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Registration No.
- -------------------------------------------------------------------------------
As filed with the Securities and Exchange Commission on June 29, 2001.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
RAYTHEON COMPANY
(Exact name of issuer as specified in its charter)
DELAWARE 95-1778500
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
141 Spring Street, Lexington, Massachusetts 02421
(Address of Principal Executive Offices) (Zip Code)
Raytheon 2001 Stock Plan
(Full title of the plan)
THOMAS D. HYDE, ESQ.
Senior Vice President and General Counsel
RAYTHEON COMPANY
141 Spring Street
Lexington, Massachusetts 02421
(781) 862-6600
(Name and Address of Agent for Service)
CALCULATION OF REGISTRATION FEE
- -------------- ---------- ---------- ------------ ------------
Title of Amount Proposed Proposed Amount of
Securities to to be Maximum Maximum Registration
be Registered Registered Offering Aggregate Fee
Price Per Offering
Share*
- -------------- ---------- ---------- ------------ ----------
Common Stock, 28,000,000 $27.60 $772,800,000 $193,200
$0.01 par shares
value per
share
- -------------- ---------- ---------- ------------ -----------
* This estimate is made pursuant to Rule 457(h) solely for the purpose of
determining the registration fee. It is not known how many shares will be
purchased under the plan or at what price such shares will be purchased. The
above calculation is based on the average of the high and low prices of the
Registrant's Common Stock as reported on the New York Stock Exchange on
June 27, 2001.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the SEC by Raytheon Company (the
"Registrant") are hereby incorporated by reference in this Registration
Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000;
(2) All reports filed by the Registrant pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") since December 31, 2000 including the
Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended April 1, 2001 and the Registrant's Current
Reports on Forms 8-K and 8-K/A filed on April 11, 2001, April
20, 2001, April 27, 2001, May 3, 2001, May 7, 2001, May 10,
2001, May 15, 2001, and May 16, 2001; and
(3) The description of the Registrant's Common Stock set forth in
the Registrant's registration statement on Form 8-A filed on
May 1, 2001, including any amendment or report filed for the
purpose of updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all of such securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement contained herein or in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document or portion thereof which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts or Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") sets forth provisions permitting and, in some situations, requiring
Delaware corporations, such as the Registrant, to provide indemnification to
their directors and officers for losses and litigation expense incurred in
connection with their service to the corporation in those capacities.
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The Restated Certificate of Incorporation of Raytheon Company
provides that 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, except to the extent such exemption or limitation is prohibited
under the DGCL as it currently exists or as it may be amended in the future.
The Restated Certificate of Incorporation also provides that the
Registrant shall indemnify each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person is or was a director or officer of the Registrant
or is or was serving at the request of the Registrant as a director or officer
of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans (whether
the basis of such action, suit or proceeding is alleged action in an official
capacity as a director or officer or in any other capacity while serving as a
director or officer), to the fullest extent authorized by the DGCL as it
currently exists or as it may be amended in the future, against all expense,
liability and loss (including attorneys' fees, judgments, fines, payments in
settlement and excise taxes or penalties arising under the Employee Retirement
Income Security Act of 1974, as in effect from time to time) reasonably incurred
or suffered by such person. Such indemnification shall continue as to a person
who ceases to be a director or officer of the Registrant and shall inure to the
benefit of such person's heirs, executors and administrators. The Registrant
shall not be required to indemnify a person in connection with such action, suit
or proceeding initiated by such person if it was not authorized by the Board of
Directors except under limited circumstances.
The Restated Certificate of Incorporation also provides that the
Registrant shall pay the expenses of directors and officers incurred in
defending any such action, suit or proceeding in advance of its final
disposition; provided, however, that, if and to the extent that the DGCL
requires, the payment of expenses incurred by a director or officer in advance
of the final disposition of any action, suit or proceeding shall be made only
upon receipt of an undertaking by the director or officer to repay all amounts
advanced if it should be ultimately determined that the director or officer is
not entitled to be indemnified under the Restated Certificate of Incorporation
or otherwise. If a claim for indemnification or advancement of expenses by an
officer or director under the Restated Certificate of Incorporation is not paid
in full within 30 calendar days after a written claim therefor has been received
by the Registrant, the claimant may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be entitled also to be
paid the expense of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred in
defending any action, suit or proceeding in advance of its final disposition
where the required undertaking, if any is required, has been tendered to the
Registrant) that the claimant has not met the standard of conduct which makes it
permissible under the DGCL for the Company to indemnify the claimant for the
amount claimed. The Registrant shall have the burden of providing such defense.
Neither the failure of the Registrant to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
circumstances because the claimant has met the applicable standard of conduct
set forth in the DGCL, nor an actual determination by the Registrant that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct. The right to indemnification and the payment of expenses
conferred on any person by the Restated Certificate of Incorporation shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Restated Certificate of Incorporation or the
Amended and Restated By-Laws of Raytheon Company, agreement, vote of
stockholders or disinterested directors or otherwise.
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Any repeal or modification of the provisions of the Restated
Certificate of Incorporation described herein by the stockholders of the
Registrant will not adversely affect any limitation on the personal liability of
directors for, or any rights of directors in respect of, any cause of action,
suit or claim accruing or arising prior to the repeal or modification.
The Restated Certificate of Incorporation also provides that the
Registrant may maintain insurance to protect itself and any director, officer,
employee or agent of the Registrant or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability or loss,
whether or not the Registrant would have the power to indemnify such person
against such expense, liability or loss under the DGCL.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are part of this Registration Statement:
4.1 Raytheon Company Restated Certificate of Incorporation,
heretofore filed as an exhibit to the Company's Annual Report
on Form 10-K for the year ended December 31, 1997, is hereby
incorporated by reference.
4.2 Certificate of Amendment of Restated Certificate of Incorporation
of Raytheon Company.
4.3 Certificate of Amendment of Restated Certificate of Incorporation
of Raytheon Company.
4.4 Certificate of Amendment of Restated Certificate of Incorporation
of Raytheon Company.
4.5 Raytheon Company Amended and Restated By-Laws, heretofore filed
as an exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1997, are hereby incorporated by
reference.
4.6 Raytheon 2001 Stock Plan.
5.1 Opinion of John W. Kapples, Esq. as to the legality of the
securities being registered.
23.1 Consent of John W. Kapples, Esq. (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on the signature page of the
Registration Statement).
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Item 9. Undertakings.
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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 to include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this 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 that remain
unsold at the termination of the offering;
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual
report pursuant to Sections 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 this 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; and
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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.
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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 Town of Lexington, Commonwealth of Massachusetts, on
this 27th day of June, 2001.
RAYTHEON COMPANY
/s/Thomas D. Hyde
Thomas D. Hyde
Senior Vice President and
General Counsel for the Registrant
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Franklyn A.
Caine, Richard A. Goglia and Thomas D. Hyde, and each of them singly, acting
alone and without another, his/her true and lawful attorney-in-fact with the
authority to execute in the name of each such person, and to file with the
Securities and Exchange Commission, together with any exhibits thereto and other
documents therewith, any and all (1) amendments (including without limitation
post-effective amendments) to this Registration Statement on Form S-8 or (2)
additional Registration Statements which may be filed pursuant to General
Instruction E to Form S-8 to register additional securities under the employee
benefit plans named herein, as may be necessary or advisable to enable the
Registrant to comply with the Securities Act of 1933, as amended, and any rules,
regulations, and requirements of the Securities and Exchange Commission in
respect thereof, which amendments or additional Registration Statements may make
such other changes as the aforesaid attorney-in-fact executing the same deems
appropriate.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Daniel P. Burnham Chairman of the Board of June 27, 2001
Daniel P. Burnham Directors and Chief Executive
Officer (Principal Executive
Officer) and Director
/s/ Franklyn A. Caine Senior Vice President and Chief June 27, 2001
Franklyn A. Caine Financial Officer (Principal
Financial Officer)
/s/ Edward S. Pliner Vice President and Corporate June 27, 2001
Edward S. Pliner Controller (Principal Accounting
Officer)
/s/ Barbara M. Barrett Director June 27, 2001
Barbara M. Barrett
/s/ Ferdinand Colloredo-Mansfeld Director June 27, 2001
Ferdinand Colloredo-Mansfeld
/s/ John M. Deutch Director June 27, 2001
John M. Deutch
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/s/ Thomas E. Everhart Director June 27, 2001
Thomas E. Everhart
/s/ John R. Galvin Director June 27, 2001
John R. Galvin
Director June , 2001
L. Dennis Kozlowski
/s/ Henrique de Campos Meirelles Director June 27, 2001
Henrique de Campos Meirelles
/s/ Frederic M. Poses Director June 27, 2001
Frederic M. Poses
/s/ Warren B. Rudman Director June 27, 2001
Warren B. Rudman
/s/ Michael C. Ruettgers Director June 27, 2001
Michael C. Ruettgers
/s/ William R. Spivey Director June 27, 2001
William R. Spivey
/s/ Alfred M. Zeien Director June 27, 2001
Alfred M. Zeien
EXHIBIT LIST
The following exhibits are part of this Registration Statement:
4.1 Raytheon Company Restated Certificate of Incorporation,
heretofore filed as an exhibit to the Company's Annual Report
on Form 10-K for the year ended December 31, 1997, is hereby
incorporated by reference.
4.2 Certificate of Amendment of Restated Certificate of Incorporation
of Raytheon Company.
4.3 Certificate of Amendment of Restated Certificate of Incorporation
of Raytheon Company.
4.4 Certificate of Amendment of Restated Certificate of Incorporation
of Raytheon Company.
4.5 Raytheon Company Amended and Restated By-Laws, heretofore filed
as an exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1997, are hereby incorporated by
reference.
4.6 Raytheon 2001 Stock Plan.
5.1 Opinion of John W. Kapples, Esq. as to the legality of the
securities being registered.
23.1 Consent of John W. Kapples, Esq. (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on the signature page of the
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EXHIBIT 4.2 W/557673v1
CERTIFICATE OF AMENDMENT
OF RESTATED CERTIFICATE OF INCORPORATION OF
RAYTHEON COMPANY
Raytheon Company, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That at a regular meeting of the members of the board of
directors of the Corporation, resolutions were duly adopted setting forth
proposed amendments to the Restated Certificate of Incorporation of the
Corporation and declaring said amendments to be advisable. The resolutions
setting forth the proposed amendments are as follows:
RESOLVED, that, accordingly, upon approval by the requisite
vote of the holders of each of the Class A and Class B Common Stock and
the filing of the requisite certificate of amendment to the Restated
Certificate of Incorporation with the Secretary of State of the State
of Delaware, Section 1 of Article IV of the Corporation's Restated
Certificate of Incorporation be amended to read in its entirety as
follows:
Without regard to any other provision of this
Restated Certificate of Incorporation (including, without
limitation, all of the provisions of Article IV, and
including, without limitation, those in Section 2(b)(iii) of
Article IV relating to the treatment of the shares of Class A
Common Stock and Class B Common Stock in the case of any
split, subdivision, combination or reclassification, and those
in Section 2(b)(vi) of Article IV relating to the identical
rights of the holders of Class A Common Stock and the rights
of the holders of Class B Common Stock, all of which are
hereby amended as and to the extent necessary to allow the
matters and transactions contemplated and effected hereby),
each one (1) share of Class A Common Stock (as defined below),
either issued and outstanding or held by the Corporation as
treasury stock, immediately prior to the time this amendment
becomes effective shall be and are hereby automatically
reclassified and changed (without any further act) into
one-twentieth (1/20th) of a fully-paid and nonassessable share
of Class A Common Stock, without increasing or decreasing the
amount of stated capital or paid-in surplus of the
Corporation, provided that no fractional shares shall be
issued to any holder of fewer than 20 shares of Class A Common
Stock immediately prior to the time this amendment becomes
effective, and that instead of issuing such fractional shares,
the Corporation shall, as may be determined by the Chief
Financial Officer of the Corporation, either (1) arrange for
the disposition of fractional interests by those entitled
thereto, by the mechanism of having (x) the transfer agent of
the Corporation aggregate such fractional interests and (y)
the shares resulting from the aggregation sold and (z) the net
proceeds received from the sale be allocated and distributed
among the holders of the fractional interests as their
respective interests appear, or (2) pay in cash the fair value
of such fractions of a share as of the time when this
amendment becomes effective.
Without regard to any other provision of this
Restated Certificate of Incorporation (including, without
limitation, all of the provisions of Article IV, and
including, without limitation, those in Section 2(b)(iii) of
Article IV relating to the treatment of the shares of Class A
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Common Stock and Class B Common Stock in the case of any
split, subdivision, combination or reclassification, and those
in Section 2(b)(vi) of Article IV relating to the identical
rights of the holders of Class A Common Stock and the rights
of the holders of Class B Common Stock, all of which are
hereby amended as and to the extent necessary to allow the
matters and transactions contemplated and effected hereby),
each one (1) share of Class B Common Stock (as defined below),
either issued and outstanding or held by the Corporation as
treasury stock, immediately prior to the time this amendment
becomes effective shall be and are hereby automatically
reclassified and changed (without any further act) into
one-twentieth (1/20th) of a fully-paid and nonassessable share
of Class B Common Stock, without increasing or decreasing the
amount of stated capital or paid-in surplus of the
Corporation, provided that no fractional shares shall be
issued to any holder of fewer than 20 shares of Class B Common
Stock immediately prior to the time this amendment becomes
effective, and that instead of issuing such fractional shares,
the Corporation shall, as may be determined by the Chief
Financial Officer of the Corporation, either (1) arrange for
the disposition of fractional interests by those entitled
thereto, by the mechanism of having (x) the transfer agent of
the Corporation aggregate such fractional interests and (y)
the shares resulting from the aggregation sold and (z) the net
proceeds received from the sale be allocated and distributed
among the holders of the fractional interests as their
respective interests appear, or (2) pay in cash the fair value
of such fractions of a share as of the time when this
amendment becomes effective.
The Corporation is authorized to issue 272,500,000
shares of capital stock of which (a) 72,500,000 shares shall
be shares of Common Stock $.01 par value per share ("Common
Stock"), and which shares of Common Stock shall be divided
into two classes, 22,500,000 shares of Common Stock shall be
shares of Class A Common Stock ("Class A Common Stock") and
50,00,000 shares of Common Stock shall be shares of Class B
Common Stock ("Class B Common Stock"), and (b) 200,000,000
shares shall be shares of Preferred Stock $.01 par value per
share ("Preferred Stock").
SECOND: That at the annual meeting of stockholders, said amendments
were duly adopted in accordance with the applicable provisions of Sections 242
of the General Corporation Law of the State of Delaware.
THIRD: That the certificate shall become effective at 6:00 p.m. New
York City time on Monday, May 14, 2001, in accordance with the applicable
provisions of Section 103 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Raytheon Company has caused this certificate to be
signed by its Vice President and Secretary this 14th day of May, 2001.
By:
Name: John W. Kapples
Title: Vice President and Secretary
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EXHIBIT 4.3
CERTIFICATE OF AMENDMENT
OF RESTATED CERTIFICATE OF INCORPORATION OF
RAYTHEON COMPANY
Raytheon Company, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That at a regular meeting of the members of the Board of
Directors of the Corporation, resolutions were duly adopted setting forth
proposed amendments to the Restated Certificate of Incorporation of the
Corporation and declaring said amendments to be advisable. The resolutions
setting forth the proposed amendments are as follows:
RESOLVED, that, upon approval of the stockholders of the
Corporation, the following changes (the "Charter Amendments") be made
to the Corporation's Restated Certificate of Incorporation:
Section 1 of Article IV shall be amended to read in its
entirety as follows:
Each share of Class A Common Stock, par value $.01, of the Corporation,
either issued and outstanding or held by the Corporation as treasury stock,
immediately prior to the time this amendment becomes effective shall be and is
automatically reclassified and changed (without any further act) into 1 fully
paid and nonassessable share of Common Stock (as defined below) without
increasing or decreasing the amount of stated capital or paid-in surplus of the
Corporation, provided that no fractional shares shall be issued.
Each share of Class B Common Stock, par value $.01, of the Corporation,
either issued and outstanding or held by the Corporation as treasury stock,
immediately prior to the time this amendment becomes effective shall be and is
automatically reclassified and changed (without any further act) into 1 fully
paid and nonassessable share of Common Stock without increasing or decreasing
the amount of stated capital or paid-in surplus of the Corporation, provided
that no fractional shares shall be issued.
The Corporation is authorized to issue 1,650,000,000 shares of capital
stock of which (a) 1,450,000,000 shares shall be shares of Common Stock $.01 par
value per share ("Common Stock") and (b) 200,000,000 shares shall be shares of
Preferred Stock $.01 par value per share ("Preferred Stock").
Section 2 of Article IV be amended to read in its entirety as
follows:
Common Stock. Except as provided herein, as otherwise provided by law or by
the resolution or resolutions adopted by the Board designating the rights,
powers and preferences of any series of Preferred Stock, the Common Stock shall
have the exclusive right to vote for the election of directors and for all other
purposes, in each case acting by such vote as required under applicable law (or
by such greater vote than would be required under applicable law as may be set
forth herein or in the By-laws of the Corporation). Each share of Common Stock
shall have one vote, and the Common Stock shall vote together as a single class
on all matters to be voted on by the Corporation's stockholders.
Subject to the rights of the holders of any class or series of outstanding
Preferred Stock and subject to any other provisions hereof and applicable law,
holders of Common Stock will be entitled to dividends and such other
distributions in cash, securities or property of the Corporation as may be
declared thereon by the Corporation's Board of Directors, out of funds legally
available therefor, whether payable in cash, property or securities of the
Corporation.
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Section 3 of Article VI be amended to read in its entirety as follows:
Vacancies and newly created directorships. Except as otherwise provided for
or fixed by or pursuant to the provisions of Article IV relating to the rights
of the holders of any class or series of stock having a preference over the
Common Stock as to dividends or upon liquidation to elect directors under
specified circumstances, (i) vacancies on the Board resulting from death,
resignation, disqualification, removal or other cause shall be filled by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board, and not by the stockholders and (ii)
newly created directorships resulting from any increase in the number of
directors after the adoption of a resolution by a majority of the Whole Board in
accordance with Section 1 of this Article VI shall be filled by the affirmative
vote of the holders of Common Stock, voting in accordance with the provisions of
Section 2 of Article IV.
Any director appointed in accordance with clause (i) of the preceding
sentence shall hold office until the next annual or special meeting of
stockholders and until such director's successor shall have been duly elected
and qualified. Any director elected in accordance with clause (ii) of the
preceding sentence shall hold office for the remainder of the full term of the
class of director in which the new directorship was created and until such
director's successor shall have been duly elected and qualified. No decrease in
the number of directors constituting the Board shall shorten the term of any
incumbent director.
Section 4 of Article VI be amended to read in its entirety as follows:
Removal. Subject to the rights of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, any director may be removed from office
only for cause by the affirmative vote of the holders of the shares of Common
Stock, voting in accordance with the provisions of Section 2 of Article IV.
Article VII be amended to read in its entirety as follows:
By-laws. The By-Laws may be altered or repealed and new By-Laws may be
adopted (1) at any annual or special meeting of stockholders, by the affirmative
vote of the holders of the shares of Common Stock voting in accordance with the
provisions of Section 2 of Article IV; provided, however, that in the case of
any such stockholder action at a special meeting of stockholders, notice of the
proposed alteration, repeal or adoption of the new By-Law or By-Laws must be
contained in the notice of such special meeting, or (2) by the affirmative vote
of a majority of the Whole Board.
SECOND: That at the annual meeting of stockholders, said amendments
were duly adopted in accordance with the applicable provisions of Sections 242
of the General Corporation Law of the State of Delaware.
THIRD: That the certificate shall become effective at 6:02 p.m. New
York City time on Monday, May 14, 2001, in accordance with the applicable
provisions of Section 103 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Raytheon Company has caused this certificate to be
signed by its Vice President and Secretary this 14th day of May, 2001.
By:
Name: John W. Kapples
Title: Vice President and Secretary
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EXHIBIT 4.4
CERTIFICATE OF AMENDMENT
OF RESTATED CERTIFICATE OF INCORPORATION OF
RAYTHEON COMPANY
Raytheon Company, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That at a regular meeting of the members of the board
of directors of the Corporation, resolutions were duly adopted setting forth
proposed amendments to the Restated Certificate of Incorporation of the
Corporation and declaring said amendments to be advisable. The resolutions
setting forth the proposed amendments are as follows:
RESOLVED, that, accordingly, upon approval by the requisite
vote of the holders of each of the Class A and Class B Common
Stock and the filing of the requisite certificate of amendment
to the Restated Certificate of Incorporation with the
Secretary of State of the State of Delaware, immediately
following completion of the Reverse Stock Split, Section 1 of
Article IV of the Corporation's Restated Certificate of
Incorporation be amended to read in its entirety as follows:
Without regard to any other provision of this
Restated Certificate of Incorporation (including,
without limitation, all of the provisions of Article
IV, and including, without limitation, those in
Section 2(b)(iii) of Article IV relating to the
treatment of the shares of Class A Common Stock and
Class B Common Stock in the case of any split,
subdivision, combination or reclassification, and
those in Section 2(b)(vi) of Article IV relating to
the identical rights of the holders of Class A Common
Stock and the rights of the holders of Class B Common
Stock, all of which are hereby amended as and to the
extent necessary to allow the matters and
transactions contemplated and effected hereby), each
one (1) share of Class A Common Stock (as defined
below), either issued and outstanding or held by the
Corporation as treasury stock (and including each
fractional share held by any stockholder and each
fractional interest held by the Corporation or its
agent pending disposition on behalf of those entitled
thereto), immediately prior to the time this
amendment becomes effective shall be and hereby is
automatically reclassified and changed (without any
further act) into twenty (20) fully-paid and
nonassessable shares of Class A Common Stock (or,
with respect to such fractional shares and interests,
such lesser number of shares and fractional shares or
interests as may be applicable based upon such 1 to
20 ratio), without increasing or decreasing the
amount of stated capital or paid-in surplus of the
Corporation, provided that no fractional shares shall
be issued.
2
Without regard to any other provision of these
Restated Certificate of Incorporation (including,
without limitation, all of the provisions of Article
IV, and including, without limitation, those in
Section 2(b)(iii) of Article IV relating to the
treatment of the shares of Class A Common Stock and
Class B Common Stock in the case of any split,
subdivision, combination or reclassification, and
those in Section 2(b)(vi) of Article IV relating to
the identical rights of the holders of Class A Common
Stock and the rights of the holders of Class B Common
Stock, all of which are hereby amended as and to the
extent necessary to allow the matters and
transactions contemplated and effected hereby), each
one (1) share of Class B Common Stock (as defined
below), either issued and outstanding or held by the
Corporation as treasury stock (and including each
fractional share held by any stockholder and each
fractional interest held by the Corporation or its
agent pending disposition on behalf of those entitled
thereto), immediately prior to the time this
amendment becomes effective shall be and hereby is
automatically reclassified and changed (without any
further act) into twenty (20) fully-paid and
nonassessable shares of Class B Common Stock (or,
with respect to such fractional shares and interests,
such lesser number of shares and fractional shares or
interests as may be applicable based upon such 1 to
20 ratio), without increasing or decreasing the
amount of stated capital or paid-in surplus of the
Corporation, provided that no fractional shares shall
be issued. The Corporation is authorized to issue
1,650,000,000 shares of capital stock of which (a)
1,450,000,000 shares shall be shares of Common Stock
$.01 par value per share ("Common Stock"), and which
shares of Common Stock shall be divided into two
classes, 450,000,000 shares of Common Stock shall be
shares of Class A Common Stock ("Class A Common
Stock") and 1,000,000,000 shares of Common Stock
shall be shares of Class B Common Stock ("Class B
Common Stock"), and (b) 200,000,000 shares shall be
shares of Preferred Stock $.01 par value per share
("Preferred Stock").
SECOND: That at the annual meeting of stockholders, said
amendments were duly adopted in accordance with the applicable provisions of
Sections 242 of the General Corporation Law of the State of Delaware.
THIRD: That the certificate shall become effective at 6:01
p.m. New York City time on Monday, May 14, 2001, in accordance with the
applicable provisions of Section 103 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, Raytheon Company has caused this certificate to be
signed by its Vice President and Secretary this 14th day of May, 2001.
By:
Name: John W. Kapples
Title: Vice President and Secretary
1
EXHIBIT 4.6
RAYTHEON 2001 STOCK PLAN
ARTICLE I
1. Plan Name. This plan shall be known as the Raytheon 2001
Stock Plan.
ARTICLE II
2. Purpose. This Plan is intended to encourage ownership of Stock by
key employees of Raytheon Company and its Affiliates and to provide additional
incentive for them to promote the success of the Company's business. With
respect to any Incentive Stock Options that may be granted hereunder, the Plan
is intended to be an incentive stock option plan within the meaning of Section
422 of the Code.
ARTICLE III
3. Effective Date; Term. The Plan is effective as of the date on which
the Plan is adopted by the Board, subject to approval of the stockholders as
required by law. No Award shall be granted under the Plan after the close of
business on the day immediately preceding the tenth (10th) anniversary of the
effective date of the Plan. Subject to other applicable provisions of the Plan,
all Awards made under the Plan prior to such termination of the Plan shall
remain in effect until such Awards have been satisfied or terminated in
accordance with the Plan and the terms of such Awards.
ARTICLE IV
4. Definitions. As used in the Plan, the following terms have the
following meanings:
4.1 Affiliate means any entity, whether now or hereafter existing, which
controls, is controlled by, is under common control with, the Company
(including, but not limited to, joint ventures, limited liability companies,
partnerships) or any entity with respect to which the Committee determines that
the Company has a material business interest.
4.2 Award means any stock options (including ISOs and NSOs), SARs (including
free-standing and tandem SARs), Restricted Stock Awards, Stock Units, or any
combination of the foregoing granted pursuant to the Plan, except, however, when
the term is being used under the Plan with respect to a particular category of
grant in which case it shall only refer to that particular category of grant.
4.3 Board means the Board of Directors of the Company.
4.4 Cause means, for purposes of this Plan: (i) the Participant's
intentional, persistent failure, dereliction, or refusal to perform such duties
as are reasonably assigned to him or her by the officers or directors of the
Company; (ii) the Participant's fraud, dishonesty or other deliberate injury to
the Company in the performance of his or her duties on behalf of, or for, the
Company; (iii) the willful commission by the Participant of a criminal or other
act that causes substantial economic damage to the Company or substantial injury
to the business reputation of the Company; (iv) the Participant's material
breach of his or her employment or engagement agreement, if any; or (v) the
Participant's breach of any material provision of the Participant's Grant
Agreement specifying the terms of the particular Award. For purposes of the
Plan, no act, or failure to act, on the part of any person shall be considered
"willful" unless done or omitted to be done by the person other than in good
faith and without reasonable belief that the person's action or omission was in
the best interest of the Company.
2
4.5 Change in Corporate Control means:
(a) The acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) (a "Person") of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (i)
the then-outstanding shares of common stock of the Company (the "Outstanding
Company Common Stock") or (ii) the combined voting power of the then-outstanding
voting securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however,
that, for purposes of this Section, the following acquisitions shall not
constitute a Change of Control: (A) any acquisition directly from the Company,
(B) any acquisition by the Company, (C) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any Affiliated
Company or (D) any acquisition by any corporation pursuant to a transaction that
complies with Sections 4.5(a)(i), 4.5(c)(ii) and 4.5(c)(iii).
(b) Individuals who, as of April 1, 2000, constitute the Board (the "Incumbent
Board") cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director subsequent to the
date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs 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.
(c) Consummation of a reorganization, merger, statutory share exchange or
consolidation or similar corporate transaction involving the Company or any of
its subsidiaries, a sale or other disposition of all or substantially all of the
assets of the Company, or the acquisition of assets or stock of another entity
by the Company or any of its subsidiaries (each, a "Business Combination"), in
each case unless, following such Business Combination, (i) all or substantially
all of the individuals and entities that were the beneficial owners of the
Outstanding Company Common Stock and the Outstanding Company 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 voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation that, as a result of such transaction, owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership
immediately prior to such Business Combination of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities, as the case may be, (ii) no
Person (excluding any corporation resulting from such Business Combination or
any employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then-outstanding shares of common
stock of the corporation resulting from such Business Combination or the
combined voting power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior to the
Business Combination, and (iii) at least a majority of the members of the board
of directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for such Business Combination;
or
3
(d) Approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company.
4.6 Code means the Internal Revenue Code of 1986, as amended, and any related
rules, regulations and interpretations.
4.7 Committee means the Management Development and Compensation Committee (MDCC)
of the Company's Board of Directors, consisting exclusively of directors who at
the relevant time are "outside directors" within the meaning of ss.162(m) of the
Code and "non-employee directors" within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934.
4.8 Company means Raytheon Company, a Delaware corporation.
4.9 Company Officer means the Chairman of the Board, the President, and any
Executive Vice President, Senior Vice President or Vice President (elected or
appointed) of the Company.
4.10 Director means a member of the Board of Directors of Raytheon Company.
4.11 Fair Market Value means the value of a share of Stock of the Company on any
date as the Committee shall in good faith determine.
4.12 Grant Agreement means the agreement between the Company and the Participant
pursuant to which the Company authorizes an Award hereunder. Each Grant
Agreement entered into between the Company and a Participant with respect to an
Award granted under the Plan shall incorporate the terms of this Plan and shall
contain such provisions, consistent with the provisions of the Plan, as may be
established by the Committee.
4.13 Grant Date means the date on which the Committee formally acts to grant an
Award to a Participant or such other date as the Committee shall so designate at
the time of taking such formal action.
4.14 Immediate Family means any child, stepchild, grandchild, parent,
grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships.
4.15 Incentive Stock Option or "ISO" means an Option grant that is intended
to meet the requirements of Section 422 of the Code.
4.16 Medical Leave of Absence means a leave of absence for medical reasons
approved in writing by the Company's disability management group which will
terminate as of the earlier of the date the Participant is found by the
disability management group to be no longer disabled or the date the employee is
terminated from employment in accordance with Company policy.
4.17 Non-Statutory Stock Option or "NSO" means an Option grant that is not
intended to be an Incentive Stock Option.
4.18 Option means an option to purchase shares of the Stock granted under the
Plan.
4.19 Optionee means a person eligible to receive an Option, as provided in
Section 8.1, to whom an Options shall have been granted under the Plan.
4
4.20 Option Period means such period (not to exceed ten (10) years from the
granting of an ISO) from the Grant Date to the date on which the option expires
as may be determined by the Committee and set forth in the Grant Agreement.
4.21 Option Price means the price paid by an Optionee for an Option under this
Plan.
4.22 Option Share means any share of Stock of the Company transferred to an
Optionee upon exercise of an Option pursuant to this Plan.
4.23 Participant means a director, officer, employee or consultant who is
granted an Award under the Plan.
4.24 Personal Leave of Absence means a leave of absence for personal reasons for
a period of no more than one year approved in writing by the Senior Vice
President, Human Resources, or his delegate.
4.25 Plan means this Raytheon 2001 Stock Plan.
4.26 Plan Year means the Calendar Year, except that the first Plan Year shall
commence on the Effective Date, as described in Section 3 and shall end on the
December 31 first following the Effective Date.
4.27 Related Corporation means a parent corporation or a subsidiary corporation,
each as defined in Section 424 of the Code.
4.28 Restricted Stock Award means any Award of shares of restricted Stock
granted pursuant to Article XI of the Plan.
4.29 Retirement means, for purposes of this Plan, the Termination of Service
with the Company, other than for Cause, at any time after attaining age
fifty-five (55) and having completed at least ten (10) years of service, or
Termination of Service under circumstances which the Committee deems equivalent
to retirement.
4.30 SAR means a stock appreciation right, as awarded under Article X.
4.31 Stock means the common stock, $0.01 par value, of the Company, provided
that, in the event the Company has outstanding Class A and Class B common stock,
Stock means the Class B common stock.
4.32 Stock Unit means credits to a bookkeeping reserve account solely for
accounting purposes, where the amount of the credit shall equal the Fair Market
Value of a share of Stock on the date of grant (unless the Committee provides
otherwise in the Grant Agreement), and which shall be subsequently increased or
decreased to reflect the Fair Market Value of a share of Stock. Stock Units do
not require segregation of any of the Company's assets. Stock Units are awarded
under Article XI.
4.33 Termination of Service means cessation of performance of services for the
Company or an Affiliate by an employee or consultant and the departure from
active status as a Director by a non-employee Director. For purposes of
maintaining a Participant's continuous status as an employee and accrual of
rights under any Award granted pursuant to the Plan, transfer of an employee
among the Company and its Affiliates shall not be considered a Termination of
Service with the Company provided that no more than 30 days elapse between
termination from the Company and commencement of employment elsewhere in the
Company or with an Affiliate.
5
4.34 Vesting Period means that period of time during which the shares of Stock
(or a portion thereof) underlying an Award are subject to a risk of forfeiture.
ARTICLE V
5. Stock Subject to the Plan.
5.1 Shares of Stock in an amount to be determined by the Committee but not to
exceed twenty-eight million (28,000,000) shares of Stock, shall be subject to
Award under the Plan. The Company shall reserve such number of shares of Stock
for Awards under the Plan, subject to adjustments as provided in Article XII of
the Plan. If any Award, or portion of an Award, under the Plan expires or
terminates unexercised, becomes unexercisable or is forfeited or otherwise
terminated, surrendered or canceled as to any shares of Stock without the
delivery of such shares or other consideration, the shares of Stock subject to
such Award shall thereafter be available for further Awards under the Plan.
Shares issued under the Plan may be shares of Stock of original issue, shares of
treasury stock, or shares of Stock that have been reacquired by the Company.
5.2 Subject to adjustments as provided in Article XII, The maximum number of
shares of Stock subject to Awards of any combination that may be granted during
any one fiscal year of the Company to any one individual shall be limited to
seven hundred thousand (700,000) shares. The foregoing per-individual limit
shall not be adjusted to effect a restoration of shares of Stock with respect to
which the related Award is terminated, surrendered or canceled.
5.3 Subject to adjustments as provided in Article XII, the maximum number of
shares of Stock subject to Award as incentive stock options shall be limited to
fourteen million (14,000,000) shares, and the number of restricted shares
released from a substantial risk of forfeiture shall not exceed five million six
hundred thousand (5,600,000), including both stock and performance units.
ARTICLE VI
6. Proceeds. The proceeds received by the Company from the sale of
Stock pursuant to Awards granted under the Plan will be used for general
corporate purposes.
ARTICLE VII
7. Administration.
7.1 General. The Plan shall be administered by the Committee. The Committee's
determinations under the Plan (including without limitation determinations of
the persons to receive Awards, the form, amount and timing of such Awards, the
terms and provisions of such Awards and the agreements evidencing same) need not
be uniform and may be made by the Committee selectively among persons who
receive, or are eligible to receive, Awards under the Plan, whether or not such
persons are similarly situated.
6
7.2 Procedure. The Committee shall meet at such times and places and upon such
notice as it may determine. A majority of the members of the Committee shall
constitute a quorum. Any acts by the Committee may be taken at any meeting at
which a quorum is present and shall be by majority vote of those members
entitled to vote. Additionally, any acts reduced to writing or approved in
writing by all of the members of the Committee shall be valid acts of the
Committee. Members of the Committee who are either eligible for Awards or have
been granted Awards may vote on any matters affecting the administration of the
Plan or the grant of Awards pursuant to the Plan, except that no such member
shall act upon the granting of an Award to himself or herself, but any such
member may be counted in determining the existence of a quorum at any meeting of
the Committee during which action is taken with respect to the granting of an
Award to him or her.
7.3 Duties. The Committee shall have full power and authority to administer and
interpret the Plan and to adopt such rules, regulations, agreements, guidelines
and instruments for the administration of the Plan and for the conduct of its
business as the Committee deems necessary or advisable, all within the
Committee's sole and absolute discretion. The Committee shall have full power
and authority to take all other actions necessary to carry out the purpose and
intent of the Plan, including without limitation the power to accelerate or
otherwise change the time in which an Award may be exercised or becomes payable,
and to waive, in whole or in part, any restriction or condition with respect to
such Award, including but not limited to, any restriction or condition with
respect to vesting or exercisability of an Award following a Participant's
Termination of Service or death.
Notwithstanding any other provision in the Plan to the contrary, except with
respect to Awards of Incentive Stock Options (ISO's), the Committee may, at any
time prior to the exercise, lapse of restrictions or expiration of an Award,
permit a Participant to (i) defer receipt of the payment of cash or property or
other delivery of Stock that would otherwise be due by virtue of the exercise,
lapse of restrictions or expiration of an Award; or (ii) convert or exchange an
Award for another Award under the Plan or under any other plan or arrangement.
If any such actions are permitted, the Committee shall, in its sole discretion,
establish rules and procedures to accomplish such actions.
7.4 Delegation of Authority to Grant Awards. The Committee, in its discretion,
may delegate to the Chief Executive Officer of the Company all or part of the
Committee's authority and duties with respect to granting Awards, provided such
delegation is in writing and maintained in the Company's records. The Committee
may revoke or amend the terms of such a delegation at any time, but such
revocation shall not invalidate prior actions of the Chief Executive Officer of
the Company that were consistent with the terms of the Plan.
7.5 Limited Liability. To the maximum extent permitted by law, no member of the
Committee shall be liable for any action taken or decision made in good faith
relating to the Plan or any Award.
7.6 Indemnification. To the maximum extent permitted by law and by the Company's
charter and by-laws, the members of the Committee shall be indemnified by the
Company in respect of all their activities under the Plan, provided that such
indemnity shall not apply to willful acts of misconduct.
7.7 Effect of Committee's Decision. All actions taken and decisions and
determinations made by the Committee on all matters relating to the Plan
pursuant to the powers vested in it hereunder shall be in the Committee's sole
and absolute discretion and shall be conclusive and binding on all parties
concerned, including the Company, its stockholders, any participants in the Plan
and any other employee of the Company, and their respective successors in
interest.
7
ARTICLE VIII
8. Eligibility and Participation
8.1 Eligibility. Directors, officers, employees and consultants of the Company
or its Affiliates who, in the opinion of the Committee, are responsible for the
continued growth and development and future financial success of the business
shall be eligible to participate in the Plan.
8.2 Participation. An eligible individual shall become a Participant in this
Plan when he or she is granted an Award hereunder, as evidenced by a Grant
Agreement executed by the Company and the Participant and shall no longer be a
Participant when all Awards to a Participant have been completed, terminated or
otherwise disposed of.
ARTICLE IX
9. Stock Options
9.1 General. Subject to the other applicable provisions of the Plan, the
Committee may from time to time grant to eligible Participants Awards of ISO's
or NSO's. The ISO or NSO Awards granted shall be subject to the following terms
and conditions.
9.2 Time of Granting Options. The granting of an Option shall take place at the
time specified in writing by the Committee.
9.3 Grant of Option. The grant of an Option shall be evidenced by a Grant
Agreement, executed by the Company and the Participant, describing the number of
shares of Stock subject to the Option, whether the Option is an ISO or NSO, the
Exercise Price of the Option, the Vesting Period for the Option and such other
terms and conditions that the Committee deems, in it sole discretion, to be
appropriate, provided that such terms and conditions are not inconsistent with
the Plan. The Grant Date shall be specified in the Grant Agreement.
9.4 Price. The price per share of Stock payable upon the exercise of each Option
(the "Exercise Price") shall be set forth in the Grant Agreement and shall not
be less than 100% of the Fair Market Value of the shares of Stock on the date
the Option is granted.
9.5 Terms of Options. The term during which each Option may be exercised shall
be determined by the Committee; provided, however, that in no event shall an ISO
be exercisable more than ten (10) years from the date it is granted. Prior to
the exercise of the Option and delivery of the share certificates represented
thereby, the Participant shall have none of the rights of a stockholder with
respect to any shares represented by an outstanding Option.
9.6 Restrictions on Incentive Stock Options. ISO Awards granted under the Plan
shall comply in all respects with Code section 422 and, as such, shall meet the
following additional requirements:
(a) Grant Date. An ISO must be granted within ten (10) years of the earlier of
the Plan's adoption by the Board of Directors or approval by the Company's
shareholders.
(b) Exercise Price and Term. The Exercise Price of an ISO shall not be less than
100% of the Fair Market Value of the shares on the date the Option is granted
and the term of the Option shall not exceed ten (10) years. Notwithstanding the
immediately preceding sentence, the Exercise Price of any ISO granted to a
Participant who owns, within the meaning of Code section 422(b)(6), after
application of the attribution rules in Code section 424(d), more than ten
percent (10%) of the total combined voting power of all classes of shares of
Stock of the Company shall be not less than 110% of the Fair Market Value of the
Stock on the Grant Date and the term of such ISO shall not exceed five (5)
years.
8
(c) Maximum Grant. The aggregate Fair Market Value (determined as of the Grant
Date) of shares of Stock with respect to which all ISO's first become
exercisable by any Participant in any calendar year under this or any other plan
of the Company and its Parent and Subsidiary corporations may not exceed
$100,000 or such other amount as may be permitted from time to time under Code
section 422. To the extent that such aggregate Fair Market Value shall exceed
$100,000, or other applicable amount, such Options shall be treated as NSO's. In
such case, the Company may designate the shares of Stock that are to be treated
as stock acquired pursuant to the exercise of an ISO by issuing a separate
certificate for such shares and identifying the certificate as ISO shares in the
stock transfer records of the Company.
(d) Participant. ISO's shall only be issued to employees of the Company or a
Related Corporation.
(e) Tandem Options Prohibited. An ISO may not be granted in tandem with a NSO in
such a manner that the exercise of one affects a Participant's right to exercise
the other.
(f) Designation. No option shall be an ISO unless so designated by the Committee
at the time of grant or in the Grant Agreement evidencing such Option.
(g) Other Terms and Conditions. Options may contain such other provisions, not
inconsistent with the provisions of the Plan, as the Committee shall determine
is appropriate from time to time.
9.7 Exercisability.
(a) Except as otherwise provided by the Committee in the applicable Grant Award
or otherwise, during the lifetime of the Participant, the Option shall be
exercisable only by the Participant or, during the period the Participant is
under a legal disability, by the Participant's guardian or legal representative.
Unless specified to the contrary herein or in the applicable Grant Agreement,
Options cannot be exercised by a Participant subsequent to his or her
Termination of Service.
(b) An Option may be exercised in whole at any time, or in part from time to
time, within the Option Period to the extent the Option is exercisable on the
date of exercise.
(c) Except as otherwise provided by the Committee in the applicable Grant Award
or otherwise, each Option shall terminate and may no longer be exercised if the
Optionee ceases to perform services for the Company or an Affiliate in
accordance with the following:
(i) If an Optionee ceases to be an active employee, consultant or
non-employee Director of the Company or any Affiliate other than by reason of
death or retirement, absent in any case a determination by the Committee to the
contrary, any Options which were exercisable by the Optionee on the date of
cessation of active employment may be exercised no later that the earlier of (a)
the expiration date of the Option or (b) the respective periods listed below.
Notwithstanding the foregoing, in the event an Optionee fails to exercise an
Incentive Stock Option within three months after cessation of employment with
the Company or a Related Corporation, such Option will be treated as a
Non-Statutory Stock Option pursuant to Section 422 of the Code. The respective
periods following cessation of active employment in which exercisable Options
may be exercised are as follows:
9
Period Following Last Day
Reason for Cessation of Active Employment Within
of Active Employment Which Option May Be Exercised
Medical Leave of Absence During such leave
Discharge for Cause or other None
severance of employment
determined by Committee to
warrant termination of option
Layoff or other involuntary Three Years
termination without Cause
Voluntary termination (non-retirement) Three Months
(ii) If an Optionee's employment terminates because of death, the
Options shall be fully vested automatically without regard to whether any
applicable vesting requirements in the Grant Agreement have been fulfilled, and
the Options may be exercised at any time before the expiration date, but only by
the Optionee's estate or by the person(s) who acquired the right to exercise
such Option by bequest or inheritance or by reason of the death of the Optionee.
(iii) If an Optionee's employment terminates because of Retirement, any
Options which were issued at least one year prior to the date of termination of
employment will vest in accordance with the Vesting Period specified in the
Grant Agreement and may be exercised any time before their expiration date,
provided such Options are exercisable as of the exercise date. Notwithstanding
the foregoing, in the event an Optionee fails to exercise an Incentive Stock
Option within three months after the date of his or her retirement, such Option
will be treated as a Non-Statutory Stock Option.
(d) The Option may not be exercised for more shares (subject to adjustment as
provided in Section 12.1) after the Participant's termination of employment or
engagement, or cessation of service as a director or the Participant's death, as
the case may be, than the Participant was entitled to purchase thereunder at the
time of the Participant's termination of employment or engagement.
9.8 Exercise of Option. An Option may be exercised only by giving written
notice, in the manner provided in Section 15.9 hereof, specifying the number of
shares as to which the Option is being exercised, accompanied (except as
otherwise provided in Section 9.9) by full payment for such shares in the form
of check or bank draft payable to the order of the Company or other shares of
the Stock with a current Fair Market Value equal to the Option Price of the
shares to be purchased. Receipt by the Company of such notice and payment shall
constitute the exercise of the Option or a part thereof. Within 20 days
thereafter, the Company shall deliver or cause to be delivered to the Optionee a
certificate or certificates (or other evidence of ownership) for the number of
shares then being purchased. Such shares shall be fully paid and nonassessable.
If such shares are not at that time effectively registered under the Securities
Act of 1933, as amended, the Optionee shall include with such notice a letter,
in form and substance satisfactory to the Company, confirming that such shares
are being purchased for the Optionee's own account for investment and not with a
view to distribution.
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9.9 Cashless Exercise. In lieu of payment by check, bank draft or other shares
of Stock accompanying the written notice of exercise, an Optionee may, unless
prohibited by applicable law, elect to effect payment by including with the
written notice irrevocable instructions to deliver for sale to a registered
securities broker acceptable to the Company a number of the shares subject to
the Option being exercised sufficient, after brokerage commissions, to cover the
aggregate exercise price of such Option and, if the Optionee further elects, the
Optionee's withholding obligations with respect to such exercise referred to in
Section 15.8, together with irrevocable instructions to such broker to sell such
shares and to remit directly to the Company such aggregate exercise price and,
if the Optionee has so elected, the amount of such withholding obligation. The
Company shall not be required to deliver to such securities broker any stock
certificate (or other evidence of ownership) for such shares until it has
received from the broker such exercise price and, if the Optionee has so
elected, such withholding obligation amount.
9.10 Transferability. Except as otherwise provided herein or in the Grant
Agreement, Stock Options granted to individuals other than Company Officers
shall not be transferable, otherwise than by will or the laws of descent and
distribution, and may be exercised during the life of the holder thereof only by
him or her. Non-Statutory Options granted hereunder to a Company Officer may be
transferred to a member of such Company Officer's Immediate Family or trusts or
other entities established solely for the benefit of such Immediate Family
members, so long as the transferee is a person entitled to rely on the Form S-8
filed by the Company with respect to the Plan. The holder of an Option or his or
her legal representatives, legatees, distributees, or permitted transferees, as
the case may be, shall have none of the rights of a stockholder with respect to
any shares subject to such Option until such shares have been issued to him or
her under this Plan.
ARTICLE X
10. Stock Appreciation Rights.
10.1 Award of SAR's. Subject to the other applicable provisions of the Plan, the
Committee may at any time and from time to time grant SAR's to eligible
participants, either on a free-standing basis (without regard to or in addition
to the grant of an Option) or on a tandem basis (related to the grant of an
underlying Option), as it determines. SAR's granted in tandem with or in
addition to an Option may be granted either at the same time as the Option or at
a later time; provided, however, that a tandem SAR shall not be granted with
respect to any outstanding ISO Award without the consent of the Participant.
SAR's shall be evidenced by Grant Agreements, executed by the Company and the
Participant, stating the number of shares of Stock subject to the SAR and the
terms and conditions of such SAR, in such form as the Committee may from time to
time determine. The term during which each SAR may be exercised shall be
determined by the Committee. The Participant shall have none of the rights of a
stockholder with respect to any shares of Stock represented by a SAR.
10.2 Restrictions on Tandem SAR's. ISO's may not may be surrendered in
connection with the exercise of a tandem SAR unless the Fair Market Value of the
Stock subject to the ISO is greater than the Exercise Price for such ISO. SAR's
granted in tandem with Options shall be exercisable only to the same extent and
subject to the same conditions as the related Options are exercisable. The
Committee may, in its discretion, prescribe additional conditions to the
exercise of any such tandem SAR.
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10.3 Amount of Payment Upon Exercise of SAR's. A SAR shall entitle the
Participant to receive, subject to the provisions of the Plan and the Grant
Agreement, a payment having an aggregate value equal to the product of (i) the
excess of (A) the Fair Market Value on the exercise date of one share of Stock
over (B) the base price per share specified in the Grant Agreement (which shall
be determined by the Committee but which shall not be less than 100% of the Fair
Market Value of one share of Stock on the date of grant of the SAR), times (ii)
the number of shares specified by the SAR, or portion thereof, which is
exercised. In the case of exercise of a tandem SAR, such payment shall be made
in exchange for the surrender of the unexercised related Option (or any portions
thereof which the Participant from time to time determines to surrender for this
purpose).
10.4 Form of Payment Upon Exercise of SAR's. Payment by the Company of the
amount receivable upon any exercise of a SAR may be made by the delivery of
Stock or cash, or any combination of Stock and cash, as determined in the sole
discretion of the Committee from time to time. If upon settlement of the
exercise of an SAR a Participant is to receive a portion of such payment in
shares of Stock, the number of shares shall be determined by dividing such
portion by the Fair Market Value of a share of Stock on the exercise date. No
fractional shares shall be used for such payment and the Committee shall
determine whether cash shall be given in lieu of such fractional shares or
whether such fractional shares shall be eliminated.
10.5 Transferability. SAR's may not be sold, assigned, transferred, pledged
or otherwise encumbered or disposed of except as specifically provided in the
Grant Agreement.
ARTICLE XI
11. Restricted Stock Awards and Stock Unit Awards
11.1 Grants. Subject to the other applicable provisions of the Plan, the
Committee may at any time grant Restricted Stock Awards or Stock Units to
Participants in such amounts and for such consideration, including no
consideration or such minimum consideration as may be required by law, as it
determines. Such Awards shall be granted pursuant to a Grant Agreement.
11.2 Terms and Conditions. A Restricted Stock Award entitles the recipient to
acquire shares of Stock and a Stock Unit Award entitles the recipient to be paid
the Fair Market Value of the Stock on the date on which restrictions lapse.
Stock Units may be settled in Stock, cash or a combination thereof, as
determined by the Committee. Restricted Stock Awards and Stock Unit Awards are
subject to Vesting Periods and other restrictions and conditions as the
Committee may include in the Grant Agreement. Such restrictions or conditions
may be based on continuing employment or engagement (or other business
relationship) and/or achievement of pre-established performance goals. The
Committee shall specify in the Grant Agreement the dates and/or the description
of how pre-established performance goals shall be deemed to have been obtained
and any other conditions upon which Restricted Stock Awards or Stock Units shall
become vested. If the Participant or the Company fails to achieve the designated
goals or the Participant incurs a Termination of Service prior to the expiration
of the Vesting Period, the Participant shall forfeit all shares of Stock or cash
subject to the Award which have not vested as of such date. Restricted Stock
Awards or Stock Units, if not sooner terminated, shall vest upon Participant's
death.
11.3 Restricted Stock Awards.
(a) Each Restricted Stock Award shall specify the applicable restrictions, on
such shares of Stock, the duration of such restrictions, and the time or times
at which such restrictions shall lapse with respect to all or a specified number
of shares of Stock that are part of the Award. Notwithstanding the foregoing,
the Committee may reduce or shorten the duration of any restriction applicable
to any shares of Stock awarded to any Participant under the Plan.
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(b) Share certificates with respect to restricted shares of Stock shall be
issued (or the shares shall be held in a book entry position through the
transfer agent's direct registration service) at the time of grant of the
Restricted Stock Award, subject to forfeiture if the restrictions do not lapse,
or upon lapse of the restrictions. If share certificates are issued at the time
of grant of the Restricted Stock Award, the certificates shall bear an
appropriate legend with respect to the restrictions applicable to such
Restricted Stock Award (as described in Section 11.2) or, alternatively, the
Participant may be required to deposit the certificates with the Company during
the period of any restriction thereon and to execute a blank stock power or
other instrument of transfer. If shares are in a book entry position with the
transfer agent's direct registration service, the restrictions shall be
appropriately noted.
(c) Except as otherwise provided by the Committee, during such period of
restriction following the issuance of share certificates, the Participant shall
have all of the rights of a holder of Stock, including but not limited to the
rights to receive dividends (or amounts equivalent to dividends) and to vote
with respect to the restricted shares. Upon lapse of restrictions on a
Restricted Stock Award, the Committee may provide that, to the extent not
already received, the Participant will be entitled to receive any amounts per
share pursuant to any dividend or distribution paid by the Company on its Stock
to stockholders of record after grant of the Restricted Stock Award and prior to
the issuance of the share certificates (or holding in a book entry position
through the transfer agent).
11.4 Stock Unit Awards.
(a) The grant of Stock Units shall be evidenced by a Grant Agreement, executed
by the Company and the Participant, that incorporates the terms of the Plan and
states the number of Stock Units evidenced thereby and the terms and conditions
of such Stock Units in such form as the Committee may from time to time
determine. The Grant Agreement shall provide for payment of the Stock Unit
Awards upon expiration of a term certain.
(b) Stock Unit awards shall be subject to such rules and regulations as the
Committee may prescribe and/or such determinations, orders, or decisions as the
Committee may make.
(c) Except as otherwise provided in the Grant Agreement, the Participant shall
have none of the rights of a stockholder with respect to any shares of Stock
represented by a Stock Unit as a result of the grant of a Stock Unit to the
Participant.
11.5 Transferability. Unvested Restricted Stock Awards or Stock Units may not be
sold, assigned, transferred, pledged or otherwise encumbered or disposed of
except as specifically provided in the Grant Agreement.
ARTICLE XII
12. Corporate Transactions
12.1 Adjustment of Number and Price of Shares. Pro rata adjustment shall be made
in the maximum number of shares of Stock subject to the Plan or that may be
awarded to any individual in any year to give effect to any stock dividends,
stock splits, stock combinations, recapitalizations and other similar changes in
the capital structure of the Company. Pro rata adjustments shall be made in the
number, kind and price of shares of Stock covered by any outstanding Award
hereunder to give effect to any stock dividends, stock splits, stock
combinations, recapitalizations and similar changes in the capital structure of
the Company, or a merger, dissolution or reorganization of the Company, after
the date the Award is granted, so that the recipient of the Award is treated in
a manner equivalent to that of holders of the underlying Stock. No Options will
be repriced, replaced or regranted, through cancellation or by lowering the
exercise price of previously granted Awards, without the express approval of the
shareholders.
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12.2 Change in Corporate Control. Upon a Change in Corporate Control:
(a) Any Options and SAR's outstanding as of the date of such Change in
Corporate Control, and which are not then exercisable and vested, shall become
fully exercisable and vested.
(b) The restrictions and deferral limitations applicable to any
Restricted Stock and Stock Units shall lapse, such Restricted Stock shall become
free of all restrictions and become fully vested and transferable, and such
Stock Units shall be payable in full.
(c) The Committee may also make additional adjustments and/or
settlements of outstanding Awards as it deems appropriate and consistent with
the Plan's purposes, including without limitation settlement of all Options and
Stock Appreciation Rights for a cash payment equal to the excess (if any) of the
Fair Market Value of the Stock subject thereto over the aggregate exercise or
base price thereof.
12.3 Substitution of Options. In the event that, by reason of a corporate
merger, consolidation, acquisition of property or stock, separation,
reorganization or liquidation, the Board shall authorize the issuance or
assumption of a stock option or stock options in a transaction to which Code
section 424(a) applies, then, notwithstanding any other provision of the Plan,
the Committee may grant an Option upon such terms and conditions as it may deem
appropriate for the purpose of assumption of the old option, or substitution of
a new Option for the old option, in conformity with the provisions of Code
section 424(a) and the rules and regulations thereunder, as they may be amended
from time to time.
12.4 Fractional Shares. No adjustment or substitution provided for in this
Article shall require the Company to issue or to sell a fractional share under
any Grant Agreement and the total adjustment or substitution with respect to
each Grant Agreement shall be limited accordingly.
12.5 Rescission and Revocation of Awards. A Participant may request in writing
that the Committee rescind or revoke an Award and such request shall specify the
reasons that rescission or revocation is sought. The Committee, in its absolute
discretion, may grant, deny or otherwise rule on the request .
ARTICLE XIII
13. Reservation of Stock. The Company shall at all times during the
term of the Options reserve and keep available such number of shares of the
Stock as will be sufficient to satisfy the requirements of this Plan and shall
pay all fees and expenses necessarily incurred by the Company in connection
therewith.
ARTICLE XIV
14. Amendment and Termination
14.1 Amendment. The Committee may amend the Plan at any time and from time to
time, provided that (i) no amendment shall deprive any person of any rights
granted under the Plan before the effective date of such amendment, without such
person's consent, (ii) no amendment can increase the maximum number of shares of
Stock subject to award under the Plan, and (iii) amendments may be subject to
shareholder approval to the extent needed to comply with applicable law.
Notwithstanding the foregoing, the Committee may amend the Plan and/or any Award
granted under the Plan at any time and from time to time, without the consent of
affected Participants and their beneficiaries, to the extent necessary to cause
the Plan or Award to comply with applicable law, stock exchange rules or
accounting rules.
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14.2 Termination. The Committee reserves the right to terminate the Plan in
whole or in part at any time, without the consent of any person granted any
rights under the Plan.
ARTICLE XV
15. Other Conditions
15.1 Compliance with Governmental Regulations. Notwithstanding any provision of
the Plan or the terms of any Grant Agreement entered into pursuant to the Plan,
the Company shall not be required to issue any shares hereunder prior to
registration of the shares subject to the Plan under the Securities Act of 1933,
as amended, or the Securities Exchange Act of 1934, as amended, if such
registration shall be necessary, or before compliance by the Corporation or any
Participant with any other provisions of either of those acts or of regulations
or rulings of the Securities and Exchange Commission thereunder, or before
compliance with other federal and state laws and regulations and rulings
thereunder, including the rules of any applicable securities exchange or
quotation system. The Company shall use its best efforts to effect such
registrations and to comply with such laws, regulations and rulings forthwith
upon advice by its counsel that any such registration or compliance is
necessary.
15.2 Company Charter and Bylaws. This Plan is subject to the charter and by-laws
of the Company, as they may be amended from time to time.
15.3 No Trust or Fund Created. Neither the Plan nor any Award shall create or be
construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company and a Participant or any other person. To the
extent that any Participant or other person acquires a right to receive payments
from the Company pursuant to an Award, such right shall be no greater than the
right of any unsecured general creditor of the Company.
15.4 No Guarantee of Employment. Participation in this Plan shall not be
construed to confer upon any Participant the legal right to be retained in the
employ of the Company or give any person any right to any payment whatsoever,
except to the extent of the benefits provided for hereunder. Each Participant
shall remain subject to discharge to the same extent as if this Plan had never
been adopted. Nothing in this Plan shall prevent, interfere with or limit in any
way the right of the Company to terminate a Participant's employment at any
time, whether or not such termination would result in: (i) the failure of any
Award to vest; (ii) the forfeiture of any unvested or vested portion of any
Award under the Plan; and/or (iii) any other adverse effect on the Participant's
interests under the Plan.
15.5 No Limit on Other Compensation Arrangements. Nothing contained in the Plan
shall prevent the Company or its Affiliates from adopting or continuing in
effect other compensation arrangements (whether such arrangements be generally
applicable or applicable only in specific cases) as the Committee, in its
discretion determines desirable, including without limitation the granting of
stock options, stock awards, stock appreciation rights or phantom stock units
otherwise than under the Plan.
15.6 Governing Law. The provisions of this Plan shall be governed by, construed
and administered in accordance with applicable federal law; provided, however,
that to the extent not in conflict with federal law, this Plan shall be governed
by, construed and administered under the laws of the State of Delaware, other
than its laws respecting choice of law.
15.7 Limitation of Rights in the Option Shares. The Optionee shall not be deemed
for any purpose to be a stockholder of the Company with respect to any of the
Option Shares except to the extent that the Option shall have been exercised
with respect thereto and, in addition, a certificate shall have been issued
therefor and delivered to the Optionee.
15
15.8 Withholding. No later than the date as of which an amount first becomes
includible in the gross income of the Participant for federal income tax
purposes with respect to any Award under the Plan, the participant shall pay to
the Company, or make arrangements satisfactory to the Company regarding the
payment of, any federal, state, local or foreign taxes of any kind required by
law to be withheld with respect to such amount. Unless otherwise determined by
the Company, withholding obligations may be settled with Common Stock, including
Common Stock that is part of the Award that gives rise to the withholding
requirement; provided, that not more than the legally required minimum
withholding may be settled with Common Stock. The obligations of the Company
under the Plan shall be conditional on such payment or arrangements, and the
Company and its Affiliates shall, to the extent permitted by law, have the right
to deduct any such taxes from any payment otherwise due to the participant. The
Committee may establish such procedures as it deems appropriate, including
making irrevocable elections, for the settlement of withholding obligations with
Common Stock.
15.9 Notices. Any communication or notice required or permitted to be given
under the Plan shall be in writing, and mailed by registered or certified mail
or delivered in hand, if to the Company, to 141 Spring Street, Lexington,
Massachusetts 02421, Attention: Senior Vice President, Human Resources and, if
to the Optionee, to the address as the Optionee shall last have furnished to the
communicating party.
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EXHIBIT 5.1
John W. Kapples Raytheon Company
Vice President and Secretary Office of the General Counsel
781.860.2103 direct dial 141 Spring Street
781.860.3899 fax Lexington, MA 02421
john_w_kapples@raytheon.com
June 27, 2001
Raytheon Company
141 Spring Street
Lexington, Massachusetts 02421
Re: Registration Statement on Form S-8 under the Securities Act of 1933,
as amended
Ladies and Gentlemen:
I am Vice President and Assistant General Counsel to Raytheon Company,
a Delaware corporation (the "Company"), and as such, I, and other attorneys in
this office, have participated with the Company in the preparation for filing
with the Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-8 (the "Registration Statement") covering 28,000,000 shares
(the "Shares") of the Company's Common Stock, par value $0.01 per share, which
Shares will be issued pursuant to the terms of the Raytheon 2001 Stock Plan (the
"Plan"). In connection with filing the Registration Statement, the rules and
regulations of the Commission require my opinion, in my capacity as Vice
President and Assistant General Counsel of the Company, on the matters set forth
below.
In rendering this opinion, I, and other attorneys in this office, have
examined and relied upon originals or copies, certified or otherwise, of all
such corporate records, documents, agreements or other instruments of the
Company, and have made such investigation of law and have discussed with the
officers of the Company such questions of fact as we have deemed necessary or
appropriate. In rendering this opinion, I have relied upon certificates and
statements of officers and directors of the Company as to factual matters, and
have assumed the authenticity of all documents submitted as copies.
This opinion is limited solely to the Delaware General Corporation Law,
as applied by courts located in Delaware, the applicable provisions of the
Delaware Constitution and the reported judicial decisions interpreting those
laws.
Based upon and subject to the foregoing, I am of the opinion that the
Shares will be, upon issuance thereof pursuant to the terms of the Plan,
legally issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ John W. Kapples
John W. Kapples
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated January 25, 2001, except for the
information in the second paragraph of Note B as to which the date is March 2,
2001, relating to the consolidated financial statements, which appears in
the 2000 Annual Report to Shareholders, which is included in Exhibit 13,
relating to the consolidated financial statements on Form 10-K for the year
ended December 31, 2000. We also consent to the incorporation by reference to
our report dated January 25, 2001 relating to the financial statement schedule,
which appears in such Annual Report on Form 10-K.
PricewaterhouseCoopers LLP
Boston, Massachusetts
June 27, 2001