-----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, G/X7nnaPUUMYKKL7uVvrESSMnH2ly6HVd7nAejewWMDhJSNzQ1u/r9qB9hzmC/e3 iJUU3bdbkvGo+tmOXidTUg== 0000912057-01-510875.txt : 20010430 0000912057-01-510875.hdr.sgml : 20010430 ACCESSION NUMBER: 0000912057-01-510875 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010427 EFFECTIVENESS DATE: 20010427 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ROGERS CORP CENTRAL INDEX KEY: 0000084748 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS, MATERIALS, SYNTH RESINS & NONVULCAN ELASTOMERS [2821] IRS NUMBER: 060513860 STATE OF INCORPORATION: MA FISCAL YEAR END: 0102 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-59634 FILM NUMBER: 1612554 BUSINESS ADDRESS: STREET 1: P.O. BOX 188 STREET 2: ONE TECHNOLOGY DRIVE CITY: ROGERS STATE: CT ZIP: 06263-0188 BUSINESS PHONE: 860 774-96 S-8 1 a2045993zs-8.txt FORM S-8 u As filed with the Securities and Exchange Commission on April 27, 2001 REGISTRATION STATEMENT NO. 333- ============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------- ROGERS CORPORATION (Exact name of Registrant as specified in its charter) Massachusetts 06-0513860 (State or other jurisdiction of (I.R.S. Employer Identification incorporation or organization) Number) ONE TECHNOLOGY DRIVE P.O. BOX 188 ROGERS, CONNECTICUT 06263-0188 (Address of Principal Executive Offices) ROGERS CORPORATION GLOBAL STOCK OWNERSHIP PLAN FOR EMPLOYEES (Full Title of the Plan) ------------------------- ROBERT M. SOFFER, VICE PRESIDENT AND TREASURER ROGERS CORPORATION ONE TECHNOLOGY DRIVE P.O. BOX 188 ROGERS, CONNECTICUT 06263-0188 (860) 774-9605 (Name and Address of agent for service) ------------------------- With copies to: JEFFREY C. HADDEN, P.C. GOODWIN PROCTER LLP EXCHANGE PLACE BOSTON, MASSACHUSETTS 02109-2881 (617) 570-1000 ------------------------- CALCULATION OF REGISTRATION FEE
=================================== ======================= ======================= ==================== =============== Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of to be Registered Registered (1) Offering Price Per Aggregate Offering Registration Share (2) Price Fee - ----------------------------------- ----------------------- ----------------------- -------------------- --------------- Capital Stock, par value $1.00 500,000 shares $ 27.505 $ 13,752,500 $ 3,438.13 per share(3) Plan Interests(4) N/A(4) N/A(4) N/A(4) N/A(4) =================================== ======================= ======================= ==================== ===============
(1) Plus such additional number of shares as may be required pursuant to the Rogers Corporation Global Stock Ownership Plan For Employees in the event of a stock dividend, stock split, reverse stock split, recapitalization or other similar event. (2) This estimate is made solely for the purpose of determining the amount of the registration fee and is based upon the average of the high and low prices of the Registrant's Capital Stock on April 24, 2001. (3) Also covers associated Capital Stock Purchase Rights issued under the Rights Agreement dated as of February 25, 1997, and as amended as of June 19, 1997, July 7, 1997 and April 10, 2000, between the Registrant and the Rights Agent named therein. Prior to the occurrence of specified events, the Capital Stock Purchase Rights will not be exercisable, or evidenced or transferred separately from, the Capital Stock. (4) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. In accordance with Rule 457(h)(2), no separate fee calculation is required with respect to the plan interests. =============================================================================== PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. The Registrant hereby incorporates by reference the following documents, which have been previously filed with the Securities and Exchange Commission (the "Commission"). (a) The Registrant's latest Annual Report on Form 10-K, including consolidated financial statements, together with the report of independent auditors thereon, with respect to the Registrant's fiscal year ended December 31, 2000, filed by the Registrant pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (b) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 2000 and prior to the termination of the offering of the securities covered by this registration statement. (c) The description of the Registrant's Capital Stock contained in the Registrant's Registration Statement on Form 10 filed pursuant to Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Registrant or by the Rogers Corporation Global Stock Ownership Plan For Employees with the Securities and Exchange Commission pursuant to Sections 13(a) and (c), Section 14 and Section 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered hereunder 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 a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The consolidated financial statements of the Registrant incorporated by reference in the Registrant's Annual Report (Form 10-K) for the fiscal year ended December 31, 2000 and the related financial statement schedule included therein, have been audited by Ernst & Young LLP, independent auditors, as set forth in their reports thereon included therein and incorporated herein by reference. Such consolidated financial statements and schedule are incorporated herein in reliance upon the reports of Ernst & Young LLP pertaining to such financial statements and schedule given on the authority of such firm as experts in accounting and auditing. 2 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 67 of the Massachusetts Business Corporation Law provides that indemnification of directors, officers, employees or other agents may be provided by a corporation. Section 13(b)(1-1/2) of the Massachusetts Business Corporation Law provides that the Articles of Organization may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director provided that such provision shall not eliminate or limit the liability for a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Sections 61 or 62 of the Massachusetts Business Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. Article V, Section 8 of the Registrant's By-laws provides that the Registrant shall indemnify each director, officer and employee and each former director, officer and employee against any cost, expenses (including attorneys' fees), judgments, fines, penalties and/or liabilities (including certain amounts paid in settlement) reasonably incurred by or imposed upon him in connection with or arising out of any action, suit or other proceeding in which he may be involved or with which he may be threatened (i) by reason of his being or having been such director, officer or employee of the Registrant or of any other corporation in which he served as such at the request of the Registrant, or (ii) by reason of his serving or having served in any capacity with respect to certain employee benefit plans established or maintained by the Registrant or a subsidiary thereof. In addition, Article 6 of the Registrant's Restated Articles of Organization provides that, to the fullest extent permitted by the Massachusetts Business Corporation Law, a director of the Registrant shall not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The Exhibits listed in the accompanying Exhibit Index are filed as part of this Registration Statement. ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and 3 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the undersigned Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference 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; and (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, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act 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 foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act, 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 the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended (the "Securities Act"), 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 Hartford, Connecticut on this 26th day of April, 2001. ROGERS CORPORATION By: /s/ Walter E. Boomer ------------------------------------ Walter E. Boomer President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Frank H. Roland and Robert M. Soffer, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution, for him or her and in his or her name, place and stead, in any and all capacities to sign any and all amendments or post-effective amendments to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.
SIGNATURE CAPACITY DATE /s/ Walter E. Boomer - -------------------------------------------- Walter E. Boomer President, Chief Executive Officer, April 26, 2001 Director (Principal Executive Officer) /s/ Frank H. Roland - -------------------------------------------- Frank H. Roland Vice President, Finance, Chief April 26, 2001 Financial Officer, Secretary (Principal Financial and Accounting Officer) /s/ Leonard M. Baker - -------------------------------------------- Leonard M. Baker Director April 26, 2001 /s/ Harry H. Birkenruth - -------------------------------------------- Harry H. Birkenruth Director April 26, 2001 /s/ Edward L. Diefenthal - -------------------------------------------- Edward L. Diefenthal Director April 26, 2001 /s/ Gregory B. Howey - -------------------------------------------- Gregory B. Howey Director April 26, 2001 /s/ Leonard R. Jaskol - -------------------------------------------- Leonard R. Jaskol Director April 26, 2001 /s/ Eileen S. Kraus - -------------------------------------------- Eileen S. Kraus Director April 26, 2001 /s/ William E. Mitchell - -------------------------------------------- William E. Mitchell Director April 26, 2001 /s/ Robert G. Paul - -------------------------------------------- Robert G. Paul Director April 26, 2001
Pursuant to the requirements of the Securities Act of 1933, the trustees or other persons who administer the Rogers Corporation Global Stock Ownership Plan For Employees have duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Hartford, Connecticut on this 26th day of April, 2001. ROGERS CORPORATION GLOBAL STOCK OWNERSHIP PLAN FOR EMPLOYEES By: /s/ Robert M. Soffer --------------------------------- Robert M. Soffer Vice President and Treasurer By: /s/ John A. Richie --------------------------------- John A. Richie Vice President, Human Resources By: /s/ Joseph R. Rosi --------------------------------- Joseph R. Rosi Corporate Accounting Manager EXHIBIT INDEX EXHIBIT NO. DESCRIPTION - ----------- ----------- 5.1 Opinion of Goodwin Procter LLP as to the legality of the securities being registered. 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Goodwin Procter LLP (included in Exhibit 5.1 hereto). 24.1 Power of Attorney (included on signature page of this Registration Statement). 99.1 Rogers Corporation Global Stock Ownership Plan For Employees. EX-5.1 2 a2045993zex-5_1.txt EXHIBIT 5.1 Exhibit 5.1 April 26, 2001 Rogers Corporation One Technology Drive P.O. Box 188 Rogers, CT 06263-0188 Re: ROGERS CORPORATION GLOBAL STOCK OWNERSHIP PLAN FOR EMPLOYEES ------------------------------------------------------------ Ladies and Gentlemen: This opinion is delivered in our capacity as counsel to Rogers Corporation (the "Company") in connection with the preparation and filing with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"), of a Registration Statement on Form S-8 (the "Registration Statement") relating to 500,000 shares of the Company's Capital Stock, par value $1.00 per share (the "Registered Shares"), which may be issued pursuant to the Rogers Corporation Global Stock Ownership Plan For Employees (the "Plan"). As counsel for the Company, we have examined a copy of the Plan, the Registration Statement, and the Company's Articles of Organization and By-laws, each as amended to date and presently in effect, such records of the corporate proceedings of the Company as deemed to be material and such other certificates, receipts, records, and other documents as we have deemed necessary or appropriate for the purposes of this opinion. With respect to all of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as a certified or reproduced copy. We are attorneys admitted to practice in the Commonwealth of Massachusetts. We express no opinion concerning the laws of any jurisdictions other than the laws of the United States of America and the Commonwealth of Massachusetts. Based on the foregoing, we are of the opinion that, when the Registered Shares are sold and paid for pursuant to the terms of the Plan, the Registered Shares will be duly authorized, validly issued, fully paid and non-assessable shares of the Company's Capital Stock. The foregoing assumes that all requisite steps will be taken to comply with the requirements of the Securities Act and applicable requirements of state laws regulating the offer and sale of securities. We hereby consent to being named as counsel to the Company in the Registration Statement and to the inclusion of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Goodwin Procter LLP GOODWIN PROCTER LLP EX-23.1 3 a2045993zex-23_1.txt EXHIBIT 23.1 Exhibit 23.1 Consent of Independent Auditors We consent to the reference to our firm under the caption "Interests of Named Experts and Counsel" in the Registration Statement (Form S-8 No. 333-00000) pertaining to the Rogers Corporation Global Stock Ownership Plan For Employees and to the incorporation by reference therein, of our reports dated: (1) February 1, 2001, except as to Note L, as to which the date is February 7, 2001, with respect to the consolidated financial statements of Rogers Corporation incorporated by reference in its Annual Report (Form 10-K) for the year ended December 31, 2000, and (2) March 23, 2001, with respect to the schedule of Rogers Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 2000, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP ERNST & YOUNG LLP Providence, Rhode Island April 24, 2001 EX-99.1 4 a2045993zex-99_1.txt EXHIBIT 99.1 Exhibit 99.1 Rogers Corporation Global Stock Ownership Plan For Employees The purpose of the Rogers Corporation Global Stock Ownership Plan For Employees (the "Plan") is to provide eligible employees of Rogers Corporation, a Massachusetts corporation (the "Company"), and certain of its subsidiaries with opportunities to purchase shares of the Company's capital stock, par value $1.00 per share (the "Common Stock"). A total of five hundred thousand (500,000) shares of Common Stock in the aggregate have been reserved for this purpose. The Plan is intended to constitute an "employee stock purchase plan" within the meaning of Section 423(b) of the Internal Revenue Code of 1986, as amended (the "Code"), and shall be interpreted in accordance with that intent. 1. Definitions. The term "Board" means the Board of Directors of the Company. The term "Compensation" means the amount of total cash compensation, prior to salary reduction pursuant to either Section 125 or 401(k) of the Code, including base pay, overtime, commissions, and incentive or bonus awards, but excluding allowances and reimbursements for expenses such as relocation allowances or travel expenses, income or gains on the exercise of Company stock options, and similar items. The term "Designated Subsidiary" means any present or future Subsidiary (as defined below) that has been designated by the Committee (as defined below) to participate in the Plan. The Committee may so designate any Subsidiary, or revoke any such designation, at any time and from time to time, either before or after the Plan is approved by the stockholders. The term "Fair Market Value of the Common Stock" on any given date means the closing price of the Common Stock as reported in The Wall Street Journal for such date or, in the absence of such price, the most recent preceding date; in the event that there is no such reported price, then as determined in good faith by the Administrator (as defined below). The term "Parent" means a "parent corporation" with respect to the Company, as defined in Section 424(e) of the Code. The term "Subsidiary" means a "subsidiary corporation" with respect to the Company, as defined in Section 424(f) of the Code. 2. Administration. The Plan will be administered by the person or persons (the "Administrator") appointed by the Compensation and Organization Committee of the Board of Directors of the Company or such successor or other committee selected by the Board (the "Committee") for such purpose. Except for those powers specifically reserved herein for the Committee or the Board, the Administrator has authority to make rules and regulations for the administration of the Plan, and its interpretations and decisions with regard thereto shall be final and conclusive. No member of the Board or the Committee or any individual exercising administrative authority with respect to the Plan shall be liable for any action or determination made in good faith with respect to the Plan or any option granted hereunder. -1- To the extent that the Administrator or the Committee is unable or unwilling to exercise any right or make any determination hereunder, such right or such determination shall be exercised by the Committee for the Administrator or by the Board for the Committee or for the Administrator. 3. Offerings. The Company will make one or more offerings to eligible employees to purchase Common Stock under the Plan ("Offerings"). The initial Offering will begin as soon as administratively feasible following approval of the Plan by the Company's stockholders. Each offering period shall begin on the first day of a month and shall be six months in length. The Administrator may, in its discretion, designate a different period for any Offering, provided that no Offering shall exceed twenty-seven months in duration or overlap with any other Offering. 4. Eligibility. All employees of the Company (including employees who are also members of the Board) and all employees of each Designated Subsidiary are eligible to participate in any one or more of the Offerings under the Plan, provided that they are employed as of the first day of the applicable Offering (the "Offering Date"). 5. Participation. An employee eligible on any Offering Date may participate in such Offering by submitting an enrollment form to the appropriate payroll location at least ten (10) business days before the Offering Date (or by such other deadline as shall be established by the Administrator for the Offering). The enrollment form will (a) state the amount of the employee's Compensation to be deducted per pay period, (b) authorize the purchase of Common Stock for him or her in each Offering in accordance with the terms of the Plan, (c) specify the exact name or names in which shares of Common Stock purchased for him or her are to be issued or held pursuant to Section 11 and, (d) reflect such obligations of the employee (for example, information about disposition of shares within two years of the Offering Date) and such other information as the Administrator deems necessary from time to time. An employee who does not enroll in accordance with these procedures will not be permitted to participate in such Offering. Enrolled employees will continue to participate in future Offerings and at the same rate of payroll deduction unless they, (a) file a new enrollment form, (b) withdraw from the Plan, or (c) otherwise become ineligible to participate. 6. Employee Contributions. Each eligible employee may authorize payroll deductions to be made each pay period, in increments of five dollars ($5.00), in an amount that may not be less than $500.00 divided by the number of pay periods in the year for the employee nor more than $25,000.00 divided by the number of pay periods in the year for the employee. Book accounts will be maintained that show the amount of payroll deductions made by each participating employee for each Offering. No interest will accrue or be paid on payroll deductions. Contributions to the Plan may only be made through payroll deductions. 7. Deduction Changes. Except as may be determined by the Administrator in advance of an Offering, an employee may not increase or decrease his or her payroll deduction during any Offering, but may increase or decrease his or her payroll deduction with respect to the next Offering (subject to the limitations of Section 6) by filing a new enrollment form at least ten (10) business days before the next -2- Offering Date (or by such other deadline as shall be established for the Offering). The Administrator may, in advance of any Offering, establish rules permitting an employee to increase, decrease or terminate his or her payroll deduction during an Offering. 8. Withdrawal. An employee may withdraw from participation in the Plan by delivering a written notice of withdrawal to the appropriate payroll location. The employee's withdrawal will be effective as of the first business day following receipt of the written notice by the Company. Following an employee's withdrawal, the Company will promptly refund his or her entire cash account balance under the Plan (after payment for any Common Stock purchased before the effective date of withdrawal). The employee may not begin participation again during the remainder of the Offering, but may enroll in a subsequent Offering in accordance with Section 5 as long as he or she is then otherwise eligible to participate. 9. Grant of Options. On each Offering Date, the Company will grant to each eligible employee who is then a participant in the Plan an option ("Option") to purchase on the last day of such Offering (the "Exercise Date"), at the Option Price as hereinafter provided, (a) a number of shares of Common Stock, that number shall not exceed the number of whole shares which is less than or equal to $25,000.00 multiplied by the number of months in the Offering divided by 12 and divided by the Fair Market Value of the Common Stock on the Offering Date, or (b) such other lesser maximum number of shares as shall have been established by the Administrator in advance of the Offering. The Committee shall from time to time establish the purchase price for each share purchased under each Option (the "Option Price"); which Option Price shall be not less than 85% of the Fair Market Value of the Common Stock on the Offering Date or the Exercise Date, whichever is less. At any time that the Committee shall establish an Option Price (expressed as a percentage of the Fair Market Value of the Common Stock and subject to the 85% limitation in the immediately preceding sentence), such Option Price shall become effective only as to subsequent Offerings and shall remain effective until changed by the Committee. Notwithstanding the foregoing, no employee may be granted an option hereunder if such employee, immediately after the option is granted, would be treated as owning stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company or any Parent or Subsidiary. For purposes of the immediately preceding sentence, the attribution rules of Section 424(d) of the Code shall apply in determining the stock ownership of an employee in the Company, its Parent, or any Subsidiary, and all stock which the employee has a contractual right to purchase shall be treated as stock owned by the employee. In addition, no employee may be granted an Option which permits his or her rights to purchase stock under the Plan, and any other employee stock purchase plan of the Company and its Parent and Subsidiaries, to accrue at a rate which exceeds $25,000.00 of the fair market value of such stock (determined on the Offering Date or dates) for each calendar year in which the Option is outstanding at any time. The purpose of the limitation in the preceding sentence is to comply with Section 423(b)(8) of the Code. 10. Exercise of Option and Purchase of Shares. Each employee who continues to be a participant in the Plan on the Exercise Date shall -3- be deemed to have exercised his or her Option on such date and shall acquire from the Company such number of whole shares of Common Stock reserved for the purpose of the Plan as his or her accumulated payroll deductions on such date will purchase at the Option Price, but no more than the number determined pursuant to Section 9(a) or 9(b) above, subject to any other limitations contained in the Plan. Any amount remaining in an employee's account at the end of an Offering solely by reason of the inability to purchase a fractional share will be carried forward to the next Offering unless the Administrator determines that such moneys will be returned to the employee; any other balance remaining in an employee's account at the end of an Offering will be refunded to the employee promptly. 11. Issuance of Shares. Subject to the approval of the Administrator, shares of Common Stock purchased under the Plan may be issued in the form of certificates or held in a brokerage, or other account (or accounts), in any case only in the name of the employee, in the name of the employee and another person of legal age as joint tenants with rights of survivorship, or in the name of a broker, bank or similar entity authorized by the employee to be the employee's, or their, nominee for such purpose. 12. Restriction on Sale of Shares. For three months after the Exercise Date, or, if sooner, upon the death of the employee (the "Holding Period"), Common Stock acquired at such Exercise Date shall not be assigned, transferred, pledged or otherwise disposed of, except by will or by the laws of descent and distribution. From time to time, the Administrator may adjust the Holding Period so long as such Holding Period is not less than one month (except in the case of death) nor more than twelve months in length, any such adjustment shall be effective only as to Offerings that begin following the date of such adjustment. Notwithstanding the foregoing, the Committee may reduce or eliminate any Holding Period at any time. Following such Holding Period, Common Stock may be sold or otherwise transferred without restriction except for restrictions generally imposed by applicable law. 13. Rights on Termination of Employment. If a participating employee's employment terminates for any reason before the Exercise Date for any Offering, no payroll deduction will be taken from any pay due and owing to the employee after the current payroll period and the balance in the employee's account will be paid to him or her (or, in the case of death, to a designated beneficiary, or in the absence thereof, to his or her estate) as if he or she had withdrawn from the Plan under Section 8. An employee who is participating in the Plan, or who is eligible to participate, also will be deemed to have terminated employment, for purposes of eligibility to participate in the Plan: (a) if his or her employer ceases to be a Designated Subsidiary or, (b) if he or she is transferred to a new employer that is not the Company or a Designated Subsidiary. An employee is not deemed to have terminated employment if such employee has transferred between the Company and any Designated Subsidiary, or vice versa. 14. Special Rules. The Administrator may adopt rules or procedures relating to the operation and administration of the Plan to accommodate the specific requirements of local laws and procedures outside of the United States. Without limiting the generality of the foregoing, the Administrator is specifically authorized to adopt rules and procedures regarding handling of payroll deductions, -4- payment of interest (if any), conversion of local currency, payroll tax, withholding procedures and handling of stock certificates which vary with local requirements outside of the United States. The Committee may also adopt sub-plans applicable to particular Designated Subsidiaries or locations, which sub-plans may be designed to be outside the scope of Code Section 423. Any such sub-plan shall apply only to employees who are not located in the United States or its possessions. The provisions of such sub-plans may take precedence over other provisions of this Plan, with the exception of the first paragraph of this Plan, but, unless otherwise superseded by the specific provisions of such sub-plan, the provisions of this Plan shall govern the operation of such sub-plan. 15. No Employment Rights; Optionees Not Stockholders. Neither the establishment or continuation of the Plan (or a sub-plan), nor the grant of an Option, shall be deemed to give any employee the right to be retained in the employ of the Company or any Subsidiary, or any successor to either, or to interfere with, or restrict in any way, the right of the Company or Subsidiary or any successor to discharge the employee at any time. Neither the granting of an Option to an employee nor the deductions from the employee's pay shall constitute such employee as a holder of the shares of Common Stock covered by an Option under the Plan (or a sub-plan) until such shares have been purchased and issued. 16. Rights Not Transferable. Rights under the Plan are not transferable by a participating employee other than by will or the laws of descent and distribution, and are exercisable during the employee's lifetime only by the employee. 17. Application of Funds. Except as otherwise specifically provided herein, all funds received or held by the Company (or the applicable Designated Subsidiary) under the Plan may be combined with other corporate funds and may be used for any corporate purpose. 18. Adjustment in Case of Changes Affecting Common Stock. In the event of a subdivision of outstanding shares of Common Stock, or the payment of a dividend in Common Stock, the number of shares approved for the Plan, and the share limitation set forth in Section 9, shall be increased proportionately, and such other adjustments shall be made as may be deemed equitable by the Administrator. In the event of any other change affecting the Common Stock, such adjustment shall be made as may be deemed equitable by the Administrator to give proper effect to such event. 19. Amendment of the Plan. The Committee may at any time, and from time to time, amend the Plan in any respect, except that no amendment shall be made increasing the number of shares approved for the Plan or making any other change that would require stockholder approval in order for the Plan, as amended, to qualify as an "employee stock purchase plan" under Section 423(b) of the Code without the approval of the Board and, within 12 months of such Board action, by the stockholders. 20. Insufficient Shares. If the total number of shares of Common Stock that would otherwise be purchased on any Exercise Date plus the number of shares purchased under previous Offerings under the Plan -5- exceeds the maximum number of shares issuable under the Plan, the shares then available shall be apportioned among participants in proportion to the amount of payroll deductions accumulated on behalf of each participant that would otherwise be used to purchase Common Stock on such Exercise Date. 21. Termination of the Plan. The Plan may be terminated at any time by the Board. Upon termination of the Plan, all amounts in the accounts of participating employees shall be promptly refunded. 22. Governmental Regulations. The Company's obligation to sell and deliver Common Stock under the Plan is subject to obtaining all governmental approvals required in connection with the authorization, issuance, or sale of such stock. The Plan shall be governed by the laws of the Commonwealth of Massachusetts except to the extent that such law is preempted by federal law. 23. Issuance of Shares. Shares may be issued upon exercise of an Option from all or any of the following sources: from treasury shares, from shares reacquired by the Company from time to time, or from authorized but unissued shares. 24. Tax Withholding. Participation in the Plan is subject to any minimum required tax withholding on income of the participant in connection with the Plan. Each employee agrees, by entering the Plan, that the Company and its Designated Subsidiaries shall have the right to deduct any such taxes from any payment of any kind otherwise due to the employee, including shares issuable under the Plan. 25. Notification Upon Sale of Shares. Each employee agrees, by entering the Plan, to give the Company prompt notice of any disposition of shares purchased under the Plan where such disposition occurs within two years after the Offering Date pursuant to which such shares were purchased. 26. Effective Date and Approval of Stockholders. The Plan shall become effective on the date it is approved by the holders of a majority of the votes cast at a meeting of stockholders at which a quorum is present. -6- -----END PRIVACY-ENHANCED MESSAGE-----