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Exhibit 10.2
FORM OF
OPTION AGREEMENT
AGREEMENT made this day of , 19 , 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 Company's November 29, 1995 Non-Qualified Stock Option Plan
(the "Plan") as Amended and Restated on April 7, 1998 and as it may be amended
from time to time, 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, $0.05 par
value, at the option price of and /100 ($ ) Dollars
per share. This option is not intended to qualify as an incentive stock option
under Section 422 of the Internal Revenue Code.
Section 2. Period of Option. (a) Vesting. The
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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.
Cumulative Percent of
Option Shares That May
Be Purchased 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 unvested or unexercised option granted
hereunder shall terminate and become void at midnight on the thirtieth (30th)
day after the Optionee's employment with the Company is terminated for any
reason other than disability, death, or retirement with the consent of the
Company, but in no event may the option be exercised later than the specified
expiration date of the option.
(2) In the event the employment of the Optionee terminates by
reason of his disability or death, 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
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Optionee's personal representative, heir, or legatee, in the event of death)
during the period ending one hundred eighty (180) days after the date of
termination of employment, but in no event later than the specified expiration
date of the option.
For purposes of this Agreement, the Optionee's employment
shall always be deemed to have been terminated due to disability if (a) the
Optionee's employment 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 totally 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 of the Optionee terminates by
reason of his retirement with the consent of the Company, 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
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the option.
(4) For purposes of this Agreement, a transfer of the Employee
between the parent Company and a subsidiary company, or between subsidiary
companies, shall not be deemed a termination of employment.
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 of one or more of the Company, a parent
corporation or a subsidiary of the Company and has been such an employee 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 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.
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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, 12A Manor Parkway, Salem, New Hampshire 03079,
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 Berlin, Hamilton & Dahmen, 73 Tremont Street, Boston,
Massachusetts 02108, or to such other counsel as the Company may hereafter
designate, and to the Bank of Boston, Shareholder Services Division, Post Office
Box 644, Boston, Massachusetts 02102, 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 (b) 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, or (c) 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 participant's direction at the time of
exercise, or (d) by any combination of (a), (b) and (c) 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
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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. 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 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 one of the following conditions
shall be satisfied: (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; or (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; and until the
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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
issued 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 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
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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 the date upon which all then outstanding options
granted under the Plan 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
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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 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 he or she would have 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 or at
such other time and subject to such other conditions as shall be determined by
the Committee. 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
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shall determine the specific adjustments to be made under this Section 5 and,
subject to the Plan, its determination shall be conclusive.
Section 6. Effect Upon Employment. The grant of this option confers no
right upon the Optionee with respect to the continuation of his employment with
the Company or a subsidiary of the Company. Nothing contained herein shall be
construed as interfering with or restricting the right of the Company or its
subsidiary or of the Optionee to terminate his employment at any time.
Section 7. Non-Transferability. This option shall not be assignable or
transferable except by will or by the laws of descent and distribution. During
the lifetime of the Optionee, this option shall be exercisable only by the
Optionee. This option shall be null and void and without effect upon the
bankruptcy of the Optionee, or 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
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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.
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 Company's November 29,
1995 Non-Qualified Stock Option Plan.
Section 11. Entire Agreement. This Agreement contains the full and
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.
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; provided, however,
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that as respects the Optionee, this Agreement is deemed to be personal in nature
and may not be assigned or transferred.
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 and conclusive.
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 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 may withhold from the
Optionee's wages or other remuneration the appropriate amount of tax. At the
discretion of the Company, the amount required to be withheld may be withheld 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
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of this option. The Optionee further agrees that, if the Company does not
withhold any amount from the Optionee's wages or other remuneration sufficient
to satisfy the withholding obligation of the Company, the Optionee will make
reimbursement on demand, in cash, for the amount withheld.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
Witnesses: Hadco Corporation
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Optionee
Stock.OptionAgr.6.98 (B)