As filed with the Securities and Exchange Commission on August 20, 1997.
Registration No. 33-
============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________
HOLOGIC, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-2902449
--------------------- ---------------
(State of Incorporation) (IRS Employer Identification No.)
590 Lincoln Street, Waltham, Massachusetts 02154
-------------------------------------------------
(Address of principal executive offices) (zip code)
Hologic, Inc. 1997 Employee Equity Incentive Plan
-------------------------------------------------
(Full title of the Plan)
S. David Ellenbogen, Chairman
Hologic, Inc.
590 Lincoln Street
Waltham, Massachusetts 02154
----------------------------
(Name and address of agent for service)
(617) 890-2300
-----------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copies to:
Lawrence M. Levy, Esquire
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, Massachusetts 02111
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================
Title of Proposed maximum Proposed maximum
securities Amount to be offering price per aggregate offering Amount
to be registerd (1) share (2) price (2) of registration
registered fee
==================================================================================================
<S> <C> <C> <C> <C>
Common Stock, 500,000 $21.9065 $10,953,250 $3,320
$.01 par value (2) (3)
Rights to
Purchase Common
Stock (4) 500,000 rights -- -- --
==================================================================================================
</TABLE>
(1) Such presently indeterminable number of additional shares of Common
Stock and Rights are also registered hereunder as may be issued in the
event of a merger, consolidation, reorganization, recapitalization,
stock dividend, stock split or other similar change in Common Stock.
(2) To be issued pursuant to the Corporation's 1997 Employee Equity
Incentive Plan.
(3) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, on
the basis of the average high and low prices for the Corporation's
Common Stock on August 15, 1997, as reported by the Nasdaq Stock Market.
(4) Pursuant to a Rights Agreement entered into in 1992, as amended, one
right (each a "Right") is deemed to be delivered with each share of
Common Stock issued by the Registrant. The Rights currently are not
separately transferable apart from the Common Stock, and they are not
exercisable until the occurrence of certain events. Accordingly, no
independent value has been attributed to the Rights.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents by Reference.
- ------------------------------------------------
The Corporation hereby incorporates by reference into this Registration
Statement the following documents:
(a) The Corporation's Annual Report on Form 10-K for the fiscal year
ended September 28, 1996.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the
end of the fiscal year covered by the Annual Report referred to in (a) above.
(c) The descriptions of the Corporation's Common Stock and Rights to
purchase common stock which are contained in its Registration Statements
filed pursuant to Section 12 of the Exchange Act, including all amendments
and reports updating such description.
All documents filed by the Corporation pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, subsequent to the date hereof and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed hereby incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies or supersedes
such statement.
Item 4. Description of Securities.
- ----------------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
- -----------------------------------------------
The legality of the Common Stock, and of the Rights to be issued in
connection with Common Stock, to be issued pursuant to the 1997 Employee
Equity Incentive Plan has been passed upon for the Corporation by Brown,
Rudnick, Freed & Gesmer, One Financial Center, Boston, Massachusetts 02111.
Item 6. Indemnification of Directors and Officers.
- --------------------------------------------------
Article 10 of the Registrant's Certificate of Incorporation eliminates
the personal liability of directors of the Registrant or its stockholders for
monetary damages for breach of fiduciary duty to the full extent permitted by
Delaware law. Article 11 of the Registrant's By-laws provides that the
Registrant may indemnify its officers and directors to the full extent
permitted by the General Corporation Law of the State of Delaware. Section
145 of the General Corporation Law of the State of Delaware authorizes a
corporation to indemnify directors, officers, employees or agents of the
corporation in non-derivative suits if such party acted in good faith and in
a manner he or she reasonably believed to be in or not opposed to the best
interest of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe this conduct was unlawful, as
determined in accordance with the Delaware General Corporation Law. Section
145 further provides that indemnification shall be provided if the party in
question is successful on the merits or otherwise in the defense of any
claim.
The Registrant has entered into indemnification agreements with each of
its present directors. The Company may also enter into similar agreements
with certain of the Company's officers who are not also directors.
Generally, the indemnification agreements attempt to provide the maximum
protection permitted by Delaware law with respect to indemnification of
directors. In addition, the Registrant maintains insurance on behalf of any
person who is or was a director or officer against any loss arising from any
claim asserted against him or her in any such capacity, subject to certain
exceptions.
Item 7. Exemption from Registration Claimed.
- -------------------------------------------
Not Applicable.
Item 8. Exhibits.
- -----------------
4.1 Certificate of Incorporation of the Registrant - Filed as
Exhibit 3.01 to the Registrant's Registration Statement on Form
S-1 (File No. 33-33128).*
4.2 By-Laws of the Registrant - Filed as Exhibit 3.02 to the
Registrant's Registration Statement on Form S-1 (File No. 33-
33128).*
4.3 Specimen Certificate of Common Stock - Filed as Exhibit 4.01 to
the Registrant's Registration Statement on Form S-1 (File No.
33-33128).*
4.4 Rights Agreement dated December 22, 1992 - Filed as Exhibit 1 to
Registrant's Registration Statement on Form 8-A filed with
respect to the Rights, dated January 29, 1993.*
4.5 Amendment No. 1 and Amendment No. 2 to the Rights Agreement,
dated as of December 13, 1995 and December 9, 1996, respectively
- Filed as Exhibits 1 and 2 to Form 8-A/A amending Registrant's
Registrant Statement on Form 8-A filed with respect to the
Rights.*
5 Legal Opinion of Brown, Rudnick, Freed & Gesmer.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Brown, Rudnick, Freed & Gesmer is included in their
legal opinion filed as Exhibit 5 hereof.
24 Power of Attorney (included on the signature page of this
Registration Statement).
99 Registrant's 1997 Employee Equity Incentive Plan.
_____________
* Not filed herewith. In accordance with Rule 411 promulgated pursuant to
the Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Commission, which are incorporated by reference
herein.
Item 9. Undertakings.
- ----------------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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.
(2) That, for the purpose of determining 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Waltham, Commonwealth of
Massachusetts, on the 20th day of August, 1997.
HOLOGIC, INC.
By:/s/S. David Ellenbogen
--------------------------
S. David Ellenbogen
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints S. David Ellenbogen and Jay A. Stein and each
of them (with full power to each of them to act alone), his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- -----
/s/ S. David Ellenbogen Director and Principal August 16, 1997
--------------------
S. David Ellenbogen Executive Officer
/s/ Jay A. Stein Director and Technical Director August 16, 1997
------------
Jay A. Stein
/s/ Glenn P. Muir Chief Financial August 16, 1997
--------------
Glenn P. Muir Officer
/s/ Irwin Jacobs Director August 16, 1997
------------
Irwin Jacobs
/s/ William A. Peck Director August 16, 1997
---------------
William A. Peck
/s/ Gerald Segel Director August 16, 1997
-------------
Gerald Segel
/s/ Elaine Ullian Director August 16, 1997
-------------
Elaine Ullian
INDEX TO EXHIBITS
Exhibit
Sequential
Number
Page Number
4.1 Certificate of Incorporation of the Registrant - Filed as Exhibit
3.01 to the Registrant's Registration Statement on Form S-1 (File
No. 33-33128).*
4.2 By-Laws of the Registrant - Filed as Exhibit 3.02 to the
Registrant's Registration Statement on Form S-1 (File No. 33-
33128).*
4.3 Specimen Certificate of Common Stock - Filed as Exhibit 4.01 to
the Registrant's Registration Statement on Form S-1 (File No. 33-
33128).*
4.4 Rights Agreement dated December 22, 1992 - Filed as Exhibit 1 to
Registrant's Registration Statement on Form 8-A filed with respect
to the Rights, dated January 29, 1993.*
4.5 Amendment No. 1 and Amendment No. 2 to the Rights Agreement, dated
as of December 13, 1995 and December 9, 1996, respectively - Filed
as Exhibits 1 and 2 to Form 8-A/A amending Registrant's Registrant
Statement on Form 8-A filed with respect to the Rights.*
5 Legal Opinion of Brown, Rudnick, Freed & Gesmer.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Brown, Rudnick, Freed & Gesmer is included in their
legal opinion filed as Exhibit 5 hereof.
24 Power of Attorney (included on the signature page of this
Registration Statement).
99 Registrant's 1997 Employee Equity Incentive Plan.
______________
* Not filed herewith. In accordance with Rule 411 promulgated pursuant to
the Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Commission, which are incorporated by reference
herein.
[Brown, Rudnick, Freed & Gesmer]
August 20, 1997
Hologic, Inc.
590 Lincoln Street
Waltham, MA 02154
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
We are general counsel to Hologic, Inc., a Delaware corporation (the
"Company"). We have been asked to deliver this opinion in connection with the
preparation and filing with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), of a Registration Statement on
Form S-8 (the "Registration Statement") relating to 500,000 shares of the
Company's Common Stock, $.01 par value (the "Shares") and 500,000 Rights, as
defined below. The Rights are issuable pursuant to that certain Rights
Agreement, dated as of December 22, 1992, as amended by Amendment No. 1, dated
December 14, 1995, and Amendment No. 2, dated as of December 9, 1996 (the
"Rights Agreement"), providing, in effect, for the delivery of a right (a
"Right"), along with each share of Common Stock issued by the Company.
The Shares are issuable pursuant to the Corporation's 1997 Employee
Equity Incentive Plan (the "Plan"). The Rights are issuable in connection
with the issuance of the Shares to be issued pursuant to the Plan.
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
the following documents (collectively, the "Documents"):
1. A copy of the Certificate of Incorporation of the Company as in
effect on the date hereof;
2. A copy of the Bylaws of the Company as in effect on the date hereof;
3. The corporate records of the Company relating to the proceedings of
stockholders and directors of the Company;
4. The Plan;
5. The Rights Agreement; and
6. The Registration Statement.
In giving our opinion, we have relied as to matters of fact upon
certificates of officers of the Company. For purposes of this opinion we have
assumed without any investigation (1) the legal capacity of each natural
person and (2) the genuineness of each signature, the completeness of each
document submitted to us as an original and the conformity with the original
of each document submitted to us as a copy.
Our opinion hereafter expressed is based solely upon (1) our review of
the Documents, (2) discussions with certain officers of the Company with
respect to the Documents, (3) discussions with those of our attorneys who have
devoted substantive attention to the matters contained herein and (4) such
review of published sources of law as we have deemed necessary.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized and, when issued in accordance with the terms
of the Plan, the Shares will be validly issued, fully paid and nonassessable.
The Rights have been duly authorized and, when issued in accordance with
the terms of the Rights Agreement, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to our firm wherever it appears in
the Registration Statement.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER, P.C.
By: Brown, Rudnick, Freed & Gesmer, a
partner
By: /s/ Philip J. Flink
-------------------
Philip J. Flink, a Member
hereunto duly authorized
CONSENT OF INDPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated November 6, 1996
included in Hologic, Inc.'s Form 10-K for the year ended September 28, 1996,
and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
August 19, 1997
HOLOGIC, INC.
1997 EMPLOYEE EQUITY INCENTIVE PLAN
Section 1. Purpose
- -------------------
The purpose of the Hologic, Inc. 1997 Employee Equity Incentive Plan (the
"Plan") is to attract and retain key employees, consultants and advisors, to
provide an incentive for them to assist Hologic, Inc. (the "Company") to
achieve long-range performance goals, and to enable them to participate in the
long-term growth of the Company.
Section 2. Definitions
- ------------------------
(a) "Affiliate" means any business entity in which the Company owns directly or
indirectly 50% or more of the total combined voting power or has a
significant financial interest as determined by the Committee.
(b) "Award" means any Option, Stock Appreciation Right, Performance or Award
Share, or Restricted Stock awarded under the Plan.
(c) "Award Share" means a share of Common Stock awarded to a Participant
without payment therefor.
(d) "Board" means the Board of Directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(f) "Committee" means the Stock Option Committee of the Board, or such other
committee of not less than three members of the Board appointed by the
Board to administer the Plan.
(g) "Common Stock" or "Stock" means the Common Stock, par value $.01 per share,
of the Company.
(h) "Company" means Hologic, Inc.
(i) "Designated Beneficiary" means the beneficiary designated by a Participant,
in a manner determined by the Board, to receive amounts due or exercise
rights of the Participant in the event of the Participant's death. In the
absence of an effective designation by a Participant, Designated
Beneficiary shall mean the Participant's estate.
(j) "Fair Market Value" means, with respect to Common Stock or any other
property, the fair market value of such property as determined by the Board
in good faith or in the manner established by the Board from time to time.
(k) "Nonqualified Stock Option" means an option to purchase shares of Common
Stock, awarded to a Participant under Section 6, which is not intended to
comply as an incentive stock option under Section 422 of the Code or any
successor provision.
(l) "Option" means a Nonqualified Stock Option.
(m) "Participant" means a person eligible pursuant to Section 4 hereof and
selected by the Board to receive an Award under the Plan.
(n) "Performance Cycle" or "Cycle" means the period of time selected by the
Board during which performance is measured for the purpose of determining
the extent to which an award of Performance Shares has been earned.
(o)"Performance Shares" mean shares of Common Stock which may be earned by the
achievement of performance goals, awarded to a Participant under Section 8.
(p) "Restricted Period" means the period of time selected by the Board during
which an award of Restricted Stock may be forfeited to the Company.
(q) "Restricted Stock" means shares of Common Stock subject to forfeiture,
awarded to a Participant under Section 9.
(r) "Stock Appreciation Right" or "SAR" means a right to receive any excess in
value of shares of Common Stock over the exercise price, awarded to a
Participant under Section 7.
(s) "Stock Unit" means an award of Common Stock and/or other rights granted as
units that are valued in whole or in part by reference to, or otherwise
based on, the value of Common Stock, awarded to a Participant under Section
10.
Section 3. Administration
- --------------------------
The Plan shall be administered by the Committee. The Board shall have
authority to adopt, alter and repeal such administrative rules, guidelines and
practices governing the operation of the Plan as it shall from time to time
consider advisable, and to interpret the provisions of the Plan. The Board's
decisions shall be final and binding. To the extent permitted by applicable
law, the Board may delegate to the Committee the power to make Awards to
Participants and all determinations under the Plan with respect thereto.
Section 4. Eligibility
- -----------------------
All employees, consultants and advisors of the Company or any Affiliate,
other than executive officers and directors of the Company, are eligible to be
Participants in the Plan.
Section 5. Stock Available for Awards
- --------------------------------------
(a) Subject to adjustment under subsection (b), Awards may be made under the
Plan of Options to acquire not in excess of 500,000 shares of Company
Common Stock. Other Awards may be made as the Board may determine,
provided that a maximum of 500,000 shares of Common Stock may be issued
under this Plan. If any Award in respect of shares of Common Stock expires
or is terminated unexercised or is forfeited for any reason or settled in a
manner that results in fewer shares outstanding than were initially
awarded, including without limitation the surrender of shares in payment
for the Award or any tax obligation thereon, the shares subject to such
Award or so surrendered, as the case may be, to the extent of such
expiration, termination, forfeiture or decrease, shall again be available
for award under the Plan. Common Stock issued through the assumption or
substitution of outstanding grants from an acquired Company shall not
reduce the shares available for Awards under the Plan. Shares issued under
the Plan may consist in whole or in part of authorized but unissued shares
or treasury shares.
(b) In the event that the Board determines that any stock dividend,
extraordinary cash dividend, creation of a class of equity securities,
recapitalization, reorganization, merger, consolidation, split-up, spin-
off, combination, exchange of shares, warrants or rights offering to
purchase Common Stock at a price substantially below fair market value, or
other similar transaction affects the Common Stock such that an adjustment
is required in order to preserve the benefits or potential benefits
intended to be made available under the Plan, then the Board, shall
equitably adjust any or all of (i) the number and kind of shares in respect
of which Awards may be made under the Plan, (ii) the number and kind of
shares subject to outstanding Awards, and (iii) the award, exercise or
conversion price with respect to any of the foregoing, and if considered
appropriate, the Board may make provision for a cash payment with respect
to an outstanding Award, provided that the number of shares subject to any
Award shall always be a whole number.
Section 6. Stock Options
- -------------------------
(a) Subject to the provisions of the Plan, the Board may award Nonqualified
Stock Options and determine the number of shares to be covered by each
Option, the option price therefor and the conditions and limitations
applicable to the exercise of the Option.
(b) The Board shall establish the option price at the time each Option is
awarded.
(c) Each Option shall be exercisable at such times and subject to such terms
and conditions as the Board may specify in the applicable Award or
thereafter. The Board may impose such conditions with respect to the
exercise of Options, including conditions relating to applicable federal or
state securities laws, as it considers necessary or advisable.
(d) No shares shall be delivered pursuant to any exercise of an Option until
payment in full of the option price therefor is received by the Company.
Such payment may be made in whole or in part in cash or, to the extent
permitted by the Board at or after the award of the Option, by delivery of
a note or shares of Common Stock owned by the optionholder, including
Restricted Stock, valued at their Fair Market Value on the date of
delivery, by the reduction of the shares of Common Stock that the
optionholder would be entitled to receive upon exercise of the Option, such
shares to be valued at their Fair Market Value on the date of exercise,
less their option price (a so-called "cashless exercise"), or such other
lawful consideration as the Board may determine. In addition, an
optionholder may engage in a successive exchange (or series of exchanges)
in which the shares of Common Stock that such optionholder is entitled to
receive upon the exercise of an Option may be simultaneously utilized as
payment for the exercise of an additional Option or Options.
(e) The Board may provide for the automatic award of an Option upon the
delivery of shares to the Company in payment of an Option for up to
the number of shares so delivered.
Section 7. Stock Appreciation Rights
- -------------------------------------
Subject to the provisions of the Plan, the Board may award SARs in tandem
with an Option (at or after the award of the Option), or alone and unrelated
to an Option. SARs in tandem with an Option shall terminate to the extent
that the related Option is exercised, and the related Option shall terminate
to the extent that the tandem SARs are exercised.
Section 8. Performance Shares
- ------------------------------
(a) Subject to the provisions of the Plan, the Board may award Performance
Shares and determine the number of such shares for each Performance Cycle
and the duration of each Performance Cycle. There may be more than one
Performance Cycle in existence at any one time, and the duration of
Performance Cycles may differ from each other. The payment value of
Performance Shares shall be equal to the Fair Market Value of the Common
Stock on the date the Performance Shares are earned or, in the discretion
of the Board, on the date the Board determines that the Performance Shares
have been earned.
(b) The Board shall establish performance goals for each Cycle, for the purpose
of determining the extent to which Performance Shares awarded for such
Cycle are earned, on the basis of such criteria and to accomplish such
objectives as the Board may from time to time select. During any Cycle,
the Board may adjust the performance goals for such Cycle as it deems
equitable in recognition of unusual or non-recurring events affecting the
Company, changes in applicable tax laws or accounting principles, or such
other factors as the Board may determine.
(c) As soon as practicable after the end of a Performance Cycle, the Board
shall determine the number of Performance Shares which have been earned on
the basis of performance in relation to the established performance goals.
The payment values of earned Performance Shares shall be distributed to the
Participant or, if the Participant has died, to the Participant's
Designated Beneficiary, as soon as practicable thereafter. The Board shall
determine, at or after the time of award, whether payment values will be
settled in whole or in part in cash or other property, including Common
Stock or Awards.
Section 9. Restricted Stock
- ----------------------------
(a) Subject to the provisions of the Plan, the Board may award shares of
Restricted Stock and determine the duration of the Restricted Period during
which, and the conditions under which, the shares may be forfeited to the
Company and the other terms and conditions of such Awards. Shares of
Restricted Stock may be issued for no cash consideration or such minimum
consideration as may be required by applicable law.
(b) Shares of Restricted Stock may not be sold, assigned, transferred, pledged
or otherwise encumbered, except as permitted by the Board, during the
Restricted Period. Shares of Restricted Stock shall be evidenced in such
manner as the Board may determine. Any certificates issued in respect of
shares of Restricted Stock shall be registered in the name of the
Participant and unless otherwise determined by the Board, deposited by the
Participant, together with a stock power endorsed in blank, with the
Company. At the expiration of the Restricted Period, the Company shall
deliver such certificates to the Participant or if the Participant has
died, to the Participant's Designated Beneficiary.
Section 10. Stock Units
- ------------------------
(a) Subject to the provisions of the Plan, the Board may award Stock Units
subject to such terms, restrictions, conditions, performance criteria,
vesting requirements and payment rules as the Board shall determine.
(b) Shares of Common Stock awarded in connection with a Stock Unit Award shall
be issued for no cash consideration or such minimum consideration as may be
required by applicable law. Such shares of Common Stock may be designated
as Award Shares by the Board.
Section 11. General Provisions Applicable to Awards
- ----------------------------------------------------
(a) Documentation. Each Award under the Plan shall be evidenced by a writing
delivered to the Participant specifying the terms and conditions thereof
and containing such other terms and conditions not inconsistent with the
provisions of the Plan as the Board considers necessary or advisable to
achieve the purposes of the Plan or comply with applicable tax and
regulatory laws and accounting principles.
(b) Board Discretion. Each type of Award may be made alone, in addition to or
in relation to any other type of Award. The terms of each type of Award
need not be identical, and the Board need not treat Participants uniformly.
Except as otherwise provided by the Plan or a particular Award, any
determination with respect to an Award may be made by the Board at the time
of award or at any time thereafter. Without limiting the foregoing, an
Award may be made by the Board, in its discretion, to any 401(k), savings,
pension, profit sharing or other similar plan of the Company in lieu of or
in addition to any cash or other property contributed or to be contributed
to such plan.
(c) Settlement. The Board shall determine whether Awards are settled in whole
or in part in cash, Common Stock, other securities of the Company, Awards
or other property. The Board may permit a Participant to defer all or any
portion of a payment under the Plan, including the crediting of interest on
deferred amounts denominated in cash and dividend equivalents on amounts
denominated in Common Stock.
(d) Dividends and Cash Awards. In the discretion of the Board, any Award under
the Plan may provide the Participant with (i) dividends or dividend
equivalents payable currently or deferred with or without interest, and
(ii) cash payments in lieu of or in addition to an Award.
(e) Termination of Employment. The Board shall determine the effect on an
Award of the disability, death, retirement or other termination of
employment of a Participant and the extent to which, and the period during
which, the Participant's legal representative, guardian or Designated
Beneficiary may receive payment of an Award or exercise rights thereunder.
(f) Change in Control. In order to preserve a Participant's rights under an
Award in the event of a change in control of the Company, the Board in its
discretion may, at the time an Award is made or at any time thereafter,
take one or more of the following actions: (i) provide for the acceleration
of any time period relating to the exercise or realization of the Award,
(ii) provide for the purchase of the Award upon the Participant's request
for an amount of cash or other property that could have been received upon
the exercise or realization of the Award had the Award been currently
exercisable or payable, (iii) adjust the terms of the Award in a manner
determined by the Board to reflect the change in control, (iv) cause the
Award to be assumed, or new rights substituted therefor, by another entity,
or (v) make such other provision as the Board may consider equitable and in
the best interests of the Company.
(g) Withholding. The Participant shall pay to the Company, or make provision
satisfactory to the Board for payment of, any taxes required by law to be
withheld in respect of Awards under the Plan no later than the date of the
event creating the tax liability. In the Board's discretion, such tax
obligations may be paid in whole or in part in shares of Common Stock,
including shares retained from the Award creating the tax obligation,
valued at their Fair Market Value on the date of delivery. The Company and
its Affiliates may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to the Participant.
(h) Amendment of Award. The Board may amend, modify or terminate any
outstanding Award, including substituting therefor another Award of the
same or a different type, changing the date of exercise or realization,
provided that the Participant's consent to such action shall be required
unless the Board determines that the action, taking into account any
related action, would not materially and adversely affect the Participant.
Section 12. Miscellaneous
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(a) No Right To Employment. No person shall have any claim or right to be
granted an Award, and the grant of an Award shall not be construed as
giving a Participant the right to continued employment. The Company
expressly reserves the right at any time to dismiss a Participant free from
any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) No Rights As Shareholder. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
shareholder with respect to any shares of Common Stock to be distributed
under the Plan until he or she becomes the holder thereof. A Participant
to whom Common Stock is awarded shall be considered the holder of the Stock
at the time of the Award except as otherwise provided in the applicable
Award.
(c) Effective Date. The Plan shall be effective on May 5, 1997.
(d) Amendment of Plan. The Board may amend, suspend or terminate the Plan or
any portion thereof at any time.
(e) Governing Law. The provisions of the Plan shall be governed by and
interpreted in accordance with the laws of the State of Delaware.
(f) Indemnity. Neither the Board nor the Committee, nor any members of either,
nor any employees of the Company or any parent, subsidiary, or other
affiliate, shall be liable for any act, omission, interpretation,
construction or determination made in good faith in connection with their
responsibilities with respect to this Plan, and the Company hereby agrees
to indemnify the members of the Board, the members of the Committee, and
the employees of the Company and its parent or subsidiaries in respect of
any claim, loss, damage, or expense (including reasonable counsel fees)
arising from any such act, omission, interpretation, construction or
determination to the full extent permitted by law.
