<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 29, 1997
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CERPROBE CORPORATION
(Exact name of Registrant as specified in charter)
DELAWARE 86-0312814
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1150 NORTH FIESTA BOULEVARD, GILBERT, ARIZONA 85233-2237
(Address of Principal Executive Office) (Zip Code)
CERPROBE CORPORATION
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full title of plan)
C. ZANE CLOSE
CHAIRMAN OF THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
CERPROBE CORPORATION
1150 NORTH FIESTA BOULEVARD
GILBERT, ARIZONA 85233-2237
(Name and address of agent for service)
(602) 333-1500
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) PRICE FEE
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 150,000 $16.84 $2,526,000 $745.17
$0.05 par value
=====================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933,
this registration statement also covers an indeterminate number of shares
as may be required by reason of any stock dividend, recapitalization,
stock split, reorganization, merger, consolidation, combination or
exchange of shares or other similar change affecting the stock.
(2) Estimated pursuant to Rules 457(h) and 457(c) solely for the purpose of
calculating the registration fee using the average of the high and low
prices of the Registrant's Common Stock on December 22, 1997.
Exhibit Index on Page 7
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and
2, will be delivered to participants in accordance with Form S-8 and Rule 428
under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Cerprobe Corporation (the
"Company") with the Securities and Exchange Commission and are hereby
incorporated by reference into this Registration Statement:
(a) the Company's prospectus dated September 24, filed as of September
24, 1997 pursuant to Rule 424(b) under the Securities Act of 1933,
as amended.
(b) the Company's Form 8-K Report filed as of January 30, 1997.
(c) the Company's Form 8-K/A Report filed as of March 31, 1997.
(d) the Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1997, filed as of March 31, 1997.
(e) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1997, filed as of May 15, 1997.
(f) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1997, filed as of August 7, 1997.
(g) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1997, filed as of November 14, 1997.
(h) the description of the Company's Common Stock contained in the
Company's Form 8-A/A, dated March 25, 1997, filed as of March 27,
1997 pursuant to Section 12(g) of the Securities Exchange Act of
1934.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing 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 or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
2
<PAGE> 3
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 Company's First Restated Certificate of Incorporation (the "Restated
Certificate") provides for indemnification of directors and officers of the
Company to the fullest extent permitted by Delaware law. Under Article VI of the
Company's Restated Certificate, the Company must indemnify and advance expenses,
to the fullest extent permitted by the Delaware General Corporation Law, to each
person who is or was a director, officer, agent or employee of the Company, or
who serves or served any other enterprise or organization at the request of the
Company (an "Indemnitee").
An Indemnitee also may be indemnified under Delaware Law against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement if
he or she acted in good faith and in a manner he or she reasonably believed to
be in, or not opposed to, the best interests of the Company, and, with respect
to any criminal action, had no reasonable cause to believe his or her conduct
was unlawful.
An Indemnitee also may be indemnified under Delaware Law against expenses
(including attorneys' fees) actually and reasonably incurred in the defense or
settlement of a suit by or in the right of the Company if he or she acted in
good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interest of the Company, except that no indemnification may
be made if the Indemnitee is adjudged to be liable to the Company, unless a
court determines that such Indemnitee is entitled to indemnification for such
expenses which the Court deems proper.
Also under Delaware Law, expenses incurred by an officer or director in
defending a civil or criminal action, suit or proceeding may be paid by the
Company in advance of the final disposition of the suit, action or proceeding
upon receipt of an undertaking by or on behalf of the officer or director to
repay such amount if it is ultimately determined that he or she is not entitled
to be indemnified by the Company. The Company may also advance expenses incurred
by other employees and agents of the Company upon such terms and conditions, if
any, that the board of directors of the Company deems appropriate.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index is located on page 7.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
3
<PAGE> 4
(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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for purposes of determining any liability under the
Securities Act of 1933, 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
4
<PAGE> 5
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than 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
Act and will be governed by the final adjudication of such issue.
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Gilbert, State of Arizona, on this 24th day of
December, 1997.
CERPROBE CORPORATION, a Delaware corporation
By: /s/ C. Zane Close
-------------------------------
C. Zane Close
Its: President and Chief Executive Officer
KNOW ALL BY PERSONS BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints, jointly and severally, C. Zane Close and
Randal L. Buness, and each of them, as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might and could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name and Signature Title Date
- ------------------ ----- ----
<S> <C> <C>
/s/ Ross J. Mangano Chairman of the Board of Directors December 24, 1997
- ------------------------
Ross J. Mangano
/s/ C. Zane Close President, Chief Executive Officer December 24, 1997
- ------------------------ and Director (Principal Executive
C. Zane Close Officer)
/s/ Randal L. Buness Vice President, Chief Financial December 24, 1997
- ------------------------ Officer, Secretary, and Treasurer
Randal L. Buness (Principal Financial and Accounting
Officer)
/s/ Kenneth W. Miller Director December 24, 1997
- ------------------------
Kenneth W. Miller
/s/ Donald F. Walter Director December 24, 1997
- ------------------------
Donald F. Walter
/s/ William A. Fresh Director December 24, 1997
- ------------------------
William A. Fresh
</TABLE>
6
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Page or Method of Filing
- -------------- ----------- ------------------------
<S> <C> <C>
5 Opinion of Snell & Wilmer
L.L.P.
10 Cerprobe Corporation 1997
Employee Stock Purchase Plan
23.1 Independent Auditors' Consent
23.2 Consent of Snell & Wilmer Included in Exhibit 5
L.L.P.
24 Powers of Attorneys of Directors
and Executive Officers (included
on the Signature Page of this
Registration Statement)
</TABLE>
7
<PAGE> 1
EXHIBIT 5
December 24, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: CERPROBE CORPORATION 1997 EMPLOYEE STOCK PURCHASE PLAN
Ladies and Gentlemen:
We have acted as counsel to Cerprobe Corporation, a Delaware corporation
(the "Company"), in connection with its Registration Statement on Form S-8 (the
"Registration Statement") filed under the Securities Act of 1933, relating to
the registration of 150,000 shares of its Common Stock, $.05 par value (the
"Shares"), issuable pursuant to the Company's Employee Stock Purchase Plan
(the "Plan").
In that connection, we have examined such documents, corporate records,
and other instruments as we have deemed necessary or appropriate for purposes of
this opinion, including the Restated Certificate of Incorporation and the Bylaws
of the Company.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly organized and is validly existing as a
corporation under the laws of the State of Delaware.
2. The Shares, when issued and sold in accordance with the terms of the
Plan, will be validly issued, fully paid, and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
SNELL & WILMER L.L.P.
8
<PAGE> 1
Exhibit 10
CERPROBE CORPORATION
1997 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
PURPOSE
1.1 Name. This Stock Purchase Plan shall be known as the Cerprobe
Corporation 1997 Employee Stock Purchase Plan (the "Plan").
1.2 Purpose. The Plan is intended to provide a method whereby employees of
Cerprobe Corporation, a Delaware corporation, and each Subsidiary Corporation
that has agreed, with Cerprobe's Corporation's consent, to participate in the
Plan (hereinafter referred to, unless the context otherwise requires, as the
"Company") will have an opportunity to acquire a proprietary interest in the
Company through the purchase of shares of the Common Stock of the Company.
1.3 Qualifications. It is the intention of the Company to have the Plan
qualify as an "employee stock purchase plan" under section 423 of the Internal
Revenue Code of 1986, as amended (the "Code"). The provisions of the Plan shall
be construed in a manner consistent with the requirements of that section of the
Code.
ARTICLE II
DEFINITIONS
2.1 Base Pay. "Base Pay" shall mean regular straight-time earnings
excluding payments for overtime, shift premium bonuses, "skill-based" pay and
other special payments, commissions (unless such commissions represent the
primary source of compensation, as determined by the Committee) and other
marketing incentive payments.
2.2 Committee. "Committee" shall mean the individuals described in Article
XI.
2.3 Employee. "Employee" shall mean any person who is customarily employed
on a full-time or part-time basis by the Company and is regularly scheduled to
work more than 20 hours per week.
2.4 Stock. "Stock" shall mean the Common Stock of the Company, par value
five cents ($.05).
2.5 Subsidiary Corporation. "Subsidiary Corporation" shall mean any
present or future corporation that (i) is a "subsidiary corporation," as that
term is defined in Code section 424(f), of Cerprobe Corporation and (ii) is
designated as a participant in the Plan by the Committee.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
<PAGE> 2
3.1 Initial Eligibility. Any Employee who has completed one year of
continuous employment and is employed by the Company on the date such Employee's
participation in the Plan is to become effective shall be eligible to
participate in Offerings under the Plan which commence on or after such one year
employment period has concluded.
3.2 Leave of Absence. For purposes of participation in the Plan, a person
on leave of absence shall be deemed to be an Employee for the first 90 days of
such leave of absence and, except as otherwise provided by the Committee and
unless such Employee shall have returned to regular full-time or part-time
employment (as the case may be) prior to the close of business on such 90th day,
such Employee's employment shall be deemed to have terminated at the close of
business on the 90th day of such leave of absence. Termination by the Company of
any Employee's leave of absence, other than termination of such leave of absence
on return to full-time or part-time employment, shall terminate an Employee's
employment for all purposes of the Plan and shall terminate such Employee's
participation in the Plan and right to exercise any option.
3.3 Restrictions on Participation. Notwithstanding any provision of the
Plan to the contrary, no Employee shall be granted an option to participate in
the Plan:
(a) if, immediately after the grant, such Employee would own Stock
and/or hold outstanding options to purchase Stock that would cause the Employee
to possess five percent or more of the total combined voting power or value of
all classes of Stock of the Company (for purposes of this paragraph, the rules
of section 424(d) of the Code shall apply in determining stock ownership of any
Employee); or
(b) which permits such Employee's rights to purchase Stock under all
Employee stock purchase plans of the Company to accrue at a rate which exceeds
$25,000 in fair market value of the Stock (determined at the time such option is
granted) for each calendar year in which such option is outstanding.
3.4 Commencement of Participation. An eligible Employee may become a
participant by completing the enrollment forms prescribed by the Committee
(including a purchase agreement and a payroll deduction authorization) and
filing such forms with the designated office of the Company prior to the
Offering Commencement Date for the next scheduled Offering (as such terms are
defined below). Payroll deductions for a participant shall commence on the next
scheduled Offering Commencement Date when such Employee's authorization for a
payroll deduction becomes effective and shall continue in effect for the term of
this Plan, except to the extent such payroll deduction is changed in accordance
with this Section 3.4, or terminated in accordance with Article VIII. The
participant may, at any time, increase or decrease the rate of the participant's
payroll deduction by filing the appropriate form with the designated office of
the Company. The new rate of payroll deduction shall become effective as of the
next applicable Offering Commencement Date.
ARTICLE IV
2
<PAGE> 3
OFFERINGS
4.1 Offerings. The Plan will be implemented by a series of successive
six-month offerings of the Company's Stock (the "Offerings"), the first Offering
beginning on January 1, 1998 and ending June 30, 1998. As used in the Plan,
"Offering Commencement Date" means, in the case of the first Offering, January
1, 1998, and in the case of subsequent Offerings, the July 1 or January 1, as
the case may be, on which the particular Offering begins. The term "Offering
Termination Date" means the June 30 or December 31, as the case may be, on which
the particular Offering terminates.
ARTICLE V
PAYROLL DEDUCTIONS
5.1 Amount of Deduction. At the time an Employee files an authorization
for payroll deduction and becomes a participant in the Plan, the Employee shall
elect to have deductions made from the Employee's pay on each payday during the
time the Employee is a participant in an Offering. The deductions shall be at
the rate of 1, 2, 3, 4, 5, 6, 7, 8, 9, or 10 percent of such Employee's Base Pay
in effect during such Offering; provided however, that prior to any Offering
Commencement Date, the Committee shall have the discretion to limit deductions
to less than 10 percent (but no less than 5 percent) for any Offering.
5.2 Calculation of Base Pay. An Employee's Base Pay during the period of
an Offering shall be determined by multiplying such Employee's normal weekly
rate of pay (as in effect on the last day prior to an Offering Commencement
Date) by 26 or the Employee's normal hourly rate of pay by 1,040. In the case of
an Employee designated by the Company as "part-time," such Employee's Base Pay
during the period of an Offering shall be assumed to be 20 hours per week. In
calculating an Employee's normal weekly rate of pay under this Section 5.2,
retroactive adjustments occurring during an Offering which are retroactive to
the last day prior to the Commencement Date of that particular Offering shall be
taken into account. In addition, if a participant's Base Pay includes
commissions, the Committee may set such Employee's Base Pay based upon averages
and standards as determined in the discretion of the Committee.
5.3 Participant Accounts. All payroll deductions made for a participant
shall be credited to such Employee's account under the Plan. A participant may
not make any separate cash payment into such account except when on leave of
absence and then only as provided in Section 5.5.
5.4 Changes in Payroll Deductions. A participant may discontinue
participation in the Plan, but no other change can be made during an Offering
and, specifically, a participant may not alter the amount of such participant's
payroll deductions for that Offering. Upon a participant's discontinuance of
contributions, the participant may elect to either withdraw as provided in
Article VIII or retain amounts in the participant's account
3
<PAGE> 4
in the Plan, which shall be used to purchase Stock at the end of the Offering
Period.
5.5 Leave of Absence. If a participant goes on a leave of absence, such
participant shall have the right to elect: (a) to withdraw the balance in such
participant's account pursuant to Section 8.1 hereof; (b) to discontinue
contributions to the Plan but remain a participant in the Plan; or (c) to remain
a participant in the Plan during such leave of absence, to authorize deductions
to be made from payments by the Company to the participant during such leave of
absence and to make cash payments to the Plan at the end of each payroll period
to the extent that amounts payable by the Company to such participant are
insufficient to meet such participant's authorized Plan deductions.
ARTICLE VI
GRANTING OF OPTION
6.1 Number of Option Shares. On each Offering Commencement Date, a
participating Employee shall be deemed to have been granted an option to
purchase the number of shares of the Company's Stock that may be purchased at
the purchase price specified in Section 6.2 with the aggregate amount
contributed by the Employee during the Offering; provided that the number of
shares of the Company's Stock subject to the Employees' option for any Offering
shall not exceed the number derived by dividing $12,500 by 100% of the closing
price of the Stock on the applicable Offering Commencement Date or the nearest
prior business day on which trading occurred on the NASDAQ National Market
System.
6.2 Option Price. The option price of Stock purchased with payroll
deductions made during each Offering to a participant therein shall be the
lesser of (i) 85 percent of the closing price of the Stock on the applicable
Offering Commencement Date or the nearest prior business day on which trading
occurred on the NASDAQ National Market System, or (ii) 85 percent of the closing
price of the Stock on the applicable Offering Termination Date or the nearest
prior business day on which trading occurred on the NASDAQ National Market
System.
ARTICLE VII
EXERCISE OF OPTION
7.1 Automatic Exercise. Unless participant gives written notice to the
Company as hereinafter provided, such participant's option for the purchase of
Stock granted under Section 6.1 hereof will be deemed to have been exercised
automatically on the Offering Termination Date applicable to such Offering for
the purchase of the number of full shares of stock which the accumulated payroll
deductions in such Employee's account at that time will purchase at the
applicable option price (but not in excess of the number of shares for which
options have been granted to the Employee pursuant to Section 6.1 hereof), and
any excess in such Employee's account at that time will be returned to the
participant.
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<PAGE> 5
7.2 Fractional Shares. Fractional shares will not be issued under the Plan
and any accumulated payroll deductions which would have been used to purchase
fractional shares will be held in the Employee's account to be used to purchase
Stock in a subsequent Offering.
7.3 Exercisability of Option. During participant's lifetime, options held
by such participant shall be exercisable only by that participant.
7.4 Withdrawals and Transfers of Stock. Shares of Stock may be withdrawn
from a participant's account, in which case one or more certificates for whole
shares may be issued in the name of, and delivered to, the participant, with
such participant receiving cash in lieu of fractional shares based on the fair
market value of a share of Stock on the date of withdrawal. Alternatively, whole
shares of Stock may be withdrawn from a participant's account by means of a
transfer to a broker-dealer or financial institution that maintains an account
for the participant, together with the transfer of cash in lieu of fractional
shares based on the fair market value of a share of Stock on the date of
withdrawal. Participants may not designate any other person to receive shares of
Stock withdrawn or transferred under the Plan. A participant seeking to withdraw
or transfer shares of Stock must give instructions to the custodian in such
manner and form as may be prescribed by the custodian, which instructions will
be acted upon as promptly as practicable. Withdrawals and transfers will be
subject to any fees imposed by the custodian.
ARTICLE VIII
WITHDRAWAL
8.1 In General. Prior to the last five days of an Offering period, a
participant may withdraw payroll deductions credited to such participant's
account under the Plan any time by giving written notice to the designated
office of the Company, which withdrawal notice shall be in form and substance as
decided by the Committee. All of the participant's payroll deductions credited
to the participant's account will be paid to the participant promptly after
receipt of such participant's notice of withdrawal, and no further payroll
deductions will be made form the participant's pay during such Offering or
during any subsequent Offering unless an Employee re-enrolls as provided in
Section 8.2 hereof. The Company may, at its option, treat any attempt to borrow
by a participant on the security of such participant's accumulated payroll
deductions as an election to withdraw such deductions.
8.2 Effect on Subsequent Participation. Participant's withdrawal from any
Offering will not have any effect upon such Employee's eligibility to
participate in any succeeding Offering or in any similar plan which may
hereafter be adopted by the Company. In order to be eligible for a subsequent
Offering, however, a participant which has withdrawn from a current Offering
must satisfy the requirements of Section 3.4 hereof prior to the Offering
Commencement Date of the next succeeding Offering.
8.3 Termination of Employment. Upon termination of the participant's
5
<PAGE> 6
employment for any reason, including retirement (but excluding death or
permanent disablement while in the employ of the Company or continuation of a
leave of absence for a period beyond 90 days), the payroll deductions credited
to such Employee's account will be returned to the Employee, or, in the case of
the Employee's death subsequent to the termination of such Employee's
employment, to the person or persons entitled thereto under Section 12.1 hereof.
8.4 Termination of Employment Due to Death or Permanent Disablement. Upon
termination of the participant's employment because of death or permanent
disablement, the participant or participant's beneficiary (as defined in Section
12.1 hereof) shall have the right to elect, by written notice given to the
designated office of the Company prior to the earlier of the Offering
Termination Date or the expiration of a period of 60 days commencing with the
termination of the participant's employment, either:
(a) to withdraw all of the payroll deductions credited to the
participant's account under the Plan, or
(b) to exercise the participant's option on the next Offering
Termination Date and purchase the number of full shares of Stock which the
accumulated payroll deductions in the participant's account at the date of the
participant's cessation of employment will purchase at the applicable option
price, and any excess in such account will be returned to said beneficiary,
without interest.
In the event that no such written notice of election shall be duly
received by the designated office of the Company, the beneficiary shall
automatically be deemed to have elected, pursuant to paragraph (b), to exercise
the participant's option.
8.5 Leave of Absence. A participant on leave of absence shall, subject to
the election made by such participant pursuant to Section 5.5 hereof, continue
to be a participant in the Plan so long as such participant is on continuous
leave of absence. A participant who has been on leave of absence for more than
90 days and who therefore is not an Employee for the purpose of the Plan shall
not be entitled to participate in any Offering commencing after the 90th day of
such leave of absence. Notwithstanding any other provisions of the Plan, unless
a participant on leave of absence returns to regular full-time or part-time
employment with the Company at the earlier of: (a) the termination of such leave
of absence or (b) three months from the 90th day of such leave of absence, such
participant's participation in the Plan shall terminate on whichever of such
dates first occurs.
ARTICLE IX
INTEREST
9.1 Payment of Interest. No interest will be paid or allowed on any money
paid into the Plan or credited to the account of any participant Employee;
including any interest
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<PAGE> 7
paid on any and all money which is distributed to an Employee or such Employee's
beneficiary pursuant to the provisions of Sections 8.1, 8.3, 8.4, and 10.1
hereof.
ARTICLE X
STOCK
10.1 Maximum Shares. The maximum number of shares of Stock which shall be
issued under the Plan, subject to adjustment upon changes in capitalization of
the Company as provided in Section 12.4 hereof, shall be 150,000 shares. If the
total number of shares for which options are exercised on any Offering
Termination Date in accordance with Article VI exceeds the maximum number of
shares for the applicable Offering, the Company shall make a pro rata allocation
of the shares available for delivery and distribution in as nearly a uniform
manner as shall be practicable and as it shall determine to be equitable, and
the balance of payroll deductions credited to the account of each participant
under the Plan shall be returned to such participant as promptly as possible.
10.2 Participant's Interest in Option Stock. The participant will have no
interest in Stock covered by such Employee's option until such option has been
exercised.
10.3 Registration of Stock. Stock to be delivered to participant under the
Plan will be registered in the name of the participant, or, if the participant
so directs by written notice to the designated office of the Company prior to
the Offering Termination Date applicable thereto, in the names of the
participant and one such other person as may be designated by the participant,
in the form and manner permitted by applicable law.
10.4 Restrictions on Exercise. The Board of Directors may, in its
discretion, require as conditions to the exercise of any option that the shares
of Stock reserved for issuance upon the exercise of the option shall have been
duly listed, upon official notice of issuance, upon a stock exchange, and that
either:
(a) a Registration Statement under the Securities Act of 1933, as
amended, with respect to said shares shall be effective; or
(b) the participant shall have represented at the time of purchase,
in form and substance satisfactory to the Company, that it is such Employee's
intention to purchase the shares for investment and not for resale or
distribution.
ARTICLE XI
ADMINISTRATION
11.1 Appointment of Committee. The Board of Directors shall appoint a
committee (the "Committee") to administer the Plan, which shall consist of no
fewer than two (2) members of the Board of Directors. No member of the Committee
shall be eligible to purchase Stock under the Plan.
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11.2 Authority of Committee. Subject to the express provisions of the
Plan, the Committee shall have plenary authority in its discretion to interpret
and construe any and all provisions of the Plan, to adopt rules and regulations
for administering the Plan, and to make all other determinations deemed
necessary or advisable for administering the Plan. The Committee's determination
on the foregoing matters shall be conclusive. The Committee may delegate its
authority as it deems necessary.
11.3 Rules Governing the Administration of the Committee. The Board of
Directors may from time to time appoint members of the Committee in substitution
for or in addition to members previously appointed and may fill vacancies,
however caused, in the Committee. The Committee may select one of its members as
its Chairman and shall hold its meetings at such times and places as it shall
deem advisable and may hold telephone meetings. A majority of its members shall
constitute a quorum. All determinations of the Committee shall be made by a
majority of its members. The Committee may correct any defect or omission or
reconcile any inconsistency in the Plan, in the manner and to the extent it
shall deem desirable. Any decision or determination reduced to writing and
signed by a majority of the members of the Committee shall be as fully effective
as if it had been made by a majority vote at a meeting duly called and held. The
Committee may appoint a secretary and shall make such rules and regulations for
the conduct of its business as it shall deem advisable.
ARTICLE XII
MISCELLANEOUS
12.1 Designation of Beneficiary. A participant may file a written
designation of a beneficiary who is to receive any Stock and/or cash. Such
designation of beneficiary may be changed by the participant at any time by
written notice to the designated office of the Company. Upon the death of
participant and upon receipt by the Company of proof of identity and existence
at the participant's death of a beneficiary validly designated by the
participant under the Plan, the Company shall deliver such Stock and/or cash to
such beneficiary. In the event of the death of participant and in the absence of
a beneficiary validly designed under the Plan who is living at the time of such
participant's death, the Company shall deliver such Stock and/or cash to the
executor or administrator of the estate of the participant, or if no such
executor or administrator has been appointed (to the knowledge of the Company),
the Company, in its discretion, may deliver such Stock and/or cash to the spouse
or to any one or more dependents of the participant as the Company may
designate. No beneficiary shall, prior the death of the participant by whom he
has been designated, acquire any interest in the Stock or cash credited to the
participant under the Plan.
12.2 Transferability. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option or
to receive Stock under the Plan may be assigned, transferred, pledged, or
otherwise disposed of in any way by the participant other than by will or the
laws of descent and distribution. Any such attempted
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assignment, transfer, pledge, or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds in
accordance with Article VIII.
12.3 Use of Funds. All payroll deductions received or held by the Company
under this Plan may be used by the Company for any corporate purpose and the
Company shall not be obligated to segregate such payroll deductions.
12.4 Adjustment Upon Changes in Capitalization.
(a) If, while any options are outstanding, the outstanding shares of
Common Stock of the Company have increased, decreased, changed into, or been
exchanged to a different number or kind of shares or securities of the Company,
through reorganization, merger, recapitalization, reclassification, stock split
(whether or not effected in the form of a Stock dividend), reverse Stock split
or similar transaction, appropriate and proportionate adjustments may be made by
the Committee in the number and/or kind of shares which are subject to purchase
under outstanding options and on the option exercise price or prices applicable
to such outstanding options. In addition, in any such event, the number and/or
kind of shares which may be offered in the Offerings described in Article IV
hereof shall also be proportionately adjusted.
(b) Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger, or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon a sale of substantially all of the property or Stock of the Company to
another corporation, the holder of each option then outstanding under the Plan
will thereafter be entitled to receive at the next Offering Termination Date
upon the exercise of such option for each share as to which such option shall
be exercised, as nearly as reasonably may be determined, the cash, securities,
and/or property which a holder of one share of the Stock was entitled to
receive upon and at the time of such transaction. The Board of Directors shall
take such steps in connection with such transactions as the Board shall deem
necessary to assure that the provisions of this Section 12.4 shall thereafter be
applicable, as nearly as reasonably may be determined in relation to the said
cash, securities, and/or property as to which such holder of such option might
thereafter be entitled to receive.
12.5 Amendment and Termination. The Board of Directors shall have complete
power and authority to terminate or amend the Plan; provided, however, that the
Board of Directors shall not, without the approval of the stockholders of the
Corporation (a) increase the maximum number of shares which may be issued under
any Offering (except pursuant to Section 12.4 hereof) or (b) amend the
requirements as to the class of Employees eligible to purchase Stock under the
Plan or permit the members of the Committee to purchase Stock under the Plan. No
termination, modification, or amendment of the Plan may, without the consent of
an Employee then having an option under the Plan to purchase Stock, adversely
affect the rights of such Employee under such option.
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12.6 Effective Date and Termination Date. The Plan shall become effective
as of January 1, 1998, subject to the prior approval by the holders of the
majority of the Stock present and represented at the next following annual
meeting of the Company's shareholders. If the Plan is not so approved by that
date, the Plan shall not become effective. The Plan shall terminate upon the
earlier of (a) the tenth anniversary of the effective date of the Plan or (b)
the date on which all shares available for issuance under the Plan shall be sold
pursuant to purchase options exercised under the Plan.
12.7 No Employment Rights. The Plan does not, directly or indirectly,
create any right for the benefit of any Employee or class of Employee to
purchase any shares under the Plan, or create in any Employee or class of
Employee any right with respect to continuation of employment by the Company,
and it shall not be deemed to interfere in any way with the Company's right to
terminate, or otherwise modify, an Employee's employment at any time.
12.8 Effect of Plan. The provisions of the Plan shall, in accordance with
its terms, be binding upon, and inure to the benefit of, all successors of each
Employee participating in the Plan, including, without limitation, such
Employee's estate and the executors, administrators, or trustees thereof, heirs
and legatees, and any receiver, trustee in bankruptcy or representative of
creditors of such Employee.
12.9 Governing Law. The law of the State of Arizona will govern all
matters relating to this Plan except to the extent it is superseded by the laws
of the United States.
CERPROBE CORPORATION, a Delaware corporation
By:__________________________________________
Its:________________________________________
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Exhibit 23.1
[KPMG Peat Marwick LLP LOGO]
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Cerprobe Corporation:
We consent to incorporation by reference in the registration statement filed on
Form S-8 of Cerprobe Corporation of our report dated February 14, 1997 except
as to paragraph 4 of note 20 which is as of February 28, 1997, relating to the
consolidated balance sheets of Cerprobe Corporation and subsidiaries as of
December 31, 1996 and 1995, and the related consolidated statements of
operations, stockholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1996, which report appears in the December
31, 1996 annual report on Form 10-KSB of Cerprobe Corporation.
/s/ KPMG Peat Marwick LLP
Phoenix, Arizona
December 24, 1997
