<PAGE>
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
RF POWER PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
1007 Laurel Oak Road
NEW JERSEY Voorhees, New Jersey 08043 22-2361086
- ---------- --------------------------- ----------
(State or other jurisdiction (Address of Principal Executive (I.R.S. Employer
of incorporation or Offices) (Zip Code) Identification
organization) No.)
RF Power Products, Inc. 1992 Stock Option Plan
RF Power Products, Inc. 1993 Non-Employee Directors
Stock Option Plan
RF Power Products, Inc. 1995 Stock Option Plan
(Full Title of the Plan)
----------------------
Joseph Stach
Chairman of the Board and President
RF Power Products, Inc.
1007 Laurel Oak Road
Voorhees, New Jersey 08043
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (609) 627-6100
---------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to offering price aggregate offering Registration
be registered be registered per share(1) price(1) fee
- ------------- ------------- ------------ -------- ----------------
<S> <C> <C> <C> <C>
Common Stock 768,399 $ 5.53125 $ 4,250,207 $ 1,288.00
par value $.01 shares
per share
</TABLE>
(1) Pursuant to Rule 457(h), these prices are estimated solely for the
purpose of calculating the registration fee and are based upon the average of
the high and low sales prices of the Registrant's common stock on the American
Stock Exchange on August 25, 1997.
There are also registered hereunder such additional indeterminate number of
shares as may be issued as a result of the antidilution provisions of the RF
Power Products, Inc. 1992 Stock Option Plan and the RF Power Products, Inc. 1993
Non-Employee Directors Stock Option Plan (collectively, the "Plans").
1
<PAGE>
STATEMENT
This Form S-8 Registration Statement is being filed with the Securities and
Exchange Commission (the "Commission") by RF Power Products, Inc., a New Jersey
corporation (the "Company"), in order to register (i) 618,399 shares of Common
Stock (the "Common Stock") which represents the anticipated number of shares
that will be available for issuance under the 1992 Stock Option Plan for five
years (beginning with the fiscal year 1997) pursuant to a provision which
increases the number of shares available thereunder by 1% of the total number of
shares of Common Stock outstanding on the last trading day of the fiscal year
ended November 30, 1996, and on the last trading day of each succeeding fiscal
year and (ii) 150,000 additional shares of Common Stock under the Company's 1993
Non-Employee Directors Stock Option Plan, all of which may be issued upon the
exercise of options granted under the Plans.
On March 12, 1993, the Company filed a Form S-8 Registration Statement
(No. 33-59414) with the Commission registering 800,000 shares of Common Stock to
be issued under the 1992 Stock Option Plan. On January 7, 1994, the Company
filed a Form S-8 Registration Statement (No. 33-73922) with the Commission
registering 400,000 shares of Common Stock to be issued under the 1992 Stock
Option Plan and 180,000 shares of Common Stock to be issued under the 1993 Non-
Employee Directors Stock Option Plan. The contents of both of those Registration
Statements are incorporated by reference in their entirety herein.
PART I
Item 1. PLAN INFORMATION.
Not included pursuant to Form S-8 instructions.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not included pursuant to Form S-8 instructions.
PART II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this registration
statement the following documents and information heretofore filed by the
Company under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") with the Commission:
(1) the Company's Annual Report on Form 10-K for the fiscal
year ended November 30, 1996;
(2) the Company's Quarterly Report on Form 10-Q for the
quarter ended February 28, 1997;
(3) the Company's Quarterly Report on Form 10-Q for the
quarter ended May 31, 1997; and
(4) the description of the common stock of the Company which
is contained in the Company's Registration Statement on
Form 10 dated May 19, 1992, as amended by Form 8 dated
July 14, 1992, filed by the Registrant with the Commission
pursuant to Section 12 of the Exchange Act, including any
amendments or reports filed for the purpose of updating
such description.
All reports and other documents subsequently filed by the Company 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
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 the filing of such reports and other documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
2
<PAGE>
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14A:3-5 of the New Jersey Business Corporation Act contains
provisions for mandatory and discretionary indemnification of a corporation's
directors, officers, employees and agents (collectively "corporate agents") and
related matters.
Under subsection 14A:3-5(2) a corporation has the power to indemnify
a corporate agent against expenses and liabilities in connection with any
pending, threatened or completed civil, criminal, administrative or arbitrative
action, suit or proceeding, and any appeal therein and in any inquiry or
investigation which could lead to such action, suit or proceeding involving the
corporate agent by reason of his being or having been such a corporate agent,
other than a proceeding by or in the right of the corporation, if such corporate
agent acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the corporation and, with respect to any
criminal proceeding, such corporate agent had no reasonable cause to believe his
conduct was unlawful.
Subsection 14A:3-5(3) provides for indemnification with respect to
derivative actions similar to that provided by subsection 14A:3-5(2). However,
indemnification is not provided under subsection 14A:3-5(3) in respect of any
claim, issue or matter as to which such corporate agent has been adjudged to be
liable to the corporation, unless and only to the extent that the proper court
determines upon application that despite the adjudication of liability, but in
view of all circumstances of the case, such corporate agent is fairly and
reasonably entitled to indemnity for the expenses that the court deems proper.
Subsection 14A:3-5(4) provides that indemnification against expenses is
mandatory to the extent that such corporate agent has been successful on the
merits or otherwise in any proceeding referred to in subsections 14A:3-5(2) and
14A:3-5(3) or in defense of any claim, issue or matter therein.
Subsection 14A:3-5(5) provides that any indemnification under
subsection 14A:3-5(2) and, unless ordered by a court, any indemnification under
subsection 14A:3-5(3), may be made by the corporation only as authorized in a
specific case upon a determination that indemnification is proper in the
circumstances because the corporate agent met the applicable standard of conduct
set forth in subsection 14A:3-5(2) or subsection 14A:3-5(3), and unless
otherwise provided in the certificate of incorporation or bylaws, such
determination will be made by the board of directors or a committee thereof,
acting by a majority vote of a quorum consisting of directors who are not
parties to or otherwise involved in the proceeding; or if such a quorum is not
obtainable, or, even if obtainable and such quorum of the board of directors or
committee by a majority vote of the disinterested directors so directs, by
independent legal counsel, in a written opinion, such counsel to be designated
by the board of directors; or by the shareholders if the certificate of
incorporation or bylaws or a resolution of the board of directors of the
shareholders so directs.
Subsection 14A:3-5(6) provides that expenses incurred by a corporate
agent in connection with a proceeding may be paid by the corporation in advance
of the final disposition of the proceeding as authorized by the board of
directors upon receipt of an undertaking by or on behalf of the corporate agent
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified as provided in this section.
Subsection 14A:3-5(7) provides that if a corporation upon application
of a corporate agent has failed or refused to provide indemnification required
under Section 14A:3-5(4) or permitted under subsections 14A:3-5(2), (3) and (6),
a corporate agent may apply to a court pursuant to the guidelines set forth in
this subsection for an award of indemnification by the corporation, and such
court may award indemnification and allow reasonable expenses pursuant to
Section 14A:3-5.
Subsection 14A:3-5(8) provides that the indemnification in advancement
of expenses provided by or granted pursuant to other subsections of this section
shall not exclude any other rights, including the right to be indemnified
against liabilities of expenses incurred in proceedings by or in the right of
the corporation, to which a corporate agent may be entitled under a certificate
of incorporation, bylaw, agreement, vote of shareholders, or otherwise; provided
that no indemnification shall be made to or on behalf of a corporate agent if a
judgment or other final adjudication adverse to the corporate agent establishes
that his acts or omissions were in breach of his duty of loyalty to the
corporation or its shareholders, as defined in subsection 14A:2-7(3), were not
in good faith or involved a knowing violation of law or resulted in receipt by
the corporate agent of an improper personal benefit.
3
<PAGE>
Subsection 14A:3-5(9) grants a corporation the power to purchase and
maintain insurance on behalf of any corporate agent against any expenses
incurred in any proceeding and any liabilities asserted against him by reason of
his being or having been a corporate agent, whether or not the corporation would
have the power to indemnify him against such expenses and liabilities under the
provisions of this section.
Subsection 14A:3-5(10) provides that the powers granted by this
section may be exercised by the corporation, notwithstanding the absence of any
provision in its certificate of corporation or bylaws authorizing the exercise
of such powers.
Subsection 14A:3-5(11) provides that except as required by subsection
14A:3-5(4), no indemnification shall be made or expenses advanced by a
corporation under this section, and none shall be ordered by a court, if such
action would be inconsistent with a provision of the certificate of
incorporation, a bylaw, a resolution of the board of directors or of the
shareholders, an agreement or other proper corporate action, in effect at the
time of the accrual of the alleged cause of action asserted in the proceeding,
which prohibits, limits or otherwise conditions the exercise of indemnification
powers by the corporation or the rights of indemnification to which a corporate
agent may be entitled.
Subsection 14A:3-5(12) provides that this section does not limit a
corporation's power to pay or reimburse expenses incurred by a corporate agent
in connection with the corporate agent's appearance as a witness in a proceeding
at a time when the corporate agent has not been made a part of this proceeding.
Section 7-2 of the Registrant's bylaws provides that except to the
extent expressly prohibited by law, each corporate agent shall be indemnified by
the Registrant against his expenses and liabilities in connection with any
pending, threatened or completed civil, criminal, administrative or arbitrative
action, suit or proceeding, and any appeal therein and any inquiry or
investigation which could lead to such action, suit or proceeding (a
"Proceeding") involving the corporate agent by reason of his having been such
corporate agent. The right to indemnification conferred by Section 7-2 shall be
a contract right and shall also include the right to be paid by the Registrant
the expenses incurred in connection with a proceeding in advance of its final
disposition except to the extent prohibited by applicable law.
Section 7-2 further provides that except to the extent that a
corporate agent has been successful on the merits or otherwise in a proceeding
or in defense of any claim, issue or matter therein, any indemnification under
Section 7-2 shall be made only as authorized in a specific case by the Board of
Directors or committee thereof, acting by a majority vote of a quorum consisting
of directors who are not parties to or otherwise involved in the proceeding, or
by the shareholders.
Section 7-3 states that expenses incurred by a corporate agent in
connection with a proceeding may be paid by the Registrant in advance of the
final disposition of the proceeding as authorized by the Board of Directors upon
receipt of undertaking by or on behalf of the corporate agent to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified as provided in Article 7 of the New Jersey Business Corporation Act.
Section 7-4 states that the Registrant may purchase and maintain
insurance on behalf of any corporate agent against any expenses incurred in a
proceeding and any liabilities asserted against such person by reason of such
person having been a corporate agent. The Registrant may purchase such insurance
from, or such insurance may be reinsured in whole or in part by, an insurer
owned by or otherwise affiliated with the Registrant, whether or not such
insurer does business with other insureds.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
4
<PAGE>
Item 8. EXHIBITS.
Exhibit
Number Description
4.1 Amended and Restated Certificate of Incorporation of the
Registrant (Exhibit 3.1 to the Registrant's Annual Report
on Form 10-K for the fiscal year ended November 30, 1996)
4.2 Amended and Restated By-laws of the Registrant (Exhibit 3.2
to the Registrant's Annual Report on Form 10-K for the
fiscal year ended November 30, 1996)
4.3 RF Power Products, Inc. 1992 Stock Option Plan, as
amended of the Registrant dated March 24, 1993
4.4 RF Power Products, Inc. 1993 Non-Employee Directors Stock
Option Plan, as amended
4.5 RF Power Products, Inc. 1995 Stock Option Plan
5.1 Opinion and Consent of Sills Cummis Zuckerman Radin
Tischman Epstein & Gross, P.A. with respect to the legality
of the securities being registered
23.1 Consent of Sills Cummis Zuckerman Radin Tischman Epstein &
Gross, P.A. (contained in their opinion filed herewith as
Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Grant Thornton L.L.P.
24.1 Power of Attorney executed by certain officers and
directors of the Company
Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, That paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
- -------- -------
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any
5
<PAGE>
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the 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 Act and will
be governed by the final adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Voorhees, State of New Jersey, on August 28, 1997.
RF Power Products, Inc.
By: /s/ Joseph Stach
---------------------------------------
Name: Joseph Stach
Title: Chairman of the Board and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Joseph Stach and Domenic Golato and each of them
severally, 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 (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or 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 either of
them, or their or his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Joseph Stach Chairman of the Board and August 28, 1997
- ----------------------- President (Chief Executive
Joseph Stach Officer)
Treasurer and CFO (Principal August 28, 1997
/s/ Domenic Golato Accounting Officer and Chief
- ----------------------- Financial Officer)
Domenic Golato
/s/ Christopher Ben Secretary and Chief Operating August 28, 1997
- ----------------------- Officer
Christopher Ben
/s/ Arthur Zafiropoulo Director August 28, 1997
- -----------------------
Arthur Zafiropoulo
/s/ Gerald Starek Director August 28, 1997
- -----------------------
Gerald Starek
7
<PAGE>
EXHIBITS
--------
The following documents are filed as Exhibits hereto:
<TABLE>
<CAPTION>
Exhibit Sequential Page No. or
Number Description Incorporated by Reference to:
- ------ ----------- -----------------------------
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of Exhibit 3.1 to the Registrant's
the Registrant, as amended Annual Report on Form 10-K for
the fiscal year ended
November 30, 1996
4.2 Amended and Restated By-laws of the Registrant Exhibit 3.2 to the Registrant's
Annual Report on Form 10-K
for the fiscal year ended
November 30, 1996
4.3 RF Power Products, Inc. 1992 Stock Option Plan, as Page
amended, of the Registrant dated March 24, 1993
4.4 RF Power Products, Inc. 1993 Non-Employee Directors Page
Stock Option Plan, as amended
4.5 RF Power Products, Inc. 1995 Stock Option Plan Page
5.1 Opinion and Consent of Sills Cummis Zuckerman Radin Page
Tischman Epstein & Gross, P.A. with respect to the
legality of the securities being registered
23.1 Consent of Sills Cummis Zuckerman Radin Tischman Filed herewith as Exhibit 5.1
Epstein & Gross, P.A.
23.2 Consent of KPMG Peat Marwick LLP Page
23.3 Consent of Grant Thornton L.L.P.
24.1 Power of Attorney executed by certain officers of the Included in Signature Page
Company
</TABLE>
8
<PAGE>
RF POWER PRODUCTS, INC.
_________________
EXHIBITS
for
REGISTRATION STATEMENT
ON
FORM S-8
_________________
<PAGE>
Exhibit 4.3
RF Power Products, Inc. 1992 Stock Option Plan
<PAGE>
As Amended 4/25/97
RF POWER PRODUCTS, INC.
1992 STOCK OPTION PLAN
----------------------
1. Purpose. RF Power Products, Inc. (the "Company") hereby adopts
-------
the RF Power Products, Inc. 1992 Stock Option Plan (the "Plan"). The Plan is
intended to recognize the contributions made to the Company by employees
(including employees who are members of the Board of Directors), consultants and
advisors of the Company or any Affiliate, to provide such persons with
additional incentive to devote themselves to the future success of the Company
or an Affiliate, and to improve the ability of the Company or an Affiliate to
attract, retain, and motivate individuals upon whom the Company's sustained
growth and financial success depend, by providing such persons with an
opportunity to acquire or increase their proprietary interest in the Company
through receipt of rights to acquire the Company's Common Stock, par value $.01
per share (the "Common Stock").
2. Definitions. Unless the context clearly indicates otherwise, the
-----------
following terms shall have the following meanings:
(a) "Affiliate" means a corporation which is a
<PAGE>
parent corporation or a subsidiary corporation with respect to the Company
within the meaning of section 424(e) or (f) of the Code.
(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 members of the Board of Directors who
are not eligible to receive Options under the Plan or a committee designated by
the Board of Directors as described in Section 3 of the Plan.
(f) "Company" means RF Power Products, Inc., a New Jersey
corporation.
(g) "Disability" shall have the meaning set forth in section
22(e)(3) of the Code.
(h) "Fair Market Value" shall have the meaning set forth in
Section 8(b) of the Plan.
(i) "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.
2
<PAGE>
(j) "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.
(k) "Option" means either an ISO or a Non-qualified Stock Option
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
which sets forth the terms and conditions of each grant of Options.
(n) "Option Price" means the price at which Shares may be
purchased upon exercise of an Option, as calculated pursuant to subsection
8(b).
(o) "Shares" means the shares of Common Stock of the Company
which are the subject of Options.
3. Administration of the Plan. The Plan shall be administered by a
--------------------------
committee composed of two or more of the members of the Company's Board of
Directors who are not eligible to receive Options under the Plan; however, the
Board may designate two committees to operate and administer the Plan in its
stead, one of such committees composed of two or more of its
3
<PAGE>
directors who are not eligible to receive Options under the Plan to operate and
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 also employees, consultants or
advisors of the Company) to operate and administer the Plan 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 Securities Exchange
Act of 1934, as amended, or any successor regulation.
(a) 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.
(b) Grants. The Committee shall from time to time at 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
4
<PAGE>
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.
(c) Exculpation. No member of the Committee shall be personally
-----------
liable for monetary damages as such for any action taken or any failure to take
any action in connection with the administration of the Plan or the granting of
Options thereunder unless (i) the member of the Committee has breached or failed
to perform the duties of his office within the meaning of Chapter 6 of the
Business Corporation Act of New Jersey, New Jersey Revised Statutes Title 14A,
as amended, and (ii) the breach or failure to perform constitutes self-dealing,
willful misconduct or recklessness; provided, however, that the provisions of
this subsection 3(c) shall not apply to the responsibility or liability of a
member of the Committee pursuant to any criminal statute or to the liability of
a member of the Committee for the payment of taxes pursuant to local, state or
federal law.
5
<PAGE>
(d) Indemnification. Service on the Committee shall constitute
---------------
service as a member of the Board of Directors of the Company. Each member of the
Committee shall be entitled without further act on his part to indemnity from
the Company to the fullest extent provided by applicable law and the Company's
Certificate of Incorporation and/or Bylaws in connection with or arising out of
any action, suit or proceeding with respect to the administration of the Plan or
the granting of Options thereunder in which he or she may be involved by reason
of his or her being or having been a member of the Committee, whether or not he
or she continues to be such member of the Committee at the time of the action,
suit or proceeding.
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 (including employees who are members
-----------
of the Board of Directors of the Company or its Affiliates), consultants and
advisors of the Company or its Affiliates shall be eligible to receive Options
hereunder. The Committee, in its sole discretion, shall determine whether an
individual qualifies as an employee, consultant or advisor of the Company or its
Affiliates.
6. Shares Subject to Plan. Prior to November 30,
----------------------
6
<PAGE>
1996, the aggregate maximum number of Shares for which Options may be granted
pursuant to the Plan is 1,200,000. On and after November 30, 1996, subject to
stockholder approval at the 1997 Annual Stockholders Meeting, the aggregate
number of Shares which may be issued pursuant to the Plan is (i) 1,200,000
Shares, plus (ii) an amount equal to 1% of the total number of shares of Common
Stock outstanding on the last trading day of the fiscal year ended November 30,
1996, plus (iii) additional amounts equal to 1% of the total number of shares of
Common Stock outstanding on the last trading day of each succeeding fiscal year,
such amounts to be added at the end of each such year. 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 an Option granted
pursuant to the Plan.
7. Term of the Plan. The Plan is effective as of July 10, 1992, the
----------------
date on which it was adopted by the Board of Directors, subject to the approval
of the Plan on or before July 10, 1993, by 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, or by consent
7
<PAGE>
in writing of shareholders representing a majority of all outstanding voting
stock of the Company. No Option may be granted under the Plan after July 10,
2002. No Option granted pursuant to the Plan may be exercised before the Plan is
so approved by the Company's shareholders. If the Plan is not so approved on or
before July 10, 1993, all Options granted under the Plan shall be null and void.
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.
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.
8
<PAGE>
(b) Option Price. Each Option Document shall state the Option
-------------
Price which, for all ISOs, Shall be at least 100% of the Fair Market Value of
the Shares at the time the Option is granted as determined by the Committee in
accordance with this subsection 8(b); provided, however, that if an ISO is
granted to an Optionee who then owns, directly or by attribution under section
424(d) of the Code, shares possessing more than 10% 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 at the time
the Option is granted. If the Common Stock is traded in a public market, then
the Fair Market Value per share shall be, if the Shares are listed on a national
securities exchange or included in the NASDAQ National Market System, the last
reported sale price thereof on the relevant date, or, if the Shares are not so
listed or included, the mean between the last reported "bid" and "asked" prices
thereof, 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, on the
relevant date. 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
--------
9
<PAGE>
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 registration
statement or a Notification under Regulation A under the Securities Act of 1933,
as amended (the "Act")), contain the Optionee's acknowledgment in form and
substance satisfactory to the Company that (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 and 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
10
<PAGE>
pending (i) registration under federal or state securities laws, (ii) the
receipt of an opinion that an appropriate exemption from such registration is
available, (iii) the listing or inclusion of the Shares on any securities
exchange or in 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
Subsection 8(c) has occurred.
(d) Medium of Payment. An Optionee shall pay for Shares (i) in cash,
-----------------
(ii) by certified check payable to the order of the Company, or (iii) by such
other mode of payment as the Committee may approve, 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 the Company's Common Stock
held by the Optionee for at least six months. If payment is made in whole or in
part in shares of the Company's Common Stock, then the Optionee shall deliver to
the Company certificates registered in the name of such Optionee representing
the shares owned by such Optionee, free of all liens, claims and encumbrances of
every kind and having an aggregate Fair Market Value on the date of delivery
that is at least as great as the Option Price of the Shares (or
11
<PAGE>
relevant portion thereof) with respect to which such Option to be exercised by
the payment in shares of Common Stock, accompanied by stock powers duly endorsed
in blank by the Optionee. Notwithstanding the foregoing, the Committee may
impose from time to time such limitations and prohibitions on the use of shares
of the Common Stock to exercise an Option as it deems appropriate.
(e) Termination of Options.
(i) No Option shall be exercisable after the first to
occur of the following:
(A) Expiration of the Option term specified in the
Option Document, which for an ISO shall not exceed (1) ten years from the date
of grant, or (2) five years from the date of grant if the Optionee on the date
of grant owns, directly or by attribution under section 424(d) of the Code,
shares possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or of an Affiliate;
(B) 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 Section 9 below;
(C) Expiration of one year from the date the Optionee's
employment or service with the Company or its
12
<PAGE>
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 any sort of disloyalty to
the Company or an Affiliate, including, without limitation, fraud, embezzlement,
theft, commission of a felony or proven dishonesty in the course of his
employment or Service, or has disclosed trade secrets or confidential
information of the Company or an Affiliate. In such event, in addition to
immediate termination of the Option, the Optionee shall automatically forfeit
all Shares for which the Company has not yet delivered the share certificates
upon refund by the Company of the Option Price 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 pursuant to Section 9 hereof.
(ii) Notwithstanding the foregoing, the Committee may extend the
period during which an Option may be exercised to a date no later than the date
of the expiration of
13
<PAGE>
the Option term specified in the Option Documents, as they may be amended,
provided that any change pursuant to this subsection 8(e)(ii) that would cause
an ISO to become a Non-qualified Stock Option may be made only with the consent
of the Optionee.
(A) 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, 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.
(B) Holding Period. No Option granted under the Plan
--------------
may be exercised unless such period of time as may be specified in the Option
Documents has elapsed from the date of grant.
(C) Limitation on ISO Grants. No ISO shall be granted
------------------------
if, for any calendar year during which such ISO may be exercised, the Fair
Market Value of the Shares (determined at the time the ISO is granted) with
respect to which such ISO is exercisable for the first time by the Optionee,
plus the aggregate Fair Market Value (determined at such time) of any Shares
with respect to which any other incentive stock option of
14
<PAGE>
the Company or its Affiliates are exercisable for the first time by the
Optionee, exceeds $100,000.
(D) Other Provisions. 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.
(E) Amendment. 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 consent of the
Optionee shall not be required for any amendment made under Section 9 of the
Plan.
9. Change of Control. In the event of a Change of Control, the
-----------------
Committee may take whatever action with respect to the Options outstanding it
deems necessary or desirable, including, without limitation, accelerating the
expiration or termination date or the date of exercisability in the respective
Option Documents.
A "Change of Control" shall be deemed to have occurred upon the
earliest to occur of the following events: (i) the date
15
<PAGE>
the shareholders of the Company (or the Board of Directors, if shareholder
action is not required) approve a plan or other arrangement pursuant to which
the Company will be dissolved or liquidated, or (ii) the date the shareholders
of the Company (or the Board of Directors, if shareholder action is not
required) approve a definitive agreement to sell or otherwise dispose of
substantially all of the assets of the Company, or (iii) the date the
shareholders of the Company (or the Board of Directors, if shareholder action is
not required) and the shareholders of the other constituent corporation (or its
board of directors if shareholder 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 the Company's Common Stock or other common
voting stock immediately prior to the merger or consolidation will hold at least
a majority of the ownership of common stock of the surviving corporation (and,
if one class of common stock is not the only class of voting securities entitled
to vote on the election of directors of the surviving corporation, a majority of
the voting power of the surviving corporation's voting securities) immediately
after the merger or consolidation, which common stock (and if applicable voting
securities) is to be held in the same proportion as such holders' ownership of
Common Stock or other common voting stock of the Company immediately before the
merger
16
<PAGE>
or consolidation, or (iv) the date any entity, person or group (within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act
of 1934, as amended) 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, outstanding shares of the Company's voting
stock representing more than fifty percent (50%) of the voting power of all of
the Company's outstanding voting stock.
10. Adjustments on Changes in Capitalization. The aggregate
----------------------------------------
number of Shares and class of shares as to which Options may be granted
hereunder, and the Option Price, 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, and
17
<PAGE>
any such determination by the Committee shall be final, binding and conclusive;
provided, however, that no adjustment shall be made which will cause an ISO to
lose its status as such without the consent of the Optionee, except for
adjustments made pursuant to Section 9 hereof.
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: (i) change the
class of individuals eligible to receive an ISO, (ii) increase the maximum
number of Shares as to which Options may be granted, or (iii) make any other
change or amendment as to which shareholder approval is required in order to
satisfy the conditions set forth in Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended, 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 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. 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
18
<PAGE>
constitute evidence of any agreement,express or implied, on the part of the
Company or any Affiliate to retain the Optionee in the employ 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 each 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 Plan is intended to enable transactions
--------------
under the Plan with respect to directors and officers (within the meaning of
Section 16(a) under the Securities Exchange Act of 1934, as amended) to satisfy
the conditions of Rule 16b-3 promulgated under the Securities Exchange Act of
1934, as amended; any provision of the Plan which would cause a conflict with
such conditions shall be deemed null and void to the extent permitted by
applicable law and in the
19
<PAGE>
discretion of the Board of Directors.
20
<PAGE>
Exhibit 4.4
RF Power Products, Inc. 1993 Non-Employee Director Stock Option Plan
<PAGE>
RF POWER PRODUCTS, INC.
1993 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
---------------------------------------------
1. Purpose. RF Power Products, Inc. (the "Company") hereby adopts the RF
-------
Power Products, Inc. 1993 Non-Employee Directors Stock Option Plan (the "Plan").
The Plan is intended to recognize the contributions made to the Company by the
non-employee members of the Board of Directors of the Company or any Affiliate
(as defined below), to provide such persons with additional incentive to devote
themselves to the future success of the Company or an Affiliate, and to improve
the ability of the Company or an Affiliate to attract, retain, and motivate
individuals upon whom the Company's sustained growth and financial success
depend, by providing such persons with an opportunity to acquire or increase
their proprietary interest in the Company through receipt of options to purchase
the Company's Common Stock, par value $.01 per Share (the "Common Stock").
2. Definitions. Unless the context clearly indicates otherwise, the
-----------
following terms shall have the following meanings:
(a) "Affiliate" means a corporation which is a parent corporation or a
subsidiary corporation with respect to the Company within the meaning of Section
424(e) or (f) of the Code.
(b) "Board of Directors" or "Board" means the Board of Directors of the
Company.
(c) "Change in Control" shall have the meaning as set forth in Section 10
of the Plan.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
<PAGE>
(e) "Committee" shall have the meaning set forth in Section 3 of the Plan.
(f) "Company" means RF Power Products, Inc., a Delaware corporation.
(g) "Disability" shall have the meaning set forth in Section 22(e)(3) of
the Code.
(h) "Fair Market Value" shall have the meaning set forth in Subsection 8(c)
of the Plan.
(i) "Non-employee Director" means a member of the Board of Directors who is
not an employee of the Company or an Affiliate.
(j) "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.
(k) "Option" means a Non-qualified Stock Option 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, as applicable, which sets forth the terms and conditions of each grant of
Options.
(n) "Option Price" means the price at which Shares may be purchased upon
exercise of an Option, as calculated pursuant to Subsection 8(c) of the Plan.
(o) "Rule 16b-3" means Rule 16b-3 promulgated under the Securities Exchange
Act of 1934, as amended.
(p) "Shares" means the shares of Common Stock of the Company which are the
subject of Options.
2
<PAGE>
3. Administration of the Plan. The Plan shall be administered by the
--------------------------
Board of Directors of the Company; however, the Board of Directors may designate
a committee composed of two or more of its Non-employee Directors to operate and
administer the Plan in its stead.
(a) 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.
(b) Administration. 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.
(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 Subsection 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, and (iv) any transaction from which the member
derived an improper personal benefit.
(d) Indemnification. Service on the Committee shall constitute service as
---------------
a member of the Board of Directors of the Company. Each member of the Committee
shall be entitled without further act on his or her part to indemnity from the
Company to the fullest extent provided by applicable law and the Company's
Certificate of Incorporation
3
<PAGE>
and/or By-laws in connection with or arising out of any action, suit or
proceeding with respect to the administration of the Plan or the granting of
Options thereunder in which he or she may be involved by reason of his or her
being or having been a member of the Committee, whether or not he or she
continues to be such member of the Committee at the time of the action, suit or
proceeding.
(e) Limitations on Grants of Options to Consultants and Advisors. With
------------------------------------------------------------
respect to the grant of Options to consultants or advisors, bona fide services
shall be rendered by consultants or advisors and such services must not be in
connection with the offer or sale of securities in a capital-raising
transaction.
4. Grants under the Plan. Grants under the Plan may only be in the form
---------------------
of a Non-qualified Stock Option.
5. Eligibility. All Non-employee Directors shall be eligible to receive
-----------
Options hereunder. The Committee, in its sole discretion, shall determine
whether an individual is eligible to receive Options under the Plan.
6. Shares Subject to Plan. The aggregate maximum number of Shares for
----------------------
which Options may be granted pursuant to the Plan will be increased to one
hundred and ninety-five thousand (195,000), 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. The Plan is effective as of March 24, 1993 the date
----------------
on which it was adopted by the Board of Directors, subject to the approval of
the Plan on or
4
<PAGE>
before March 23, 1994 by 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. If the Plan is not so approved on or before March 23, 1994, all Options
granted under the Plan shall be null and void. No Option may be granted under
the Plan after March 23, 2003.
8. Option Documents and Terms. Each Option granted under the Plan shall
--------------------------
be a Non-qualified Stock Option. 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 on
the terms and subject to the conditions and restrictions of the Plan.
(b) Timing of Grants; Number of Shares Subject to Options. Each Non-
-----------------------------------------------------
Employee Director shall be granted automatically, in accordance with the
provisions of this Plan:
(i) upon appointment to the Board of Directors, an Option to
purchase fifteen thousand (15,000) Shares; and
(ii) annually, commencing on the last business day of November 1995
and on the last business day of November thereafter, an Option to purchase
fifteen thousand (15,000) Shares.
(c) Option Price. Each Option Document shall state the Option Price which
------------
shall be equal to the Fair Market Value of the Shares on the date the option is
granted. If
5
<PAGE>
the Common Stock is traded in a public market, then the Fair Marker Value per
share shall be, if the Common Stock is listed on a national securities exchange
or included in the NASDAQ National Market System, the last reported sale price
thereof on the relevant date, or, if the Common Stock is not so listed or
included, the mean between the last reported "bid" and "asked" prices thereof on
the relevant date, as reported on NASDAQ or, if not so reported, as reported by
the National Daily Quotation Bureau, Inc. or as reported in a customary
financial reporting service, as applicable and as the Committee determines.
(d) Exercise. Each Option shall be exercisable six (6) months after the
--------
date on which it was granted. No Option shall be deemed to have been exercised
prior to the receipt by the Company of written notice of such exercise and
payment in full of the Option Price for the Shares to be purchased. Each such
notice shall specify the number of Shares to be purchased and shall (unless the
Shares are covered by a then current registration statement or a Notification
under Regulation A under the Securities Act of 1933, as amended (the "Act")),
contain the Optionee's acknowledgment in form and substance satisfactory to the
Company that (a) such Shares are being purchased for investment and not for
distribution or resale (other than a distribution or resale which, in the
opinion of counsel satisfactory to the Company, may be made without violating
the registration provisions of the Act), (b) the Optionee has been advised and
understands that (i) the Shares have not been registered under the Act and are
"restricted securities" within the meaning of Rule 144 under the Act and are
subject to restrictions on transfer and (ii) the Company is under no obligation
to register the Shares under the Act or to take any action which would make
available to the Optionee any exemption from such registration, (c) such Shares
may not be transferred without compliance with all
6
<PAGE>
applicable federal and state securities laws, and (d) an appropriate legend
referring to the foregoing restrictions on transfer and any other restrictions
imposed under the Option Documents may be endorsed on the certificates.
Notwithstanding the foregoing, if the Company determines that issuance of Shares
should be delayed pending (A) registration under federal or state securities
laws, (B) the receipt of an opinion of counsel acceptable to the Company that an
appropriate exemption from such registration is available, (C) the listing or
inclusion of the Shares on any securities exchange or an automated quotation
system or (D) the consent or approval of any governmental regulatory body whose
consent or approval is necessary in connection with the issuance of such Shares,
the Company may defer exercise of any Option granted hereunder until any of the
events described in this Subsection 8(d) has occurred.
(e) 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 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. Without limiting the foregoing, the Committee may provide
an Option Document that payment may be made in whole or in part in shares of the
Company's Common Stock. If payment is made in whole or in part in shares of the
Company's Common Stock, then the Optionee shall deliver to the Company
certificates registered in the name of such Optionee representing the shares
owned by such Optionee, free of all liens, claims and encumbrances of every kind
and having an aggregate Fair Market Value on the date of delivery that is at
least as great as the Option Price of the Shares (or relevant portion thereof)
with respect to which such Option is to be exercised by the payment in shares of
Common Stock, accompanied by stock powers duly endorsed in blank by the
Optionee.
7
<PAGE>
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.
(f) Termination of Options.
----------------------
All Options granted pursuant to this Plan shall be exercisable until the
first to occur of the following:
(i) Expiration of ten (10) years from the date of grant;
(ii) Expiration of three months from the date the Optionee's service
as a Non-employee Director terminates for any reason other than Disability or
death; or
(iii) Expiration of one year from the date the Optionee's service
with Company as a Non-employee Director terminates due to the Optionee's
Disability or death.
(g) 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
such person. 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
8
<PAGE>
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.
(h) Other Provisions. Subject to the provisions of the Plan, the Option
----------------
Documents shall contain such other provisions including, without limitation,
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 consent of the Optionee shall not be required for any amendment made
under Section 9 of the Plan, as applicable.
9. Change in Control. In the event of a Change in Control, the Committee
-----------------
may take whatever action it deems necessary or desirable with respect to the
Options outstanding, including, without limitation, accelerating the expiration
or termination date in the respective Option Documents to a date no earlier than
thirty (30) days after notice of such acceleration is given to the Optionees. In
addition to the foregoing, in the event of a Change in Control, Options granted
pursuant to the Plan shall become immediately exercisable in full.
A "Change of Control" shall be deemed to have occurred upon the earliest to
occur of the following events: (i) 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,
or (ii) 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
9
<PAGE>
of the assets of the Company, or (iii) 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 the Company's Common Stock immediately prior to the merger or
consolidation will hold at least a majority of the ownership of common stock of
the surviving corporation (and, if one class of common stock is not the only
class of voting securities entitled to vote on the election of directors of the
surviving corporation, a majority of the voting power of the surviving
corporation's voting securities) immediately after the merger or consolidation,
which common stock (and if applicable voting securities) is to be held in the
same proportion as such holders' ownership of Common Stock of the Company
immediately before the merger or consolidation, or (iv) the date any entity,
person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Securities Exchange Act of 1934, as amended) other than (A) 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 (B) any
person who, on the date the Plan is effective, shall have been the beneficial
owner of or have voting control over shares of Common Stock of the Company,
possessing more than ten percent (10%) of the aggregate voting power of the
Company's Common Stock shall have become the beneficial owner of, or shall have
obtained voting control over, more than ten percent (10%) of the outstanding
shares of the Company's Common Stock, or (v) 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
10
<PAGE>
less than two (2) years, unless the nomination for election of each new director
who was not a director at the beginning of such two (2) 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.
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,
and any such determination by the Committee shall be final, binding and
conclusive.
10. 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. The
provisions of the Plan (i) which directors shall be granted Options pursuant to
Section 8; (ii) the amount of Shares subject to Options granted pursuant to
Section 8; (iii) the price at which Shares subject to Options granted pursuant
to Section 8 may be purchased and (iv) the timing of grants of Options pursuant
to Section 8 shall not be amended more than once every six months, other than to
comport with changes in the Code or the Employee
11
<PAGE>
Retirement Income Security Act of 1974, as amended. No amendment to the Plan
shall adversely affect any outstanding Option, however, without the consent of
the Optionee that holds such Option. Notwithstanding the foregoing, no amendment
to or modification of the Plan that (i) materially increases the benefits
accruing to eligible individuals; (ii) except as provided in Section 10 of this
Plan, materially increases the number of shares that may be issued under the
Plan; or (iii) materially modifies the eligibility requirements for
participation under the Plan, shall be effective without shareholder approval.
11. 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 as a member of the Company's Board of Directors or in any other
capacity.
12. 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.
13. Interpretation. The Plan is intended to enable transactions under the
--------------
Plan with respect to directors and officers (within the meaning of Section 16(a)
under the Securities Exchange Act of 1934, as amended) to satisfy the conditions
of Rule 16b-3; to the extent that any provision of the Plan, or any provisions
of any Option granted
12
<PAGE>
pursuant to the Plan, would cause a conflict with such conditions or would cause
the administration of the Plan as provided in Section 3 to fail to satisfy the
conditions of Rule 16b-3, such provision shall be deemed null and void to the
extent permitted by applicable law.
13
<PAGE>
Exhibit 4.5
RF Power Products, Inc. 1995 Stock Option Plan
<PAGE>
RF POWER PRODUCTS, INC.
-----------------------
1995 STOCK OPTION PLAN
----------------------
ARTICLE I
PURPOSE
-------
1.1. RF Power Products, Inc. 1995 Stock Option Plan is intended to
advance the interests of RF Power Products, Inc. and its stockholders and
subsidiaries and to recognize the contributions made to RF Power Products, Inc.
by employees (including employees who are members of the Board of Directors),
consultants and advisors of RF Power Products, Inc. or any of its affiliates, to
provide such persons with additional incentive to devote themselves to the
future success of RF Power Products, Inc. or its affiliates, and to improve the
ability of RF Power Products, Inc. or its affiliates to attract, retain, and
motivate individuals upon whom RF Power Products, Inc.'s sustained growth and
financial success depend, by providing such persons with an opportunity to
acquire or increase their proprietary interest in RF Power Products, Inc.
through receipt of rights to acquire RF Power Products, Inc. stock.
1.2. All shares of Common Stock issuable upon exercise of Options
granted hereunder shall have previously been authorized by the Company and its
shareholders in connection with the exercise of stock options which have not yet
been granted under the 1992 Plan.
ARTICLE II
DEFINITIONS
-----------
2.1. "Board" means the Board of Directors of the Company.
2.2. "Code" means the Internal Revenue Code of 1986, as amended.
2.3. "Common Stock" means the Company's Common Stock, par value $.01
per share.
2.4. "Committee" means the Stock Option Committee appointed by the
Board or any successor committee appointed by the Board to administer the Plan.
2.5. "Company" means RF Power Products, Inc.
<PAGE>
2.6. "Date of Grant" means the date on which an Option becomes
effective in accordance with Section 6.1 hereof.
2.7. "Eligible Person" means any person who is an officer, employee
(including an employee who is a member of the Board), consultant or advisor of
the Company or any Subsidiary.
2.8. "Fair Market Value" means the last reported sales prices of the
Common Stock on the American Stock Exchange on the date as of which fair market
value is to be determined or, in the absence of any reported sales of Common
Stock on such date, on the first preceding date on which any such sale shall
have been reported. If Common Stock is not listed on the American Stock
Exchange on the date as of which fair market value is to be determined, the
Committee shall determine in good faith the fair market value in whatever manner
it considers appropriate.
2.9. "Incentive Stock Option" means a stock option granted under the
Plan that is intended to meet the requirements of Section 422 of the Code and
regulations promulgated thereunder.
2.10. "Nonqualified Stock Option" means a stock option granted under
the Plan that is not an Incentive Stock Option.
2.11. "Option" means an Incentive Stock Option or a Nonqualified
Stock Option granted under the Plan.
2.12. "Optionee" means a person to whom an Option has been granted,
which Option has not expired, under the Plan.
2.13. "Option Price" means the price at which each share of Common
Stock subject to an Option may be purchased, determined in accordance with
Section 6.2 hereof.
2.14. "Plan" means the RF Power Products, Inc. 1995 Stock Option Plan.
2.15. "Stock Option Agreement" means an agreement between the Company
and an Optionee under which the Optionee may purchase Common Stock under the
Plan.
2.16. "Subsidiary" means a subsidiary corporation of the Company,
within the meaning of Section 424(f) of the Code.
2
<PAGE>
2.17. "Ten-Percent Owner" means an Optionee who, at the time an
Incentive Stock Option is granted, owns stock possessing more than ten percent
of the total combined voting power of all classes of stock of the Company, its
parent, if any, or any Subsidiary, within the meaning of Sections 422(b)(6) and
424(d) of the Code.
2.18. "1992 Plan" means the Company's 1992 Stock Option Plan.
ARTICLE III
ELIGIBILITY
-----------
All Eligible Persons are eligible to receive a grant of an Option
under the Plan. The Committee shall, in its sole discretion, determine and
designate from time to time those Eligible Persons who are to be granted an
Option.
ARTICLE IV
ADMINISTRATION
--------------
4.1. Committee Members. The Plan shall be administered by a
-----------------
Committee which shall be comprised of no fewer than two members of the Board.
Each Committee member shall be ineligible, and shall have been ineligible for
the one-year period prior to appointment thereto, for selection as a person to
whom stock options or other equity securities of the Company may be granted or
awarded pursuant to the Plan or, solely to the extent necessary to be deemed a
"disinterested person" within the meaning of Rule 16b-3 under the Securities
Exchange Act of 1934, pursuant to any similar plan of the Company or any
affiliate of the Company. Each Committee member shall qualify as an "outside
director" under Section 162(m) of the Code.
4.2. Committee Authority. Subject to the express provisions of the
-------------------
Plan, the Committee shall have the authority, in its discretion, to determine
the Eligible Persons to whom an Option shall be granted, the time or times at
which an Option shall be granted, the number of shares of Common Stock subject
to each Option, the Option Price of the shares subject to each Option and the
time or times when each Option shall become exercisable and the duration of the
exercise period.
Subject to the express provisions of the Plan, the Committee shall
also have discretionary authority to interpret the Plan, to prescribe, amend and
rescind rules and regulations relating to it, to determine the details and
provisions of each Stock Option Agreement, and to make all
3
<PAGE>
the determinations necessary or advisable in the administration of the Plan. All
such actions and determinations by the Committee shall be conclusively binding
for all purposes and upon all persons. No Committee member shall be liable for
any action or determination made in good faith with respect to the Plan, any
Option or any Stock Option Agreement entered into hereunder.
4.3. Majority Rule. A majority of the members of the Committee (or,
-------------
if less than three, all of the members) shall constitute a quorum, and any
action taken by a majority present at a meeting at which a quorum is present or
any action taken without a meeting evidenced by a writing executed by a majority
of the whole Committee shall constitute the action of the Committee.
4.4. Company Assistance. The Company shall supply full and timely
------------------
information to the Committee on all matters relating to Eligible Persons, their
employment, death, disability or other termination of employment, and such other
pertinent facts as the Committee may require. The Company shall furnish the
Committee with such clerical and other assistance as is necessary in the
performance of its duties.
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN; CHANGE IN CONTROL
--------------------------------------------------
5.1. Number of Shares. Subject to adjustment pursuant to the
----------------
provisions of this Article V, the maximum number of shares of Common Stock which
may be issued and sold hereunder shall be 265,635 shares, which constitute all
of the shares of Common Stock which had previously been authorized by the
Company and its shareholders in connection with the exercise of stock options
which have not yet been granted under the 1992 Plan. Shares of Common Stock
issued and sold under the Plan may be either authorized but unissued shares or
shares held in the Company's treasury. Shares of Common Stock covered by an
Option that shall have been exercised shall not again be available for an Option
grant. If an Option shall terminate for any reason (including, without
limitation, the cancellation of an Option pursuant to Section 6.6 hereof)
without being wholly exercised, the number of shares to which such Option
termination relates shall again be available for grant hereunder.
5.2. Antidilution. Subject to Section 5.4 hereof, in the event of a
------------
reorganization, recapitalization, stock split, stock dividend, combination of
shares, merger or consolidation, or the sale, conveyance, or other transfer by
4
<PAGE>
the Company of all or substantially all of its property, or any other change in
the corporate structure or shares of the Company, pursuant to any of which
events the then outstanding shares of Common Stock are split up or combined, or
are changed into, become exchangeable at the holder's election for, or entitle
the holder thereof to, other shares of stock, or in the case of any other
transaction described in Section 424(a) of the Code, the Committee may change
the number and kind of shares (including by substitution of shares of another
corporation) subject to the Options and/or the Option Price of such shares in
the manner that it shall deem to be equitable and appropriate. In no event may
any such change be made to an Incentive Stock Option which would constitute a
"modification" within the meaning of Section 424(h)(3) of the Code.
5.3. Maximum Grant. The number of shares of Common Stock underlying
-------------
options that may be granted under the Plan to any one person during any one
calendar year shall not exceed 200,000 shares. To the extent required for
exemption under Section 162(m) of the Code, (i) such maximum number of option
shares may be adjusted in a manner consistent with Section 5.2 and (ii) any
Option shares that are cancelled or repriced shall not again be available for
grant under the maximum share limit.
5.4. Change in Control. Upon a "change in control" of the Company
-----------------
(as defined below), each outstanding Option, to the extent that it shall not
otherwise have become exercisable, shall become fully and immediately vested and
exercisable (without regard to any otherwise applicable installment exercise
requirement under Section 6.3 hereof) and an Optionee shall surrender his Option
and receive with respect to each share of Common Stock issuable under such
Option outstanding at such time, a payment in cash equal to the excess of the
Fair Market Value of the Common Stock at the time of the change in control over
the Option Price of the Common Stock; provided, however, that no such vesting
-------- -------
and cash payment shall occur if (i) the change in control has been approved by
at least two-thirds of the members of the Board who were serving as such
immediately prior to such transaction and (ii) provision has been made in
connection with such transaction for (a) the continuation of the Plan and/or the
assumption of such Options by a successor corporation (or a parent or subsidiary
thereof) or (b) the substitution for such Options of new options covering the
stock of a successor corporation (or a parent or subsidiary thereof), with
appropriate adjustments as to the number and kinds of shares and exercise
prices. In the event of any such continuation, assumption or substitution, the
Plan and/or such Options shall continue in the manner and under the terms so
provided.
5
<PAGE>
For purposes of this Section 5.4 a "change in control" of the Company
shall mean (i) a merger, consolidation, or reorganization of the Company with
one or more other corporations in which the Company is not the surviving
corporation; (ii) a sale or other transfer of substantially all of the assets of
the Company to another corporation; (iii) any transaction or series of
transactions (including, without limitation, a transaction in which the Company
is the surviving corporation) that results in any person or entity (other than
any Subsidiary) becoming owner of more than 50 percent of the combined voting
power of all classes of stock of the Company; (iv) a change or series of changes
in the composition of the Board such that a majority of its members shall cease
to consist of "Continuing Directors" (meaning directors of the Company who
either were directors on the date this Plan is approved by the Board or who
subsequently became directors and whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least two-thirds of the
then existing directors); or (v) a dissolution or liquidation of the Company.
ARTICLE VI
OPTIONS
-------
6.1. Grant of Option. An Option may be granted to any Eligible
---------------
Person selected by the Committee. The grant of an Option shall first be
effective upon the date it is approved by the Committee, except to the extent
the Committee shall specify a later date upon which the grant of an Option shall
first be effective. Each Option shall be designated, at the discretion of the
Committee, as an Incentive Stock Option or a Nonqualified Stock Option. The
Company and the Optionee shall execute a Stock Option Agreement which shall set
forth such terms and conditions of the Option as may be determined by the
Committee to be consistent with the Plan, and which may include additional
provisions and restrictions that are not inconsistent with the Plan.
6.2. Option Price. The Option Price shall be determined by the
------------
Committee; provided, however, such Option Price shall in no event be less than
-------- -------
85 percent of the Fair Market Value of a share of Common Stock on the Date of
Grant; provided, however, in the case of an Incentive Stock Option, such Option
-------- -------
Price shall in no event be less than 100% of the Fair Market Value of a share of
Common Stock on the Date of Grant (subject to Section 8.1 hereof in the case of
a Ten-Percent Owner).
6.3. Vesting; Term of Option. The Committee, in
-----------------------
6
<PAGE>
its sole discretion, may prescribe in the Stock Option Agreement for an Optionee
the installment period over which an Option shall vest and become exercisable,
and may accelerate the exercisability of any Option at any time. An Option may
become 100 percent vested and exercisable upon an Optionee's death or disability
to the extent provided in Article VII hereof. The period during which a vested
Option may be exercised shall be ten years from the Date of Grant (subject to
Section 8.1 hereof in the case of a Ten-Percent Owner), unless a shorter
exercise period is specified by the Committee in the Stock Option Agreement for
an Optionee.
6.4. Option Exercise. An Option may be exercised in whole or in part
---------------
at any time, with respect to whole shares only, within the period permitted for
the exercise thereof, and shall be exercised by written notice of intent to
exercise the Option with respect to a specified number of shares delivered to
the Company at its principal office, and payment in full to the Company at said
office of the amount of the Option Price for the number of shares of the Common
Stock with respect to which the Option is then being exercised. Payment of the
Option Price shall be made (i) in cash or by cash equivalent, (ii) at the
discretion of the Committee, in Common Stock (not subject to limitations on
transfer) valued at the Fair Market Value of such shares on the trading date
immediately preceding the date of exercise or (iii) at the discretion of the
Committee, by a combination of such cash and such Common Stock. In addition to
and at the time of payment of the Option Price, the Optionee shall pay to the
Company in cash or, at the discretion of the Committee, in Common Stock the full
amount of all federal and state withholding and other employment taxes
applicable to the taxable income of such Optionee resulting from such exercise.
6.5. Nontransferability of Option. No Option shall be transferred by
----------------------------
an Optionee other than by will or the laws of descent and distribution. No
transfer of an Option by the Optionee by will or by laws of descent and
distribution shall be effective to bind the Company unless the Company shall
have been furnished with written notice thereof and an authenticated copy of the
will and/or such other evidence as the Committee may deem necessary to establish
the validity of the transfer. During the lifetime of an Optionee, the Option
shall be exercisable only by him, except that, in the case of an Optionee who is
legally incapacitated, the Option shall be exercisable by his guardian or legal
representative.
6.6. Cancellation, Substitution and Amendment of Options. The
---------------------------------------------------
Committee shall have the authority to effect, at any time and from time to time,
with the consent of the affected Optionees, (i) the cancellation of any or all
7
<PAGE>
outstanding Options and the grant in substitution therefor of new Options
covering the same or different numbers of shares of Common Stock and having an
Option Price which may be the same as or different than the Option Price of the
cancelled Options or (ii) the amendment of the terms of any and all outstanding
Options.
6.7. Right of First Refusal. At the time of grant, the Committee may
-----------------------
provide in connection with any grant made under the Plan that the shares of
Common Stock received pursuant to the exercise of an Option shall be subject to
a right of first refusal, pursuant to which the Optionee shall be required to
offer to the Company any shares that the Optionee wishes to sell, with the price
being the then Fair Market Value of the Common Stock, subject to such other
terms and conditions as the Committee may specify at the time of grant.
ARTICLE VII
TERMINATION OF EMPLOYMENT OR SERVICE
------------------------------------
7.1. Death. If an Optionee shall die at any time after the Date of
-----
Grant and while he is an Eligible Person, the executor or administrator of the
estate of the decedent, or the person or persons to whom an Option shall have
been validly transferred in accordance with Section 6.5 hereof pursuant to will
or the laws of descent and distribution, shall have the right, during the period
ending one year after the date of the Optionee's death (subject to Sections 6.3
and 8.1 hereof concerning the maximum term of an Option), to exercise the
Optionee's Option to the extent that it was exercisable at the date of the
Optionee's death and shall not have been previously exercised. The Committee may
determine at or after grant to make any portion of his Option that is not
exercisable at the date of death immediately vested and exercisable.
7.2. Disability. If an Optionee's employment with or service to the
-----------
Company or any Subsidiary shall be terminated as a result of his permanent and
total disability (within the meaning of Section 22(e)(3) of the Code) at any
time after the Date of Grant and while he is an Eligible Person, the Optionee
(or in the case of an Optionee who is legally incapacitated, his guardian or
legal representative) shall have the right, during a period ending one year
after the date of his disability (subject to Sections 6.3 and 8.1 hereof
concerning the maximum term of an Option), to exercise such Option to the extent
that it was exercisable at the date of such termination of employment or service
and shall not have been exercised. The Committee may determine at or after grant
to make any portion of his Option that is
8
<PAGE>
not exercisable at the date of termination of employment or service due to
disability immediately vested and exercisable.
7.3. Termination for Cause. If an Optionee's employment with or
---------------------
service to the Company or any Subsidiary shall be terminated for cause, the
Optionee's right to exercise any exercised portion of his Option shall
immediately terminate and all rights thereunder shall cease. For purposes of
this Section 7.3 termination for "cause" shall include, but not be limited to,
embezzlement or misappropriation of corporate funds, any acts of dishonesty
resulting in conviction for a felony, misconduct resulting in material injury to
the Company or any Subsidiary, significant activities harmful to the reputation
of the Company or any Subsidiary, a significant violation of Company or
Subsidiary policy, willful refusal to perform, or substantial disregard of, the
duties properly assigned to the Optionee, or a significant violation of any
contractual, statutory or common law duty of loyalty to the Company or any
Subsidiary. The Committee shall have the power to determine whether the Optionee
has been terminated for cause and the date upon which such termination for cause
occurs. Any such determination shall be final, conclusive and binding upon the
Optionee.
7.4. Other Termination of Employment or Service. If an Optionee's
------------------------------------------
employment with or service to the Company or any Subsidiary shall be terminated
for any reason other than death, permanent and total disability or termination
for cause, the Optionee shall have the right, during the period ending 90 days
after such termination (subject to Sections 6.3 and 8.1 hereof concerning the
maximum term of an Option), to exercise such Option to the extent that it was
exercisable at the date of such termination of employment or service and shall
not have been exercised. For purposes of this Section 7.4, an Optionee shall not
be considered to have terminated employment with or service to the Company or
any Subsidiary until the expiration of the period of any military, sick leave or
other bona fide leave of absence, up to a maximum period of 90 days (or such
greater period during which the Optionee is guaranteed reemployment either by
statute or contract).
ARTICLE VIII
INCENTIVE STOCK OPTIONS
-----------------------
8.1. Ten-Percent Owners. Notwithstanding any other provisions of
------------------
this Plan to the contrary, in the case of an Incentive Stock Option granted to a
Ten-Percent Owner, (i) the period during which any such Incentive Stock Option
9
<PAGE>
may be exercised shall not be greater than five years from the Date of Grant and
(ii) the Option Price of such Incentive Stock Option shall not be less than 110
percent of the Fair Market Value of a share of Common Stock on the Date of
Grant.
8.2. Annual Limits. No Incentive Stock Option shall be granted to an
-------------
Optionee as a result of which the aggregate fair market value (determined as of
the date of grant) of the stock with respect to which incentive stock options
are exercisable for the first time in any calendar year under the Plan, and any
other stock option plans of the Company, any Subsidiary or any parent
corporation, would exceed $100,000, determined in accordance with Section 422(d)
of the Code. This limitation shall be applied by taking options into account in
the order in which granted.
8.3. Disqualifying Dispositions. If shares of Common Stock acquired
--------------------------
by exercise of an Incentive Stock Option are disposed of within two years
following the Date of Grant or one year following the transfer of such shares to
the Optionee upon exercise, the Optionee shall, within 10 days after such
disposition, notify the Company in writing of the date and terms of such
disposition and provide such other information regarding the disposition as the
Committee may reasonably require.
8.4. Other Terms and Conditions. Any Incentive Stock Option granted
--------------------------
hereunder shall contain such additional terms and conditions, not inconsistent
with the terms of this Plan, as are deemed necessary or desirable by the
Committee, which terms, together with terms of this Plan, shall be intended and
interpreted to cause such Incentive Stock Option to qualify as an "incentive
stock option" under Section 422 of the Code.
ARTICLE IX
STOCK CERTIFICATES
------------------
9.1. Issuance of Certificates. Subject to Section 9.2 hereof, the
------------------------
Company shall issue a stock certificate in the name of the Optionee (or other
person exercising the Option in accordance with the provisions of the Plan) for
the shares of Common Stock purchased by exercise of an Option as soon as
practicable after due exercise and payment of the aggregate Option Price for
such shares. A separate stock certificate or separate stock certificates shall
be issued for any shares of Common Stock purchased pursuant to the exercise of
an Option that is an Incentive Stock Option, which certificate or certificates
shall not include any shares of Common Stock that were purchased pursuant to the
10
<PAGE>
exercise of an Option that is a Nonqualified Stock Option.
9.2. Conditions. The Company shall not be required to issue or
----------
deliver any certificate for shares of Common Stock purchased upon the exercise
of any Option granted hereunder or any portion thereof prior to fulfillment of
all of the following conditions:
(a) The completion of any registration or other qualification
of such shares, under any federal or state law or under the rulings or
regulations of the Securities and Exchange Commission or any other
governmental regulatory body, that the Committee shall in its sole
discretion deem necessary or advisable;
(b) The obtaining of any approval or other clearance from any
federal or state governmental agency which the Committee shall in its sole
discretion determine to be necessary or advisable;
(c) The lapse of such reasonable period of time following the
exercise of the Option as the Committee from time to time may establish for
reasons of administrative convenience;
(d) Satisfaction by the Optionee of all applicable withholding
taxes or other withholding liabilities; and
(e) If required by the Committee, in its sole discretion, the
receipt by the Company from an Optionee of (i) a representation in writing
that the shares of Common Stock received upon exercise of an Option are
being acquired for investment and not with a view to distribution and (ii)
such other representations and warranties as are deemed necessary by
counsel to the Company.
9.3. Legends. The Company reserves the right to legend any certif-
-------
icate for shares of Common Stock, conditioning sales of such shares upon
compliance with applicable federal and state securities laws and regulations.
ARTICLE X
EFFECTIVE DATE, TERMINATION AND AMENDMENT
-----------------------------------------
10.1.Effective Date. The Plan shall become effective on the date of
--------------
its adoption by the Board; provided, however, that no Option shall be
-------- -------
exercisable by an
11
<PAGE>
Optionee unless and until the Plan shall have been approved by the stockholders
of the Company, which approval shall be obtained within 12 months before or
after the adoption of the Plan by the Board. If the stockholders fail to approve
the Plan within one year from the Effective Date, any Options granted hereunder
shall be null and void and of no effect.
10.2.Termination. The Plan shall terminate on the date immediately
-----------
preceding the tenth anniversary of the earlier of the date the Plan is adopted
by the Board or the date the Plan is approved by the Company's stockholders.
The Board may, in its sole discretion and at any earlier date, terminate the
Plan. Notwithstanding the foregoing, no termination of the Plan shall in any
manner affect any Option theretofore granted without the consent of the Optionee
or the permitted transferee of the Option.
10.3.Amendment. The Board may at any time and from time to time and
---------
in any respect, amend or modify the Plan; provided, however, that, solely to the
-------- -------
extent required by Rule 16b-3 under the Securities Exchange Act of 1934, the
approval of the Company's stockholders will be required for any amendment that
(i) changes the class of persons eligible for the grant of an Option, as
specified in Article III hereof, (ii) increases (other than as described in
Section 5.2 or 5.4 hereof) the maximum number of shares of Common Stock subject
to Options granted under the Plan, as specified in Section 5.1 hereof, or (iii)
materially increases the benefits accruing to Optionees under the Plan, within
the meaning of Rule 16b-3 under the Securities Exchange Act of 1934. Any such
approval shall be by the affirmative votes of the stockholders of the Company
present, or represented, and entitled to vote at a meeting duly held in
accordance with applicable state law and the Certificate of Incorporation and
By-Laws of the Company. Notwithstanding the foregoing, no amendment or
modification of the Plan shall in any manner affect any Option theretofore
granted without the consent of the Optionee or the permitted transferee of the
Option.
ARTICLE XI
MISCELLANEOUS
-------------
11.1.Employment. Nothing in the Plan, in the grant of any Option or
----------
in any Stock Option Agreement shall confer upon any Eligible Person the right to
continue in the capacity in which he is employed or retained by the Company or
any Subsidiary. Notwithstanding anything contained in the Plan to the contrary,
unless otherwise provided in a Stock Option Agreement, no Option shall be
affected by any
12
<PAGE>
change of duties or position of the Optionee (including a transfer to or from
the Company or any Subsidiary), so long as such Optionee continues to be an
Eligible Person.
11.2.Rights as Shareholder. An Optionee or the permitted transferee
---------------------
of an Option shall have no rights as a shareholder with respect to any shares
subject to such Option prior to the purchase of such shares by exercise of such
Option as provided herein. Nothing contained herein or in the Stock Option
Agreement relating to any Option shall create an obligation on the part of the
Company to repurchase any shares of Common Stock purchased hereunder.
11.3.Other Compensation and Benefit Plans. The adoption of the Plan
------------------------------------
shall not affect any other stock option or incentive or other compensation plans
in effect for the Company or any Subsidiary, nor shall the Plan preclude the
Company from establishing any other forms of incentive or other compensation for
employees of the Company or any Subsidiary. The amount of any compensation
deemed to be received by an Optionee as a result of the exercise of an Option or
the sale of shares received upon such exercise shall not constitute compensation
with respect to which any other employee benefits of such Optionee are
determined, including, without limitation, benefits under any bonus, pension,
profit sharing, life insurance or salary continuation plan, except as otherwise
specifically determined by the Board or the Committee or provided by the terms
of such plan.
11.4.Plan Binding on Successors. The Plan shall be binding upon the
--------------------------
Company, its successors and assigns, and the Optionee, his executor,
administrator and permitted transferees.
11.5.Construction and Interpretation. Whenever used herein, nouns in
-------------------------------
the singular shall include the plural, and the masculine pronoun shall include
the feminine gender. Heading of Articles and Sections hereof are inserted for
convenience and reference and constitute no part of the Plan.
11.6.Severability. If any provision of the Plan or any Stock Option
------------
Agreement shall be determined to be illegal or unenforceable by any court of law
in any jurisdiction, the remaining provisions hereof and thereof shall be
severable and enforceable in accordance with their terms, and all provisions
shall remain enforceable in any other jurisdiction.
11.7.Governing Law. The validity and construction of this Plan and
-------------
of the Stock Option Agreements shall be
13
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governed by the laws of the State of Delaware.
The RF Power Products, Inc. 1995 Stock Option Plan was duly adopted
and approved by the Board of Directors of RF Power Products, Inc. on the [ ] day
of [ ], 1995.
Secretary of RF Power Products, Inc.
The RF Power Products, Inc. 1995 Stock Option Plan was duly approved
by the stockholders of RF Power Products, Inc. on the 2nd day of May, 1996.
Secretary of RF Power Products, Inc.
14
<PAGE>
Exhibit 5.1
Opinion and Consent of Sills Cummis Zuckerman
Radin Tischman Epstein & Gross, P.A. with respect
to the legality of the securities being registered
<PAGE>
[Sills Cummins Zuckerman Radin Tischman Epstein & Gross, P.A.]
August 28, 1997
R.F. Power Products, Inc.
1007 Laurel Oak Road
Voorhees, New Jersey 08043
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have acted as special New Jersey counsel to R.F. Power Products, Inc., a
New Jersey corporation (the "Corporation"), for the limited purpose of rendering
this opinion in connection with the Corporation's Registration Statement on Form
S-8 (the "Registration Statement") relating to 768,399 shares of the
Corporation's common stock, par value $.01 per share (the "Common Stock") being
offered in connection with the RF Power Products, Inc. 1992 Stock Option Plan
(as amended, the "1992 Plan") and the RF Power Products, Inc. 1993 Non-Employee
Directors Stock Option Plan (the "1993 Plan"). Collectively, the 1992 Plan and
the 1993 Plan are referred to herein as the "Option Plans."
We have examined and are familiar with (i) the Corporation's amended and
restated certificate of incorporation and bylaws, (ii) the Option Plans and
(iii) such other documents and instruments as we have considered necessary for
the purposes of the opinions hereinafter set forth.
In our examination, we have assumed the authenticity of original documents,
the accuracy of copies and the genuineness of signatures. We have relied upon a
certificate of an officer of the Corporation with respect to factual matters
underlying the legal conclusions set forth herein. In accordance with our
undertaking respecting this opinion, we have not attempted to verify any such
factual matters, by document review, discussion with persons having knowledge of
the facts, or otherwise.
We have not made a review of the laws of any state or jurisdiction other
1
<PAGE>
than the laws of the United States and the State of New Jersey; accordingly, we
express no opinion as to the laws of any other state or other jurisdiction.
We have with your permission assumed that appropriate action will have been
taken prior to the sale of the Common Stock to which the Registration Statement
relates to register and qualify such Common Stock for sale under applicable
state "blue sky" and other securities laws, and no opinion is expressed with
respect thereto.
The opinions set forth herein are based upon currently existing statutes,
rules, regulations and judicial decisions which might be altered by future
changes in any of those sources of law.
On the basis of and subject to the foregoing, we are of the opinion that:
1. The Corporation is organized and existing as a corporation under the
laws of the State of New Jersey.
2. Any shares of Common Stock issued and sold by the Corporation upon the
exercise of options granted pursuant to the provisions of any of the
Option Plans will constitute validly authorized and issued Common
Stock and will be fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. This consent is not to be construed as an admission
that we are a person whose consent is required to be filed with the Registration
Statement under the provisions of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Sills Cummis Zuckerman Radin
Tischman Epstein & Gross, P.A.
2
<PAGE>
Exhibit 23.2
Consent of KPMG Peat Marwick LLP
<PAGE>
Consent of Independent Auditors
The Board of Directors
RF Power Products, Inc.:
We consent to the use of our reports dated January 17, 1997, relating to the
consolidated balance sheet of RF Power Products, Inc. and subsidiary as of
November 30, 1996, and the related consolidated statements of earnings,
shareholders' equity, and cash flows and related schedule for the year ended
November 30, 1996, incorporated by reference in this registration statement on
Form S-8, which reports are included in the November 30, 1996 Annual Report on
Form 10-K of RF Power Products, Inc.
/s/ KPMG Peat Marwick LLP
Philadelphia, Pennsylvania
August 27, 1997
<PAGE>
Exhibit 23.3
Consent of Grant Thornton L.L.P.
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated January 10, 1996 accompanying the
consolidated financial statements included in the Annual Report of RF Power
Products, Inc. and Subsidiary on Form 10-K of the year ended November 30, 1995.
We hereby consent to the incorporation by reference of said report in the
Registration Statement of RF Power Products, Inc. and Subsidiary on Form S-8.
/s/ GRANT THORNTON LLP
Philadelphia, Pennsylvania
August 28, 1997
