<PAGE> 1
As filed with the Securities and Exchange Commission on June July 7, 1998
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BURR-BROWN CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 86-0445468
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
6730 TUCSON BOULEVARD, TUCSON, ARIZONA 85706
(Address of principal executive offices) (Zip Code)
BURR-BROWN CORPORATION
1993 STOCK INCENTIVE PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
SYRUS P. MADAVI
PRESIDENT AND CHIEF EXECUTIVE OFFICER, CHAIRMAN OF THE BOARD
BURR-BROWN CORPORATION
6730 TUCSON BOULEVARD, TUCSON, ARIZONA 85706
(Name and address of agent for service)
(520) 746-1111
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ------------- ------------ -------- ---
<S> <C> <C> <C> <C>
1993 Stock Incentive Plan
Common Stock 3,000,000 $21.3125 $63,937,500 $18,861.56
Employee Stock Purchase Plan
Common Stock 600,000 $21.3125 $12,787,500 $ 3,772.31
</TABLE>
Aggregate Filing Fee:$22,633.87
================================================================================
<PAGE> 2
(1) This Registration Statement shall also cover any additional shares of
the Registrant's Common Stock which become issuable under the 1993 Stock
Incentive Plan and Employee Stock Purchase Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the Registrant's receipt of consideration which results
in an increase in the number of the outstanding shares of the
Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the
high and low selling prices per share of the Registrant's Common Stock
on July 1, 1998 as reported by the Nasdaq National Market.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Burr-Brown Corporation (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
a. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 filed with the SEC on March 31, 1998;
b. The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended April 4, 1998 filed with the SEC on May 19, 1998;
c. The Registrant's Registration Statement No. 00-011438 on Form
8-A filed with the SEC on January 5, 1984 and amended on August
1, 1989 and March 6, 1990, pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), in
which there is described the terms, rights and provisions
applicable to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment 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 into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Registrant's Restated Certificate of Incorporation provides that no
member of the Registrant's Board of Directors or the Executive Committee of such
Board will be personally liable to the Registrant or any of its stockholders for
monetary damages arising from such member's breach of fiduciary duty. However,
this does not apply with respect to any action in which such person would be
liable under Section 174 of Title 8 of the General Corporation Law of Delaware,
nor does it apply with respect to any liability arising from the fact that such
person (i) breached his duty of loyalty to the Registrant; (ii) did not act in
good faith or, in failing to act, did not act in good faith; (iii) acted in a
manner involving intentional misconduct or a knowing violation of law or, in
failing to act, shall have acted in a manner involving intentional misconduct or
a knowing violation of law; or (iv) derived an improper personal benefit.
Pursuant to the provisions of Section 145 of the General Corporation Law
of Delaware, Registrant has power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than an action by or in the right of the
Registrant) by reason of the fact that he is or was a director, officer,
employee or agent of the Registrant or of any corporation, partnership, joint
venture, trust or other enterprise for which he is or was serving in such
capacity at the request of the Registrant, against any and all expenses,
judgments, fines and amounts paid in settlement and reasonably incurred by him
in
II-1.
<PAGE> 4
connection with such action, suit or proceeding. The power to indemnify applies
only if such person acted in good faith and in a manner he reasonably believed
to be in the best interests, or not opposed to the best interests, of the
Registrant, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The power to indemnify such person applies to actions brought by or in
the right of the Registrant as well, but only to the extent of defense and
settlement expenses and not to any satisfaction of a judgment or settlement of
the claim itself, and with the further limitation that in such actions no
indemnification shall be made in the event of any adjudication of negligence or
misconduct on the past of such person, unless the court, in its discretion,
feels that in the light of all the circumstances indemnification should apply.
To the extent any person referred to in the two immediately preceding
paragraphs is successful in the defense of the actions referred to therein, such
person is entitled pursuant to Section 145 to indemnification as described
above. Section 145 also grants power to advance litigation expenses upon receipt
of any undertaking to repay such advances in the event no right to
indemnification is subsequently shown. The Registrant may also obtain insurance
at its expense to protect anyone who might be indemnified, or has a right to
insist on indemnification, under the statute.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit Number Exhibit
-------------- -------
<S> <C>
4.0 Instruments Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 00-011438
on Form 8-A which are incorporated herein by reference
pursuant to Item 3(c).
5.0 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Independent Auditors - Ernst & Young LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24.0 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1993 Stock Incentive Plan (as amended and restated on
March 20, 1998).
99.2* Notice of Grant of Stock Option and Stock Option
Agreement.
99.3* Addendum to Stock Option Agreement (Change in Control).
99.4* Addendum to Stock Option Agreement (Special Tax
Elections).
99.5* Addendum to Stock Option Agreement (Limited Stock
Appreciation Rights).
99.6* Addendum to Stock Option Agreement (Financial Assistance).
99.7* Stock Issuance Agreement.
99.8 Employee Stock Purchase Plan.
99.9 Employee Stock Purchase Plan Enrollment Form
99.10 Employee Stock Purchase Agreement
</TABLE>
* Exhibits 99.2 through 99.7 are incorporated herein by reference to
Exhibits 28.2 through 28.7 of Registrant's Registration Statement No.
33-65866 on Form S-8 which was filed with the SEC on July 12, 1993.
Item 9. Undertakings.
A. 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 "1933 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
II-2.
<PAGE> 5
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement,
and (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 clauses (1)(i) and (1)(ii) shall not apply if 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
Section 15(d) of the 1934 Act that are incorporated by reference into the
Registration Statement; (2) that for the purpose of determining any liability
under the 1933 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 that time shall be deemed to be the initial bona
fide offering thereof; and (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 1993 Stock Incentive Plan or the 1998 Employee
Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into 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.
C. Insofar as indemnification for liabilities arising under the 1933
Act, may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 above
or otherwise, the Registrant has been informed that, in the opinion of the SEC,
such indemnification is against public policy as expressed in the 1933 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 1933 Act, and will be governed by the final
adjudication of such issue.
II-3.
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Tucson, State of Arizona, on this day of July
6, 1998.
BURR-BROWN CORPORATION
By: /s/ Syrus P. Madavi
--------------------------------------------------
Syrus P. Madavi
President, Chief Executive Officer and Chairman of
the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Burr-Brown Corporation, a
Delaware corporation, do hereby constitute and appoint Syrus P. Madavi and J.
Scott Blouin and each of them, the lawful attorneys and agents, with full power
and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and any one of them, determine may
be necessary or advisable or required to enable said corporation to comply with
the Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this Registration
Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms all that said
attorneys and agents, or any of them, shall do or cause to be done by virtue
hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Syrus P. Madavi
- ---------------------------- President, Chief June 6, 1998
Syrus P. Madavi Executive Officer and
Chairman of the Board
(Principal Executive
Officer)
</TABLE>
II-4.
<PAGE> 7
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Kenneth G. Wolf
- ---------------------------- Executive Vice President June 6, 1998
Kenneth G. Wolf
/s/ J. Scott Blouin
- ---------------------------- Chief Financial Officer June 6, 1998
J. Scott Blouin (Principal Financial and
Accounting Officer)
/s/ Thomas R. Brown, Jr.
- ---------------------------- Director June 6, 1998
Thomas R. Brown, Jr.
/s/ John S. Anderegg, Jr.
- ---------------------------- Director June 6, 1998
John S. Anderegg, Jr.
/s/ Francis J. Aguilar
- ---------------------------- Director June 6, 1998
Francis J. Aguilar
/s/ Marcelo A. Gumucio
- ---------------------------- Director June 6, 1998
Marcelo A. Gumucio
</TABLE>
II-5.
<PAGE> 8
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
BURR-BROWN CORPORATION
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Exhibit
-------------- -------
<S> <C>
4.0 Instruments Defining Rights of Stockholders. Reference is
made to Registrant's Registration No. 00-011438 on Form
8-A which is incorporated herein by reference pursuant to
Item 3(c).
5.0 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Independent Auditors - Ernst & Young LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24.0 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1993 Stock Incentive Plan (as amended and restated on
March 20, 1998).
99.2* Notice of Grant of Stock Option and Stock Option
Agreement.
99.3* Addendum to Stock Option Agreement (Change in Control).
99.4* Addendum to Stock Option Agreement (Special Tax
Elections).
99.5* Addendum to Stock Option Agreement (Limited Stock
Appreciation Rights).
99.6* Addendum to Stock Option Agreement (Financial Assistance).
99.7* Stock Issuance Agreement.
99.8 Employee Stock Purchase Plan.
99.9 Employee Stock Purchase Plan Enrollment Form
99.10 Employee Stock Purchase Agreement
</TABLE>
* Exhibits 99.2 through 99.7 are incorporated herein by reference to
Exhibits 28.2 through 28.7 of Registrant's Registration Statement No.
33-65866 on Form S-8 which was filed with the SEC on July 12, 1993.
<PAGE> 1
EXHIBIT 5.0
July 6, 1998
Burr-Brown
6730 Tucson Boulevard
Tucson, Arizona 85706
Re: Burr-Brown Corporation Registration Statement on Form S-8 for
3,600,000 Shares of Common Stock and Related Stock Options
Ladies and Gentlemen:
We have acted as counsel to Burr-Brown Corporation, a Delaware corporation
(the "Company"), in connection with the registration on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, of (i)
an additional 3,000,000 shares of common stock and related stock options for
issuance under the Company's 1993 Stock Incentive Plan (the "Incentive Plan")
and (ii) 600,000 shares of common stock and related stock purchase rights for
issuance under the Employee Stock Purchase Plan (the "Purchase Plan").
This opinion is being furnished in accordance with the requirements of
Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection with the establishment and
amendment of the Incentive Plan and the establishment of the Purchase Plan.
Based on such review, we are of the opinion that, if, as and when the shares of
common stock are issued and sold (and the consideration therefor received)
pursuant to (a) the provisions of option agreements duly authorized under the
Incentive Plan and in accordance with the Registration Statement, (b) duly
authorized direct stock issuances in accordance with the Plan and the
Registration Statement or (c) the provisions of the Purchase Plan and the
purchase rights thereunder and in accordance with the Registration Statement,
such shares will be duly authorized, legally issued, fully paid and
non-assessable.
We consent to the filing of this opinion letter as Exhibit 5.1 to the
Registration Statement.
This opinion letter is rendered as of the date first written above and we
disclaim any obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company, the
Incentive Plan or the Purchase Plan or the shares of common stock issuable under
such plans.
Very truly yours,
/s/ BROBECK, PHLEGER & HARRISON LLP
BROBECK, PHLEGER & HARRISON LLP
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Auditors - Ernst & Young LLP
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Burr-Brown Corporation 1993 Stock Incentive Plan and 1998
Employee Stock Purchase Plan of our report dated January 22, 1998 (except for
the note entitled Accounting Policies-Earnings Per Share, as to which the date
is February 23, 1998), with respect to the consolidated financial statements of
Burr-Brown Corporation incorporated by reference in its Annual Report (Form
10-K) for the year ended December 31, 1997 and our report dated March 24, 1998
on the financial statement schedule included therein, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Tucson, Arizona
June 29, 1998
<PAGE> 1
EXHIBIT 99.1
BURR-BROWN CORPORATION
1993 STOCK INCENTIVE PLAN
(AS AMENDED AND RESTATED THROUGH MARCH 20, 1998)
PREAMBLE
The BURR-BROWN CORPORATION previously adopted the Burr-Brown
Research Corporation Incentive Stock Plan of 1981 that was amended and restated
in 1983. That plan shall be referred to as the "Original Plan." The Burr-Brown
Corporation 1993 Stock Incentive Plan ("Plan") shall serve as the successor to
the Original Plan and will become effective as provided in Section 7 of this
Article One.
All share numbers in this March 20, 1998 restatement have been
adjusted upward to take into account the 3-for-2 split of the Stock which the
Board authorized on February 20, 1998 and which is to be effected in the form of
a stock dividend payable on March 20, 1998 to the Company's stockholders of
record on March 6, 1998.
ARTICLE ONE
GENERAL
1. Definitions. As used herein, the following terms have the
meanings hereinafter set forth unless the context clearly indicates to the
contrary:
1.1 "Board" shall mean the Board of Directors of the Company.
1.2 "Change in Control" shall mean a change in ownership or
control of the Company effected through either of the following transactions:
1.2.1 any person or related group of persons (other than
the Company or a person that directly or indirectly controls, is
controlled by, or is under common control with, the Company) directly or
indirectly acquires beneficial ownership (within the meaning of Rule
13d-3 of the Securities Exchange Act of 1934, as amended) of securities
possessing more than fifty percent (50%) of the total combined voting
power of the Company's outstanding securities pursuant to a tender or
exchange offer made directly to the Company's stockholders; or
1.2.2 there is a change in the composition of the Board
over a period of twenty-four (24) consecutive months or less such that a
majority of the Board members (rounded up to the next whole number)
ceases, by reason of one or more proxy contests for the election of
Board members, to be comprised of individuals who either (A) have been
Board members continuously since the beginning of such period or (B)
have been elected or nominated for election as Board members during such
period by at least a majority of the Board members described in clause
(A) who were still in office at the time such election or nomination was
approved by the Board.
<PAGE> 2
1.3 "Code" shall mean the Internal Revenue Code of 1986.
1.4 "Committee" shall mean either the Primary Committee or the
Secondary Committee acting within the scope of its administrative jurisdiction
under the Plan, as determined pursuant to Section 4 of Article One.
1.5 "Company" shall mean Burr-Brown Corporation, a Delaware
corporation.
1.6 "Corporate Transaction" shall mean any of the following
stockholder- approved transactions to which the Company is a party:
1.6.1 a merger, consolidation or other reorganization in
which the Company is not the surviving entity, except for a transaction
the principal purpose of which is to change the state in which the
Company is incorporated,
1.6.2 the sale, transfer or other disposition of all or
substantially all of the assets of the Company in complete liquidation
or dissolution of the Company, or
1.6.3 any reverse merger in which the Company is the
surviving entity but in which securities possessing more than fifty
percent (50%) of the total combined voting power of the Company's
outstanding securities are transferred to a person or persons different
from those who held such securities immediately prior to such merger.
1.7 "Fair Market Value" shall mean the closing selling price per
share of Stock on the date in question, as reported by the National Association
of Securities Dealers on the Nasdaq National Market. If there is no such
reported price on the date in question, then the Fair Market Value shall be the
closing selling price on the last preceding date for which such quotation
exists.
1.8 "Hostile Take-Over" shall mean a change in ownership of the
Company in which any person or related group of persons (other than the Company
or a person that directly or indirectly controls, is controlled by, or is under
common control with, the Company) directly or indirectly acquires beneficial
ownership (within the meaning of Rule 13d-3 of the Securities Exchange Act of
1934, as amended) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities pursuant to
a tender or exchange offer made directly to the Company's stockholders which the
Board does not recommend such stockholders to accept.
1.9 "Option" shall mean an option to purchase Stock granted
pursuant to the provisions of the Discretionary Option Grant or Automatic Option
Grant Program.
1.10 "Optionee" shall mean any person to whom an Option is
granted pursuant to the Discretionary Option Grant or Automatic Option Grant
Program.
1.11 "Original Plan" shall mean the Burr-Brown Research
Corporation Incentive Stock Plan of 1981, as amended and restated in 1983.
2.
<PAGE> 3
1.12 "Participant" shall mean an employee or consultant to whom
Stock is issued pursuant to the provisions of the Stock Issuance Program.
1.13 "Plan" shall mean the Burr-Brown Corporation 1993 Stock
Incentive Plan, as amended from time to time.
1.14 "Service" shall mean the performance of services on a
periodic basis to the Company (or any Subsidiary corporation) in the capacity of
an employee, a non-employee member of the board of directors or an independent
consultant or advisor, except to the extent otherwise specifically provided in
the applicable Option or Stock issuance agreement executed pursuant to the
provisions of the Plan.
1.15 "Stock" shall mean the Common Stock of the Company.
1.16 "Subsidiary" or "Subsidiaries" shall mean any corporation,
the majority of the outstanding capital stock of which is owned, directly or
indirectly, by the Company.
1.17 "Take-Over Price" shall mean the greater of (a) the Fair
Market Value per share of Stock subject to an outstanding Option on the date
that Option is surrendered to the Company in connection with a Hostile Take-Over
or (b) the highest reported price per share of such Stock paid by the tender
offeror in effecting such Hostile Take-Over. However, if the surrendered Option
is an incentive stock option under Federal tax laws, the Take-Over Price shall
not exceed the clause (a) price per share.
2. Purpose. This Plan is intended to benefit the Company by (i)
providing an incentive to and encouraging Stock ownership by key employees
(including officers), non-employee members of the Board and consultants of the
Company and its Subsidiaries; (ii) providing such key employees, non-employee
Board members and consultants the opportunity to acquire a proprietary interest
or to increase their proprietary interest in the Company's success; and (iii)
encouraging such individuals to remain in the Service of the Company or its
Subsidiaries.
3. Structure of the Plan.
3.1 Stock Programs. The Plan shall be divided into three (3)
separate components:
- The Discretionary Option Grant Program, under which eligible
individuals may, at the discretion of the Committee, be granted Options
to purchase shares of Stock in accordance with the provisions of Article
Two.
- The Stock Issuance Program, under which eligible individuals
may be issued shares of Stock directly, either through the immediate
purchase of such shares at a price not less than their Fair Market Value
at the time of issuance or as a bonus tied to the performance of
services or the Company's attainment of financial objectives, without
any cash payment required of the recipient.
3.
<PAGE> 4
- The Automatic Option Grant Program, under which each
non-employee Board member shall automatically receive special Option
grants at periodic intervals in accordance with the provisions of
Article Four.
3.2 General Provisions. Unless the context clearly indicates
otherwise, the provisions of Articles One and Five shall apply to the
Discretionary Option Grant, Stock Issuance and Automatic Option Grant Programs
and shall accordingly govern the interests of all individuals under the Plan.
4. Administration.
4.1 The Discretionary Option Grant and Stock Issuance Programs
under the Plan shall, with respect to all individuals subject to the short-swing
profit restrictions of the Federal securities laws, be administered by the
Primary Committee. The Primary Committee shall initially have the same
membership as the Board's Compensation Committee. Administration of the
Discretionary Option Grant and Stock Issuance Programs with respect to all other
persons eligible to participate in those programs shall be vested in the Primary
Committee. However, the Board may, in its discretion, appoint a Secondary
Committee of the Board to exercise separate but concurrent jurisdiction with
respect to the participation of such persons in those programs.
4.2 Individuals serving on the Primary Committee or any Secondary
Committee shall serve for such term as the Board may determine and shall be
subject to removal by the Board at any time. Each Committee shall, within the
scope of its administrative jurisdiction under the Plan, have full authority,
subject to the express provisions of the Plan, to administer the Discretionary
Option Grant and Stock Issuance Programs, including authority to interpret and
construe any provision of such programs and to adopt such rules and regulations
as it may deem necessary or appropriate. Decisions of each Committee within the
scope of its administrative jurisdiction under the Plan shall be final and
binding on all parties who have an interest in the Discretionary Option Grant or
Stock Issuance Program or any outstanding Option grant or Stock issuance
hereunder. No member of the Board and no member of the Primary Committee or any
Secondary Committee shall be liable for any action or determination made in good
faith with respect to the Discretionary Option Grant or Stock Issuance Program
under its jurisdiction or any Option grant or Stock issuance under it.
5. Option Grants and Stock Issuances.
5.1 The persons eligible to participate in the Discretionary
Option Grant Program under Article Two and the Stock Issuance Program under
Article Three are as follows:
- officers and other key employees of the Company (or its
parent or subsidiary corporations, whether now existing or subsequently
established) who render services which contribute to the management,
growth and financial success of the Company (or such parent or
subsidiary corporations);
- non-employee Board members; and,
4.
<PAGE> 5
- those consultants or other independent contractors who
provide valuable services to the Company (or its parent or subsidiary
corporations).
5.2 Non-employee Board members shall also be eligible to
participate in the Automatic Option Grant Program under Article Four.
5.3 Both the Primary Committee and the Secondary Committee shall
each have full authority, within the scope of their administrative jurisdiction
under the Plan, to determine, (i) with respect to the Option grants made under
the Discretionary Option Grant Program, which eligible individuals are to
receive Option grants, the number of shares to be covered by each such grant,
the status of the granted Option as either an incentive stock option meeting the
requirements of Code Sections 421 and 422 ("Incentive Option") or a nonstatutory
option not intended to meet such requirements ("Nonstatutory Option"), the time
or times at which each granted Option is to become exercisable and the maximum
term for which the Option may remain outstanding; and (ii) with respect to Stock
issuances under the Stock Issuance Program, which eligible individuals are to be
selected for participation, the number of shares to be issued to each selected
individual, the vesting schedule (if any) to be applicable to the issued shares
and the consideration to be paid for such shares.
6. Stock.
6.1 Stock Available. The Stock to be issued under this Plan may
be either authorized but unissued shares or shares issued and thereafter
reacquired by the Company. The aggregate number of shares of Stock which may be
issued pursuant to this Plan shall not exceed at any time 8,888,160 shares,
subject to adjustment from time to time as provided in paragraph 6.3 below. Such
authorized share reserve is comprised of (i) the number of shares which remained
available for issuance under the Original Plan as of the Effective Date,
including the shares of Stock subject to the outstanding options under the
Original Plan incorporated into this Plan and any other shares which would have
been available for future option grant under the Original Plan (estimated to be
1,613,160 shares in the aggregate), plus (ii) an additional increase of
2,025,000 shares of Stock previously authorized by the Board and approved by the
Company's stockholders prior to the Plan Effective Date, plus (iii) a subsequent
increase of 1,125,000 shares of Stock authorized by the Board on February 16,
1996 and approved by the Company's stockholders at the 1996 Annual Meeting held
on April 26, 1996 plus (iv) an additional increase of 1,125,000 shares of Stock
authorized by the Board as of March 4, 1997 and approved by the stockholders at
the 1997 Annual Meeting plus (v) a further increase of an additional 3,000,000
shares of Stock authorized by the Board on , 1998, subject to stockholder
approval at the 1998 Annual Meeting. All issuances of Stock under the Plan,
including any shares of Stock issued upon the exercise of options incorporated
into the Plan from the Original Plan, shall reduce on a one-for-one basis the
number of shares of Stock available for subsequent issuance under the Plan.
Should any Option or any portion thereof be terminated or canceled for any
reason without being exercised or surrendered in accordance with Section 4 of
Article Two or Section 3 of Article Four, the shares subject to the portion of
the Option not so exercised or surrendered shall be available for subsequent
Option grants or Stock issuances under this Plan. In addition, unvested shares
issued under the Plan and subsequently repurchased by the Company, at the
original exercise or issue price paid per share, pursuant to the Company's
repurchase rights under the Plan shall be added back to the number of shares of
Common Stock reserved for issuance under the Plan and shall accordingly be
available for reissuance through one or more
5.
<PAGE> 6
subsequent option grants or direct stock issuances under the Plan. However,
shares subject to an Option or portion thereof surrendered in accordance with
Section 4 of Article Two shall not be available for subsequent Option grants or
Stock issuances under the Plan. If the Option price for any Options granted
under the Plan is paid with shares of Stock or if any shares of Stock otherwise
issuable under the Plan are withheld by the Company in satisfaction of the
income and employment tax liability incurred in connection with any Optionee's
or Participant's acquisition of Stock hereunder, then the number of shares of
Stock available for subsequent issuance shall be reduced by the gross number of
shares for which the Option is exercised or in which the Participant vests, and
not by the net number of shares actually issued to the Optionee or the
Participant.
6.2 In no event may the aggregate number of shares of Stock for
which any one individual participating in the Plan may be granted Options and
direct Stock issuances exceed 2,025,000 shares in the aggregate over the term of
the Plan. For purposes of such limitation, no Option grants or direct Stock
issuances made prior to January 1, 1994 shall be taken into account.
6.3 Corporate Reorganization. In the event that any change is
made to the securities issuable under the Plan (whether by reason of merger,
consolidation, reorganization, recapitalization, Stock dividend, Stock split,
combination of shares, exchange of shares or other change in capitalization)
then, subject to the provisions of Section 2 of Article Two, Section 2 of
Article Three and Section 3 of Article Four, the Primary Committee may make
appropriate adjustments in the maximum number and/or kind of securities issuable
under the Plan, the maximum number and/or kind of securities for which Option
grants and direct Stock issuances may be made to any one participant in the
aggregate after December 31, 1993 and the number and/or kind of securities for
which automatic Option grants are to be subsequently made to newly-elected and
continuing non-employee Board members under the Automatic Option Grant Program
in order to reflect the effect of such change upon the Company's capital
structure, and may make appropriate adjustments to the number and/or kind of
securities and Option price of the securities subject to each outstanding Option
to prevent the dilution of benefits thereunder. The adjustments determined by
the Primary Committee shall be final, binding and conclusive.
6.4 Excess Grants and Issuances. Options to purchase shares of
Stock may be granted and shares of Stock may be issued under the Plan which are
in both instances in excess of the number of shares then available for issuance
under the Plan, provided any excess shares actually issued under the Plan are
held in escrow until the Company's stockholders approve an amendment
sufficiently increasing the number of shares of Stock available for issuance
under the Plan. If such stockholder approval is not obtained within twelve (12)
months after the date the initial excess issuances are made, whether as Option
grants or direct Stock issuances, then (I) any unexercised Options representing
such excess shall terminate and cease to be exercisable and (II) the Company
shall promptly refund to the Optionees and Participants the Option or purchase
price paid for any excess shares issued under the Plan and held in escrow,
together with interest (at the applicable Short Term Federal Rate) for the
period the shares were held in escrow, and such shares shall thereupon be
automatically cancelled and cease to be outstanding.
6.5 Restrictions. Shares issued under the Discretionary Option
Grant or Stock Issuance Program may be subject to such restrictions on transfer,
repurchase rights or other restrictions as shall be determined by the Committee.
6.
<PAGE> 7
7. Effective Date and Term of Plan.
7.1 Effective Date. The Discretionary Option Grant and Stock
Issuance Programs under the Plan were adopted by the Board on February 11, 1994,
and the date of such adoption accordingly constitutes the Effective Date for
those two programs and the Plan. The Automatic Option Grant Program under the
Plan was adopted by the Board on February 11, 1994 and became effective upon
approval by the stockholders at the 1994 Annual Meeting held on April 22, 1994.
The date of such stockholder approval accordingly constitutes the Effective Date
of the Automatic Option Grant Program.
7.2 Amendment. The Plan was amended and restated by the Board,
effective February 16, 1996 (the "February 1996 Restatement") to increase the
maximum number of shares of Stock authorized for issuance over the term of the
Plan by an additional 1,125,000 shares. Stockholders approved the February 1996
Restatement at the 1996 Annual Meeting held on April 26, 1996. On March 4, 1997,
the Board restated the Plan to (i) increase the maximum number of shares of
Stock authorized for issuance over the term of the Plan by an additional
1,125,000 shares, (ii) effect a number of changes to the Automatic Option Grant
Program in effect for the non-employee Board members, (iii) allow any unvested
shares issued under the Plan and subsequently repurchased by the Company at the
option exercise price or issue price paid per share to be reissued under the
Plan, (iv) remove certain restrictions on the eligibility of non-employee Board
members to serve on the Primary Committee and (v) effect a series of additional
changes to the provisions of the Plan (including the stockholder approval
requirements) in order to take advantage of the recent amendments to Rule 16b-3
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") which
exempts certain officer and director transactions under the Plan from the
short-swing liability provisions of the federal securities laws. The March 4,
1997 restatement was approved by the stockholders at the 1997 Annual Meeting. On
____________, 1998, the Board amended and restated the Plan to increase the
maximum number of shares of Stock authorized for issuance over the term of the
Plan by an additional 3,000,000 shares. The 1998 restatement is subject to
stockholder approval at the 1998 Annual Meeting and shall not become effective
unless such stockholder approval is obtained. Should such stockholder approval
not be obtained, then no Option grants or Stock issuances shall be made on the
basis of the 3,000,000-share increase; however, the Plan shall continue in full
force and effect in accordance with the terms and provisions in effect under the
Plan immediately prior to the date the Board adopted the 1988 restatement, and
Option grants and Stock issuances may continue to be made under the Plan until
the existing share reserve under the Plan is issued. All option grants made
under the Plan prior to the 1998 restatement shall remain outstanding in
accordance with the terms and conditions of the respective instruments
evidencing those options, and nothing in the 1998 restatement shall be deemed to
modify or in any way affect those outstanding options.
7.3 Term of Plan. Unless sooner terminated in accordance with
Section 2 of Article Two, Section 2 of Article Three, Section 3 of Article Four
or by the Board, the Plan shall terminate on the earlier of:
(i) the tenth (10th) anniversary of the Effective Date of
the Plan; or
(ii) the date on which all shares available for issuance
under the Plan shall have been issued or their availability cancelled
pursuant to the surrender of Options granted hereunder.
7.
<PAGE> 8
If the date of termination is determined under (i) above, then
Options and unvested Stock issuances outstanding on such date shall continue to
have force and effect in accordance with the provisions of the instruments
evidencing such Options and Stock issuances.
8.
<PAGE> 9
ARTICLE TWO
DISCRETIONARY OPTION GRANT PROGRAM
1. Terms and Conditions of Options. Options granted pursuant to
this Discretionary Option Grant Program shall be authorized by the Committee and
may be either Incentive Options or Nonstatutory Options. The granted Options
shall be evidenced by instruments in such form and including such terms and
conditions as the Committee shall from time to time approve; provided, however,
that each such instrument shall comply with the following terms and conditions:
1.1 Option Price.
1.1.1 The Option price per share shall be fixed by the
Committee, but in no event shall the Option price per share be less than the
Fair Market Value of a share of the option Stock on the date of the Option
grant.
1.1.2 Subject to the provisions of Section 1 of Article
Five, the Option price shall become immediately due and payable upon exercise of
the Option and shall be payable in one of the alternative forms specified below:
1.1.2.1 Full payment in United States dollars in cash
or cash equivalents;
1.1.2.2 Full payment in shares of Stock valued at
Fair Market Value on the date the Option is exercised and held for the requisite
period necessary to avoid a charge to the Company's earnings for financial
reporting purposes;
1.1.2.3 A combination of shares of Stock valued at
Fair Market Value on the date the Option is exercised and held for the requisite
period necessary to avoid a charge to the Company's earnings for financial
reporting purposes, and cash or cash equivalents, equal in the aggregate to the
Option price;
1.1.2.4 Full payment through a broker-dealer sale and
remittance procedure pursuant to which the Optionee (I) shall provide
irrevocable instructions to a designated brokerage firm to effect the immediate
sale of the purchased shares and remit to the Company, out of the sale proceeds
available on the settlement date, sufficient funds to cover the aggregate Option
price payable for the purchased shares plus all applicable Federal, state and
local income and employment taxes required to be withheld by the Company in
connection with such purchase and (II) shall provide directives to the Company
to deliver the certificates for the purchased shares directly to such brokerage
firm in order to complete the sale transaction; or
1.1.2.5 Such other lawful consideration as the
Committee shall determine.
1.2 Manner of Exercise of Options. Each Option granted under the
Discretionary Option Grant Program shall be exercisable at such time or times
and during such period as shall be determined by the Committee and set forth in
the instrument evidencing such
9.
<PAGE> 10
Option. However, no Option may be exercised after the expiration of ten (10)
years from the date such Option is granted. During the lifetime of the Optionee,
Incentive Options shall be exercisable only by the Optionee and shall not be
assignable or transferable by the Optionee other than a transfer of the Option
by will or by the laws of descent and distribution following the Optionee's
death. However, Nonstatutory Options may, in connection with the Optionee's
estate plan, be assigned in whole or in part during the Optionee's lifetime to
one or more members of the Optionee's immediate family or to a trust established
exclusively for one or more such family members. The assigned portion may only
be exercised by the persons or persons who acquire a proprietary interest in the
option pursuant to the assignment. The terms applicable to the assigned portion
shall be the same as those in effect for the option immediately prior to such
assignment and shall be set forth in such documents issued to the assignee as
the Committee may deem appropriate. Options may be exercised by written notice
to the Company in such terms as the Committee shall specify.
1.3 Stockholder Rights. An Option holder shall have none of the
rights of a stockholder with respect to any shares issuable under the Plan until
such individual shall have been issued a stock certificate for the shares.
1.4 Dollar Limitation. The aggregate Fair Market Value
(determined as of the respective date or dates of grant) of the Stock for which
one or more Options granted to any employee under this Plan (or any other option
plan of the Company or its parent or Subsidiary corporations) may for the first
time become exercisable as incentive stock options under the Federal tax laws
during any one calendar year shall not exceed the sum of One Hundred Thousand
Dollars ($100,000). To the extent the employee holds two (2) or more such
Options which become exercisable for the first time in the same calendar year,
the foregoing limitation on the exercisability of such Options as incentive
stock options under the Federal tax laws shall be applied on the basis of the
order in which such Options are granted. Should the number of shares of Stock
for which any Incentive Option first becomes exercisable in any calendar year
exceed the applicable One Hundred Thousand Dollar ($100,000) limitation, then
the Option may nevertheless be exercised in that calendar year for the excess
number of shares as a nonstatutory option under the Federal tax laws.
1.5 Termination of Service.
1.5.1 Except to the extent otherwise provided in paragraph
1.5.4 below, the following provisions shall govern the exercise period
applicable to any outstanding Options under this Discretionary Option Grant
Program held by the Optionee at the time of cessation of Service or death.
- Should the Optionee cease to remain in Service for any
reason other than death or permanent disability, then the period during
which each outstanding Option held by such Optionee is to remain
exercisable shall be limited to the three (3)-month period following the
date of such cessation of Service. However, the Committee shall have the
discretion to provide for a longer post-Service exercise period (not to
exceed the expiration date of the maximum Option term) in the event the
Optionee ceases Service by reason of retirement at or after attainment
of age sixty-five (65).
10.
<PAGE> 11
- In the event such Service terminates by reason of
permanent disability (as defined in Code Section 22(e)(3)) or should the
Optionee die while holding one or more outstanding Options, then the
period during which each such Option is to remain exercisable shall be
limited to the twelve (12)-month period following the date of the
Optionee's cessation of Service or death. During the limited exercise
period following the Optionee's death, the Option may be exercised by
the personal representative of the Optionee's estate or by the person or
persons to whom the Option is transferred pursuant to the Optionee's
will or in accordance with the laws of descent and distribution.
- Under no circumstances, however, shall any such Option
be exercisable after the specified expiration date of the Option term.
1.5.2 During the post-Service exercise period, the Option
may not be exercised for more than the number of shares of Stock in which the
Optionee is vested at the time of cessation of Service. Upon the expiration of
such post-Service exercise period or (if earlier) upon the expiration of the
Option term, the Option shall terminate and cease to be outstanding for any
vested shares for which the Option has not been exercised. However, each Option
shall immediately terminate and cease to be outstanding, at the time of the
Optionee's cessation of Service, with respect to any option shares for which
such Option is not otherwise at that time exercisable or in which the Optionee
is not otherwise at that time vested.
1.5.3 Should (i) the Optionee's Service be terminated for
misconduct (including, but not limited to, any act of dishonesty, willful
misconduct, fraud or embezzlement) or (ii) the Optionee make any unauthorized
use or disclosure of confidential information or trade secrets of the Company or
its Subsidiaries, then in any such event all outstanding Options held by the
Optionee under this Discretionary Option Grant Program shall terminate
immediately and cease to be outstanding.
1.5.4 The Committee shall have full power and authority to
extend the period of time for which the Option is to remain exercisable
following the Optionee's cessation of Service or death from the limited
post-Service exercise period specified in the instrument evidencing such grant
to such greater period of time as the Committee shall deem appropriate under the
circumstances. In no event, however, shall such Option be exercisable after the
specified expiration date of the Option term.
1.5.5 The Committee shall have complete discretion,
exercisable either at the time the Option is granted or at any time the Option
remains outstanding, to permit one or more Options granted under this
Discretionary Option Grant Program to be exercised not only for the number of
shares for which each such Option is exercisable at the time of the Optionee's
cessation of Service but also for one or more subsequent installments of
purchasable shares for which the Option would otherwise have become exercisable
had such cessation of Service not occurred.
2. Corporate Transactions/Changes in Control.
2.1 Option Acceleration. Each Option which is outstanding under
this Discretionary Option Grant Program at the time of a Corporate Transaction
shall automatically accelerate so that each such Option shall, immediately prior
to the specified effective date for
11.
<PAGE> 12
such Corporate Transaction, become fully exercisable with respect to the total
number of shares of Stock at the time subject to such Option and may be
exercised for all or any portion of such shares. However, an outstanding Option
under this Discretionary Option Grant Program shall not so accelerate if and to
the extent: (i) such Option is, in connection with the Corporate Transaction,
either to be assumed by the successor corporation or parent thereof or to be
replaced with a comparable option to purchase shares of the capital stock of the
successor corporation or parent thereof, (ii) such Option is to be replaced with
a cash incentive program of the successor corporation which preserves the option
spread existing at the time of the Corporate Transaction and provides for
subsequent payout in accordance with the same vesting schedule applicable to
such Option, or (iii) the acceleration of such Option is subject to other
limitations imposed by the Committee at the time of the Option grant. The
determination of option comparability under clause (i) above shall be made by
the Committee and its determination shall be final, binding and conclusive. The
Committee shall also have full power and authority to grant Options under the
Plan which are to automatically accelerate in whole or in part upon the
termination of the Optionee's Service following a Corporate Transaction in which
those Options are assumed or replaced.
2.2 Termination of Options. Immediately following the
consummation of the Corporate Transaction, all outstanding Options under this
Discretionary Option Grant Program shall terminate and cease to be outstanding,
except to the extent assumed by the successor corporation or its parent company.
2.3 Option Adjustments. Each outstanding Option under this
Discretionary Option Grant Program which is assumed in connection with the
Corporate Transaction or is otherwise to continue in effect shall be
appropriately adjusted, immediately after such Corporate Transaction, to apply
and pertain to the number and kind of securities which would have been issued to
the Option holder, in consummation of such Corporate Transaction, had such
person exercised the Option immediately prior to such Corporate Transaction.
Appropriate adjustments shall also be made to the Option price payable per
share, provided the aggregate Option price payable for such securities shall
remain the same. In addition, the class and kind of securities available for
issuance under the Plan on both an aggregate and per participant basis following
the consummation of the Corporate Transaction shall be appropriately adjusted.
2.4 Change in Control. The Committee shall have the discretionary
authority, exercisable either at the time the Option is granted or at any time
while the Option remains outstanding, to provide for the automatic acceleration
of one or more outstanding Options under this Discretionary Option Grant Program
upon the occurrence of a Change in Control. The Committee shall also have full
power and authority to condition any such Option acceleration upon the
subsequent termination of the Optionee's Service within a specified period
following the Change in Control.
2.5 Option Continuation. Any Options accelerated in connection
with the Change in Control shall remain fully exercisable until the expiration
or sooner termination of the Option term or the surrender of such Option in
accordance with Section 4 of this Article Two.
2.6 ISO Limitation. The exercisability as incentive stock options
under the Federal tax laws of any Options accelerated under this Section 2 in
connection with a Corporate Transaction or Change in Control shall remain
subject to the dollar limitation of paragraph 1.4 of this Article Two.
12.
<PAGE> 13
2.7 Right to Modify Corporate Structure. The grant of Options
under this Plan shall in no way effect the right of the Company to adjust,
reclassify, reorganize, or otherwise change its capital or business structure or
to merge, consolidate, dissolve, liquidate, sell or transfer all or any part of
its business or assets.
3. Cancellation and New Grant of Options. The Committee shall
have the authority to effect, at any time and from time to time, with the
consent of the affected Option holders, the cancellation of any or all
outstanding Options under this Discretionary Option Grant Program and to grant
in substitution therefor new Options under the Plan covering the same or
different number and kind of shares of Stock but having an Option price per
share not less than the Fair Market Value of the option Stock on the new grant
date.
4. Surrender of Options for Cash or Stock.
4.1 Surrender Right. One or more Optionees may be granted the
right, exercisable upon such terms and conditions as the Committee may
establish, to surrender all or part of an unexercised Option under this
Discretionary Option Grant Program in exchange for a distribution from the
Company in an amount equal to the excess of (i) the Fair Market Value (on the
Option surrender date) of the number of shares in which the Optionee is at the
time vested under the surrendered Option (or surrendered portion thereof) over
(ii) the aggregate Option price payable for such vested shares.
4.2 Approval. No such Option surrender shall be effective unless
it is approved by the Committee. If the surrender is so approved, then the
distribution to which the Optionee shall accordingly become entitled under this
Section 4 may be made in shares of Stock valued at Fair Market Value on the
Option surrender date, in cash or partly in shares and partly in cash, as the
Committee shall in its sole discretion deem appropriate.
4.3 Limited Rights. One or more officers of the Company subject
to the short-swing profit restrictions of the Federal securities laws may, in
the Primary Committee's sole discretion, be granted limited stock appreciation
rights in tandem with their outstanding Options under this Discretionary Option
Grant Program. Upon the occurrence of a Hostile Take-Over, each such officer
holding one or more Options with such a limited stock appreciation right shall
have the unconditional right (exercisable for a thirty (30)-day period following
such Hostile TakeOver) to surrender each such Option to the Company, to the
extent the Option is at the time exercisable for vested shares of Stock. In
return for the surrendered Option, the officer shall be entitled to a cash
distribution from the Company in an amount equal to the excess of (i) the
TakeOver Price of the shares of Stock which are at the time vested under each
surrendered Option (or surrendered portion) over (ii) the aggregate Option price
payable for such vested shares. Such cash distribution shall be paid within five
(5) days following the Option surrender date. The Primary Committee shall
pre-approve, at the time the limited right is granted, the subsequent exercise
of that right in accordance with the terms of the grant and provisions of this
paragraph 4.3 of Article Two. No additional approval of the Primary Committee or
the Board shall be required at the time of the actual Option surrender and cash
distribution. The balance of the Option (if any) shall continue in full force
and effect in accordance with the instrument evidencing such grant.
13.
<PAGE> 14
ARTICLE THREE
STOCK ISSUANCE PROGRAM
1. Terms and Conditions of Direct Stock Issuances. Stock may be
issued under this Stock Issuance Program, either through direct and immediate
purchases without any intervening Option grants or as unvested shares issued
upon the exercise of immediately exercisable Options granted under Article Two.
The issued shares shall be evidenced by a Stock Issuance Agreement ("Issuance
Agreement") that complies with the following terms and conditions:
1.1 Consideration.
1.1.1 Stock drawn from the Company's authorized but
unissued shares of Stock ("Newly Issued Shares") shall be issued for one or more
of the following items of consideration which the Committee may deem appropriate
in each individual instance:
(i) cash or cash equivalents (such as a personal check
or bank draft) paid the Company;
(ii) a promissory note payable to the Company's order
in one or more installments, which may be subject to
cancellation in whole or in part upon terms and conditions
established by the Committee; or
(iii) past services rendered to the Company or any
Subsidiary.
1.1.2 Newly Issued Shares must be issued for consideration
with a value not less than one-hundred percent (100%) of the Fair Market Value
of such shares at the time of issuance.
1.1.3 Shares of Stock reacquired by the Company and held
as treasury shares ("Treasury Shares") may be issued for such consideration
(including one or more of the items of consideration specified in paragraph
1.1.1. of this Article Three) as the Committee may deem appropriate. Treasury
Shares may, in lieu of any cash consideration, be issued subject to such vesting
requirements tied to the Participant's period of future Service or the Company's
attainment of specified performance objectives as the Committee may establish at
the time of issuance.
1.2 Vesting Provisions.
1.2.1 The issued Stock may, in the absolute discretion of
the Committee, be fully and immediately vested upon issuance or may vest in one
or more installments over the Participant's period of Service. The elements of
the vesting schedule applicable to any unvested shares of Stock, namely:
(i) the Service period to be completed by the
Participant or the performance objectives to be achieved by
the Company,
14.
<PAGE> 15
(ii) the number of installments in which the shares are
to vest,
(iii) the interval or intervals (if any) which are to
lapse between installments, and
(iv) the effect which death, disability or other event
designated by the Committee is to have upon the vesting
schedule,
shall be determined by the Committee and incorporated into the Issuance
Agreement executed by the Company and the Participant at the time such unvested
shares are issued.
1.3 Stockholder Rights. The Participant shall have full
stockholder rights with respect to any shares of Stock issued to him or her
under this Stock Issuance Program, whether or not his or her interest in those
shares is vested. Accordingly, the Participant shall have the right to vote such
shares and to receive any regular cash dividends paid on such shares. Any new,
additional or different shares of Stock or other property (including money paid
other than as a regular cash dividend) which the Participant may have the right
to receive with respect to his or her unvested shares by reason of any Stock
dividend, Stock split, reclassification of Stock or other similar change in the
Company's capital structure or by reason of any Corporate Transaction shall be
issued, subject to (i) the same vesting requirements applicable to his or her
unvested shares and (ii) such escrow arrangements as the Committee shall deem
appropriate.
1.4 Termination of Service.
1.4.1 Should the Participant cease to remain in Service
while holding one or more unvested shares of Stock, then those shares shall be
immediately surrendered to the Company for cancellation, and the Participant
shall have no further stockholder rights with respect to those shares. To the
extent the surrendered shares were previously issued to the Participant for
consideration paid in cash or cash equivalent (including the Participant's
purchase-money promissory note), the Company shall repay to the Participant the
cash consideration paid for the surrendered shares and shall cancel the unpaid
principal balance of any outstanding purchase-money note of the Participant
attributable to such surrendered shares. The surrendered shares may, at the
Committee's discretion, be retained by the Company as Treasury Shares or may be
retired to authorized but unissued share status.
1.4.2 The Committee may in its discretion elect to waive
the surrender and cancellation of one or more unvested shares of Stock (or other
assets attributable thereto) which would otherwise occur upon the non-completion
of the vesting schedule applicable to such shares. Such waiver shall result in
the immediate vesting of the Participant's interest in the shares of Stock as to
which the waiver applies. Such waiver may be effected at any time, whether
before or after the Participant's cessation of Service or the attainment or
non-attainment of the applicable performance objectives.
2. Corporate Transactions/Changes in Control.
2.1 All unvested shares of Stock outstanding under this Stock
Issuance Program shall immediately vest in full upon the occurrence of a
Corporate Transaction, except to the extent the Committee imposes limitations in
the Issuance Agreement which preclude such accelerated vesting in whole or in
part.
15.
<PAGE> 16
2.2 The Committee shall have the discretionary authority,
exercisable either at the time the unvested shares are issued or at any time
while those shares remain outstanding, to provide for the immediate and
automatic vesting of one or more unvested shares of Stock outstanding under this
Stock Issuance Program at the time of a Change in Control. The Committee shall
also have full power and authority to condition any such accelerated vesting
upon the subsequent termination of the Participant's Service within a specified
period following the Change in Control.
3. Transfer Restrictions/Share Escrow.
3.1 Unvested shares may, in the Committee's discretion, be held
in escrow by the Company until the Participant's interest in such shares vests
or may be issued directly to the Participant with restrictive legends on the
certificates evidencing such unvested shares.
3.2 The Participant shall have no right to transfer any unvested
shares of Stock issued to him or her under this Stock Issuance Program. For
purposes of this restriction, the term "transfer" shall include (without
limitation) any sale, pledge, assignment, encumbrance, gift or other disposition
of such shares, whether voluntary or involuntary. Upon any such attempted
transfer, the unvested shares shall immediately be cancelled, and neither the
Participant nor the proposed transferee shall have any rights with respect to
those shares. However, the Participant shall have the right to make a gift of
unvested shares acquired under this Stock Issuance Program to his or her spouse
or issue, including adopted children, or to a trust established for such spouse
or issue, provided the donee of such shares delivers to the Company a written
agreement to be bound by all the provisions of the Plan and the Issuance
Agreement applicable to the gifted shares.
16.
<PAGE> 17
ARTICLE FOUR
AUTOMATIC OPTION GRANT PROGRAM
1. Eligibility.
1.1 Eligible Optionees. The individuals eligible to receive
automatic Option grants pursuant to the provisions of this Article Four shall be
limited to (i) those individuals who were serving as non-employee Board members
on the date of the 1994 Annual Stockholders Meeting, (ii) those individuals who
are first elected or appointed as non-employee Board members on or after the
date of such Annual Meeting, whether through appointment by the Board or
election by the Company's stockholders, and (iii) those non-employee Board
members who continue to serve on the Board at one or more Annual Stockholders
Meetings beginning with the 1997 Annual Meeting. Any non-employee Board member
eligible to participate in the Automatic Option Grant Program pursuant to the
foregoing criteria shall be designated an Eligible Director for purposes of this
Article Four.
2. Terms and Conditions of Automatic Option Grants.
2.1 Grant Dates. Option grants shall be made under this Article
Four on the dates specified below:
2.1.1 Each individual who was serving as an Eligible
Director on the date of the 1994 Annual Stockholders Meeting was automatically
granted, on such date, a Nonstatutory Option to purchase 33,750 shares of Stock
upon the terms and conditions of this Article Four.
2.1.2 Each individual who first became an Eligible
Director on or after the date of the 1994 Annual Meeting and before March 4,
1997, whether through election by the Company's stockholders or appointment by
the Board, was automatically granted, at the time of such initial election or
appointment, a Nonstatutory Option to purchase 33,750 shares of Stock upon the
terms and conditions of this Article Four.
2.1.3 Each individual who first becomes an Eligible
Director on or after March 4, 1997, whether through election by the Company's
stockholders or appointment by the Board, shall automatically be granted, at the
time of such initial election or appointment, a Nonstatutory Option to purchase
18,000 shares of Stock upon the terms and conditions of this Article Four.
2.1.4 An Eligible Director serving as a non-employee Board
member on March 4, 1997 shall, at each Annual Stockholders Meeting at which he
or she is to continue to serve as a non-employee Board member, beginning with
the Annual Stockholders Meeting held in the calendar year in which the last
installment of the shares of Stock subject to his or her initial 33,750-share
automatic Option grant under paragraph 2.1.1 or 2.1.2 vests, automatically be
granted a Non-Statutory Option to purchase an additional 6,000 shares of Stock.
17.
<PAGE> 18
2.1.5 An Eligible Director who first joins the Board as a
non-employee Board member at any time after March 4, 1997 shall, at each Annual
Stockholders Meeting at which he or she is to continue to serve as a
non-employee Board member, beginning with the Annual Stockholders Meeting held
in the calendar year in which the third installment of the shares of Stock
subject to his or her initial 18,000-share automatic Option grant under
paragraph 2.1.3 vests, automatically be granted a Non-Statutory Option to
purchase an additional 6,000 shares of Stock.
2.1.6 There shall be no limit on the number of such
6,000-share Option grants which any one Eligible Director may receive over his
or her period of continued Board service.
2.2 Adjustments. The number of shares for which the automatic
Option grants are to be made to Eligible Directors shall be subject to periodic
adjustment pursuant to the applicable provisions of paragraph 6.3 of Article
One.
2.3 Option Price. The Option price per share of Stock of each
automatic Option grant made under this Article Four shall be equal to one
hundred percent (100%) of the Fair Market Value per share of Stock on the
automatic grant date.
2.4 Option Term. Each automatic Option grant under this Article
Four shall have a maximum term of ten (10) years measured from the automatic
grant date.
2.5 Exercisability/Vesting. Each automatic Option grant shall be
immediately exercisable for any or all of the option shares. However, any shares
purchased under the Option shall be subject to repurchase by the Company, at the
Option price paid per share, upon the Optionee's cessation of Board service
prior to vesting in those shares in accordance with the schedule below:
2.5.1 Each initial automatic Option grant made pursuant to
paragraph 2.1.1, 2.1.2 or 2.1.3 of this Article Four shall vest, and the
Company's repurchase right shall lapse, in a series of five (5) successive equal
annual installments over the Optionee's period of continued Service as a Board
member, with the first such installment to vest upon Optionee's completion of
one (1) year of Board service measured from the automatic grant date.
2.5.2 Each annual Automatic Option grant made pursuant to
paragraph 2.1.4 or 2.1.5 of Article Four shall vest, and the Company's
repurchase right shall lapse, in a series of five (5) successive equal annual
installments over the Optionee's period of continued Service as a Board member,
with the first such installment to vest upon Optionee's completion of one (1)
year of Board service measured from the automatic grant date.
2.5.3 Vesting of the option shares granted under this
Article Four shall be subject to the acceleration provisions of Section 3 of
this Article Four. No Option grant made under this Automatic Option Grant
Program on or after March 4, 1997 shall vest on an accelerated basis upon the
Optionee's cessation of Board service by reason of death or permanent
disability. Accordingly, no additional option shares shall vest after the
Optionee's cessation of Board service.
18.
<PAGE> 19
2.6 Payment. The Option price shall be payable in one of the
alternative forms specified in paragraph 1.1.2 of Article Two. To the extent the
Option is exercised for any unvested shares, the Optionee must execute and
deliver to the Company a Stock issuance agreement for those unvested shares
which provides the Company with the right to repurchase, at the Option price
paid per share, any unvested shares held by the Optionee at the time of
cessation of Board service and which precludes the sale, transfer or other
disposition of any shares purchased under the Option, to the extent those shares
are subject to the Company's repurchase right.
2.7 Limited Transferability. An automatic Option grant may, in
connection with the Optionee's estate plan, be assigned in whole or in part
during the Optionee's lifetime to one or more members of the Optionee's
immediate family or to a trust established exclusively for one or more such
family members. The assigned portion may only be exercised by the persons or
persons who acquire a proprietary interest in the option pursuant to the
assignment. The terms applicable to the assigned portion shall be the same as
those in effect for the option immediately prior to such assignment and shall be
set forth in such documents issued to the assignee as the Committee may deem
appropriate.
2.8 Termination of Board Service.
2.8.1 Should the Optionee cease service as a Board member
for any reason other than death or permanent disability, while holding any
automatic Option grant under this Article Four, then such individual shall have
a six (6)-month period following the date of such cessation of Board service in
which to exercise that Option for any or all of the option shares in which the
Optionee is vested at the time of such cessation of Board service.
2.8.2 Should the Optionee die while in Board service or
within six (6) months after cessation of Board service, then any automatic
Option grant held by the Optionee at the time of death may subsequently be
exercised, for any or all of the option shares in which the Optionee is vested
at the time of his or her cessation of Board service (less any option shares
subsequently purchased by the Optionee prior to death), by the personal
representative of the Optionee's estate or by the person or persons to whom the
Option is transferred pursuant to the Optionee's will or in accordance with the
laws of descent and distribution. The right to exercise each such Option shall
lapse upon the expiration of the twelve (12)-month period measured from the date
of the Optionee's death.
2.8.3 Should the Optionee become permanently disabled (as
defined in Code Section 22(e)(3)) and cease to serve as a Board member by reason
of such disability, then the Optionee shall have a twelve (12)-month period
following such cessation of Board service in which to exercise his or her
outstanding automatic Option grants for any or all of the option shares in which
the Optionee is vested at the time of his or her cessation of Board service.
2.8.4 Upon the Optionee's cessation of Board service for
any reason, his or her outstanding automatic Option grants shall immediately
terminate and cease to remain outstanding with respect to any option shares in
which the Optionee is not otherwise at that time vested under those Options.
2.8.5 In no event shall any automatic Option grant under
this Article Four remain exercisable after the expiration date of the ten
(10)-year Option term. Upon the expiration of the applicable post-Service
exercise period under paragraphs 2.8.1 through 2.8.3 above or (if
19.
<PAGE> 20
earlier) upon the expiration of the ten (10)-year Option term, the automatic
Option grant shall terminate and cease to remain outstanding for any option
shares in which the Optionee was vested at the time of his or her cessation of
Board Service but for which such Option was not otherwise exercised.
2.9 Stockholder Rights. The holder of an automatic Option grant
under this Article Four shall have none of the rights of a stockholder with
respect to any shares subject to that Option until such individual shall have
exercised the Option and paid the Option price for the purchased shares.
2.10 Remaining Terms. The remaining terms and conditions of each
automatic Option grant shall be as set forth in the form Automatic Stock Option
Agreement attached as Exhibit A to the Plan.
3. Corporate Transactions/Changes in Control/Hostile Take-Overs.
3.1 In the event of any Corporate Transaction, the shares of
Stock at the time subject to each outstanding Option under this Article Four but
not otherwise vested shall automatically vest in full, and the Company's
repurchase right with respect to those shares shall terminate, so that each such
Option shall, immediately prior to the specified effective date for the
Corporate Transaction, become fully exercisable for all of the shares of Stock
at the time subject to that Option and may be exercised for all or any portion
of such shares as fully vested shares of Stock. Immediately following the
consummation of the Corporate Transaction, all automatic Option grants under
this Article Four shall terminate and cease to remain outstanding.
3.2 In connection with any Change in Control, the shares of Stock
at the time subject to each outstanding Option under this Article Four but not
otherwise vested shall automatically vest in full, and the Company's repurchase
right with respect to those shares shall terminate, so that each such Option
shall, immediately prior to the occurrence of such Change in Control, become
fully exercisable for all of the shares of Stock at the time subject to that
Option and may be exercised for all or any portion of such shares as fully
vested shares of Stock. Each such Option shall remain so exercisable until the
expiration or sooner termination of the Option term.
3.3 Upon the occurrence of a Hostile Take-Over, the Optionee
shall have a thirty (30)-day period in which to surrender to the Company any
Option granted to him or her under this Article Four. The Optionee shall in
return be entitled to a cash distribution from the Company in an amount equal to
the excess of (i) the Take-Over Price of the shares of Stock at the time subject
to the surrendered Option (whether or not the Optionee is otherwise at the time
vested in those shares) over (ii) the aggregate Option price payable for such
shares. Such cash distribution shall be paid within five (5) days following the
surrender of the Option to the Company. Stockholder approval of the March 4,
1997 restatement of the Plan shall constitute pre-approval of each option
surrender right subsequently granted under the Automatic Option Grant Program
and the subsequent exercise of that right in accordance with the terms and
provisions of this paragraph 3.3 of Article Three. No additional approval of the
Committee or the Board shall be required in connection with such Option
surrender and cash distribution. The shares of Stock subject to each Option
surrendered in connection with the Hostile Take-Over shall NOT be available for
subsequent issuance under the Plan.
20.
<PAGE> 21
3.4 The automatic Option grants outstanding under this Article
Four shall in no way affect the right of the Company to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets.
21.
<PAGE> 22
ARTICLE FIVE
MISCELLANEOUS
1. Installment Payments, Loans and Guarantees of Loans.
1.1 The Committee may, in its discretion, assist any Optionee or
Participant (other than an Optionee or Participant who is a non-employee member
of the Board) in the exercise of one or more Options granted to such Optionee or
the purchase of one or more shares of Stock issued to such Participant under the
Plan, including the satisfaction of any Federal, state and local income and
employment tax obligations arising therefrom, by (i) authorizing the extension
of a loan from the Company to such Optionee or Participant, (ii) permitting the
Optionee or Participant to pay the Option price or purchase price for the
purchased Stock in installments over a period of years or (iii) authorizing a
guarantee by the Company of a third-party loan to the Optionee or Participant.
The terms of any loan, installment method of payment or guarantee (including the
interest rate and terms of repayment) shall be upon such terms as the Committee
specifies in the applicable Option or Issuance Agreement or otherwise deems
appropriate under the circumstances. Loans, installment payments and guarantees
may be granted with or without security or collateral. However, the maximum
credit available to the Optionee or Participant may not exceed the Option or
purchase price of the acquired shares (less the par value of such shares) plus
any Federal, state and local income and employment tax liability incurred by the
Optionee or Participant in connection with the acquisition of such shares.
1.2 The Committee may, in its absolute discretion, determine that
one or more loans extended under this financial assistance program shall be
subject to forgiveness by the Company in whole or in part upon such terms and
conditions as the Committee may deem appropriate.
2. Amendment of the Plan. The Board shall have complete and
exclusive power and authority to amend or modify the Plan, and the Committee may
amend or modify the terms of any outstanding Options or unvested Stock issuances
under the Plan in any or all aspects whatsoever not inconsistent with the terms
of the Plan. However, no such amendment or modification shall adversely affect
rights and obligations with respect to Options at the time outstanding under the
Plan, nor adversely affect the rights of any Participant with respect to Stock
issued under the Plan prior to such action, unless the Optionee or Participant
consents to such amendment. In addition, certain amendments may require
stockholder approval pursuant to applicable laws or regulations.
3. Use of Proceeds. Any cash proceeds received by the Company
from the sale of shares pursuant to Option grants or direct Stock issuances
under the Plan shall be used for general corporate business.
4. Withholding.
4.1 The Company's obligation to deliver shares of Stock upon the
exercise of Options for such shares or upon the direct issuance or vesting of
such shares under the Plan shall be subject to the satisfaction of all
applicable Federal, state and local income and employment tax withholding
requirements.
22.
<PAGE> 23
4.2 The Committee may, in its discretion and in accordance with
the provisions of this Section 4 and such supplemental rules as the Committee
may from time to time adopt (including applicable safe-harbor provisions of SEC
Rule 16b-3), provide any or all holders of Nonstatutory Options (other than the
automatic Option grants made pursuant to Article Four of the Plan) or unvested
shares under the Stock Issuance Program with the right to use shares of Stock in
satisfaction of all or part of the Federal, state and local income and
employment tax liabilities incurred by such holders in connection with the
exercise of their Options or the vesting of their shares (the "Taxes"). Such
right may be provided to any such holder in either or both of the following
formats:
4.2.1 Stock Withholding. The holder of the Nonstatutory
Option or unvested shares may be provided with the election to have the Company
withhold, from the shares of Stock otherwise issuable upon the exercise of such
Nonstatutory Option or the vesting of such shares, a portion of those shares
with an aggregate Fair Market Value equal to the percentage of the applicable
Taxes (not to exceed one hundred percent (100%)) designated by the holder.
4.2.2 Stock Delivery. The Committee may, in its
discretion, provide the holder of the Nonstatutory Option or the unvested shares
with the election to deliver to the Company, at the time the Nonstatutory Option
is exercised or the shares vest, one or more shares of Stock already held by
such individual with an aggregate Fair Market Value equal to the percentage of
the Taxes incurred in connection with such Option exercise or share vesting (not
to exceed one hundred percent (100%)) designated by the holder.
5. Regulatory Approvals. The implementation of the Plan, the
granting of any Option hereunder and the issuance of Stock upon the exercise or
surrender of any such Option or as a direct issuance under the Plan shall be
subject to the Company's procurement of all approvals and permits required by
regulatory authorities having jurisdiction over the Plan, the Options granted
under it and the Stock issued pursuant to it.
6. No Employment Rights. Nothing in the Plan shall confer upon
the Optionee or the Participant any right to continue in the Service of the
Company (or any Subsidiary employing or retaining such Optionee or Participant)
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Company (or any such Subsidiary) or of the Optionee or
the Participant, which rights are hereby expressly reserved by each, to
terminate the Service of the Optionee or Participant at any time for any reason
whatsoever, with or without cause.
7. Certain Outstanding Options.
7.1 Each Option granted under the Company's Original Plan or the
1980 Burr-Brown Research Corporation Executive Stock Plan which was outstanding
on the Effective Date of this Plan was incorporated into this Plan and treated
as an outstanding Option under this Plan, but each such Option continues to be
governed solely by the terms and conditions of the instrument evidencing such
grant, and nothing in this Plan shall be deemed to affect or otherwise modify
the rights or obligations of the holders of such Options with respect to their
acquisition of shares of Stock thereunder.
23.
<PAGE> 24
7.2 One or more provisions of this Plan, including the
Option/vesting acceleration provisions applicable in the event of a Corporate
Transaction or Change in Control or the limited surrender rights exercisable in
the event of a Hostile Take-Over, may, in the Committee's discretion, be
extended to one or more Options which were outstanding under the Company's
Original Plan or the 1980 Burr-Brown Research Corporation Executive Stock Plan
on the Effective Date of this Plan but which do not otherwise provide for such
benefits.
IN WITNESS WHEREOF, this March 20, 1998 Restatement of the BURR-
BROWN CORPORATION 1993 STOCK INCENTIVE PLAN is hereby declared effective and is
executed as of March 20, 1998 on behalf of the Company by its hereunto duly
authorized officer.
BURR-BROWN CORPORATION
By:________________________________
Title:_____________________________
24.
<PAGE> 1
EXHIBIT 99.8
BURR-BROWN CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
I. PURPOSE OF THE PLAN
This Employee Stock Purchase Plan is intended to promote the
interests of Burr-Brown Corporation by providing eligible employees with the
opportunity to acquire a proprietary interest in the Corporation through
participation in a payroll-deduction based employee stock purchase plan designed
to qualify under Section 423 of the Code.
All share numbers in this plan document reflect the 3-for-2
reverse split of the Common Stock which the Board authorized on February 20,
1998 and which is to be effected in the form of a stock dividend payable on
March 20, 1998 to the Corporation's stockholders of record on March 6, 1998.
Capitalized terms herein shall have the meanings assigned to such
terms in the attached Appendix.
II. ADMINISTRATION OF THE PLAN
The Plan Administrator shall have full authority to interpret and
construe any provision of the Plan and to adopt such rules and regulations for
administering the Plan as it may deem necessary in order to comply with the
requirements of Code Section 423. Decisions of the Plan Administrator shall be
final and binding on all parties having an interest in the Plan.
III. STOCK SUBJECT TO PLAN
A. The stock purchasable under the Plan shall be shares of
authorized but unissued or reacquired Common Stock, including shares of Common
Stock purchased on the open market. The maximum number of shares of Common Stock
which may be issued over the term of the Plan shall not exceed Six Hundred
Thousand (600,000) shares.
B. Should any change be made to the Common Stock by reason of any
stock split, stock dividend, recapitalization, combination of shares, exchange
of shares or other change affecting the outstanding Common Stock as a class
without the Corporation's receipt of consideration, appropriate adjustments
shall be made to (i) the maximum number and class of securities issuable under
the Plan, (ii) the maximum number and class of securities purchasable per
Participant on any one Purchase Date, (iii) the maximum aggregate number and
class of securities purchasable by all Participants on any one Purchase Date and
(iv) the number and class of securities and the price per share in effect under
each outstanding purchase right in order to prevent the dilution or enlargement
of benefits thereunder.
IV. PURCHASE PERIODS
A. Shares of Common Stock shall be offered for purchase under the
Plan through a series of successive purchase periods until such time as (i) the
maximum number of
<PAGE> 2
shares of Common Stock available for issuance under the Plan shall have been
purchased or (ii) the Plan shall have been sooner terminated.
B. Each purchase period shall have a duration of six (6) months.
Purchase periods shall run from the first business day in February to the last
business day in July each year and from the first business day in August each
year to the last business day in January of the following year. The first
purchase period under the Plan shall begin on August 1, 1998 and end on the last
business day in January 1999.
V. ELIGIBILITY
A. Each individual who is an Eligible Employee on the start date
of any purchase period shall be eligible to participate in the Plan for that
purchase period.
B. To participate in the Plan for a particular purchase period,
the Eligible Employee must complete the enrollment forms prescribed by the Plan
Administrator (including a stock purchase agreement and a payroll deduction
authorization) and file such forms with the Plan Administrator (or its
designate) on or before the start date of the purchase period.
VI. PAYROLL DEDUCTIONS
A. The payroll deduction authorized by the Participant for
purposes of acquiring shares of Common Stock under the Plan may be any multiple
of one percent (1%) of the Base Salary paid to the Participant during each
purchase period, up to a maximum of ten percent (10%). The deduction rate so
authorized shall continue in effect for the entire purchase period and for each
subsequent purchase period the Participant remains in the Plan. The Participant
may not increase his or her rate of payroll deduction during a purchase period,
but may effect such increase as of the start date of any subsequent purchase
period following the filing of a new payroll deduction authorization with the
Plan Administrator. However, the Participant may, at any time during the
purchase period, reduce his or her rate of payroll deduction to become effective
as soon as possible after filing the appropriate form with the Plan
Administrator. The Participant may not, however, effect more than one (1) such
reduction per purchase period.
B. Payroll deductions shall begin on the first pay day following
the start date of the purchase period and shall (unless sooner terminated by the
Participant) continue through the pay day ending with or immediately prior to
the last day of the purchase period. The amounts so collected shall be credited
to the Participant's book account under the Plan, but no interest shall be paid
on the balance from time to time outstanding in such account. The amounts
collected from the Participant shall not be required to be held in any
segregated account or trust fund and may be commingled with the general assets
of the Corporation and used for general corporate purposes.
C. Payroll deductions shall automatically cease upon the
termination of the Participant's purchase right in accordance with the
provisions of the Plan.
2.
<PAGE> 3
D. The Participant's acquisition of Common Stock under the Plan
on any Purchase Date shall neither limit nor require the Participant's
acquisition of Common Stock on any subsequent Purchase Date.
VII. PURCHASE RIGHTS
A. GRANT OF PURCHASE RIGHT. A Participant shall be granted a
separate purchase right on the start date of each purchase period in which he or
she participates. The purchase right shall provide the Participant with the
right to purchase shares of Common Stock on the Purchase Date upon the terms set
forth below. The Participant shall execute a stock purchase agreement embodying
such terms and such other provisions (not inconsistent with the Plan) as the
Plan Administrator may deem advisable.
Under no circumstances shall purchase rights be granted under the
Plan to any Eligible Employee if such individual would, immediately after the
grant, own (within the meaning of Code Section 424(d)) or hold outstanding
options or other rights to purchase, stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of stock of the
Corporation or any Corporate Affiliate.
B. EXERCISE OF THE PURCHASE RIGHT. Each purchase right shall be
automatically exercised on the Purchase Date, and shares of Common Stock shall
accordingly be purchased on behalf of each Participant on such date. The
purchase shall be effected by applying the Participant's payroll deductions for
the purchase period ending on such Purchase Date to the purchase of shares of
Common Stock at the purchase price in effect for that purchase period.
C. PURCHASE PRICE. The purchase price per share at which Common
Stock will be purchased on the Participant's behalf on each Purchase Date shall
be equal to eighty-five percent (85%) of the lower of (i) the Fair Market Value
per share of Common Stock on the start date of the purchase period or (ii) the
Fair Market Value per share of Common Stock on that Purchase Date.
D. NUMBER OF PURCHASABLE SHARES. The number of shares of Common
Stock purchasable by a Participant on each Purchase Date shall be the number of
whole shares obtained by dividing the amount collected from the Participant
through payroll deductions during the purchase period ending with that Purchase
Date by the purchase price in effect for such Purchase Date. However, the
maximum number of shares of Common Stock purchasable per Participant on any one
Purchase Date shall not exceed Six Hundred (600) shares, subject to periodic
adjustments in the event of certain changes in the Corporation's capitalization.
In addition, the maximum aggregate number of shares of Common Stock purchasable
by all Participants on any one Purchase Date shall not exceed Sixty Thousand
(60,000) shares, subject to periodic adjustments in the event of certain changes
in the Corporation's capitalization.
E. EXCESS PAYROLL DEDUCTIONS. Any payroll deductions not applied
to the purchase of shares of Common Stock on any Purchase Date because they are
not sufficient to purchase a whole share of Common Stock shall be held for the
purchase of Common Stock on the next Purchase Date. However, any payroll
deductions not applied to the purchase of Common Stock by reason of the
limitation on the maximum number of shares purchasable by
3.
<PAGE> 4
the Participant on the Purchase Date or the limitation on the maximum number of
shares purchasable in the aggregate on the Purchase Date by all Participants
shall be promptly refunded.
F. TERMINATION OF PURCHASE RIGHT. The following provisions shall
govern the termination of outstanding purchase rights:
(i) A Participant may, at any time prior to the last
five (5) business days of the purchase period, terminate his or her
outstanding purchase right by filing the appropriate form with the Plan
Administrator (or its designate), and no further payroll deductions
shall be collected from the Participant with respect to the terminated
purchase right. Any payroll deductions collected during the purchase
period in which such termination occurs shall, at the Participant's
election, be immediately refunded or held for the purchase of shares on
the next Purchase Date. If no such election is made at the time the
purchase right is terminated, then the payroll deductions collected with
respect to the terminated right shall be refunded as soon as possible.
(ii) The termination of such purchase right shall be
irrevocable, and the Participant may not subsequently rejoin the
purchase period for which the terminated purchase right was granted. In
order to resume participation in any subsequent purchase period, such
individual must re-enroll in the Plan (by making a timely filing of the
prescribed enrollment forms) before the start date of the new purchase
period.
(iii) Should the Participant cease to remain an
Eligible Employee for any reason (including death, disability or change
in status) while his or her purchase right remains outstanding, then
that purchase right shall immediately terminate, and all of the
Participant's payroll deductions for the purchase period in which the
purchase right so terminates shall be immediately refunded. However,
should the Participant cease to remain in active service by reason of an
approved unpaid leave of absence, then the Participant shall have the
right, exercisable up until the last business day of the purchase period
in which such leave commences, to (a) withdraw all the payroll
deductions collected to date on his or her behalf during such purchase
period or (b) have such funds held for the purchase of shares on the
next scheduled Purchase Date. In no event, however, shall any further
payroll deductions be collected on the Participant's behalf during such
leave. Upon the Participant's return to active service, his or her
payroll deductions under the Plan shall automatically resume at the rate
in effect at the time the leave began.
G. CORPORATE TRANSACTION. Each outstanding purchase right shall
automatically be exercised, immediately prior to the effective date of any
Corporate Transaction, by applying the payroll deductions of each Participant
for the purchase period in which such Corporate Transaction occurs to the
purchase of whole shares of Common Stock at a purchase price per share equal to
eighty-five percent (85%) of the lower of (i) the Fair Market Value per share of
Common Stock on the start date of the purchase period in which such Corporate
Transaction occurs or (ii) the Fair Market Value per share of Common Stock
immediately prior to the effective date of such Corporate Transaction. However,
the applicable limitation on the
4.
<PAGE> 5
number of shares of Common Stock purchasable per Participant shall continue to
apply to any such purchase, but not the limitation on the aggregate number of
shares purchasable by all Participants.
The Corporation shall use its best efforts to provide at least
ten (10) days prior written notice of the occurrence of any Corporate
Transaction, and Participants shall, following the receipt of such notice, have
the right to terminate their outstanding purchase rights prior to the effective
date of the Corporate Transaction.
H. PRORATION OF PURCHASE RIGHTS. Should the total number of
shares of Common Stock which are to be purchased pursuant to outstanding
purchase rights on any particular date exceed either (i) the number of shares
then available for issuance under the Plan or (ii) the maximum aggregate number
of shares purchasable by all Participants on any one Purchase Date, then the
Plan Administrator shall make a pro-rata allocation of the available shares on a
uniform and nondiscriminatory basis, and the payroll deductions of each
Participant, to the extent in excess of the aggregate purchase price payable for
the Common Stock pro-rated to such individual, shall be refunded.
I. ASSIGNABILITY. The purchase right shall be exercisable only by
the Participant and shall not be assignable or transferable by the Participant.
J. STOCKHOLDER RIGHTS. A Participant shall have no stockholder
rights with respect to the shares subject to his or her outstanding purchase
right until the shares are purchased on the Participant's behalf in accordance
with the provisions of the Plan and the Participant has become a holder of
record of the purchased shares.
VIII. ACCRUAL LIMITATIONS
A. No Participant shall be entitled to accrue rights to acquire
Common Stock pursuant to any purchase right outstanding under this Plan if and
to the extent such accrual, when aggregated with (i) rights to purchase Common
Stock accrued under any other purchase right granted under this Plan and (ii)
similar rights accrued under other employee stock purchase plans (within the
meaning of Code Section 423) of the Corporation or any Corporate Affiliate,
would otherwise permit such Participant to purchase more than Twenty-Five
Thousand Dollars ($25,000) worth of stock of the Corporation or any Corporate
Affiliate (determined on the basis of the Fair Market Value of such stock on the
date or dates such rights are granted) for each calendar year such rights are at
any time outstanding.
B. For purposes of applying such accrual limitations, the
following provisions shall be in effect:
(i) The right to acquire Common Stock under each
outstanding purchase right shall accrue on the Purchase Date in effect
for the purchase period for which such right is granted.
(ii) No right to acquire Common Stock under any
outstanding purchase right shall accrue to the extent the Participant
has already accrued in the same calendar year the right to acquire
Common Stock under one
5.
<PAGE> 6
(1) or more other purchase rights at a rate equal to Twenty-Five
Thousand Dollars ($25,000) worth of Common Stock (determined on the
basis of the Fair Market Value per share on the date or dates of grant)
for each calendar year such rights were at any time outstanding.
C. If by reason of such accrual limitations, any purchase right
of a Participant does not accrue for a particular purchase period, then the
payroll deductions which the Participant made during that purchase period with
respect to such purchase right shall be promptly refunded.
D. In the event there is any conflict between the provisions of
this Article and one or more provisions of the Plan or any instrument issued
thereunder, the provisions of this Article shall be controlling.
IX. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Plan was adopted by the Board on February 20, 1998 and
shall become effective on the Effective Date, provided the implementation of the
Plan is approved by the Corporation's stockholders at the 1998 Annual Meeting.
No purchase rights granted under the Plan shall be exercised, and no shares of
Common Stock shall be issued hereunder, until the Corporation shall have
complied with all applicable requirements of the 1933 Act (including the
registration of the shares of Common Stock issuable under the Plan on a Form S-8
registration statement filed with the Securities and Exchange Commission), all
applicable listing requirements of any stock exchange (or the Nasdaq National
Market, if applicable) on which the Common Stock is listed for trading and all
other applicable requirements established by law or regulation.
B. Unless sooner terminated by the Board, the Plan shall
terminate upon the earliest to occur of (i) the last business day in July 2008,
(ii) the date on which all shares available for issuance under the Plan shall
have been sold pursuant to purchase rights exercised under the Plan or (iii) the
date on which all purchase rights are exercised in connection with a Corporate
Transaction. No further purchase rights shall be granted or exercised, and no
further payroll deductions shall be collected, under the Plan following such
termination.
X. AMENDMENT OF THE PLAN
The Board may alter, amend, suspend or discontinue the Plan at
any time to become effective immediately following the close of any purchase
period. However, the Board may not, without the approval of the Corporation's
stockholders, (i) increase the number of shares of Common Stock issuable under
the Plan, except for permissible adjustments in the event of certain changes in
the Corporation's capitalization, (ii) alter the purchase price formula so as to
reduce the purchase price payable for the shares of Common Stock purchasable
under the Plan, or (iii) modify the requirements for eligibility to participate
in the Plan.
XI. GENERAL PROVISIONS
A. All costs and expenses incurred in the administration of the
Plan shall be paid by the Corporation.
6.
<PAGE> 7
B. Nothing in the Plan shall confer upon the Participant any
right to continue in the employ of the Corporation or any Corporate Affiliate
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Corporation (or any Corporate Affiliate employing such
person) or of the Participant, which rights are hereby expressly reserved by
each, to terminate such person's employment at any time for any reason, with or
without cause.
C. The provisions of the Plan shall be governed by the laws of
the State of Arizona without resort to that State's conflict-of-laws rules.
7.
<PAGE> 8
APPENDIX
The following definitions shall be in effect under the Plan:
A. BASE SALARY shall mean the regular base salary paid to a
Participant by one or more Participating Companies during such individual's
period of participation in the Plan before deduction of any pre-tax
contributions made by the Participant to any Code Section 401(k) salary deferral
plan or any Code Section 125 cafeteria benefit program now or hereafter
established by the Corporation or any Corporate Affiliate. The following items
of compensation shall NOT be included in Base Salary: (i) all overtime payments,
bonuses, commissions (other than those functioning as base salary equivalents),
profit-sharing distributions and other incentive-type payments and (ii) any and
all contributions (other than Code Section 401(k) or Code Section 125
contributions) made on the Participant's behalf by the Corporation or any
Corporate Affiliate under any employee benefit or welfare plan now or hereafter
established.
B. BOARD shall mean the Corporation's Board of Directors.
C. CODE shall mean the Internal Revenue Code of 1986, as amended.
D. COMMON STOCK shall mean the Corporation's common stock.
E. CORPORATE AFFILIATE shall mean any parent or subsidiary
corporation of the Corporation (as determined in accordance with Code Section
424), whether now existing or subsequently established.
F. CORPORATE TRANSACTION shall mean either of the following
stockholder- approved transactions to which the Corporation is a party:
(i) a merger or consolidation in which securities
possessing fifty percent (50%) or more of the total combined voting
power of the Corporation's outstanding securities are transferred to a
person or persons different from the persons holding those securities
immediately prior to such transaction, or
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Corporation in complete
liquidation or dissolution of the Corporation.
G. CORPORATION shall mean Burr-Brown Corporation, a Delaware
corporation and any corporate successor to all or substantially all of the
assets or voting stock of Burr-Brown Corporation which shall by appropriate
action adopt the Plan.
H. EFFECTIVE DATE shall mean the August 1, 1998 effective date of
the Plan, provided the implementation of the Plan is approved by the
Corporation's stockholders at the 1998 Annual Meeting.
A-1.
<PAGE> 9
I. ELIGIBLE EMPLOYEE shall mean any person who is employed by a
Participating Corporation on a basis under which he or she is regularly expected
to render more than twenty (20) hours of service per week for more than five (5)
months per calendar year for earnings considered wages under Code Section
3401(a).
J. FAIR MARKET VALUE per share of Common Stock on any relevant
date shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the
Nasdaq National Market, then the Fair Market Value shall be the closing
selling price per share of Common Stock on the date in question, as such
price is reported by the National Association of Securities Dealers on
the Nasdaq National Market. If there is no closing selling price for the
Common Stock on the date in question, then the Fair Market Value shall
be the closing selling price on the last preceding date for which such
quotation exists.
(ii) If the Common Stock is at the time listed on any
Stock Exchange, then the Fair Market Value shall be the closing selling
price per share of Common Stock on the date in question on the Stock
Exchange determined by the Plan Administrator to be the primary market
for the Common Stock, as such price is officially quoted in the
composite tape of transactions on such exchange. If there is no closing
selling price for the Common Stock on the date in question, then the
Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
K. 1933 ACT shall mean the Securities Act of 1933, as amended.
L. PARTICIPANT shall mean any Eligible Employee of a
Participating Corporation who is actively participating in the Plan.
M. PARTICIPATING CORPORATION shall mean the Corporation and such
Corporate Affiliate or Affiliates as may be authorized from time to time by the
Board to extend the benefits of the Plan to their Eligible Employees. The
Participating Corporations in the Plan as of the Effective Date are listed in
attached Schedule A.
N. PLAN shall mean the Corporation's Employee Stock Purchase
Plan, as set forth in this document.
O. PLAN ADMINISTRATOR shall mean the committee of two (2) or more
non-employee Board members appointed by the Board to administer the Plan.
P. PURCHASE DATE shall mean the last business day of each
purchase period. The initial Purchase Date shall be January 31, 1999.
Q. STOCK EXCHANGE shall mean either the American Stock Exchange
or the New York Stock Exchange.
A-2.
<PAGE> 1
Exhibit 99.9
BURR-BROWN CORPORATION
EMPLOYEE STOCK PURCHASE PLAN ("ESPP")
ENROLLMENT/CHANGE FORM
<TABLE>
<CAPTION>
Action Complete Sections:
------ ------------------
<S> <C> <C>
SECTION 1: [ ] New Enrollment 2, 3, 7 and sign attached
- ---------- Stock Purchase Agreement
ACTION
[ ] Change Payroll Deductions 2, 4, 7
[ ] Terminate Payroll Deductions 2, 5, 7
[ ] Leave of Absence 2, 6, 7
========================================================================================================
SECTION 2: Name
- ---------- --------------------------------------------------------------------------------
PERSONNEL Last First MI Dept.
DATA
Home Address
------------------------------------------------------------------------
City State Zip Code
Social Security #: [ ][ ][ ]-[ ][ ]-[ ][ ][ ][ ]
========================================================================================================
SECTION 3: Effective with the Purchase Payroll Deduction Amount: % of base salary*
- ---------- Period Beginning: ----
NEW [ ] February 1, 199_ *Must be a multiple of 1% up to a maximum of 10%
ENROLLMENT [ ] August 1, 199_ of base salary
[ ] Initial Purchase Period
========================================================================================================
SECTION 4: Effective with the I authorize the following new level of payroll
- ---------- Pay Period Beginning: deductions: % of base salary*
CHANGE -----
PAYROLL -----------------------
DEDUCTIONS Month, Day and Year
* Must be a multiple of 1% up to a maximum of
10% of base salary
NOTE: You may reduce your rate of payroll deductions once per purchase period to
become effective as soon as possible following the filing of the change form.
You may also increase your rate of payroll deductions to become effective
as the start date of the next purchase period.
========================================================================================================
SECTION 5: Effective with the Your election to terminate your payroll
- ---------- Pay Period Beginning: deductions for the balance of the purchase
TERMINATE period cannot be changed, and you may not
PAYROLL ----------------------- rejoin the purchase period at a later date.
DEDUCTIONS Month, Day and Year You will not be able to resume participation
in the ESPP until a new purchase period begins.
In connection with my voluntary termination of payroll deductions, I elect the
following action with respect to my ESPP payroll deductions to date in the current
payment period:
[ ] Purchase shares of Burr-Brown at the end of the period
OR
[ ] Refund ESPP payroll deductions collected
NOTE: If your employment terminates for any reason or your eligibility status changes
<20 hrs/wk or <5 months/yr), you will immediately cease to participate in the
ESPP, and your ESPP payroll deductions collected in that purchase period will
automatically be refunded to you.
========================================================================================================
SECTION 6: In connection with my unpaid leave of absence, I elect the following action with
- ---------- respect to my ESPP payroll deductions to date in the current purchase period:
LEAVE OF
ABSENCE [ ] Purchase shares of Burr-Brown at the end of the period
OR
[ ] Refund ESPP payroll deductions collected
NOTE: If you take an unpaid leave of absence, your payroll deductions will immediately
cease.
========================================================================================================
SECTION 7:
- ----------
AUTHORIZATION
I hereby authorize the specific action or actions indicated above.
- -------------------------- -------------------------------------------------
Date Signature of Employee
</TABLE>
<PAGE> 1
Exhibit 99.10
BURR-BROWN CORPORATION
STOCK PURCHASE AGREEMENT
I hereby elect to participate in the Employee Stock Purchase Plan (the
"ESPP") for the purchase period specified below, and I hereby subscribe to
purchase shares of Common Stock of Burr-Brown Corporation (the "Corporation") in
accordance with the provisions of this Agreement and the ESPP. I hereby
authorize payroll deductions from each of my paychecks following my entry into
the ESPP in the 1% multiple of my salary (not to exceed a maximum of 10%)
specified in my attached Enrollment Form.
Purchase periods under the ESP will run from the first business day in
February to the last business day in July each year and from the first business
day in August each year to the last business day in January of the following
year. The initial purchase period under the ESPP will begin on the first
business day in August 1998 and end on the last business day in January 1999.
My participation will automatically remain in effect from one purchase period
to the next in accordance with this Agreement and my payroll deduction
authorization, unless I withdraw from the ESPP or change the rate of my payroll
deduction or unless my employment status changes. I may reduce the rate of my
payroll deductions once per purchase period, and I may increase the rate of my
payroll deductions to become effective at the start of any subsequent purchase
period.
My payroll deductions will be accumulated for the purchase of shares of
the Corporation's Common Stock on the last business day of each purchase
period. The purchase price per share will be 85% of the lower of (i) the fair
market value per share of Common Stock on the start date of the purchase period
or (ii) the fair market value per share of Common Stock on the purchase date. I
will also be subject to ESPP restrictions (i) limiting the maximum number of
shares which I may purchase on any one purchase date to 600 shares, (ii)
limiting the maximum number of shares which may be purchased by all
participants on any one purchase date to 60,000 shares in the aggregate and
(iii) prohibiting me from purchasing more than $25,000 worth of Common Stock
for each calendar year my purchase right remains outstanding.
I may withdraw from the ESPP at any time prior to the last five (5)
business days of a purchase period and elect either to have the Corporation
refund all my payroll deductions for that purchase period or to have those
payroll deductions applied to the purchase of shares of the Corporation's
Common Stock at the end of such period. However, I may not rejoin that
particular purchase period at any later date. Upon the termination of my
employment for any reason (including death or disability) or my loss of
eligible employee status, my participation in the ESPP will immediately cease
and all my payroll deductions for the purchase period in which my employment
terminates or my loss of eligibility occurs will automatically be refunded.
If I take an unpaid leave of absence, my payroll deductions will
immediately cease, and any payroll deductions for the purchase period in which
my leave begins will, at my election, either be refunded or applied to the
purchase of shares of Common Stock at the end of that purchase period. Upon my
return to active service, my payroll deductions will automatically resume at
the rate in effect when my leave began.
A stock certificate for the shares purchased on my behalf at the end of
each purchase period will automatically be deposited into a brokerage account
which the Corporation will open on my behalf. I will notify the Corporation of
any sale or disposition of my ESPP shares, and I will satisfy all applicable
income and employment tax withholding requirements at the time of such sale or
disposition.
The Corporation has the right, exercisable in its sole discretion, to
amend or terminate the ESPP at any time, with such amendment or termination to
become effective immediately following the exercise of outstanding purchase
rights at the end of any current purchase period. Should the Corporation elect
to terminate the ESPP, I will have no further rights to purchase shares of
Common Stock pursuant to this Agreement.
I have received a copy of the Question and Answer Summary for the ESPP
which summarizes the major features of the ESPP. I have read this Agreement and
the Question and Answer Summary and hereby agree to be bound by the terms of
both this Agreement and the ESPP. The effectiveness of this Agreement is
dependent upon my eligibility to participate in the ESPP.
Date: , 19 ------------------------------------
------------ -- Signature of Employee
Start Date of
Purchase Period: , 19 Printed Name:
---------- -- -----------------------
