<PAGE> 1
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
under
The Securities Act of 1933
SUBMICRON SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-3607944
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
6330 Hedgewood Drive, No. 150, Allentown, PA 18106
(Address of principal executive offices) (Zip Code)
SubMicron Systems Corporation
Amended and Restated 1991 Stock Option Plan
SubMicron Systems Corporation
1994 Employee Stock Purchase Plan
SubMicron Systems Corporation
1997 Stock Option Plan for Non-Employee Directors
(Full title of the plans)
David J. Ferran, President
SubMicron Systems Corporation
6330 Hedgewood Drive, No. 150
Allentown, Pennsylvania 18106
(Name and address of agent for service)
(610) 391-9200
(Telephone number, including area code, of agent for service)
Copy to:
Richard J. Busis, Esquire
Cozen and O'Connor
1900 Market Street
Philadelphia, PA 19103
(215) 665-2000
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
__________________________________________________________________________________________________________________________
Proposed
Maximum Proposed
Aggregate Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered(1)(2)(3) Share(1) Price(1) Fee(1)
<S> <C> <C> <C> <C>
Common Stock, 4,600,000 (4) $0.32 $1,472,000 $409.22
$.0001 par value
__________________________________________________________________________________________________________________________
</TABLE>
(1) Calculated pursuant to Rule 457(h) under the Securities Act of 1933,
based upon the average of the bid and asked prices in the
over-the-counter market of the Registrant's Common Stock on December
22, 1998.
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also covers such additional shares as may
hereinafter be offered or issued to prevent dilution resulting from
stock splits, stock dividends, recapitalizations or certain other
capital adjustments.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this Registration Statement also covers an indeterminate
amount of interest to be offered or sold pursuant to the stock purchase
plan described herein.
(4) Includes 3,500,000 shares offered pursuant to the Amended and Restated
1991 Stock Option Plan, 500,000 shares offered pursuant to the 1994
Employee Stock Purchase Plan and 600,000 shares offered pursuant to the
1997 Stock Option Plan for Non-Employee Directors.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by SubMicron Systems Corporation
(the "Registrant") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated into this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997.
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarters ended March 31, 1998, June 30, 1998 and September 30, 1998.
(c) The Registrant's Current Report on Form 8-K dated
December 3, 1998.
(d) The description of the Registrant's shares of Common Stock
contained in its Registration Statement on Form 8-A dated September 4, 1991,
including all amendments and reports filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein (or in any subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part hereof.
Experts
Ernst & Young LLP, independent auditors, have audited
our consolidated financial statements and related schedule included in our
Annual Report on Form 10-K for the year ended December 31, 1997, to the
extent indicated in their report thereon, which is incorporated in this
Registration Statement (Form S-8) by reference. Arthur Andersen LLP,
independent auditors, have audited our consolidated financial statements
and related schedule included in our Annual Report on Form 10-K for the
year ended December 31, 1997, to the extent indicated in their report
thereon, which is incorporated in this Registration Statement by reference.
Our consolidated financial statements and related schedule are incorporated
by reference in reliance on their reports, given on their authority as experts
in accounting and auditing. In addition, audited financial statements to be
included in subsequently filed documents shall be incorporated herein by
reference in reliance upon the authority
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<PAGE> 4
of the firm which audited such financial statements to the extent such firm has
filed with the Commission a consent to such incorporation by reference.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the General Corporation Law of the State
of Delaware, as amended (the "Delaware Corporation Law"), the Registrant has the
power to indemnify directors and officers under certain prescribed circumstances
and subject to certain limitations against certain costs and expenses, including
attorneys' fees actually and reasonably incurred in connection with any action,
suit or proceeding, whether civil, criminal, administrative or investigative, to
which any of them is a party by reason of his being a director or officer of the
Registrant if it is determined that he acted in accordance with the applicable
standard of conduct set forth in such statutory provision.
Article Seven of the Certificate of Incorporation of the
Registrant provides with respect to the indemnification to directors and
officers that the Registrant shall indemnify to the fullest extent permitted by
Sections 102(b)(7) and 145 of the Delaware Corporation Law, each person that
such Sections grant the Registrant the power to indemnify. Article Seventh of
the Certificate of Incorporation of the Registrant also provides that no
director shall be liable to the Registrant or any of its stockholders for
monetary damages for breach of fiduciary duty as a director, except with respect
to (1) a breach of the director's duty of loyalty to the Registrant or its
stockholders, (2) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) liability under
Section 174 of the Delaware Corporation Law or (4) a transaction from which the
director derived an improper personal benefit, it being the intention of the
foregoing provision to eliminate the liability of the Registrant's directors to
the Registrant or its stockholders to the fullest extent permitted by Section
102(b)(7) of Delaware Corporation Law, as amended from time to time.
Article XIII of the Registrant's By-laws generally permits
indemnification of directors and officers to the fullest extent authorized by
the Delaware Corporation Law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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<PAGE> 5
Item 8. Exhibits.
The following exhibits are filed as part of this registration
statement:
5 Opinion and Consent of Cozen and O'Connor.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Ireland San Filippo LLP.
23.4 Consent of Cozen and O'Connor (contained in
Exhibit 5).
24 Powers of Attorney (included on signature
page of the Registration Statement).
99.1 SubMicron Systems Corporation Amended and
Restated 1991 Stock Option Plan.
99.2 SubMicron Systems Corporation 1994 Employee
Stock Purchase Plan.
99.3 SubMicron Systems Corporation 1997 Stock
Option Plan for Non-Employee Directors.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities
Act");
(ii) to reflect in the prospectus any facts
or events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in the 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 and 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;
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<PAGE> 6
(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 (1)(i) and (1)(ii) do not
apply if 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
Exchange Act of 1934, as amended (the "Exchange Act") that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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<PAGE> 7
SIGNATURES AND POWERS OF ATTORNEY
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 Allentown, Pennsylvania, on December 22, 1998.
SUBMICRON SYSTEMS CORPORATION
By:/s/ David J. Ferran
--------------------------------------
David J. Ferran, President
KNOW ALL MEN BY THESE PRESENTS, each person whose signature
appears below hereby constitutes and appoints David J. Ferran and John W. Kizer
and each of them, his true and lawful attorneys-in-fact and agents, 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 to this
Registration Statement, and to file the same, with all exhibits thereto, and any
other documents in connection therewith, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ David J. Ferran Principal Executive Officer December 22, 1998
- -----------------------------
David J. Ferran
/s/ John W. Kizer Principal Financial December 22, 1998
- ----------------------------- and Accounting Officer
John W. Kizer
Director , 1998
- -----------------------------
Mark R. Benham
/s/ Ronald B. Booth Director December 22, 1998
- -----------------------------
Ronald B. Booth
/s/ James Newton Director December 22, 1998
- -----------------------------
James Newton
/s/ Barry W. Ridings Director December 22, 1998
- -----------------------------
Barry W. Ridings
/s/ Leonard R. Weisberg Director December 22, 1998
- -----------------------------
Leonard R. Weisberg
</TABLE>
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<PAGE> 8
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Donald Zito Director December 22, 1998
- -----------------------------
Donald Zito
</TABLE>
II-6
<PAGE> 9
Pursuant to the requirements of the Securities Act of 1933, the
administrators of the SubMicron Systems Corporation 1994 Employee Stock Purchase
Plan have duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in Allentown, Pennsylvania, on this
22nd day of December, 1998.
SUBMICRON SYSTEMS CORPORATION 1994 EMPLOYEE
STOCK PURCHASE PLAN
By: /s/ John W. Kizer
---------------------------------------
Name: John W. Kizer
Title: Vice President
II-7
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE
- ----------- ---------------------- ----
<S> <C> <C>
5 Opinion and Consent of Cozen and
O'Connor.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Ireland San Filippo LLP.
23.4 Consent of Cozen and O'Connor (contained
in Exhibit 5).
24 Powers of Attorney (included on
signature page of the Registration
Statement).
99.1 SubMicron Systems Corporation Amended
and Restated 1991 Stock Option Plan.
99.2 SubMicron Systems Corporation
1994 Employee Stock Purchase Plan.
99.3 SubMicron Systems Corporation
1997 Stock Option Plan for Non-Employee
Directors.
</TABLE>
II-8
<PAGE> 1
Exhibit 5
[Cozen and O'Connor LETTERHEAD]
December 22, 1998
SubMicron Systems Corporation
6330 Hedgewood Drive, No. 150
Allentown, PA 18106
Re: SubMicron Systems Corporation --
Registration Statement on Form S-8
Relating to SubMicron Systems Corporation
Amended and Restated 1991 Stock Option Plan,
1994 Employee Stock Purchase Plan and 1997
Stock Option Plan for Non-Employee Directors
Ladies and Gentlemen:
As counsel to SubMicron Systems Corporation (the "Company"), we have
assisted in the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to an
aggregate of 4,600,000 shares (the "Shares") of the Company's Common Stock,
$.0001 par value (the "Common Stock"), as follows: an additional 3,500,000
shares of Common Stock that may be issued under the SubMicron Systems
Corporation Amended and Restated 1991 Stock Option Plan (the "1991 Plan"), an
additional 500,000 shares of Common Stock that may be issued under the
Company's 1994 Employee Stock Purchase Plan (the "1994 Plan") and 600,000
shares of Common Stock that may be issued under the Company's 1997 Stock Option
Plan for Non-Employee Directors (together with the 1991 Plan and 1994 Plan, the
"Plans").
In connection therewith, we have examined the Company's Certificate of
Incorporation, as amended, By-Laws, as amended, and such corporate records and
other documents as we have deemed appropriate. In all examinations of documents,
instruments and other papers, we have assumed the genuineness of all signatures
on original and certified documents and the conformity to original and certified
documents of all copies submitted to us as conformed, photostatic or other
copies. As to matters of fact which have not been independently established, we
have relied upon representations of officers of the Company.
<PAGE> 2
SubMicron Systems Corporation
December 22, 1998
Page 2
Based upon the foregoing examination, information and assumptions, it
is our opinion that the Shares to be offered under the Plans are duly authorized
and, when issued and sold to the participants pursuant to the terms of the
respective Plans, the Shares will be legally issued, fully paid and
non-assessable.
We hereby expressly consent to the inclusion of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
Cozen and O'Connor
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Amended and Restated 1991
Stock Option Plan, 1994 Employee Stock Purchase Plan, and 1997 Stock Option
Plan for Non-Employee Directors of SubMicron Systems Corporation and to the
incorporation by reference therein of our report dated March 31, 1998 (except
Notes 2 and 8, as to which the date is April 14, 1998), with respect to the
consolidated financial statements and schedule of SubMicron Systems Corporation
included in its Annual Report (Form 10-K) for the year ended December 31, 1997,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Philadelphia, Pennsylvania
December 18, 1998
<PAGE> 1
EXHIBIT 23.2
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of
our reports dated March 6, 1998 included in SubMicron Systems Corporation's
Form 10-K for the year ended December 31, 1997 in this Form S-8 Registration
Statement.
/s/ Arthur Andersen LLP
Philadelphia, PA
December 23, 1998
<PAGE> 1
Exhibit 23.3
IRELAND
SANFILIPPO, LLP
-------------------------
ACCOUNTANTS & CONSULTANTS
-------------------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference of our report, dated
February 23, 1996, on the statements of operations, shareholder's equity and
cash flows of Imtec Acculine, Inc. ("Imtec") for the year ended December 31,
1995, incorporated by reference from the Company's Annual Report on Form 10-K
for use in its Registration Statement (Form S-8-SubMicron Systems
Corporation, Amended Stock Purchase Plan, and SubMicron Systems Corporation
1997 Stock Option Plan for Non-Employee Directors.)
/s/ Ireland San Filippo, LLP
IRELAND SAN FILIPPO, LLP
December 21, 1998
<PAGE> 1
Exhibit 99.1
SUBMICRON SYSTEMS CORPORATION
AMENDED AND RESTATED 1991 STOCK OPTION PLAN
Revised 3/98
SubMicron Systems Corporation (the "Company") hereby amends
and restates the SubMicron Systems Corporation 1991 Amended and Restated Stock
Option Plan in its entirety (as so amended and restated, the "Plan").
1. PURPOSE. The Plan is intended to recognize the
contributions made to the Company or an Affiliate by employees of the Company or
any Affiliate (as hereinafter defined), members of the Board of Directors of the
Company or any Affiliate, and certain consultants and advisors to the Company or
any Affiliate, to provide such persons with additional incentive to devote
themselves to the future success of the Company or any Affiliate, and to improve
the ability of the Company or an Affiliate to attract, retain, and motivate
individuals upon whom the Company's sustained growth and financial success
depend, by providing such persons with an opportunity to acquire or increase
their proprietary interest in the Company through receipt of rights to acquire
the Company's Common Stock, $.0001 par value (the "Common Stock").
2. DEFINITIONS. Unless the context clearly indicates
otherwise, the following terms shall have the following meanings:
(a) "Act" means the Securities Act of 1933, as
amended.
(b) "Affiliate" means a corporation which is a parent
corporation or a subsidiary corporation with respect to the Company within the
meaning of Section 424(e) or (f) of the Code.
(c) "Board of Directors" means the Board of Directors
of the Company.
(d) "Change of Control" shall have the meaning as set
forth in Section 9 of the Plan.
(e) "Code" means the Internal Revenue Code of 1986,
as amended.
(f) "Committee" means the Board of Directors or the
committee designated by the Board of Directors in accordance with the provisions
set forth in Section 3 of the Plan.
(g) "Company" means SubMicron Systems Corporation, a
Delaware
<PAGE> 2
corporation.
(h) "Disability" shall have the meaning set forth in
Section 22(e)(3) of the Code.
(i) "Exchange Act" means the Securities Exchange Act
of 1934, as amended.
(j) "Fair Market Value" shall have the meaning set
forth in Subsection 8(b) of the Plan.
(k) "ISO" means an Option granted under the Plan
which is intended to qualify as an "incentive stock option" within the meaning
of Section 422(b) of the Code.
(l) "Non-qualified Stock Option" means an Option
granted under the Plan which is not intended to qualify, or otherwise does not
qualify, as an "incentive stock option" within the meaning of Section 422(b) of
the Code.
(m) "Option" means either an ISO or a Non-qualified
Stock Option granted under the Plan.
(n) "Optionee" means a person to whom an Option has
been granted under the Plan, which Option has not been exercised and has not
expired or terminated.
(o) "Option Document" means the document described in
Section 8 of the Plan which sets forth the terms and conditions of a grant of
Options.
(p) "Option Price" means the price at which Shares
may be purchased upon exercise of an Option, as calculated pursuant to Section
8(b) of the Plan.
(q) "Shares" means the shares of Common Stock of the
Company which are the subject of Options.
3. ADMINISTRATION OF THE PLAN.
(a) Committee. The Plan shall be administered by a
committee composed of two or more of the members of the Company's Board of
Directors who shall not be eligible to receive Options under the Plan while
serving as a member of the Committee; provided, however, the Board may designate
two committees to administer the Plan in its stead, one of such committees
composed of two or more of its directors who will not be eligible to receive
Options under the Plan while serving on such Committee to administer the Plan
with respect to each person who is a "Principal Officer (as defined below), and
the other such committee composed of two or more directors (which may include
directors who are eligible to receive Options under the Plan) to administer the
Plan
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<PAGE> 3
with respect to each person other than a Principal Officer. Any of such
committees designated by the Board of Directors is referred to as the
"Committee." As used herein the term "Principal Officer" means a person who is
an "officer" of the Company, within the meaning of Rule 16a-1(f) promulgated
under the Exchange Act, or any successor regulation.
(b) Meetings. The Committee shall hold meetings at
such times and places as it may determine. Acts approved at a meeting by a
majority of the members of the Committee or acts approved in writing by the
unanimous consent of the members of the Committee shall be the valid acts of the
Committee.
(c) Grants. The Committee shall from time to time, in
its discretion, direct the Company to grant Options pursuant to the terms of the
Plan. The Committee shall have plenary authority to (i) determine the Optionees
to whom, the times at which, and the price at which Options shall be granted,
(ii) determine the type of Option to be granted and the number of Shares subject
thereto, and (iii) approve the form and terms and conditions of the Option
Documents; all subject, however, to the express provisions of the Plan. In
making such determinations, the Committee may take into account the nature of
the Optionee's services and responsibilities, the Optionee's present and
potential contribution to the Company's success and such other factors as it may
deem relevant. The interpretation and construction by the Committee of any
provisions of the Plan or of any Option granted under it shall be final, binding
and conclusive.
(d) Exculpation. No member of the Board of Directors
shall be personally liable for monetary damages for any action taken or any
failure to take any action in connection with the administration of the Plan or
the granting of Options under the Plan, provided that this Section 3(d) shall
not apply to (i) any breach of such member's duty of loyalty to the Company or
its stockholders, (ii) acts or omissions not in good faith or involving
intentional misconduct or a knowing violation of law, (iii) acts or omissions
that would result in liability under Section 174 of the General Corporation Law
of the State of Delaware, as amended, or (iv) any transaction from which the
member derived an improper personal benefit.
(e) Indemnification. Service on the Committee shall
constitute service as a member of the Board of Directors. Each member of the
Committee shall be entitled without further act on his part to indemnity from
the Company to the fullest extent provided by applicable law and the Company's
Certificate of Incorporation and/or By-laws in connection with or arising out of
any action, suit or proceeding with respect to the administration of the Plan or
the granting of Options thereunder in which he or she may be involved by reason
of his or her being or having been a member of the Committee, whether or not he
or she continues to be a member of the Committee at the time of the action, suit
or proceeding.
(f) Limitations on Grants of Options to Consultants
and Advisors. With respect to the grant of Options to consultants and advisors,
bona fide services must be
- 3 -
<PAGE> 4
rendered by consultants and advisors, and such services must not be in
connection with a capital raising transaction.
4. GRANTS UNDER THE PLAN. Grants under the Plan may be in the
form of a Non-qualified Stock Option, an ISO or a combination thereof, at the
discretion of the Committee.
5. ELIGIBILITY. All employees and members of the Board of
Directors of, and (subject to Section 3(f)) consultants and advisors to, the
Company or an Affiliate shall be eligible to receive Options hereunder. The
Committee, in its sole discretion, shall determine whether an individual
qualifies as such an employee, consultant or advisor.
6. SHARES SUBJECT TO PLAN. The aggregate maximum number of
Shares for which Options may be granted pursuant to the Plan is 5,000,000,
subject to adjustment as provided in Section 10 of the Plan. The Shares shall be
issued from authorized and unissued Common Stock or Common Stock held in or
hereafter acquired for the treasury of the Company. If an Option terminates or
expires without having been fully exercised for any reason, the Shares for which
the Option was not exercised may again be the subject of one or more Options
granted pursuant to the Plan.
7. TERM OF THE PLAN. No Option may be granted under the Plan
after June 10, 2001.
8. OPTION DOCUMENTS AND TERMS. Each Option granted under the
Plan shall be a Non-qualified Stock Option unless the Option shall be
specifically designated at the time of grant to be an ISO for federal income tax
purposes. If any Option designated as an ISO is determined for any reason not to
qualify as an incentive stock option within the meaning of Section 422 of the
Code, such Option shall be treated as a Non-qualified Stock Option for all
purposes under the provisions of the Plan. Options granted pursuant to the Plan
shall be evidenced by the Option Documents in such form as the Committee shall
from time to time approve, which Option Documents shall comply with and be
subject to the following terms and conditions and such other terms and
conditions as the Committee shall from time to time require which are not
inconsistent with the terms of the Plan.
(a) Number of Option Shares. Each Option Document
shall state the number of Shares to which it pertains. An Optionee may receive
more than one Option, which may include Options which are intended to be ISOs
and Options which are not intended to be ISOs, but only on the terms and subject
to the conditions and restrictions of the Plan. The maximum number of Shares for
which Options may be granted to any single Optionee in any calendar year,
adjusted as provided in Section 10, shall be 1,000,000 Shares.
(b) Option Price. Each Option Document shall state
the Option Price which, for a Non-qualified Stock Option, may be less than,
equal to, or greater than the Fair Market Value of the Shares on the date the
Option is granted and, for an ISO,
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<PAGE> 5
shall be at least 100% of the Fair Market Value of the Shares on the date the
Option is granted as determined by the Committee in accordance with this Section
8(b); provided, however, that if an ISO is granted to an Optionee who then owns,
directly or by attribution under Section 424(d) of the Code, shares possessing
more than ten percent of the total combined voting power of all classes of stock
of the Company or an Affiliate, then the Option Price shall be at least 110% of
the Fair Market Value of the Shares on the date the Option is granted. If the
Common Stock is traded in a public market, the Fair Market Value per share shall
be, if the Common Stock is listed on a national securities exchange or included
in the Nasdaq National Market, the last reported sale price thereof on the
relevant date, or, if the Common Stock is not so listed or included, the mean
between the last reported "bid" and "asked" prices thereof on the relevant date,
as reported on Nasdaq or, if not so reported, as reported by the National Daily
Quotation Bureau, Inc. or as reported in a customary financial reporting
service, as applicable and as the Committee determines. If the Common Stock is
not traded in a public market on the relevant date, the Fair Market Value shall
be as determined in good faith by the Committee.
(c) Exercise. No Option shall be deemed to have been
exercised prior to the receipt by the Company of written notice of such exercise
and of payment in full of the Option Price for the Shares to be purchased. Each
such notice shall specify the number of Shares to be purchased and shall (unless
the Shares are covered by a then current and effective registration statement or
qualified Offering Statement under Regulation A under the Securities Act)
contain the Optionee's acknowledgment in form and substance satisfactory to the
Company that (i) such Shares are being purchased for investment and not for
distribution or resale (other than a distribution or resale which, in the
opinion of counsel satisfactory to the Company, may be made without violating
the registration provisions of the Act), (ii) the Optionee has been advised and
understands that (A) the Shares have not been registered under the Act, are
"restricted securities" within the meaning of Rule 144 under the Act and are
subject to restrictions on transfer and (B) the Company is under no obligation
to register the Shares under the Act or to take any action which would make
available to the Optionee any exemption from such registration, (iii) such
Shares may not be transferred without compliance with all applicable federal and
state securities laws, and (iv) an appropriate legend referring to the foregoing
restrictions on transfer and any other restrictions imposed under the Option
Documents may be endorsed on the certificates. Notwithstanding the foregoing, if
the Company determines that issuance of Shares should be delayed pending (I)
registration under federal or state securities laws, (II) the receipt of an
opinion of counsel satisfactory to the Company that an appropriate exemption
from such registration is available, (III) the listing or inclusion of the
Shares on any securities exchange or an automated quotation system or (IV) the
consent or approval of any governmental regulatory body whose consent or
approval is necessary in connection with the issuance of such Shares, the
Company may defer exercise of any Option granted hereunder until any of the
events described in this sentence has occurred.
(d) Medium of Payment. An Optionee shall pay for
Shares (i) in cash, (ii) by certified or cashier's check payable to the order of
the Company or (iii) by such
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<PAGE> 6
other mode of payment as the Committee may approve, including payment through a
broker in accordance with procedures permitted by Regulation T of the Federal
Reserve Board. Furthermore, the Committee may provide in an Option Document that
payment may be made in whole or in part in shares of Common Stock held by the
Optionee for at least six months. If payment is made in whole or in part in
shares of Common Stock, then the Optionee shall deliver to the Company
certificates registered in the name of such Optionee representing shares owned
by such Optionee, free of all liens, claims and encumbrances of every kind and
having an aggregate Fair Market Value on the date of delivery that is at least
as great as the Option Price of the Shares (or relevant portion thereof) with
respect to which such Option is to be exercised by the payment in shares of
Common Stock, endorsed in blank or accompanied by stock powers duly endorsed in
blank by the Optionee. In the event that certificates for shares of the
Company's Common Stock delivered to the Company represent a number of shares in
excess of the number of shares required to make payment for the Option Price of
the Shares (or relevant portion thereof) with respect to which such Option is to
be exercised by payment in shares of Common Stock, the stock certificate issued
to the Optionee shall represent (I) the Shares in respect of which payment is
made, and (II) such excess number of shares. Notwithstanding the foregoing, the
Committee may impose from time to time such limitations and prohibitions on the
use of shares of the Common Stock to exercise an Option as it deems appropriate.
(e) Termination of Options.
(i) No option or any unexercised
installments thereof shall be exercisable after the first to occur of the
following:
(A) Expiration of the Option term
specified in the Option Document, which shall not exceed (1) ten years from the
date of grant, or (2) five years from the date of grant of an ISO if the
Optionee on the date of grant owns, directly or by attribution under Section
424(d) of the Code, shares possessing more than ten percent of the total
combined voting power of all classes of stock of the Company or of an Affiliate;
(B) Expiration of three months from
the date the Optionee's employment or service with the Company or its Affiliates
terminates for any reason other than Disability or death or as otherwise
specified in Subsection 8(e)(i)(D) or 8(e)(i)(E) below;
(C) Expiration of one year from the
date such employment or service with the Company or its Affiliates terminates
due to the Optionee's Disability or death;
(D) A finding by the Committee,
after full consideration of the facts presented on behalf of both the Company
and the Optionee, that the Optionee has breached his employment or service
contract with the Company or an Affiliate, or has been engaged in disloyalty to
the Company or an Affiliate, including,
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<PAGE> 7
without limitation, fraud, embezzlement, theft, commission of a felony or proven
dishonesty in the course of his or her employment or service, or has disclosed
trade secrets or confidential information of the Company or an Affiliate. In
such event, in addition to immediate termination of the Option, the Optionee
shall automatically forfeit all Shares for which the Company has not yet
delivered the share certificates upon refund by the Company of the Option Price
of such Shares. Notwithstanding anything herein to the contrary, the Company may
withhold delivery of share certificates pending the resolution of any inquiry
that could lead to a finding resulting in a forfeiture; or
(E) The date, if any, set by the
Board of Directors as an accelerated expiration date in the event of a Change of
Control.
(ii) Notwithstanding the foregoing, the
Committee may extend the period during which all or any portion of an Option may
be exercised to a date no later than the Option term specified in the Option
Document pursuant to Subsection 8(e)(i)(A), provided that any change pursuant to
this Subsection 8(e)(ii) which would cause an ISO to become a Non-qualified
Stock Option may be made only with the consent of the Optionee.
(f) Transfers. No Option granted under the Plan may
be transferred, except by will or by the laws of descent and distribution.
During the lifetime of the person to whom an Option is granted, such Option may
be exercised only by him. Notwithstanding the foregoing, a Non-qualified Stock
Option may be transferred pursuant to the terms of a "qualified domestic
relations order," within the meaning of Sections 401(a)(13) and 414(p) of the
Code or within the meaning of Title I of the Employee Retirement Income Security
Act of 1974, as amended. In addition, option grants may permit the transfer of
an Option to the Optionee's spouse, children or grandchildren or a trust created
solely for the benefit of the Optionee and the foregoing persons.
(g) Limitation on ISO Grants. In no event shall the
aggregate fair market value of the shares of Common Stock (determined at the
time an ISO is granted) with respect to which incentive stock options under all
incentive stock option plans of the Company or its Affiliates are exercisable
for the first time by the Optionee during any calendar year exceed $100,000.
(h) Other Provisions. Subject to the provisions of
the Plan, the Option Documents shall contain such other provisions including,
without limitation, provisions authorizing the Committee to accelerate the
exercisability of all or any portion of an Option granted pursuant to the Plan,
additional restrictions upon the exercise of the Option or additional
limitations upon the term of the Option, as the Committee shall deem advisable.
(i) Amendment. Subject to the provisions of the Plan,
the Committee shall have the right to amend Option Documents issued to an
Optionee, subject to the Optionee's consent if such amendment is not favorable
to the Optionee, except that the
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<PAGE> 8
consent of the Optionee shall not be required for any amendment made pursuant to
Subsection 8(e)(i)(E) or Section 9 of the Plan, as applicable, except to the
extent set forth in Section 9.
9. CHANGE OF CONTROL. In the event of a Change of Control, all
Options then outstanding under the Plan shall become immediately exercisable in
full; provided that any acceleration of exercisability of options under this
Section 9 which would cause an ISO to become a Non-Qualified Stock Option may be
made only with the consent of the Optionee. Any amendment to this Section 9
which diminishes the rights of Optionees shall not be effective with respect to
Options outstanding at the time of adoption of such amendment, whether or not
such outstanding Options are then exercisable. In addition, in the event of a
Change of Control, the Committee may take whatever other action with respect to
Options outstanding as it deems necessary or desirable, including without
limitation, accelerating the expiration date of any Options.
A "Change of Control" shall be deemed to have
occurred upon the earliest to occur of the following events: (a) the date the
stockholders of the Company (or the Board of Directors, if stockholder action is
not required) approve a plan or other arrangement pursuant to which the Company
will be dissolved or liquidated, (b) the date the stockholders of the Company
(or the Board of Directors, if stockholder action is not required) approve a
definitive agreement to sell or otherwise dispose of substantially all of the
assets of the Company, (c) the date the stockholders of the Company (or the
Board of Directors, if stockholder action is not required) and the stockholders
of the other constituent corporation (or its board of directors if stockholder
action is not required) have approved a definitive agreement to merge or
consolidate the Company with or into such other corporation other than, in
either case, a merger or consolidation of the Company in which holders of shares
of Common Stock immediately prior to the merger or consolidation will have at
least a majority of the voting power of the surviving corporation's voting
securities immediately after the merger or consolidation, which voting
securities are to be held in the same proportion as such holders' ownership of
Common Stock immediately before the merger or consolidation, (d) the date any
entity, person or group, within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act (other than (i) the Company or any of its
subsidiaries or any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its subsidiaries, or (ii) any other person
who, as of January 1, 1995, shall have been the beneficial owner (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 30% of
outstanding shares of Common Stock), shall have become the beneficial owner of,
or shall have obtained voting control over, more than 30% of the outstanding
shares of Common Stock, or (e) the first day after the date this Plan is
effective when directors are elected such that a majority of the Board of
Directors shall have been members of the Board of Directors for less than two
years, unless the nomination for election of each new director who was not a
director at the beginning of such two-year period was approved by a vote of at
least two-thirds of the directors then still in office who were directors at the
beginning of such period.
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<PAGE> 9
10. ADJUSTMENTS ON CHANGES IN CAPITALIZATION. The aggregate
number of Shares and class of shares as to which Options may be granted
hereunder, the number and class or classes of shares covered by each outstanding
Option and the Option Price thereof shall be appropriately adjusted in the event
of a stock dividend, stock split, recapitalization or other change in the number
or class of issued and outstanding equity securities of the Company resulting
from a subdivision or consolidation of the Common Stock and/or, if appropriate,
other outstanding equity securities or a recapitalization or other capital
adjustment (not including the issuance of Common Stock on the conversion of
other securities of the Company which are convertible into Common Stock)
affecting the Common Stock which is effected without receipt of consideration by
the Company. The Committee shall have authority to determine the adjustments to
be made under this Section 10, and any such determination by the Committee shall
be final, binding and conclusive.
11. AMENDMENT OF THE PLAN. The Board of Directors of the
Company may amend the Plan from time to time in such manner as it may deem
advisable. Nevertheless, the Board of Directors of the Company may not (a)
change the class of individuals eligible to receive an ISO, (b) increase the
maximum number of shares as to which Options may be granted or (c) make any
other change or amendment to which stockholder approval is required in order to
satisfy the conditions set forth in Rule 16b-3 promulgated under the Exchange
Act, in each case without obtaining approval, within twelve months before or
after such action, by vote of a majority of the votes cast at a duly called
meeting of the stockholders at which a quorum representing a majority of all
outstanding voting stock of the Company is, either in person or by proxy,
present and voting on the matter. No amendment to the Plan shall adversely
affect any outstanding Option, however, without the consent of the Optionee.
12. NO COMMITMENT TO RETAIN. The grant of an Option pursuant
to the Plan shall not be construed to imply or to constitute evidence of any
agreement, express or implied, on the part of the Company or any Affiliate to
retain the Optionee in the employ or service of the Company or an Affiliate
and/or as a member of the Company's Board of Directors or in any other capacity.
13. WITHHOLDING OF TAXES. Whenever the Company proposes or is
required to deliver or transfer Shares in connection with the exercise of an
Option, the Company shall have the right to (a) require the recipient to remit
or otherwise make available to the Company an amount sufficient to satisfy any
federal, state and/or local withholding tax requirements prior to the delivery
or transfer of any certificate or certificates for such Shares or (b) take
whatever other action it deems necessary to protect its interests with respect
to tax liabilities. The Company's obligation to make any delivery or transfer of
Shares shall be conditioned on the Optionee's compliance, to the Company's
satisfaction, with any withholding requirement.
14. INTERPRETATION. It is the intent of the Company that
transactions under the Plan with respect to directors and officers (within the
meaning of Section 16(a) of the
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<PAGE> 10
Exchange Act) satisfy the conditions of Rule 16b-3 promulgated under the
Exchange Act. To the extent that any provision of the Plan would result in a
conflict with such conditions, such provision shall be deemed null and void to
the extent permitted by applicable law and in the discretion of the Board of
Directors. This Section 14 shall not be applicable if no class of the Company's
equity securities is then registered pursuant to Section 12 of the Exchange Act.
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<PAGE> 1
Exhibit 99.2
SUBMICRON SYSTEMS CORPORATION
1994 EMPLOYEE STOCK PURCHASE PLAN
Revised 3/98
1. Purpose.
The purpose of the Plan is to assist SubMicron Systems
Corporation, a Delaware corporation (the "Company"), and its Subsidiaries in
retaining the employment of employees by offering them a greater stake in the
Company's success and a closer identity with it, and to aid in obtaining the
services of individuals whose employment would be helpful to the Company and
would contribute to its success. This is to be accomplished by providing
employees a continuing opportunity to purchase Shares (as hereinafter defined)
from the Company through periodic offerings.
The Plan is intended to comply with the provisions of section
423 of the Code (as hereinafter defined), and the Plan shall be administered,
interpreted and construed accordingly.
2. Definitions. For purposes of the Plan:
(a) "Account" means the non-interest bearing account which the
Company (or the Subsidiary which employs the Participant) shall establish for
Participants, to which Participants' payroll deductions pursuant to the Plan
shall be credited.
(b) "Agent" means the person or persons appointed by the Board
in accordance with Paragraph 3(d).
(c) "Applicable Offering Period" means the Offering Period
applicable to a purchase made on a Purchase Date for the purpose of determining
the Purchase Price in accordance with Section 5 of the Plan.
(d) "Board" means the Board of Directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as
amended.
(f) "Committee" means the committee described in Paragraph
3(a).
(g) "Company" means SubMicron Systems Corporation.
(h) "Compensation" means the total amount of compensation for
<PAGE> 2
services paid to a Participant for an Offering Period by the Company and the
Subsidiaries that would be reportable on Internal Revenue Service Form W-2
(excluding amounts payable as commission or bonus), plus amounts that are not
includable in income for federal income tax purposes that a Participant elects
to contribute pursuant to an arrangement described in section 125 or section
401(k) of the Code.
(i) "Eligible Employee" means an employee of the Company or
Subsidiary who is described in Paragraph 4.
(j) "Employer" means the Company or Subsidiary for whom an
Eligible Employee is performing services at the time the Eligible Employee
becomes a Participant.
(k) "Fair Market Value" on the Purchase Date means, in the
case of a purchase on a Purchase Date of Shares by the Company in an
arms'-length transaction, the actual purchase price of such Shares, and, in any
other case, the mean between the highest and lowest sales prices of Shares on
the principal national securities exchange on which the Shares are listed on
such date, or, if the Shares are not listed on any national securities exchange,
the mean between the highest and lowest sales prices of Shares as reported on
the Nasdaq National Market on such date, or if the Shares are included in
Nasdaq, but are not included in the Nasdaq National Market, the mean between the
closing bid and asked prices for Shares on such date as reported by Nasdaq, or
if the Shares are not so reported, the fair market value of Shares as determined
by the Committee in good faith. If there are no sales reports or bid or asked
quotations, as the case may be, for a given date, the closest preceding date on
which there were sales reports or bid or asked quotations shall be used.
(l) "Investment Account" means the account established for a
Participant pursuant to Paragraph 9(a) to hold Shares acquired for a Participant
pursuant to the Plan.
(m) "Nasdaq" means the National Association of Security
Dealers, Inc. Automated Quotations System.
(n) "Offering Period" means each two-year period beginning on
January 1 and July 1 of each year. The first Offering Period shall commence on
January 1, 1995.
(o) "Participant" means an Eligible Employee who makes an
election to participate in the Plan in accordance with Paragraph 5.
(p) "Plan" means the SubMicron Systems Corporation 1994
Employee Stock Purchase Plan as set forth in this document, and as may be
amended from time to time.
(q) "Plan Year" means the calendar year. The first Plan Year
shall be the 1995 calendar year.
<PAGE> 3
(r) "Purchase Date" means the last business day of each
Purchase Period.
(s) "Purchase Period" means each six month period beginning on
January 1 and July 1 of each Plan Year.
(t) "Purchase Price" means the lesser of 85% of the Fair
Market Value of a Share on (i) the first business day of the Applicable Offering
Period or (ii) the Purchase Date.
(u) "Share" or "Shares" means a share or shares of Common
Stock, $0.0001 par value, of the Company.
(v) "Subscription Agreement" means the agreement between the
Participant and the Employer pursuant to which the Participant authorizes
payroll deductions to the Account.
(w) "Subsidiary" means any corporation that, at the time in
question, is a subsidiary corporation of the Company, within the meaning of
section 424(f) of the Code.
3. Administration.
(a) The Plan shall be administered by the Board of Directors
or by a committee (hereafter, the Committee), which shall be a committee of the
Board consisting of at least two members designated by the Board. No member of
the Board of Directors who is eligible to participate in the Plan may vote on
any matter affecting the administration of the Plan. If a Committee is
established, no member of the Board of Directors who is also eligible to
participate in the Plan may be a member of the Committee. All Committee members
shall serve, and may be removed, at the pleasure of the Board of Directors.
(b) For purposes of administration of the Plan, a majority of
the members of the Committee (but not less than two) eligible to serve as such
shall constitute a quorum, and any action taken by a majority of such members of
the Committee present at any meeting at which a quorum is present, or acts
approved in writing by all members of the Committee, shall be the acts of the
Committee.
(c) Subject to the express provisions of the Plan, the
Committee shall have full discretionary authority to interpret the Plan, to
issue rules for administering the Plan, to change, alter, amend or rescind such
rules, and to make all other determinations necessary or appropriate for the
administration of the Plan. All determinations, interpretations and
constructions made by the Committee with respect to the Plan shall be final and
conclusive. No member of the Board of Directors or the Committee shall be
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<PAGE> 4
liable for any action, determination or omission taken or made in good faith
with respect to the Plan or any right granted hereunder.
(d) The Committee may engage an Agent to purchase Shares on
each Purchase Date and to perform custodial and record keeping functions for the
Plan, such as holding record title to the Participants' Share certificates,
maintaining an individual Investment Account for each such Participant and
providing periodic account status reports to such Participants.
(e) The Committee shall have full discretionary authority to
delegate ministerial functions to management of the Company.
4. Eligibility. All employees of the Company, and of such of its
Subsidiaries as may be designated for such purpose from time to time by the
Committee, shall be eligible to participate in the Plan as of the first day of
an Offering Period, provided each of such employees:
(a) has been employed by the Company or any of its
Subsidiaries for at least six months;
(b) is customarily employed for more than 20 hours per week;
(c) is customarily employed more than five months per calendar
year; and
(d) does not own stock possessing 5% or more of the total
combined voting power or value of all classes of stock of the Company or a
Subsidiary. In determining stock ownership for purposes of the preceding
sentence, the rules of section 424(d) of the Code shall apply and stock which
the employee may purchase under outstanding options, including rights to
purchase stock under the Plan, shall be treated as stock owned by the employee.
For purposes of this Paragraph 4, the term "employment" shall
be interpreted in accordance with the provisions of section 1.421-7(h) of the
Treasury Regulations (or any successor regulations).
5. Election to Participate.
(a) (i) Initial Subscription Agreements. Each Eligible
Employee may become a Participant by filing a Subscription Agreement authorizing
specified regular payroll deductions. A Subscription Agreement authorizing
specified regular payroll deductions must specify the date on which such
deduction is to commence, which may not be retroactive. Subject to the limits of
Paragraph 5(b), payroll deductions may be in any amount not less than one
percent (1%) and not in excess of ten percent
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<PAGE> 5
(10%) of an Eligible Employee's Compensation, subject to a lower limit as may be
established pursuant to Paragraph 5(b) below. All payroll deductions shall be
recorded in the Accounts. All funds recorded in Accounts may be used by the
Company and Subsidiaries for any corporate purpose, subject to the Participant's
right to withdraw at any time an amount equal to the balance accumulated in his
or her Account as described in Paragraph 8 below. Funds credited to Accounts
shall not be required to be segregated from the general funds of the Company or
any Subsidiary.
(ii) Subsequent Subscription Agreements. Any
Participant may file a Subscription Agreement subsequent to his or her filing an
initial Subscription Agreement changing the terms of his or her participation in
accordance with Section 6 of the Plan.
(iii) Applicable Offering Period. The Applicable
Offering Period for each Eligible Employee who becomes a Participant by filing
an initial Subscription Agreement in accordance with Section 5(a)(i) of the Plan
shall initially be the first Offering Period commencing after the receipt of
such Subscription Agreement by the Committee, and the Purchase Price for any
purchases made on behalf of a Participant in accordance with Section 9 of the
Plan on a Purchase Date occurring during such Participant's Applicable Offering
Period shall be determined by reference to the Fair Market Value of a Share on
the Purchase Date itself or the first day of such Applicable Offering Period, in
accordance with the definition of Purchase Price set forth in Section 2(t).
Notwithstanding the foregoing, in the event the Fair Market Value of a Share on
a Purchase Date is lower than the Fair Market Value of a Share on the first day
of the Applicable Offering Period, the Applicable Offering Period for a
Participant shall terminate on such Purchase Date. The Applicable Offering
Period for any Participant after such Participant's Applicable Offering Period
terminates shall be the Offering Period commencing on the next day after the
date such prior Applicable Offering Period terminates.
(b) Contribution Limit. The sum of all regular payroll
deductions authorized under Paragraph 5(a) shall not exceed such percentage of
the Participant's Compensation as may be specified by the Committee.
6. Subsequent Subscription Agreements and Deduction Changes. A
Participant may at any time decrease his or her payroll deduction by filing a
new Subscription Agreement with the Committee during a Purchase Period which
will supersede any prior Subscription Agreement effective no later than thirty
(30) days after receipt of such new Subscription Agreement by the Committee. If
administratively practicable, and at the Committee's discretion, such decrease
in a Participant's payroll deduction shall be effective as of the first day of
the payroll period following the receipt by the Committee of the new
Subscription Agreement or as of such other date no later than thirty (30) days
after receipt of the new Subscription Agreement as the Committee determines.
Other than as provided in the case of a termination of participation under
Paragraph 8 below, such change
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<PAGE> 6
in the rate of regular payroll deductions may not be made more than once during
each Purchase Period. During the two week period immediately preceding each new
Purchase Period, a Participant may increase or decrease his or her payroll
deduction by filing a new Subscription Agreement with the Committee. If a
Participant does not file a new Subscription Agreement with the Committee, the
terms of the previously submitted Subscription Agreement shall remain in effect
for each subsequent Purchase Period. Notwithstanding anything contained herein
to the contrary, a Participant may file a new Subscription Agreement at any time
for the sole purpose of changing his or her designation of beneficiary.
7. Limit on Purchase of Shares.
(a) No employee may be granted a right to purchase Shares
under the Plan if immediately following such grant, such employee would have
rights to purchase equity securities under all plans of the Company and
Subsidiaries that are intended to meet the requirements of section 423 of the
Code, that accrue at a rate which exceeds $25,000 of Fair Market Value
(determined at the time the rights are granted) for each calendar year in which
such rights to purchase Shares are outstanding at any time. For purposes of this
Paragraph 7:
(i) The right to purchase Shares accrues when the
right (or any portion thereof) first becomes exercisable during the calendar
year;
(ii) Subject to the limitations under Paragraph 10,
each Participant accrues the right to purchase up to a number of Shares for each
Purchase Period equal to $12,500 divided by the Fair Market Value of the Shares,
determined on the first day of the Purchase Period, but in no case may such
accrual of rights to purchase Shares exceed $25,000 of Fair Market Value,
determined on the first day of each Offering Period, for any calendar year;
(iii) A right to purchase Shares which has accrued
under one grant of rights under the Plan may not be carried over to any other
grant of rights; and
(iv) The limits of this Paragraph 7 shall be
interpreted by the Committee in accordance with applicable rules and regulations
issued under section 423 of the Code.
(b) No employee may be granted a right to purchase Shares
under the Plan if, immediately following such grant, such employee would own
stock possessing 5% or more of the total combined voting power or value of all
classes of stock of the Company or a Subsidiary. In determining stock ownership
for purposes of the preceding sentence, the rules of section 424(d) of the Code
shall apply and stock which the employee may purchase under outstanding options,
including rights to purchase stock under the Plan,
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<PAGE> 7
shall be treated as stock owned by the employee.
8. Termination of Participation and Withdrawal of Funds. A Participant
may at any time and for any reason, withdraw from participation in the Plan for
an Offering Period by filing a notice of withdrawal form with the Committee
prior to the last day of such Purchase Period, in which case the entire balance
accumulated in his or her Account shall be paid to such Participant as soon as
practicable thereafter and no further payroll deductions shall be made pursuant
to the Plan. Partial withdrawals shall not be permitted. A Participant may
recommence participation in the Plan by submitting a new Subscription Agreement
to the Committee, which will be effective as of the next Offering Period.
9. Method of Purchase and Investment Accounts.
(a) Exercise of Option for Shares. Each Participant having
funds credited to an Account on a Purchase Date shall be deemed, without any
further action, to have exercised on such Purchase Date, the option to purchase
the number of whole Shares which the funds in such Account would purchase at the
Purchase Price, subject to the limit:
(i) on the aggregate number of Shares that may be
made available for purchase to all Participants under the Plan for the term of
the Plan, as set forth in Paragraph 10; and
(ii) on the number of Shares that may be made
available for purchase to any individual Participant, as set forth in Paragraphs
5(b) and 7.
Such option shall be deemed exercised if the Participant does not withdraw such
funds before the Purchase Date. All Shares so purchased shall be credited to a
separate Investment Account established by the Agent for each Participant. The
Agent shall hold in its name or the name of its nominee all certificates for
Shares purchased until such Shares are withdrawn by a Participant pursuant to
Paragraph 11. No purchases of fractional Shares shall be made pursuant to the
Plan. If the Fair Market Value of a Share on a Purchase Date is less than the
Fair Market Value of a Share on the first day of the Offering Period,
immediately following exercise of the Participant's option the Participant shall
be deemed to have been reenrolled in the Plan in the Offering Period which
commences immediately following such Purchase Date. Any funds left in a
Participant's Account following a Purchase Date shall be applied to the purchase
of Shares on the next Purchase Date, along with any additional funds added to
such Participant's Account as a result of subsequent payroll deductions, subject
to Participants' withdrawal rights against Accounts and the other limits of the
Plan.
(b) Dividends on Shares Held in Investment Accounts. All cash
dividends paid with respect to the Shares credited to a Participant's Investment
Account shall, unless otherwise directed by the Committee, be credited to his or
her Account and used, in the same manner as other funds credited to Accounts, to
purchase additional Shares
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<PAGE> 8
under the Plan on the next Purchase Date, subject to Participants' withdrawal
rights against Accounts and the other limits of the Plan.
(c) Adjustment of Shares on Application of Aggregate Limits.
If the total number of Shares that would be purchased pursuant to Paragraph 9(a)
but for the limits described in Paragraph 9(a)(i) exceeds the number of Shares
available for purchase under the Plan, then the number of available Shares shall
be allocated among the Investment Accounts of Participants in the ratio that the
amount credited to a Participant's Account as of the Purchase Date bears to the
total amount credited to all Participants' Accounts as of the Purchase Date. The
cash balance not applied to the purchase of Shares shall be held in
Participants' Accounts subject to the terms and conditions of the Plan.
10. Shares Subject to Plan. The aggregate maximum number of Shares that
may be issued pursuant to the Plan is Five Hundred Thousand (500,000), subject
to adjustment as provided in Paragraph 18 of the Plan. The Shares delivered
pursuant to the Plan may, at the option of the Company, be Shares purchased
specifically for purposes of the Plan, shares otherwise held in treasury or
Shares originally issued by the Company for such purpose.
11. Withdrawal of Certificates. A Participant shall have the right at
any time to withdraw a certificate or certificates for all or a portion of the
Shares credited to his or her Investment Account by giving written notice to the
Company.
12. Registration of Certificates. Each certificate withdrawn by a
Participating Employee may be registered only in the name of the Participant,
or, if the Participant so indicated on the Participant's Account, in the
Participant's name jointly with a member of the Participant's family, with right
of survivorship. A Participant who is a resident of a jurisdiction which does
not recognize such a joint tenancy may have certificates registered in the
Participant's name as tenant in common or as community property with a member of
the Participant's family without right of survivorship.
13. Voting. The Agent shall vote all Shares held in an Investment
Account in accordance with the Participant's instructions.
14. Rights on Retirement, Death or Other Termination of Employment. In
the event of a Participant's retirement, death or other termination of
employment, or in the event that a Participant otherwise ceases to be an
Eligible Employee, (a) no payroll deduction shall be taken from any pay due and
owing to the Participant thereafter, and the balance in the Participant's
Account shall be paid to the Participant or, in the event of the Participant's
death, to the person or persons designated as the Participant's beneficiary on
Participant's most recently filed Subscription Agreement, or if no beneficiary
has been designated, to the person to whom the Participant's rights shall have
passed under the laws of descent and distribution, and (b) a certificate for the
Shares credited to the Participant's Investment Account will be forwarded to the
Participant (or, in the event of the
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<PAGE> 9
Participant's death, to the person or persons designated as the Participant's
beneficiary on Participant's most recently filed Subscription Agreement, or if
no beneficiary has been designated, to the person to whom the Participant's
rights shall have passed under the laws of descent and distribution).
15. Rights Not Transferable. Except as permitted by Paragraph 14,
rights under the Plan are not transferable by a Participant and are exercisable
during the employee's lifetime only by the employee.
16. No Right to Continued Employment. Neither the Plan nor any right
granted under the Plan shall confer upon any Participant any right to
continuance of employment with the Company or any Subsidiary, or interfere in
any way with the right of the Company or Subsidiary to terminate the employment
of such Participant.
17. Application of Funds. All funds received or held by the Company
under this Plan may be used for any corporate purpose.
18. Adjustments in Case of Changes Affecting Shares. In the event of a
subdivision of outstanding Shares, or the payment of a stock dividend, the Share
limit set forth in Paragraph 10 shall be adjusted proportionately, and such
other adjustments shall be made as may be deemed equitable by the Committee. In
the event of any other change affecting Shares (including any event described in
section 424(a) of the Code), such adjustment, if any, shall be made as may be
deemed equitable by the Committee to give proper effect to such event, subject
to the limitations of section 424 of the Code.
19. Amendment of the Plan. The Board of Directors of the Company may at
any time, or from time to time, amend the Plan in such manner as it may deem
advisable. Nevertheless, the Board of Directors of the Company may not (i)
increase the maximum number of shares that may be issued pursuant to the Plan,
(ii) materially increase the benefits accruing to Participants under the Plan,
or (iii) modify the requirements as to eligibility for participation in the Plan
without obtaining approval, within twelve months before or after such action, by
vote of a majority of the votes cast at a duly called meeting of the
Shareholders at which a quorum representing a majority of all outstanding voting
stock of the Company is, either in person or by proxy, present and voting on the
matter.
20. Termination of the Plan. The Plan and all rights of employees under
any offering hereunder shall terminate on the earliest of:
(a) any time at the discretion of the Board of Directors; or
(b) December 31, 2004.
Upon termination of this Plan, (i) all amounts in the Accounts of Participants
shall be carried forward into the Participant's Account under a successor plan,
if any, or promptly
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<PAGE> 10
refunded, and (ii) all certificates for the Shares credited to a Participant's
Investment Account shall be forwarded to him or her.
21. Governmental Regulations.
(a) Anything contained in this Plan to the contrary
notwithstanding, the Company shall not be obligated to sell or deliver any
Shares certificates under this Plan unless and until the Company is satisfied
that such sale or delivery complies with (i) all applicable requirements of the
governing body of the principal market in which such Shares are traded, (ii) all
applicable provisions of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations thereunder and (iii) all other laws or regulations by
which the Company is bound or to which the Company is subject.
(b) The Company (or a Subsidiary) may make such provisions as
it may deem appropriate for the withholding of any taxes or payment of any taxes
which it determines it may be required to withhold or pay in connection with any
Shares. The obligation of the Company to deliver certificates under this Plan is
conditioned upon the satisfaction of the provisions set forth in the preceding
sentence.
22. Section 16 Restrictions for Officers and Directors. Notwithstanding
any other provision of the Plan, each officer (for purposes of Section 16 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), and director
of the Company shall be subject to such restrictions as are required so that
transactions under the Plan by such officer or director shall be exempt from
Section 16(b) of the Exchange Act. Without limiting the generality of the
foregoing, such restrictions may include restrictions on the ability of an
officer or director making withdrawals from the Plan, ceasing participation in
the Plan and holding the Shares received under the Plan for so long as such
restrictions are required to qualify for a Section 16 exemption.
23. Repurchase of Shares. The Company shall not be required to
repurchase from any Participant any Shares which such Participant acquires under
the Plan.
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Exhibit 99.3
SUBMICRON SYSTEMS CORPORATION
1997 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
SubMicron Systems Corporation (the "Company") hereby adopts the
SubMicron Systems Corporation 1997 Stock Option Plan for Non-Employee Directors
(the "Plan").
1. PURPOSE. The Plan is intended to provide an incentive to members of
the Board of Directors of the Company who are not employees of the Company or
any of its subsidiaries to serve on the Board of Directors and to devote
themselves to the future success of the Company by giving them an opportunity to
increase their proprietary interest in the Company through receipt of rights to
acquire the Company's Common Stock, $.0001 par value (the "Common Stock").
2. DEFINITIONS. Unless the context clearly indicates otherwise, the
following terms shall have the following meanings:
(a) "Act" means the Securities Act of 1933, as amended.
(b) "Board of Directors" means the Board of Directors of the
Company.
(c) "Change of Control" shall have the meaning as set forth in
Section 9 of the Plan.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means the Board of Directors or the committee
designated by the Board of Directors in accordance with the provisions set forth
in Section 3 of the Plan.
(f) "Company" means SubMicron Systems Corporation, a Delaware
corporation.
(g) "Disability" shall have the meaning set forth in Section
22(e)(3) of the Code.
(h) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(i) "Fair Market Value" shall have the meaning set forth in
Section 8(c) of the Plan.
<PAGE> 2
(j) "Non-Employee Director" means a member of the Board of
Directors as of July 24, 1997 who was not an employee of the Company or any
subsidiary of the Company as of such date and any person who becomes a director
subsequent to July 24, 1997 and who (i) is not, and has not been for a period of
three months prior to the date of a grant thereunder, an employee of the Company
or any of its subsidiaries and (ii) is not the designee of a party that has a
contractual right to designate one or more members of the Board of Directors.
(k) "Option" means an option to purchase shares of Common
Stock granted under the Plan.
(l) "Optionee" means a person to whom an Option has been
granted under the Plan, which Option has not been exercised and has not expired
or terminated.
(m) "Option Document" means the document described in Section
8 of the Plan which sets forth the terms and conditions of a grant of Options.
(n) "Option Price" means the price at which Shares may be
purchased upon exercise of an Option, as determined pursuant to Section 8 of the
Plan.
(o) "Shares" means the shares of Common Stock of the Company
which are the subject of Options.
3. ADMINISTRATION OF THE PLAN.
(a) Committee. The Plan shall be administered by the Board of
Directors or a committee comprised of two or more of the members of the Board of
Directors. The interpretation and construction by the Committee of any
provisions of the Plan or of any Option granted under it shall be final, binding
and conclusive.
(b) Grants. Grants of Options shall be to Non-Employee
Directors and shall be made in accordance with the provisions of the Plan.
(c) Exculpation. No member of the Board of Directors shall be
personally liable for monetary damages for any action taken or any failure to
take any action in connection with the administration of the Plan or the
granting of Options under the Plan, provided that this Section 3(c) shall not
apply to (i) any breach of such member's duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law, (iii) acts or omissions that would
result in liability under Section 174 of the General Corporation Law of the
State of Delaware, as amended, or (iv) any transaction from which the member
derived an improper personal benefit.
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<PAGE> 3
(d) Indemnification. Service on the Committee shall constitute
service as a member of the Board of Directors. Each member of the Committee
shall be entitled without further act on his part to indemnity from the Company
to the fullest extent provided by applicable law and the Company's Certificate
of Incorporation and/or By-laws in connection with or arising out of any action,
suit or proceeding with respect to the administration of the Plan or the
granting of Options thereunder in which he or she may be involved by reason of
his or her being or having been a member of the Committee, whether or not he or
she continues to be a member of the Committee at the time of the action, suit or
proceeding.
4. OPTIONS GRANTED UNDER THE PLAN TO BE NON-QUALIFIED OPTIONS. Options
granted under the Plan are not intended to qualify as "incentive stock options"
within the meaning of Section 422(b) of the Code.
5. ELIGIBILITY. Non-Employee Directors shall receive Options as
provided hereunder.
6. SHARES SUBJECT TO PLAN. The aggregate maximum number of Shares for
which Options may be granted pursuant to the Plan is 600,000, subject to
adjustment as provided in Section 10 of the Plan. The Shares may be issued from
authorized and unissued Common Stock or Common Stock held in or hereafter
acquired for the treasury of the Company. If an Option terminates or expires
without having been fully exercised for any reason, the Shares for which the
Option was not exercised may again be the subject of one or more Options granted
pursuant to the Plan.
7. TERM OF THE PLAN. The Plan is effective as of July 24, 1997, the
date on which it was adopted by the Board of Directors, subject to the approval
of the Plan within twelve months of such date by the Company's stockholders. No
Option may be granted under the Plan after July 24, 2007; provided, however,
that the Board of Directors may terminate the Plan (but not any Options
theretofore granted) at any time. If the Plan is not approved by the Company's
stockholders as set forth above within twelve months of its adoption by the
Board of Directors, all Options granted under the Plan shall be null and void.
8. OPTION GRANTS. Options shall be granted pursuant to the Plan to
Non-Employee Directors, without any further action by the Board of Directors, in
accordance with the terms and conditions set forth herein. Options shall be
evidenced by Option Documents in such form as the Committee shall from time to
time approve, which Option Documents shall comply with and be subject to the
following terms and conditions and such other terms and conditions as the
Committee shall from time to time require which are not inconsistent with the
terms of the Plan.
(a) Initial Grants. Each person who is a Non-Employee Director
on the date of adoption of the Plan by the Board shall be granted on such date
an Option
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<PAGE> 4
to purchase 75,000 Shares. Thereafter, each person who becomes a member of the
Board of Directors who qualifies as a Non-Employee Director at the time his or
her service as a director commences shall be granted an Option to purchase
75,000 Shares on such date.
(b) Subsequent Grants. Each Non-Employee Director shall be
entitled to a subsequent grant of Options to purchase an additional 75,000
shares of Common Stock on the fifth anniversary of each previous grant to such
person, provided such person remains a Non-Employee Director as of the date of
such subsequent grant.
(c) Option Price. The Option Price of each Option shall be the
Fair Market Value of the Shares on the date the Option is granted. If the Common
Stock is traded in a public market, the Fair Market Value per share shall be, if
the Common Stock is listed on a national securities exchange or included in the
Nasdaq National Market, the last reported sale price thereof on the relevant
date, or, if the Common Stock is not so listed or included, the mean between the
last reported "bid" and "asked" prices thereof on the relevant date, as reported
on Nasdaq or, if not so reported, as reported by the National Daily Quotation
Bureau, Inc. or as reported in a customary financial reporting service, as
applicable and as the Committee determines. If the date of any grant is not a
business day, the Fair Market Value per share shall be determined as of the
immediately preceding business day. If the Common Stock is not traded in a
public market on the relevant date, the Fair Market Value shall be as determined
in good faith by the Committee.
(d) Termination of Options.
No Option or any unexercised portion thereof shall be
exercisable after the first to occur of the following:
(i) Expiration of ten years from the date of grant;
(ii) Expiration of three months from the date the
Optionee's service as a member of the Board of Directors ceases for any reason
other than (A) death, (B) Disability, (C) voluntary resignation by a
Non-Employee Director after such director reaches age 65, or (D) removal from
the Board of Directors with or without cause;
(iii) Expiration of one year from the date the
Optionee's service as a member of the Board of Directors ceases by reason of
death, Disability, voluntary resignation after reaching age 65 or removal from
the Board without cause; or
(iv) The date of removal from the Board of Directors
with cause. A director who is removed from the Board shall be deemed to been
removed for cause if such director (A) has been engaged in disloyalty to the
Company or proven dishonesty, including fraud, theft or commission of a felony,
(B) has been found to have breached his fiduciary duties as a director or (C)
has revealed confidential information of the Company.
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<PAGE> 5
(e) Exercise. No Option shall be deemed to have been exercised
prior to the receipt by the Company of written notice of such exercise and of
payment in full of the Option Price for the Shares to be purchased. Each such
notice shall specify the number of Shares to be purchased and shall (unless the
Shares are covered by a then current and effective registration statement or
qualified offering statement under Regulation A under the Act) contain the
Optionee's acknowledgment in form and substance satisfactory to the Company that
(i) such Shares are being purchased for investment and not for distribution or
resale (other than a distribution or resale which, in the opinion of counsel
satisfactory to the Company, may be made without violating the registration
provisions of the Act), (ii) the Optionee has been advised and understands that
(A) the Shares have not been registered under the Act, are "restricted
securities" within the meaning of Rule 144 under the Act and are subject to
restrictions on transfer and (B) the Company is under no obligation to register
the Shares under the Act or to take any action which would make available to the
Optionee any exemption from such registration, (iii) such Shares may not be
transferred without compliance with all applicable federal and state securities
laws, and (iv) an appropriate legend referring to the foregoing restrictions on
transfer and any other restrictions imposed under the Option Documents may be
endorsed on the certificates. Notwithstanding the foregoing, if the Company
determines that issuance of Shares should be delayed pending (I) registration
under federal or state securities laws, (II) the receipt of an opinion of
counsel satisfactory to the Company that an appropriate exemption from such
registration is available, (III) the listing or inclusion of the Shares on any
securities exchange or an automated quotation system or (IV) the consent or
approval of any governmental regulatory body whose consent or approval is
necessary in connection with the issuance of such Shares, the Company may defer
exercise of any Option granted hereunder until any of the events described in
this sentence has occurred.
(f) Medium of Payment. An Optionee may pay for Shares (i) in
cash, (ii) by check payable to the order of the Company or (iii) by such other
mode of payment as the Committee may approve, including payment through a broker
in accordance with procedures permitted by Regulation T of the Federal Reserve
Board. Furthermore, the Committee may provide in an Option Document that payment
may be made in whole or in part in shares of Common Stock held by the Optionee
for at least six months. If payment is made in whole or in part in shares of
Common Stock, then the Optionee shall deliver to the Company certificates
registered in the name of such Optionee representing shares owned by such
Optionee, free of all liens, claims and encumbrances of every kind and having an
aggregate Fair Market Value on the date of delivery that is at least as great as
the Option Price of the Shares (or relevant portion thereof) with respect to
which such Option is to be exercised by the payment in shares of Common Stock,
endorsed in blank or accompanied by stock powers duly endorsed in blank by the
Optionee. In the event that certificates for shares of the Company's Common
Stock delivered to the Company represent a number of shares in excess of the
number of shares required to make payment for the Option Price of the Shares (or
relevant portion thereof) with respect to which such Option is to be exercised
by payment in shares of Common Stock, the stock certificate issued to the
Optionee shall represent (I) the Shares in respect of which payment is made, and
(II) such excess number
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<PAGE> 6
of shares. Notwithstanding the foregoing, the Committee may impose from time to
time such limitations and prohibitions on the use of shares of the Common Stock
to exercise an Option as it deems appropriate.
(g) Transfers. No option granted under the Plan may be
transferred, except by will or by the laws of descent and distribution or
pursuant to the terms of a "qualified domestic relations order," within the
meaning of Sections 401(a)(13) and 414(p) of the Code or within the meaning of
Title I of the Employee Retirement Income Security Act of 1974, as amended. In
addition, option grants may permit the transfer of an Option to the Optionee's
spouse, children or grandchildren or a trust created solely for the benefit of
the Optionee and the foregoing persons.
9. VESTING OF OPTIONS.
(a) General Rule. Except as set forth below, (i) each Option
granted under the Plan shall vest and become exercisable in ten equal
semi-annual installments beginning on six months from the date of grant and (ii)
no Option shall be exercisable subsequent to the Optionee's termination of
service as a member of the Board of Directors for any reason to any greater
extent than such Option was exercisable on the date of such termination of
service.
(b) Acceleration of Vesting Under Certain Circumstances. Upon
termination of an Optionee's service as a member of the Board of Directors by
reason of death, Disability, resignation after reaching age 65 or removal from
the Board of Directors without cause, all outstanding Options granted to
Optionee as of the termination of service shall vest and immediately become
exercisable.
(c) Change of Control. In the event of a Change of Control,
all Options then outstanding under the Plan shall vest and become immediately
exercisable in full. Any amendment to this Section 9(c) which diminishes the
rights of Optionees shall not be effective with respect to Options outstanding
at the time of adoption of such amendment, whether or not such outstanding
Options are then exercisable.
A "Change of Control" shall be deemed to have occurred upon
the earliest to occur of the following events: (a) the date the stockholders of
the Company (or the Board of Directors, if stockholder action is not required)
approve a plan or other arrangement pursuant to which the Company will be
dissolved or liquidated; (b) the date the stockholders of the Company (or the
Board of Directors, if stockholder action is not required) approve a definitive
agreement to sell or otherwise dispose of substantially all of the assets of the
Company; (c) the date the stockholders of the Company (or the Board of
Directors, if stockholder action is not required) and the stockholders of the
other constituent corporation (or its board of directors if stockholder action
is not required) have approved a definitive agreement to merge or consolidate
the Company with or into such other corporation other than, in either case, a
merger or consolidation of the Company in which
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<PAGE> 7
holders of shares of Common Stock immediately prior to the merger or
consolidation will have at least a majority of the voting power of the surviving
corporation's voting securities immediately after the merger or consolidation,
which voting securities are to be held in the same proportion as such holders'
ownership of Common Stock immediately before the merger or consolidation; (d)
the date any entity, person or group, within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act (other than the Company or any of its
subsidiaries or any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its subsidiaries), shall have become the
beneficial owner of, or shall have obtained voting control over, more than 30%
of the outstanding shares of Common Stock; or (e) the first day after the date
this Plan is effective when directors are elected such that a majority of the
Board of Directors shall have been members of the Board of Directors for less
than two years, unless the nomination for election of each new director who was
not a director at the beginning of such two-year period was approved by a vote
of at least two-thirds of the directors then still in office who were directors
at the beginning of such period.
10. ADJUSTMENTS ON CHANGES IN CAPITALIZATION. The aggregate number of
Shares and class of shares as to which Options may be granted hereunder, the
number and class or classes of shares covered by each outstanding Option and the
Option Price thereof, and the number of Shares subject to Options granted
pursuant to Sections 8(a) and 8(b) shall be appropriately adjusted in the event
of a stock dividend, stock split, recapitalization or other change in the number
or class of issued and outstanding equity securities of the Company resulting
from a subdivision or consolidation of the Common Stock and/or, if appropriate,
other outstanding equity securities or a recapitalization or other capital
adjustment (not including the issuance of Common Stock on the conversion of
other securities of the Company which are convertible into Common Stock)
affecting the Common Stock which is effected without receipt of consideration by
the Company. The Committee shall have authority to determine the adjustments to
be made under this Section 10, and any such determination by the Committee shall
be final, binding and conclusive.
11. AMENDMENT OF THE PLAN. The Board of Directors of the Company may
amend the Plan from time to time in such manner as it may deem advisable.
Nevertheless, the Board of Directors of the Company may not (a) increase the
maximum number of shares as to which Options may be granted or (b) make any
other change or amendment to which stockholder approval is required in order to
satisfy the conditions of any applicable rule or regulation, in each case
without obtaining approval, within twelve months before or after such action, of
the Company's stockholders. No amendment to the Plan shall adversely affect any
outstanding Option, however, without the consent of the Optionee.
12. NO COMMITMENT TO RETAIN. The grant of an Option pursuant to the
Plan shall not be construed to imply or to constitute evidence of any agreement,
express or implied, on the part of the Company to retain the Optionee as a
member of the Company's Board of Directors.
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<PAGE> 8
13. WITHHOLDING OF TAXES. Whenever the Company proposes or is required
to deliver or transfer Shares in connection with the exercise of an Option, the
Company shall have the right to (a) require the recipient to remit or otherwise
make available to the Company an amount sufficient to satisfy any federal, state
and/or local withholding tax requirements prior to the delivery or transfer of
any certificate or certificates for such Shares or (b) take whatever other
action it deems necessary to protect its interests with respect to tax
liabilities. The Company's obligation to make any delivery or transfer of Shares
shall be conditioned on the Optionee's compliance, to the Company's
satisfaction, with any withholding requirement.
14. INTERPRETATION. The interpretation and construction by the
Committee of any provisions of the Plan or of any Option granted under the Plan,
and of any Option Document, shall be final, binding and conclusive.
15. GOVERNING LAW. The Plan and all Option Documents hereunder shall be
construed in accordance with and governed by the laws of the State of Delaware.
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