<PAGE>
As filed with the Securities and Exchange Commission on July 30, 1999.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ACT Manufacturing, Inc.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
Massachusetts 04-2777507
<S> <C>
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
2 Cabot Road
Hudson, Massachusetts 01749
(978) 567-4000
(Address of Principal Executive Offices) (Zip Code)
------------------------------------
Amended and Restated 1990 Equity Incentive Plan (assumed from
CMC Industries, Inc.)
Amended and Restated 1995 Stock Plan
(Full title of the plans)
------------------------------------
John A. Pino
President and Chief Executive Officer
ACT Manufacturing, Inc.
2 Cabot Road
Hudson, Massachusetts 01749
(978) 567-4000
(Name and address including zip code and telephone number,
including area code, of agent for service)
------------------------------------
Copy to:
John A. Meltaus, Esq.
TESTA, HURWITZ & THIBEAULT, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
--------------------------------------------
================================================================================
<PAGE>
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered Share Price Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Amended and Restated 1990
Equity Incentive Plan
Common Stock 771,758 $11.8358/(1)/ $ 9,134,373.3364 $2,539.36
(Par Value $.01) 160,685 $15.4690/(2)/ $ 2,485,636.2650 $ 691.01
Amended and Restated 1995
Stock Plan
Common Stock 1,000,000 $15.4690/(2)/ $15,469,000 $4,300.39
(Par Value $.01)
TOTAL: 1,932,443 $7,530.76
shares
</TABLE>
================================================================================
(1) All such shares are issuable upon exercise of outstanding options with
fixed exercise prices. Pursuant to Regulation C, Rule 457(h)(1) under the
Securities Act of 1933, as amended, the aggregate offering price and the
fee have been computed upon the basis of the price at which the options may
be exercised. The offering price per share set forth for such shares is the
weighted average exercise price per share at which such options are
exercisable.
(2) The price of $15.469 per share, which is the average of the high and low
prices of the common stock of the registrant reported on the Nasdaq
National Market on July 29, 1999, is set forth solely for purposes of
calculating the filing fee pursuant to Rule 457(c) and (h) and has been
used only for those shares which have not yet been granted.
<PAGE>
-3-
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
-----------------------------------------------------------
The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998.
(b) Registrant's Quarterly Report on Form 10-Q for the period ended
March 31, 1999.
(c) 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 ended December 31, 1998.
(d) The section entitled "Description of Registrant's Securities to
be Registered," contained in the Registrant's Registration
Statement on Form 8-A, filed on February 15, 1995 pursuant to
Section 12(g) of the Exchange Act.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein have been sold or which
<PAGE>
-4-
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.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
-------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 67 of Chapter 156B of the Massachusetts General Laws provides
that a corporation may indemnify its directors and officers to the extent
specified in or authorized by (i) the articles of organization, (ii) a by-law
adopted by the stockholders, or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
In all instances, the extent to which a corporation provides indemnification to
its directors and officers under Section 67 is optional. In its Amended and
Restated By-Laws, the Registrant has elected to commit to provide
indemnification to its directors and officers in specified circumstances.
Generally, Article V, Section 2 of the Registrant's Amended and Restated By-Laws
indemnifies directors and officers of the Registrant against liabilities and
expenses arising out of legal proceedings brought against them by reason of
their status as directors or officers or by reason of their agreeing to serve,
at the request of the Registrant, as a director or officer with another
organization. Under this provision, a director or officer of the Registrant
shall be indemnified by the Registrant for all costs and expenses (including
attorneys' fees), judgments, liabilities and amounts paid in settlement of such
proceedings, even if he is not successful on the merits, if he acted in good
faith in the reasonable belief that his action was in the best interests of the
Registrant. The Registrant's Board of Directors may authorize advancing
litigation expenses to a director or officer at his request upon receipt of an
undertaking by any such director or officer to repay such expenses if it is
ultimately determined that he is not entitled to indemnification for such
expenses.
Article 6 of the Registrant's Second Restated Articles of Organization,
as amended, eliminates the personal liability of the Registrant's directors to
the Registrant or its stockholders for monetary damages for breach of a
director's fiduciary duty, except to the extent Chapter 156B of the
Massachusetts General Laws prohibits the elimination or limitation of such
liability.
The Registrant maintains directors' and officers' liability insurance
for the benefit of its directors and certain of its officers.
<PAGE>
-5-
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
Exhibit No. Description of Exhibit
---------- ----------------------
Exhibit 4.1 Second Restated Articles of Organization of
the Registrant (filed as Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K for
the year ended December 31, 1995, and
incorporated herein by reference).
Exhibit 4.2 Articles of Amendment to the Second Restated
Articles of Organization of the Registrant.
Exhibit 4.3 Amended and Restated By-Laws of the
Registrant, as amended (filed as Exhibit 3.2
to the Registrant's Registration Statement
on Form S-1, File No. 33-89532, and
incorporated herein by reference).
Exhibit 4.4 Specimen certificate representing the Common
Stock of the Registrant (filed as Exhibit
4.1 to the Registrant's Registration
Statement on Form S-1, File No. 33-89532,
and incorporated herein by reference).
Exhibit 4.5 Amended and Restated 1995 Stock Plan.
Exhibit 4.6 Amended and Restated 1990 Equity Incentive
Plan (assumed from CMC Industries, Inc.).
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
Exhibit 23.1 Consent of Testa, Hurwitz & Thibeault, LLP
(contained in Exhibit 5.1).
Exhibit 23.2 Consent of Deloitte & Touche LLP.
Exhibit 24.1 Power of Attorney (included as part of the
signature page to this Registration
Statement).
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:
<PAGE>
-6-
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(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) do not apply if the
information required to be included in a
post-effective amendment by those paragraphs
is contained in periodic reports filed with
or furnished to the Commission by the
Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities
offered 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
<PAGE>
-7-
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.
[Remainder of Page Intentionally Left Blank]
<PAGE>
-8-
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, ACT Manufacturing, Inc., 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 Hudson, Commonwealth of
Massachusetts, on this 30th day of July, 1999.
ACT MANUFACTURING, INC.
By: /s/ John A. Pino
------------------------
John A. Pino
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of ACT Manufacturing, Inc.,
hereby severally constitute and appoint John A. Pino and Jeffrey B. Lavin, and
each of them singly, our true and lawful attorneys, with full power to them and
each of them singly, to sign for us in our names in the capacities indicated
below, any amendments to this Registration Statement on Form S-8 (including
post-effective amendments), and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, and generally to do all things in our names and on our behalf in our
capacities as officers and directors to enable ACT Manufacturing, Inc. to comply
with the provisions of the Securities Act of 1933, as amended, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys, or
any of them, to said Registration Statement and all amendments thereto.
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 dates indicated.
Signature Title(s) Date
--------- -------- ----
/s/ John A. Pino Chairman of the Board, President July 30, 1999
----------------
John A. Pino and Chief Executive Officer
(Principal Executive Officer)
<PAGE>
-9-
<TABLE>
<S> <C> <C>
/s/ Jeffrey B. Lavin Vice President of Finance, Chief July 30, 1999
----------------------
Jeffrey B. Lavin Financial Officer, Treasurer
and Clerk (Principal Financial
and Accounting Officer)
/s/ Bruce R. Gardner Director July 30, 1999
---------------------
Bruce R. Gardner
/s/ Donald G. Polich Director July 30, 1999
-----------------------
Donald G. Polich
/s/ Edward T. Cuddy Director July 30, 1999
--------------------
Edward T. Cuddy
/s/ David S. Lee Director July 30, 1999
-----------------
David S. Lee
/s/ Frederick W. Gibbs Director July 30, 1999
----------------------
Frederick W. Gibbs
</TABLE>
<PAGE>
Exhibit Index
-------------
Item 8. Exhibits.
--------
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
---------- ----------------------
<S> <C>
Exhibit 4.1 Second Restated Articles of Organization of the
Registrant (filed as Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K for the
year ended December 31, 1995, and incorporated
herein by reference).
Exhibit 4.2+ Articles of Amendment to the Second Restated
Articles of Organization of the Registrant.
Exhibit 4.3 Amended and Restated By-Laws of the Registrant,
as amended (filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1,
File No. 33-89532, and incorporated herein by
reference).
Exhibit 4.4 Specimen certificate representing the Common
Stock of the Registrant (filed as Exhibit 4.1 to
the Registrant's Registration Statement on Form S-1,
File No. 33-89532, and incorporated herein by
reference).
Exhibit 4.5+ Amended and Restated 1995 Stock Plan.
Exhibit 4.6+ Amended and Restated 1990 Equity Incentive Plan
(assumed from CMC Industries, Inc.).
Exhibit 5.1+ Opinion of Testa, Hurwitz & Thibeault, LLP.
Exhibit 23.1 Consent of Testa, Hurwitz & Thibeault, LLP
(contained in Exhibit 5.1).
Exhibit 23.2+ Consent of Deloitte & Touche LLP.
Exhibit 24.1 Power of Attorney (included as part of the
signature page to this Registration Statement).
</TABLE>
- ----------------
+ Filed herewith
<PAGE>
Exhibit 4.2
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
We, John A. Pino , *
--------------------------------------------------------------------
President
and Jeffery B. Lavin , *Clerk
---------------------------------------------------------------
of ACT Manufacturing, Inc. ,
----------------------------------------------------------------------
(Exact name of corporation)
located at: 2 Cabot Road, Hudson, MA 01749 ,
-------------------------------------------------------------
(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles numbered:
3
---------------------------------------------------------------------------
(Number those articles 1, 2, 3, 4, 5, and/or 6 being amended)
of the Articles of Organization were duly adopted at a meeting held on July
29, 1999, by vote of:
7,821,702 shares of Common Stock, $.01 par value of 9,091,600
---------------------------- ---------
(type, class & series, if any)
shares outstanding,
_____________________ shares of _____________________ of _______________ shares
outstanding, and
(type, class & series, if any)
_____________________ shares of _____________________ of ______________ shares
outstanding.
(type, class & series, if any)
1**being at least a majority of each type, class or series outstanding and
entitled to vote thereon
*Delete the inapplicable words. ** Delete the inapplicable clause.
/1/For amendments adopted pursuant to Chapter 156B, Section 70.
/2/For amendments adopted pursuant to Chapter 156B, Section 71.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on one side only of separate 8 1/2 x
11 sheets of paper with a left margin of at least 1 inch. Additions to more than
one article may be made on a single sheet so long as each article requiring each
addition is clearly indicated.
<PAGE>
To change the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
<TABLE>
<CAPTION>
- --------------------------------------------------- ----------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- --------------------------------------------------- ----------------------------------------------------------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ------------------ -------------------------------- --------------- ---------------------------------- -------------------
<S> <C> <C> <C> <C>
Common: 0 Common: 30,000,000 $.01
- ------------------ -------------------------------- --------------- ---------------------------------- -------------------
- ------------------ -------------------------------- --------------- ---------------------------------- -------------------
Preferred: 0 Preferred: 5,000,000 $.01
- ------------------ -------------------------------- --------------- ---------------------------------- -------------------
- ------------------ -------------------------------- --------------- ---------------------------------- -------------------
<CAPTION>
Change the total authorized to:
- -------------------------------------------------- -----------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
- ----------------- -------------------------------- --------------- --------------------------------- ---------------------
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
- ----------------- -------------------------------- --------------- --------------------------------- ---------------------
<S> <C> <C> <C> <C>
Common: 0 Common: 50,000,000 $.01
- ----------------- -------------------------------- --------------- --------------------------------- ---------------------
- ----------------- -------------------------------- --------------- --------------------------------- ---------------------
Preferred: 0 Preferred: 5,000,000 $.01
- ----------------- -------------------------------- --------------- --------------------------------- ---------------------
- ----------------- -------------------------------- --------------- --------------------------------- ---------------------
</TABLE>
<PAGE>
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
Later effective date: ___________________________________
SIGNED UNDER THE PENALTIES OF PERJURY, this 29th day of July, 1999.
/s/ John A. Pino , *President
- --------------------------------------------------------------------
/s/ Jeffrey B. Lavin , *Clerk
- --------------------------------------------------------------------
*Delete the inapplicable words.
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
_______________________________________________________________
I hereby approve the within Articles of Amendment,
and the filing fee in the amount of $20,000 having
been paid, said article is deemed to have been filed
with me this 29/th/ day of July, 1999.
--
Effective date:
July 29, 1999
-------------------------------------------
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photocopy of document to be sent to:
Kelly R. Whiting, Esq.
--------------------------------------------------------
Testa, Hurwitz & Thibeault, LLP
--------------------------------------------------------
High Street Tower
--------------------------------------------------------
125 High Street
--------------------------------------------------------
Boston, MA 02110
--------------------------------------------------------
<PAGE>
Exhibit 4.5
ACT MANUFACTURING, INC.
AMENDED AND RESTATED 1995 STOCK PLAN
1. Purpose. The purpose of this Amended and Restated 1995 Stock Plan (the
"Plan") is to encourage employees of ACT Manufacturing, Inc. (the "Company") and
of any present or future parent or subsidiary of the Company (collectively,
"Related Corporations") and other individuals who render services to the Company
or a Related Corporation, by providing opportunities to participate in the
ownership of the Company and its future growth through (a) the grant of options
which qualify as "incentive stock options" ("ISOs") under Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code"); (b) the grant of options
which do not qualify as ISOs ("Non-Qualified Options"); (c) awards of stock in
the Company ("Awards"); and (d) opportunities to make direct purchases of stock
in the Company ("Purchases"). Both ISOs and Non-Qualified Options are referred
to hereafter individually as an "Option" and collectively as "Options." Options,
Awards and authorizations to make Purchases are referred to hereafter
collectively as "Stock Rights." As used herein, the terms "parent" and
"subsidiary" mean "parent corporation" and "subsidiary corporation,"
respectively, as those terms are defined in Section 424 of the Code.
2. Administration of the Plan.
A. Board or Committee Administration. The Plan shall be administered
by the Board of Directors of the Company (the "Board") or by a committee
appointed by the Board (the "Committee"); provided that the Plan shall be
administered: (i) to the extent required by applicable regulations under
Section 162(m) of the Code, by two or more "outside directors" (as defined
in applicable regulations thereunder) and (ii) to the extent required by
Rule 16b-3 promulgated under the Securities Exchange Act of 1934 or any
successor provision ("Rule 16b-3"), by a disinterested administrator or
administrators within the meaning of Rule 16b-3. Hereinafter, all
references in this Plan to the "Committee" shall mean the Board if no
Committee has been appointed. Subject to ratification of the grant or
authorization of each Stock Right by the Board (if so required by
applicable state law), and subject to the terms of the Plan, the Committee
shall have the authority to (i) determine to whom (from among the class of
employees eligible under paragraph 3 to receive ISOs) ISOs shall be
granted, and to whom (from among the class of individuals and entities
eligible under paragraph 3 to receive Non-Qualified Options and Awards and
to make Purchases) Non-Qualified Options, Awards and authorizations to make
Purchases may be granted; (ii) determine the time or times at which Options
or Awards shall be granted or Purchases made; (iii) determine the purchase
price of shares subject to each Option or Purchase, which prices shall not
be less than the minimum price specified in paragraph 6; (iv) determine
whether
<PAGE>
each Option granted shall be an ISO or a Non-Qualified Option; (v)
determine (subject to paragraph 7) the time or times when each Option shall
become exercisable and the duration of the exercise period; (vi) extend the
period during which outstanding Options may be exercised; (vii) determine
whether restrictions such as repurchase options are to be imposed on shares
subject to Options, Awards and Purchases and the nature of such
restrictions, if any, and (viii) interpret the Plan and prescribe and
rescind rules and regulations relating to it. If the Committee determines
to issue a Non-Qualified Option, it shall take whatever actions it deems
necessary, under Section 422 of the Code and the regulations promulgated
thereunder, to ensure that such Option is not treated as an ISO. The
interpretation and construction by the Committee of any provisions of the
Plan or of any Stock Right granted under it shall be final unless otherwise
determined by the Board. The Committee may from time to time adopt such
rules and regulations for carrying out the Plan as it may deem advisable.
No member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Stock
Right granted under it.
B. Committee Actions. The Committee may select one of its members as
its chairman, and shall hold meetings at such time and places as it may
determine. A majority of the Committee shall constitute a quorum and acts
of a majority of the members of the Committee at a meeting at which a
quorum is present, or acts reduced to or approved in writing by all the
members of the Committee (if consistent with applicable state law), shall
be the valid acts of the Committee. From time to time the Board may
increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause) and appoint new members in
substitution therefor, fill vacancies however caused, or remove all members
of the Committee and thereafter directly administer the Plan.
C. Grant of Stock Rights to Board Members. Subject to the provisions
of the first sentence of paragraph 2(A) above, if applicable, Stock Rights
may be granted to members of the Board. All grants of Stock Rights to
members of the Board shall in all other respects be made in accordance with
the provisions of this Plan applicable to other eligible persons.
Consistent with the provisions of the first sentence of Paragraph 2(A)
above, members of the Board who either (i) are eligible to receive grants
of Stock Rights pursuant to the Plan or (ii) have been granted Stock Rights
may vote on any matters affecting the administration of the Plan or the
grant of any Stock Rights pursuant to the Plan, except that no such member
shall act upon the granting to himself or herself of Stock Rights, but any
such member may be counted in determining the existence of a quorum at any
meeting of the Board during which action is taken with respect to the
granting to such member of Stock Rights.
3. Eligible Employees and Others. ISOs may be granted only to employees of
the Company or any Related Corporation. Non-Qualified Options, Awards and
authorizations to make Purchases may be granted to any employee, officer or
director
<PAGE>
(whether or not also an employee) or consultant of the Company or any Related
Corporation. The Committee may take into consideration a recipient's individual
circumstances in determining whether to grant a Stock Right. The granting of any
Stock Right to any individual or entity shall neither entitle that individual or
entity to, nor disqualify such individual or entity from, participation in any
other grant of Stock Rights.
4. Stock. The stock subject to Stock Rights shall be authorized but
unissued shares of Common Stock of the Company, par value $.01 per share (the
"Common Stock"), or shares of Common Stock reacquired by the Company in any
manner. The aggregate number of shares which may be issued pursuant to the Plan
is 2,250,000, subject to adjustment as provided in paragraph 13. If any Stock
Right granted under the Plan shall expire or terminate for any reason without
having been exercised in full or shall cease for any reason to be exercisable in
whole or in part or shall be repurchased by the Company, the shares of Common
Stock subject to such Stock Right shall again be available for grants of Stock
Rights under the Plan.
No employee of the Company or any Related Corporation may be granted
Options to acquire, in the aggregate, more than 2,249,000 shares of Common Stock
under the Plan. If any Option granted under the Plan shall expire or terminate
for any reason without having been exercised in full or shall cease for any
reason to be exercisable in whole or in part or shall be repurchased by the
Company, the shares subject to such Option shall be included in the
determination of the aggregate number of shares of Common Stock deemed to have
been granted to such employee under the Plan.
5. Granting of Stock Rights. Stock Rights may be granted under the Plan at
any time on or after February 8, 1995 and prior to February 8, 2005. The date of
grant of a Stock Right under the Plan will be the date specified by the
Committee at the time it grants the Stock Right; provided, however, that such
date shall not be prior to the date on which the Committee acts to approve the
grant.
6. Minimum Option Price; ISO Limitations.
A. Price for Non-Qualified Options, Awards and Purchases. The exercise
price per share specified in the agreement relating to each Non-Qualified
Option granted, and the purchase price per share of stock granted in any
Award or authorized as a Purchase, under the Plan shall in no event be less
than the minimum legal consideration required therefor under the laws of
any jurisdiction in which the Company or its successors in interest may be
organized. Stock Rights granted under the Plan may be exercisable only upon
the attainment of a pre-established, objective performance goal established
by the Committee. If the Committee grants Stock Rights under the Plan, such
grants may be submitted for, and may be contingent upon, shareholder
approval if the Committee so determines in accordance with the regulations
established under Section 162(m) of the Code.
<PAGE>
B. Price for ISOs. The exercise price per share specified in the
agreement relating to each ISO granted under the Plan shall not be less
than the fair market value per share of Common Stock on the date of such
grant. In the case of an ISO to be granted to an employee owning stock
possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or any Related Corporation, the
price per share specified in the agreement relating to such ISO shall not
be less than one hundred ten percent (110%) of the fair market value per
share of Common Stock on the date of grant. For purposes of determining
stock ownership under this paragraph, the rules of Section 424(d) of the
Code shall apply.
C. $100,000 Annual Limitation on ISO Vesting. Each eligible employee
may be granted Options treated as ISOs only to the extent that, in the
aggregate under this Plan and all incentive stock option plans of the
Company and any Related Corporation, ISOs do not become exercisable for the
first time by such employee during any calendar year with respect to stock
having a fair market value (determined at the time the ISOs were granted)
in excess of $100,000. The Company intends to designate any Options granted
in excess of such limitation as Non-Qualified Options.
D. Determination of Fair Market Value. If, at the time an Option is
granted under the Plan, the Company's Common Stock is publicly traded,
"fair market value" shall be determined as of the last business day for
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 Common Stock on the principal
national securities exchange on which the Common Stock is traded, if the
Common Stock is then traded on a national securities exchange; or (ii) the
last reported sale price (on that date) of the Common Stock on the Nasdaq
National Market, if the Common 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 Common Stock is not reported on the
Nasdaq National Market. If the Common Stock is not publicly traded at the
time an Option is granted under the Plan, "fair market value" shall mean
the fair value of the Common Stock as determined by the Committee after
taking into consideration all factors which it deems appropriate,
including, without limitation, recent sale and offer prices of the Common
Stock in private transactions negotiated at arm's length.
7. Option Duration. Subject to earlier termination as provided in
paragraphs 9 and 10 or in the agreement relating to such Option, each Option
shall expire on the date specified by the Committee, but not more than (i) ten
years from the date of grant in the case of Options generally and (ii) five
years from the date of grant in the case of ISOs granted to an employee owning
stock possessing more than ten percent (10%) of
<PAGE>
the total combined voting power of all classes of stock of the Company or any
Related Corporation, as determined under paragraph 6(B). Subject to earlier
termination as provided in paragraphs 9 and 10, the term of each ISO shall be
the term set forth in the original instrument granting such ISO, except with
respect to any part of such ISO that is converted into a Non-Qualified Option
pursuant to paragraph 16.
8. Exercise of Option. Subject to the provisions of paragraphs 9 through
12, each Option granted under the Plan shall be exercisable as follows:
A. Vesting. The Option shall either be fully exercisable on the date
of grant or shall become exercisable thereafter in such installments as the
Committee may specify.
B. Full Vesting of Installments. Once an installment becomes
exercisable it shall remain exercisable until expiration or termination of
the Option, unless otherwise specified by the Committee.
C. Partial Exercise. Each Option or installment may be exercised at
any time or from time to time, in whole or in part, for up to the total
number of shares with respect to which it is then exercisable.
D. Acceleration of Vesting. The Committee shall have the right to
accelerate the date that any installment of any Option becomes exercisable;
provided that the Committee shall not, without the consent of an optionee,
accelerate the permitted exercise date of any installment of any Option
granted to any employee as an ISO (and not previously converted into a Non-
Qualified Option pursuant to paragraph 16) if such acceleration would
violate the annual vesting limitation contained in Section 422(d) of the
Code, as described in paragraph 6(C).
9. Termination of Employment. Unless otherwise specified in the agreement
relating to such ISO, if an ISO optionee ceases to be employed by the Company
and all Related Corporations other than by reason of death or disability as
defined in paragraph 10, no further installments of his or her ISOs shall become
exercisable, and his or her ISOs shall terminate on the earlier of (a) ninety
(90) days after the date of termination of his or her employment, or (b) their
specified expiration dates, except to the extent that such ISOs (or unexercised
installments thereof) have been converted into Non-Qualified Options pursuant to
paragraph 16. For purposes of this paragraph 9, 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 Committee shall not
be considered an interruption of employment under this paragraph 9, provided
that such written approval contractually obligates the Company or any Related
Corporation to continue the employment of the optionee after the approved period
of absence. ISOs
<PAGE>
granted under the Plan shall not be affected by any change of employment within
or among the Company and Related Corporations, so long as the optionee continues
to be an employee of the Company or any Related Corporation. Nothing in the Plan
shall be deemed to give any grantee of any Stock Right the right to be retained
in employment or other service by the Company or any Related Corporation for any
period of time.
10. Death; Disability.
A. Death. If an ISO optionee ceases to be employed by the Company and
all Related Corporations by reason of his or her death, any ISO owned by
such optionee may be exercised, to the extent otherwise exercisable on the
date of death, by the estate, personal representative or beneficiary who
has acquired the ISO by will or by the laws of descent and distribution,
until the earlier of (i) the specified expiration date of the ISO or (ii)
180 days from the date of the optionee's death.
B. Disability. If an ISO optionee ceases to be employed by the Company
and all Related Corporations by reason of his or her disability, such
optionee shall have the right to exercise any ISO held by him or her on the
date of termination of employment, for the number of shares for which he or
she could have exercised it on that date, until the earlier of (i) the
specified expiration date of the ISO or (ii) 180 days from the date of the
termination of the optionee's employment. For the purposes of the Plan, the
term "disability" shall mean "permanent and total disability" as defined in
Section 22(e)(3) of the Code or any successor statute.
11. Assignability. No Stock Right shall be assignable or transferable by
the grantee except by will, by the laws of descent and distribution or, in the
case of Non-Qualified Options only, pursuant to a valid domestic relations
order. Except as set forth in the previous sentence, during the lifetime of a
grantee each Stock Right shall be exercisable only by such grantee.
12. Terms and Conditions of Options. Options shall be evidenced by
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 6 through 11 hereof and may contain such
other provisions as the Committee deems advisable which are not inconsistent
with the Plan, including restrictions applicable to shares of Common Stock
issuable upon exercise of Options. The Committee may specify that any Non-
Qualified Option shall be subject to the restrictions set forth herein with
respect to ISOs, or to such other termination and cancellation provisions as the
Committee may determine. The Committee 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 Company to execute and deliver such instruments. The proper officers of
the Company 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.
<PAGE>
13. Adjustments. Upon the occurrence of any of the following events, an
optionee's rights with respect to Options granted to such optionee hereunder
shall be adjusted as hereinafter provided, unless otherwise specifically
provided in the written agreement between the optionee and the Company relating
to such Option:
A. Stock Dividends and Stock Splits. If the shares of Common Stock
shall be subdivided or combined into a greater or smaller number of shares
or if the Company shall issue any shares of Common Stock as a stock
dividend on its outstanding Common Stock, the number of shares of Common
Stock deliverable upon the exercise of Options shall be appropriately
increased or decreased proportionately, and appropriate adjustments shall
be made in the purchase price per share to reflect such subdivision,
combination or stock dividend. Notwithstanding the foregoing, no adjustment
shall be made for the 280-for-1 stock split in the form of a 279-for-1
stock dividend adopted by the Board on February 8, 1995.
B. Consolidations or Mergers. If the Company is to be consolidated
with or acquired by another entity in a merger, sale of all or
substantially all of the Company's assets or otherwise (an "Acquisition"),
the Committee or the board of directors of any entity assuming the
obligations of the Company hereunder (the "Successor Board"), shall, as to
outstanding Options, either (i) make appropriate provision for the
continuation of such Options by substituting on an equitable basis for the
shares then subject to such Options either (a) the consideration payable
with respect to the outstanding shares of Common Stock in connection with
the Acquisition, (b) shares of stock of the surviving corporation or (c)
such other securities as the Successor Board deems appropriate, the fair
market value of which shall not materially exceed the fair market value of
the shares of Common Stock subject to such Options immediately preceding
the Acquisition; or (ii) upon written notice to the optionees, provide that
all Options must be exercised, to the extent then exercisable, within a
specified number of days of the date of such notice, at the end of which
period the Options shall terminate; or (iii) terminate all Options in
exchange for a cash payment equal to the excess of the fair market value of
the shares subject to such Options (to the extent then exercisable) over
the exercise price thereof.
C. Recapitalization or Reorganization. In the event of a
recapitalization or reorganization of the Company (other than a transaction
described in subparagraph B above) pursuant to which securities of the
Company or of another corporation are issued with respect to the
outstanding shares of Common Stock, an optionee upon exercising an Option
shall be entitled to receive for the purchase price paid upon such exercise
the securities he or she would have received if he or she had exercised
such Option prior to such recapitalization or reorganization.
<PAGE>
D. Modification of ISOs. Notwithstanding the foregoing, any
adjustments made pursuant to subparagraphs A, B or C with respect to ISOs
shall be made only after the Committee, after consulting with counsel for
the Company, determines whether such adjustments would constitute a
"modification" of such ISOs (as that term is defined in Section 424 of the
Code) or would cause any adverse tax consequences for the holders of such
ISOs. If the Committee determines that such adjustments made with respect
to ISOs would constitute a modification of such ISOs or would cause adverse
tax consequences to the holders, it may refrain from making such
adjustments.
E. Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, each Option will terminate
immediately prior to the consummation of such proposed action or at such
other time and subject to such other conditions as shall be determined by
the Committee.
F. Issuances of Securities. Except as expressly provided herein, no
issuance by the Company 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 Company.
G. Fractional Shares. No fractional shares shall be issued under the
Plan and the optionee shall receive from the Company cash in lieu of such
fractional shares.
H. Adjustments. Upon the happening of any of the events described in
subparagraphs A, B or C above, the class and aggregate number of shares set
forth in paragraph 4 hereof that are subject to Stock Rights which
previously have been or subsequently may be granted under the Plan shall
also be appropriately adjusted to reflect the events described in such
subparagraphs. The Committee or the Successor Board shall determine the
specific adjustments to be made under this paragraph 13 and, subject to
paragraph 2, its determination shall be conclusive.
14. Means of Exercising Options. An Option (or any part or installment
thereof) shall be exercised by giving written notice to the Company at its
principal office address, or to such transfer agent as the Company shall
designate. Such notice shall identify the Option being exercised and specify the
number of shares as to which such Option is being exercised, accompanied by full
payment of the purchase price therefor either (a) in United States dollars in
cash or by check, (b) at the discretion of the Committee, through delivery of
shares of Common Stock having a fair market value equal as of the date of the
exercise to the cash exercise price of the Option, (c) at the discretion of the
Committee, by delivery of the grantee's personal recourse note bearing interest
payable not less than annually at no less than 100% of the lowest applicable
Federal rate, as defined in Section 1274(d) of the Code, (d) at the discretion
of the Committee and consistent with applicable law, through the delivery of an
<PAGE>
assignment to the Company of a sufficient amount of the proceeds from the sale
of the Common Stock acquired upon exercise of the Option and an authorization to
the broker or selling agent to pay that amount to the Company, which sale shall
be at the participant's direction at the time of exercise, or (e) at the
discretion of the Committee, by any combination of (a), (b), (c) and (d) above.
If the Committee exercises its discretion to permit payment of the exercise
price of an ISO by means of the methods set forth in clauses (b), (c), (d) or
(e) of the preceding sentence, such discretion shall be exercised in writing at
the time of the grant of the ISO in question. The holder of an Option shall not
have the rights of a shareholder with respect to the shares covered by such
Option until the date of issuance of a stock certificate to such holder for such
shares. Except as expressly provided above in paragraph 13 with respect to
changes in capitalization and stock dividends, no adjustment shall be made for
dividends or similar rights for which the record date is before the date such
stock certificate is issued.
15. Term and Amendment of Plan. The 1995 Stock Plan was adopted by the
Board and the stockholders of the Company on February 8, 1995. This Plan was
adopted by the Board of the Company on May 9, 1999. The Plan shall expire at the
end of the day on February 7, 2005 (except as to Options outstanding on that
date). Subject to the provisions of paragraph 5 above, Options may be granted
under the Plan prior to the date of stockholder approval of the Plan. The Board
may terminate or amend the Plan in any respect at any time, except that, without
the approval of the stockholders obtained within 12 months before or after the
Board adopts a resolution authorizing any of the following actions: (a) the
total number of shares that may be issued under the Plan may not be increased
(except by adjustment pursuant to paragraph 13); (b) the benefits accruing to
participants under the Plan may not be materially increased; (c) the
requirements as to eligibility for participation in the Plan may not be
materially modified; (d) the provisions of paragraph 3 regarding eligibility for
grants of ISOs may not be modified; (e) the provisions of paragraph 6(B)
regarding the exercise price at which shares may be offered pursuant to ISOs may
not be modified (except by adjustment pursuant to paragraph 13); (f) the
expiration date of the Plan may not be extended; and (g) the Board may not take
any action which would cause the Plan to fail to comply with Rule 16b-3. Except
as otherwise provided in this paragraph 15, in no event may action of the Board
or stockholders alter or impair the rights of a grantee, without such grantee's
consent, under any Option previously granted to such grantee.
16. Conversion of ISOs into Non-Qualified Options. The Committee, at the
written request or with the written consent of any optionee, may in its
discretion take such actions as may be necessary to convert such optionee's ISOs
(or any installments or portions of installments thereof) that have not been
exercised on the date of conversion into Non-Qualified Options at any time prior
to the expiration of such ISOs, regardless of whether the optionee is an
employee of the Company or a Related Corporation at the time of such conversion.
Such actions may include, but shall not be limited to, extending the exercise
period or reducing the exercise price of the appropriate installments of such
ISO's. At the time of such conversion, the Committee (with the consent of
<PAGE>
the optionee) may impose such conditions on the exercise of the resulting Non-
Qualified Options as the Committee in its discretion may determine, provided
that such conditions shall not be inconsistent with this Plan. Nothing in the
Plan shall be deemed to give any optionee the right to have such optionee's ISOs
converted into Non-Qualified Options, and no such conversion shall occur until
and unless the Committee takes appropriate action.
17. Application Of Funds. The proceeds received by the Company from the
sale of shares pursuant to Options granted and Purchases authorized under the
Plan shall be used for general corporate purposes.
18. Notice to Company of Disqualifying Disposition. By accepting an ISO
granted under the Plan, each optionee agrees to notify the Company in writing
immediately after such optionee makes a Disqualifying Disposition (as described
in Sections 421, 422 and 424 of the Code and regulations thereunder) of any
stock acquired pursuant to the exercise of ISOs granted under the Plan. A
Disqualifying Disposition is generally any disposition occurring on or before
the later of (a) the date two years following the date the ISO was granted or
(b) the date one year following the date the ISO was exercised.
19. Withholding of Additional Income Taxes. Upon the exercise of a Non-
Qualified Option, the grant of an Award, the making of a Purchase of Common
Stock for less than its fair market value, the making of a Disqualifying
Disposition (as defined in paragraph 18), the vesting or transfer of restricted
stock or securities acquired on the exercise of an Option hereunder, or the
making of a distribution or other payment with respect to such stock or
securities, the Company may withhold taxes in respect of amounts that constitute
compensation includible in gross income. The Committee in its discretion may
condition (i) the exercise of an Option, (ii) the grant of an Award, (iii) the
making of a Purchase of Common Stock for less than its fair market value, or
(iv) the vesting or transferability of restricted stock or securities acquired
by exercising an Option, on the grantee's making satisfactory arrangement for
such withholding. Such arrangement may include payment by the grantee in cash or
by check of the amount of the withholding taxes or, at the discretion of the
Committee, by the grantee's delivery of previously held shares of Common Stock
or the withholding from the shares of Common Stock otherwise deliverable upon
exercise of a Option shares having an aggregate fair market value equal to the
amount of such withholding taxes.
20. Governmental Regulation. The Company's obligation to sell and deliver
shares of the Common 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.
Government regulations may impose reporting or other obligations on the
Company with respect to the Plan. For example, the Company may be required to
send tax information statements to employees and former employees that exercise
ISOs
<PAGE>
under the Plan, and the Company may be required to file tax information returns
reporting the income received by grantees of Options in connection with the
Plan.
21. Governing Law. The validity and construction of the Plan and the
instruments evidencing Options shall be governed by the laws of the Commonwealth
of Massachusetts, or the laws of any jurisdiction in which the Company or its
successors in interest may be organized.
<PAGE>
Exhibit 4.6
CMC INDUSTRIES, INC.
1990 EQUITY INCENTIVE PLAN
Amended and Restated as of the Date of the 1996 Annual Shareholders Meeting
1. Purpose.
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(a) The purpose of this Second Amended and Restated 1990 Equity Incentive
Plan (the "Plan") is to provide a means by which selected key employees,
directors and consultants of CMC Industries, Inc. (f/k/a/ Cortelco Holdings,
Inc. and f/k/a International Telecommunication Corp.) may be given an
opportunity to benefit from increases in value of the stock of the Company. It
is intended that this purpose will be effected through the granting of (a)
incentive stock options, (b) nonstatutory stock options, (c) stock bonuses, and
(d) purchases of restricted stock. The Plan was originally adopted by the Board
of Directors of the Company on August 30, 1990, and the First Amended and
Restated Plan was adopted by the Board as of June 1, 1992. The Second Amended
and Restated Plan was adopted by the Board as of October 2, 1993. The Second
Amended and Restated Plan was adopted to reflect certain changes in the
Company's name, capitalization and corporate structure and to reflect the public
offering of shares of the Company's common stock. The Plan was amended and
restated a third time effective as of the date of obtaining shareholder approval
of the Plan amendments in 1996.
(b) The work "Affiliate" as used in the Plan means any parent corporation
or subsidiary corporation of the Company, as those terms are defined in Sections
424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended
from time to time (the "Code").
(c) The Company, by means of the Plan, seeks to retain the services of
persons now employed by or serving as consultants or directors to the Company,
to secure and retain the services of persons capable of filling such positions,
and to provide incentives for such persons to exert maximum efforts for the
success of the Company.
(d) The Company intends that rights granted under the Plan ("Stock
Awards") shall, in the discretion of the Board of Directors of the Company (the
"Board") or any committee to which responsibility for administration of the Plan
has been delegated pursuant to subparagraph 2(c), be either (i) stock options
granted pursuant to paragraph 5 hereof, including incentive stock options as
that term is used in Section 422 of the Code ("Incentive Stock Options"), or
options which do not qualify as incentive stock options ("Supplemental Stock
Options") or (ii) stock bonuses or purchases of restricted stock granted
pursuant to paragraph 6 hereof.
<PAGE>
2. Administration.
--------------
(a) The Plan shall be administered by the Board unless and until the Board
delegates administration to a committee, as provided in subparagraph 2(c).
Whether or not the Board has delegated administration, the Board shall have the
final power to determine all questions of policy and expediency that may arise
in the administration of the Plan.
(b) The Board shall have the power, subject to, and within the limitations
of , the express provisions of the Plan:
(i) To determine from time to time which of the persons eligible
under the Plan shall be granted Stock Awards; when and how Stock Awards shall be
granted; whether a Stock Award will be an Incentive Stock Option, a Supplemental
Stock Option, a stock bonus, a purchase of restricted stock, or a combination of
the foregoing; the provisions of each Stock Award granted (which need not be
identical), including the time or times when a person shall be permitted to
purchase or receive stock pursuant to a Stock Award; and the number of shares
with respect to which Stock Awards shall be granted to each such person.
(ii) To construe and interpret the Plan and Stock Awards granted
under it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any Stock Award, in a manner
and to the extent it shall deem necessary or expedient to make the Plan fully
effective.
(iii) To amend the Plan as provided in paragraph 11.
(iv) Generally, to exercise such acts as the Board deems necessary
or expedient to promote the best interests of the Company.
(c) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members (the "Committee"). To the extent that
the Board determines it to be desirable to qualify Options granted hereunder as
"performance-based compensation" within the meaning of Section 162(m) of the
Code, the Plan shall be administered solely by a Committee of two or more
"outside directors" within the meaning of Section 162(m) of the Code. To the
extent desirable to qualify transactions hereunder as exempt under Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended, the
transactions contemplated hereunder shall be structured to satisfy the
requirements for exemption under Rule 16b-3. If administration is delegated to a
Committee, the Committee shall have, in connection with the administration of
the Plan, the powers theretofore possessed by the Board, subject, however, to
such resolutions, not inconsistent with the provisions of the Plan, as may be
adopted from time to time by the Board. The Board may abolish the Committee at
any time and revest in the Board the administration of the Plan.
<PAGE>
3. Shares Subject to the Plan.
--------------------------
(a) Subject to the provisions of paragraph 10 relating to adjustments upon
changes in stock, the stock that may be issued pursuant to Stock Awards granted
under the Plan shall not exceed in the aggregate One Million Two Hundred Twenty-
Four Thousand Four Hundred Seventy- Nine (1,224,479) shares of the Company's
common stock, increased annually on the first day of each of the Company's
fiscal years during the term of the Plan (and subsequent to the 1996 amendment
and restatement of the Plan) in an amount equal to 5% of the Company's common
stock issued and outstanding at the close of business on the last day of the
immediately preceding fiscal year (the "Annual Replenishment"), with only the
initial 1,224,479 shares and subsequent annual increases in an amount equal to
the lesser of (i) 1,224,479 shares, or (ii) the number of shares subject to the
Annual Replenishment to be available for issuance as Incentive Stock Options,
with any amounts in excess of such amount to be available for issuance as
Supplemental Stock Options or as other awards hereunder. If any option or right
granted under the Plan shall for any reason expire or otherwise terminate
without having been exercised in full, the stock not issued under such option or
right shall again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
4. Eligibility.
-----------
(a) Incentive Stock Options may be granted only to employees (including
officers) of the Company or its Affiliates. A director of the Company shall not
be eligible to receive Incentive Stock Options unless such director is also an
employee (including an officer) of the Company or any Affiliate. Stock Awards
other than Incentive Stock Options may be granted only to directors, officers
or employees of or consultants to the Company or its Affiliates.
(b) No person shall be eligible for the grant of an Incentive Stock Option
under the Plan if, at the time of grant, such person owns (or if deemed to own
pursuant to Section 424(d) of the Code) stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the
Company or of any of its Affiliates unless the exercise price of such option
is at least one hundred ten percent (110%) of the fair market value of such
stock at the date of grant and the term of the option does not exceed five (5)
years from the date of grant.
(c) The following limitations shall apply to grants of awards hereunder:
(i) No person shall be granted, in any fiscal year of the Company, options
or other rights to acquire more than 250,000 Shares.
<PAGE>
(ii) However, in connection with his or her initial service, a person may
be granted options or other rights to acquire up to an additional 250,000 Shares
which shall not count against the limit set forth in subsection (i) above.
(iii) The foregoing limitations shall be adjusted proportionately in
connection with any change in the Company's capitalization as described in
Section 10.
(iv) If an Option is canceled in the same fiscal year of the Company in
which it was granted (other than in connection with a transaction described in
Section 10), the canceled Option will be counted against the limits set forth
in subsections (i) and (ii) above. For this purpose, if the exercise price of
an Option is reduced, the transaction will be treated as a cancellation of the
Option and the grant of a new Option.
5. Terms of Stock Options. Each option shall be in such form and shall
----------------------
contain such terms and conditions as the Board or the Committee shall deem
appropriate. All options shall be separately designated Incentive Stock Options
or Supplemental Stock Options at the time of grant, and in such form as issued
pursuant to this paragraph 5. An option designated as a Supplemental Stock
option shall not be treated as an incentive stock option. The provisions of
separate options need not be identical, but each option shall include (through
incorporation of provisions hereof by reference in the option or otherwise) the
substance of each of the following provisions:
(a) The term of any option shall not be greater than ten (10) years from
the date it was granted.
(b) The exercise price of each Incentive Stock Option shall be not less
than one hundred percent (100%) of the fair market value of the stock subject to
the option on the date the option is granted. The exercise price of each
Supplemental Stock Option shall be not less than eighty-five percent (85%) of
the fair market value of the stock subject to the option on the date the option
is granted.
(c) The purchase price of stock acquired pursuant to an option shall be
paid, to the extent permitted by applicable statutes and regulations, either (i)
in cash at the time the option is exercised, or (ii) at the discretion of the
Board or the Committee, either at the time of the grant or exercise of the
option, (A) by delivery to the Company of other common stock of the Company
which, in the case of common stock acquired from the Company, has been owned by
the optionee for more than six months on the date of exercise, (B) according to
a deferred payment or other arrangement (which may include, without limiting the
generality of the foregoing, the use of other common stock of the Company which,
in the case of common stock acquired from the Company, has been owned by the
optionee for more than six months on the date of exercise) with the person to
whom the option is granted or to whom the option is transferred pursuant to
subparagraph 5(d), or (C) in any other form of legal consideration that may be
acceptable to the Board or the Committee.
<PAGE>
(d) Unless otherwise expressly stated in the option, an option shall
not be transferable except by will or by the laws of descent and distribution,
and shall be exercisable during the lifetime of the person to whom the option
is granted only by such person.
(e) The total number of stock subject to an option may, but need not,
be allotted in periodic installments (which may, but need not, be equal). From
time to time during each of such installment periods, the option may become
exercisable ("vest") with respect to some or all of the shares allotted to
that period, and may be exercised with respect to some or all of the shares
allotted to such period and/or any prior period as to which the option was not
fully exercised. During the remainder of the term of the option (if its term
extends beyond the end of the installment periods), the option may be
exercised from time to time with respect to any shares then remaining subject
to the option. The provisions of this subparagraph 5(e) are subject to any
option provisions governing the minimum number of shares as to which an option
may be exercised.
(f) An option shall terminate three (3) months after termination of the
optionee's employment or relationship as a director of or consultant to the
company or an Affiliate, unless (i) such termination is due to such person's
permanent and total disability, within the meaning of Section 422(c)(6) of
the Code, in which case the option may, but need not, provide that it may be
exercised at any time within one (1) year following such termination of
employment or relationship as a director or consultant; or (ii) the optionee
dies while in the employ of or while serving as a director of or consultant
to the Company or an Affiliate, or within not more than three (3) months
after termination of such relationship, in which case the option may, but
need not, provide that it may be exercised at any time within eighteen (18)
months following the death of the optionee by the person or persons to whom
the optionee's rights under such option passes by will or by the laws of
descent and distribution; or (iii) the option by its terms specifies either
(a) that it shall terminate sooner than three (3) months after termination of
the optionee's employment or relationship as a director or consultant, or (b)
that it may be exercised more than three (3) months after termination of the
relationship with the Company or an Affiliate. This subparagraph 5(f) shall
not be construed to extend the term of any option or to permit anyone to
exercise the option or to permit anyone to exercise the option after
expiration of its term, nor shall it be construed to increase the number of
shares as to which any option is exercisable from the amount exercisable on
the date of termination of the optionee's employment or relationship as a
consultant or director.
(g) The option may, but need not, include a provision whereby the
optionee may elect at any time during the term of his or her employment or
relationship as a director or consultant to the Company or any Affiliate to
exercise the option as to any part or all of the shares subject to the option
prior the stated vesting date of the option or of any installment or
installments specified in the option. Any shares so purchased
<PAGE>
from any unvested installment or option may be subject to a repurchase right
in favor of the Company or to any other restriction the Board or the Committee
determines to be appropriate.
6. Terms of Stock Bonuses and Purchase of Restricted Stock. Each stock
-------------------------------------------------------
bonus or restricted stock purchase agreement shall be in such form and shall
contain such terms and conditions as the Board or the committee shall deem
appropriate. The terms and conditions of stock bonus or restricted stock
purchase agreements may change from time to time, and the terms and conditions
of separate agreements need not be identical, but each stock bonus or
restricted stock purchase agreement shall include (through incorporation of
provisions hereof by reference in the agreement or otherwise) the substance of
each of the following provisions as appropriate:
(a) The purchase price under each stock purchase agreement shall be
not less than eighty-five percent (85%) of the fair market value of the stock
on the date the stock purchase agreement is authorized by the Board of the
Committee. Notwithstanding the foregoing, the Board or the Committee may
determine that eligible participants in the Plan may be awarded stock pursuant
to a stock bonus agreement in consideration for past services actually
rendered to the company or for its benefit.
(b) No rights under a stock bonus or restricted stock purchase
agreement shall be assignable by any participant under the Plan, either
voluntarily or by operation of law, except where such assignment is required
by law or expressly authorized by the terms of the applicable stock bonus or
restricted stock purchase agreement.
(c) The purchase price of stock acquired pursuant to a stock
purchase agreement shall be paid either (i) in cash at the time of purchase,
or (ii) at the discretion of the Board or a Committee to which administration
of the Plan has been delegated, (A) according to a deferred payment or other
arrangement (which may include, without limiting the generality of the
foregoing, the use of other common stock of the Company which, in the case of
common stock acquired from the Company, has been owned by the optionee for
more than six months on the date of purchase) with the person to whom the
stock is sold, or (B) in any other form of legal consideration that may be
acceptable to the Board or the Committee in its discretion. Notwithstanding
the foregoing, the Board or the Committee to which administration of the Plan
has been delegated may award stock pursuant to a stock bonus agreement in
consideration for past services actually rendered to the Company or for its
benefit.
(d) Shares of stock sold or awarded under the Plan may, but need
not, be subject to a repurchase option in favor of the Company in accordance
with a vesting schedule to be determined by the Board or the Committee.
(e) In the event a person ceases to be an employee of or ceases to
serve as a director of or consultant to the Company or an Affiliate, the
Company may repurchase or otherwise reacquire any or all of the shares of
stock held by that person which have
<PAGE>
not vested as of the date of termination under the terms of the stock bonus or
restricted stock purchase agreement between the Company and such person.
7. Covenants of the Company.
------------------------
(a) During the terms of any Stock Awards granted under the Plan,
the Company shall keep available at all times the number of shares of stock
required to satisfy such Stock Awards.
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may
be required to issue and sell shares of stock upon grant or exercise of Stock
Awards under the Plan; provided, however, that this undertaking shall not
require the Company to register under the Securities Act of 1933, as amended
(the "Securities Act"), either the Plan, any Stock Award granted under the
Plan or any stock issued or issuable pursuant to any such Stock Awards. If,
after reasonable efforts, the Company is unable to obtain from any such
regulatory commission or agency the authority which counsel for the company
deems necessary for the lawful issuance and sale of stock under the Plan, the
Company shall be relieved from any liability for failure to issue and sell
stock upon exercise of such Stock Awards unless and until such authority is
obtained.
8. Use of Proceeds From Stock. Proceeds from the sale of stock pursuant
--------------------------
to Stock Awards granted under the Plan shall constitute general funds of the
Company.
9. Miscellaneous.
-------------
(a) The Board or the Committee shall have the power to accelerate
the time during which a Stock Award may be exercised or the time during which
any option or stock acquired pursuant to a Stock Award will vest,
notwithstanding the provisions in the Stock Award stating the time during
which it may be exercised or the time during which stock acquired pursuant
thereto will vest.
(b) Neither a recipient of a Stock Award nor any person to whom a
Stock Award is transferred under subparagraphs 5(d) and 6(b) shall be deemed
to be the holder of, or to have any of the rights of a holder with respect to,
any shares subject to such Stock Award unless and until such person has
satisfied all requirements for exercise of the Stock Award pursuant to its
terms and is thereby entitled to receive shares of stock.
(c) Nothing in the Plan or any instrument executed or Stock Award
granted pursuant thereto shall confer upon any recipient any right to continue
in the employ of the Company or any Affiliate to terminate the employment or
consulting relationship ro directorship of any eligible employee or recipient
with or without cause. In the event that a Stock Award recipient is permitted
or otherwise entitled to take a leave of absence will be treated as a
termination of employment for purposes of his or her Stock
<PAGE>
Award, and (ii) suspend or otherwise delay the time or times at which the
shares subject to the Stock Award would otherwise vest.
(d) To the extent provided by the terms of any Stock Award, the
recipient may satisfy any federal, state or local tax withholding obligation
relating to the exercise or receipt of such Stock Award by any of the
following means or by a combination of such means: (1) tendering a cash
payment; (2) authorizing the Company to withhold from the shares of the common
stock otherwise issuable to the participant as a result of the exercise of
receipt of the Stock Award cash or a number of shares having a fair market
value less than or equal to the amount of the withholding tax obligation; or
(3) delivering to the Company owned and unencumbered shares of the common
stock having a fair market value less than or equal to the amount of the
withholding tax obligation.
(e) In connection with each Stock Award made pursuant to the Plan,
the Company may require as a condition precedent to its obligation to issue or
transfer shares to an eligible participant, or to evidence the removal of any
restrictions on transfers or lapse of any repurchase right, that such
participant make arrangements satisfactory to the Company to insure that the
amount of any federal or other withholding tax required to be withheld with
respect to such sale or transfer, or such removal or lapse, is made available
to the Company for timely payment of such tax.
(f) The Company may, as a condition of transferring any stock
pursuant to the Plan, require any person who is to acquire such stock (1) to
give written assurances satisfactory to the Company as to the optionee's
knowledge and experience in financial and business matters and/or to employ a
purchaser representative reasonably satisfactory to the Company who is
knowledgeable and experienced in financial and business matters, and that he or
she is capable of evaluating, alone or together with the purchaser
representative, the merits and risks of acquiring the stock; and (2) to give
written assurances satisfactory to the Company stating that such person is
acquiring the stock for such person's own account and not with any present
intention of selling or otherwise distributing the stock. These requirements,
and any assurances given pursuant to such requirements, shall be inoperative if
(i) the issuance of the shares has been registered under a then currently
effective registration statement under the Securities Act, or (ii) as to any
particular requirement, a determination is made by counsel for the Company that
such requirement need not be met in the circumstances under the then applicable
securities laws.
10. Adjustments Upon Changes in Stock.
---------------------------------
(a) If any change is made in the stock subject to the Plan, or
subject to any Stock Award granted under the Plan (through merger,
consolidation, reorganization, recapitalization, stock dividend, dividend in
property other than cash, stock split, liquidating dividend, combination of
shares, exchange of shares, change in corporate structure or otherwise), the
Plan and outstanding Stock Awards will be appropriately
<PAGE>
adjusted in the class(es) and maximum number of shares subject to the Plan and
the class(es) and number of shares and price per share of stock subject to
outstanding Stock Awards.
(b) In the event of: (1) a merger of consolidation in which the
Company is not the surviving corporation, or (2) a reverse merger in which the
Company is the surviving corporation but the shares of the Company's common
stock outstanding immediately preceding the merger are converted by virtue of
the merger into other property, whether in the form of securities, cash or
otherwise, then to the extent permitted by applicable law: (i) any surviving
corporation shall assume any Stock Awards outstanding under the Plan or shall
substitute similar rights for those outstanding under the Plan, or (ii) such
Stock Awards shall continue in full force and effect. In the event any
surviving corporation refuses to assume or continue such Stock Awards, or to
substitute similar Stock Awards for those outstanding under the Plan, then,
with respect to Stock Awards held by persons then performing services as
employees or as consultants or directors for the Company, as the case may be,
the time during which such Stock Awards shall vest shall be accelerated and the
Stock Awards terminated if not exercised prior to such event. In the event of a
dissolution or liquidation of the company, any options outstanding under the
Plan shall terminate if not exercised prior to such event.
11. Amendment of the Plan.
---------------------
(a) The Board at any time, and from time to time, may amend the Plan.
However, except as provided in paragraph 10 relating to adjustments upon
changes in stock, no amendment shall be effective unless approved by the
shareholders of the Company within twelve (12) months before or after the
adoption of the amendment, where the amendment will increase the number of
shares reserved for issuance under the Plan.
(b) With a view to making available the benefits provided by Section
422 of the Code and/or Rule 16b-3 promulgated under the Exchange Act, if deemed
desirable by the Board, the Board in its discretion shall determine at the time
of each amendment of the Plan whether or not to submit such amendment to the
shareholders of the Company for approval.
(c) It is expressly contemplated that the Board may amend the Plan in
any respect the Board deems necessary or advisable to provide eligible
employees with the maximum benefits provided or to be provided under the
provisions of the Code and the regulations promulgated thereunder relating to
employee incentive stock options and/or to bring the Plan and/or incentive
stock options granted under it into compliance therewith.
(d) Rights and obligations under any Stock Award granted before
amendment of the Plan shall not be altered or impaired by any amendment of the
Plan
<PAGE>
unless (i) the Company requests the consent of the person to whom the Stock
Award was granted and (ii) such person consents in writing.
12. Termination or Suspension of the Plan.
-------------------------------------
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate ten (10) years from the date the
Plan is adopted by the Board or approved by the shareholders of the Company,
whichever is earlier. No Stock Awards may be granted under the Plan while the
Plan is suspended or after it is terminated.
(b) Rights and obligations under any Stock Award granted while the
Plan is in effect shall not be altered or impaired by suspension or termination
of the Plan, except with the consent of the person to whom the Stock Award was
granted.
13. Effective Date of Plan. The Amended and Restate Plan shall become
----------------------
effective as determined by the Board.
<PAGE>
Exhibit 5.1
July 29, 1999
ACT Manufacturing, Inc.
2 Cabot Road
Hudson, MA 01749
Re: Registration Statement on Form S-8 Relating
to the Amended and Restated 1990 Equity
Incentive Plan and Amended and Restated 1995
Stock Plan of ACT Manufacturing, Inc. (the
foregoing are hereinafter referred to
collectively as the "Plans")
Dear Sir or Madam:
Reference is made to the above-captioned Registration Statement on Form S-
8 (the "Registration Statement") filed by ACT Manufacturing, Inc. (the
"Company") on the date hereof with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, relating to an aggregate of 1,932,443
shares of Common Stock, $.01 par value per share, of the Company issuable
pursuant to the Plans (the "Shares").
We have examined, and are familiar with, and have relied as to factual
matters solely upon, copies of the Plans, the Second Restated Articles of
Organization, as amended, and the Amended and Restated By-Laws of the Company,
the minute books and stock records of the Company and originals of such other
documents, certificates and proceedings as we have deemed necessary for the
purpose of rendering this opinion.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the terms of
the related Plans, the terms of any option granted thereunder and the terms of
any related agreements with the Company, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement and any amendments thereto.
Very truly yours,
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
ACT Manufacturing, Inc. on Form S-8 of our report dated February 26, 1999,
appearing in the Annual Report on Form 10-K of ACT Manufacturing, Inc. for the
year ended December 31, 1998.
Boston, Massachusetts
July 29, 1999
