-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DqSmo9SjrU5l5wbiGeRZ/CEDYmUwxL93ZDqhDQVbolbZL7jRENFn7SJ0y+9f5/dI PINkt88M1HERYQQoDDS2ZA== /in/edgar/work/20000623/0000950135-00-003293/0000950135-00-003293.txt : 20000920 0000950135-00-003293.hdr.sgml : 20000920 ACCESSION NUMBER: 0000950135-00-003293 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20000623 EFFECTIVENESS DATE: 20000623 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SANMINA CORP/DE CENTRAL INDEX KEY: 0000897723 STANDARD INDUSTRIAL CLASSIFICATION: [3672 ] IRS NUMBER: 770228183 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-39930 FILM NUMBER: 659480 BUSINESS ADDRESS: STREET 1: 355 EAST TRIMBLE ROAD CITY: SAN JOSE STATE: CA ZIP: 95131 BUSINESS PHONE: 4089545500 MAIL ADDRESS: STREET 1: 355 EAST TRIMBLE ROAD CITY: SAN JOSE STATE: CA ZIP: 95131 FORMER COMPANY: FORMER CONFORMED NAME: SANMINA HOLDINGS INC DATE OF NAME CHANGE: 19930223 S-8 1 0001.txt SANMINA CORPORATION 1 As filed with the Securities and Exchange Commission on June 23, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------- SANMINA CORPORATION (Exact name of Registrant as specified in its charter) -------------- DELAWARE 77-0228183 (State of incorporation) (I.R.S. Employer Identification Number) 2700 NORTH FIRST STREET SAN JOSE, CALIFORNIA 95134 (408) 964-3500 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) -------------- HADCO CORPORATION 1998 STOCK PLAN AS AMENDED AND RESTATED MARCH 3, 1999 (Full title of the plan) HADCO CORPORATION NON-QUALIFIED STOCK OPTION PLAN DATED NOVEMBER 29, 1995, AMENDED AND RESTATED JULY 1, 1998 (Full title of the plan) HADCO CORPORATION NON-QUALIFIED STOCK OPTION PLAN DATED SEPTEMBER 7, 1990, AMENDED AND RESTATED APRIL 7, 1998 (Full title of the plan) -------------- JURE SOLA CHAIRMAN AND CHIEF EXECUTIVE OFFICER SANMINA CORPORATION 2700 NORTH FIRST STREET SAN JOSE, CALIFORNIA 95134 (408) 964-3500 (Name, address, including zip code, and telephone number, including area code, of agent for service) -------------- Copies to: CHRISTOPHER D. MITCHELL, ESQ. WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 PAGE MILL ROAD PALO ALTO, CA 94304-1050 (650) 493-9300 2
==================================================================================================================================== CALCULATION OF REGISTRATION FEE PROPOSED PROPOSED MAXIMUM MAXIMUM AMOUNT OF TITLE OF SECURITIES TO MAXIMUM AMOUNT OFFERING PRICE AGGREGATE REGISTRATION BE REGISTERED TO BE REGISTERED PER SHARE OFFERING PRICE FEE - ------------------------------------------------------------------------------------------------------------------------------------ Hadco Corporation 1998 Stock Plan as Amended and Restated March 3, 1999 Common Stock, $0.01 par value (currently outstanding options) (1) 527,380 shares $34.707143 $18,303,853.00 $ 4,832.22 Hadco Corporation 1998 Stock Plan as Amended and Restated March 3, 1999 Common Stock, $0.01 par value (options available for future grant) (2) 832,174 shares $ 76.3750 $63,557,289.25 $ 16,779.12 TOTAL HADCO CORPORATION 1998 STOCK PLAN AS AMENDED AND RESTATED MARCH 3, 1999 SHARES REGISTERED 1,359,554 SHARES Hadco Corporation Non-Qualified Stock Option Plan dated November 29, 1995, Amended and Restated July 1, 1998 Common Stock, $0.01 par value (currently outstanding options) (3) 1,264,193 shares $30.292857 $38,296,017.95 $ 10,110.15 Hadco Corporation Non-Qualified Stock Option Plan dated November 29, 1995, Amended and Restated July 1, 1998 Common Stock, $0.01 par value (options available for future grant) (4) 70,448 shares $ 76.3750 $ 5,380,466.00 $ 1,420.44 TOTAL HADCO CORPORATION NON-QUALIFIED STOCK OPTION PLAN DATED NOVEMBER 29, 1995, AMENDED AND RESTATED JULY 1, 1998 SHARES REGISTERED 1,334,641 SHARES HADCO CORPORATION Non-Qualified Stock Option Plan dated September 7, 1990, Amended and Restated April 1, 1998 Common Stock, $0.01 par value (currently outstanding options) (5) 397,698 shares $9.6142857 $ 3,823,582.20 $ 1,009.43 TOTAL REGISTRATION FEES $ 34,151.36 ====================================================================================================================================
(1) The computation is based upon the weighted average exercise price per share of $34.707143 as to 527,380 outstanding but unexercised options to purchase Common Stock under the Hadco Corporation 1998 Stock Plan as Amended and Restated March 3, 1999. (2) The Proposed Maximum Offering Price Per Share has been estimated in accordance with Rule 457(h) under the Securities Act of 1933 as to the remaining 832,174 shares of Common Stock authorized for issuance pursuant to the Hadco Corporation 1998 Stock Plan as Amended and Restated March 3, 1999, solely for the purpose of calculating the registration fee. No options have been granted with respect to such shares. The computation is based upon the average of the high and low price of the Common Stock as reported on the Nasdaq National Market on June 16, 2000 because the price at which the options to be granted in the future may be exercised is not currently determinable. (3) The computation is based upon the weighted average exercise price per share of $30.2928571 as to 1,264,193 outstanding but unexercised options to purchase Common Stock under the Hadco Corporation Non-Qualified Stock Option Plan dated November 29, 1995, Amended and Restated July 1, 1998. (4) The Proposed Maximum Offering Price Per Share has been estimated in accordance with Rule 457(h) under the Securities Act of 1933 as to the remaining 70,448 shares of Common Stock authorized for issuance pursuant to the Hadco Corporation Non-Qualified Stock Option Plan dated November 29, 1995, Amended and Restated July 1, 1998, solely for the purpose of calculating the registration fee. No options have been granted with respect to such shares. The computation is based upon the average of the high and low price of the Common Stock as reported on the Nasdaq National Market on June 16, 2000 because the price at which the options to be granted in the future may be exercised is not currently determinable. (5) The computation is based upon the weighted average exercise price per share of $9.6142857 as to 397,698 outstanding but unexercised options to purchase Common Stock under the Hadco Corporation Non-Qualified Stock Option Plan dated September 7, 1990, Amended and Restated April 1, 1998. ================================================================================ -ii- 3 SANMINA CORPORATION REGISTRATION STATEMENT ON FORM S-8 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 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 in Rule 428 (b). 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 personate to Rule 424. PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE There are hereby incorporated by reference in this Registration Statement the following documents and information heretofore filed by Sanmina Corporation (the "Registrant") with the Securities and Exchange Commission (File No. 0-21272): (1) Annual Report on Form 10-K for the fiscal year ended October 2, 1999. (2) Quarterly Report on Form 10-Q for the quarter ended January 1, 2000. (3) Quarterly Report on Form 10-Q/A for the period ended January 1, 2000. (4) Quarterly Report on Form 10-Q for the quarter ended April 1, 2000. (5) The description of Common Stock contained in the Registrant's Registration Statement on Form 8-A as declared effective on February 19, 1993. (6) All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. 4 ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145(a) of the Delaware General Corporation Law (the "DGCL") provides in relevant part that "a corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful." With respect to derivative actions, Section 145(b) of the DGCL provides in relevant part that "[a] corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor . . . [by reason of his service in one of the capacities specified in the preceding sentence] against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper." The Registrant's Restated Certificate of Incorporation provides that to the fullest extent permitted by the DGCL, no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. The Restated Certificate of Incorporation also provides that no amendment or repeal of such provision shall apply to or have any effect on the right to indemnification permitted thereunder with respect to claims arising from acts or omissions occurring in whole or in part before the effective date of such amendment or repeal whether asserted before or after such amendment or repeal. The Registrant's Bylaws provide that the Registrant shall indemnify to the fullest extent authorized by law each of its directors, officers, employees and other agents against expenses actually and reasonably incurred in connection with any proceeding arising by reason of the fact that such person is or was an agent of the corporation. The Registrant has entered into indemnification agreements with its directors and executive officers, in addition to the indemnification provided for in the Registrant's Bylaws, and intends to enter into indemnification agreements with any new directors or executive officers in the future. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. II-2 5 Not applicable ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION ------- ----------- 4.1 Hadco Corporation 1998 Stock Plan as Amended and Restated March 3, 1999. 4.2 Hadco Corporation Non-Qualified Stock Option Plan dated November 29, 1995, Amended and Restated July 1, 1998. 4.3 Hadco Corporation Non-Qualified Stock Option Plan dated September 7, 1990, Amended and Restated April 7, 1998. 5.1 Opinion of counsel as to the legality of securities being registered. 23.1 Consent of Arthur Andersen LLP, Independent Public Accountants. 23.2 Consent of counsel (contained in Exhibit 5.1). 24.1 Power of Attorney (see page II-5).
ITEM 9. UNDERTAKINGS. A. The Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (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 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the DGCL, the Registrant's Restated Certificate of Incorporation, the Registrant's Bylaws or the Registrant's indemnification agreements, the Registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, the Registrant will, unless in the opinion of its counsel the question has already been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification II-3 6 by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-4 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Jose, State of California, on this 23rd day of June, 2000. SANMINA CORPORATION By: /s/ JURE SOLA ---------------------------------------- Jure Sola Chairman and Chief Executive Officer (Principal Executive Officer) POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jure Sola and Randy W. Furr, jointly and severally, as his or her attorneys-in-fact, with full power of substitution in each, for him or her in any and all capacities to sign any amendments to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ JURE SOLA Chairman, Chief Executive Officer and - ------------------------------------ Director (Principal Executive Officer) June 23, 2000 Jure Sola /s/ RANDY FURR President, Chief Operating Officer, Acting June 23, 2000 - ------------------------------------ Chief Financial Officer and Director Randy Furr (Principal Financial and Accounting Officer) /s/ NEIL BONKE Director June 23, 2000 - ------------------------------------ Neil Bonke /s/ JOHN BOLGER Director June 23, 2000 - ------------------------------------ John Bolger /s/ MARIO M. ROSATI Director June 23, 2000 - ------------------------------------ Mario M. Rosati /s/ JOSEPH SCHELL Director June 23, 2000 - ------------------------------------ Joseph Schell /s/ BERNARD VONDERSCHMITT Director June 23, 2000 - ------------------------------------ Bernard Vonderschmitt
II-5 8 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 - -------------------------------------------------------------------------------- EXHIBITS - -------------------------------------------------------------------------------- Registration Statement on Form S-8 SANMINA CORPORATION June 23, 2000 9 INDEX TO EXHIBITS EXHIBIT NUMBER DESCRIPTION ------- ----------- 4.1 Hadco Corporation 1998 Stock Plan as Amended and Restated March 3, 1999. 4.2 Hadco Corporation Non-Qualified Stock Option Plan dated November 29, 1995, Amended and Restated July 1, 1998. 4.3 Hadco Corporation Non-Qualified Stock Option Plan dated September 7, 1990, Amended and Restated April 7, 1998. 5.1 Opinion of counsel as to legality of securities being registered. 23.1 Consent of Arthur Andersen LLP, Independent Public Accountants. 23.2 Consent of counsel (contained in Exhibit 5.1). 24.1 Power of Attorney (see page II-5). EX-4.1 2 0002.txt HADCO CORPORATION 1998 STOCK PLAN 1 Exhibit 4.1 HADCO CORPORATION 1998 STOCK PLAN AS AMENDED AND RESTATED MARCH 3, 1999 1. PURPOSE. The purpose of the Hadco Corporation 1998 Stock Plan (the "Plan") is to encourage valuable employees of Hadco Corporation (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 ("Non-Qualified Options") which do not qualify as "incentive stock options" ("ISOs") under Section 422(b) of the Internal Revenue Code of 1986, as amended (the "Code"); (b) awards of stock in the Company ("Awards"); and (c) opportunities to make direct purchases of stock in the Company ("Purchases"). 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, subject to paragraph 2(D) relating to compliance with Section 162(m) of the Code, by a committee appointed by the Board (the "Committee"). 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 individuals eligible under paragraph 3 to receive Stock Rights) Options, Awards and authorizations to make Purchases shall be granted (each such individual who receives a Stock Right hereunder being referred to as a "Participant"); (ii) determine the time or times at which Options, Awards and authorizations to make Purchases shall be granted; (iii) determine the purchase price of shares subject to each Option or Purchase, which price shall not be less than the minimum price specified in paragraph 6; (iv) determine (subject to paragraph 7) the time or times when each Option or Purchase shall become exercisable and the duration of the exercise period; (v) extend the period during which outstanding Options or 2 Purchases may be exercised or made; (vi) determine whether restrictions including, without limitation, repurchase options or forfeiture provisions are to be imposed on shares subject to Options, Awards and Purchases and the nature of such restrictions, if any; and (vii) interpret the Plan and any Stock Right and prescribe, amend and rescind rules and regulations relating to the Plan. If the Committee determines to issue an 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 Incentive Stock Option. The interpretation and construction by the Committee of any provisions of the Plan or of any Stock Right granted under the Plan shall be final unless otherwise determined by the Board and shall be binding on all interested parties. The Committee may from time to time adopt and amend 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 relating 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 times 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. Stock Rights may be granted to members of the Board. All grants of Stock Rights to members of the Board shall in all respects be made in accordance with the provisions of this Plan applicable to other eligible persons. 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. D. PERFORMANCE-BASED COMPENSATION. The Board, in its discretion, may take such action as may be necessary to ensure that Stock Rights granted under the Plan qualify as "qualified performance-based compensation" within the meaning of Section 162(m) of the Code and applicable regulations promulgated thereunder 2 3 ("Performance-Based Compensation"). Such action may include, in the Board's discretion, each or both of the following: (i) if the Board determines that Stock Rights granted under the Plan generally shall constitute Performance-Based Compensation, the Plan shall be administered, to the extent required for such Stock Rights to constitute Performance-Based Compensation, by a Committee consisting solely of two or more "outside directors" (as defined in applicable regulations promulgated under Section 162(m) of the Code), and (ii) Stock Rights granted under the Plan may be subject to such other terms and conditions as are necessary for compensation recognized in connection with the exercise or disposition of such Stock Rights or the disposition of Common Stock acquired pursuant to such Stock Rights, to constitute Performance-Based Compensation. 3. ELIGIBLE EMPLOYEES AND OTHERS. Options, Awards and authorizations to make Purchases may be granted to any employee, officer or director (whether or not also an employee), consultant or advisor 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 shall neither entitle that individual to, nor disqualify such individual 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 $0.05 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 1,000,000, subject to adjustment as provided in paragraph 12. 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 if any shares of Common Stock issued pursuant to a Stock Right shall be forfeited for any reason, the unpurchased or forfeited shares of Common Stock subject to such Stock Right shall again be available for grants of Stock Rights under the Plan. No Participant may be granted Stock Rights to acquire, in the aggregate, more than 500,000 shares of Common Stock, subject to adjustment as provided in paragraph 12G, under the Plan during any fiscal year of the Company. 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 if any shares of Common Stock issued pursuant to a Stock Right shall be forfeited for any reason, the shares subject to such Stock Right shall be included in the determination of the aggregate number of shares of Common Stock deemed to have been granted to such Participant under the Plan. 3 4 5. GRANTING OF STOCK RIGHTS. Stock Rights may be granted under the Plan at any time on or after September 15, 1998 and prior to September 14, 2008. 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 PRICE. A. PRICE FOR OPTIONS, AWARDS AND PURCHASES. The exercise price per share specified in the agreement relating to each Option granted, and the purchase price per share of stock granted in any Award or authorized as a Purchase, under the Plan may not be less than the fair market value of the Common Stock of the Company on the date of grant. B. DETERMINATION OF FAIR MARKET VALUE. If the Company's Common Stock is actively traded in an established over-the-counter market, the fair market value of such Common Stock shall be the mean between the bid and ask prices quoted in such over-the-counter market at the close of the market on the trading day nearest preceding the date of grant. If such Common Stock is listed on any national exchange, or traded in the Nasdaq National Market, the mean between the high and low sale prices quoted on such exchange or market on the trading day nearest preceding the date of the granting of the Stock Right shall be taken as such fair market value. If the Common Stock is not publicly traded, the fair market value shall be determined from time to time by the Board of Directors. 7. STOCK RIGHT DURATION. Subject to earlier termination as provided in any Individual Stock Right Agreement, each Stock Right shall expire on the date specified by the Committee, but no more than ten years from the date of grant. 8. EXERCISE OF OPTION. Subject to the provisions of paragraphs 9 through 11, 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. 4 5 C. PARTIAL EXERCISE.Each Option or installment may be exercised at any time or from time to time, in whole or in part, for a minimum of one hundred (100) shares 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. 9. TERMINATION OF STOCK RIGHTS. A Stock Right shall be subject to such termination provisions as specified in any Individual Stock Right Agreement but in no event later than the specified expiration date of the Stock Right. 10. TRANSFERABILITY. Any Option or right to make a Purchase granted pursuant to this Plan shall not be assignable or transferable except by will or by the laws of descent and distribution or pursuant to a valid domestic relations order. During the lifetime of the Participant, any Stock Right shall be exercisable only by the Participant to whom the Stock Right is granted; any Stock Right granted hereunder shall be null and void and without effect upon the bankruptcy of the Participant to whom the Stock Right is granted, or upon any attempted assignment or transfer, including without limitation, any purported assignment, whether voluntary or by operation of law, sale, pledge, hypothecation or other disposition, attachment, trustee process or similar process, whether legal or equitable, upon such Stock Right. 11. TERMS AND CONDITIONS OF STOCK RIGHTS. Stock Rights shall be evidenced by written 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 this Plan 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 Stock Rights or grant of Awards. 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. 12. ADJUSTMENTS. Upon the occurrence of any of the following events, a Participant's rights with respect to Stock Rights granted to such Participant hereunder shall be adjusted as hereinafter provided, unless otherwise specifically provided in the Individual Stock Right Agreement between the Participant and the Company. 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 5 6 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 Stock Rights 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. B. CONSOLIDATIONS OR MERGERS. 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 Stock Rights granted under this 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 outstanding Stock Rights which are not thereupon exercised in full immediately prior to the consummation of such Acquisition shall thereupon terminate, and (ii) the date(s) upon which all then outstanding repurchase, forfeiture or other similar restrictions, if any, (but not any securities law restrictions which may apply to such stock or its disposition) on shares of stock subject to Stock Rights or granted pursuant to an Award shall lapse shall be automatically accelerated to occur immediately prior to the consummation of such Acquisition. 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, a Participant upon exercising a Stock Right 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 Stock Right prior to such recapitalization or reorganization. D. DISSOLUTION OR LIQUIDATION. In the event of the proposed dissolution or liquidation of the Company, each Stock Right 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. E. 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 Stock Rights. No 6 7 adjustments shall be made for dividends paid in cash or in property other than securities of the Company. F. FRACTIONAL SHARES. No fractional shares shall be issued under the Plan and the Participant shall receive from the Company cash in lieu of such fractional shares. G. ADJUSTMENTS. Upon the happening of any of the events described in subparagraphs A 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 as well as the per-Participant grant limit set forth in paragraph 4 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 12 and, subject to paragraph 2, its determination shall be conclusive and shall be binding on all interested parties. 13. EXERCISE OF STOCK RIGHT. Subject to the terms and conditions of this Plan and any Individual Stock Right Agreement, a Stock Right granted hereunder shall be exercisable in whole or in part by giving written notice to the Company by mail or in person addressed to Treasurer, Hadco Corporation, 12A Manor Parkway, Salem, New Hampshire 03079, stating the number of shares with respect to which the Stock Right is being exercised, accompanied by payment in full for such shares, which payment may be made (a) in United States dollars in cash or by check, or (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 Stock Right, or (c) at the discretion of the Committee and 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 Stock Right 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) at the discretion of the Committee, by any combination of (a), (b) and (c) above. There shall be no such exercise at any one time as to fewer than one hundred (100) shares or all of the shares then purchasable by the person or persons exercising the Stock Right, if fewer than one hundred (100) shares. A copy of such notice shall be provided to Hamilton & Dahmen, LLP, 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 Transfer Agent shall, on behalf of the Company, prepare a certificate or certificates representing such shares acquired pursuant to exercise of the Stock Right, shall register the Participant as the owner of such shares on the books of the Company and shall cause the fully executed certificate(s) representing such shares 7 8 to be delivered to the Participant as soon as practicable after payment of the purchase price in full. The holder of a Stock Right shall not have any rights as a shareholder with respect to the shares covered by the Stock Right, except to the extent that one or more certificates for such shares shall be issued upon the due exercise of the Stock Right or the grant of an Award. 14. RESTRICTIONS ON ISSUANCE OF SHARES. Notwithstanding the provisions of Section 13 of the Plan, the Company shall have no obligation to issue or deliver any certificate or certificates upon exercise of a Stock Right or the grant of an Award or to remove restrictions from shares previously delivered under the Plan until the following applicable conditions shall be satisfied in the judgment of the Company: (i) the shares with respect to which the Stock Right has been exercised or the grant of an Award has been made 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 Federal and State securities acts as now in force or hereafter amended; (iii) all conditions of the Stock Right have been met or removed to the satisfaction of the Company; or (iv) the Participant 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 has complied 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 may place appropriate legends on shares of stock subject to Stock Rights in accordance with applicable securities law rules and regulations and to evidence any restrictions placed on such stock. 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 Stock Right may be exercised or Award made. 8 9 Any stock purchased or granted under the Plan prior to shareholder approval of the Plan, in addition to any restrictions set forth in the Individual Stock Right Agreement, may not be sold, assigned, mortgaged, transferred, pledged, hypothecated or encumbered in any way and will be held in escrow by the Company until shareholder approval for the Plan is obtained, and if such shareholder approval is not obtained by June 12, 1999, the purchase or grant of such stock, any Stock Right granted hereunder and this Plan will be automatically rescinded and the purchase price returned to purchasing Participants without interest. 15. REPRESENTATIONS OF PARTICIPANT. The Company may require the Participant to deliver such written warranties and representations upon exercise of the Stock Right or the grant of an Award that the Company deems reasonable or necessary, including without limitation a representation that a purchase of shares under the Stock Right is made for investment and not with a view to their distribution (as that term is used in the Securities Act of 1933). 16. MODIFICATION OF OUTSTANDING STOCK RIGHTS. The Committee or the Board of Directors may accelerate the exercisability of any outstanding Stock Right, may accelerate the lapse of, or terminate, some or all restrictions on Common Stock subject to a Stock Right, and may authorize changes to any outstanding Stock Right with the consent of the Participant (including, without limitation, to extend the term of a Stock Right upon termination of employment to a date not later than ten (10) years from the original grant date) 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 Plan. 17. APPROVAL OF STOCKHOLDERS. The Plan shall be subject to approval by the affirmative vote of stockholders holding at least a majority of the voting stock of the Company voting in person or by proxy at or by June 12, 1999, and the Plan shall take effect as of the date of adoption immediately upon such approval. 18. TERM, TERMINATION AND AMENDMENT OF PLAN. The Plan shall expire at the end of the business day on September 14, 2008 (except as to Stock Rights outstanding on that date). The Board may at any time terminate the Plan or make such modification or amendment thereof as it deems advisable; provided, however, that except as provided in Section 12 the Board may not, without approval of the stockholders of the Company obtained in the manner stated in Section 17 (i) increase the maximum number of shares for which Stock Rights may be granted under the Plan, or (ii) extend the expiration date of the Plan. Termination or any modification or amendment of the Plan shall not, without consent of a Participant, alter or impair his or her rights under a Stock Right previously granted to him or her. 9 10 19. APPLICATION OF FUNDS. The proceeds received by the Company from the sale of shares pursuant to Stock Rights authorized under the Plan shall be used for general corporate purposes. 20. WITHHOLDING OF ADDITIONAL INCOME TAXES. Upon any exercise of any Stock Right or the vesting or transfer of restricted stock or securities acquired on the exercise of a Stock Right hereunder, or the making of a distribution or other payment with respect to such stock or securities, or the purchase or award of any stock, the Company may withhold taxes in respect of amounts that constitute compensation includable in gross income. The Committee in its discretion may condition (i) the exercise or grant of a Stock Right, or (ii) the vesting or transferability of restricted stock or securities acquired by the grant of or the exercise of a Stock Right, on the Participant's making satisfactory arrangement for such withholding. Such arrangement may include payment by the Participant in cash or by check of the amount of the withholding taxes or, at the discretion of the Committee, by the Participant's delivery of previously held shares of Common Stock or the withholding of shares from the shares of Common Stock otherwise deliverable upon exercise or grant of a Stock Right, with such shares in each case having an aggregate fair market value (as determined by the Board) equal to the amount of such withholding taxes. The Company may, to the extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise due to the Participant. 21. NO RIGHT TO EMPLOYMENT OR OTHER STATUS. Nothing in the Plan nor any grant of any Stock Right shall be deemed or construed to give any Participant the right to be retained in employment or the service of the Company or any Related Corporation for any period of time. The Company expressly reserves the right at any time to dismiss or otherwise terminate its relationship with a Participant free from any liability or claim under the Plan or any Stock Right. 22. 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. 23. GOVERNING LAW. The validity and construction of the Plan and the instruments evidencing Stock Rights 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 then be organized. 10 11 24. REPRICING. Without the prior approval of the Company's stockholders obtained in the manner stated in section 17, Options issued under the plan will not be repriced, replaced or regranted through cancellation or by lowering the Option exercise price of a previously granted Option. EX-4.2 3 0003.txt HADCO CORP.NON-QUALIFIED STOCK PLAN DATED 11/29/95 1 Exhibit 4.2 Final Plan last revised 1/5/99 HADCO CORPORATION NON-QUALIFIED STOCK OPTION PLAN NOVEMBER 29, 1995 AS AMENDED AND RESTATED JULY 1, 1998 1. PURPOSE. This Non-Qualified Stock Option Plan (hereinafter, the "Plan") is intended to promote the interests of Hadco Corporation (hereinafter, the "Company") by providing an inducement for highly qualified personnel to enter the employ of the Company and an incentive for valued employees to remain with the Company and to use their best efforts to promote the Company's continued success, by means of the offer of an opportunity to acquire or increase their proprietary interest in the Company through the granting of options to purchase the Company's stock pursuant to the terms of this Plan. As used herein, the term "Company" includes any present or future subsidiary and any successor corporation. 2. RIGHTS TO BE GRANTED. Under this Plan, options may be granted that give an optionee the right for a specified time period to purchase a specified number of shares of common stock, par value $0.05, of the Company. The option price shall be determined in each instance by the Stock Option Committee, in accordance with the terms of this Plan, including, without limitation, under Section 7 hereof. 2 3. AVAILABLE SHARES. The total number of shares of common stock, par value $0.05, of the Company, for which options may be granted shall be One Million (1,000,000) shares, subject to adjustment in accordance with Paragraph 11 of this Plan. Shares subject to the Plan may be either authorized but unissued shares or shares that were once issued and subsequently reacquired by the Company. If any options granted under this Plan are surrendered before exercise or lapse without exercise, in whole or in part, the shares reserved therefor shall revert to the option pool and shall continue to be available under the Plan. No one employee of the Company may be granted options to acquire, in the aggregate, more than 300,000 shares of Common Stock under this Plan. If any option granted under this 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 this Plan. 4. ADMINISTRATION. The Plan shall be administered by the Stock Option Committee (hereinafter, the "Committee"), which shall consist of two or more members appointed by the Board of Directors of the Company; provided, however that the Plan shall be administered: (I) to the extent required by applicable regulations under Section 162(m) of the Internal Revenue Code of 1986, by two or more "outside directors" (as defined in applicable regulations thereunder) and (ii) to the extent 3 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. The Board may at any time and from time to time thereafter appoint additional or substitute members of the Committee and may fill vacancies on the Committee, however caused. No person shall be a member of the Committee who is not a Director of the Company. In the event no Committee is appointed, the Board shall act as the Committee and all references in this Plan to the Committee shall mean the Board. If a Committee is appointed but under applicable law does not have authority to undertake any duty stated herein, the Board shall act as and for the Committee for the purpose of undertaking that particular duty. The Committee shall choose one of its members as Chair and shall hold meetings at such times and places as it deems advisable. A majority of the members of the Committee shall constitute a quorum, and any action may be taken by a majority of those present and voting at any meeting. Subject to the provisions of this Plan, the Committee shall have authority in its discretion to determine the employees of the Company to whom options shall be granted, the number of shares to be covered by each option, the time or times at which options shall be granted, the purchase price of the stock covered by each option, the time or times during the term of option (defined in Section 9) at which each such option shall become exercisable, the form of agreement to be used in granting 4 the options, and shall further have the authority to interpret this Plan, and to prescribe, amend and rescind rules and regulations relating to it. All questions of interpretation and application of this Plan and of any options issued under it shall be determined by the Committee, and such determination shall be final and binding upon all persons. No member of the Board or of the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any option granted under it. 5. GRANT OF OPTIONS. The Committee may from time to time grant options to eligible persons pursuant to the provisions of this Plan. Each option so granted shall be evidenced by an Option Agreement, in such form as may be approved by the Committee, which Agreement shall be duly executed and delivered on behalf of the Company and by the optionee to whom such option is granted. The Agreement may contain such terms, provisions, and conditions not inconsistent with the Plan as may be determined by the Committee, including restrictions to be imposed on the shares acquired by a participant upon the exercise of an option granted to him. The grant of an option under this Plan shall be effective as of the date of the vote of the Stock Option Committee of the Board of Directors of the Company to issue such an option. The granting of options under this Plan shall be entirely discretionary and nothing in this Plan shall be deemed to give any employee any right to participate in this Plan or to receive options. 5 The grant of an option under this Plan 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 in this Plan or any option agreement issued hereunder shall be construed as interfering with or restricting the right of the Company or its subsidiary or the optionee to terminate his employment at any time. 6. ELIGIBILITY AND LIMITATIONS. Options may be granted pursuant to this Plan only to employees of the Company or of any present or future subsidiary corporation; provided, however, that a person shall be considered to be an employee within the meaning of this Plan if the person has executed a written employment agreement with the Company which provides for the start of active employment within one (1) month of the date of grant of an option. In determining the eligibility of an individual to be granted an option, as well as in determining- the number of shares to be optioned to any individual, the Committee shall consider the responsibilities of the person being considered, the nature and value to the Company or its subsidiaries of his service and accomplishments, his present and potential contribution to the success of the Company or its subsidiaries, and such other factors as the Committee may deem relevant. No option may be granted under this Plan after December 31, 2005. 7. OPTION PRICE. The purchase price of the stock covered by an option granted pursuant to this Plan shall be the 6 fair market value of the underlying shares of Common Stock on the date the option is granted. If the Company's common stock is actively traded in the established over-the-counter market, the fair market value of such common stock shall be the mean between the bid and asked prices quoted in such over-the-counter market at the close on the date nearest preceding the date of grant. If such common stock is listed on any national exchange, or traded in the Nasdaq National Market, the mean between the high and low sale prices quoted on such exchange or market on the trading day nearest preceding the date of the granting of the option may be taken as such fair market value. If the stock is not publicly traded, the fair market value shall be determined from time to time by the Board of Directors. The full purchase price per share (determined after any appropriate adjustment has been made under the terms of Section 11 of this Plan) shall be paid as provided in Section 8 below. 8. EXERCISE OF OPTION. Subject to the terms and conditions of this Plan and the Option Agreement, an option granted hereunder shall be exercisable in whole or in part by giving written notice to the Company by mail or in person addressed to Treasurer, Hadco Corporation, 12A Manor Parkway, Salem, New Hampshire 03079, stating the number of shares with respect to which the option is being exercised, accompanied by payment in full for such shares, which payment may be made (a) in United States dollars in cash or by check, or (b) at the 7 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, or (c) at the discretion of the Committee and 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) at the discretion of the Committee, by any combination of (a), (b) and (c) above. There shall be no such exercise at any one time as to fewer than one hundred (100) shares or all of the shares then purchasable by the person or persons exercising the option, if fewer than one hundred (100) shares. A copy of such notice shall be provided to Hamilton & Dahmen, LLP, 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 Transfer Agent shall, on behalf of the Company, prepare a certificate or certificates representing such shares acquired pursuant to exercise of the option, shall register the optionee as the owner of such shares on the books of the Company and shall cause the fully executed certificate(s) representing such shares to be delivered to the optionee as soon as practicable after payment of the option price in full. The holder of an option 8 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. 9. TERM AND TRANSFERABILITY OF OPTIONS. (a) Each option shall become exercisable as provided in each option granted by the Company to the participant and as provided in each respective Option Agreement, but in no event shall the option be exercisable during a period longer than the period beginning with the date of grant and ending not later than ten (10) years from such date of grant. (b) Any option granted pursuant to this Plan shall not be assignable or transferable except by will or by the laws of descent and distribution. During the lifetime of the optionee, any option shall be exercisable only by the optionee to whom the option is granted. Any option granted hereunder shall be null and void and without effect upon the bankruptcy of the optionee to whom the option is granted, 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. 10. TERMINATION OF OPTION RIGHTS. (a) In the event an optionee ceases to be an employee of the Company for any reason other than death, retirement from the Company on or after normal retirement age as described in the Hadco Corporation Retirement Plan, as it may be amended from time 9 to time, or any successor Plan (or retirement on or after such other earlier age as may be permitted in the individual option agreement between the optionee and the Company) or disability, any unvested or unexercised options granted to such optionee shall terminate and become void at midnight on the thirtieth (30) day after the date of termination, but in no event later than the specified expiration date of the option. (b) In the event that an optionee ceases to be an employee of the Company by reason of his or her disability or death, any option granted to such optionee shall be immediately and automatically accelerated and all previously unexercised options (to the extent that they have not previously been forfeited in accordance with the terms of the individual option agreement) shall vest and be exercisable (by the 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. (c) In the event an optionee ceases to be an employee of the Company by reason of his or her retirement 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 (or retirement on or after such other earlier age as may be permitted in the individual option agreement between the optionee and the Company), any option granted to such employee which had vested as of the date of retirement may be exercised during the period ending ninety (90) days after the date of retirement; 10 provided, however, that an individual option agreement may provide different rights to a retiring optionee than those contained in this section 10(c); and provided further that in no event may any option be exercisable later than the specified expiration date of the option. (d) For purposes of the Plan, a transfer of an employee between the parent Company and a subsidiary company, or between subsidiary companies, shall not be deemed a termination of employment. 11. 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 options may be granted under the Plan and as to which outstanding options or portions thereof then unexercised shall be exercisable, to the end that the proportionate interest of the option holder 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 11 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 this 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 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 11(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, an optionee upon exercising an option shall be entitled to receive for the purchase price paid upon such exercise 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, 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. Except as expressly provided herein, no issuance by the Company of shares of stock of 12 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. No fractional shares shall be issued under the Plan and the optionee shall receive from the Company cash in lieu of such fractional shares. Upon the happening of any of the events described in this Section 11, the class and aggregate numbers of shares set forth in Section 3 hereof that are subject to options which previously have been or subsequently may be granted under this Plan, as well as the 300,000 figure in Section 3, 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 Section 11 and, subject to Section 2, its determination shall be conclusive. 12. RESTRICTIONS ON ISSUANCE OF SHARES. Notwithstanding the provisions of Section 8 of the Plan, the Company shall have no obligation to deliver any certificate or certificates upon exercise of an 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 13 (ii) Counsel for the Company shall have given an opinion that such shares are exempt from registration under Federal and State securities acts as now in force or hereafter amended; and until the Company has complied 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. Any stock purchased under the Plan prior to shareholder approval of the Plan may not be sold, assigned, transferred, pledged or encumbered in any way and will be held in escrow by the Company until shareholder approval for the Plan is obtained, and if such approval is not obtained by the earlier of (i) the next annual meeting of stockholders of the Company, or (ii) June 30, 1996, the purchase of such stock and any option granted hereunder and this Plan will be automatically- rescinded and the purchase price returned to purchasing optionees without interest. 13. REPRESENTATIONS OF OPTIONEE. The Company may require the optionee to deliver such written warranties and 14 representations upon exercise of the option that the Company deems reasonable or necessary, including without limitation a representation that a purchase of shares under the option is made for investment and not with a view to their distribution (as that term is used in the Securities Act of 1933). 14. MODIFICATION OF OUTSTANDING OPTIONS. The Committee or the Board of Directors may accelerate the exercisability of any outstanding option and may authorize changes to any outstanding option with the consent of the participant (including, without limitation, to extend the term of an option upon termination of employment to a date not later than ten (10) years from the original grant date) 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 Plan. 15. APPROVAL OF STOCKHOLDERS. The Plan shall be subject to approval by the affirmative vote of stockholders holding at least a majority of the voting stock of the Company voting in person or by proxy at or by the earlier of (i) the next annual meeting of stockholders of the Company, or (ii) June 30, 1996, and the Plan shall take effect as of the date of adoption immediately upon such approval. 16. TERMINATION AND AMENDMENT OF PLAN. The Plan shall expire at the end of the business day on December 31, 2005 (except as to options outstanding on that date). The Board may at any time terminate the Plan or make such modification or amendment thereof as it deems advisable; provided, however, that except as provided in Section 11 the Board may not, without 15 approval of the stockholders of the Company obtained in the manner stated in Section 15 (without regard to clauses (i) and (ii) therein), increase the maximum number of shares for which options may be granted under the Plan. To the extent required by Rule 16b-3, any other amendments to this Plan shall be approved by the stockholders of the Company in the manner stated in Section 15 (without regard to clauses (i) and (ii) therein). Termination or any modification or amendment of the Plan shall not, without consent of a participant, affect his rights under an option previously granted to him. 17. WITHHOLDING OF ADDITIONAL INCOME TAXES. Upon any exercise of any option or 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 includable in gross income. The Committee in its discretion may condition (i) the exercise of an option, or (ii) the vesting or transferability of restricted stock or securities acquired by exercising an option, on the optionee's making satisfactory arrangement for such withholding. Such arrangement may include payment by the optionee in cash or by check of the amount of the withholding taxes or, at the discretion of the Committee, by the optionee's delivery of previously held shares of Common Stock or the withholding of shares from the shares of Common Stock otherwise deliverable upon exercise of an option, with such 16 shares in each case having an aggregate fair market value equal to the amount of such withholding taxes. EX-4.3 4 0004.txt HADCO CORP. NON-QUALIFIED STOCK PLAN DATED 9/7/90 1 Exhibit 4.3 HADCO CORPORATION NON-QUALIFIED STOCK OPTION PLAN SEPTEMBER 7, 1990 AS AMENDED AND RESTATED APRIL 7, 1998 1. PURPOSE. This Non-Qualified Stock Option Plan (hereinafter, the "Plan") is intended to promote the interests of Hadco Corporation (hereinafter, the "Company") by providing an inducement for highly qualified personnel to enter the employ of the Company and an incentive for valued employees to remain with the Company and to use their best efforts to promote the Company's continued success, by means of the offer of an opportunity to acquire or increase their proprietary interest in the Company through the granting of options to purchase the Company's stock pursuant to the terms of this Plan. As used herein, the term "Company" includes any present or future subsidiary and any successor corporation. 2. RIGHTS TO BE GRANTED. Under this Plan, options may be granted that give an optionee the right for a specified time period to purchase a specified number of shares of common stock, par value $0.05, of the Company. The option price shall be determined in each instance by the Stock Option Committee, in accordance with the terms of this Plan. 3. AVAILABLE SHARES. The total number of shares of common stock, par value $0.05, of the Company, for which options may be granted shall be One Million (1,000,000) shares, subject to adjustment in accordance with Paragraph 11 of this 2 Plan. Shares subject to the Plan may be either authorized but unissued shares or shares that were once issued and subsequently reacquired by the Company. If any options granted under this Plan are surrendered before exercise or lapse without exercise, in whole or in part, the shares reserved therefor shall revert to the option pool and shall continue to be available under the Plan. 4. ADMINISTRATION. The Plan shall be administered by the Stock Option Committee (hereinafter, the "Committee"), which shall consist of two or more members appointed by the Board of Directors of the Company. The Board may at any time and from time to time thereafter appoint additional or substitute members of the Committee and may fill vacancies on the Committee, however caused. No member of the Committee shall be eligible to participate in the Plan, and no person shall be appointed to the Committee who has within one (1) year of his appointment been eligible to selection as a person to whom stock may be allocated or to whom stock options or stock appreciation rights may be granted pursuant to this Plan or any other plan of the Company or any of its affiliates entitling the participants therein to acquire stock, stock options or stock appreciation rights of the Company or any of its affiliates. No person shall be a member of the Committee who is not a Director of the Company. In the event no Committee is appointed, the Board shall act as the Committee and all references in this Plan to the Committee shall mean the Board. If a Committee is appointed but under applicable law does not have authority to undertake any 3 duty stated herein, the Board shall act as and for the Committee for the purpose of undertaking that particular duty. The Committee shall choose one of its members as Chair and shall hold meetings at such times and places as it deems advisable. A majority of the members of the Committee shall constitute a quorum, and any action may be taken by a majority of those present and voting at any meeting. Subject to the provisions of this Plan, the Committee shall have authority in its discretion to determine the employees of the Company to whom options shall be granted, the number of shares to be covered by each option, the time or times at which options shall be granted, the purchase price of the stock covered by each option, the time or times during the term of option (defined in Section 9) at which each such option shall become exercisable, the form of agreement to be used in granting the options, and shall further have the authority to interpret this Plan, and to prescribe, amend and rescind rules and regulations relating to it. All questions of interpretation and application of this Plan and of any options issued under it shall be determined by the Committee, and such determination shall be final and binding upon all persons. No member of the Board or of the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any option granted under it. 5. GRANT OF OPTIONS. The Committee may from time to time grant options to eligible persons pursuant to the provi- sions of this Plan. Each option so granted shall be evidenced by 4 an Option Agreement, in such form as may be approved by the Committee, which Agreement shall be duly executed and delivered on behalf of the Company and by the optionee to whom such option is granted. The Agreement may contain such terms, provisions, and conditions not inconsistent with the Plan as may be determined by the Committee, including restrictions to be imposed on the shares acquired by a participant upon the exercise of an option granted to him. The grant of an option under this Plan shall be effective as of the date of the vote of the Stock Option Com- mittee of the Board of Directors of the Company to issue such an option. The granting of options under this Plan shall be entirely discretionary and nothing in this Plan shall be deemed to give any employee any right to participate in this Plan or to receive options. The grant of an option under this Plan 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 in this Plan or any option agreement issued hereunder shall be construed as interfering with or restricting the right of the Company or its subsidiary or the optionee to terminate his employment at any time. 6. ELIGIBILITY AND LIMITATIONS. Options may be granted pursuant to this Plan only to employees of the Company or of any present or future subsidiary corporation; provided, however, that a person shall be considered to be an employee within the meaning of this Plan if the person has executed a written employment 5 agreement with the Company which provides for the start of active employment within one (1) month of the date of grant of an option. In determining the eligibility of an individual to be granted an option, as well as in determining- the number of shares to be optioned to any individual, the Committee shall consider the responsibilities of the person being considered, the nature and value to the Company or its subsidiaries of his service and accomplishments, his present and potential contribution to the success of the Company or its subsidiaries, and such other factors as the Committee may deem relevant. No option may be granted under this Plan after December 31, 2000. 7. OPTION PRICE. The purchase price of the stock covered by an option granted pursuant to this Plan shall be the fair market value of the underlying shares of Common Stock on the date the option is granted. If the Company's common stock is actively traded in the established over-the-counter market, the fair market value of such common stock shall be the mean between the bid and asked prices quoted in such over-the-counter market at the close on the date nearest preceding the date of grant. If such common stock is listed on any national exchange, or traded in the Nasdaq National Market, the mean between the high and low sale prices quoted on such exchange or market on the trading day nearest preceding the date of the granting of the option may be taken as such fair market value. If the stock is not publicly traded, the fair market value shall be determined from time to time by the 6 Board of Directors. The full purchase price per share (determined after any appropriate adjustment has been made under the terms of Section 11 of this Plan) shall be paid as provided in Section 8 below. 8. EXERCISE OF OPTION. Subject to the terms and conditions of this Plan and the Option Agreement, an option granted hereunder shall be exercisable in whole or in part by giving written notice to the Company by mail or in person addressed to Treasurer, Hadco Corporation, 12A Manor Parkway, Salem, New Hampshire 03079, stating the number of shares with respect to which the option is being exercised, accompanied by payment in full for such shares, which payment may be made in whole or in part in shares of the common stock of the Company already owned by the person or persons exercising the option, valued at fair market value; provided, however, that there shall be no such exercise at any one time as to fewer than one hundred (100) shares or all of the shares then purchasable by the person or persons exercising the option, if fewer than one hundred (100) shares. A copy of such notice shall be provided to Hamilton & Dahmen, LLP, 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 Transfer Agent shall, on behalf of the Company, prepare a certificate or certificates representing such shares acquired 7 pursuant to exercise of the option, shall register the optionee as the owner of such shares on the books of the Company and shall cause the fully executed certificate(s) representing such shares to be delivered to the optionee as soon as practicable after payment of the option price in full. 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. Notwithstanding the foregoing provisions, an option granted hereunder may, to the extent in compliance with applicable law, be exercised by payment in accordance with a cashless exercise program under which, if so instructed by the holder of the option, shares of Common Stock may be issued directly to the broker or dealer of the holder of the option upon receipt by the Company of the purchase price of the Common Stock covered by such option in cash or check from the broker or dealer, and except to the extent modified by this sentence, the exercise will comply with, and be subject to, all the other provisions of this Section 8. 9. TERM AND TRANSFERABILITY OF OPTIONS. (a) Each option shall become exercisable as provided in each option granted by the Company to the participant and as provided in each respective Option Agreement, but in no event shall the option be exercisable during a period longer than the period beginning with the date of grant and ending not later than ten (10) years from such date of grant. 8 (b) Any option granted pursuant to this Plan shall not be assignable or transferable except by will or by the laws of descent and distribution. During the lifetime of the optionee, any option shall be exercisable only by the optionee to whom the option is granted. Any option granted hereunder shall be null and void and without effect upon the bankruptcy of the optionee to whom the option is granted, 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. 10. TERMINATION OF OPTION RIGHTS. (a) In the event an optionee ceases to be an employee of the Company for any reason other than death, retirement with the consent of the Company or disability, any unvested or unexercised options granted to such optionee shall terminate and become void at midnight on the thirtieth day after the date of termination, but in no event later than the specified expiration date of the option. (b) In the event that an optionee ceases to be an employee of the Company by reason of his or her disability or death, any option granted to such optionee shall be immediately and automatically accelerated and all previously unexercised options (to the extent that they have not previously been forfeited in accordance with the terms of the individual option agreement) shall vest and be exercisable (by the optionee's personal representative, heir or legatee, in the event of death) 9 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. (c) In the event an optionee ceases to be an employee of the Company by reason of his or her retirement with the consent of the Company, any option granted to such employee which had vested as of the date of retirement may be exercised during the period ending ninety (90) days after the date or retirement, but in no event later than the specified expiration date of the option. (d) For purposes of the Plan, a transfer of an employee between the parent Company and a subsidiary company, or between subsidiary companies, shall not be deemed a termination of employment. 11. 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 options may be granted under the Plan and as to which outstanding options or portions thereof then unexercised shall be exercisable, to the end that the proportionate interest of the option holder shall be maintained as before the occurrence of such event. Such adjustment in outstanding options shall be made without change in 10 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 this 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 outstanding options which are not thereupon exercised in full immediately prior to the consummation of such Acquisition shall thereupon terminate. 12. RESTRICTIONS ON ISSUANCE OF SHARES. Notwithstanding the provisions of Section 8 of the Plan, the Company shall have no obligation to deliver any certificate or certificates upon exercise of an 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 11 amended; or (ii) Counsel for the Company shall have given an opinion that such shares are exempt from registration under Federal and State securities acts as now in force or hereafter amended; and until the Company has complied 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. Any stock purchased under the Plan prior to shareholder approval of the Plan may not be sold, assigned, transferred, pledged or encumbered in any way and will be held in escrow by the Company until shareholder approval for the Plan is obtained, and if such approval is not obtained by the earlier of (i) the next annual meeting of stockholders of the Company, or (ii) June 30, 1996, the purchase of such stock and any option granted hereunder and this Plan will be automatically- rescinded and the purchase price returned to purchasing optionees without interest. 13. REPRESENTATIONS OF OPTIONEE. The Company may 12 require the optionee to deliver such written warranties and representations upon exercise of the option that the Company deems reasonable or necessary, including without limitation a representation that a purchase of shares under the option is made for investment and not with a view to their distribution (as that term is used in the Securities Act of 1933). 14. MODIFICATION OF OUTSTANDING OPTIONS. The Commit- tee or the Board of Directors may accelerate the exercisability of any outstanding option and may authorize changes to any outstanding option with the consent of the participant (including, without limitation, to extend the term of an option upon termination of employment to a date not later than ten (10) years from the original grant date) 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 Plan. 15. APPROVAL OF STOCKHOLDERS. The Plan shall be subject to approval by the affirmative vote of stockholders holding at least a majority of the voting stock of the Company voting in person or by proxy at or by the earlier of (i) the next annual meeting of stockholders of the Company, or (ii) June 30, 1991, and the Plan shall take effect as of the date of adoption immediately upon such approval. 16. TERMINATION AND AMENDMENT OF PLAN. The Board may at any time terminate the Plan or make such modification or amendment thereof as it deems advisable; provided, however, that except as provided in Section 11 the Board may not, without approval of the stockholders of the Company obtained in the 13 manner stated in Section 15, increase the maximum number of shares for which options may be granted under the Plan. Termination or any modification or amendment of the Plan shall not, without consent of a participant, affect his rights under an option previously granted to him. EX-5.1 5 0005.txt OPINION OF WILSON, SONSINI, GOODRICH & ROSATI 1 EXHIBIT 5.1 June 23, 2000 Sanmina Corporation 2700 North First Street San Jose, CA 95134 RE: REGISTRATION STATEMENT ON FORM S-8 ---------------------------------- Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on June 23, 2000 (the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 3,091,893 shares of your Common Stock, par value $0.01 per share (the "Shares"), (i) 1,359,554 shares of which are to be issued pursuant to options under the Hadco Corporation 1998 Stock Plan as Amended and Restated March 3, 1999, (ii) 1,334,641 shares of which are to be issued pursuant to options under the Hadco Corporation Non-Qualified Stock Option Plan dated November 29, 1995, Amended and Restated July 1, 1998, and (iii) 397,698 shares of which are to be issued pursuant to options under the Hadco Corporation Non-Qualified Stock Option Plan dated September 7, 1990, Amended and Restated April 7, 1998 (collectively, the "Plans"). As your counsel in connection with this transaction, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the issuance and sale of the Shares pursuant to the Plans. It is our opinion that, when issued and sold in the manner described in the Plans and pursuant to the agreements which accompany each grant under the Plans, the Shares will be legally and validly issued, fully-paid and non-assessable. We consent to the use of this opinion as an exhibit 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, WILSON SONSINI GOODRICH & ROSATI /s/ WILSON SONSINI GOODRICH & ROSATI EX-23.1 6 0006.txt CONSENT OF ARTHUR ANDERSEN LLP 1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT As independent public accountants, we hereby consent to the incorporation by reference in this registration statement on Form S-8 of our report dated October 22, 1999, included in Sanmina Corporation's Form 10-K for the year ended October 2, 1999. /s/ ARTHUR ANDERSEN LLP San Jose, California June 21, 2000 -----END PRIVACY-ENHANCED MESSAGE-----