<PAGE> 1
As filed with the Securities and Exchange Commission on January 16, 1998
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PLASMA-THERM, INC.
(Exact name of Registrant as specified in its charter)
Florida 04-2554632
- --------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
10050 16th Street North, St. Petersburg, Florida 33716
(Address of Principal Executive Offices) (Zip Code)
PLASMA-THERM, INC. 1995 STOCK INCENTIVE PLAN
(Full Title of the Plan)
RONALD S. DEFERRARI
President and Chief Executive Officer
Plasma-Therm, Inc.
10050 16th Street North, St. Petersburg, Florida 33716;
Telephone: (813) 577-4999
(Name and Address of Agent For Service)
(813) 577-4999
(Telephone Number, Including Area Code, of Agent For Service)
COPY TO:
MARTIN A. TRABER, ESQ.
Foley & Lardner
100 North Tampa Street, Suite 2700, Tampa, Florida 33602,
Telephone: (813) 229-2300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Title of Proposed Proposed
Each Class of Maximum Maximum
Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share Offering Registration Fee
Price(2)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 1,500,000 $6.1875 $9,281,250 $2,738
============================================================================================================
</TABLE>
(1) Plus an indeterminate number of shares which may be issued as a result of
anti-dilution provisions contained in the Plan.
(2) Pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended, the registration fee has been calculated based upon the average of the
high and low prices of the Registrant's Common Stock on January 12, 1998, as
reported on the Nasdaq National Market.
<PAGE> 2
The Registrant hereby incorporates by reference the contents of that
certain Registration Statement on Form S-8, Commission File No. 033-60375.
1
<PAGE> 3
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Incorporated by reference from Registration Statement on Form S-8,
Commission File No. 033-60375.
ITEM 4. DESCRIPTION OF SECURITIES.
Incorporated by reference from Registration Statement on Form S-8,
Commission File No. 033-60375.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Incorporated by reference from Registration Statement on Form S-8,
Commission File No. 033-60375.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
4 Plasma-Therm, Inc. 1995 Stock Incentive Plan, as amended and
restated (filed herewith)
5 Opinion of Foley & Lardner as to the legality of the
securities to be issued (filed herewith)
23.1 Consent of Foley & Lardner (contained in its opinion filed
herewith as Exhibit 5 and incorporated herein by reference)
23.2 Consent of Grant Thornton LLP (filed herewith)
24.1 Power of Attorney (found in Part II on Page II-3)
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (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 the 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.
II--1
<PAGE> 4
(4) 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 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 Articles of Incorporation or Bylaws of the Registrant
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 the 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.
II--2
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has duly caused this Amendment to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of St. Petersburg and the State of Florida on this 16th day of January, 1998.
PLASMA-THERM, INC.
By: /s/ Ronald H. Deferrari
--------------------------------------
RONALD H. DEFERRARI
Chairman of the Board, Chief Executive
Officer, and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
constitutes and appoints RONALD H. DEFERRARI and RONALD S. DEFERRARI, and each
of them individually, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and any and all
Registration Statements filed pursuant to Rule 462(b) under the Securities Act
of 1933, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, may lawfully do or cause to be
done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Ronald H. Deferrari Chairman of the Board, Chief January 16, 1998
- ------------------------------------ Executive Officer, and Treasurer
Ronald H. Deferrari (Principal Executive Officer and
Principal Financial and Accounting
Officer), and Director
/s/ Ronald S. Deferrari President and Chief Operating Officer January 16, 1998
- ------------------------------------
Ronald S. Deferrari
/s/ Anastasios S. Gianoplus Director January 16, 1998
- ------------------------------------
Anastasios S. Gianoplus
Director January , 1998
- ------------------------------------
Richard T. Heglin
/s/ Lubek Jatrzebski Director January 16, 1998
- ------------------------------------
Lubek Jatrzebski
</TABLE>
II--3
<PAGE> 1
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
AND AS AMENDED AND RESTATED EFFECTIVE AS OF MAY 6, 1997
1. Purpose. Plasma-Therm, Inc., a Florida corporation (the "Company"),
hereby amends and restates 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 thefuture 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.
<PAGE> 2
(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.
(j) "Disability" shall have the meaning set forth
in Section 22(e)(3) of the Code.
(k) "Employee" means an employee of the Company or an
Affiliate.
(l) "Fair Market Value" shall have the meaning set forth in
Subsection 8(b) of the Plan.
(m) "Grantee" shall mean a person to whom an Award has been
granted pursuant to the Plan.
(n) "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.
(o) "Non-Employee Director" shall mean a member of the Board
of Directors of the Company who is a "non-employee director" as that term is
defined in paragraph (b)(3) of Rule 16b-3 [and an "outside director"
<PAGE> 3
as that term is defined in Treasury Regulations Section 1.162-27 promulgated
under 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
Non-employee 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
<PAGE> 4
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.
(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 or Awards 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-law 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 or Awards 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
<PAGE> 5
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. 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
2,706,757 (including Options and Awards granted under the Plan prior to the
effective date of this amended and restated Plan), increased on November 30 of
each year from and including November 30, 1997 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 4,500,000. 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.
<PAGE> 6
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.
7. Term of the Plan. The Plan (as amended and restated herein) is
effective as of May 6, 1997, provided it is approved on or about such date by
the stockholders in the manner required by state law. If the Plan is not so
approved by the stockholders, this amended and restated Plan shall be null and
void and the Plan as in effect without regard to this amendment and restatement
shall continue in effect under its own terms. 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
<PAGE> 7
of the Company for more than Five Hundred Thousand (500,000) 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 Board) 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
<PAGE> 8
investment and not 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
<PAGE> 9
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;
(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,
<PAGE> 10
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
<PAGE> 11
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 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
<PAGE> 12
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.
<PAGE> 13
(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;
(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. Except as may be provided in an Option Document
(which will take precedence over the provisions of this Section 10), 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
<PAGE> 14
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 proportion as they owned the voting stock of the Company, all of the voting
stock or other ownership interests of
<PAGE> 15
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
<PAGE> 16
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 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
<PAGE> 17
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
<PAGE> 18
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.
(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
<PAGE> 19
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
<PAGE> 20
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.
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> 1
EXHIBIT 5
FOLEY & LARDNER
100 NORTH TAMPA STREET, SUITE 2700
TAMPA, FLORIDA 33602
TELEPHONE (813) 229-2300
FACSIMILE (813) 221-4210
January 15, 1998
Plasma-Therm, Inc.
10050 16th Street North
St. Petersburg, Florida 33716
Re: Registration Statement on Form S-8 Relating to Shares of
Common Stock Issuable Pursuant to the Plasma-Therm, Inc. 1995
Stock Incentive Plan
Ladies and Gentlemen:
This opinion is being furnished in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of Plasma-Therm, Inc. (the
"Company"), under the Securities Act of 1933, as amended, for the registration
of 1,500,000 shares of common stock par value $.01 issuable pursuant to the
Plasma-Therm, Inc. 1995 Stock Incentive Plan (the "Plan"). The common stock
issuable pursuant to the Plan is referred to herein as the "Shares."
We have examined and are familiar with the following: (a) Articles of
Incorporation of the Company, as amended, as filed in the Office of the
Secretary of State of the State of Florida; (b) Bylaws of the Company; (c)
proceedings of the Board of Directors and shareholders of the Company in
connection with the adoption of the Plan; and (d) such other documents, Company
records and matters of law as we have deemed to be pertinent.
Based on the foregoing, it is our opinion that:
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Florida.
2. The Shares have been duly authorized and when issued in accordance
with the terms of the Plan will be duly and validly issued, fully paid and
nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5 in the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules or regulations of the
Securities and Exchange Commission promulgated thereunder.
FOLEY & LARDNER
/s/ Martin A. Traber
Martin A. Traber
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated January 14, 1997 accompanying the
consolidated financial statements and schedule of Plasma-Therm, Inc. and
Subsidiary included in the Annual Report on Form 10-K for the year ended
November 30, 1996 which are incorporated by reference in this Registration
Statement. We consent to the incorporation by reference in the Registration
Statement of the aforementioned reports.
GRANT THORNTON LLP
Tampa, Florida
January 16, 1998
