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Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
under
The Securities Act of 1933
PLASMA-THERM, INC.
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(Exact name of registrant as specified in its charter)
Florida 04-2554632
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(State of incorporation) (I.R.S. Employer Identification No.)
9509 International Court, St. Petersburg, Florida 33716
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(Address of principal executive offices) (Zip Code)
Plasma-Therm, Inc.
1995 Stock Incentive Plan
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(Full title of the plan)
Diana M. DeFerrari
Vice President of Administration
and Corporate Secretary
9509 International Court
St. Petersburg, Florida 33716
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(Name and address of agent for service)
(813) 577-4999
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(Telephone number, including area code, of agent for service)
Copies to:
Carl W. Schneider, Esquire
Wolf, Block, Schorr and Solis-Cohen
Twelfth Floor, Packard Building
S.E. Corner 15th & Chestnut Streets
Philadelphia, PA 19102
(215) 977-2000
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Amount offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered(1) Share (2) Price (2) Fee (2)
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Common Stock, 3,000,000 $3.71875 $11,156,250 $3,846.98
$.01 par value
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also covers such additional shares as may
hereinafter be offered or issued to prevent dilution resulting from stock
splits, stock dividends, recapitalizations or certain other capital
adjustments.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended, based upon the average of the high and low prices of the
Registrant's Common Stock as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System on June 15, 1995.
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PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference.
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The following documents filed by Plasma-Therm, Inc. (the "Registrant")
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated into this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
November 30, 1994.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended February 28, 1995.
(c) The description of the Registrant's Common Stock contained in a
Registration Statement on Form 8-A filed by the Registrant to register such
securities under the Exchange Act, including all amendments and reports filed
for the purpose of updating such description prior to the termination of the
offering hereby.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein (or in any subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part hereof.
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Experts.
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The financial statements and schedules of the Registrant for the
period ended November 30, 1994, incorporated by reference in this Registration
Statement have been audited by Grant Thornton LLP, independent auditors, as
indicated in their reports with respect thereto. Such financial statements are,
and audited financial statements to be included in subsequently filed documents
will be, incorporated herein by reference in reliance upon the reports of Grant
Thornton LLP pertaining to such financial statements (to the extent covered by
consents filed with the Securities and Exchange Commission) given upon the
authority of said firm as experts in accounting and auditing.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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The financial statements and schedules incorporated by reference in
this registration statement have been audited by Grant Thornton LLP, independent
auditors, as indicated in their report with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in giving said reports.
Item 6. Indemnification of Directors and Officers.
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For information regarding provisions under which a director or officer
of the Registrant may be insured or indemnified in any manner against liability
which he or she may incur in his or her capacity as such, reference is made to
Section 607.0850 of the Florida 1989 Business Corporation Act, as amended, which
provides as follows:
"1. A corporation shall have power to indemnify any person who was or
is a party to any proceeding (other than an 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
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interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, or conviction or
upon a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of the
corporation or, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
2. A corporation shall have power 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. Such
indemnification shall be authorized if such person 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 shall be made under this
subsection 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, determines 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 deems
proper.
3. 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 in subsection (1) or subsection (2), 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.
4. Any indemnification under subsection (1) or subsection (2), unless
pursuant to a determination by a court shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer,
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employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsection (1) or subsection (2).
Such determination shall be made:
(a) By the board of directors, by a majority vote of a quorum
consisting of directors who were not parties to such proceeding;
(b) If such a quorum is not obtainable or, even if obtainable, by
majority vote of a committee duly designated by the board of directors (in which
directors who are parties may participate) consisting solely of two or more
directors not at the time parties to the proceeding;
(c) By independent legal counsel:
1. Selected by the board of directors prescribed in paragraph (a) or
the committee prescribed in paragraph (b); or
2. If a quorum of the directors cannot be obtained for paragraph (a)
and the committee cannot be designated under paragraph (b), selected by majority
vote of the full board of directors (in which directors who are parties may
participate); or
(d) By the shareholders by a majority vote of a quorum consisting of
shareholders who were not parties to such proceeding or, if no such quorum is
obtainable, by a majority vote of shareholders who were not parties to such
proceeding.
(5) Evaluation of the reasonableness of expenses and authorization of
indemnification shall be made in the same manner as the determination that
indemnification is permissible. However, if the determination of permissibility
is made by independent legal counsel, persons specified by paragraph (4)(c)
shall evaluate the reasonableness of expenses and may authorize indemnification.
(6) Expenses incurred by an officer or director in defending a civil
or criminal proceeding may be paid by the corporation in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if he is ultimately found not to
be entitled to indemnification by the corporation pursuant to this section.
Expenses incurred by other employees and agents may be paid in advance upon such
terms or conditions that the board of directors deems appropriate.
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(7) The indemnification and advancement of expenses provided pursuant
to this section are not exclusive, and a corporation may make any other or
further indemnification or advancement of expenses of any of its directors,
officers, employees, or agents, under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
However, indemnification or advancement of expenses shall not be made to or on
behalf of any director, officer, employee, or agent if a judgment or other final
adjudication establishes that his actions, or omissions to act, were material to
the cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the director, officer,
employee, or agent had reasonable cause to believe his conduct was lawful or had
no reasonable cause to believe his conduct was unlawful;
(b) A transaction from which the director, officer, employee, or agent
derived an improper personal benefit;
(c) In the case of a director, a circumstance under which the
liability provisions of S.607.0834 are applicable; or
(d) Willful misconduct or a conscious disregard for the best interests
of the corporation in a proceeding by or in the right of the corporation to
procure a judgment in its favor or in a proceeding by or in the right of a
shareholder.
(8) Indemnification and advancement of expenses as provided in this
section shall continue as, unless otherwise provided when authorized or
ratified, to a person who has ceased to be a director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors, and administrators
of such a person, unless otherwise provided when authorized or ratified.
(9) Unless the corporation's articles of incorporation provide
otherwise, notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary determination of the board or of the
shareholders in the specific case, a director, officer, employee, or agent of
the corporation who is or was a party to a proceeding may apply for
indemnification or advancement of expenses, or both, to the court conducting the
proceeding, to the circuit court, or to another court of competent jurisdiction.
On receipt of an application, the court, after giving any notice
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that it considers necessary, may order indemnification and advancement of
expenses, including expenses incurred in seeking court-ordered indemnification
or advancement of expenses, if it determines that:
(a) The director, officer, employee, or agent is entitled to mandatory
indemnification under subsection (3), in which case the court shall also order
the corporation to pay the director reasonable expenses incurred in obtaining
court-ordered indemnification or advancement of expenses;
(b) The director, officer, employee, or agent is entitled to
indemnification or advancement of expenses, or both, by virtue of the exercise
by the corporation of its power pursuant to subsection (7); or
(c) The director, officer, employee, or agent is fairly and reasonably
entitled to indemnification or advancement of expenses, or both, in view of all
the relevant circumstances, regardless of whether such person met the standard
of conduct set forth in subsection (1), subsection (2), or subsection (7).
(10) For purposes of this section, the term "corporation" includes, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger, so that
any person who is or was a director, officer, employee, or agent of a
constituent corporation, or is or was serving at the request of a constituent
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, is in the same position
under this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(11) For purposes of this section:
(a) The term "other enterprises" includes employee benefit plans;
(b) The term "expenses" includes counsel fees, including those for
appeal;
(c) The term "liability" includes obligations to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with respect to any
employee benefit plan), and expenses actually and reasonably incurred with
respect to a proceeding;
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(d) The term "proceeding" includes any threatened, pending, or
completed action, suit, or other type of proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal;
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the corporation" includes any
service as a director, officer, employee, or agent of the corporation that
imposes duties on such persons, including duties relating to an employee benefit
plan and its participants or beneficiaries; and
(g) The term "not opposed to the best interest of the corporation"
describes the actions of a person who acts in good faith and in a manner he
reasonably believes to be in the best interests of the participants and
beneficiaries of an employee benefit plan.
(12) A corporation shall have power to purchase and maintain insurance
on behalf of any person who 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 any liability asserted against him
and incurred by him in any such capacity or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this section."
Article IV of the Registrant's By-laws provides:
"Section 1 -- Definitions:
Certain terms used in this Article shall be defined as follows or,
where so indicated, shall include the following meanings in addition to their
normal and their statutory meanings:
(a) "Corporate agent" means any person who is or was a director,
officer, employee or agent of the indemnifying corporation or of any constituent
corporation absorbed by the indemnifying corporation as a consolidation or
merger and any person who is or was a director, officer, trustee, employee or
agent of any enterprise, serving as such at the request of the indemnifying
corporation, or of any such constituent corporation,
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or the legal representative of any such director, officer, trustee, employee, or
agent;
(b) "Other enterprise" means any domestic or foreign corporation,
other than the indemnifying corporation, and any partnership, joint venture,
sole proprietorship, trust or other enterprise, whether or not for profit,
served by a corporate agent;
(c) "Expenses" means reasonable costs, disbursements, and counsel fees
actually incurred;
(d) "Liabilities" means amounts paid or incurred in satisfaction of
settlements, judgments, fines, and penalties;
(e) "Criminal third party proceedings" shall mean any threatened,
pending or completed action or quasi-administrative proceeding or investigation;
(f) "Derivative action" shall mean any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor;
(g) "Party" shall include the giving of testimony or similar
involvement, whether or not named as a party;
(h) "Third party proceeding" shall mean any pending, threatened or
completed civil, criminal, administrative or arbitrative action, suit or
proceeding, and any inquiry or investigation which could lead to such action,
suit or proceeding, other than an action by or in the right of the Corporation.
Section 2 -- Directors and Officers -- Third Party Proceedings:
The Corporation shall indemnify any person, his heirs, or personal
representative, made, or threatened to be made, a party to any threatened,
pending, or completed action or proceeding, whether civil, criminal,
administrative, or investigative, by reason of the fact that he or she was or is
a corporate agent, or serves or served any other corporation or other enterprise
in any capacity at the request of this Corporation, to the full extent permitted
by Florida law, including, without limitation, indemnification against his or
her expenses and liabilities in connection with the third party proceeding if he
or she acted in good faith and in a manner reasonably believed by him or her to
be in, or not opposed to, the best interests of the Corporation and, with
respect to any criminal third party
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proceeding, had no reasonable cause to believe his or her conduct was unlawful
or in violation of applicable rules. The termination of any third party
proceeding by judgment, order, settlement, consent, filing of a criminal
complaint or information, indictment, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he or she reasonably
believed to be in, or not opposed to, the best interests of the Corporation or,
with respect to any criminal third party proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
Section 3 -- Directors and Officers -- Derivative Actions:
The Corporation shall indemnify any director or officer of the
Corporation who was or is a party or is threatened to be made a party to any
derivative action by reason of the fact that such director or officer was or is
a corporate agent, against his or her expenses in the action if he or she acted
in good faith and in a manner reasonably believed by him or her to be in, or not
opposed to, the best interest of the Corporation; except that no indemnification
shall be made in respect of any claim, issue or matter as to which he or she
shall have been adjudged to be liable for negligence or misconduct in the
performance of his or her duty to the corporation unless and only to the extent
that the court in which such derivative action is or was pending shall determine
upon application that, despite the adjudication of liability but in view of all
circumstances of the case he or she is fairly and reasonably entitled to
indemnity for such items which the court shall deem proper.
Section 4 -- Employees and Agents:
A corporate agent other than a director or officer of the Corporation
may be indemnified by the Corporation or have his or her expenses advanced in
accordance with the procedures set forth in Sections 2, 3, 5, 6, and 7 of this
Article. To the extent that a corporate agent has been successful on the merits
or otherwise in defense of any third party proceeding or derivative action or in
defense of any claim, issue or matter therein, the corporate agent shall be
indemnified against his or her expenses in connection therewith.
Section 5 -- Procedure for Effecting Indemnification:
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Indemnification under Sections 2, 3 or 4 of this Article (unless
ordered by a court, in which case the expenses of the corporate agent in
enforcing indemnification shall be added to and be included in the final
judgment against the Corporation) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
corporate agent is required or proper in the circumstances because he or she has
met the applicable standard of conduct set forth in Section 2 or Section 3 of
this Article or has been successful on the merits or otherwise as set forth in
Section 4 of this Article and that the amount requested has been actually and
reasonably incurred. Such determination shall be made:
(a) By the Board of Directors or a committee thereof, acting by a
majority vote of a quorum consisting of directors who were not parties to or
otherwise involved in the third party proceeding or derivative action; or
(b) If a quorum is not obtainable, or, even if obtainable, a majority
vote of a quorum of disinterested directors or committee thereof so directed, by
independent legal counsel in a written opinion.
Section 6 -- Independent Legal Counsel:
Independent legal counsel may be appointed by the Board of Directors,
even if a quorum of disinterested directors is not available, or by a person or
committee designated by the Board of Directors. Independent legal counsel shall
not include any employee of the Corporation. If independent legal counsel shall
determine in a written opinion that indemnification is proper under this
Article, indemnification shall be made without further action of the Board of
Directors.
Section 7 -- Advancing Expenses:
Expenses incurred in defending a third party proceeding or derivative
action shall be paid on behalf of a director or officer, and may be paid on
behalf of any other corporate agent, by the Corporation in advance of the final
disposition of the action as authorized in the manner provided by Section 5 of
this Article (except that the person(s) making the determination thereunder need
not make a determination on whether the applicable standard of conduct has been
met unless a judicial determination has been made with respect thereto or the
person seeking indemnification has conceded that he or she has not met
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such standard) upon receipt of any undertaking by or on behalf of such person to
repay such amount unless it shall ultimately be determined that he or she is
entitled to be indemnified by the Corporation as required in this Article or
authorized by law. The financial ability of any such person to make such
repayment shall not be a prerequisite to the making of an advance.
Section 8 -- Conditions:
The Corporation may impose reasonable conditions upon any person
seeking indemnification (including advanced expenses) under this Article
including, but not limited to, a condition to the effect that, except to the
extent differing interests compel another result, persons to be indemnified
under this paragraph may be required to share the same counsel and other
services.
Section 9 -- Insurance:
The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a corporate agent against any
expenses and liabilities asserted against him or her by reason of his or her
being or having been a corporate agent, whether or not the Corporation would
have the power to indemnify him or her against such expenses and liabilities
under the provisions of this Article.
Section 10 - Discharge of Duties:
In discharging his duty, any director, officer, employee, or agent,
when acting in good faith, may rely upon information, opinions, reports, or
statements, including financial statements an other financial data, in each case
prepared or presented by (1) one or more officers or employees of the
Corporation whom the director, officer, employee, or agent reasonably believes
to be reliable and competent in the matters presented, (2) counsel, public
accounts, or other persons as to matters that the director, officer, employee,
or agent believes to be within that person's professional or expert competence,
or (3) in the case of a director, a committee of the Board of Directors upon
which he does not serve, duly designated according to law, as to matters within
its designated authority, if the director reasonably believes that the committee
is competent. The foregoing right of indemnification or reimbursement shall not
be exclusive of other rights to which the person, his heirs, or personal
representatives may be entitled.
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Section 11 -- Scope of Article:
Each person who shall act as a corporate agent shall be deemed to be
doing so in reliance upon the rights of indemnification provided in this
Article. The indemnification provided by this Article shall not be deemed
exclusive of any other right to which a person seeking indemnification may be
entitled under any statute, agreement, vote of disinterested directors, or
otherwise, regardless of whether the event giving rise to indemnification
occurred before or after the effectiveness thereof, both as to action taken in
the official capacity of such person and as to action in another capacity while
holding his or her office or position, and shall continue as to a person who has
ceased to be a corporate agent and shall inure to the benefit of his or her
heirs and personal representatives.
Item 7. Exemption from Registration Claimed.
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None.
Item 8. Exhibits.
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The following exhibits are filed as part of this registration
statement:
4 Plasma-Therm, Inc. 1995 Stock Incentive Plan, as adopted
March 17, 1995.
5 Opinion and Consent of Wolf, Block, Schorr and Solis-Cohen.
23.1 Consent of Grant Thornton LLP, independent certified public
accountants.
23.2 Consent of Wolf, Block, Schorr and Solis-Cohen (contained in
Exhibit 5).
24 Powers of Attorney (included on signature page included in
Part II to this Registration Statement).
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Item 9. Undertakings.
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The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) ((S) 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (1)(ii) do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at
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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 undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) (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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the Prospectus, to each person to whom the Prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the Prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the Prospectus, to deliver, or cause to be
delivered to each person to whom the Prospectus is
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sent or given, the latest quarterly report that is specifically incorporated by
reference in the Prospectus to provide such interim financial information.
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SIGNATURES AND POWERS OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of St. Petersburg, State of Florida on June 16, 1995.
PLASMA-THERM, INC.
By: /s/Ronald H. Deferrari
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Ronald H. Deferrari,
Chairman of the Board
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Ronald H. Deferrari and Diana M. DeFerrari
and each of them, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement, and to file the same, with all exhibits thereto,
and any other documents in connection therewith, granting unto said attorneys-
in-fact and agents full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on June 16, 1995.
Signature Title
- --------- -----
/s/Ronald H. Deferrari President, Treasurer, Chairman of the
- ---------------------- Board and Director (Principal Executive
Ronald H. Deferrari and Principal Financial Officer)
/s/A. S. Gianoplus Director
- ----------------------
A. S. Gianoplus
/s/Stacy L. Wagner Controller (Principal Accounting
- ---------------------- Officer)
Stacy L. Wagner
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page
----------- ---------------------- ----
4 Plasma-Therm, Inc. 1995 Stock
Incentive Plan, as adopted March 17, 1995.
5 Opinion and Consent of Wolf, Block, Schorr
and Solis-Cohen.
23.1 Consent of Grant Thornton LLP, independent
certified public accountants.
23.2 Consent of Wolf, Block, Schorr and Solis-Cohen (contained in
Exhibit 5).
24 Powers of Attorney (included on signature page included in
Part II to this Registration Statement).
-17-
<PAGE>
EXHIBIT 4
PLASMA-THERM, INC.
1995 STOCK INCENTIVE PLAN
AS ADOPTED BY THE BOARD OF DIRECTORS
AND THE STOCK OPTION COMMITTEE
ON MARCH 17, 1995
1. Purpose. Plasma-Therm, Inc., a Florida corporation (the
-------
"Company"), hereby adopts the Plasma-Therm, Inc. 1995 Stock Incentive Plan (the
"Plan"). The Plan is intended to recognize the contributions made to the Company
by employees (including employees who are members of the Board of Directors) of
the Company or any Affiliate, to provide such persons with additional incentive
to devote themselves to the future success of the Company or an Affiliate, and
to improve the ability of the Company or an Affiliate to attract, retain, and
motivate individuals upon whom the Company's sustained growth and financial
success depend, by providing such persons with an opportunity to acquire or
increase their proprietary interest in the Company through receipt of rights to
acquire the Company's Common Stock, par value $.01 per Share (the "Common
Stock") and through the transfer or issuance of Common Stock. In addition, the
Plan is intended as an additional incentive to directors of the Company who are
not employees of the Company or an Affiliate to serve on the Board of Directors
and to devote themselves to the future success of the Company by providing them
with an opportunity to acquire or increase their proprietary interest in the
Company through the receipt of rights to acquire Common Stock. Furthermore, the
Plan may be used to encourage consultants and advisors of the Company to further
the success of the Company.
2. Definitions. Unless the context clearly indicates otherwise, the
-----------
following terms shall have the following meanings:
(a) "Affiliate" means a corporation which is a parent corporation or a
subsidiary corporation with respect to the Company within the meaning of Section
424(e) or (f) of the Code.
(b) "Award" shall mean a transfer of Common Stock made pursuant to the
terms of the Plan.
(c) "Award Agreement" shall mean the agreement between the Company and
a Grantee with respect to an Award made pursuant to the Plan.
(d) "Board of Directors" means the Board of Directors of the Company.
(e) "Change of Control" shall have the meaning as set forth in Section
10 of the Plan.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Committee" shall have the meaning set forth in Section 3 of the
Plan.
(h) "Common Stock" shall have the meaning set forth in Section 1 of
the Plan.
(i) "Company" means Plasma-Therm, Inc., a Florida corporation.
<PAGE>
(j) "Disability" shall have the meaning set forth in Section 22(e)(3)
of the Code.
(k) "Disinterested Director" shall mean a member of the Board of
Directors of the Company who is "disinterested" within the meaning of Rule 16b-
3.
(l) "Employee" means an employee of the Company or an Affiliate.
(m) "Fair Market Value" shall have the meaning set forth in Subsection
8(b) of the Plan.
(n) "Grantee" shall mean a person to whom an Award has been granted
pursuant to the Plan.
(o) "ISO" means an Option granted under the Plan which is intended to
qualify as an "incentive stock option" within the meaning of Section 422(b) of
the Code.
(p) "Non-qualified Stock Option" means an Option granted under the
Plan which is not intended to qualify, or otherwise does not qualify, as an
"incentive stock option" within the meaning of Section 422(b) of the Code.
(q) "Option" means either an ISO or a Non-qualified Stock Option
granted under the Plan.
(r) "Optionee" means a person to whom an Option has been granted under
the Plan, which Option has not been exercised and has not expired or terminated.
(s) "Option Document" means the document described in Section 8 or
Section 9 of the Plan, as applicable, which sets forth the terms and conditions
of each grant of Options.
(t) "Option Price" means the price at which Shares may be purchased
upon exercise of an Option, as calculated pursuant to Subsection 8(b) of the
Plan.
(u) "Rule 16b-3" means Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended.
(v) "SAR" shall have the meaning set forth in Section 12 of the Plan.
(w) "Section 16 Officers" means any person who is an "officer" within
the meaning of Rule 16a-1(f) promulgated under the Securities Exchange Act of
1934, as amended, or any successor rule.
(x) "Shares" means the shares of Common Stock of the Company which are
the subject of Options or granted as Awards under the Plan.
3. Administration of the Plan. The Board of Directors may designate
--------------------------
a committee or committees composed of two or more of directors, each of whom is
a Disinterested Director, to operate and administer the Plan with respect to all
or a designated portion of the participants. Any such committee designated by
the Board of Directors, and the Board of Directors itself in its administrative
capacity with respect to the Plan, is referred to as the "Committee." With the
exception of the timing of grants of Options, the price at which Shares may be
purchased, and the number of Shares covered by Options granted to each member of
the Committee, all of which shall be as specifically set forth in Section 9, the
other provisions set forth herein, as it pertains to members of the Committee,
may be administered by the Board of Directors.
<PAGE>
(a) Meetings. The Committee shall hold meetings at such times and
--------
places as it may determine, shall keep minutes of its meetings, and shall adopt,
amend and revoke such rules or procedures as it may deem proper; provided,
however, that it may take action only upon the agreement of a majority of the
whole Committee. Any action which the Committee shall take through a written
instrument signed by a majority of its members shall be as effective as though
it had been taken at a meeting duly called and held.
(b) Exculpation. No member of the Board of Directors shall be
-----------
personally liable for monetary damages for any action taken or any failure to
take any action in connection with the administration of the Plan or the
granting of Options under the Plan, provided that this Subsection 3(b) shall not
apply to (i) any breach of such member's duty of loyalty to the Company, an
Affiliate, or the Company's stockholders, (ii) acts or omissions not in good
faith or involving intentional misconduct or a knowing violation of law, (iii)
acts or omissions that would result in liability under applicable law, and (iv)
any transaction from which the member derived an improper personal benefit.
(c) Indemnification. Service on the Committee shall constitute service
---------------
as a member of the Board of Directors of the Company. Each member of the
Committee shall be entitled, without further act on his part, to indemnity from
the Company and limitation of liability to the fullest extent provided by
applicable law and by the Company's Articles of Incorporation and/or By-laws in
connection with or arising out of any action, suit or proceeding with respect to
the administration of the Plan or the granting of Options thereunder in which he
or she may be involved by reason of his or her being or having been a member of
the Committee, whether or not he or she continues to be such member of the
Committee at the time of the action, suit or proceeding.
(d) Interpretation. The Committee shall have the power and authority
--------------
to interpret the Plan and to adopt rules and regulations for its administration
that are not inconsistent with the express terms of the Plan. Any such actions
by the Committee shall be final, binding and conclusive on all parties in
interest.
4. Grants under the Plan. Grants under the Plan may be in the form of
---------------------
a Non-qualified Stock Option, an ISO or a combination thereof, at the discretion
of the Committee.
5. Eligibility. All Employees, members of the Board of Directors and
-----------
consultants and advisors to the Company shall be eligible to receive Options and
Awards hereunder. However, members of the Committee may receive Options only
pursuant to Section 9 and are not eligible to receive Awards. Consultants and
advisors shall be eligible only if they render bona fide services to the Company
unrelated to the offer or sale of securities. The Committee, in its sole
discretion, shall determine whether an individual qualifies as an employee.
6. Shares Subject to Plan. The aggregate maximum number of Shares for
----------------------
which Awards or Options may be granted pursuant to the Plan is 1,000,000,
increased on November 30 of each year from and including November 30, 1995 by a
number of shares equal to one percent (1%) of the number of shares of Common
Stock outstanding on such date; provided, however, that any such increase shall
be made only to the extent that the Company has sufficient authorized and
unreserved Common Stock for such purpose; and further provided that the maximum
aggregate number of Shares to be issued under the Plan shall not exceed
3,000,000. Such increase shall be made each November 30, regardless of the
number of shares remaining available for issuance under the Plan on such date.
The number of shares which may be issued under the Plan shall be further subject
to adjustment in accordance with Section 11. The Shares shall be issued from
authorized and unissued Common Stock or Common Stock held in or hereafter
acquired for the treasury of the Company. If an Option terminates or expires
without having been fully exercised for any reason or if Shares subject to an
Award have been conveyed back to the Company pursuant to the terms of an Award
Agreement, the Shares for which the Option was not exercised or the Shares that
were conveyed back to the Company may again be the subject of one or more
Options or Awards granted pursuant to the Plan.
<PAGE>
7. Term of the Plan. The Plan is effective as of March 17, 1995, the
----------------
date on which it was adopted by the Board of Directors, subject to the approval
of the Plan within one year after such date by the stockholders in the manner
required by state law. If the Plan is not so approved by the stockholders, all
Options granted under the Plan shall be null and void. No ISO may be granted
under the Plan after March 16, 2005.
8. Option Documents and Terms. Each Option granted under the Plan
--------------------------
shall be a Non-qualified Stock Option unless the Option shall be specifically
designated at the time of grant to be an ISO for Federal income tax purposes. If
any Option designated an ISO is determined for any reason not to qualify as an
incentive stock option within the meaning of Section 422 of the Code, such
Option shall be treated as a Non-qualified Stock Option for all purposes under
the provisions of the Plan. Options granted pursuant to the Plan shall be
evidenced by the Option Documents in such form as the Committee shall from time
to time approve, which Option Documents shall comply with and be subject to the
following terms and conditions and such other terms and conditions as the
Committee shall from time to time require which are not inconsistent with the
terms of the Plan. However, the provisions of this Section 8 shall not be
applicable to Options granted to members of the Committee, except as otherwise
provided in Subsection 9(c).
(a) Number of Option Shares. Each Option Document shall state the
-----------------------
number of Shares to which it pertains. An Optionee may receive more than one
Option, which may include Options which are intended to be ISO's and Options
which are not intended to be ISO's, but only on the terms and subject to the
conditions and restrictions of the Plan. Notwithstanding anything herein to the
contrary, no Optionee shall be granted Options during one fiscal year of the
Company for more than One Hundred Fifty Thousand (150,000) Shares (such number
to be subject to adjustment in accordance with Section 11).
(b) Option Price. Subject to the provisions of Section 9 hereof, each
------------
Option Document shall state the Option Price which, for a Non-qualified Stock
Option, may be less than, equal to, or greater than the Fair Market Value of the
Shares on the date the Option is granted and, for an ISO, shall be at least 100%
of the Fair Market Value of the Shares on the date the Option is granted as
determined by the Committee in accordance with this Subsection 8(b); provided,
however, that if an ISO is granted to an Optionee who then owns, directly or by
attribution under Section 424(d) of the Code, shares possessing more than ten
percent of the total combined voting power of all classes of stock of the
Company or an Affiliate, then the Option Price shall be at least 110% of the
Fair Market Value of the Shares on the date the Option is granted. If the Common
Stock is traded in a public market, then the Fair Market Value per share shall
be, if the Common Stock is listed on a national securities exchange or included
in the NASDAQ System, the last reported sale price thereof on the relevant date,
or, if the Common Stock is not so listed or included, the mean between the last
reported "bid" and "asked" prices thereof on the relevant date, as reported on
NASDAQ or, if not so reported, as reported by the National Daily Quotation
Bureau, Inc. or as reported in a customary financial reporting service, as
applicable and as the Committee determines.
(c) Exercise. No Option shall be deemed to have been exercised prior
--------
to the receipt by the Company of written notice of such exercise and (unless
arrangements satisfactory to the Company have been made for payment through a
broker in accordance with procedures permitted by Regulation T of the Federal
Reserve Bord) of payment in full of the Option Price for the Shares to be
purchased. Each such notice shall specify the number of Shares to be purchased
and shall (unless the Shares are covered by a then current registration
statement or a Notification under Regulation A under the Securities Act of 1933,
as amended (the "Act")), contain the Optionee's acknowledgment in form and
substance satisfactory to the Company that (a) such Shares are being purchased
for investment and not
<PAGE>
for distribution or resale (other than a distribution or resale which, in the
opinion of counsel satisfactory to the Company, may be made without violating
the registration provisions of the Act), (b) the Optionee has been advised and
understands that (i) the Shares have not been registered under the Act and are
"restricted securities" within the meaning of Rule 144 under the Act and are
subject to restrictions on transfer and (ii) the Company is under no obligation
to register the Shares under the Act or to take any action which would make
available to the Optionee any exemption from such registration, (c) such Shares
may not be transferred without compliance with all applicable federal and state
securities laws, and (d) an appropriate legend referring to the foregoing
restrictions on transfer and any other restrictions imposed under the Option
Documents may be endorsed on the certificates. Notwithstanding the foregoing, if
the Company determines that issuance of Shares should be delayed pending (A)
registration under federal or state securities laws, (B) the receipt of an
opinion of counsel satisfactory to the Company that an appropriate exemption
from such registration is available, (C) the listing or inclusion of the Shares
on any securities exchange or an automated quotation system or (D) the consent
or approval of any governmental regulatory body whose consent or approval is
necessary in connection with the issuance of such Shares, the Company may defer
exercise of any Option granted hereunder until any of the events described in
this sentence has occurred.
(d) Medium of Payment. Subject to the terms of the applicable Option
-----------------
Document, an Optionee shall pay for Shares (i) in cash, (ii) by certified or
cashier's check payable to the order of the Company, or (iii) by such other mode
of payment as the Committee may approve, including payment through a broker in
accordance with procedures permitted by Regulation T of the Federal Reserve
Board. The Optionee may also exercise the Option in any manner contemplated by
Section 12. Furthermore, the Committee may provide in an Option Document that
payment may be made in whole or in part in shares of the Company's Common Stock
held by the Optionee. If payment is made in whole or in part in shares of the
Company's Common Stock, then the Optionee shall deliver to the Company
certificates registered in the name of such Optionee representing the shares
owned by such Optionee, free of all liens, claims and encumbrances of every kind
and having an aggregate Fair Market Value on the date of delivery that is at
least as great as the Option Price of the Shares (or relevant portion thereof)
with respect to which such Option is to be exercised by the payment in shares of
Common Stock, endorsed in blank or accompanied by stock powers duly endorsed in
blank by the Optionee. In the event that certificates for shares of the
Company's Common Stock delivered to the Company represent a number of shares in
excess of the number of shares required to make payment for the Option Price of
the Shares (or relevant portion thereof) with respect to which such Option is to
be exercised by payment in shares of Common Stock, the stock certificate or
certificates issued to the Optionee shall represent (i) the Shares in respect of
which payment is made, and (ii) such excess number of shares. Notwithstanding
the foregoing, the Committee may impose from time to time such limitations and
prohibitions on the use of shares of the Common Stock to exercise an Option as
it deems appropriate.
(e) Termination of Options.
----------------------
(i) No Option shall be exercisable after the first to occur
of the following:
(A) Expiration of the Option term specified in the Option Document,
which, in the case of an ISO, shall not occur after (1) ten years from the date
of grant, or (2) five years from the date of grant if the Optionee on the date
of grant owns, directly or by attribution under Section 424(d) of the Code,
shares possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or of an Affiliate;
<PAGE>
(B) Except to the extent otherwise provided in an Optionee's Option
Document, a finding by the Committee, after full consideration of the facts
presented on behalf of both the Company and the Optionee, that the Optionee has
been engaged in disloyalty to the Company or an Affiliate, including, without
limitation, fraud, embezzlement, theft, commission of a felony or proven
dishonesty in the course of his employment or service, or has disclosed trade
secrets or confidential information of the Company or an Affiliate. In such
event, in addition to immediate termination of the Option, the Optionee shall
automatically forfeit all Shares for which the Company has not yet delivered the
share certificates upon refund by the Company of the Option Price.
Notwithstanding anything herein to the contrary, the Company may withhold
delivery of share certificates pending the resolution of any inquiry that could
lead to a finding resulting in a forfeiture;
(C) The date, if any, set by the Board of Directors as an accelerated
expiration date in the event of the liquidation or dissolution of the Company;
or
(D) The occurrence of such other event or events as may be set forth
in the Option Document as causing an accelerated expiration of the Option.
(E) Except as otherwise set forth in the Option Document and subject
to the foregoing provisions of this Subsection 8(e), three months after the
Optionee's employment or service with the Company or its Affiliates terminates
for any reason other than Disability or death or one year after such termination
due to Optionee's Disability or death. With respect to this Subsections
8(e)(i)(E), the only Options that may be exercised during the three-month or
one-year period, as the case may be, are Options which were exercisable on the
last date of such employment or service and not Options which, if the Optionee
were still employed or rendering service during such three-month or one-year
period, would become exercisable, unless the Option Document specifically
provides to the contrary. The terms of an executive severance agreement or
other agreement between the Company and an Optionee, approved by the Committee,
whether entered into prior or subsequent to the grant of an Option, which
provide for Option exercise dates later than those set forth in Subsection
8(e)(i) shall be deemed to be Option terms approved by the Committee and
consented to by the Optionee.
(ii) Notwithstanding the foregoing, the Committee may extend the
period during which all or any portion of an Option may be exercised to a date
no later than the Option term specified in the Option Document pursuant to
Subsection 8(e)(i)(A), provided that any change pursuant to this Subsection
8(e)(ii) which would cause an ISO to become a Non-qualified Stock Option may be
made only with the consent of the Optionee.
(iii) Notwithstanding anything to the contrary contained in the Plan
or an Option Document, an ISO shall be treated as a Non-qualified Stock Option
to the extent such ISO is exercised at any time after the expiration of the time
period permitted under the Code for the exercise of an ISO.
(f) Transfers. No Option granted under the Plan may be transferred,
---------
except by will or by the laws of descent and distribution. During the lifetime
of the person to whom an Option is granted, such Option may be exercised only by
him. Notwithstanding the foregoing, an Option, other than an ISO, shall be
transferrable pursuant to a "qualified domestic relations order" as defined in
the Code and also shall be transferrable, without payment of consideration, to
(a) immediate family members of the holder (i.e. spouse or former spouse,
parents, issue, including adopted and "step" issue) or siblings, (b) trusts for
the benefit of immediate family members, and (c) partnerships whose only
partners are such
<PAGE>
family members. Any transferee will be subject to all of the conditions set
forth in the Option prior to its transfer.
(g) Limitation on ISO Grants. To the extent that the aggregate fair
------------------------
market value of the shares of Common Stock (determined at the time the ISO is
granted) with respect to which ISO's under all incentive stock option plans of
the Company or its Affiliates are exercisable for the first time by the Optionee
during any calendar year exceeds $100,000, such ISO's shall, to the extent of
such excess, be treated as Non-qualified Stock Options.
(h) Other Provisions. Subject to the provisions of the Plan, the
----------------
Option Documents shall contain such other provisions including, without
limitation, provisions authorizing the Committee to accelerate the
exercisability of all or any portion of an Option granted pursuant to the Plan,
additional restrictions upon the exercise of the Option or additional
limitations upon the term of the Option, as the Committee shall deem advisable.
(i) Amendment. Subject to the provisions of the Plan, the Committee
---------
shall have the right to amend any Option Document or Award Agreement issued to
an Optionee or Award holder, subject to the Optionee's or Award holder's consent
if such amendment is not favorable to the Optionee or Award holder, or if such
amendment has the effect of changing an ISO to a Non-Qualified Stock Option,
except that the consent of the Optionee or Award holder shall not be required
for any amendment made pursuant to Subsection 8(e)(i)(C) or Section 10 of the
Plan, as applicable.
9. Special Provisions Relating to Grants of Options to members of the
------------------------------------------------------------------
Committee. Options granted pursuant to the Plan to members of the Committee
- ---------
shall be granted, without any further action by the Committee, in accordance
with the terms and conditions set forth in this Section 9. Options granted
pursuant to this Section 9 shall be evidenced by Option Documents in such form
as the Committee shall from time to time approve, which Option Documents shall
comply with and be subject to the following terms and conditions and such other
terms and conditions as the Committee shall from time to time require which are
not inconsistent with the terms of the Plan. Notwithstanding the foregoing, a
Committee member may elect not to receive a formula option grant (in which case
the Committee member will receive nothing in lieu thereof) and may also revoke
such election. In either case, the election or the revocation of the election
will be effective only for formula option grants that otherwise were scheduled
to be made after the date of the election.
(a) Timing of Grants; Number of Shares Subject of Options;
------------------------------------------------------
Exercisability of Options; Option Price. Each member of the Committee shall be
- ---------------------------------------
granted on each June 30 annually, commencing on June 30, 1995, an Option to
purchase Five Thousand (5,000) Shares (such number to be subject to adjustment
as provided in Section 11). Each such Option shall be a Non-qualified Stock
Option becoming exercisable with respect to (100%) of the Shares covered thereby
on the first anniversary of the date of grant and expiring five years after the
date of grant. The Option Price shall be equal to 60% the Fair Market Value of
the Shares on the date the Option is granted. The Option shall permit any
method of exercise permitted by Section 12.
(b) Termination of Options Granted Pursuant to Section 9. All Options
----------------------------------------------------
granted pursuant to this Section 9 shall be exercisable until the first to occur
of the following:
(i) Expiration of five (5) years from the date of grant;
<PAGE>
(ii) Expiration of three (3) months from the date the
Optionee's service as a director of the Company terminates for any reason other
than Disability or death; or
(iii) Expiration of one (1) year from the date the
Optionee's service as a director terminates due to the Optionee's Disability or
death.
(c) Applicability of Provisions of Section 8 to Options Granted
-----------------------------------------------------------
Pursuant to Section 9. The following provisions of Section 8 shall be applicable
- ---------------------
to Options granted pursuant to this Section 9: Subsection 8(a)(provided that all
Options granted pursuant to this Section 9 shall be Non-qualified Stock
Options); the last sentence of Subsection 8(b); Subsection 8(c); Subsection 8(d)
(provided that Option Documents relating to Options granted pursuant to this
Section 9 shall provide that payment may be made in whole or in part in shares
of Company Common Stock); Subsection 8(f); and Subsection 8(i).
10. Change of Control. In the event of a Change of Control, the
-----------------
Committee may take whatever actions it deems necessary or desirable with respect
to any of the Options outstanding (other than Options granted pursuant to
Section 9), which need not be treated identically, including, without
limitation, accelerating (a) the expiration or termination date in the
respective Option Documents to a date no earlier than thirty (30) days after
notice of such acceleration is given to the Optionees, or (b) the exercisability
of the Option. In the event of a Change of Control, Options granted pursuant to
Section 9 shall accelerate and become exercisable immediately. Notwithstanding
the foregoing, in the event of a Change of Control, Options granted pursuant to
the Plan will become automatically exercisable in full but only with respect to
those Optionees who, in the good faith determination of the Board of Directors,
are likely to have their relationship with the Company or any Affiliate of the
Company terminated (including constructive termination through a significant
decrease in authority, responsibility or overall total compensation) as a result
of such Change of Control.
A "Change of Control" shall be deemed to have occurred upon the
earliest to occur of the following events:
(i) any "person," as such term is used in Sections 3(a)(9) and 13(d) of
the Securities Exchange Act of 1934, other than Ronald H. Deferrari, his
children and/or their respective affiliates and their respective heirs,
executors, administrators and successors, becomes a "beneficial owner," as such
term is used in Rule 13d-3 promulgated under that act, of 50% or more of the
Company's Voting Stock;
(ii) individuals who are Incumbent Directors cease to constitute a
majority of the members of the Board of Directors ("Incumbent Directors" for
this purpose being the members of the Board of Directors on the date of adoption
of this Plan, provided that any person becoming a member of the Board of
Directors subsequent to such date whose election or nomination for election was
supported by two-thirds of the directors who then comprised the Incumbent
Directors shall be considered to be an Incumbent Director);
(iii) the Company adopts any plan of liquidation providing for the
distribution of all or substantially all of its assets;
(iv) all or substantially all of the business of the Company is disposed
of pursuant to a merger, consolidation or other transaction (unless the
stockholders of the Company immediately prior to such merger, consolidation or
other transaction beneficially own, directly or indirectly, in substantially the
same
<PAGE>
proportion as they owned the voting stock of the Company, all of the voting
stock or other ownership interests of the entity or entities, if any, that
succeed to the business of the Company);
(v) the Company combines with another company and is the surviving
corporation but, immediately after the combination, the stockholders of the
Company immediately prior to the combination hold, directly or indirectly, 50%
or less of the voting stock entitled to vote for the election of directors of
the combined company (there being excluded from the number of shares held by
such stockholders, but not from the voting stock of the combined company, any
shares received by "affiliates", as such term is defined in the rules of the
Securities and Exchange Commission, of such other company in exchange for stock
of such other company); or
(vi) a "change of control" as defined in the form of indenture governing
any indebtedness of the Company shall have occurred.
11. Adjustments on Changes in Capitalization.
----------------------------------------
(a) In the event that the outstanding Shares are changed by reason of
a reorganization, merger, consolidation, recapitalization, reclassification,
stock split-up, combination or exchange of shares and the like (not including
the issuance of Common Stock on the conversion of other securities of the
Company which are outstanding on the date of grant and which are convertible
into Common Stock) or dividends payable in Shares, an equitable adjustment shall
be made by the Committee in the aggregate number of shares available under the
Plan and in the number of Shares and price per Share subject to outstanding
Options. Unless the Committee makes other provisions for the equitable
settlement of outstanding options, if the Company shall be reorganized,
consolidated, or merged with another corporation, or if all or substantially all
of the assets of the Company shall be sold or exchanged, an Optionee shall at
the time of issuance of the stock under such corporate event be entitled to
receive upon the exercise of his or her Option the same number and kind of
shares of stock or the same amount of property, cash or securities as he or she
would have been entitled to receive upon the occurrence of any such corporate
event as if he or she had been, immediately prior to such event, the holder of
the number of shares covered by his or her Option.
(b) Any adjustment under this Section 11 in the number of Shares
subject to Options shall apply proportionately to only the unexercised portion
of any Option granted hereunder. If fractions of a Share would result from any
such adjustment, the adjustment shall be revised to the next lower whole number
of Shares.
(c) The Committee shall have authority to determine the adjustments
to be made under this Section, and any such determination by the Committee shall
be final, binding and conclusive.
12. Stock Appreciation Rights (SARs).
--------------------------------
(a) In General. Subject to the terms and conditions of the Plan, the
----------
Committee may, in its sole and absolute discretion, grant to an Optionee the
right to surrender an Option to the Company, in whole or in part, and to receive
in exchange therefor payment by the Company of an amount equal to the excess of
the fair market value of the shares of Common Stock subject to such Option, or
portion thereof, so surrendered (determined in the manner described in section
8(b) as of the date the SARs are exercised) over the exercise price to acquire
such shares (which right shall be referred to as an "SAR"). Except as may
otherwise be provided in an Option Document, such payment may be
<PAGE>
made, as determined by the Committee in accordance with subsection 12(c) below
and set forth in the Option Agreement, either in shares of Common Stock or in
cash or in any combination thereof. Notwithstanding anything herein to the
contrary, an Option granted to a member of the Disinterested Directors Committee
pursuant to Section 9 shall provide for SARs and the Optionee shall have the
right to determine the method of payment to the Optionee.
(b) Grant. Each SAR shall relate to a specific Option granted under
-----
the Plan and shall be granted to the Optionee concurrently with the grant of
such Option by inclusion of appropriate provisions in the Option Agreement
pertaining thereto. The number of SARs granted to an Optionee shall not exceed
the number of shares of Common Stock which such Optionee is entitled to purchase
pursuant to the related Option. The number of SARs held by an Optionee shall be
reduced by (i) the number of SARs exercised under the provisions of the Option
Agreement pertaining to the related Option, and (ii) the number of shares of
Common Stock purchased pursuant to the exercise of the related Option.
(c) Payment. The Committee shall have sole discretion to determine
-------
whether payment in respect of SARs granted to any Optionee shall be made in
shares of Common Stock, or in cash, or in a combination thereof, except that the
method of payment shall be determined solely by the Optionee of an Option
granted to a member of the Disinterested Directors Committee pursuant to Section
9. If payment is made in Common Stock, the number of shares of Common Stock
which shall be issued pursuant to the exercise of SARs shall be determined by
dividing (i) the total number of SARs being exercised, multiplied by the amount
by which the Fair Market Value (as determined under section 8(b)) of a share of
Common Stock on the exercise date exceeds the exercise price for shares covered
by the related Option, by (ii) the Fair Market Value of a share of Common Stock
on the exercise date of the SARs. No fractional share of Common Stock shall be
issued on exercise of an SAR; cash may be paid by the Company to the individual
exercising an SAR in lieu of any such fractional share. If payment on exercise
of an SAR is to be made in cash, the individual exercising the SAR shall receive
in respect of each share to which such exercise relates an amount of money equal
to the difference between the Fair Market Value of a share of Common Stock on
the exercise date and the exercise price for shares covered by the related
Option.
(d) Limitations. SARs shall be exercisable at such times and under
-----------
such terms and conditions as the Committee, in its sole and absolute discretion,
shall determine; provided, however, that an SAR may be exercised only at such
times and by such individuals as the related Option under the Plan and the
Option Agreement may be exercised.
13. Terms and Conditions of Awards. Awards granted pursuant to the Plan
------------------------------
shall be evidenced by written Award Agreements in such form as the Committee
shall from time to time approve, which Award Agreements shall comply with and be
subject to the following terms and conditions and such other terms and
conditions which the Committee shall from time to time require which are not
inconsistent with the terms of the Plan.
(a) Number of Shares. Each Award Agreement shall state the number
----------------
of shares of Common Stock to which it pertains.
(b) Purchase Price. Each Award Agreement shall specify the purchase
--------------
price, if any, which applies to the Award. If the Board specifies a purchase
price, the Grantee shall be required to make payment on or before the date
specified in the Award Agreement. A Grantee shall pay for Shares (i) in cash,
(ii) by certified check payable to the order of the Company, or (iii) by such
other mode of payment as the Committee may approve.
<PAGE>
(c) Grant. In the case of an Award which provides for a grant of
-----
Shares without any payment by the Grantee, the grant shall take place on the
date specified in the Award Agreement. In the case of an Award which provides
for a payment, the grant shall take place on the date the initial payment is
delivered to the Company, unless the Committee or the Award Agreement otherwise
specifies. Stock certificates evidencing Shares granted pursuant to an Award
shall be issued in the sole name of the Grantee. Notwithstanding the foregoing,
as a precondition to a grant, the Company may require an acknowledgment by the
Grantee as required with respect to Options under Section 8.
(d) Conditions. The Committee may specify in an Award Agreement any
----------
conditions under which the Grantee of that Award shall be required to convey to
the Company the Shares covered by the Award. Upon the occurrence of any such
specified condition, the Grantee shall forthwith surrender and deliver to the
Company the certificates evidencing such Shares as well as completely executed
instruments of conveyance. The Committee, in its discretion, may provide that
certificates for Shares transferred pursuant to an Award be held in escrow by
the Company or an officer of the Company until such time as each and every
condition has lapsed and that the Grantee be required, as a condition of the
Award, to deliver to such escrow agent or Company officer stock powers covering
the Award Shares duly endorsed by the Grantee. Unless otherwise provided in the
Award Agreement, distributions made on Shares held in escrow will be deposited
in escrow, to be distributed to the party becoming entitled to the Shares on
which the distribution was made. Stock certificates evidencing Shares subject
to conditions shall bear a legend to the effect that the Common Stock evidenced
thereby is subject to repurchase or conveyance to the Company in accordance with
an Award made under the Plan and that the Shares may not be sold or otherwise
transferred.
(e) Lapse of Conditions. Upon termination or lapse of each and every
-------------------
forfeiture condition, the Company shall cause certificates without the legend
referring to the Company's repurchase right (but with any other legends that may
be appropriate) evidencing the Shares covered by the Award to be issued to the
Grantee upon the Grantee's surrender of the legended certificates held by him to
the Company.
(f) Rights as Stockholder. Upon payment of the purchase price, if any,
---------------------
for Shares covered by an Award and compliance with the acknowledgment
requirement of subsection 13(c), the Grantee shall have all of the rights of a
stockholder with respect to the Shares covered thereby, including the right to
vote the Shares and receive all dividends and other distributions paid or made
with respect thereto, except to the extent otherwise provided by the Committee
or in the Award Agreement.
14. Amendment of the Plan. The Board of Directors of the Company may
---------------------
amend the Plan from time to time in such manner as it may deem advisable.
Nevertheless, the Board of Directors of the Company may not change the class of
individuals eligible to receive an ISO or increase the maximum number of shares
as to which Options may be granted without obtaining approval, within twelve
months before or after such action, by the stockholders in the manner required
by state law. In addition, the provisions of Section 9 that determine (i) which
directors shall be granted Options pursuant to Section 9; (ii) the amount of
Shares subject to Options granted pursuant to Section 9; (iii) the price at
which shares subject to Options granted pursuant to Section 9 may be purchased
and (iv) the timing of grants of Options pursuant to Section 9 shall not be
amended more than once every six months, other than to comport with changes in
the Code or the Employee Retirement Income Security Act of 1974, as amended. No
amendment to the Plan shall adversely affect any outstanding Option, however,
without the consent of the Optionee.
<PAGE>
15. No Commitment to Retain. The grant of an Option or Award pursuant
------------------------
to the Plan shall not be construed to imply or to constitute evidence of any
agreement, express or implied, on the part of the Company or any Affiliate to
retain the Optionee or Grantee as an employee, consultant or advisor of the
Company or any Affiliate, as a member of the Company's Board of Directors or in
any other capacity.
16. Withholding of Taxes. In connection with any event relating to an
--------------------
Option or Award, the Company shall have the right to (a) require the recipient
to remit or otherwise make available to the Company an amount sufficient to
satisfy any federal, state and/or local withholding tax requirements prior to
the delivery or transfer of any certificate or certificates for such Shares or
(b) take whatever other action it deems necessary to protect its interests with
respect to tax liabilities. The Company's obligations under the Plan shall be
conditioned on the Optionee's or Grantee's compliance, to the Company's
satisfaction, with any withholding requirement.
17. Interpretation. The Plan is intended to enable transactions under
--------------
the Plan with respect to directors to satisfy the conditions of Rule 16b-3; to
the extent that any provision of the Plan would cause a conflict with such
conditions or would cause the administration of the Plan as provided in Section
3 to fail to satisfy the conditions of Rule 16b-3, such provision shall be
deemed null and void to the extent permitted by applicable law. This section
shall not be applicable if no class of the Company's equity securities is then
registered pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended.
<PAGE>
EXHIBIT 5
[LETTERHEAD OF WOLF, BLOCK, SCHORR AND SOLIS-COHEN APPEARS HERE]
June 16, 1995
Plasma-Therm, Inc.
9509 International Court
St. Petersburg, FL 33716
Re: Registration Statement Under
Securities Act of 1933 on Form S-8
Relating to the Plasma-Therm, Inc.
1995 Stock Incentive Plan
----------------------------------
Dear Sirs:
As counsel to Plasma-Therm, Inc., a Florida corporation (the "Company), we
have assisted in the preparation of the Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to 3,000,000
shares of the Company's Common Stock, $.01 par value per share (the "Common
Stock"), which may be issued under the Plasma-Therm, Inc. 1995 Stock Incentive
Plan (the "Plan").
In this connection, we have examined and considered the original or copies,
certified or otherwise identified to our satisfaction, of the Company's Restated
Certificate of Incorporation, as amended, its By-laws, the Plan, resolutions of
its Board of Directors and such other documents and corporate records relating
to the Company and the issuance and sale of the Common Stock as we have deemed
appropriate for purposes of rendering this opinion.
In all examinations of documents, instruments and other papers, we have
assumed the genuineness of all signatures on original and certified documents
and the conformity to original and certified documents of all copies submitted
to us as conformed, photostat or other copies. As to matters of fact which have
not been independently established, we have relied upon representations of
officers of the Company.
Based upon the foregoing examination and the information thus supplied, it
is our opinion that the shares of Common Stock to be offered under the Plan are
duly authorized and, when issued and sold pursuant to the terms of the Plan,
will be validly issued, fully paid and non-assessable.
We hereby expressly consent to the inclusion of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/
WOLF, BLOCK, SCHORR and SOLIS-COHEN
MKC:mjs
cc: Diana M. DeFerrari
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our reports dated January 12, 1995 accompanying the consolidated
financial statements and schedules of Plasma-Therm, Inc. and Subsidiary included
in the Annual Report on Form 10-K for the year ended November 30, 1994 which is
incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in the Registration Statement of the aforementioned
reports and to the use of our name as it appears under the caption "Experts."
/s/ Grant Thornton LLP
- -------------------------
GRANT THORNTON LLP
Tampa, Florida
June 15, 1995
