and the Plan, the Shares will be legally issued, fully paid and
non-assessable.
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The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Act and applicable requirements of state laws
regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as part of the
above-referenced Registration Statement and to the use of our name therein.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 20, 1997
included in Alpha-Beta Technology Inc.'s Form 10-K for the year ended December
31, 1996 and to all references to our Firm included in or made part of this
registration statement.
Boston Massachusetts /s/ Arthur Andersen LLP
October 7, 1997
Arthur Andersen LLP
