As filed with the Securities and Exchange Commission on March 11, 1998
Registration No. ________________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SAWTEK INC.
(Exact name of registrant as specified in its charter)
Florida 59-1864440
(State of incorporation) (I.R.S. Employer
Identification No.)
1818 South Highway 441
Apopka, Florida 32703
(Address, of Principal Executive offices)
SAWTEK INC.
STOCK OPTION PLAN FOR ACQUIRED COMPANIES
(Full title of the plan)
Steven P. Miller
SAWTEK INC.
1818 South Highway 441
Apopka, Florida 32703
(Name and address of agent for service)
(407) 886-8860
(Telephone number, including area code, of agent for service)
---------------------------------
Copies to:
William A. Grimm, Esq.
Gray, Harris & Robinson, P.A.
201 East Pine Street, Suite 1200
Orlando, Florida 32801
(407) 843-8880
---------------------------------
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Registered Offering Price Per Aggregate offering Amount of Registration
be Registered Share Price Fee
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock,
$0.0005 par value 1,000,000 shares (1) $22.1875 (1) $22,187,500 (1) $6,723.49
- --------------------------------------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h). The offering price and registration fee are
calculated by multiplying 1,000,000 shares by $22.1875 per share, which is the
average of the bid and asked prices of the Company's shares of Common Stock on
the Nasdaq National Market System on March 10, 1998.
</FN>
</TABLE>
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Sawtek Inc. Second Stock Option Plan For Acquired
Companies (the "Plan") pursuant to Rule 428(b)(1) under the Securities Act of
1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
SAWTEK INC. (the "Company") 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 (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The following documents,
which are filed with the Commission, are incorporated in this Registration
Statement by reference:
The Company's latest annual report filed pursuant to Section 13(a) or
15(d) of the Exchange Act, or the latest prospectus filed pursuant to Rule
424(b) under the Securities Act that contains audited financial statements for
the Company's latest fiscal year for which such statements have been filed.
All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (1) above.
The description of the Common Stock, par value $.0005 per share
("Common Stock"), is contained in the registration statement filed on Form 8-A
under the Exchange Act, including any amendment or report filed for the purpose
of updating such description.
All documents subsequently filed by the Company 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 shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the shares of Common Stock offered
hereby and certain other legal matters will be passed upon for the Company by
Gray, Harris & Robinson, P.A., Orlando, Florida. William A. Grimm, a shareholder
in Gray, Harris & Robinson, P.A. and Secretary of the Company, is the beneficial
owner of 30,000 shares of Common Stock.
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Company, a Florida corporation, is empowered by Section 607.0850 of
the Florida Business Corporation Act, subject to the procedures and limitations
stated therein, to indemnify any person who was or is a party to any proceeding
other than any action by, or in the right of, the corporation, by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise against liability incurred in connection with
such proceeding, including any appeal thereof, if he acted in good faith and in
a manner he reasonably believed to be in, or not opposed to, the best interests
of the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful.
Section 607.0850 also empowers a Florida corporation to indemnify any
person who was or is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses and amounts paid in settlement not exceeding, in
the judgment of the board of directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in connection with
the defense or settlement of such proceeding, including any appeal thereof, if
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable unless, and only to the extent
that, the court in which such proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper. To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits or otherwise in
defense of any proceeding referred to above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses actually and
reasonably incurred by him in connection therewith.
The Company's Articles of Incorporation (the "Articles") contain a
provision entitling Directors and executive officers to be indemnified by the
Company against claims which may arise out of their actions in such capacities
to the fullest extent permitted by law. The Company has also secured insurance
on behalf of its executive officers and Directors for certain liabilities which
may arise out of their actions in such capacities.
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE>
Item 8. Exhibits.
The exhibits filed as part of this Registration Statement are as
follows:
EXHIBIT
NUMBER DESCRIPTION
4.1 --Amended and Restated Articles of Incorporation of Sawtek
Inc. (incorporated by reference to Registration Statement on
Form S-8, File No. 333-10579).
4.2 --Amendment to Articles of Incorporation of Sawtek Inc.
(incorporated by reference to Form 8-K, File No. 000-28276).
4.3 --1996 Bylaws of Sawtek Inc. (incorporated by reference to
Registration Statement on Form S-8, File No. 333-11523).
5.1 --Opinion of Gray, Harris & Robinson, P.A.
15.1 --Letter of Consent from Ernst & Young LLP
23.1 --Consent of Gray, Harris & Robinson, P.A. Reference is made
to Exhibit 5.1.
24.1 --Power of Attorney. Reference is made to the signature page
hereto.
99.1 --Sawtek Inc. Stock Option Plan for Acquired Companies.
Item 9. Undertakings.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, 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.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
<PAGE>
Insofar as indemnification for liabilities arising under the
Securities Act 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 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 Company of expenses incurred 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 and as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Apopka, State of Florida on the 10th day of March,
1998.
SAWTEK INC.
By:/s/Steven P. Miller
Steven P. Miller
Chairman and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned, officers and directors of SAWTEK INC., hereby
severally constitute Steven P. Miller and Raymond A. Link, and each of them
singly, our true and lawful attorneys with full power to any of them, and to
each of them singly, to sign for us and in our names in the capacities indicated
below the Registration Statement on Form S-8 filed herewith and any and all
amendments to said Registration Statement and generally to do all such things in
our name and behalf in our capacities as officers and directors to enable SAWTEK
INC. to comply with the provisions of the Securities Act and all requirements of
the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
<PAGE>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in their capacities and on
the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/Steven P. Miller Chairman, Chief Executive Officer
Steven P. Miller and Director 3/11/98
/s/Neal J. Tolar
Neal J. Tolar Senior Vice President and Director 3/11/98
/s/Gary A. Monetti
Gary A. Monetti President, Chief Operating Officer 3/11/98
/s/Raymond A. Link Vice President, Finance and
Raymond A. Link Chief Financial Officer 3/11/98
/s/ Robert C. Strandberg
Robert C.Strandberg Director 3/11/98
/s/ Bruce S. White
Bruce S. White Director 3/11/98
/s/Willis C. Young
Willis C. Young Director 3/11/98
</TABLE>
<PAGE>
INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 --Amended and Restated Articles of Incorporation of Sawtek
Inc. (incorporated by reference to Registration Statement
on Form S-8, File No. 333-10579).
4.2 --Amendment to Articles of Incorporation of Sawtek Inc.
(incorporated by reference to Form 8-K, File No.000-28276,
as filed on 3/26/97).
4.3 --1996 Bylaws of Sawtek Inc. (incorporated by reference to
Registration Statement on Form S-8, File No. 333-11523).
5.1 --Opinion of Gray, Harris & Robinson, P.A.
15.1 --Letter of Consent from Ernst & Young LLP
23.1 --Consent of Gray, Harris & Robinson, P.A. Reference is
made to Exhibit 5.1.
24.1 --Power of Attorney. Reference is made to the signature
page hereto.
99.1 --Sawtek Inc. Stock Option Plan for Acquired Companies.
<PAGE>
Exhibit 5.1
GRAY, HARRIS & ROBINSON, P.A.
Attorneys at Law
201 East Pine Street
Suite 1200
Orlando, Florida 32801
(407) 843-8880
March 11, 1998
Sawtek Inc.
1818 South Highway 441
Apopka, Florida 32703
Re: SAWTEK INC. STOCK OPTION PLAN FOR ACQUIRED COMPANIES
(the "Plan") - Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 filed by you
with the Securities and Exchange Commission on March 11, 1998 (the "Registration
Statement") in connection with the registration under the Securities Act of
1933, as amended, of 1,000,000 shares of Common Stock of Sawtek Inc. (the
"Shares") to be distributed pursuant to the Plan. As your counsel in connection
with this registration process, we have examined the proceedings proposed to be
taken in connection with said sale and issuance of the Shares.
It is our opinion that, upon completion of the proceedings being taken
or contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, and upon completion of the proceedings being taken in order to permit
such transactions to be carried out in accordance with the securities laws of
the various states, where required, the Shares when issued and sold in the
manner referred to in the Registration Statement will be legally issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including the prospectus constituting part thereof, and
any amendment thereto and any registration statement for the same offering
covered by the Registration Statement that is to be effective upon filing
pursuant to Rule 462(b) and all post-effective amendments thereto.
Very truly yours,
GRAY, HARRIS & ROBINSON, P.A.
By:/s/William A. Grimm
William A. Grimm
<PAGE>
Exhibit 15.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No 33-00000) pertaining to the Sawtek Inc. Stock Option Plan
for Acquired Companies of our report dated October 24, 1997 with respect to the
consolidated financial statements of Sawtek Inc. for the year ended September
30, 1997 included in its Form 10-K (File No. 000-28276) filed with the
Securities and Exchange Commission on November 12, 1997.
/s/Ernst & Young LLP
Ernst & Young LLP
Orlando, Florida
March 10, 1998
<PAGE>
Exhibit 99.1
SAWTEK INC.
STOCK OPTION PLAN FOR ACQUIRED COMPANIES
Sawtek Inc., a Florida corporation (the "Company"), hereby adopts the
Sawtek Inc. Stock Option Plan for Acquired Companies (the "New Plan") for key
employees and officers, present and future, of acquired companies or businesses
in accordance with the following terms and conditions:
1. Purpose of the Plan. The purpose of the Plan is to advance the
growth and development of the Company by affording an opportunity to key
employees and officers, present and future, of companies or businesses acquired
by Sawtek Inc. or any of its subsidiaries by purchase, merger, or otherwise,
collectively referred to as an "Acquired Entity," to purchase shares of the
Company's Common Stock and to provide incentives for them to put forth maximum
efforts for the success of the Company's business. The Plan is intended to
permit certain designated stock options granted under the Plan to qualify as
incentive stock options under Section 422 of the Internal Revenue Code of 1986.
2. Definitions. For purposes of this Plan, the following capitalized
terms shall have the meanings set forth below:
(a) "Board of Directors" means the board of directors of the
Company.
(b) "Code" means the Internal Revenue Code of 1986, as currently
in effect or as hereafter amended.
(c) "Company" means Sawtek Inc., a Florida corporation.
(d) "Eligible Employee" means all present and future executive,
managerial, technical and other key employees of any Acquired Entity.
(e) "Incentive Stock Option(s)" means a stock option granted to an
Eligible Employee to purchase shares of Stock which is intended to qualify as an
"incentive stock option," as defined in Section 422 of the Code.
(f) "Non-qualified Stock Option(s)" means a stock option granted
to an Eligible Employee to purchase shares of Stock which is not intended to
qualify as an "incentive stock option" as defined in Section 422 of the Code.
(g) "Option" means any unexercised and unexpired Incentive Stock
option or Non-qualified Stock Option issued under this Plan, or any portion
thereof remaining unexercised and unexpired.
(h) "Option Agreement" means a written agreement by and between
the Company and an Optionee setting forth the terms and conditions of the Option
granted by the Board of Directors to such Optionee.
(i) "Optionee" means any Eligible Employee who is granted an
Option as provided in the Plan.
<PAGE>
(j) "Plan" shall mean the Company's Stock Option Plan for Acquired
Companies.
(k) "Stock" means authorized and unissued shares of the Company's
Common Stock, or treasury shares of such class.
(l) "Subsidiary" means any present or future "subsidiary
corporation" of the Company, as such term is defined in Section 424(f) of the
Code and which the Board of Directors has elected to be covered by the Plan.
(m) Where applicable, the terms used in this Plan have the same
meaning as the terms used in the Code and the regulations and rulings issued
thereunder and pursuant thereto, with reference to Options.
(n) Wherever appropriate, words used in this Plan in the singular
may mean the plural, the plural may mean the singular and the masculine may mean
the feminine or neuter.
3. Stock Subject to Option.
(a) Total Number of Shares. The total number of shares of Stock
which may be issued by the Company to all otionees under this Plan is one
million (1,000,000) shares.
(b) Expired Options. If any Option granted under this Plan is
terminated or expires for any reason whatsoever, in whole or in part, the shares
(or remaining shares) of Stock subject to that particular Option shall again be
available for grant under this Plan.
4. Administration of the Plan.
(a) Board of Directors. This Plan shall be administered by the
Board of Directors who may, from time to time, issue orders or adopt
resolutions, not inconsistent with the provisions of the Plan, to interpret the
provisions and supervise the administration of the Plan. All determinations
shall be by the affirmative vote of a majority of the members of the Board of
Directors at a meeting called for such purpose, or reduced to writing and signed
by a majority of the members of the Board of Directors. Subject to the Company's
Bylaws, all decisions made by the Board of Directors in selecting Optionees,
establishing the number of shares and terms applicable to each option, and in
construing the provisions of this Plan shall be final, conclusive and binding on
all persons, including the Company, shareholders, Optionees, and purchasers of
shares pursuant to this Plan. No member of the Board of Directors shall be
liable for any action or determination made in good faith with respect to the
Plan or an Option granted hereunder.
(b) Stock Option Plan Committee. The Board of Directors may from
time to time appoint a Stock Option Plan Committee, consisting of not less than
two (2) directors (the "Committee"). The Board of Directors may delegate to such
Committee full power and authority to take any action required or permitted to
be taken by the Board of Directors under this Plan, subject to restrictions on
affiliate participation under the Securities Exchange Act of 1934, pertaining
to, among other things, Section 16(b). The Board of Directors may from time to
time, at its sole discretion, remove members from or add members to the
Committee. Vacancies may be filled by the Board of Directors only. Where the
context requires, the Board of Directors shall mean the Committee, if appointed,
for matters dealing with administration of the Plan.
<PAGE>
(c) Compliance with Internal Revenue Code. The Board of Directors
(or committee if appointed) shall at all times administer this Plan and make
interpretations hereunder in such a manner that Options granted hereunder
designated as Incentive Stock Options will meet the requirements of Section 422
of the Code.
5. Selection of Optionees.
(a) Discretion of the Board of Directors. All Eligible Employees
shall be eligible to receive Options pursuant to this Plan. In determining which
Eligible Employees shall be offered Options, as well as the terms thereof, the
Board of Directors shall evaluate, among other things, (i) the duties and
responsibilities of Eligible Employees, (ii) their past and prospective
contributions to the success of the Acquired Company, (iii) the extent to which
they are performing and will continue to perform outstanding services for the
benefit of the Acquired Company, and (iv) such other factors as the Board of
Directors deems relevant.
(b) Limitation on Grant of Options. An Incentive Stock option may
not be granted to any Optionee if the grant of such Option to such Optionee
would otherwise cause the aggregate fair market value (determined at the time
the Option is granted) of the Stock for which Options are exercisable for the
first time by such Optionee under all incentive stock option plans of the
Company during any calendar year to exceed $100,000. Non-qualified Stock Options
may be granted to Eligible Employees at the sole discretion of the Board of
Directors.
6. Option Agreement Subject to the provisions of this Plan, each
Option granted to an Optionee shall be set forth in an Option Agreement upon
such terms and conditions as the Board of Directors determines, including a
vesting schedule. Each such Option Agreement shall incorporate the provisions of
this Plan by reference. The date of the grant of an Option is the date specified
in the Option Agreement. Any Option Agreement shall clearly identify such
Options as Incentive Stock Options or Non-qualified Stock Options.
7. Option Prices.
(a) Determination of Option Price. The option price for Stock
shall not be less than one hundred percent (100%) of the fair market value of
the Stock on the date of the grant of such Option. The option price for Stock
granted to an Eligible Employee who possesses more than ten percent (10%) of the
total combined voting power of all classes of common stock of the Company (a
"Ten Percent Shareholder") shall not be less than one hundred ten percent (110%)
of the fair market value of the Stock on the date of the grant of such Option.
(b) Determination of Fair Market Value,. For the purpose of this
Plan, the fair market value of the Stock on the date of granting an Option (the
"Grant Date") shall be the closing price on the Grant Date as published in the
Wall Street Journal.
(c) Determination of Stock Ownership. For purposes of paragraphs 7
and 8, an optionee's common stock ownership shall be determined by taking into
account the rules of constructive ownership set forth in Section 424(d) of the
Code.
(d) No Repricing. No option granted under this Plan shall be
amended to reduce the option price.
<PAGE>
8. Term of Option. The term of an Option may vary within the sole
discretion of the Board of Directors, provided, however, that the term of an
Incentive Stock Option granted to an Eligible Employee shall not exceed ten (10)
years from the date of grant of such Incentive Stock Option (five (5) years in
the case of a Ten Percent Shareholder). An Option may be cancelled only in
connection with the termination of employment or death of the Optionee (as more
particularly described in paragraph 9 hereof).
9. Exercise of Option.
(a) Limitation on Exercise of Option. Except as otherwise provided
herein, the Board of Directors, in its sole discretion, may limit an Option by
restricting its exercise in whole or in part to specified vesting periods or
until specified conditions have occurred. The vesting periods and any
restrictions will be set forth in the Option Agreement.
(b) Exercise Prior to Cancellation. An Option shall be exercisable
only during the term of the Option as long as the Optionee is in "Continuous
Employment" with the Acquired Company, the Company, any Subsidiary, or any
successor thereof. Notwithstanding the preceding sentence, as long as the
Option's term has not expired, an Option which is otherwise exercisable in
accordance with its provisions shall be exercisable
(i) for a period ending ninety (90) days after the Optionee's
Continuous Employment with the Company has terminated, unless the Optionee was
terminated for cause, in which case the Option terminates on notice of
termination of employment; or
(ii) by the estate of the Optionee, within one (1) year after
the date of the Optionee's death, if the Optionee should die while in the
Continuous Employment; or
(iii) within one (1) year after the Optionee's Continuous
Employment terminates, if the Optionee becomes disabled (as defined in Section
22(e) of the Code) during Continuous Employment with the Company and such
disability is the cause of termination.
For purposes of this Plan, the term "Continuous Employment" shall
mean service as a common law employee and the absence of any interruption or
termination of employment (or termination of a consulting contract) by the
Acquired Company, the Company, or Subsidiary which now exists or hereafter is
organized or acquired by the Company. Continuous Employment shall not be
considered interrupted in the case of sick leave, military leave, or any other
leave of absence approved by the Company or in the case of transfers between the
Acquired Company, the Company, or between any Subsidiary, or successor thereof.
The term "cause" as used in this subparagraph 9(b) shall mean: (i) commission of
a felony or a charge of theft, dishonesty, fraud or embezzlement; (ii) failure
to adhere to Company's reasonable directives and policies, willful disobedience
or insubordination; (iii) disclosing to a competitor or other unauthorized
person, proprietary information, confidences or trade secrets of the Acquired
Company, the Company, or Subsidiary; (iv) recruitment of Acquired Company, the
Company, or Subsidiary personnel on behalf of a competitor or potential
competitor of the Acquired Company, the Company, or Subsidiary, or any successor
thereof; or (v) solicitation of business on behalf of a competitor or potential
competitor of the Acquired Company, the Company, or Subsidiary, or any successor
thereof.
<PAGE>
(c) Method of Exercising an Option. Subject to the provisions of
any particular Option, including any provisions relating to vesting of an
Option, an Optionee may exercise an Option, in whole or in part, by written
notice to the Company stating in such written notice the number of shares of
Stock such Optionee elects to purchase under the Option, and the time of the
delivery thereof, which time shall be at least fifteen (15) days after the
giving of such notice, unless an earlier date shall have been mutually agreed
upon. Upon receipt of such written notice, the Company shall provide the
Optionee with that information required by the applicable state and federal
securities laws. If, after receipt of such information, the Optionee desires to
withdraw such notice of exercise, the Optionee may withdraw such notice of
exercise by notifying the Company, in writing, prior to the time set forth for
delivery of the shares of Stock. In no event may an Option be exercised after
the expiration of its term. An Optionee is under no obligation to exercise an
Option or any part thereof.
(d) Payment for Option Stock. The exercise of any Option shall be
contingent upon receipt by the Company of cash, (or if permitted by the Board of
Directors, shares of the Company's Common Stock or cancellation of a vested
portion of the Stock Option), in an amount equal to the full option price of the
shares of Stock being purchased. The Board of Directors may, but is not required
to, accept a promissory note, secured or unsecured, in the amount of the option
price made by the Optionee on terms and conditions satisfactory to the Board of
Directors.
(e) Delivery of Stock to Optionee. Provided the optionee has
delivered proper notice of exercise and full payment of the option price, the
Company shall undertake and follow all necessary procedures to make prompt
delivery of the number of shares of Stock which the Optionee elects to purchase
at the time specified in such notice. Such delivery, however, may be postponed
at the sole discretion of the Company to enable the Company to comply with any
applicable procedures, regulations or listing requirements of any governmental
agency, stock exchange or regulatory authority. As a condition to the issuance
of shares of Stock, the Company may require such additional payments from the
Optionee as may be required to allow the Company to withhold any income taxes
which Company deems necessary to insure the Company that it can comply with any
federal or state income tax withholding requirements.
10. Non-transferability. Except as otherwise provided in paragraph
9(b)(ii) and (iii) hereof, an Option granted to an Optionee may be exercised
only during such Optionee's lifetime by such Optionee. An Option may not be
sold, exchanged, assigned, pledged, encumbered, hypothecated or otherwise
transferred except by will or by the laws of descent and distribution. No Option
or any right thereunder shall be subject to execution, attachment or similar
process by any creditors of the Optionee. Upon any attempted assignment,
transfer, pledge, hypothecation or other encumbrance of any Option contrary to
the provisions hereof, such Option and all rights thereunder shall immediately
terminate and shall be null and void with respect to the transferee or assignee.
<PAGE>
11. Compliance with the Securities Laws.
(a) Optionee's Written Statement. The Board of Directors may, in
its sole discretion, require that at the time an Optionee elects to exercise his
or her Option, he or she shall furnish a written statement to the Company that
he or she is acquiring such shares of Stock for investment purposes only and
that he or she has no intention of reselling or otherwise disposing of such
Stock, along with a written acknowledgment that the Option and the shares of
Stock pertaining to the Option are not registered under the Securities Act of
1933, as amended (the "Act"), the Florida securities laws, or any other state
securities laws. In the event that shares of Stock subject to the Option are
registered with the Securities and Exchange Commission, an Optionee shall no
longer be required to comply with this subparagraph 11(a).
(b) Registration Requirements. If at any time the Board of
Directors determines, in its sole discretion, that the listing, registration, or
qualification of the shares of Stock subject to the Option upon any securities
exchange or under any state or federal securities laws, or the consent, or
approval of any governmental regulatory body, is necessary or desirable as a
condition of, or in connection with, the issuance or purchase of shares
thereunder, then the Option may not be exercised, in whole or in part, unless
such listing, registration, qualification, consent or approval shall have been
effected or obtained (and the same shall have been free of any conditions not
acceptable to the Board of Directors).
(c) Restrictions on Transfer of Shares. The shares of Stock
acquired by an Optionee pursuant to the exercise of an Option hereunder shall be
freely transferable; provided, however, that such shares of Stock may not be
sold, transferred, pledged or hypothecated, unless (i) a registration statement
covering the securities is effective under the Act and appropriate state
securities laws, or (ii) an opinion of counsel, satisfactory to the Company,
that such sale, transfer, pledge or hypothecation may legally be made without
registration of such shares under federal or state securities laws has been
received by the Company.
(d) Restrictive Legend. In order to enforce the restrictions
imposed upon shares of Stock under this Plan, the Company shall make appropriate
notation in its stock records or, if applicable, shall issue an appropriate
stock transfer instruction to the Company's stock transfer agent. In addition,
the Company may cause a legend or legends to be placed on any certificates
representing shares of Stock issued pursuant to this Plan, which legend or
legends shall make appropriate reference to such restrictions in substantially
the following form:
The shares of Common Stock evidenced by this certificate have been
issued under the Sawtek Inc. Stock Option Plan for Acquired
Companies (the "Plan") and are subject to the terms and provisions
of such Plan.
These shares have not been registered under the Securities Act of
1933, as amended, the Florida Securities and Investor Protection
Act or any other state securities laws, and, therefore, cannot be
sold unless they are subsequently registered under the Act and any
applicable state securities laws, or unless an exemption from
registration is available.
<PAGE>
12. Changes in Capital Structure of Company. In the event of a capital
adjustment resulting from a stock dividend, stock split, reclassification,
recapitalization, or by reason of a merger, consolidation, or other
reorganization in which the Company is the surviving corporation, the Board of
Directors shall make such adjustment, if any, as it may deem appropriate in the
number and kind of shares authorized by this Plan, or in the number, option
price and kind of shares covered by the Options granted. The Company shall give
notice of any adjustment to each Optionee and such adjustment shall be deemed
conclusive. The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined solely by the Board of Directors, and
any such adjustment may provide for the elimination of fractional shares.
13. Reorganization, Dissolution or Liquidation. In the event of the
dissolution or liquidation of the Company, or any merger or combination in which
the Company is not a surviving corporation is involved, or the Company transfers
substantially all of its assets or property to another corporation, or in the
event any other corporation acquires control of the Company in a reorganization
within the meaning of Section 368(a) of the Code, all outstanding Options shall
thereupon terminate, unless such Options are assumed or substitutes therefore
are issued (within the meaning of Section 424(a) of the Code) by the surviving
or acquiring corporation in any such merger, combination or other
reorganization. Notwithstanding the previous sentence, the Company shall give at
least fifteen (15) days written notice of such transaction to holders of
unexercised Options prior to the effective date of such merger, combination,
reorganization, dissolution or liquidation. The Board of Directors, in its sole
discretion, may elect to accelerate the vesting schedules of all Options
previously issued upon such notice, and the holders thereof may exercise such
Options prior to such effective date, notwithstanding any time limitation
previously placed on the exercise of such Options.
14. Dividends; Voting Stock.
(a) Dividends. Purchasers of Stock pursuant to this Plan will be
entitled, after issuance of their stock certificates, to any dividends that may
be declared and paid on the shares of Stock registered in their names. A stock
certificate representing dividends declared and paid in shares of Stock shall be
issued and delivered to the purchaser after such shares have been registered in
the purchaser's name. Such stock certificate shall bear the legends set forth
above and shall be subject to the provisions of this Plan, the Option Agreement
and any escrow arrangement.
(b) Voting Rights. Purchasers of shares of the Stock shall be
entitled to receive all notices of meetings and exercise all voting rights of a
shareholder with respect to the shares of Stock purchased.
(c) Rights as Shareholder. An Optionee shall have no rights as a
shareholder with respect to any shares covered by his or her Option until
exercise of the Option and the date of issuance of a certificate to him for such
shares. No adjustment shall be made for dividends or other rights for which the
record date is prior to the date such certificate is issued.
15. Amendment and Termination of the Plan.
(a) No Amendment Without Shareholder Approval. This Plan may only
be amended by obtaining the approval of the Company's shareholders.
<PAGE>
(b) Automatic Termination. This Plan shall terminate five (5)
years after its approval by the shareholders of the Company, unless the Board of
Directors shall, in its discretion, elect to terminate this Plan at an earlier
date. Options may be granted under this Plan at any time and from time to time
prior to termination of the Plan under this subparagraph 15(b). Any Option
outstanding at the time the Plan is terminated under this subparagraph 15(b)
shall remain in effect until the Option is exercised or expires.
16. Miscellaneous.
(a) Notices. All notices and elections by an Optionee shall be in
writing and delivered in person or by mail to the President or Treasurer of the
Company at the principal office of the Company.
(b) Effective Date of the Plan. The effective date of this Plan
shall be the date of its approval by the shareholders of the Company.
(c) Employment. Nothing in the Plan or in any Option granted
hereunder, or in any Stock Option Agreement relating thereto shall confer upon
any employee of the Acquired Company, the Company, or any Subsidiary, or any
successor thereof, the right to continue in the employ of the Acquired Company,
the Company, or any Subsidiary.
(d) Plan Binding. The Plan shall be binding upon the successors
and assigns of the Company.
(e) Gender. Whenever used herein, nouns in the singular shall
include the plural, and the masculine
pronoun shall include the feminine gender.
(f) Headings. Captioned headings of paragraphs and subparagraphs
hereof are inserted for convenience and reference, and constitute no part of the
Plan.
(g) Applicable Law. The validity, interpretation and enforcement
of this Plan are governed in all respects by the laws of the State of Florida
and the United States of America.
