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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 28, 2000
VEECO INSTRUMENTS INC.
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(Exact Name of Registrant as Specified in its Charter)
DELAWARE 0-16244 11-2989601
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
TERMINAL DRIVE, PLAINVIEW, NEW YORK 11803
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (516) 349-8300
NOT APPLICABLE
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. OTHER EVENTS.
On April 28, 2000, the Compensation Committee of the Board of Directors of
Veeco Instruments Inc. (the "Company") adopted a revised version of the Veeco
Instruments Inc. 2000 Stock Option Plan (the "Plan"), an earlier version of
which had been filed with the Securities and Exchange Commission as an appendix
to the definitive proxy statement (the "Proxy Statement") relating to the
Company's annual meeting to be held on May 12, 2000 (the "Annual Meeting"). A
summary of the earlier version of the Plan was included in the Proxy Statement.
The Plan, as revised, is substantially similar to that summarized in the proxy
statement except that the Plan has been revised to provide that options granted
under the Plan will not become immediately exerciseable upon a Change of Control
(as defined in the Plan) if such options are assumed or substitute options are
issued in connection with such Change of Control. If the stockholders of the
Company approve the Plan at the Annual Meeting or any adjournment thereof, the
form of the Plan adopted by the Company will be that filed as an exhibit to this
report.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
Exhibit No. Exhibit
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10.1 Veeco Instruments Inc. 2000 Stock Option Plan (as
adopted by the Compensation Committee of the Board of
Directors on April 28, 2000).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
VEECO INSTRUMENTS INC.
Date: May 9, 2000 By: /s/ GREGORY A. ROBBINS
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Name: Gregory A. Robbins
Title: Vice President and General Counsel
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EXHIBIT INDEX
Exhibit
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10.1 Veeco Instruments Inc. 2000 Stock Option Plan (as adopted by the
Compensation Committee of the Board of Directors on April 28, 2000).
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Exhibit 10.1
VEECO INSTRUMENTS INC.
2000 STOCK OPTION PLAN
(EFFECTIVE AS OF _________, 2000)
1. PURPOSE
The purpose of the Plan is to provide a means through which the
Company and its Affiliates may attract capable persons to enter and remain in
the employ of the Company and Affiliates and to provide a means whereby
employees, directors and consultants of the Company and its Affiliates can
acquire and maintain Common Stock ownership, thereby strengthening their
commitment to the welfare of the Company and Affiliates and promoting an
identity of interest between stockholders and these employees.
The Plan provides for granting Incentive Stock Options and
Nonqualified Stock Options.
2. DEFINITIONS
The following definitions shall be applicable throughout the Plan.
"Affiliate" means (i) any entity that directly or indirectly is
controlled by, or is under common control with the Company, (ii) any entity in
which the Company has a significant equity interest, and (iii) any Subsidiary;
in each case as determined by the Committee.
"Board" means the Board of Directors of the Company or, to the
extent the Board of Directors of the Company has authorized a committee thereof
to take action with respect to the Plan on its behalf, the committee so
authorized.
"Cause" means the Company or an Affiliate having "cause" to
terminate a Participant's employment or service, as defined in any existing
employment, consulting or any other agreement between the Participant and the
Company or an Affiliate or, in the absence of such an employment, consulting or
other agreement, upon (i) the determination by the Committee that the
Participant has ceased to perform his duties to the Company or an Affiliate
(other than as a result of his incapacity due to physical or mental illness or
injury), which failure amounts to an intentional and extended neglect of his
duties to such party, (ii) the Committee's determination that the Participant
has engaged or is about to engage in conduct materially injurious to the Company
or an Affiliate, (iii) the Participant having been convicted of, or pleaded
guilty or no contest to, a felony or a crime involving moral turpitude or (iv)
the failure of the Participant to follow instruction of the Board or his direct
superiors.
"Change in Control, shall, unless in the case of a particular Option
the applicable Stock Option Agreement states otherwise or contains a different
definition of "Change in Control", be deemed to occur upon:
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(i) 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")) (each, a "Person")
of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 30% or more (on a fully diluted basis) of
either (A) the then outstanding shares of Common Stock, taking into
account as outstanding for this purpose such Common Stock issuable upon
the exercise of options or warrants, the conversion of convertible stock
or debt, and the exercise of any similar right to acquire such common
stock (the "Outstanding Company Common Stock") or (B) 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 the Plan, the
following acquisitions shall not constitute a Change of Control: (I) any
acquisition by the Company, (II) any acquisition by any employee benefit
plan sponsored or maintained by the Company or any Affiliate, (III) any
acquisition by any Person which complies with clauses (A), (B) and (C) of
subsection (v) of this Section 2(f), or (IV) in respect of an Award held
by a particular Participant, any acquisition by the Participant or any
"affiliate" (within the meaning of 17 C.F.R. ss.230.405) of the
Participant (persons described in clauses (I), (II), and (IV) being
referred to hereafter as "Excluded Persons");
(ii) Individuals who, on the date hereof, constitute the
Board (the "Incumbent Directors") cease for any reason to constitute at
least a majority of the Board, PROVIDED that any person becoming a
director subsequent to the date hereof, whose election or nomination for
election was approved by a vote of at least two-thirds of the Incumbent
Directors then on the Board (either by a specific vote or by approval of
the proxy statement of the Corporation in which such person is named as a
nominee for director, without written objection to such nomination) shall
be deemed to be an Incumbent Director; PROVIDED, HOWEVER, that no
individual initially elected or nominated as a director of the Corporation
as a result of an actual or threatened election contest with respect to
directors or as a result of any other actual or threatened solicitation of
proxies or consents by or on behalf of any person other than the Board
shall be deemed to be an Incumbent Director;
(iii) the dissolution or liquidation of the Company;
(iv) the sale of all or substantially all of the
business or assets of the Company; or
(v) the consummation of a merger, consolidation,
statutory share exchange or similar form of corporate transaction
involving the Company that requires the approval of the Company's
stockholders, whether for such transaction or the issuance of securities
in the transaction (a "Business Combination"), unless immediately
following such Business Combination: (A) more than 50% of the total voting
power of (x) the corporation resulting from such Business Combination (the
"Surviving Corporation"), or (y) if applicable, the ultimate parent
corporation that directly or indirectly has beneficial ownership of
sufficient voting securities eligible to elect a majority of the directors
of the Surviving Corporation (the "Parent Corporation"), is represented by
the Outstanding Company Voting Securities that were outstanding
immediately prior to
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such Business Combination (or, if applicable, is represented by shares
into which the Outstanding Company Voting Securities were converted
pursuant to such Business Combination), (B) no Person (other than any
Excluded Person), is or becomes the beneficial owner, directly or
indirectly, of 30% or more of the total voting power of the outstanding
voting securities eligible to elect directors of the Parent Corporation
(or, if there is no Parent Corporation, the Surviving Corporation) and (C)
at least a majority of the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation of the Business Combination were
Incumbent Directors.
"Code" means the Internal Revenue Code of 1986, as amended.
Reference in the Plan to any section of the Code shall be deemed to include any
amendments or successor provisions to such section and any regulations under
such section.
"Committee" means a committee of at least two people as the Board
may appoint to administer the Plan or, if no such committee has been appointed
by the Board, the Board. Unless the Board is acting as the Committee or the
Board specifically determines otherwise, each member of the Committee shall, at
the time he takes any action with respect to a Option under the Plan, be an
Eligible Director. However, the mere fact that a Committee member shall fail to
qualify as an Eligible Director shall not invalidate any Option granted by the
Committee which Option is otherwise validly made under the Plan.
"Common Stock" means the common stock, par value $0.01 per share, of
the Company.
"Company" means Veeco Instruments Inc.
"Date of Grant" means the date on which the granting of an Option is
authorized, or such other date as may be specified in such authorization or, if
there is no such date, the date indicated on the applicable Stock Option
Agreement.
"Disability" means, unless in the case of a particular Option, the
applicable Option Agreement states otherwise, entitled to receive benefits under
the long-term disability plan of the Company or an Affiliate, as may be
applicable to the Participant in question, or, in the absence of such a plan,
the complete and permanent inability by reason of illness or accident to perform
the duties of the occupation at which a Participant was employed or served when
such disability commenced or, as determined by the Committee based upon medical
evidence acceptable to it.
"Effective Date" means the means the date on which the Plan is
approved by the Board, subject to the approval of the stockholders of the
Company.
"Eligible Director" means a person who is (i) a "non-employee
director" within the meaning of Rule 16b-3 under the Exchange Act, or a person
meeting any similar requirement under any successor rule or regulation and (ii)
an "outside director" within the meaning of Section 162(m) of the Code, and the
Treasury Regulations promulgated thereunder; PROVIDED, HOWEVER, that clause (ii)
shall apply only with respect to grants of Options with respect to which the
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Company's tax deduction could be limited by Section 162(m) of the Code if such
clause did not apply.
"Eligible Person" means any (i) individual regularly employed by the
Company or an Affiliate who satisfies all of the requirements of Section 6;
PROVIDED, HOWEVER, that no such employee covered by a collective bargaining
agreement shall be an Eligible Person unless and to the extent that such
eligibility is set forth in such collective bargaining agreement or in an
agreement or instrument relating thereto; (ii) director of the Company or an
Affiliate or (iii) consultant or advisor to the Company or an Affiliate who may
be offered securities pursuant to Form S-8 (which, as of the Effective Date,
includes only those who (A) are natural persons and (B) provide BONA FIDE
services to the Company or an Affiliate other than in connection with the offer
or sale of securities in a capital-raising transaction, and do not directly or
indirectly promote or maintain a market for the Company's securities).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value", on a given date means (i) if the Stock is
listed on a national securities exchange, the closing price on the primary
exchange with which the Stock is listed and traded on the date prior to such
date, or, if there is no such sale on that date, then on the last preceding date
on which such a sale was reported; (ii) if the Stock is not listed on any
national securities exchange but is quoted in the National Market System of the
National Association of Securities Dealers Automated Quotation System ("NASDAQ")
on a last sale basis, the closing price reported on the date prior to such date,
or, if there is no such sale on that date, then on the last preceding date on
which a sale was reported; or (iii) if the Stock is not listed on a national
securities exchange nor quoted in the NASDAQ on a last sale basis, the amount
determined by the Committee to be the fair market value based upon a good faith
attempt to value the Stock accurately and computed in accordance with applicable
regulations of the Internal Revenue Service.
"Incentive Stock Option" means an Option granted by the Committee to
a Participant under the Plan which is designated by the Committee as an
incentive stock option as described in Section 422 of the Code and which
otherwise meets the requirements set forth herein.
"Mature Shares" means shares of Stock owned by a Participant which
are not subject to any pledge or other security interest and have either been
held by the Participant for six months, previously acquired by the Participant
on the open market or meet such other requirements as the Committee may
determine necessary in order to avoid an accounting earnings charge on account
of the use of such shares to pay the Option Price or satisfy a withholding
obligation in respect of an Option.
"Non-Employee Director" means a member of the Board who is not an
employee of the Company or any Affiliate.
"Nonqualified Stock Option" means an Option granted by the Committee
to a Participant under the Plan which is not designated by the Committee as an
Incentive Stock Option.
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"Normal Termination" means termination of employment or service with
the Company or an Affiliate:
(i) on account of death or Disability;
(ii) by the Company or such Affiliate without Cause; or
(iii) in the case of Options granted pursuant to Section
7(a)(ii) hereof, a resignation from or a failure
to be re-elected to the Board.
"Option" means an award granted under Section 7.
"Option Period" means the period described in Section 7(d).
"Option Price" means the exercise price for an Option as described
in Section 7(a).
"Participant" means an Eligible Person who has been selected by the
Committee to participate in the Plan and to receive an Option pursuant to
Section 6.
"Plan" means this Veeco Instruments Inc. 2000 Stock Option Plan.
"Securities Act" means the Securities Act of 1933, as amended.
"Stock" means the Common Stock or such other authorized shares of
stock of the Company as the Committee may from time to time authorize for use
under the Plan.
"Stock Option Agreement" means any agreement between the Company and
a Participant who has been granted an Option pursuant to Section 7 which defines
the rights and obligations of the parties thereto.
"Subsidiary" means any subsidiary of the Company as defined in
Section 424(f) of the Code.
3. EFFECTIVE DATE AND DURATION
The Plan is effective as of the Effective Date; provided that the
effectiveness of the Plan and the validity and exercisability of any and all
Options granted pursuant to the Plan is contingent upon approval of the Plan by
the shareholders of the Company in a manner intended to comply with the
shareholder approval requirements of Sections 162(m) and 422(b)(i) of the Code.
The expiration date of the Plan, on and after which no Options may
be granted hereunder, shall be the tenth anniversary of the Effective Date;
PROVIDED, HOWEVER, that the administration of the Plan shall continue in effect
until all matters relating to Options previously granted have been settled.
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4. ADMINISTRATION
The Committee shall administer the Plan. A majority of the members
of the Committee shall constitute a quorum. The acts of a majority of the
members present at any meeting at which a quorum is present or acts approved in
writing by a majority of the Committee shall be deemed the acts of the
Committee.
Subject to the provisions of the Plan and applicable law, the
Committee shall have the power, in addition to other express powers and
authorizations conferred on the Committee by the Plan, to: (i) designate
Participants; (ii) determine the type or types of Options to be granted to a
Participant; (iii) determine the number of Shares to be covered by, or with
respect to which payments, rights, or other matters are to be calculated in
connection with, Options; (iv) determine the terms and conditions of any
Options; (v) determine whether, to what extent, and under what circumstances
Options may be settled or exercised in cash, Stock, other securities, other
Options or other property, or canceled, forfeited or suspended and the method or
methods by which Options may be settled, exercised, canceled, forfeited or
suspended; (vi) determine whether, to what extent, and under what circumstances
cash, Shares, other securities, other Options, other property and other amounts
payable with respect to an Option shall be deferred either automatically or at
the election of the holder thereof or of the Committee; (vii) interpret,
administer reconcile any inconsistency, correct any default and/or supply any
omission in the Plan and any instrument or agreement relating to, or Option
granted under, the Plan; (viii) establish, amend, suspend, or waive such rules
and regulations and appoint such agents as it shall deem appropriate for the
proper administration of the Plan; and (ix) make any other determination and
take any other action that the Committee deems necessary or desirable for the
administration of the Plan.
(b) Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations and other decisions under or with
respect to the Plan or any Option or any documents evidencing Options shall be
within the sole discretion of the Committee, may be made at any time and shall
be final, conclusive and binding upon all parties, including, without
limitation, the Company, any Affiliate, any Participant, any holder or
beneficiary of any Option, and any shareholder.
(c) Notwithstanding the above, no Committee member holding Options
granted pursuant to Section 7(a)(ii) hereof may participate in any action of the
Committee with respect to any claim or dispute regarding only that Committee
member.
5. GRANT OF AWARDS; SHARES SUBJECT TO THE PLAN
The Committee may, from time to time, grant Options to one or more
Eligible Persons; PROVIDED, HOWEVER, that:
(a) Subject to Section 9, the aggregate number of shares of
Stock in respect of which Options may be granted under the Plan shall not exceed
1,250,000;
(b) Shares authorized under the Plan shall be deemed to have
been used in settlement of Options whether or not they are actually delivered.
In the event any Option shall
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be surrendered, terminate, expire, or be forfeited, the number of shares of
Stock no longer subject thereto shall thereupon be released and shall thereafter
be available for new grants under the Plan;
(c) Stock delivered by the Company in settlement of Options
granted under the Plan may be authorized and unissued Stock or Stock held in the
treasury of the Company or may be purchased on the open market or by private
purchase;
(d) Subject to Section 9, no person may be granted Options
under the Plan during any calendar year with respect to more than 300,000 shares
of Stock; PROVIDED that such number shall be adjusted pursuant to Section 9 only
in a manner which will not cause the Options granted under the Plan to fail to
qualify as "performance-based compensation" under Section 162(m) of the Code;
(e) Without limiting the generality of the preceding
provisions of this Section 5, the Committee may, but solely with the
Participant's consent, agree to cancel any Option under the Plan and issue a new
Option in substitution therefor upon such terms as the Committee may in its sole
discretion determine, PROVIDED that the substituted Option satisfies all
applicable Plan requirements as of the date such new Award is made, PROVIDED
FURTHER that, without shareholder approval, no such action may lower the
exercise price of a previously granted option.
6. ELIGIBILITY
Participation shall be limited to Eligible Persons who have received
written notification from the Committee, or from a person designated by the
Committee, that they have been selected to participate in the Plan.
7. TERMS OF OPTIONS
(a) OPTION GRANTS.
(i) ELIGIBLE PERSONS. The Committee is authorized to
grant one or more Incentive Stock Options or Nonqualified Stock Options to any
Eligible Person; PROVIDED, HOWEVER, that no Incentive Stock Options shall be
granted to any Eligible Person who is not an employee of the Company or a
Subsidiary. Each Option so granted shall be subject to the following conditions
of this Section 7, or to such other conditions as may be reflected in the
applicable Stock Option Agreement.
(ii) ELIGIBLE DIRECTORS. In addition to discretionary
grants of Options pursuant to Section 7(a)(i), each Participant who is a
Non-Employee Director of the Company shall receive upon initial election to
office and thereafter annually on the date of the Company's annual meeting of
stockholders (PROVIDED that such date is at least 6 months following such
Eligible Director's initial election to office) an Option to acquire 7,000
shares of Common Stock at a price equal to the Fair Market Value of the shares
of Common Stock subject to such Option on the Date of Grant.
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(b) OPTION PRICE. The exercise price ("Option Price") per
share of Stock for each Option shall be set by the Committee at the time of
grant but shall not be less than the Fair Market Value of a share of Stock on
the Date of Grant subject, in the case of an Incentive Stock Option, to Section
7(g).
(c) MANNER OF EXERCISE AND FORM OF PAYMENT. No shares of Stock
shall be delivered pursuant to any exercise of an Option until payment in full
of the aggregate exercise price therefor is received by the Company. Options
which have become exercisable may be exercised by delivery of written notice of
exercise to the Committee accompanied by payment of the Option Price. The Option
Price shall be payable in cash and/or, at the sole discretion of the Committee,
shares of Stock valued at the Fair Market Value at the time the Option is
exercised (including by means of attestation of ownership of a sufficient number
of shares of Stock in lieu of actual delivery of such shares to the Company),
PROVIDED that such shares of Stock are Mature Shares, or, in the discretion of
the Committee, either (i) in other property having a fair market value on the
date of exercise equal to the Option Price, (ii) by delivering to the Committee
a copy of irrevocable instructions to a stockbroker to deliver promptly to the
Company an amount of loan proceeds, or proceeds of the sale of the Stock subject
to the Option, sufficient to pay the Option Price or (iii) by such other method
as the Committee may allow.
(d) VESTING.
(i) IN GENERAL. Unless otherwise provided in a Stock
Option Agreement or other written agreement between the Company and a
Participant, Options shall vest and become exercisable as follows:
(x) with respect to one-third of the shares of Stock
covered by the Option, on the first anniversary of the Date of
Grant;
(y) with respect to an additional one-third of the
shares of Stock covered by the Option, on the second anniversary of
the Date of Grant;
(z) with respect to the remaining one-third of the
shares of Stock covered by the Option, on the third anniversary of
the Date of Grant.
Notwithstanding the foregoing, the Committee may, in its sole discretion,
accelerate the exercisability of any Option, which acceleration shall not affect
the terms and conditions of any such Option other than with respect to
exercisability. If an Option is exercisable in installments, such installments
or portions thereof which become exercisable shall remain exercisable until the
Option expires.
(ii) NON-EMPLOYEE DIRECTORS. Notwithstanding
Section 7(d)(i), Options granted to Eligible Directors shall be immediately
vested and exercisable as of the Date of Grant.
(e) OPTION PERIOD AND TERMINATION.An Option may be exercised
by the holder thereof in accordance with Section 7(d) above; PROVIDED, HOWEVER,
that no Option shall be exercisable later than seven years from the Date of
Grant (the "Option Period").
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Notwithstanding the foregoing, unless the applicable Stock Option Agreement or
other written agreement between the Company and a Participant provides
otherwise, an Option shall expire earlier than the end of the Option Period in
the following circumstances:
(i) If prior to the end of the Option Period, the
Participant shall undergo a Normal Termination, the Option shall expire on
the earlier of the last day of the Option Period or the date that is three
months after the date of such Normal Termination; PROVIDED, HOWEVER, that
any Participant whose employment with the Company or any Affiliate is
terminated and who is subsequently rehired by the Company or any Affiliate
prior to the expiration of the Option shall not be considered to have
undergone a termination. In the event of a Normal Termination, the Option
shall remain exercisable by the Participant for the period described
above, only to the extent the Option was exercisable at the time of such
Normal Termination.
(ii) If the Participant dies prior to the end of the
Option Period and while still in the employ or service of the Company or
an Affiliate, or following a Normal Termination but prior to the
expiration of an Option, the Option shall expire on the earlier of the
last day of the Option Period and the date that is one year after the date
of death of the Participant. In such event, the Option shall remain
exercisable by the person or persons to whom the Participant's rights
under the Option pass by will or the applicable laws of descent and
distribution until its expiration, only to the extent the Option was
exercisable by the Participant at the time of death.
(iii) If the Participant ceases employment or service
with the Company and Affiliates for reasons other than Normal Termination
or death, the Option shall expire immediately upon such cessation of
employment or service.
(f) OTHER TERMS AND CONDITIONS. Except as specifically
provided otherwise in a Stock Option Agreement, each Option granted under the
Plan shall be subject to the following terms and conditions:
(i) Each Option or portion thereof that is exercisable
shall be exercisable for the full amount of such exercisable portion or
for any part thereof.
(ii) Each Option shall cease to be exercisable, as to
any share of Stock, when the Participant purchases the share or when the
Option expires.
(iii) Subject to Section 8(h), Options shall not be
transferable by the Participant except by will or the laws of descent and
distribution and shall be exercisable during the Participant's lifetime
only by him.
(iv) Each Option shall vest and become exercisable by
the Participant in accordance the provisions of Section 7(d).
(v) At the time of any exercise of an Option, the
Committee may, in its sole discretion, require a Participant to deliver to
the Committee a written representation that the shares to be acquired upon
such exercise are to be acquired for
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investment and not for resale or with a view to the distribution thereof.
Upon such a request by the Committee, delivery of such representation
prior to the delivery of any shares issued upon exercise of an Option
shall be a condition precedent to the right of the Participant or such
other person to purchase any shares. In the event certificates for Stock
are delivered under the Plan with respect to which such investment
representation has been obtained, the Committee may cause a legend or
legends to be placed on such certificates to make appropriate reference to
such representation and to restrict transfer in the absence of compliance
with applicable federal or state securities laws.
(vi) Each Participant awarded an Incentive Stock Option
under the Plan shall notify the Company in writing immediately after the
date he or she makes a disqualifying disposition of any Stock acquired
pursuant to the exercise of such Incentive Stock Option. A disqualifying
disposition is any disposition (including any sale) of such Stock before
the later of (a) two years after the Date of Grant of the Incentive Stock
Option or (b) one year after the date the Participant acquired the Stock
by exercising the Incentive Stock Option.
(g) INCENTIVE STOCK OPTION GRANTS TO 10% STOCKHOLDERS.
Notwithstanding anything to the contrary in this Section 7, if an Incentive
Stock Option is granted to a Participant who owns stock representing more than
ten percent of the voting power of all classes of stock of the Company or of a
Subsidiary, the Option Period shall not exceed five years from the Date of Grant
of such Option and the Option Price shall be at least 110 percent of the Fair
Market Value (on the Date of Grant) of the Stock subject to the Option.
(h) $100,000 PER YEAR LIMITATION FOR INCENTIVE STOCK OPTIONS.
To the extent the aggregate Fair Market Value (determined as of the Date of
Grant) of Stock for which Incentive Stock Options are exercisable for the first
time by any Participant during any calendar year (under all plans of the
Company) exceeds $100,000, such excess Incentive Stock Options shall be treated
as Nonqualified Stock Options.
(i) VOLUNTARY SURRENDER. The Committee may permit the
voluntary surrender of all or any portion of any Nonqualified Stock Option
granted under the Plan to be conditioned upon the granting to the Participant of
a new option for the same or a different number of shares as the option
surrendered or require such voluntary surrender as a condition precedent to a
grant of a new Option to such Participant. Such new Option shall be exercisable
at an Option Price, during an Option Period, and in accordance with any other
terms or conditions specified by the Committee at the time the new Option is
granted, all determined in accordance with the provisions of the Plan without
regard to the Option Price, Option Period, or any other terms and conditions of
the Nonqualified Stock Option surrendered.
8. GENERAL
(a) ADDITIONAL PROVISIONS OF AN OPTION. Options granted to a
Participant under the Plan also may be subject to such other provisions (whether
or not applicable to the benefit awarded to any other Participant) as the
Committee determines appropriate including, without limitation, provisions to
assist the Participant in financing the purchase of Stock upon the exercise of
options, provisions for the forfeiture of or restrictions on resale or
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other disposition of shares of Stock acquired under any Option, provisions
giving the Company the right to repurchase shares of Stock acquired under any
Option in the event the Participant elects to dispose of such shares, provisions
allowing the Participant to elect to defer the receipt of shares of Stock upon
the exercise of Options for a specified time or until a specified event, and
provisions to comply with Federal and state securities laws and Federal and
state tax withholding requirements. Any such provisions shall be reflected in
the applicable Stock Option Agreement.
(b) PRIVILEGES OF STOCK OWNERSHIP. Except as otherwise
specifically provided in the Plan, no person shall be entitled to the privileges
of ownership in respect of shares of Stock which are subject to Options
hereunder until such shares have been issued to that person.
(c) GOVERNMENT AND OTHER REGULATIONS. The obligation of the
Company to make payment of Options in Stock or otherwise shall be subject to all
applicable laws, rules, and regulations, and to such approvals by governmental
agencies as may be required. Notwithstanding any terms or conditions of any
Option to the contrary, the Company shall be under no obligation to offer to
sell or to sell and shall be prohibited from offering to sell or selling any
shares of Stock pursuant to an Option unless such shares have been properly
registered for sale pursuant to the Securities Act with the Securities and
Exchange Commission or unless the Company has received an opinion of counsel,
satisfactory to the Company, that such shares may be offered or sold without
such registration pursuant to an available exemption therefrom and the terms and
conditions of such exemption have been fully complied with. The Company shall be
under no obligation to register for sale under the Securities Act any of the
shares of Stock to be offered or sold under the Plan. If the shares of Stock
offered for sale or sold under the Plan are offered or sold pursuant to an
exemption from registration under the Securities Act, the Company may restrict
the transfer of such shares and may legend the Stock certificates representing
such shares in such manner as it deems advisable to ensure the availability of
any such exemption.
(d) TAX WITHHOLDING.
(i) A Participant may be required to pay to the Company
or any Affiliate and the Company or any Affiliate shall have the right and is
hereby authorized to withhold from any Shares or other property deliverable
under any Option or from any compensation or other amounts owing to a
Participant the amount (in cash, Stock or other property) of any required tax
withholding and payroll taxes in respect of an Option, its exercise, or any
payment or transfer under an Option or under the Plan and to take such other
action as may be necessary in the opinion of the Company to satisfy all
obligations for the payment of such taxes.
(ii) Without limiting the generality of clause (i)
above, the Committee may, in its sole discretion, permit a Participant to
satisfy, in whole or in part, the foregoing withholding liability (but no more
than the minimum required withholding liability) by (A) delivery of shares of
Stock owned by the Participant (which shares must be Mature Shares) with a Fair
Market Value equal to such withholding liability or (B) having the Company
withhold from the number of shares of Stock otherwise issuable pursuant to the
exercise of the Option a number of shares with a Fair Market Value equal to such
withholding liability.
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(e) CLAIM TO OPTIONS AND EMPLOYMENT RIGHTS. No employee of the
Company or any Affiliate, or other person, shall have any claim or right to be
granted an Option under the Plan or, having been selected for the grant of an
Option, to be selected for a grant of any other Award. Neither the Plan nor any
action taken hereunder shall be construed as giving any Participant any right to
be retained in the employ or service of the Company or any Affiliate.
(f) NO LIABILITY OF COMMITTEE MEMBERS. No member of the
Committee shall be personally liable by reason of any contract or other
instrument executed by such member or on his behalf in his capacity as a member
of the Committee nor for any mistake of judgment made in good faith, and the
Company shall indemnify and hold harmless each member of the Committee and each
other employee, officer or director of the Company to whom any duty or power
relating to the administration or interpretation of the Plan may be allocated or
delegated, against any cost or expense (including counsel fees) or liability
(including any sum paid in settlement of a claim) arising out of any act or
omission to act in connection with the Plan unless arising out of such person's
own fraud or willful bad faith; PROVIDED, HOWEVER, that approval of the Board
shall be required for the payment of any amount in settlement of a claim against
any such person. The foregoing right of indemnification shall not be exclusive
of any other rights of indemnification to which such persons may be entitled
under the Company's Articles of Incorporation or By-Laws, as a matter of law, or
otherwise, or any power that the Company may have to indemnify them or hold them
harmless.
(g) GOVERNING LAW. The Plan shall be governed by and construed
in accordance with the internal laws of the State of Delaware without regard to
the principles of conflicts of law thereof, or principals of conflicts of laws
of any other jurisdiction which could cause the application of the laws of any
jurisdiction other than the State of Delaware.
(h) NONTRANSFERABILITY.
(i) Each Option shall be exercisable only by the
Participant during the Participant's lifetime, or, if permissible under
applicable law, by the Participant's legal guardian or representative. No Option
may be assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by a Participant otherwise than by will or by the laws of descent and
distribution and any such purported assignment, alienation, pledge, attachment,
sale, transfer or encumbrance shall be void and unenforceable against the
Company or any Affiliate; PROVIDED that the designation of a beneficiary shall
not constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance.
(ii) Notwithstanding the foregoing, the Committee or its
delegate may, in its sole discretion, permit Nonqualified Stock Options to be
transferred by a Participant, without consideration, subject to such rules as
the Committee may adopt consistent with any applicable Stock Option Agreement to
preserve the purposes of the Plan, to:
(A) any person who is a "family member" of the Participant,
as such term is used in the instructions to Form S-8
(collectively, the "Immediate Family Members");
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(B) a trust solely for the benefit of the Participant and
his or her Immediate Family Members;
(C) a partnership or limited liability company whose only
partners or shareholders are the Participant and his or
her Immediate Family Members; or
(D) any other transferee as may be approved either (a) by
the Board or the Committee in its sole discretion, or
(b) as provided in the applicable Stock Option
Agreement;
(each transferee described in clauses (A), (B), (C) and (D) above is hereinafter
referred to as a "Permitted Transferee"); PROVIDED that the Participant gives
the Committee advance written notice describing the terms and conditions of the
proposed transfer and the Committee notifies the Participant in writing that
such a transfer would comply with the requirements of the Plan. For purposes of
this paragraph, "delegate" shall refer to the Chief Executive Officer of the
Company, except with respect to the transfer of any of Chief Executive Officer's
own Options.
(iii) The terms of any Option transferred in accordance
with the immediately preceding sentence shall apply to the Permitted Transferee
and any reference in the Plan, or in any applicable Stock Option Agreement, to a
Participant shall be deemed to refer to the Permitted Transferee, except that
(A) Permitted Transferees shall not be entitled to transfer any Options, other
than by will or the laws of descent and distribution; (B) Permitted Transferees
shall not be entitled to exercise any transferred Options unless there shall be
in effect a registration statement on an appropriate form covering the shares to
be acquired pursuant to the exercise of such Option if the Committee determines,
consistent with any applicable Stock Option Agreement, that such a registration
statement is necessary or appropriate, (C) the Committee or the Company shall
not be required to provide any notice to a Permitted Transferee, whether or not
such notice is or would otherwise have been required to be given to the
Participant under the Plan or otherwise, and (D) the consequences of termination
of the Participant's employment by, or services to, the Company or any Affiliate
under the terms of the Plan and the applicable Stock Option Agreement shall
continue to be applied with respect to the Participant, following which the
Options shall be exercisable by the Permitted Transferee only to the extent, and
for the periods, specified in the Plan and the applicable Stock Option
Agreement.
(i) RELIANCE ON REPORTS. Each member of the Committee and each
member of the Board shall be fully justified in relying, acting or failing to
act, and shall not be liable for having so relied, acted or failed to act in
good faith, upon any report made by the independent public accountant of the
Company and upon any other information furnished in connection with the Plan by
any person or persons other than himself.
(j) RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan
shall be taken into account in determining any benefits under any pension,
retirement, profit sharing, group insurance or other benefit plan of the Company
or any Affiliate except as otherwise specifically provided in such other plan.
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(k) EXPENSES. The expenses of administering the Plan shall be
borne by the Company.
(l) PRONOUNS. Masculine pronouns and other words of masculine
gender shall refer to both men and women.
(m) TITLES AND HEADINGS. The titles and headings of the
sections in the Plan are for convenience of reference only, and in the event of
any conflict, the text of the Plan, rather than such titles or headings shall
control.
(n) TERMINATION OF EMPLOYMENT. For all purposes herein, a
person who transfers from employment or service with the Company to employment
or service with an Affiliate or vice versa, or from employment or service with
one Affiliate to employment or service with another Affiliate, shall not be
deemed to have terminated employment or service with the Company or any such
Affiliate.
(o) SEVERABILITY. If any provision of the Plan or any Stock
Option Agreement is or becomes or is deemed to be invalid, illegal, or
unenforceable in any jurisdiction or as to any person or Option, or would
disqualify the Plan or any Option under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to the
applicable laws, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of the Plan or
the Option, such provision shall be stricken as to such jurisdiction, person or
Option and the remainder of the Plan and any such Option shall remain in full
force and effect.
9. CHANGES IN CAPITAL STRUCTURE
Options granted under the Plan and any Stock Option Agreements, the
maximum number of shares of Stock subject to all Options and Incentive Stock
Options stated in Section 5(a) and the maximum number of shares of Stock with
respect to which any one person may be granted Options during any period stated
in Section 5(d) shall be subject to adjustment or substitution, as determined by
the Committee in its sole discretion, as to the number, price or kind of a share
of Stock or other consideration subject to such Options or as otherwise
determined by the Committee to be equitable (i) in the event of changes in the
outstanding Stock or in the capital structure of the Company by reason of stock
or extraordinary cash dividends, stock splits, reverse stock splits,
recapitalization, reorganizations, mergers, consolidations, combinations,
exchanges, or other relevant changes in capitalization occurring after the Date
of Grant of any such Option or (ii) in the event of any change in applicable
laws or any change in circumstances which results in or would result in any
substantial dilution or enlargement of the rights granted to, or available for,
Participants, or which otherwise warrants equitable adjustment because it
interferes with the intended operation of the Plan. Any adjustment in Incentive
Stock Options under this Section 9 shall be made only to the extent not
constituting a "modification" within the meaning of Section 424(h)(3) of the
Code, and any adjustments under this Section 9 shall be made in a manner which
does not adversely affect the exemption provided pursuant to Rule 16b-3 under
the Exchange Act. Further, with respect to Options intended to qualify as
"performance-based compensation" under Section 162(m) of the Code, such
adjustments or substitutions shall be made only to the extent that the Committee
determines that such adjustments or substitutions may be made without
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causing the Company to be denied a tax deduction on account of Section 162(m) of
the Code. The Company shall give each Participant notice of an adjustment
hereunder and, upon notice, such adjustment shall be conclusive and binding for
all purposes.
Notwithstanding the above, in the event of any of the following:
A. The Company is merged or consolidated with another corporation or
entity and, in connection therewith, consideration is received by shareholders
of the Company in a form other than stock or other equity interests of the
surviving entity;
B. All or substantially all of the assets of the Company are
acquired by another person;
C. The reorganization or liquidation of the Company; or
D. The Company shall enter into a written agreement to undergo an
event described in clauses A, B or C above,
then the Committee may, in its discretion and upon at least 10 days advance
notice to the affected persons, cancel any outstanding Options and pay to the
holders thereof, in cash or stock, or any combination thereof, the value of such
Options based upon the price per share of Stock received or to be received by
other shareholders of the Company in the event. The terms of this Section 9 may
be varied by the Committee in any particular Stock Option Agreement.
10. EFFECT OF CHANGE IN CONTROL
Except to the extent reflected in a particular Stock Option
Agreement or other written agreement between the Company and a Participant:
(a) In the event of a Change in Control, all Options shall
become immediately vested and exercisable with respect to 100 percent of the
shares subject to such Option; PROVIDED, HOWEVER, that no such vesting shall
occur if provision has been made in writing in connection with such transaction
for (a) the continuation of the Plan and/or assumption of such Options by a
successor corporation (or a parent or subsidiary thereof) or (b) the
substitution for such Options of new options covering the stock of a successor
corporation (or a parent or subsidiary thereof), with appropriate adjustments as
to the number and kinds of shares and exercise prices. In the event of any such
continuation, assumption or substitution, the Plan and/or such Options shall
continue in the manner and under the terms so provided.
(b) In addition, in the event of a Change in Control, the
Committee may in its discretion and upon at least 10 days' advance notice to the
affected persons, cancel any outstanding Options and pay to the holders thereof,
in cash or stock, or any combination thereof, the value of such Options based
upon the price per share of Stock received or to be received by other
shareholders of the Company in the event.
(c) The obligations of the Company under the Plan shall be
binding upon any successor corporation or organization resulting from the
merger, consolidation or other
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reorganization of the Company, or upon any successor corporation or organization
succeeding to substantially all of the assets and business of the Company. The
Company agrees that it will make appropriate provisions for the preservation of
Participants' rights under the Plan in any agreement or plan which it may enter
into or adopt to effect any such merger, consolidation, reorganization or
transfer of assets.
11. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of this Plan by the Board nor the submission of
this Plan to the stockholders of the Company for approval shall be construed as
creating any limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under this Plan, and such arrangements
may be either applicable generally or only in specific cases.
12. AMENDMENTS AND TERMINATION
(a) AMENDMENT AND TERMINATION OF THE PLAN. The Board may
amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof
at any time; PROVIDED that no such amendment, alteration, suspension,
discontinuation or termination shall be made without shareholder approval if
such approval is necessary to comply with any tax or regulatory requirement
applicable to the Plan (including as necessary to prevent the Company from being
denied a tax deduction on account of Section 162(m) of the Code); and PROVIDED
FURTHER that any such amendment, alteration, suspension, discontinuance or
termination that would impair the rights of any Participant or any holder or
beneficiary of any Option theretofore granted shall not to that extent be
effective without the consent of the affected Participant, holder or
beneficiary.
(b) AMENDMENT OF STOCK OPTION AGREEMENTS. The Committee may
waive any conditions or rights under, amend any terms of, or alter, suspend,
discontinue, cancel or terminate, any Option theretofore granted or the
associated Stock Option Agreement, prospectively or retroactively; PROVIDED that
any such waiver, amendment, alteration, suspension, discontinuance, cancellation
or termination that would impair the rights of any Participant in respect of any
Option theretofore granted shall not to that extent be effective without the
consent of the affected Participant.
* * *
As adopted by the Compensation Committee of the Board of Directors of
Veeco Instrument Inc. on April 28, 2000 and approved by the stockholders of
Veeco Instruments Inc. on
_____________.
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