<PAGE> 1
REGISTRATION STATEMENT NO. _____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
CONCEPTRONIC, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 02-0413153
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
6 POST ROAD
PORTSMOUTH, NEW HAMPSHIRE 03801
(Address of Principal Executive Offices)
--------------------------------------------
CONCEPTRONIC, INC. 1991 STOCK OPTION PLAN
(Full Title of the Plan)
---------------------------------------------------
WILLIAM D. GRAY
SECRETARY, TREASURER AND CHIEF FINANCIAL OFFICER
CONCEPTRONIC, INC.
6 POST ROAD
PORTSMOUTH, NEW HAMPSHIRE 03801
(Name and Address of Agent for Service)
(603) 431-6262
(Telephone Number, Including Area Code, of Agent For Service)
<TABLE>
===========================================================================================================================
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered (1) Per Share Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 625,000 shares
- ---------------------------------------------------------------------------------------------------------------------------
Shares Underlying
Options Granted 435,000 shares $2.50 - $6.50 (2) $1,394,812.50 (2) $278.96
- ---------------------------------------------------------------------------------------------------------------------------
Shares Underlying
Options Available for
Grant 190,000 shares $5.75 (3) $ 1,092,500 (3) $218.50
- ---------------------------------------------------------------------------------------------------------------------------
TOTAL: 600,000 shares $2,487,312.50 $497.46
===========================================================================================================================
<FN>
(1) Plus, in accordance with Rule 416(a) of the Securities Act of 1933, as amended (the "Securities Act"), such
indeterminate number of shares as may become subject to options under the Conceptronic, Inc. 1991 Stock Option Plan
(the "Plan") as a result of the adjustment provisions therein.
(2) The registration fee for shares of Common Stock issuable upon exercise of outstanding options under the Plan was
calculated pursuant to Rule 457(h) of the Securities Act using the prices at which such options may be exercised.
(3) Estimated solely for the purpose of determining the amount of the registration fee and, pursuant to Rules 457(c) and
457(h) of the Securities Act, based upon the average of the bid and asked prices of the Common Stock reported by the
National Association of Securities Dealers, Inc. on January 3, 1997.
</TABLE>
Approximate date of commencement of proposed sale to the public: The Common
Stock obtained upon the exercise of options issued pursuant to the Plan may be
offered and sold by the holders thereof from time to time after the
effectiveness of this Registration Statement.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
- ----------------------------
* Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act and the Note to Part I of Form S-8.
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<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, filed by Conceptronic, Inc. (the "Company") with
the Commission pursuant to the Securities Exchange Act of 1934 (the "1934 Act"),
are hereby incorporated by reference:
1. The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1995;
2. The Company's Quarterly Report on Form 10-QSB for the fiscal quarter
ended March 31, 1996;
3. The Company's Quarterly Report on Form 10-QSB for the fiscal quarter
ended June 30, 1996;
4. The Company's Quarterly Report on Form 10-QSB for the fiscal quarter
ended September 30, 1996;
5. The Company's Current Report on Form 8-K, dated November 20, 1996; and
6. The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A dated October 15, 1991, filed
pursuant to Section 12 of the Exchange Act (Commission File No.
0-19589).
Each document filed subsequent to the date of this Registration Statement
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act 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 to be incorporated by reference in this Registration Statement and
shall be part hereof from the date of filing of such document; provided,
however, that the documents enumerated above or subsequently filed by the
Company pursuant to Section 13 of the 1934 Act prior to the filing with the
Commission of the Company's most recent Annual Report on Form 10-KSB shall not
be incorporated by reference in this Registration Statement or be a part from
and after the filing of such Annual Report on Form 10-KSB.
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 other subsequently filed document which is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
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<PAGE> 4
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware General Corporation Law, Section 102(b)(7), enables a corporation
in its original certificate of incorporation, or an amendment thereto validly
approved by stockholders, to eliminate or limit personal liability of members of
its Board of Directors for violations of a director's fiduciary duty of care.
However, the elimination or limitation shall not apply where there has been a
breach of the duty of loyalty, failure to act in good faith, engaging in
intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase which is deemed illegal or obtaining an improper
personal benefit. The Company's Certificate of Incorporation, as amended,
includes the following language.
"To the maximum extent permitted by Section 102(b)(7) of
the General Corporation Laws of Delaware, a director of this
corporation shall not be personally liable to the corporation
or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (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) under Section 174 of Title 8 of the Delaware
General Corporation Law, or (iv) for any transaction from
which the director derived an improper personal benefit."
Delaware General Corporation Law, Section 145, permits a corporation
organized under Delaware law to indemnify directors and officers with respect to
any matter in which the director or officer acted in good faith and in a manner
he reasonably believed to be not opposed to the best interests of the
corporation, and, with respect to any criminal action, had no reasonable cause
to believe his conduct was unlawful. The Bylaws of the Company include the
following provision:
"Reference is made to Section 145 and any other relevant
provisions of the General Corporation Law of the State of
Delaware. Particular reference is made to the class of
persons, hereinafter called "Indemnitees", who may be
indemnified by a Delaware corporation pursuant to the
provisions of such Section 145, namely, any person or the
heirs, executors, or administrators of such person, who was or
is a party or is threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, by
reason of the fact that such person is or was a director,
officer, employee, or
II-2
<PAGE> 5
agent of such corporation or is or was serving at the request
of such corporation as a director, officer, employee, or agent
of such corporation or is or was serving at the request of
such corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or
other enterprise. The Corporation shall, and is hereby
obligated to, indemnify the Indemnitees, and each of them, in
each and every situation where the Corporation is obligated to
make such indemnification pursuant to the aforesaid statutory
provisions. The Corporation shall indemnify the Indemnitees,
and each of them, in each and every situation where, under the
aforesaid statutory provisions, the Corporation is not
obligated, but is nevertheless permitted or empowered, to make
such indemnification, it being understood that, before making
such indemnification with respect to any situation covered
under this sentence, (i) the Corporation shall promptly make
or cause to be made, by any of the methods referred to in
Subsection (d) of such Section 145, a determination as to
whether each Indemnitee 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, in the case of any criminal
action or proceeding, had no reasonable cause to believe that
his conduct was lawful, and (ii) that no such indemnification
shall be made unless it is determined that such Indemnitee
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, in the case of any criminal action or
proceeding, had no reasonable cause to believe that his
conduct was unlawful."
A Registration Rights Agreement to which the Company is a party also
provides for indemnification of the Company's directors, officers and
controlling persons under circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4(a). Certificate of Incorporation of Conceptronic, Inc. (incorporated by
reference to Exhibit 3a to the Company's Registration Statement on Form
S-18 (Registration No. 33-43191B)).
4(b). Amendment to Certificate of Incorporation of Conceptronic, Inc., as
executed November 15, 1996 (filed herewith).
4(c). Certificate of Designation Establishing Class A Common Stock of
Conceptronic, Inc., as executed November 15, 1996 (filed herewith).
4(d) Bylaws, as amended of Conceptronic, Inc. (incorporated by reference to
Exhibit 3a to the Company's Registration Statement on Form S-18
(Registration No. 33-43191B)).
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<PAGE> 6
4(e). Conceptronic, Inc. 1991 Stock Option Plan, as amended (filed herewith).
5(a). Opinion of Robinson & Cole regarding legality (filed herewith).
23(a). Consent of KPMG Peat Marwick LLP (filed herewith).
23(b). Consent of Robinson & Cole (contained in Exhibit 5).
24. Power of Attorney (filed herewith as part of the Signature Page).
The Registrant undertakes to submit the Plan, and any amendments thereto,
to the Internal Revenue Service in a timely manner and to make all changes
required by the Internal Revenue Service in order to qualify the Plan.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities,
a post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information set
forth in the registration statement;
(iii) Include any additional or changed material information to
the plan of distribution.
(2) For determining liability under the Securities Act, to treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering thereof.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the small business issuer pursuant to the foregoing
provisions, or otherwise, the small business issuer 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.
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<PAGE> 7
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 City of Portsmouth, State of New Hampshire, on this 6th day
of January, 1997.
CONCEPTRONIC, INC.
By: /s/ Rainer H. Bosselmann
-------------------------
Rainer H. Bosselmann
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Rainer H. Bosselmann and Richard A. Krantz his
true and lawful attorneys-in-fact and agents, each acting alone, with full
powers of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all 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, each acting alone,
full power and authority to do and perform 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, each acting alone, or his substitute or
substitutes may lawfully do and cause to be done by virtue thereof.
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<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on January 6,
1997 in the capacities indicated.
Signature Title
--------- -----
/s/ Rainer H. Bosselmann Principal Executive Officer,
- ---------------------------- and Director
Rainer H. Bosselmann
/s/ William D. Gray Principal Financial Officer and
- ---------------------------- Principal Accounting Officer
William D. Gray
/s/ William A. Barker Director
- ----------------------------
William A. Barker
/s/ James D. Gerson Director
- ----------------------------
James D. Gerson
Director
- ----------------------------
Daniel J. McCarthy
/s/ Richard S. Perkins, Jr. Director
- ----------------------------
Richard S. Perkins, Jr.
/s/ Garry A. Prime Director
- ----------------------------
Garry A. Prime
/s/ John A. Rolls Director
- ----------------------------
John A. Rolls
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<PAGE> 9
INDEX TO EXHIBITS
-----------------
EXHIBIT NO. EXHIBIT
- ----------- -------
4(b). Amendment to Certificate of Incorporation of
Conceptronic, Inc., as executed November 15, 1996.
4(c). Certificate of Designation Establishing Class A
Common Stock of Conceptronic, Inc., as executed
November 15, 1996.
4(e). Conceptronic, Inc. 1991 Stock Option Plan, as
amended.
5(a). Opinion of Robinson & Cole regarding legality.
23(a). Consent of KPMG Peat Marwick LLP.
23(b). Consent of Robinson & Cole (contained in Exhibit
5).
24. Power of Attorney (filed herewith as part of the
Signature Page).
<PAGE> 1
EXHIBIT 4(b)
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION
OF
CONCEPTRONIC, INC.
Conceptronic, Inc., a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), hereby certifies that at a special
meeting of the stockholders of the Corporation held on November 15, 1996, it was
resolved by the duly adopted vote of the stockholders in accordance with Section
242 of the General Corporation Law of the State of Delaware that the first
sentence of Section 4 of the Corporation's Certificate of Incorporation be
amended to read as follows:
4. The total number of shares of stock which the Corporation
shall have authority to issue is sixteen million (16,000,000),
consisting of fifteen million (15,000,000) shares of Common
Stock, $.01 par value per share, and one million (1,000,000)
shares of Preferred Stock, $.01 par value per share.
IN WITNESS WHEREOF, the Corporation has caused this amendment to be signed
by Rainer H. Bosselmann, its Chairman of the Board of Directors, and attested by
William D. Gray, its Secretary, this 15th day of November, 1996.
CONCEPTRONIC, INC.
By:/s/ Rainer H. Bosselmann
------------------------
Rainer H. Bosselmann
Chairman of the
Board of Directors
Attest:
By:/s/ William D. Gray
--------------------
William D. Gray
Secretary
<PAGE> 1
EXHIBIT 4(c)
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RIGHTS OF
CLASS A COMMON STOCK, $.01 PAR VALUE
OF
CONCEPTRONIC, INC.
Conceptronic, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by the
Certificate of Incorporation of said corporation, and pursuant to the provisions
of Section 151 of Title 8 of the Delaware Code of 1953, said Board of Directors
adopted a resolution providing for as follows:
RESOLVED, that the Board of Directors does hereby create,
establish and authorize the issuance of a new class of the
Company's Common Stock and does hereby fix the designation,
rights, preferences, amounts payable in the event of voluntary or
involuntary liquidation, qualifications and restrictions of said
class as follows:
(1) the designation of said new series of the Company's
Common Stock shall be "Class A Common Stock", and each share
of Class A Common Stock shall be equal to every other share
of Class A Common Stock in every respect;
(2) the Class A Common Stock is hereby authorized to be
issued in the amount of 4,000,000 shares;
(3) each share of the Class A Common Stock shall be
entitled to participate on a share-for-share basis with the
Com-
<PAGE> 2
pany's Common Stock in dividends, distributions upon
liquidation and on all matters submitted to a vote of the
shareholders other than those matters involving (i) the sale
or other disposition of assets of the Company or (ii) the
election of directors of the Company;
(4) the shares of Class A Common Stock shall be
converted into shares of the Company's Common Stock on the
date which is six months from the date of issuance of the
Class A Common Stock (the "Conversion Date"). At the
Company's option, the Conversion Date shall be extended for
a period of not more than two months if, on the originally
scheduled Conversion Date, the Company has entered into a
definitive agreement for, but has not consummated, the sale
of its conveyorized forced convection oven product line (the
"Forced Conveyorized Oven Line") and/or its rework systems
product line (the "Rework Systems Product Line"). The
Company shall exercise this option by giving written notice
to the holders of the Class A Common Stock no later than
five days prior to the Conversion Date;
On the Conversion Date, each share of Class A Common
Stock shall be converted into one share of Common Stock.
Notwithstanding the foregoing, in the event that the Company
shall consummate the sale of its Forced Conveyorized Oven
Line and/or its Rework Systems Product Line on or prior to
the Conversion Date (as it may be extended by the Company as
provided above), the conversion rate shall be adjusted so
that each share of Class A Common Stock shall be converted
into that number of shares of Common Stock of the Company
equal to $3.00 divided by the greater of (i) $3.00 or (ii)
the net book value per share of the Common Stock of the
Company as of the last day of the fiscal quarter immediately
preceding the Conversion Date adjusted to (a) reflect the
sale of the Forced Conveyorized Oven Line and/or the Rework
Systems Product Line (including all transaction costs and
taxes paid or payable with respect thereto) and (b) not give
effect to any outstanding Class A Common Stock or the
proceeds of the offering of the Class A Common Stock, all
determined in accordance with generally accepted accounting
principles, consistently applied. No fractional shares of
Common Stock shall be issued by the Company upon the
conversion of the shares of Class A Common Stock and any
fractional amount shall be paid to the holder in cash at a
share price based on the average of the closing bid and
asked
<PAGE> 3
price of the Common Stock on the over-the-counter market on
the Nasdaq SmallCap Market on the Conversion Date.
IN WITNESS WHEREOF, Conceptronic, Inc. has caused this certificate to be
signed by Rainer H. Bosselmann, its Chairman of the Board and Chief Executive
Officer, this 15th day of November 1996.
CONCEPTRONIC, INC.
By:/s/ Rainer H. Bosselmann
------------------------
Rainer H. Bosselmann
Chairman of the Board and
Chief Executive Officer
<PAGE> 1
EXHIBIT 4(e)
CONCEPTRONIC, INC.
1991 STOCK OPTION PLAN
ARTICLE I
PURPOSE OF THE PLAN
The purpose of this Plan is to encourage and enable employees, consultants,
directors and others who are in a position to make significant contributions to
the success of Conceptronic, Inc. and of its affiliated corporations upon whose
judgment, initiative and efforts the Corporation depends for the successful
conduct of its business, to acquire a closer identification of their interests
with those of the Corporation by providing them with opportunities to purchase
stock in the Corporation pursuant to options granted hereunder, thereby
stimulating their efforts on behalf of the Corporation and strengthening their
desire to remain involved with the Corporation.
ARTICLE II
DEFINITIONS
2.1 "Affiliated Corporation" means any stock corporation of which a
majority of the voting common or capital stock is owned directly or indirectly
by the Corporation.
2.2 "Award" means an Option granted under Article V.
2.3 "Board" means the Board of Directors of the Corporation.
2.4 "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
<PAGE> 2
2.5 "Corporation" means Conceptronic, Inc., a Delaware corporation, or its
successor.
2.6 "Employee" means any person who is a regular full-time or part-time
employee of the Corporation or an Affiliated corporation on or after [EFFECTIVE
DATE].
2.7 "Option" means an Incentive Stock Option or Non-Qualified Option
granted by the Board under Article V of this Plan in the form of a right to
purchase Stock evidenced by an instrument containing such provisions as the
Board may establish.
2.8 "Plan" means this 1991 Stock Option Plan.
2.9 "Incentive Stock Option" ("ISO") means an option which qualifies as an
incentive stock option as defined in Section 422A of the Code, as amended.
2.10 "Non-Qualified Option" means any option not intended to qualify as an
Incentive Stock Option.
2.11 "Stock" means the Common Stock, $.01 par value, of the Corporation or
any successor, including any adjustments in the event of changes in capital
structure of the type described in Article IX.
ARTICLE III
ADMINISTRATION OF THE PLAN
3.1 ADMINISTRATION BY BOARD. This Plan shall be administered by the Board
of Directors of the Corporation. The Board may, from time to time, delegate any
of its functions under this plan to one or more committees. All references in
this Plan to the
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<PAGE> 3
Board shall also include the Committee or committees, if one or more have been
appointed by the Board. From time to time the Board may increase the size of the
Committee or committees and appoint additional members thereto, remove members
(with or without cause) and appoint new members in substitution therefor, fill
vacancies however caused, or remove all members of the Committee or committees
and thereafter directly administer the Plan. No member of the Board or a
committee shall be liable for any action or determination made in good faith
with respect to the Plan or any options granted under it.
3.2 POWERS. The Board of Directors and/or any committee appointed by the
Board shall have full and final authority to operate, manage and administer the
Plan on behalf of the Corporation. This authority includes, but is not limited
to:
(a) The power to grant Awards conditionally or unconditionally,
(b) The power to prescribe the form or forms of the instruments evidencing
Awards granted under this Plan,
(c) The power to interpret the Plan,
(d) The power to provide regulations for the operation of the incentive
features of the Plan, and otherwise to prescribe and rescind
regulations for interpretation, management and administration of the
Plan,
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<PAGE> 4
(e) The power to delegate responsibility for Plan operation, management
and administration on such terms, consistent with the Plan, as the
Board may establish,
(f) The power to delegate to other persons the responsibility of
performing ministerial acts in furtherance of the Plan's purpose, and
(g) The power to engage the services of persons, companies, or
organizations in furtherance of the Plan's purpose, including but not
limited to, banks, insurance companies, brokerage firms and
consultants.
3.3 ADDITIONAL POWERS. In addition, as to each Option to buy Stock of the
Corporation, the Board shall have full and final authority in its discretion:
(a) to determine the number of shares of Stock subject to each Option; (b) to
determine the time or times at which Options will be granted; (c) to determine
the option price of the shares of Stock subject to each Option, which price
shall be not less than the minimum price specified in Article V of this Plan;
(d) to determine the time or times when each option shall become exercisable and
the duration of the exercise period (including the acceleration of any exercise
period), which shall not exceed the maximum period specified in Article V; and
(e) to determine whether each Option granted shall be an Incentive Stock Option
or a Non-qualified Option.
In no event may the Company grant an Employee any Incentive Stock Option
that is first exercisable during any one calendar year
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<PAGE> 5
to the extent the aggregate fair market value of the Stock (determined at the
time the options are granted) exceeds $100,000 (under all stock option plans of
the Corporation and any Affiliated Corporation); provided, however, that this
paragraph shall have no force and effect if its inclusion in the Plan is not
necessary for Incentive Stock Options issued under the Plan to qualify as such
pursuant to Section 422(A)(b)(7) of the Code.
ARTICLE IV
ELIGIBILITY
4.1 ELIGIBLE EMPLOYEES. All Employees (including Directors who are
Employees are eligible to be granted Incentive Stock Option and Non-Qualified
Option Awards under this Plan.
4.2 CONSULTANTS, DIRECTORS AND OTHER NON-EMPLOYEES. Any Consultant,
Director (whether or not an Employee) and any other Non-Employee is eligible to
be granted Non-Qualified option Awards under the Plan.
4.3 RELEVANT FACTORS. In selecting individual Employees, Consultants,
Directors and other Non-Employees to whom Awards shall be granted, the Board
shall weigh such factors as are relevant to accomplish the purpose of the Plan
as stated in Article I. An individual who has been granted an Award may be
granted one or more additional Awards, if the Board so determines. The granting
of an Award to any individual shall neither entitle that individual to, nor
disqualify him from, participation in any other grant of Awards.
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<PAGE> 6
ARTICLE V
STOCK OPTION AWARDS
5.1 NUMBER OF SHARES. Subject to the provisions of Article IX of this Plan,
the aggregate number of shares of Stock for which options may be granted under
this Plan shall not exceed [NUMBER OF SHARES IN PLAN] shares. The shares to be
delivered upon exercise of Options under this Plan shall be made available, at
the discretion of the Board, either from authorized but unissued shares or from
previously issued and reacquired shares of Stock held by the Corporation as
treasury shares, including shares purchased in the open market.
Stock issuable upon exercise of an option granted under the Plan may be
subject to such restrictions on transfer, repurchase rights or other
restrictions as shall be determined by the Board of Directors.
5.2 EFFECT OF EXPIRATION, TERMINATION OR SURRENDER. If an Option under this
Plan shall expire or terminate unexercised as to any shares covered thereby, or
shall cease for any reason to be exercisable in whole or in part, or if the
Company shall reacquire any unvested shares issued pursuant to options under the
Plan, such shares shall thereafter be available for the granting of other
Options under this Plan.
5.3 TERM OF OPTIONS. The full term of each option granted hereunder shall
be for such period as the Board shall determine. In the case of Incentive Stock
options granted hereunder, the term
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<PAGE> 7
shall not exceed ten (10) years from the date of granting thereof. Each option
shall be subject to earlier termination as provided in Sections 6.3 and 6.4.
Notwithstanding the foregoing, options intended to qualify as "Incentive Stock
Options" may not be granted to any employee who at the time such option is
granted owns more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company unless such option is not exercisable after
the expiration of five (5) years from the date such option is granted.
5.4 OPTION PRICE. The option price shall be determined by the Board at the
time any Option is granted. In the case of Incentive Stock Options, the exercise
price shall not be less than 100% of the fair market value of the shares covered
thereby at the time the Incentive Stock Option is granted (but in no event less
than par value), provided that no Incentive Stock Option shall be granted
hereunder to any Employee if at the time of grant the Employee, directly or
indirectly, owns Stock possessing more than 10% of the combined voting power of
all classes of stock of the Corporation and its Affiliated Corporations unless
the Incentive Stock Option price equals not less than 110% of the fair market
value of the shares covered thereby at the time the Incentive Stock Option is
granted.
5.5 FAIR MARKET VALUE. If, at the time an option is granted under the Plan,
the Corporation's Stock is publicly traded, "fair market value" shall be
determined as of the last business day for
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<PAGE> 8
which the prices or quotes discussed in this sentence are available prior to the
date such Option is granted and shall mean (i) the average (on that date) of the
high and low prices of the Stock on the principal national securities exchange
on which the Stock is traded, if the Stock is then traded on a national
securities exchange; or (ii) the last reported sale price (on that date) of the
Stock on the NASDAQ National Market List, if the Stock is not then traded on a
national securities exchange; or (iii) the closing bid price (or average of bid
prices) last quoted (on that date) by an established quotation service for
over-the-counter securities, if the Stock is not reported on the NASDAQ National
Market List. However, if the Stock is not publicly traded at the time an Option
is granted under the Plan, "fair market value" shall be deemed to be the fair
value of the Stock as determined by the Board after taking into consideration
all factors which it deems appropriate, including, without limitation, recent
sale and offer prices of the Stock in private transactions negotiated at arm's
length.
5.6 NON-TRANSFERABILITY OF OPTIONS. No option granted under this Plan shall
be transferable by the grantee otherwise than by will or the laws of descent and
distribution, and such Option may be exercised during the grantee's lifetime
only by the grantee.
ARTICLE VI
EXERCISE OF OPTION
6.1 EXERCISE. Each option granted under this Plan shall be exercisable on
such date or dates and during such period and for
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such number of shares as shall be determined pursuant to the provisions of the
instrument evidencing such Option. The Board shall have the right to accelerate
the date of exercise of any option, provided that, the Board shall not
accelerate the exercise date of any Incentive Stock option granted if such
acceleration would violate the annual vesting limitation contained in Section
422A(b)(7) of the Code.
6.2 NOTICE OF EXERCISE. A person electing to exercise an option shall give
written notice to the Corporation of such election and of the number of shares
he or she has elected to purchase and shall at the time of exercise tender the
full purchase price of the shares he or she has elected to purchase. The
purchase price can be paid partly or completely in shares of the Corporation's
stock valued at Fair Market Value as defined in Section 5.5 hereof. Until such
person has been issued a certificate or certificates for the shares so
purchased, he or she shall possess no rights of a record holder with respect to
any of such shares.
6.3 OPTION UNAFFECTED BY CHANGE IN DUTIES. No Incentive Stock Option (and,
unless otherwise determined by the Board of Directors, no Non-Qualified option
granted to a person who is, on the date of the grant, an Employee of the
Corporation or an Affiliated Corporation) shall be affected by any change of
duties or position of the optionee (including transfer to or from an Affiliated
Corporation), so long as he or she continues to be an
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Employee. Employment shall be considered as continuing uninterrupted during any
bona fide leave of absence (such as those attributable to illness, military
obligations or governmental service) provided that the period of such leave does
not exceed 90 days or, if longer, any period during which such optionee's right
to reemployment is guaranteed by statute. A bona fide leave of absence with the
written approval of the Board shall not be considered an interruption of
employment under the Plan, provided that such written approval contractually
obligates the Corporation or any Affiliated Corporation to continue the
employment of the optionee after the approved period of absence.
If the optionee shall cease to be an Employee for any reason other than
death, such Option shall thereafter be exercisable only to the extent of the
purchase rights, if any, which have accrued as of the date of such cessation;
provided that (i) the Board may provide in the instrument evidencing an Option
that the Board may in its absolute discretion, upon any such cessation of
employment, determine (but be under no obligation to determine) that such
accrued purchase rights shall be deemed to include additional shares covered by
such Option; and (ii) unless the Board shall otherwise provide in the instrument
evidencing any Option, upon any such cessation of employment, such remaining
rights to purchase shall in any event terminate upon the earlier of (A) the
expiration of the original term of the Option; or (B) where such cessation of
employment is on account of disability, the expiration of one year
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from the date of such cessation of employment and, otherwise, the expiration of
three months from such date. For purposes of the plan, the term "disability"
shall mean "permanent and total disability" as defined in Section 22(e)(3) of
the Code.
6.4 DEATH OF OPTIONEE. Should an optionee die while in possession of the
legal right to exercise an option or Options under this Plan, such persons as
shall have acquired, by will or by the laws of descent and distribution, the
right to exercise any options theretofore granted, may, unless otherwise
provided by the Board in any instrument evidencing any option, exercise such
options at any time prior to one year from the date of death; provided, that
such Option or Options shall expire in all events no later than the last day of
the original term of such Option; provided, further, that any such exercise
shall be limited to the purchase rights which have accrued as of the date when
the optionee ceased to be an Employee, whether by death or otherwise, unless the
Board provides in the instrument evidencing such option that, in the discretion
of the Board, additional shares covered by such Option may become subject to
purchase immediately upon the death of the optionee.
ARTICLE VII
TERMS AND CONDITIONS OF OPTIONS
Options shall be evidenced by instruments (which need not be identical) in
such forms as the Board may from time to time approve. Such instruments shall
conform to the terms and
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conditions set forth in Articles 5 and 6 hereof and may contain such other
provisions as the Board deems advisable which are not inconsistent with the
Plan, including restrictions applicable to shares of Stock issuable upon
exercise of Options. In granting any Non-Qualified option, the Board may specify
that such Non-Qualified Option shall be subject to the restrictions set forth
herein with respect to Incentive Stock Options, or to such other termination and
cancellation provisions as the Board may determine. The Board may from time to
time confer authority and responsibility on one or more of its own members
and/or one or more officers of the Corporation to execute and deliver such
instruments. The proper officers of the Corporation are authorized and directed
to take any and all action necessary or advisable from time to time to carry out
the terms of such instruments.
ARTICLE VIII
BENEFIT PLANS
Awards under the Plan are discretionary and are not a part of regular
salary. Awards may not be used in determining the amount of compensation for any
purpose under the benefit plans of the Corporation, or an Affiliated
Corporation, except as the Board may from time to time expressly provide.
Neither the Plan, an Option or any instrument evidencing an Option confers upon
any Employee the right to continued employment with the Corporation or an
Affiliated Corporation.
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ARTICLE IX
AMENDMENT, SUSPENSION OR TERMINATION
OF THE PLAN
The Board may suspend the Plan or any part thereof at any time or may
terminate the Plan in its entirety. Awards shall not be granted after Plan
termination.
The Board may also amend the Plan from time to time, except that amendments
which affect the following subjects must be approved by stockholders of the
Corporation:
(a) Except as provided in Article X relative to capital changes, the
number of shares as to which Options may be granted pursuant to
Article V;
(b) The maximum term of Options granted;
(c) The minimum price at which Options may be granted;
(d) The term of the Plan; and
(e) The requirements as to eligibility for participation in the Plan.
Awards granted prior to suspension or termination of the Plan may not be
cancelled solely because of such suspension or termination, except with the
consent of the grantee of the Award.
ARTICLE X
CHANGES IN CAPITAL STRUCTURE
The instruments evidencing Options granted hereunder shall be subject to
adjustment in the event of changes in the outstanding Stock of the Corporation
by reason of Stock dividends, Stock
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splits, recapitalizations, reorganizations, mergers, consolidations,
combinations, exchanges or other relevant changes in capitalization occurring
after the date of an Award to the same extent as would affect an actual share of
Stock issued and outstanding on the effective date of such change. Such
adjustment to outstanding options shall be made without change in the total
price applicable to the unexercised portion of such options, and a corresponding
adjustment in the applicable option price per share shall be made. In the event
of any such change, the aggregate number and classes of shares for which Options
may thereafter be granted under Section 5.1 of this Plan may be appropriately
adjusted as determined by the Board so as to reflect such change.
Notwithstanding the foregoing, any adjustments made pursuant to this
Article X with respect to Incentive Stock Options shall be made only after the
Board, after consulting with counsel for the Corporation, determines whether
such adjustments would constitute a "modification" of such Incentive Stock
options (as that term is defined in Section 425 of the Code) or would cause any
adverse tax consequences for the holders of such Incentive Stock Options. If the
Board determines that such adjustments made with respect to Incentive Stock
Options would constitute a modification of such Incentive Stock Options, it may
refrain from making such adjustments.
In the event of the proposed dissolution or liquidation of the Corporation,
each Option will terminate immediately prior to
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the consummation of such proposed action or at such other time and subject to
such other conditions as shall be determined by the Board.
Except as expressly provided herein, no issuance by the Corporation of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares subject to Options. No adjustments
shall be made for dividends paid in cash or in property other than securities of
the Corporation.
No fractional shares shall be issued under the Plan and the optionee shall
receive from the Corporation cash in lieu of such fractional shares.
ARTICLE XI
EFFECTIVE DATE AND TERM OF THE PLAN
The Plan shall become effective on [EFFECTIVE DATE]. The Plan shall
continue until such time as it may be terminated by action of the Board;
provided, however, that no Options may be granted under this Plan on or after
the tenth anniversary of the effective date hereof.
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ARTICLE XII
CONVERSION OF ISOS INTO NON-QUALIFIED
OPTIONS; TERMINATION OF ISOS
The Board, at the written request of any optionee, may in its discretion
take such actions as may be necessary to convert such optionee's Incentive Stock
options, that have not been exercised on the date of conversion, into
Non-Qualified Options at any time prior to the expiration of such Incentive
Stock options, regardless of whether the optionee is an employee of the
Corporation or an Affiliated Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of such Options. At the time of such conversion, the
Board (with the consent of the optionee) may impose such conditions on the
exercise of the resulting Non-Qualified Options as the Board in its discretion
may determine, provided that such conditions shall not be inconsistent with the
Plan. Nothing in the Plan shall be deemed to give any optionee the right to have
such optionee's Incentive Stock Options converted into Non-Qualified Options,
and no such conversion shall occur until and unless the Board takes appropriate
action. The Board, with the consent of the optionee, may also terminate any
portion of any Incentive Stock Option that has not been exercised at the time of
such termination.
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ARTICLE XIII
APPLICATION OF FUNDS
The proceeds received by the Corporation from the sale of shares pursuant
to options granted under the Plan shall be used for general corporate purposes.
ARTICLE XIV
GOVERNMENTAL REGULATION
The Corporation's obligation to sell and deliver shares of Stock under this
Plan is subject to the approval of any governmental authority required in
connection with the authorization, issuance or sale of such shares.
ARTICLE XV
WITHHOLDING OF ADDITIONAL INCOME TAXES
Upon the exercise of a Non-Qualified option or the making of a
Disqualifying Disposition (as defined in Article XVI) the Corporation, in
accordance with Section 3402(a) of the Code, may require the opticnee to pay
additional withholding taxes in respect of the amount that is considered
compensation includible in such person's gross income. The Board in its
discretion may condition the exercise of an option on the payment of such
additional withholding taxes.
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ARTICLE XVI
NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION
Each employee who receives an Incentive Stock Option must agree to notify
the Corporation in writing immediately after the employee makes a Disqualifying
Disposition of any Stock acquired pursuant to the exercise of an Incentive Stock
Option. A Disqualifying Disposition is any disposition (including any sale) of
such Stock before the later of (a) two years after the date the employee was
granted the Incentive Stock Option or (b) one year after the date the employee
acquired Stock by exercising the Incentive Stock Option. If the employee has
died before such stock is sold, these holding period requirements do not apply
and no Disqualifying Disposition can occur thereafter.
ARTICLE XVII
GOVERNING LAWS CONSTRUCTION
The validity and construction of the Plan and the instruments evidencing
Options shall be governed by the laws of the Commonwealth of Massachusetts. In
construing this Plan, the singular shall include the plural and the masculine
gender shall include the feminine and neuter, unless the context otherwise
requires.
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EXHIBIT 5(a)
January 6, 1997
Conceptronic, Inc.
6 Post Road
Portsmouth, New Hampshire 03801
Dear Sirs:
This opinion is being given in connection with the Registration Statement
on Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission by Conceptronic, Inc. (the "Company") on the date hereof for
the purpose of registering under the Securities Act of 1933, as amended, 625,000
shares of Common Stock, par value $.01 per share (the "Common Stock"), to be
issued by the Company under the Conceptronic, Inc. 1991 Stock Option Plan, as
amended (the "Plan"). In connection with this opinion, we have examined such
corporate records, certificates and other documents and such questions of law as
we have considered necessary or appropriate for the purpose of this opinion.
Upon the basis of such examination, we advise you that, in our opinion, the
Common Stock has been legally authorized for issuance under the Plan and when
sold upon valid exercise of the options granted under the Plan will be validly
issued, fully paid and nonassessable shares of Common Stock of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended.
Very truly yours,
/s/ ROBINSON & COLE
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EXHIBIT 23(a)
CONSENT OF KPMG PEAT MARWICK LLP
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated February 16, 1996 set forth in Conceptronic, Inc.
Form 10-KSB for the fiscal year ended December 31, 1995.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Boston, Massachusetts
December 18, 1996
