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EXHIBIT 10.2
OPTION AGREEMENT
AGREEMENT made this ___ day of ______ , 1999, by and between Hadco
Corporation, a Massachusetts corporation with a usual place of business in
Salem, New Hampshire (hereinafter the "Company"), and _________________ , of
___________ (hereinafter the "Optionee"). This Agreement and the option granted
hereunder are pursuant to and subject to the terms and conditions of the Hadco
Corporation 1998 Stock Plan, as it may be amended from time to time, (the
"Plan"), a copy of which has been made available to the Optionee. Unless the
context otherwise requires, terms used herein shall have the same meaning as in
the Plan.
SECTION 1. GRANT OF OPTION: The Company grants to the Optionee an
option to purchase, on the terms and conditions hereinafter set forth, _________
(___) shares (the "Option Shares") of the Company's Common Stock, $0.05 par
value, at the exercise price of ____________ and ___/100 ($_________) Dollars
per share. This option is not intended to qualify as an incentive stock option
under Section 422(b) of the Internal Revenue Code of 1986, as amended (the
"Code"). This option is in addition to any other options heretofore or hereafter
granted to the Optionee by the Company or any Related Corporation (as defined in
the Plan), but a duplicate original of this instrument shall not effect the
grant of another option.
SECTION 2. PERIOD OF OPTION:
(a) VESTING. The right to exercise this option and purchase the
Option Shares shall vest in installments as set forth below, unless earlier
terminated in accordance with the provisions of Section 2(c) hereof.
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CUMULATIVE PERCENT
OF OPTION SHARES THAT MAY BE PURCHASED
PERCENTAGE DATE OF VESTING
---------- ---------------
50% Two Year Anniversary of Date of Grant
75% Three Year Anniversary of Date of Grant
100% Four Year Anniversary of Date of Grant
(b) EXPIRATION. The option granted hereunder shall expire on the
ten year anniversary of the date of grant of the option.
(c) TERMINATION. (1) Any vested but unexercised option granted
hereunder shall terminate and become void at midnight on the thirtieth (30th)
day after the Optionee's employment or business relationship, as the case may
be, with the Company or any Related Corporation is terminated for any reason
other than disability, death, or retirement from the Company or any Related
Corporation on or after normal retirement age as described in the Hadco
Corporation Retirement Plan, as it may be amended from time to time, or any
successor Plan, but in no event may the option be exercised later than the
specified expiration date of the option. Any options unvested at the date of
termination of Optionee employment or business relationship shall terminate and
become void on said date of termination of employment or business relationship.
(2) In the event the employment or business relationship
with the Company or any Related Corporation of the Optionee terminates by reason
of his disability or death, the vesting of the option granted hereunder to such
Optionee shall be immediately and automatically accelerated and to the extent
such option is unexercised, it shall vest and be exercisable (by the Optionee's
personal representative, heir, or legatee, in the event of death or disability)
during the period ending one hundred eighty (180) days after the date of
termination of employment or business relationship, but in no event later than
the specified
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expiration date of the option.
For purposes of this Agreement, the Optionee's employment or
business relationship shall always be deemed to have been terminated due to
disability if all of the following requirements are satisfied: (a) the
Optionee's employment or business relationship is terminated by either the
Company or the Optionee; (b) at the time of such termination, the Optionee is
unable to work due to sickness or injury and is disabled, either physically or
mentally; (c) the Optionee is unable to substantially perform any gainful
employment for a period of five (5) consecutive months, including the time of
termination; and (d) the Optionee applies for and is approved for disability
payments by the Social Security Administration of the United States government.
The date of any such disability shall be the first day of such consecutive
period during which the Optionee was unable, due to his physical or mental
condition, to substantially perform any gainful employment.
(3) In the event the employment or business relationship of the
Optionee terminates by reason of his/her retirement from the Company or any
Related Corporation on or after normal retirement age as described in the Hadco
Corporation Retirement Plan, as it may be amended from time to time, or any
successor Plan, any option granted hereunder which had vested as of the date of
retirement may be exercised during the period ending ninety (90) days after the
date of retirement, but in no event later than the specified expiration date of
the option. Any options unvested at the date of retirement shall terminate and
become void on said date of retirement.
(4) For purposes of this Agreement, a transfer of the Employee
between the Company and a Related Corporation, or between Related Corporations,
shall not be deemed a termination of employment.
(5) At the expiration of the respective periods set forth in this
Section
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2(c) or the scheduled expiration date, whichever is the earlier, this option
shall terminate (and shall no longer be exercisable) and the only rights
hereunder shall be those as to which the option was properly exercised.
SECTION 3. LIMITATIONS ON RIGHT TO EXERCISE OPTION: Notwithstanding
anything elsewhere in this Option Agreement to the contrary, except the
provisions of Section 2(c), the right to exercise this option shall be subject
to the following limitations:
(a) This option may not be exercised unless the Optionee, at the
time he exercises this option, is an employee, officer, director, consultant or
advisor, as the case may be, of one or more of the Company or a Related
Corporation and has been such an employee, officer, director, consultant or
advisor, as the case may be, at all times since the date of this Agreement. If
this option shall be assumed or a new option substituted therefor as a result of
a corporate merger, consolidation, acquisition of property or stock, separation,
reorganization, or liquidation, then employment by such assuming or substituting
corporation (hereinafter called the "Successor Corporation") or by a parent
corporation or a subsidiary thereof shall be considered for purposes of this
option to be employment by the Company.
(b) This option may be exercised in part at any time and from time
to time except that this option must be exercised for a minimum of one hundred
(100) shares, or for all of the shares then purchasable hereunder if less than
one hundred (100) shares, and no fractional shares may be purchased under this
option.
SECTION 4. EXERCISE OF OPTION:
(a) METHOD OF EXERCISE OF OPTION. This option may be exercised by
giving written notice to the Company by mail or in person addressed to
Treasurer, Hadco Corporation, 00X Xxxxx Xxxxxxx, Xxxxx, Xxx Xxxxxxxxx 00000,
specifying the number of Option Shares being purchased, accompanied by payment
of the full option price of the shares being purchased. A copy of such notice
shall be provided to Xxxxxxxx & Xxxxxx, LLP, 73
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Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or to such other counsel as the
Company may hereafter designate, and to the Bank of Boston, Shareholder Services
Division, Xxxx Xxxxxx Xxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000, or to such other
Stock Transfer Agent as the Company may hereafter designate. The price for the
Option Shares shall be payable (a) in U.S. Dollars in cash or by check, or (b)
consistent with applicable law, through the delivery of an 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
Optionee's direction at the time of exercise, or (c) by any combination of (a)
and (b) above. The holder of an option shall not have any rights of a
shareholder with respect to the shares covered by the option, except to the
extent that one or more certificates for such shares shall be delivered to him
upon the due exercise of the option.
(b) DELIVERY OF STOCK CERTIFICATES UPON EXERCISE. Upon each
exercise of this option and the satisfaction of all conditions set forth in the
option, the Transfer Agent shall, on behalf of the Company, mail or deliver to
the Optionee, as promptly as practicable, a stock certificate or certificates
representing the Option Shares then being purchased. Such certificate or
certificates shall be registered in the name of the person or persons so
exercising this option (or, if this option shall be exercised by the Optionee
and if the Optionee shall so request in the notice exercising this option, shall
be registered in the name of the Optionee and another person jointly, with right
of survivorship). In the event this option shall be exercised, pursuant to
Section 2(c) hereof, by any person or persons other than the Optionee, such
notice shall be accompanied by appropriate proof of the right of such person to
exercise this option. The Company will pay all stamp taxes due or payable in
connection with the issuance of the certificates. Such certificates may bear
statements relating to the non-registration of such shares under the Securities
Act of 1933, and the rights, privileges and limitations of Common Stock, par
value $0.05, of the Company, as set
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forth in the Restated Articles of Organization, as amended.
(c) RESTRICTIONS ON ISSUANCE OF SHARES. Notwithstanding the
foregoing, the Company shall not be obligated to deliver any such certificate or
certificates upon exercise of this option until the following applicable
conditions shall be satisfied in the judgment of the Company: (i) the shares
with respect to which the option has been exercised are at the time of the issue
of such shares effectively registered under applicable Federal and State
securities acts as now in force or hereafter amended; (ii) Counsel for the
Company shall have given an opinion that such shares are exempt from
registration under applicable Federal and State securities acts as now in force
or hereafter amended; (iii) all conditions of the option have been met or
removed to the satisfaction of the Company; (iv) the Optionee has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations; and until the Company is in compliance with all applicable laws
and regulations, including without limitation all regulations required by any
stock exchange upon which the Company's outstanding Common Stock is then listed.
The Company shall use its best efforts to bring about compliance with
the above conditions within a reasonable time, except that the Company shall be
under no obligation to cause a registration statement or a post-effective
amendment to any registration statement to be prepared at its expense solely for
the purpose of covering the issue of shares in respect of which any option may
be exercised.
(d) AGREEMENT TO PURCHASE FOR INVESTMENT. By acceptance of this
option, the Optionee agrees that a purchase of shares under this option will be
made for investment and will not be made with a view to their distribution, as
that term is used in the Securities Act of 1933, as amended, unless in the
opinion of counsel for the Company such distribution is in compliance with or
exempt from registration and prospectus requirements of the Act. The Optionee
agrees, if necessary, to sign a certification to such effect at the time of
exercising
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the option and agrees that the certificate for the shares so purchased may be
inscribed with a legend to ensure compliance with the Securities Act of 1933 and
with any other applicable securities laws.
SECTION 5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION:
(a) In the event that the outstanding shares of the Common Stock
of the Company are changed into or exchanged for a different number or kind of
shares or other securities of the Company by reason of any reorganization,
recapitalization, reclassification, stock split-up, combination of shares or
dividends payable in capital stock, appropriate adjustments shall be made in the
number and kind of shares as to which outstanding options or portions thereof
then unexercised shall be exercisable, to the end that the proportionate
interest of the Optionee shall be maintained as before the occurrence of such
event. Such adjustment in outstanding options shall be made without change in
the total price applicable to the unexercised portion of such options and with a
corresponding adjustment in the option price per share.
(b) Upon any sale of all or substantially all of the assets of the
Company, or upon any merger, consolidation or tender offer in respect of which
the stockholders holding all of the Company's outstanding voting securities
immediately prior to the consummation thereof hold less than 50% of all of the
Company's outstanding voting securities immediately after such consummation
(each of the foregoing sale, merger, consolidation or tender offer hereinafter
called an "Acquisition"), then: (i) the date upon which all then outstanding
options granted under this Agreement become fully vested and exercisable shall
be automatically accelerated to occur immediately prior to the consummation of
such Acquisition; provided, however, that any such then outstanding options
which are not thereupon exercised in full immediately prior to the consummation
of such Acquisition shall thereupon terminate.
(c) In the event of a recapitalization or reorganization of the
Company (other than
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a transaction described in subsections 5(a) and (b) above) pursuant to which
securities of the Company or of another corporation are issued with respect to
the outstanding shares of Common Stock, the Optionee upon exercising this option
shall be entitled to receive for the purchase price paid upon such exercise the
securities as determined under the terms of the recapitalization or
reorganization he or she would have then received if he or she had exercised
such option prior to such recapitalization or reorganization. In the event of
the proposed dissolution or liquidation of the Company, the option will
terminate immediately prior to the consummation of such proposed action (and
shall thereafter not be exercisable to any extent whatsoever), and the only
rights hereunder shall be those as to which this option was properly exercised
before such dissolution or other event. 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 the option. No adjustments shall be made for dividends paid in cash
or in property other than securities of the Company. No fractional shares shall
be issued and the Optionee shall receive from the Company cash in lieu of such
fractional shares. The Committee or the Successor Board shall determine the
specific adjustments to be made under this Section 5 and, subject to the Plan,
its determination shall be conclusive and shall be binding on all interested
parties.
SECTION 6. EFFECT UPON EMPLOYMENT: None of the Plan, this Option
Agreement or the grant of this option confers any right upon the Optionee with
respect to the continuation of his employment or business relationship with the
Company or any Related Corporation. Nothing contained herein shall be construed
as interfering with or restricting the right of the Company or any Related
Corporation or of the Optionee to terminate his employment or business
relationship at any time.
SECTION 7. NON-TRANSFERABILITY: This option shall not be assignable or
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transferable except by will or by the laws of descent and distribution. Except
as set forth in the preceding sentence, during the lifetime of the Optionee,
this option shall be exercisable only by the Optionee or his or her personal
representative in the case of a disability to the Optionee. This option shall be
null and void and without effect, except as set forth in the preceding sentence,
upon any attempted assignment or transfer, including without limitation, any
purported assignment, whether voluntary or by operation of law, pledge,
hypothecation or other disposition, attachment, trustee process or similar
process, whether legal or equitable, upon such option.
SECTION 8. NOTICES: Any notice permitted or required under this Option
Agreement shall be sufficient if made in writing and mailed, postage prepaid, or
delivered in hand to the parties as follows: (a) as to the Company, to its
Treasurer at the principal office of the Company; and (b) as to the Optionee, at
the address listed for the Optionee on the books of the Company or the books of
the Stock Transfer Agent, or (c) as to either party, at such other address as
shall be designated by the addressee in a written notice to the other complying
as to delivery with the terms of this Section 8.
SECTION 9. GOVERNING LAW: This Agreement shall be governed by, and
construed and enforced in accordance with, the substantive laws of the
Commonwealth of Massachusetts without giving effect to the principles of the
conflicts of laws thereof.
SECTION 10. MODIFICATION OF OUTSTANDING OPTIONS: The Stock Option
Committee of the Company's Board of Directors or the Company's Board of
Directors may accelerate the exercisability of any outstanding option and may
authorize changes to any outstanding option with the consent of the Optionee
when and subject to such conditions as are deemed to be in the best interests of
the Company and in accordance with the purposes of the Hadco Corporation 1998
Stock Plan.
SECTION 11. ENTIRE AGREEMENT: This Agreement contains the full and
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complete understanding and agreement of the parties hereto as to the subject
matter hereof and may not be modified or amended, nor may any provisions hereof
be waived, except by a further written agreement duly signed by each of the
parties. This Agreement supersedes all proposals, written or oral, and all other
communications between the parties relating to the subject matter of this
Agreement.
SECTION 12. BINDING EFFECT: This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, executors,
administrators, representatives, successors and assigns, subject to the
limitations set forth in Section 7 hereof; provided, however, that as respects
the Optionee, this Agreement is deemed to be personal in nature and may not be
assigned or transferred, except as set forth in Section 7 hereof.
SECTION 13. INTERPRETATION AND CONSTRUCTION: Any interpretation or
construction of this Option Agreement by the Company's Board of Directors, or a
duly authorized committee appointed by the Board, shall be final, conclusive and
binding on all interested parties. The section headings are for convenience of
reference only and shall not be deemed germane to the interpretation or
construction of this Option Agreement.
SECTION 14. SURVIVAL: All representations, warranties and
acknowledgments made in this Agreement shall survive the delivery of the
certificate or certificates representing the shares purchased pursuant to the
exercise of the option granted herein.
SECTION 15. WITHHOLDING TAXES: If the Company or any Related
Corporation in its discretion determines that it is obligated to withhold any
tax in connection with the exercise of this option, or in connection with the
transfer of, or the lapse of restrictions on, any Common Stock or other property
acquired pursuant to this option, the Optionee hereby agrees that the Company or
any Related Corporation may withhold from the Optionee's wages or other
remuneration the appropriate amount of tax. At the discretion of the Company or
any Related Corporation, the amount required to be withheld may be withheld
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in cash from such wages or other remuneration or in kind from the Common Stock
or other property otherwise deliverable to the Optionee on exercise of this
option. The Optionee further agrees that, if the Company or any Related
Corporation does not withhold an amount from the Optionee's wages or other
remuneration sufficient to satisfy the withholding obligation of the Company or
any Related Corporation, the Optionee will make reimbursement on demand, in
cash, for the amount underwithheld.
SECTION 16. SEVERABILITY: The invalidity, illegality or
unenforceability of any provision of this Agreement shall in no way affect the
validity, legality or enforceability of any other provision.
SECTION 17. PROVISION OF DOCUMENTATION TO OPTIONEE: By signing this
Agreement the Optionee acknowledges receipt of a copy of this Agreement and a
copy of the Plan.
SECTION 18. LOCK-UP AGREEMENT: The Optionee agrees that in connection
with an underwritten public offering of Common Stock, upon the request of the
Company or the principal underwriter managing such public offering, the Option
Shares may not be sold, offered for sale or otherwise disposed of without the
prior written consent of the Company or such underwriter, as the case may be,
for at least 180 days after the effectiveness of the registration statement
filed in connection with such offering, or such longer period of time as the
Board of Directors may determine if all of the Company's directors and officers
agree to be similarly bound. This Section 18 shall cease to apply to any Option
Share sold to the public pursuant to an effective registration statement or an
exemption from the registration requirements of the Securities Act in a
transaction that complied with the terms of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
HADCO CORPORATION
By: ___________________________________
Title: ________________________________
_______________________________________
Optionee
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