As filed with the Securities and Exchange
Commission on December 27, 2002.
Registration No. 333-
-------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
Registration Statement Under
The Securities Act of 1933
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Kadant Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware 52-1762325
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
One Acton Place, Suite 202
Acton, Massachusetts 01720
(Address of Principal Executive Offices) (Zip Code)
KADANT INC. 2001 EMPLOYEES EQUITY INCENTIVE PLAN
(Full Title of the Plan)
Sandra L. Lambert, Vice President, General Counsel and Secretary
Kadant Inc.
One Acton Place, Suite 202
Acton, Massachusetts 01720
(Name and Address of Agent for Service)
(978) 776-2000
(Telephone Number, Including Area Code, of Agent For Service)
---------------
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Price Aggregate Offering Amount of
To Be Registered Registered (1) Per Share (2) Price (2) Registration Fee
------------------- -------------- ---------------- ------------------ ----------------
Common Stock, $.01 612,000 $15.60 $9,547,200 $878.34
par value per share shares
(1) In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall
be deemed to cover additional securities that may from time to time be offered or issued to prevent
dilution resulting from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h)
of the Securities Act of 1933, as amended. The calculation of the registration fee has been based upon
the average of the high and low sales prices of the Registrant's common stock as reported on the American
Stock Exchange on December 23, 2002.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to the respective participants in the plan registered hereunder pursuant
to Rule 428(b)(1) under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Kadant Inc. (the "Company" or the "Registrant") is subject to the
informational and reporting requirements of Sections 13(a), 13(c), 14 and 15(d)
of the Securities Exchange Act of 1934, as amended, and in accordance therewith
files reports, proxy statements and other information with the Securities and
Exchange Commission (the "SEC"). The following documents, which are on file with
the SEC, are incorporated in this Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 29, 2001, as amended;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 30, 2002;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 29, 2002;
(d) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 28, 2002;
(e) The Company's Current Report on Form 8-K filed with the SEC on
June 14, 2002;
(f) The Company's Current Report on Form 8-K filed with the SEC on
June 19, 2002;
(g) The description of the Company's common stock contained in its
registration statement on Form 8-A/A filed with the SEC on
September 20, 2001, including any amendments or reports filed
for the purpose of updating that description; and
(h) The description of the Rights to purchase the Company's common
stock contained in its registration statement on Form 8-A/A
filed with the SEC on September 20, 2001, including any
amendments or reports filed for the purpose of updating that
description.
All reports or proxy statements filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment that indicates that all securities offered herein have been sold, or
that deregisters all such securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be a part
hereof from the respective dates of filing of such documents.
2
The financial statements of the Registrant for the year ended December
29, 2001 included in the Registrant's Annual Report on Form 10-K (File Number
1-11406), have been audited by Arthur Andersen LLP, the Registrant's independent
public accountants for fiscal year 2001. The Registrant has been unable to
obtain the written consent of Arthur Andersen LLP with respect to the
incorporation by reference of its report issued with respect to such financial
statements in this Registration Statement. In reliance upon Rule 437a of the
Securities Act of 1933, as amended, the Registrant has not filed the written
consent of Arthur Andersen LLP. As a result, an investor may not be able to
recover damages from Arthur Andersen LLP under Section 11 of the Securities Act
for any untrue statements of material fact or any omissions to state a material
fact contained in the financial statements of the Registrant for the year ended
December 29, 2001 in the Registrant's Annual Report on Form 10-K, which are
incorporated by reference in this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the common stock offered hereby has been passed upon by
Sandra L. Lambert, Esq., General Counsel of the Company. Ms. Lambert is a
full-time employee and executive officer of the Company, and owns or has the
right to acquire 182,032 shares of the common stock of the Company.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law and the Company's Certificate of
Incorporation and By-Laws limit the monetary liability of directors to the
Company and to its stockholders and provide for indemnification of the Company's
officers and directors for liabilities and expenses that they may incur in such
capacities. In general, officers and directors are indemnified with respect to
actions taken in good faith in a manner reasonably believed to be in, or not
opposed to, the best interests of the Company and, with respect to any criminal
action or proceeding, actions that the indemnitee had no reasonable cause to
believe were unlawful. The Company also has indemnification agreements with its
directors and officers that provide for the maximum indemnification allowed by
law.
The Company has an insurance policy which insures its directors and
officers against certain liabilities which might be incurred in connection with
the performance of their duties.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is attached hereto
and incorporated herein by reference.
3
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;
(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 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 end 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 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Kadant Inc.
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Acton, Commonwealth of Massachusetts, on this 23rd
day of December, 2002.
KADANT INC.
By: /s/ William A. Rainville
----------------------------
William A. Rainville
Its: Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned Directors and Officers of Kadant Inc. hereby
appoints William A. Rainville, Thomas M. O'Brien, Jonathan W. Painter, Michael
J. McKenney and Sandra L. Lambert, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, 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 might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
Chairman, President, Chief Executive
Officer and Director
/s/ William A. Rainville (Principal Executive Officer) December 23, 2002
- --------------------------------------------------
William A. Rainville
Executive Vice President and
Chief Financial Officer
/s/ Thomas M. O'Brien (Principal Financial Officer) December 23, 2002
- --------------------------------------------------
Thomas M. O'Brien
5
Vice President, Finance
/s/ Michael J. McKenney (Principal Accounting Officer) December 23, 2002
- --------------------------------------------------
Michael J. McKenney
/s/ John M. Albertine Director December 23, 2002
- --------------------------------------------------
John M. Albertine
/s/ John K. Allen Director December 23, 2002
- --------------------------------------------------
John K. Allen
/s/ Francis L. McKone Director December 23, 2002
- --------------------------------------------------
Francis L. McKone
6
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
4 2001 Employees Equity Incentive Plan of the Registrant
5 Opinion of Sandra L. Lambert, Esq.
23 Consent of Sandra L. Lambert, Esq.
(contained in her opinion filed as Exhibit 5)
24 Power of Attorney (see signature pages to this Registration
Statement).
7
EXHIBIT 4
KADANT INC.
2001 EMPLOYEES EQUITY INCENTIVE PLAN
------------------------------------
1. Purpose
-------
The purpose of this 2001 Employees Equity Incentive Plan (the "Plan")
is to secure for Kadant Inc. (the "Company") and its Stockholders the benefits
arising from capital stock ownership by employees and consultants to the Company
and its subsidiaries or other persons who are expected to make significant
contributions to the future growth and success of the Company and its
subsidiaries. The Plan is intended to accomplish these goals by enabling the
Company to offer such persons equity-based interests, equity-based incentives or
performance-based stock incentives in the Company, or any combination thereof
("Awards").
2. Administration
--------------
The Plan will be administered by the Board of Directors of the Company
(the "Board"). The Board shall have full power to interpret and administer the
Plan, to prescribe, amend and rescind rules and regulations relating to the Plan
and Awards, and full authority to select the persons to whom Awards will be
granted ("Participants"), determine the type and amount of Awards to be granted
to Participants (including any combination of Awards), determine the terms and
conditions of Awards granted under the Plan (including terms and conditions
relating to events of merger, consolidation, dissolution and liquidation, change
of control, vesting, forfeiture, restrictions, dividends and interest, if any,
on deferred amounts), waive compliance by a participant with any obligation to
be performed by him or her under an Award, waive any term or condition of an
Award, cancel an existing Award in whole or in part with the consent of a
Participant, grant replacement Awards, accelerate the vesting or lapse of any
restrictions of any Award, correct any defect, supply any omission or reconcile
any inconsistency in the Plan or in any award and adopt the form of instruments
evidencing Awards under the Plan and change such forms from time to time. Any
interpretation by the Board of the terms and provisions of the Plan or any Award
thereunder and the administration thereof, and all action taken by the Board,
shall be final, binding and conclusive on all parties and any person claiming
under or through any party. No Director shall be liable for any action or
determination made in good faith. The Board may, to the full extent permitted by
law, delegate any or all of its responsibilities under the Plan to a committee
(the "Committee") appointed by the Board and consisting of members of the Board.
All references in the Plan to the "Board" shall mean the Board or a Committee of
the Board to the extent that the Board's powers or authority under the Plan have
been delegated to such Committee.
3. Effective Date
--------------
The Plan shall be effective as of the date first approved by the Board.
4. Shares Subject to the Plan
--------------------------
Subject to adjustment as provided in Section 10.6, the total number of
shares of common stock of the Company, par value $.01 per share (the "Common
Stock"), reserved and available for distribution under the Plan shall be 612,000
shares. Such shares may consist, in whole or in part, of authorized and unissued
shares or treasury shares.
If any Award of shares of Common Stock requiring exercise by the
Participant for delivery of such shares expires or terminates without having
been exercised in full, is forfeited or is otherwise terminated without a
payment being made to the Participant in the form of Common Stock, or if any
shares of Common Stock subject to restrictions are repurchased by the Company
pursuant to the terms of any Award or are otherwise reacquired by the Company to
satisfy obligations arising by virtue of any Award, such shares shall be
available for distribution in connection with future Awards under the Plan.
5. Eligibility
-----------
Employees and consultants to the Company and its subsidiaries, or other
persons who are expected to make significant contributions to the future growth
and success of the Company and its subsidiaries shall be eligible to receive
Awards under the Plan. Executive officers and directors shall not be eligible to
receive Awards under the Plan. The Board, or other appropriate committee or
person to the extent permitted pursuant to the last sentence of Section 2, shall
from time to time select from among such eligible persons those who will receive
Awards under the Plan.
6. Types of Awards
---------------
The Board may offer Awards under the Plan in any form of equity-based
interest, equity-based incentive or performance-based stock incentive in Common
Stock of the Company or any combination thereof. The type, terms and conditions
and restrictions of an Award shall be determined by the Board at the time such
Award is made to a Participant.
An Award shall be made at the time specified by the Board, shall be
subject to such conditions or restrictions as may be imposed by the Board and
shall conform to the general rules applicable under the Plan as well as any
special rules then applicable under federal tax laws or regulations or the
federal securities laws relating to the type of Award granted.
Without limiting the foregoing, Awards may take the following forms and
shall be subject to the following rules and conditions:
6.1 Options
-------
An option is an Award that entitles the holder on exercise thereof to
purchase Common Stock at a specified exercise price. Options granted under the
Plan are not intended to meet the requirements of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
2
6.1.1 Option Price. The price at which Common Stock may be purchased
------------
upon exercise of an option shall be determined by the Board.
6.1.2 Option Grants. The granting of an option shall take place at
-------------
the time specified by the Board. Options shall be evidenced by option
agreements. Such agreements shall conform to the requirements of the Plan, and
may contain such other provisions (including but not limited to vesting and
forfeiture provisions, acceleration, change of control, protection in the event
of merger, consolidations, dissolutions and liquidations) as the Board shall
deem advisable. Option agreements shall expressly state whether an option grant
is intended to qualify as an incentive stock option or non-statutory option.
6.1.3 Option Period. An option will become exercisable at such time
-------------
or times (which may be immediately or in such installments as the Board shall
determine) and on such terms and conditions as the Board shall specify. The
option agreements shall specify the terms and conditions applicable in the event
of an option holder's termination of employment during the option's term.
Any exercise of an option must be in writing, signed by the proper
person and delivered or mailed to the Company, accompanied by (1) any additional
documents required by the Board and (2) payment in full in accordance with
Section 6.1.4 for the number of shares for which the option is exercised.
6.1.4 Payment of Exercise Price. Stock purchased on exercise of an
-------------------------
option shall be paid for as follows: (1) in cash or by check (subject to such
guidelines as the Company may establish for this purpose), bank draft or money
order payable to the order of the Company or (2) if so permitted by the
instrument evidencing the option (or in the case of a non-statutory option, by
the Board at or after grant of the option), (i) through the delivery of shares
of Common Stock that have been outstanding for at least six months (unless the
Board expressly approves a shorter period) and that have a fair market value
(determined in accordance with procedures prescribed by the Board) equal to the
exercise price, (ii) by delivery of a promissory note of the option holder to
the Company, payable on such terms as are specified by the Board, (iii) by
delivery of an unconditional and irrevocable undertaking by a broker to deliver
promptly to the Company sufficient funds to pay the exercise price, or (iv) by
any combination of the foregoing permissible forms of payment.
6.1.5 Buyout Provision. The Board may at any time offer to buy out
----------------
for a payment in cash, shares of Common Stock, deferred stock or restricted
stock, an option previously granted, based on such terms and conditions as the
Board shall establish and communicate to the option holder at the time that such
offer is made.
6.2 Restricted and Unrestricted Stock
---------------------------------
An Award of restricted stock entitles the recipient thereof to acquire
shares of Common Stock upon payment of the purchase price subject to
restrictions specified in the instrument evidencing the Award.
3
6.2.1 Restricted Stock Awards. Awards of restricted stock shall be
-----------------------
evidenced by restricted stock agreements. Such agreements shall conform to the
requirements of the Plan, and may contain such other provisions (including
restriction and forfeiture provisions, change of control, protection in the
event of mergers, consolidations, dissolutions and liquidations) as the Board
shall deem advisable.
6.2.2 Restrictions. Until the restrictions specified in a restricted
------------
stock agreement shall lapse, restricted stock may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of, and upon certain
conditions specified in the restricted stock agreement, must be resold to the
Company for the price, if any, specified in such agreement. The restrictions
shall lapse at such time or times, and on such conditions, as the Board may
specify. The Board may at any time accelerate the time at which the restrictions
on all or any part of the shares shall lapse.
6.2.3 Rights as a Stockholder. A Participant who acquires shares of
-----------------------
restricted stock will have all of the rights of a Stockholder with respect to
such shares including the right to receive dividends and to vote such shares.
Unless the Board otherwise determines, certificates evidencing shares of
restricted stock will remain in the possession of the Company until such shares
are free of all restrictions under the Plan.
6.2.4 Purchase Price. The purchase price of shares of restricted
--------------
stock shall be determined by the Board, in its sole discretion.
6.2.5 Other Awards Settled With Restricted Stock. The Board may
------------------------------------------
provide that any or all the Common Stock delivered pursuant to an Award will be
restricted stock.
6.2.6 Unrestricted Stock. The Board may, in its sole discretion, sell
------------------
to any Participant shares of Common Stock free of restrictions under the Plan
for a price determined by the Board, but which may not be less than the par
value per share of the Common Stock.
6.3 Deferred Stock
--------------
6.3.1 Deferred Stock Award. A deferred stock Award entitles the
--------------------
recipient to receive shares of deferred stock, which is Common Stock to be
delivered in the future. Delivery of the Common Stock will take place at such
time or times, and on such conditions, as the Board may specify. The Board may
at any time accelerate the time at which delivery of all or any part of the
Common Stock will take place.
6.3.2 Other Awards Settled with Deferred Stock. The Board may, at the
----------------------------------------
time any Award described in this Section 6 is granted, provide that, at the time
Common Stock would otherwise be delivered pursuant to the Award, the Participant
will instead receive an instrument evidencing the right to future delivery of
deferred stock.
4
6.4 Performance Awards
------------------
6.4.1 Performance Awards. A performance Award entitles the recipient
------------------
to receive, without payment, an amount, in cash or Common Stock or a
combination thereof (such form to be determined by the Board), following the
attainment of performance goals. Performance goals may be related to personal
performance, corporate performance, departmental performance or any other
category of performance deemed by the Board to be important to the success of
the Company. The Board will determine the performance goals, the period or
periods during which performance is to be measured and all other terms and
conditions applicable to the Award.
6.4.2 Other Awards Subject to Performance Conditions. The Board may,
----------------------------------------------
at the time any Award described in this Section 6 is granted, impose a condition
or conditions (in addition to any conditions specified or authorized in this
Section 6 of the Plan) that performance goals be met prior to the Participant's
realization of any payment or benefit under the Award.
7. Purchase Price and Payment
--------------------------
Except as otherwise provided in the Plan, the purchase price of Common
Stock to be acquired pursuant to an Award shall be the price determined by the
Board, provided that such price shall not be less than the par value of the
Common Stock. Except as otherwise provided in the Plan, the Board may determine
the method of payment of the exercise price or purchase price of an Award
granted under the Plan and the form of payment. The Board may determine that all
or any part of the purchase price of Common Stock pursuant to an Award has been
satisfied by past services rendered by the Participant. The Board may agree at
any time, upon request of the Participant, to defer the date on which any
payment under an Award will be made.
8. Loans and Supplemental Grants
-----------------------------
The Company may make a loan to a Participant, either on or after the
grant to the Participant of any Award, in connection with the purchase of Common
Stock under the Award or with the payment of any obligation incurred or
recognized as a result of the Award. The Board will have full authority to
decide whether the loan is to be secured or unsecured or with or without
recourse against the borrower, the terms on which the loan is to be repaid and
the conditions, if any, under which it may be forgiven.
In connection with any Award, the Board may at the time such Award is
made or at a later date, provide for and make a cash payment to the participant
not to exceed an amount equal to (a) the amount of any federal, state and local
income tax or ordinary income for which the Participant will be liable with
respect to the Award, plus (b) an additional amount on a grossed-up basis
necessary to make him or her whole after tax, discharging all the participant's
income tax liabilities arising from all payments under the Plan.
9. Change in Control
-----------------
9.1 Impact of Event
---------------
In the event of a "Change in Control" as defined in Section 9.2, as
applicable, the following provisions shall apply, unless the agreement
evidencing the Award otherwise provides (by specific explicit reference to
5
Section 9.2 below). If a Change in Control occurs while any Awards are
outstanding, then, effective upon the Change in Control, (i) each outstanding
stock option or other stock-based Award awarded under the Plan that was not
previously exercisable and vested shall become immediately exercisable in full
and vested, and will no longer be subject to a right of repurchase by the
Company, (ii) each outstanding restricted stock award or other stock-based Award
subject to restrictions and to the extent not fully vested, shall be deemed to
be fully vested, free of restrictions and conditions and no longer subject to a
right of repurchase by the Company, and (iii) deferral limitations and
conditions that relate solely to the passage of time, continued employment or
affiliation will be waived and removed as to deferred stock Awards and
performance Awards; performance of other conditions (other than conditions
relating solely to the passage of time, continued employment or affiliation)
will continue to apply unless otherwise provided in the agreement evidencing the
Award or in any other agreement between the Participant and the Company or
unless otherwise agreed by the Board.
9.2 Definition of "Change in Control"
---------------------------------
"Change in Control" means an event or occurrence set forth in any one
-------------------
or more of subsections (a) through (d) below (including an event or occurrence
that constitutes a Change in Control under one of such subsections but is
specifically exempted from another such subsection):
(a) the acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of
beneficial ownership of any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) 40% or more of either (i) the
then-outstanding shares of common stock of the Company (the "Outstanding Common
Stock") or (ii) the combined voting power of the then-outstanding securities of
the Company entitled to vote generally in the election of directors (the
"Outstanding Voting Securities"); provided, however, that for purposes of this
-----------------
subsection (a), the following acquisitions of shares of Common Stock shall not
constitute a Change in Control: (i) any acquisition by the Company, (ii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (iii)
any acquisition by any corporation pursuant to a transaction which complies with
clauses (i) and (ii) of subsection (c) of this definition; or
(b) such time as the Continuing Directors (as defined below) do not
constitute a majority of the Board (or, if applicable, the board of directors of
a successor corporation to the Company), where the term "Continuing Director"
means at any date a member of the Board (i) who was a member of the Board as of
May 23, 1994 or (ii) who was nominated or elected subsequent to such date by at
least a majority of the directors who were Continuing Directors at the time of
such nomination or election or whose election to the Board was recommended or
endorsed by at least a majority of the directors who were Continuing Directors
at the time of such nomination or election; provided, however, that there shall
-----------------
be excluded from this clause (ii) any individual whose initial assumption of
office occurred as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents, by or on behalf of a person other than the
Board; or
6
(c) the consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company or a sale or
other disposition of all or substantially all of the assets of the Company in
one or a series of transactions (a "Business Combination"), unless, immediately
following such Business Combination, each of the following two conditions is
satisfied: (i) all or substantially all of the individuals and entities who were
the beneficial owners of the Outstanding Common Stock and Outstanding Voting
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 60% of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding securities entitled
to vote generally in the election of directors, respectively, of the resulting
or acquiring corporation in such Business Combination (which shall include,
without limitation, a corporation which as a result of such transaction owns the
Company or substantially all of the Company's assets either directly or through
one or more subsidiaries) (such resulting or acquiring corporation is referred
to herein as the "Acquiring Corporation") in substantially the same proportions
as their ownership, immediately prior to such Business Combination, of the
Outstanding Common Stock and Outstanding Voting Securities, respectively; and
(ii) no Person (excluding the Acquiring Corporation or any employee benefit plan
(or related trust) maintained or sponsored by the Company or by the Acquiring
Corporation) beneficially owns, directly or indirectly, 40% or more of the then
outstanding shares of common stock of the Acquiring Corporation, or of the
combined voting power of the then-outstanding securities of such corporation
entitled to vote generally in the election of directors; or
(d) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
10. General Provisions
------------------
10.1 Documentation of Awards
-----------------------
Awards will be evidenced by written instruments, which may differ among
Participants, prescribed by the Board from time to time. Such instruments may be
in the form of agreements to be executed by both the Participant and the Company
or certificates, letters or similar instruments which need not be executed by
the participant but acceptance of which will evidence agreement to the terms
thereof. Such instruments shall conform to the requirements of the Plan and may
contain such other provisions (including provisions relating to events of
merger, consolidation, dissolution and liquidations, change of control and
restrictions affecting either the agreement or the Common Stock issued
thereunder), as the Board deems advisable.
10.2 Rights as a Stockholder
-----------------------
Except as specifically provided by the Plan or the instrument
evidencing the Award, the receipt of an Award will not give a Participant rights
as a Stockholder with respect to any shares covered by an Award until the date
of issue of a stock certificate to the participant for such shares.
7
10.3 Conditions on Delivery of Stock
-------------------------------
The Company will not be obligated to deliver any shares of Common Stock
pursuant to the Plan or to remove any restriction from shares previously
delivered under the Plan (a) until all conditions of the Award have been
satisfied or removed, (b) until, in the opinion of the Company's counsel, all
applicable federal and state laws and regulations have been complied with, (c)
if the outstanding Common Stock is at the time listed on any stock exchange,
until the shares have been listed or authorized to be listed on such exchange
upon official notice of issuance, and (d) until all other legal matters in
connection with the issuance and delivery of such shares have been approved by
the Company's counsel. If the sale of Common Stock has not been registered under
the Securities Act of 1933, as amended, the Company may require, as a condition
to exercise of the Award, such representations or agreements as counsel for the
Company may consider appropriate to avoid violation of such act and may require
that the certificates evidencing such Common Stock bear an appropriate legend
restricting transfer.
If an Award is exercised by the participant's legal representative, the
Company will be under no obligation to deliver Common Stock pursuant to such
exercise until the Company is satisfied as to the authority of such
representative.
10.4 Tax Withholding
---------------
The Company will withhold from any cash payment made pursuant to an
Award an amount sufficient to satisfy all federal, state and local withholding
tax requirements (the "withholding requirements").
In the case of an Award pursuant to which Common Stock may be
delivered, the Board will have the right to require that the participant or
other appropriate person remit to the Company an amount sufficient to satisfy
the withholding requirements, or make other arrangements satisfactory to the
Board with regard to such requirements, prior to the delivery of any Common
Stock. If and to the extent that such withholding is required, the Board may
permit the participant or such other person to elect at such time and in such
manner as the Board provides to have the Company hold back from the shares to be
delivered, or to deliver to the Company, Common Stock having a value calculated
to satisfy the withholding requirement.
10.5 Transferability of Awards
-------------------------
Except as may be authorized by the Board, in its sole discretion, no
Award (other than an Award in the form of an outright transfer of cash or Common
Stock not subject to any restrictions) may be sold, assigned, transferred,
pledged or otherwise encumbered other than by will or the laws of descent and
distribution, and during a Participant's lifetime an Award requiring exercise
may be exercised only by him or her (or in the event of incapacity, the person
or persons properly appointed to act on his or her behalf). The Board may, in
its discretion, determine the extent to which Awards granted to a Participant
shall be transferable, and such provisions permitting or acknowledging transfer
shall be set forth in the written agreement evidencing the Award executed and
delivered by or on behalf of the Company and the Participant.
8
10.6 Adjustments in the Event of Certain Transactions
------------------------------------------------
(a) In the event of a stock dividend, stock split or combination of
shares, or other distribution with respect to holders of Common Stock other than
normal cash dividends, the Board will make (i) appropriate adjustments to the
maximum number of shares that may be delivered under the Plan under Section 4
above and (ii) appropriate adjustments to the number and kind of shares of stock
or securities subject to Awards then outstanding or subsequently granted, any
exercise prices relating to Awards and any other provisions of Awards affected
by such change.
(b) In the event of any recapitalization, merger or consolidation
involving the Company, any transaction in which the Company becomes a subsidiary
of another entity, any sale or other disposition of all or a substantial portion
of the assets of the Company or any similar transaction, as determined by the
Board, the Board in its discretion may make appropriate adjustments to
outstanding Awards to avoid distortion in the operation of the Plan.
10.7 Employment Rights
-----------------
Neither the adoption of the Plan nor the grant of Awards will confer
upon any person any right to continued employment with the Company or any
subsidiary or interfere in any way with the right of the Company or subsidiary
to terminate any employment relationship at any time or to increase or decrease
the compensation of such person. Except as specifically provided by the Board in
any particular case, the loss of existing or potential profit in Awards granted
under the Plan will not constitute an element of damages in the event of
termination of an employment relationship even if the termination is in
violation of an obligation of the Company to the employee.
Whether an authorized leave of absence, or absence in military or
government service, shall constitute termination of employment shall be
determined by the Board at the time. For purposes of this Plan, transfer of
employment between the Company and its subsidiaries shall not be deemed
termination of employment.
10.8 Other Employee Benefits
-----------------------
The value of an Award granted to a Participant who is an employee, and
the amount of any compensation deemed to be received by an employee as a result
of any exercise or purchase of Common Stock pursuant to an Award or sale of
shares received under the Plan, will not constitute "earnings" or "compensation"
with respect to which any other employee benefits of such employee are
determined, including without limitation benefits under any pension, stock
ownership, stock purchase, life insurance, medical, health, disability or salary
continuation plan.
10.9 Legal Holidays
--------------
If any day on or before which action under the Plan must be taken falls
on a Saturday, Sunday or legal holiday, such action may be taken on the next
succeeding day not a Saturday, Sunday or legal holiday.
10.10 Foreign Nationals
-----------------
Without amending the Plan, Awards may be granted to persons who are
foreign nationals or employed outside the United States or both, on such terms
and conditions different from those specified in the Plan, as may, in the
judgment of the Board, be necessary or desirable to further the purpose of the
Plan.
10.11 Governing Law
-------------
The provisions of the Plan and all Awards made hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware, without regard to any applicable conflicts of law.
11. Termination and Amendment
-------------------------
The Plan shall remain in full force and effect until terminated by the
Board. Subject to the last sentence of this Section 11, the Board may at any
time or times amend the Plan or any outstanding Award for any purpose that may
at the time be permitted by law, or may at any time terminate the Plan as to any
further grants of Awards. No amendment of the Plan or any agreement evidencing
Awards under the Plan may adversely affect the rights of any participant under
any Award previously granted without such participant's consent.
As adopted and in effect as of December 10, 2001
9
EXHIBIT 5
Kadant Inc.
One Acton Place, Suite 202
Acton, Massachusetts 01720
December 23, 2002
Kadant Inc.
One Acton Place, Suite 202
Acton, Massachusetts 01720
Re: Registration Statement on Form S-8 Relating to 612,000 Shares of the
Common Stock, $.01 par value, of Kadant Inc.
Dear Sirs:
I am General Counsel to Kadant Inc., a Delaware corporation (the
"Company"), and have acted as counsel in connection with the registration under
the Securities Act of 1933, as amended, on Form S-8 (the "Registration
Statement"), of 612,000 shares of the Company's Common Stock, $.01 par value per
share (the "Shares") subject to Company's 2001 Employees Equity Incentive Plan
(the "Plan").
I have reviewed the corporate proceedings taken by the Company with
respect to the authorization of the issuance of the Shares. I have also examined
and relied upon originals or copies, certified or otherwise authenticated to my
satisfaction, of all corporate records, documents, agreements or other
instruments of the Company and have made all investigations of law and have
discussed with the Company's representatives all questions of fact that I have
deemed necessary or appropriate.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Company is a corporation validly existing and in corporate good
standing under the laws of the State of Delaware.
2. The issuance and sale of the Shares as contemplated in the
Registration Statement have been duly authorized by the Company.
3. The Shares, when issued and sold in accordance with the provisions
of the Plan, will be validly issued, fully paid and nonassessable.
This opinion is limited to the applicable provisions of the Delaware
Constitution, the General Corporation Law of the State of Delaware ("Delaware
Law") and reported judicial decisions interpreting Delaware Law.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Sandra L. Lambert
---------------------
Sandra L. Lambert
General Counsel