SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MICRO COMPONENT TECHNOLOGY, INC.
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(Exact name of registrant as specified in its charter)
Minnesota
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(State or other jurisdiction of incorporation or organization
41-0985960
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(I.R.S. Employer Identification No.)
2340 West County Road C
St. Paul, MN 55113-2528
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(Address of Principal Executive Offices)
Incentive Stock Option Plan
Former Aseco Corp. 1986 Incentive Stock Option Plan
Former Aseco Corp. 1993 Omnibus Stock Plan
Former Aseco Corp. 1993 Non-Employee Director Stock Option Plan
Consulting Agreements with Former Aseco Corp. Officers
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(Full title of the plan)
Roger E. Gower, President
Micro Component Technology, Inc.
2340 West County Road C
St. Paul, MN 55113-2528
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(Name and address of agent for service)
(612) 697-4020
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(Telephone number, including area code, if agent for service)
<PAGE>
-----------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share(1) Offering Price(1) Registration Fee
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,742,000 shares $7.688 $13,392,496 $3,723.11
($.01 par value)
==============================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee, the
price per share is the average of the high and low prices on January 28, 2000.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Incorporated by reference into the registration statement are the
following: (a) the Company's latest annual report filed pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 (the "Act") or the latest
prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, that
contains audited financial statements for the Company's latest fiscal year for
which such statements have been filed; (b) all other reports filed pursuant to
Section 13(a) or 15(d) of the Act since the end of the fiscal year covered by
the document referred to in (a) above; (c) the description of the Company's
common stock which is contained in a registration statement filed under the Act
including any amendment or report filed for the purposes of updating such
description. In addition, all documents filed subsequently by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Act prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold, or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into the registration statement and to be
a part thereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VII, Section 1, of the Bylaws of the Company provides that each
director, officer, employee or agent shall be fully indemnified by the
corporation in the manner and to the extent provided by Minnesota law. Minnesota
Statutes, Section 302A.521, generally requires a corporation to indemnify its
directors, officers, employees or agents against judgments, penalties, fines and
expenses, including attorneys' fees, incurred in connection with their official
capacities, provided that such person (i) has not been indemnified by another
with respect to the same matter, (ii) acted in good faith, (iii) received no
improper personal benefit, (iv) had no reasonable cause to believe that his
conduct was unlawful and (v) reasonably believed that his conduct was in the
best interests of the corporation.
Article VII, Section 1, of the Bylaws of the Company also authorizes
the corporation to purchase insurance to cover its directors, officers,
employees and agents for claims asserted against them in their official
capacities.
The Company has purchased officers' and directors' liability insurance.
The policy provides that the insurer will pay, on behalf of the Company, 100
percent of any amount the Company is required or permitted to pay to indemnify
directors and officers due to a claim
<PAGE>
against such director or officer for errors, omissions, misstatements,
misleading statements, negligence, or breach of duty while acting in their
official capacities, or asserted against them solely by reason of their office,
with certain exclusions. The insurer will pay a maximum of $5,000,000 pursuant
to this policy, and will only make payment to the extent such damages exceed
$50,000 or $150,000, depending upon the nature of the claims.
Article 10 of the Articles of Incorporation of the Company provides
that a director of the corporation shall have no liability to the corporation or
its stockholders for monetary damages for breach of fiduciary duty, to the
fullest extent permitted by Minnesota law. Minnesota Statutes, Section 302A.251,
subd. 4, provides that a director is not liable to a corporation or its
shareholders for monetary damages resulting from a breach of fiduciary duty as a
director, except for liability (1) for any breach of the director's duty of
loyalty to the corporation or its shareholders; (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; (3) for transactions from which the director derived an improper personal
benefit; (4) for payments in violation of the provisions of Section 302A.559 of
the Minnesota Business Corporation Act, as it may be amended from time to time;
or (5) for any purchase or sale of securities in violation of Section 80A.23 of
the Minnesota Securities Act, as it may be amended from time to time.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4A. Incentive Stock Option Plan, as amended through September 27,
1999 (filed herewith).
4B. Former Aseco Corp. 1986 Incentive Stock Option Plan (filed
herewith).
4C. Former Aseco Corp. 1993 Omnibus Stock Plan (filed herewith).
4D. Former Aseco Corp. 1993 Non-Employee Director Stock Option
Plan (filed herewith).
4E. Amendment to Severance Agreement between Sebastian J. Sicari
and Aseco Corp. (filed herewith).
4F. Amendment to Separation Agreement between Carl S. Archer and
Aseco Corp. (filed herewith)
5. Opinion Regarding Legality (filed herewith).
23A. Consent of Deloitte & Touche, LLP (filed herewith).
23B. Consent of Best & Flanagan LLP (included in Exhibit 5 and
filed herewith).
24. Powers of Attorney (filed herewith).
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The Company 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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed
<PAGE>
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Company 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 St. Paul, and State of Minnesota on this 31st
day of January, 2000.
MICRO COMPONENT TECHNOLOGY, INC.
(Registrant)
By: /s/ Roger S. Gower
--------------------------------------
Roger E. Gower, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on this 31st day of January, 2000.
<PAGE>
Signature Capacity
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Principal Executive Officer and Director
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Roger E. Gower
Principal Financial Officer and Principal
- ------------------------------- Accounting Officer
Jeffrey S. Mathiesen
* Director
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Donald J. Kramer
* Director
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David M. Sugishita
* Director
- -------------------------------
Donald VanLuvanee
* Director
- -------------------------------
Patrick Verderico
* Director
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D. James Guzy
*By:
---------------------------
Roger E. Gower
Pursuant to Power of Attorney
The above person signing as directors are all of the members of the Company's
Board of Directors.
<PAGE>
The Plans. Pursuant to the requirements of the Securities Act of 1933,
the Compensation Committee, which administers the plans described herein, has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of St. Paul, and State
of Minnesota, on this 31st day of January, 2000.
Incentive Stock Option Plan
Former Aseco Corp. 1986 Incentive Stock Option Plan
Former Aseco Corp. 1993 Omnibus Stock Plan
Former Aseco Corp. 1993 Non-Employee
Director Stock Option Plan
Consulting Agreements with Former Aseco
Corp. Officers
By: *
-----------------------------------------
Donald R. VanLuvanee
Compensation Committee Chairman
*By: /s/ Roger E. Gower
----------------------------------------
Roger E. Gower
Pursuant to Power of Attorney
<PAGE>
EXHIBIT INDEX
4A. Incentive Stock Option Plan, as amended through September 27, 1999
(filed herewith).
4B. Former Aseco Corp. 1986 Incentive Stock Option Plan (filed herewith).
4C. Former Aseco Corp. 1993 Omnibus Stock Plan (filed herewith).
4D. Former Aseco Corp. 1993 Non-Employee Director Stock Option Plan (filed
herewith).
4E. Amendment to Severance Agreement between Sebastian J. Sicari and Aseco
Corp. (filed herewith).
4F. Amendment to Separation Agreement between Carl S. Archer and Aseco
Corp. (filed herewith).
5. Opinion Regarding Legality (filed herewith).
23A. Consent of Deloitte & Touche, LLP (filed herewith).
23B. Consent of Best & Flanagan LLP (included in Exhibit 5 and filed
herewith).
24. Powers of Attorney (filed herewith).
EXHIBIT 4A
MICRO COMPONENT TECHNOLOGY, INC.
INCENTIVE STOCK OPTION PLAN
(as amended through September 27, 1999)
ARTICLE I.
PURPOSE
The purpose of this Plan is to provide a means whereby Micro Component
Technology, Inc. (the "Company") may be able, by granting options to purchase
stock in the Company, to attract and retain persons of ability as key employees
of the Company or of any parent or subsidiary corporation of the Company (the
"Related Corporations"), and to motivate such employees through an increased
personal interest in the Company and the Related Corporations to exert their
best efforts on behalf of the Company and the Related Corporation, and thus to
advance the interest of such corporations and benefit their stockholders. Both
options which qualify for favorable tax treatment under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), and options which do not
so qualify, may be granted under the Plan.
ARTICLE II.
RESERVATION OF SHARES
A total of 1,500,000 shares (or 2,300,000 shares if the Agreement and
Plan of Merger with Aseco Corporation is approved), of the authorized but
unissued Common Stock of the Company, is reserved for issue upon the exercise of
options granted under this Plan. If any option expires or terminates for any
reason without having been exercised in full, the unpurchased shares covered
thereby shall become available for additional options which may be issued to
persons eligible under the Plan so long as it remains in effect. Shares reserved
for issue as provided herein shall cease to be reserved upon termination of the
Plan.
<PAGE>
ARTICLE III.
ADMINISTRATION
(a) The Plan shall be administered by the Compensation
Committee of the Board of Directors of the Company (the "Committee") which shall
be appointed by the directors and which shall consist of two or more
disinterested directors. A disinterested director is one who is ineligible to
receive options under the Plan, and who has been ineligible to receive options
under the Plan during the preceding 12 months. Vacancies in the Committee shall
be filled by the Board.
(b) The Committee shall have full power to construe and
interpret the plan and to establish and amend rules and regulations for its
administration, subject to the express provisions of the Plan.
(c) The Committee shall determine which employees of the
Company or of any Related Corporations shall be granted options hereunder, the
number of shares for which each option shall be granted, and any limitations on
the exercise of the option in addition to those imposed by this Plan. In
determining the employees to whom options shall be granted and the number of
shares to be covered by each option, the Committee shall apply such criteria as
it determines appropriate from time to time. The maximum number of shares for
which any employee may be granted options under the Plan in any calendar year
shall be limited to 300,000 shares.
<PAGE>
ARTICLE IV.
ELIGIBILITY
An option may be granted to any officer or other key employee provided
that any person to whom an option is granted shall be an employee of the Company
or of a Related Corporation at the time an option is granted to him or her.
ARTICLE V.
PRICE
The option price per share of stock, to be determined from time to time
by the Committee, shall not be less than the fair market value of the stock on
the date an option to purchase the same is granted. The fair market value of the
stock as of any date in any month shall be the closing market price for the
stock on the 15th day of such month, or on the trading day closest to the 15th
if the stock does not trade on the 15th. If there is no closing market price for
the stock, the Committee shall use such other information deemed appropriate by
the Committee. No options shall be granted to any employee who at the time
directly or indirectly owns more than ten percent of the combined voting power
of all classes of stock of the Company or of a Related Corporation, unless the
exercise price is not less than 110 percent of the fair market value of such
stock on the date of grant, and unless the option is not exercisable more than
five years after the date of grant.
ARTICLE VI.
CHANGES IN PRESENT STOCK
In the event of a recapitalization, merger, consolidation,
reorganization, stock dividend, stock split or other change in capitalization
affecting the Company's present capital stock,
<PAGE>
appropriate adjustment may be made by the Committee in the number and kind of
shares and the option price of shares which are or may become subject to options
granted or to be granted hereunder.
ARTICLE VII.
EXERCISE OF OPTIONS
An optionee shall exercise an option by delivery of a signed, written
notice to the Company, specifying the number of shares to be purchased, together
with payment of the full purchase price for the shares. The Company may accept
payment from a broker on behalf of the optionee and may, upon receipt of signed,
written instructions from the optionee, deliver the shares directly to the
broker. The date of receipt by the Company of the final item required under this
paragraph shall be the date of exercise of the option.
ARTICLE VIII.
OPTION PROVISIONS
Each option granted under the Plan shall be evidenced by a Stock Option
Agreement executed by the Company and the optionee, and shall be subject to the
following terms and conditions, and such other terms and conditions as may be
prescribed by the Committee:
(a) Dollar Limitation. Each option grant shall constitute an
incentive stock option eligible for favorable tax treatment under Section 422 of
the Code, provided that no more than $100,000 of such options (based upon the
fair market value of the underlying shares as of the date of grant) can first
become exercisable for any employee in any calendar year. To the extent any
option grant exceeds the $100,000 dollar limitation, it shall constitute a
nonqualified stock option. Each stock option agreement shall specify the extent
to which it is an incentive and/or a
<PAGE>
nonqualified stock option. For purposes of applying the $100,000 limitation,
options granted under this Plan and under all other plans of the Company and the
Related Corporations which are qualified under Section 422 of the Code shall be
included.
(b) Payment. The full purchase price of the shares acquired
upon exercise of any option shall be paid in cash, by certified or cashier's
check, or in the form of shares of the Company's Common Stock with a fair market
value equal to the full purchase price and free and clear of all liens and
encumbrances.
(c) Exercise Period. The period within which an option must be
exercised shall be determined by the Compensation Committee at the time of
grant. The exercise period shall be subject to a maximum of ten years, or five
years for an employee who directly or indirectly owns more than ten percent of
the combined voting power of all classes of stock of the Company or a Related
Corporation. An option may not be exercised during the first year after the date
of grant. The option shall become exercisable to the extent of 50 percent of the
shares on the first anniversary of the date of grant and 100 percent of the
shares on the second anniversary of the date of grant. To the extent
exercisable, an option may be exercised in whole or in part. The Committee may
impose different or additional conditions with respect to length of service
which must be satisfied prior to exercise of all or any part of an option. For
options granted on or after November 4, 1998, the Committee, in its discretion,
may accelerate the vesting of any of such options while they remain outstanding.
Outstanding options shall become immediately exercisable in
full in the event that the Company is acquired by merger, purchase of all or
substantially all of the Company's assets, or purchase of a majority of the
outstanding stock by a single party or a group acting in concert.
<PAGE>
(d) Rights of Optionee Before Exercise. The holder of an
option shall not have the rights of a stockholder with respect to the shares
covered by his or her option until such shares have been issued to him or her
upon exercise of an option.
(e) No Right to Continued Employment. Nothing herein shall be
construed to confer upon any optionee any right to continue in the employ of the
Company or of any Related Corporation or to interfere in any way with the right
of the Company or of any Related Corporation as employer to terminate his or her
employment at any time, nor to derogate from the terms of any written employment
agreement between such corporation and the optionee.
(f) Termination of Employment. If the optionee's employment is
terminated other than by death or for conduct which is contrary to the best
interests of the Company, the optionee may, within one month of such
termination, or within 90 days of such termination for options granted on or
after June 8, 1994, exercise any unexercised portion of his or her option to the
extent he or she was entitled to do so at the time of such termination.
If termination of employment is effected by death of the
optionee, the option, or any portion thereof, may be exercised to the extent the
optionee was entitled to do so at the time of his or her death, by his or her
executor or administrator or other person entitled by law to the optionee's
rights under the option, at any time within six months subsequent to the date of
death.
If an optionee's employment is terminated by the Company for
conduct which is contrary to the best interests of the Company, as determined by
the Company in its sole discretion, the unexercised portion of the optionee's
option shall expire automatically on the date of termination of his or her
employment.
Notwithstanding the foregoing, no option shall be exercisable
subsequent to the date of expiration of the option term and no option shall be
exercisable subsequent to the termination of the optionee's employment except as
specifically provided in this paragraph (f).
<PAGE>
(g) Special Rule for California. Notwithstanding paragraph
(f), if a California optionee's employment is terminated, the optionee may,
within six months of such termination for death or disability, or within 90 days
for any other termination, exercise any unexercised portion of his or her option
to the extent he or she was entitled to do so at the time of such termination.
This provision shall apply only to options granted when the Common Stock is not
exempt from registration in California pursuant to a NASDAQ/NMS exemption or
otherwise.
(h) Non-transferability of Option. No option shall be
transferable by the optionee otherwise than by will or by the laws of descent
and distribution, and each option shall be exercisable during the optionee's
lifetime only by optionee.
(i) Date of Grant. The date on which the Committee approves
the granting of an option shall be considered the date on which such option is
granted.
ARTICLE IX.
RESTRICTIONS ON TRANSFER
During any period in which the offering of the shares under the Plan is
not registered under federal and state securities laws, the optionees shall
agree in the Stock Option Agreement that they are acquiring shares under the
Plan for investment purposes, and not for resale, and that the shares cannot be
resold or otherwise transferred except pursuant to registration or unless, in
the opinion of counsel for the Company, registration is not required.
Any restriction upon shares acquired upon exercise of an option
pursuant to the Plan and the Stock Option Agreement shall be binding upon the
optionee and his or her heirs, executors, and administrators. Any stock
certificate issued under the Plan which is subject to restrictions shall be
endorsed so as to refer to the restrictions on transfer imposed by the Plan and
by applicable securities laws.
<PAGE>
ARTICLE X.
EFFECTIVE DATE OF PLAN
The effective date of the Plan shall be April 28, 1993, the date of its
original adoption by the Board of Directors of the Company.
ARTICLE XI.
TERMINATION OF THE PLAN
The Plan shall terminate April 27, 2003, which is ten years after the
date of its approval by the Board of Directors, unless sooner terminated by
issuance of all shares reserved for issuance hereunder. No option shall be
granted under the Plan after such termination date.
ARTICLE XII.
AMENDMENT OF THE PLAN
The Board of Directors of the Company may at any time terminate the
Plan, or make such modifications of the Plan as it shall deem advisable. No
termination or amendment of the Plan may, without the consent of the optionees
to whom any options shall theretofore have been granted, adversely affect the
rights of such optionees under such options.
EXHIBIT 4B
ASECO CORPORATION
1986 INCENTIVE STOCK OPTION PLAN
AMENDMENT AND RESTATEMENT NO. 2
---------------------------------------
Effective as of January 9, 1992
1. Purpose. The purpose of the Aseco Corporation 1986 Incentive Stock
Option Plan (the "Plan") is to advance the interests of Aseco Corporation, a
Delaware corporation (the "Company"), and its stockholders by strengthening the
ability of the Company to attract, retain and motivate selected key employees by
providing them with an opportunity to purchase stock of the Company. It is
intended that this purpose will be effected by the granting of "incentive stock
options" ("Options") as described in Section 422 of the Internal Revenue Code of
1986, as amended from time to time, and regulations thereunder (the "Code").
2. Effective Date. This Plan originally became effective on June 10,
1986. This amendment and restatement was adopted by the Board of Directors of
the Company (the "Board") on January 9, 1992 and was subsequently approved by
stockholders of the Company on July 22, 1992.
3. Stock Subject to the Plan. The shares with respect to which Options
may be granted under this Plan shall not exceed in the aggregate 1,000,000
shares of the common stock, $.01 par value, of the Company (the "Shares"). Any
Shares subject to an Option which for any reason expires or is terminated
<PAGE>
unexercised as to such Shares may again be the subject of an Option under the
Plan. The Shares subject to an Option that for any reason terminates, expires or
lapses unexercised with respect to such Shares, and any Shares purchased by an
Optionee upon exercise upon exercise of an Option which are subsequently
repurchased by the Company pursuant to the terms of such Option may again be the
subject of an Option under the Plan. The Shares delivered upon exercise of
Options under the Plan may, in whole or in part, be either authorized by
unissued Shares or issued Shares reacquired by the Company.
4. Administration. This Plan shall be administered by the Board or, and
to the extent delegated by the Board, a compensation or stock option committee
(the "Committee"). Subject to the provisions of the Plan, the Board or Committee
shall have full power to construe and interpret this Plan and to establish,
amend and rescind rules and regulations for its administration. Any decisions
made with respect thereto shall be final and binding on the Company, the
Optionees and all other persons.
5. Eligible Employees. Stock options may be granted to such key
employees of the Company or of any Parent or Subsidiary of the Company
(including members of the Board who are also Employees of the Company or any
Parent or Subsidiary of the Company) as are selected by the Board or Committee.
6. Duration of the Plan. This Plan shall terminate ten (10) years from
the original effective date hereof, unless
-2-
<PAGE>
terminated earlier pursuant to Paragraph 12 below, and no Options may be granted
thereafter.
7. Restrictions on Options. Options granted under this Plan shall be
subject to the following restrictions:
(a) Limitation on Number of Shares. (i) With respect to Options
granted prior to January 1, 1987, the aggregate fair market value (determined as
of the date the Option is granted) of the Shares for which an Employee may be
granted Options in any calendar year shall not exceed $100,000 plus any "unused
limit carryovers", as that term is defined under Section 422 (c)(4) 0f the Code
(as in effect immediately prior to its amendment by the Tax Reform Act of 1986)
available in such year; or (ii) with respect to Options granted after December
31, 1986, to the extent that the aggregate fair market value, determined as of
the date the Option is granted, of the shares with respect to which Options are
exercisable for the first time by an Employee during any calendar year exceeds
$100,000, such Options shall be treated as nonqualified stock options in
accordance with Section 422 (d) of the Code. In the event that such Employee is
eligible to participate in any other stock option plan(s) of the Company, or any
Parent or Subsidiary thereof, which are also intended to comply with the
provisions of Section 422 of the Code, such annual limitation shall apply to the
aggregate number of Shares for which options may be granted under all such
plans.
-3-
<PAGE>
(b) 10% Shareholder. If any Employee to whom an Option is granted
pursuant to the provisions of the Plan is, on the date of grant, the owner of
stock (as determined under Section 425(d) of the Code) possessing more than 10%
of the total combined voting power of all classes of stock of the Company or any
Parent or Subsidiary of the Company, then the following special provisions shall
be applicable to the Option granted to such employee:
(i) The option price per Share subject to such Option shall
not be less than 110% of the fair market value of one
Share on the date of grant; and
(ii) The Option shall not have a term in excess of five (5)
years from the date of grant.
(c) Effective of Other Outstanding Options. No Option granted
hereunder prior to January 1, 1987, shall be exercisable by any Optionee while
there is "outstanding," within the meaning of Section 422(c)(7) of the Code (as
in effect immediately prior to the Tax Reform Act of 1986). any incentive stock
option which was granted to the Optionee before the granting of the Option under
this Plan and which permits the Optionee to purchase stock in: (i) the Company,
(ii) a corporation which (at the time of the granting of the option under this
Plan) is a Parent or Subsidiary of the Company or (iii) a predecessor
corporation of any of such corporations.
8. Terms and Conditions of Options. Options granted under this Plan
shall be evidenced by stock option agreements in such form and containing such
terms and conditions as the
-4-
<PAGE>
Board or Committee shall determine; provided, however, that such agreements
shall evidence among their terms and conditions the following:
(a) Price. Subject to the conditions of Paragraph 7(b), if
applicable, the purchase price per Share payable upon the exercise of each
Option granted hereunder shall be determined by the Board or Committee at the
time the Option is granted and shall not be less than 100% of the fair market
value of one Share on the date of grant. Fair market value shall be determined
in accordance and conformity with regulations issued by the Internal Revenue
Service with regard to such incentive stock option.
(b) Number of Shares. Each Option shall specify the number of
Shares to which it pertains.
(c) Exercise of Options. Each Option shall be exercisable for the
full amount or for any part thereof and at such intervals or in such
installments as the Board or Committee, as the case may be, may determine at the
time it grants such Option; provided, however, that subject to the provisions of
Paragraph 7(b) (if applicable) no Option shall be exercisable with respect to
any Shares later than ten (10) years after the date of grant of such Option.
(d) Notice of Exercise and Payment. An Option shall be exercisable
only by delivery of a written notice to the Company's Treasurer, or any other
officer of the Company designated by the Board or Committee to accept such
notices on its
-5-
<PAGE>
behalf, specifying the number of Shares for which it is exercised. If the
offering of said Shares is not at that time effectively registered under the
Securities Act of 1933, as amended, the Optionee shall include with such notice
a letter, in form and substance satisfactory to the Company, confirming that the
Shares are being purchased for the Optionee's own account for investment and not
with a view to distribution, and acknowledging that the Optionee is familiar
with any restrictions on the resale of the Shares under applicable securities
laws. Payment shall be made in full at the time the Option is exercised by any
of the following methods: (i) in cash, (ii) by cashier's or certified check,
(iii) if permitted by the Board or Committee, by delivery and assignment to the
Company of shares of Company stock having a fair market value (as determined by
the Board of Directors or Committee) equal to the exercise price, (iv) if
permitted by the Board or Committee, by promissory note or (v) by a combination
of the methods described in (i), (ii), (iii) and (iv) above.
(e) Nontransferability. No Option shall be transferable by the
Optionee otherwise than by will or the laws of descent or distribution, and each
Option shall be exercisable during the Optionee's lifetime only by the Optionee.
(f) Termination of Employment. If the Optionee ceases for any
reason to be an Employee of the Company, or any Parent or Subsidiary of the
Company, at any time prior to exercise in full of any Option granted to him,
such Option shall terminate in accordance with the following provisions:
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<PAGE>
(i) if the Optionee's employment shall have been terminated
by resignation or other voluntary action of the
Optionee, or if such employment shall have been
terminated by the Company for cause, the Option shall
terminate and may no longer be exercised;
(ii) if the Optionee's employment shall have been terminated
for any reason other than cause, resignation or other
voluntary action before the Optionee is eligible to
retire, disability or death, he may, at any time within
a period of three (3) months after such termination of
employment, exercise his Option to the extent that the
Option was exercisable by him on the date of termination
of his employment;
(iii) If the Optionee's employment shall have been terminated
because of disability within the meaning of Section
22(e)(3) of the Code, he may, at any time within a
period of one (1) year after such termination of
employment, exercise his Option to the extent that the
date of termination of his employment because of
disability; and
(iv) if the Optionee dies at a time when he might have
exercised the Option, then his estate, personal
representative or beneficiary to whom it has been
transferred pursuant to Paragraph 7(e) may, at any time
within a period of one (1) year after the Optionee's
death, exercise the Option to the extent the Optionee
might have exercised it at the time of his death.
However, no Option may be exercised to any extent by anyone after the date of
expiration of the Option.
(g) Rights as Shareholder. The Optionee shall have no rights as a
shareholder with respect to any Shares covered by his Option until the date of
issuance of a stock certificate to him for such Shares.
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<PAGE>
9. Stock Dividends; Stock Splits; Stock Combination; Recapitalizations.
Appropriate adjustment shall be made by the Board of Directors or Committee in
the maximum number of Shares subject to the Plan and in the number, kind and
Option price of Shares covered by outstanding Options granted hereunder to give
effect to any stock dividends, stock splits, stock combinations,
recapitalizations and other similar changes in the capital structure of the
Company after the effective date of this Plan.
10. Merger; Sale of Assets; Dissolution. In the event of a change of
the Shares resulting from a merger or similar reorganization as to which the
Company is the surviving corporation, the number and kind of Shares which
thereafter may be optioned and sold under this Plan, and the number and kind of
Shares then subject to Options granted hereunder and the Option price per Share
thereof shall be appropriately adjusted to prevent substantial dilution or
enlargement of the rights available or granted hereunder. Except as otherwise
determined by the Board, a merger or a similar reorganization which the Company
does not survive, or a sale of all or substantially all of the assets of the
Company, shall cause every Option outstanding hereunder to terminate, to the
extent not then exercised, unless any surviving entity agrees to assume the
obligations thereunder.
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<PAGE>
11. Definitions.
(a) The term "Employee" shall have, for purposes of this Plan, the
meaning ascribed to it under Section 3401(c) of the Code and the regulations
promulgated thereunder; the term "Key Employees" refers to those executive,
technical, administrative or managerial Employees who are determined by the
Board or Committee, in its sole discretion, to be eligible for Options under
this Plan.
(b) The term "Optionee" means a Key Employee to whom an Option is
granted under this Plan.
(c) The term "Parent" shall have, for purposes of this Plan, the
meaning ascribed to it under Section 425(e) of the Code and the regulations
promulgated thereunder.
(d) The term "Subsidiary" shall have, for purposes of this Plan,
the meaning ascribed to it under Section 425(f) of the Code and the regulations
promulgated thereunder.
12. Termination or Amendment of Plan. The Board of Directors may at any
time terminate the Plan or make such changes in or additions to the Plan as it
deems advisable without further action on the part of the shareholders of the
Company, provided:
(a) that no such termination or amendment shall adversely affect or
impair any then outstanding Option without the consent of the Optionee holding
such Option;
(b) that no such amendment which increases the maximum number of
Shares subject to this Plan or changes the class of employees eligible to
receive Option grants under this Plan shall be effective unless it is approved
by the shareholders of the Company within twelve (12) months before or after the
adoption of said amendment.
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EXHIBIT 4C
ASECO CORPORATION
1993 OMNIBUS STOCK PLAN
(Amended and Restated Effective as of June 14, 1996)
1. Purpose. This 1993 Stock Plan (the "Plan") is intended to provide
incentives (a) to the officers and other employees of Aseco Corporation (the
"Company"), its parent (if any) and any present or future subsidiaries of the
Company (collectively, "Related Corporations") by providing them with
opportunities to purchase stock in the Company pursuant to options which qualify
as "incentive stock options" under Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), granted hereunder ("ISO" or "ISOs"); (b) to
directors, officers, employees and consultants of the Company and Related
Corporations by providing them with opportunities to purchase stock in the
Company pursuant to options granted hereunder which do not qualify as ISOs
("Non-Qualified Option" or "Non-Qualified Options"); (c) to directors, officers,
employees and consultants of the Company and Related Corporations by providing
them with awards of stock in the Company ("Awards"); and (d) to directors,
officers, employees and consultants of the Company and Related Corporations by
providing them with opportunities to make direct purchases of stock in the
Company ("Purchases"). Both ISOs and Non-Qualified Options are referred to
hereafter individually as an "Option" and collectively as "Options." As used
herein, the terms "parent" and "subsidiary" mean "parent corporation" and
"subsidiary corporation" as those terms are defined in Section 425 of the Code.
2. Administration of the Plan. (a) The Plan shall be administered by
the Board of Directors of the Company (the "Board"). The Board may appoint a
Compensation Committee (the "Committee") of two or more of its members to
administer this Plan. In the event the Company registers any class of any equity
security pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), each member of the Committee shall be a
"disinterested person" as defined in Rule 16b-3 under the Exchange Act and an
"outside director" as defined in Section 162(m) of the Code. Subject to
ratification of the grant of each Option or Award and of the authorization of
each Purchase by the Board (if so required by applicable state law), and subject
to the terms of the Plan, the Committee, if so appointed, shall have the
authority to (i) determine the employees of the Company and Related Corporations
(from among the class of employees eligible under paragraph 3 to receive ISOs)
to whom ISOs may be granted, and to determine (from among the class of
individuals and entities eligible under paragraph 3 to receive Non-Qualified
Options and Awards and to make Purchases) to whom Non-Qualified Options or
Awards may be granted and who may make Purchases; (ii) determine the time or
times at which Options or Awards may be granted or Purchases made; (iii)
determine the option price of shares subject to each Option, which price with
respect to ISOs shall not be less than the minimum specified in paragraph 6, and
the purchase price of shares subject to each Purchase; (iv) determine whether
each Option granted shall be an ISO or a Non-Qualified Option; (v) determine
(subject to paragraph 7) the time or times when each Option shall become
exercisable and the duration of the exercise period; (vi) determine whether
restrictions such as repurchase options are to be imposed on shares subject to
Options, Awards and Purchases, and the nature of such restrictions, if any, and
(vii) interpret the Plan and prescribe and rescind rules and regulations
relating to it. If the Committee determines to issue a Non-Qualified Option, it
<PAGE>
shall take whatever actions it deems necessary, under Section 422 of the Code
and the regulations promulgated thereunder, to ensure that such Option is not
treated as an ISO. The interpretation and construction by the Committee of any
provisions of the Plan or of any Option, Award or authorization for any Purchase
granted under it shall be final unless otherwise determined by the Board. The
Committee may from time to time adopt such rules and regulations for carrying
out the Plan as it may deem best. No member of the Board or the Committee shall
be liable for any action or determination made in good faith with respect to the
Plan or any Option, Award or authorization for Purchase granted under it.
(b) The Committee may select one of its members as its chairman, and
shall hold meetings at such time and places as it may determine. Acts by a
majority of the Committee, or acts reduced to or approved in writing by a
majority of the members of the Committee, shall be the valid acts of the
Committee. All references in this Plan to the Committee shall mean the Board if
there is no Committee so appointed. From time to time the Board may increase the
size of the Committee and appoint additional members thereof, remove members
(with or without cause), and appoint new members in substitution therefor, fill
vacancies however caused, or remove all members of the Committee and thereafter
directly administer the Plan.
3. Eligible Employees and Others. ISOs may be granted to any officer or
other employee of the Company or any Related Corporation. Those directors of the
Company who are not employees may not be granted ISOs under the Plan. Non-
Qualified Options and Awards may be granted to, and Purchases may be made by,
any director (whether or not an employee), officer, employee or consultant of
the Company or any Related Corporation. The Committee may take into
consideration an optionee's individual circumstances in determining whether to
grant an ISO or a Non-Qualified Option or to authorize a Purchase. Granting of
any Option or Award to, or any Purchase by, any individual or entity shall
neither entitle that individual or entity to, nor disqualify him from,
participation in any other grant of Options or Awards, or in any other Purchase.
4. Stock. The stock subject to Options, Awards and Purchases shall be
authorized but unissued shares of Common Stock of the Company, par value $.01
per share (the "Common Stock"), or shares of Common Stock re-acquired by the
Company in any manner. The aggregate number of shares which may be issued
pursuant to the Plan is 1,230,000, subject to adjustment as provided in
paragraph 13. Any such shares may be issued as ISOs, Non-Qualified Options or
Awards, or to persons or entities making Purchases, so long as the aggregate
number of shares so issued does not exceed such number, as adjusted. If any
Option granted under the Plan shall expire or terminate for any reason without
having been exercised in full or shall cease for any reason to be exercisable in
whole or in part, the unpurchased shares subject thereto shall again be
available for grants of Options or Awards and for Purchases under the Plan.
5. Granting of Options. Options may be granted under the Plan at any
time on or after January 18, 1993 and prior to January 18, 2003. Any such grants
of ISOs shall be subject to the receipt, within 12 months of January 18, 1993,
of the approval of Stockholders as provided
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<PAGE>
in paragraph 15. The date of grant of an Option under the Plan will be the date
specified by the Committee at the time it awards the Option; provided, however,
that such date shall not be prior to the date of award. The Committee shall have
the right, with the consent of the optionee, to convert an ISO granted under the
Plan to a Non-Qualified Option pursuant to paragraph 16. Any other provision of
the Plan notwithstanding, the number of shares of Common Stock for which options
may be granted in any fiscal year of the Company to any participant shall not
exceed 100,000.
6. Minimum Option Price: ISO Limitations.
A. The price per share specified in the agreement relating to each
ISO granted under the Plan shall not be less than the fair market value per
share of Common Stock on the date of such grant. In the case of an ISO to be
granted to an employee owning stock possessing more than ten percent of the
total combined voting power of all classes of stock of the Company or any
Related Corporation, the price per share specified in the agreement relating to
such ISO shall not be less than 110 percent of the fair market value of Common
Stock on the date of grant.
B. In no event shall the aggregate fair market value (determined at
the time the option is granted) of Common Stock for which ISOs granted to any
employee are exercisable for the first time by such employee during any calendar
year (under all stock option plans of the Company and any Related Corporation)
exceed $100,000.
C. If, at the time an Option is granted under the Plan, the
Company's Common Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such Option is granted and
shall mean (i) the average (on that date) of the high and low prices of the
Common Stock on the principal national securities exchange on which the Common
Stock is traded, if such stock is then traded on a national securities exchange;
or (ii) the last reported sale price (on that date) of the Common Stock on the
NASDAQ National Market System, if the Common Stock is not then traded on a
national securities exchange; or (iii) the closing bid price (or average of bid
prices) last quoted (on that date) by an established quotation service for
over-the-counter securities, if the Common Stock is not reported on the NASDAQ
National Market System or on a national securities exchange. However, if the
Common Stock is not publicly traded at the time an Option is granted under the
Plan, "fair market value" shall be deemed to be the fair value of the Common
Stock as determined by the Committee after taking into consideration all factors
which it deems appropriate, including, without limitation, recent sale and offer
prices of the Common Stock in private transactions negotiated at arm's length.
7. Option Duration. Subject to earlier termination as provided in
paragraphs 9 and 10, each Option shall expire on the date specified by the
Committee, but not more than ten years from the date of grant and in the case of
ISOs granted to an employee owning stock possessing more than ten percent of the
total combined voting power of all classes of stock of the Company or any
Related Corporation, not more than five years from date of grant. Subject to
earlier termination as provided in paragraphs 9 and 10, the term of each ISO
shall be the term set forth
3
<PAGE>
in the original instrument granting such ISO, except with respect to any part of
such ISO that is converted into a Non-Qualified Option pursuant to paragraph 16.
8. Exercise of Option. Subject to the provisions of paragraphs 9
through 12, each Option granted under the Plan shall be exercisable as follows:
A. The Option shall either be fully exercisable on the date of
grant or shall become exercisable thereafter in such installments as the
Committee may specify.
B. Once an installment becomes exercisable it shall remain
exercisable until expiration or termination of the Option, unless otherwise
specified by the Committee.
C. Each Option or installment may be exercised at any time or from
time to time, in whole or in part, for up to the total number of shares with
respect to which it is then exercisable.
D. The Committee shall have the right to accelerate the date of
exercise of any installment; provided that the Committee shall not accelerate
the exercise date of any installment of any Option granted to any employee as an
ISO (and not previously converted into a Non-Qualified Option pursuant to
paragraph 16) if such acceleration would violate the annual vesting limitation
contained in Section 422(d) of the Code which provides generally that the
aggregate fair market value (determined at the time the option is granted) of
the stock with respect to which ISOs granted to any employee are exercisable for
the first time by such employee during any calendar year (under all plans of the
Company and any Related Corporation) shall not exceed $100,000.
9. Termination of Employment. If an ISO optionee ceases to be employed
by the Company or any Related Corporation other than by reason of death or
disability as provided in paragraph 10, no further installments of his ISOs
shall become exercisable, and his ISOs shall terminate after the passage of 60
days from the date of termination of his employment, but in no event later than
on their specified expiration dates except to the extent that such ISOs (or
unexercised installments thereof) have been converted into Non-Qualified Options
pursuant to paragraph 16. Leave of absence with the written approval of the
Committee shall not be considered an interruption of employment under the Plan,
provided that such written approval contractually obligates the Company or any
Related Corporation to continue the employment of the employee after the
approved period of absence. Employment shall also be considered as continuing
uninterrupted during any other bona fide leave of absence (such as those
attributable to illness, military obligations or governmental service) provided
that the period of such leave does not exceed 90 days or, if longer, any period
during which such optionee's right to reemployment is guaranteed by statute.
Nothing in the Plan shall be deemed to give any grantee of any Option or Award,
or any person or entity entitled to make a Purchase, the right to be retained in
employment or other service by the Company or any Related Corporation for any
period of time. ISOs granted under the Plan shall not be affected by any change
of employment
4
<PAGE>
within or among the Company and Related Corporations, so long as the optionee
continues to be an employee of the Company or any Related Corporation. In
granting any Non-Qualified Option, the Committee may specify that such
Non-Qualified Option shall be subject to the restrictions set forth herein with
respect to ISOs, or to such other termination or cancellation provisions as the
Committee may determine.
10. Death; Disability; Dissolution. If an optionee ceases to be
employed by the Company and all Related Corporations by reason of his death, any
Option of his may be exercised, to the extent of the number of shares with
respect to which he could have exercised it on the date of his death, by his
estate, personal representative or beneficiary who has acquired the Option by
will or by the laws of descent and distribution, at any time prior to the
earlier of the Option's specified expiration date or 180 days from the date of
the optionee's death.
If an optionee ceases to be employed by the Company and all Related
Corporations by reason of his disability, he shall have the right to exercise
any Option held by him on the date of termination of employment, to the extent
of the number of shares with respect to which he could have exercised it on that
date, at any time prior to the earlier of the Option's specified expiration date
or 180 days from the date of the termination of the optionee's employment. For
the purposes of the Plan, the term "disability" shall have the meaning assigned
to it in Section 22(e)(3) of the Code or any successor statute.
In the case of a partnership, corporation or other entity holding a
Non-Qualified Option, if such entity is dissolved, liquidated, becomes
insolvent or enters into a merger or acquisition with respect to which such
optionee is not the surviving entity, such Option shall terminate immediately.
11. Assignability. No Option shall be assignable or transferable by the
optionee except by will or by the laws of descent and distribution, and during
the lifetime of the Optionee each Option shall be exercisable only by him.
12. Terms and Conditions of Options. Options shall be evidenced by
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 6 through 11 hereof and may contain such
other provisions as the Committee deems advisable which are not inconsistent
with the Plan, including restrictions applicable to shares of Common Stock
issuable upon exercise of Options. The Committee may from time to time confer
authority and responsibility on one or more of its own members and/or one or
more officers of the Company to execute and deliver such instruments. The proper
officers of the Company are authorized and directed to take any and all action
necessary or advisable from time to time to carry out the terms of such
instruments.
13. Adjustments. Upon the happening of any of the following described
events, an optionee's rights with respect to Options granted to him hereunder
shall be adjusted as hereinafter provided:
5
<PAGE>
A. In the event shares of Common Stock shall be sub-divided or
combined into a greater or smaller number of shares (other than the 1-for-2.4
reverse split of the Common Stock approved by the Board on January 18, 1992) or
if, upon a merger, consolidation, reorganization, split-up, liquidation,
combination, recapitalization or the like of the Company, the shares of Common
Stock shall be exchanged for other securities of the Company or of another
corporation, each optionee shall be entitled, subject to the conditions herein
stated, to purchase such number of shares of common stock or amount of other
securities of the Company or such other corporation as were exchangeable for the
number of shares of Common Stock which such optionee would have been entitled to
purchase except for such action, and appropriate adjustments shall be made in
the purchase price per share to reflect such subdivision, combination, or
exchange.
B. In the event the Company shall issue any of its shares as a
stock dividend upon or with respect to the shares of stock of the class which
shall at the time be subject to option hereunder, each optionee upon exercising
an Option shall be entitled to receive (for the purchase price paid upon such
exercise) the shares as to which he is exercising his Option and, in addition
thereto (at no additional cost), such number of shares of the class or classes
in which such stock dividend or dividends were declared or paid, and such amount
of cash in lieu of fractional shares, as he would have received if he had been
the holder of the shares as to which he is exercising his Option at all times
between the date of grant of such Option and the date of its exercise.
C. Notwithstanding the foregoing, any adjustments made pursuant to
subparagraph A or B shall be made only after the Committee, after consulting
with counsel for the Company, determines whether such adjustments with respect
to ISOs will constitute a "modification" of such ISOs as that term is defined in
Section 425 of the Code, or cause any adverse tax consequences for the holders
of such ISOs. No adjustments shall be made for dividends paid in cash or in
property other than securities of the Company.
D. No fractional shares shall actually be issued under the Plan.
Any fractional shares which, but for this subparagraph D, would have been issued
to an optionee pursuant to an Option, shall be deemed to have been issued and
immediately sold to the Company for their fair market value, and the optionee
shall receive from the Company cash in lieu of such fractional shares.
E. Upon the happening of any of the foregoing events described in
subparagraphs A or B above, the class and aggregate number of shares set forth
in paragraph 4 hereof which are subject to Options which previously have been or
subsequently may be granted under the Plan shall also be appropriately adjusted
to reflect the events specified in such subparagraphs. The Committee shall
determine the specific adjustments to be made under this paragraph 13, and
subject to paragraph 2, its determination shall be conclusive.
14. Means of Exercising Options. An Option (or any part or installment
thereof) shall be exercised by giving written notice to the Company at its
principal office address. Such notice
6
<PAGE>
shall identify the Option being exercised and specify the number of shares as to
which such Option is being exercised, accompanied by full payment of the
purchase price therefor either (a) in United States dollars in cash or by check,
or (b) at the discretion of the Committee, through delivery of shares of Common
Stock having fair market value equal as of the date of the exercise to the cash
exercise price of the Option, or (c) at the discretion of the Committee, by
delivery of the optionee's personal recourse note bearing interest payable not
less than annually at no less than 100% of the lowest applicable Federal rate,
as defined in section 1274(d) of the Code, or (d) at the discretion of the
Committee, by any combination of (a), (b) and (c) above. If the Committee
exercises its discretion to permit payment of the exercise price of an ISO by
means of the methods set forth in clauses (b) or (c) of the preceding sentence,
such discretion shall be exercised in writing at the time of the grant of the
ISO in question. The holder of an Option shall not have the rights of a
shareholder with respect to the shares covered by his Option until the date of
issuance of a stock certificate to him for such shares. Except as expressly
provided above in paragraph 13 with respect to change in capitalization and
stock dividends, no adjustment shall be made for dividends or similar rights for
which the record date is before the date such stock certificates is issued.
15. Term and Amendment of Plan. This Plan was adopted by the Board on
January 18, 1993, and was approved by the holders of a majority of the
outstanding voting stock of the Company on January 29, 1994. The Plan was
subsequently amended and restated by the Board effective January 12, 1994,
subject to approval of the amendments thereto by the stockholders of the Company
on or before January 12, 1995. The Plan shall expire on January 18, 2003 (except
as to Options outstanding on that date). The Board may terminate or amend the
Plan in any respect at any time, except that, any amendment that (a) increases
the total number of shares that may be issued under the Plan (except by
adjustment pursuant to paragraph 13); (b) changes the class of persons eligible
to participate in the Plan, or (c) materially increases the benefits to
participants under the Plan, shall be subject to approval by Stockholders
obtained within 12 months before or after the Board adopts a resolution
authorizing any of the foregoing amendments, and shall be null and void if such
approval is not obtained. Except as provided in the fourth sentence of this
paragraph 15, in no event may action of the Board of Stockholders alter or
impair the rights of an optionee, purchaser or Award recipient without his
consent, under any Option, Purchase or Award previously granted to or made by
him.
16. Conversion of ISOs into Non-Qualified Options: Termination of ISOs.
The Committee, at the written request of any optionee, may in its discretion
take such actions as may be necessary to convert such optionee's ISOs (or any
installments or portions of installments thereof) that have not been exercised
on the date of conversion into Non-Qualified Options at any time prior to the
expiration of such ISOs, regardless of whether the optionee is an employee of
the Company or a Related Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of the appropriate installments of such Options. At
the time of such conversion, the Committee (with the consent of the Optionee)
may impose such conditions on the exercise of the resulting Non-Qualified
Options as the Committee in its discretion may determine, provided that such
conditions shall not be inconsistent with this Plan. Nothing in the Plan shall
be deemed to give any optionee
7
<PAGE>
the right to have such optionee's ISOs converted into Non-Qualified Options, and
no such conversion shall occur until and unless the Board takes appropriate
action. The Committee, with the consent of the optionee, may also terminate any
portion of any ISO that has not been exercised at the time of such termination.
17. Application of Funds. The proceeds received by the Company from the
sale of shares pursuant to Options granted and Purchases authorized under the
Plan shall be used for general corporate purposes.
18. Governmental Regulation. The Company's obligation to sell and
deliver shares of the Common Stock under this Plan is subject to the approval of
any governmental authority required in connection with the authorization,
issuance or sale of such shares.
19. Withholding of Additional Income Taxes. The Company, in accordance
with Section 3402(a) of the Code, may, upon exercise of a Non-Qualified Option,
the grant of an Award, the making of a Purchase of Common Stock for less than
its fair market value, or the making of a Disqualifying Disposition (as defined
in paragraph 20) require the optionee exercising such Option, Award recipient or
purchaser to pay additional withholding taxes in respect of the amount that is
considered compensation includible in such person's gross income.
20. Notice to Company of Disqualifying Disposition. Each employee who
receives ISOs shall agree to notify the Company in writing immediately after the
employee makes a disqualifying disposition of any Common Stock received pursuant
to the exercise of an ISO (a "Disqualifying disposition"). Disqualifying
Disposition means any disposition (including any sale) of such stock before the
later of (a) two years after the employee was granted the ISO under which he
acquired such stock, or (b) one year after the employee acquired such stock by
exercising such ISO. If the Employee has died before such stock is sold, these
holding period requirements do not apply and no Disqualifying Disposition will
thereafter occur.
21. Governing Laws; Construction. The validity and construction of the
Plan and the instruments evidencing Options, Awards and Purchases shall be
governed by the laws of The Commonwealth of Massachusetts. In construing this
Plan, the singular shall include the plural and the masculine gender shall
include the feminine and neuter, unless the context otherwise requires.
8
EXHIBIT 4D
ASECO CORPORATION
1993 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Amended and Restated Effective as of May 12, 1998)
1. PURPOSE. This Non-Qualified Stock Option Plan, to be known as the
1993 Non-Employee Director Stock Option Plan (hereinafter, this "Plan") is
intended to promote the interests of Aseco Corporation (hereinafter, the
"Company") by providing an inducement to obtain and retain the services of
qualified persons who are not employees or officers of the Company to serve as
members of its Board of Directors (the "Board").
2. AVAILABLE SHARES. The total number of shares of Common Stock, par
value $.01 per share, of the Company (the "Common Stock"), for which options may
be granted under this Plan shall not exceed 165,000 shares, subject to
adjustment in accordance with paragraph 10 of this Plan. Shares subject to this
Plan are authorized but unissued shares or shares that were once issued and
subsequently reacquired by the Company. If any options granted under this Plan
are surrendered before exercise or lapse without exercise, in whole or in part,
the shares reserved therefor shall continue to be available under this Plan.
3. Administration. This Plan shall be administered by the Board or by a
committee appointed by the Board (the "Committee"). In the event the Board fails
to appoint or refrains from appointing a Committee, the Board shall have all
power and authority to administer this Plan. In such event, the word "Committee"
wherever used herein shall be deemed to mean the Board. The Committee shall,
subject to the provisions of the Plan, have the power to construe this Plan, to
determine all questions hereunder, and to adopt and amend such rules and
regulations for the administration of this Plan as it may deem desirable.
4. Granting of Options.
(a) Initial Grant. On the effective date of a registration
statement on Form S-1 covering the initial public offering of the Company's
Common Stock (the "Effective Date"), each person who is then a member of the
Board, and who is not a current or former employee or officer of the Company,
shall be automatically granted, without further action by the Board, an option
to purchase 3,000 shares of the Common Stock.
(b) Initial Grant to New Directors. Subject to the availability of
shares under this Plan, each person who is first elected as a member of the
Board after May 15, 1996 and during the term of this Plan, and who is not on the
date of such election a current or former employee or officer of the Company,
shall be automatically granted an option to purchase 15,000
<PAGE>
shares of the Common Stock on the date of his or her first election as a member
of the Board.
(c) Automatic Grants. On April 30 of each year commencing April 30,
1999 and during the term of this Plan, each person who is then serving on the
Board, and who is not a current or former employee or officer of the Company,
shall automatically be granted an option to purchase 3,500 shares of the Common
Stock, subject to the availability of shares under this Plan.
(d) Initial Option Adjuster. On May 15, 1996, each person who is
serving on the Board as of such date, who is not a current or former employee or
officer of the Company and who is to serve on the Board following the 1996
Annual Meeting of Stockholders of the Company shall automatically be granted an
option to purchase an additional 10,000 shares of Common Stock.
Except for the specific options referred to above, no other options
shall be granted under this Plan.
5. Option Price. The purchase price of the stock covered by an option
granted pursuant to this Plan shall be 100% of the fair market value of such
shares on the day the option is granted. The option price will be subject to
adjustment in accordance with the provisions of paragraph 10 of this Plan. For
purposes of this Plan, if, at the time an option is granted under the Plan, the
Company's Common Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such option is granted and
shall mean (i) the average (on that date) of the high and low prices of the
Common Stock on the principal national securities exchange on which the Common
Stock is traded, if the Common Stock is then traded on a national securities
exchange; or (ii) the last reported sale price (on that date) of the Common
Stock on the Nasdaq National Market System, if the Common Stock is not then
traded on a national securities exchange; or (iii) the closing bid price (or
average of bid prices) last quoted (on that date) by an established quotation
service for over-the-counter National Market System. If, at the time an option
is granted under the Plan, the Company's stock is not publicly traded, "fair
market value" shall be the fair market value on the date the option is granted
as determined by the Board in good faith.
6. Period of Option. Unless sooner terminated in accordance with the
provisions of paragraph 8 of this Plan, an option granted hereunder shall expire
on the date which is ten (10) years after the date of grant of the option.
2
<PAGE>
7. Vesting of Shares and Non-Transferability of Options.
(a) Vesting. Options granted under this Plan shall not be
exercisable until they become vested. Options granted pursuant to Sections 4(b),
4(c) and 4(d) of this Plan shall vest in the optionee and thus become
exercisable immediately by the optionee in two annual installments of 50% each
on the first and second anniversary of the date of grant. Options granted
pursuant to Section 4(a) of the Plan shall be 100% vested on the date of grant
and thus be fully exercisable at any time prior to their expiration.
(b) Legend on Certificates. The certificates representing such
shares shall carry such appropriate legend, and such written instructions shall
be given to the Company's transfer agent, as may be deemed necessary or
advisable by counsel to the Company in order to comply with the requirements of
the Securities Act of 1933 or any state securities laws.
(c) Non-transferability. Any option granted pursuant to this Plan
shall not be assignable or transferable other than by will or the laws of
descent and distribution or pursuant to a domestic relations order and shall be
exercisable during the optionee's life time only by him or her.
8. Termination of Option Rights.
(a) In the event an optionee ceases to be a member of the Board for
any reason other than death or permanent disability, any then unexercised
portion of options granted to such optionee shall, to the extent not then
vested, immediately terminate and become void; any portion of an option which is
then vested but has not been exercised at the time the optionee so ceases to be
a member of the Board may be exercised, to the extent it is then vested, by the
optionee within two years of the date the optionee ceased to be a member of the
Board; and all options shall terminate after such two year period has have
expired.
(b) In the event that an optionee ceases to be a member of the
Board by reason of his or her death or permanent disability, any option granted
to such optionee shall be immediately, and automatically accelerated and become
fully vested and all unexercised options shall be exercisable by the optionee
(or by the optionee's personal representative, heir or legatee, in the event of
death) until the scheduled expiration date of the option.
9. Exercise of Option. Subject to the terms and conditions of this Plan
and the option agreements, an option granted hereunder shall, to the extent then
exercisable, be exercisable in whole or in part by giving written notice to the
3
<PAGE>
Company by mail or in person addressed to Aseco Corporation, 500 Donald Lynch
Boulevard, Marlboro, Massachusetts 01752, Attention: Chief Financial Officer,
stating the number of shares with respect to which the option is being
exercised, accompanied by payment in full for such shares. Payment may be (a) in
United States dollars in cash or by check, (b) in whole or in part in shares of
Common Stock of the Company already owned by the person or persons exercising
the option or shares subject to the option being exercised (subject to such
restrictions and guidelines as the Board may adopt from time to time), valued at
fair market value determined in accordance with the provisions of paragraph 5 or
(c) consistent with applicable law, through the delivery of an assignment to the
Company of a sufficient amount of the proceeds from the sale of the Common Stock
acquired upon exercise of the option and an authorization to the broker or
selling agent to pay that amount to the Company, which sale shall be at the
participant's direction at the time of exercise. There shall be no such exercise
at any one time as to fewer than one hundred (100) shares or all of the
remaining shares then purchasable by the person or persons exercising the
option, if fewer than one hundred (100) shares. The Company's transfer agent
shall, on behalf of the Company, prepare a certificate or certificates
representing such shares acquired pursuant to exercise of the option, shall
register the optionee as the owner of such shares on the books of the Company
and shall cause the fully executed certificates(s) representing such shares to
be delivered to the optionee as soon as practicable after payment of the option
price in full. The holder of an option shall not have any rights of a
stockholder with respect to the shares covered by the option, except to the
extent that one or more certificates for such shares shall be delivered to him
or her upon the due exercise of the option.
10. Adjustments Upon Changes in Capitalization and Other Matters. Upon
the occurrence of any of the following events, an optionee's rights with respect
to options granted to him or her hereunder shall be adjusted as hereinafter
provided:
(a) If, after January 18, 1993, the shares of Common Stock shall be
subdivided or combined into a greater smaller number of shares or if the Company
shall issue any shares of Common Stock as a stock dividend on its outstanding
Common Stock, the number of shares of Common Stock deliverable upon the exercise
of options shall be appropriately increased or decreased proportionately, and
appropriate adjustments shall be made in the purchase price per share to reflect
such subdivision, combination or stock dividend. No adjustment, however, shall
be made for the 1-for-2.4 reverse split of the Common Stock declared by the
Board on January 18, 1993.
(b) Merger; Consolidation; Liquidation; Sale of Assets. In the
event the Company is merged into or consolidated
4
<PAGE>
with another corporation under circumstances where the Company is not the
surviving corporation and in the event the acquiring corporation or its parent
assumes the Plan, upon the effective date of any such merger or consolidation,
as the case may be, each holder of an outstanding option shall be entitled, upon
exercise of such option, to receive in lieu of shares of Common Stock, shares of
such stock or other securities as the holders of shares of Common Stock
received pursuant to the terms of the merger or consolidation; provided,
however, that any holder of such an option shall be required to exercise such
option within six months after the effective date of such merger.
(c) Issuance of Securities. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
subject to options. No adjustments shall be made for dividends paid in cash or
in property other than securities of the Company.
(d) Adjustments. Upon the happening of any of the foregoing events,
the class and aggregate number of shares set forth in paragraph 2 of this Plan
that are subject to options which previously have been or subsequently may be
granted under this Plan shall also be appropriately adjusted to reflect such
events. The Board shall determine the specific adjustments to be
5
<PAGE>
made under this paragraph 10 and its determination shall be conclusive.
11. Restrictions on Issuance of Shares. Notwithstanding the provisions
of paragraphs 4 and 9 of this Plan, the Company shall have no obligation to
deliver any certificate or certificates upon exercise of an option until one of
the following conditions shall be satisfied:
(i) The shares with respect to which the option has been
exercised are at the time of the issue of such shares effectively
registered under applicable Federal and state securities laws as now in
force or hereafter amended; or
(ii) Counsel for the Company shall have given an opinion that
such shares are exempt from registration under Federal and state
securities laws as now in force or hereafter amended; and the Company
has complied with all applicable laws and regulations with respect
thereto, including without limitation all regulations required by any
stock exchange upon which the Company's outstanding Common Stock is
then listed.
12. Representation of Optionee. If requested by the Company, the
optionee shall deliver to the Company written representations and warranties
upon exercise of the option that are necessary to show compliance with Federal
and state securities laws, including representations and warranties to the
effect that a purchase of shares under the option is made for investment and not
with a view to their distribution (as that term is used in Securities Act of
1933).
13. Option Agreement. Each option granted under the provisions of this
Plan shall be evidenced by an option agreement, which agreement shall be duly
executed and delivered on behalf for the Company and by the optionee to whom
such option is granted. The option agreement shall contain such terms,
provisions and conditions not inconsistent with this Plan as may be determined
by the officer executing it.
14. Termination and Amendment of Plan. Options may no longer be granted
under this Plan after January 18, 2003, and this Plan shall terminate when all
options granted or to be granted hereunder are no longer outstanding. The Board
may at any time terminate this Plan or make such modification or amendment
thereof as it deems advisable; provided, however, that the Board may not,
without approval by the affirmative vote of the holders of a majority of the
shares of Common Stock present in person or by proxy and entitled to vote at the
meeting, (a)
6
<PAGE>
increase the maximum number of shares for which options may be granted under
this Plan (except by adjustment pursuant to Section 10), (b) materially modify
the requirements as to eligibility to participate in this Plan, (c) materially
increase benefits accruing to option holders under this Plan, or (d) amend this
Plan in any manner which would cause Rule 16b-3 to become inapplicable to this
Plan; and provided further that the provisions of this Plan specified in Rule
16b-3(c)(2)(ii)(A) (or any successor or amended provision thereof) under the
Securities Exchange Act of 1934 (including without limitation, provisions as to
eligibility, amount, price and timing of awards) may not be amended more than
once every six months, other than to comport with changes in the Internal
Revenue Code, the Employee Retirement Income Security Act, or the rules
thereunder. Termination or any modification or amendment of this Plan shall not,
without consent of a participant, affect his or her rights under an option
previously granted to him or her.
15. Withholding of Income Taxes. Upon the exercise of an option, the
Company, in accordance with Section 3402(a) of the Internal Revenue Code, may
require the optionee to pay withholding taxes in respect of amounts considered
to be compensation includible in the optionee's gross income.
16. Compliance with Regulations. It is the Company's intent that the
Plan comply with all respects with Rule 16b-3 under the Securities Exchange Act
of 1934 (or any successor or amended version thereof) and any applicable
Securities and Exchange Commission interpretations thereof. If any provision of
this Plan is deemed not to be in compliance with Rule 16b-3, the provision shall
be null and void.
17. Governing Law. The validity and construction of this Plan and the
instruments evidencing options shall be governed by the laws of The Commonwealth
of Massachusetts, without giving effect to the principles of conflicts of law
thereof.
Date Approved by Board of
Directors of the Company: May 12, 1998
Date Approved by Stockholders
of the Company: August 11, 1998
7
EXHIBIT 4E
Amendment to Sicari Severance Agreement
This Amendment is made as of this 19th day of January, 1999, by and
between Aseco Corporation, a Delaware corporation (the "Company"), and Sebastian
J. Sicari ("Sicari").
RECITALS
WHEREAS, the parties hereto have entered into a Severance Agreement
dated as of December 30, 1996, as amended August 11, 1998 (the "Original
Agreement"); and
WHEREAS, the parties hereto desire to amend the Original
Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
Capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to such terms in the Original Agreement.
"Merger" shall mean the merger or consolidation of the Company with
another entity in which the stockholders of the Company immediately prior to
such merger or consolidation hold less than 50% of the outstanding voting stock
of the surviving or resulting corporation immediately following such
transaction.
"Parent Corporation" means a corporation that is party to an Agreement
effecting a Merger of the Company and a wholly-owned subsidiary of such
corporation.
2. Severance Following a Change in Control. Section 3 of the Original
Agreement is amended such that it shall supersede the prior Section 3 and read
in full as follows:
"3. Severance Following a Change in Control.
Except as provided in the last sentence of this Section 3, in
the event Sicari's employment by the Company is terminated for
any reason whatsoever, including voluntary resignation by
Sicari, within twenty-four
1
<PAGE>
months following a Change in Control, the Company shall pay
Sicari within twenty-four (24) hours after the Termination
Date a lump sum amount of $250,000; provided, however, that if
such Change in Control is a Merger, Sicari shall receive
$250,000 worth of the Parent Corporation's common stock,
subject to the provisions of the merger agreement by which the
Merger is effected and which are hereby incorporated by
reference. The Company, or in the event of a Merger, the
Parent, shall also continue to provide during the Benefit
Period life and health insurance coverage to Sicari, with
benefits substantially comparable to those provided to
executive officers of the Company generally immediately prior
to such termination. Notwithstanding the foregoing, the
Company shall have the right, in lieu of providing such
coverage during any Ineligibility Period, to pay Sicari an
amount equal to 200% of the amount it would have cost the
Company to provide such coverage during any Ineligibility
Period, assuming Sicari were eligible for coverage under the
Company's group insurance policies and assuming further no
increase in premium costs under such policies after the
commencement of the Ineligibility Period. Notwithstanding
anything to the contrary contained in this Agreement, Sicari
shall not be entitled to any severance benefits pursuant to
Section 2 or this Section 3 if Sicari's employment by the
Company is terminated by the Company for Cause."
3. Vesting of Stock. Section 4 of the Original Agreement is amended
such that it shall supersede the prior Section 4 and read in full as follows:
"4. Vesting of Stock. Upon a Change in Control, the vesting of
all stock options held by Sicari and exercisable to purchase
common stock of the Company shall be accelerated so that all
such options shall be immediately exercisable in full,
provided, however, that Sicari shall exercise such options
within 18 months after the effective date of any Merger and in
accordance with the provisions of the merger agreement by
which the Merger is effected."
4. The Original Agreement is hereby supplemented by adding a new Section 6 that
shall read in its entirety as follows:
"6. Consulting Services.
6.1 In the event of a Merger, the Parent Corporation
shall engage Sicari as a consultant to the Parent Corporation
for a term of three (3) months following the effective date of
the Merger in
2
<PAGE>
consideration for the payment of $50,000, payable to Sicari
within twenty-four (24) hours after the Termination Date by
the Parent Corporation in shares of the Parent Corporation
Common Stock, subject to the provisions of the merger
agreement by which the Merger is effected and which are
incorporated herein by reference. During such term, Sicari
shall advise the Parent Corporation as to such specific areas
regarding the operation of the business of the Parent
Corporation as from time to time the Parent Corporation
reasonably requests, provided, however, that Sicari may
decline to render advice with regard to any matter Sicari
reasonably concludes is outside of or beyond his area of
expertise or for any other reasonable reason. Sicari shall not
be obligated to render consulting services hereunder for more
than five (5) hours per month during the term of his
engagement as a consultant. Sicari shall not (i) be required
to devote any specific amount of time to the business of the
Parent Corporation or (ii) be required to attend any meeting
in connection with the business of the Parent Corporation,
except as Sicari may agree in his discretion.
6.2 Sicari's relation to the Parent Corporation in
his capacity as a consultant shall be that of an independent
consultant and contractor, and not as an employee, agent,
officer, director or manager of the Parent Corporation."
5. The Original Agreement is hereby supplemented by adding a new
Section 7 that shall read in its entirety as follows:
"7. Non-Competition and Non-Solicitation. In the event of a
Merger and in consideration for the Parent Corporation's
payment of $100,000 worth of the Parent Corporation common
stock payable to Sicari within twenty-four (24) hours after
the Termination Date, subject to the provisions of the merger
agreement by which the Merger is effected, Sicari agrees that
during the Restricted Period (as defined below) Sicari will
not directly or indirectly:
(a) as an individual proprietor, partner, stockholder,
officer, employee, director, joint venturer, investor, lender,
consultant, or in any other capacity whatsoever (other than as
a holder of not more than one percent of the combined voting
power of the outstanding stock of a publicly held company),
develop, design, produce, market, sell or render (or assist
any other person in developing, designing, producing,
marketing, selling or
3
<PAGE>
rendering) products or services related to the test handler,
wafer handling or wafer inspection semiconductor capital
equipment markets anywhere in the world;
(b) solicit, divert or take away, or attempt to divert or to
take away, the business or patronage of any of the customers
of the Company with whom the Company had a relationship during
the period of Sicari's employment by the Company; or
(c) recruit, solicit or hire any employee of the Company, or
induce or attempt to induce any employee of the Company to
terminate his/her employment with, or otherwise cease his/her
relationship with, the Company.
By accepting this consideration Sicari further agrees that the
restrictions contained in this Section 7 are necessary for the
protection of the business and goodwill of the Company and are
considered by Sicari to be reasonable for such purpose and
that any breach of this Section 7 by Sicari is likely to cause
the Company substantial and irrevocable damage and, therefore,
in the event of any such breach, in addition to such other
remedies which may be available to it, the Company shall be
entitled to specific performance and other injunctive relief.
For purposes of this Section 7, the term "Restricted Period"
means the period during which Sicari serves as an employee,
officer, director or consultant of the Company and for 30
months after the termination of Sicari's employment to the
Company; provided, however, that if Sicari breaches the
provisions of clauses (a)-(c) above, the Restricted Period
will continue until 30 months have elapsed without any
violation of such provisions."
6. No Other Changes. All of the provisions of the Original Agreement
shall remain in full force and effect.
4
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
ASECO CORPORATION
By:___________________________
Title:________________________
______________________________
Sebastian J. Sicari
5
EXHIBIT 4F
Amendment to Archer Separation Agreement
This Amendment is made as of this 19th day of January, 1999,
by and between Aseco Corporation, a Delaware corporation ( the
"Company"), and Carl S. Archer, Jr. ("Archer").
RECITALS
WHEREAS, the parties hereto have entered into a Separation Agreement
dated as of August 11, 1998 (the "Original Agreement"); and
WHEREAS, the parties hereto desire to amend the Original
Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
Capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to such terms in the Original Agreement.
"Change in Control" shall mean (i) the sale, lease, transfer or other
disposition by the Company of all or substantially all of its assets in a single
transaction or a series of related transactions; (ii) the merger or
consolidation of the Company with another entity in which the stockholders of
the Company immediately prior to such merger or consolidation hold less than 50%
of the outstanding voting stock of the surviving or resulting corporation
immediately following such transaction; or (iii) the sale or exchange (to or
with any person or entity other than the Company) by the stockholders of the
Company of more than 50% of the outstanding voting stock of the Company in a
single transaction or series of related transactions."
"Merger" shall mean the merger or consolidation of the Company with
another entity in which the stockholders of the Company immediately prior to
such merger or consolidation hold less than 50% of the outstanding voting stock
of the surviving or resulting corporation immediately following such
transaction.
1
<PAGE>
"Parent Corporation" means a corporation that is party to an Agreement
effecting a Merger of the Company and a wholly-owned subsidiary of such
corporation.
2. Severance Payments. Section 4 of the Original Agreement is amended
such that it shall supersede the prior Section 4 and read in full as follows:
"4. Severance Payments. As consideration for past
services rendered by Archer, the Company shall pay him $15,000
per month (net of all applicable withholding taxes) during the
two-year period commencing on the first anniversary of the
date of this Agreement; provided, however, that upon a Change
in Control the Company shall pay Archer an amount equal to
$520,000 minus the total amount theretofore paid to him
pursuant to Sections 3 and 4 of this Agreement; and provided
further, that if such Change in Control is a Merger, the
Parent Corporation shall pay Archer within twenty-four (24)
hours of the effective date of the Merger an amount of Parent
Corporation common stock equal to $520,000 minus the total
amount theretofore paid to him pursuant to Sections 3 and 4 of
this Agreement, subject to the provisions of the merger
agreement under which the Merger was effected and which are
hereby incorporated by reference. The Company, in its sole
discretion, shall have the right to prepay any or all amounts
that it is required to pay pursuant to Sections 3 and 4 of
this Agreement."
3. Stock Options. Section 6 of the Original Agreement is hereby
supplemented by adding an additional sentence to the end of such Section 6 that
shall read in its entirety as follows:
"In the event of a Merger under which such options convert to
options to purchase shares of the Parent Corporation's common
stock ("Parent Options"), Archer shall exercise 100% of the
Parent Options he holds within six months after the effective
date of the Merger and shall exercise 50% of such Parent
Options within three months after the effective date of the
Merger."
4. The Original Agreement is hereby supplemented by adding a new
Section 9 that shall read in its entirety as follows:
2
<PAGE>
"9. Consulting Services.
(a) In the event of a Merger, the Parent Corporation
shall engage Archer as a consultant to the Parent Corporation
for a term of three (3) months following the effective date of
the Merger in consideration for the payment of $40,000,
payable to Archer within twenty-four (24) hours after the
effective date of the Merger by the Parent Corporation in
shares of the Parent Corporation Common Stock, subject to the
provisions of the merger agreement by which the Merger is
effected and which are incorporated herein by reference.
During such term, Archer shall advise the Parent Corporation
as to such specific areas regarding the operation of the
business of the Parent Corporation as from time to time the
Parent Corporation reasonably requests, provided, however,
that Archer may decline to render advice with regard to any
matter Archer reasonably concludes is outside of or beyond his
area of expertise or for any other reasonable reason. Archer
shall not be obligated to render consulting services hereunder
for more than five (5) hours per month during the term of his
engagement as a consultant. Archer shall not (i) be required
to devote any specific amount of time to the business of the
Parent Corporation or (ii) be required to attend any meeting
in connection with the business of the Parent Corporation,
except as Archer may agree in his discretion.
(b) Archer's relation to the Parent Corporation in
his capacity as a consultant shall be that of an independent
consultant and contractor, and not as an employee, agent,
officer, director or manager of the Parent Corporation."
5. No Other Changes. All of the provisions of the Original Agreement
shall remain in full force and effect.
3
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
ASECO CORPORATION
By:___________________________
Title:________________________
______________________________
Carl S. Archer, Jr.
4
EXHIBIT 5
Direct Dial (612) 341-9726
[email protected]
January 31, 2000
Micro Component Technology, Inc.
2340 West County Road C
St. Paul, MN 55113-2528
RE: Form S-8 Registration Statement
Ladies and Gentlemen:
You have requested our opinion with regard to the legality of the
proposed offering by Micro Component Technology, Inc. (the "Company") of
1,742,000 shares of the Company's common stock, par value $.01 per share, in
connection with the Incentive Stock Option Plan, Former Aseco Corp. 1986
Incentive Stock Option Plan, Former Aseco Corp. 1993 Omnibus Stock Plan, Former
Aseco Corp. Non-Employee Director Stock Option Plan and Consulting Agreements
with former Aseco Corp. Officers (the "Plans"). In rendering this opinion, we
have reviewed the Articles of Incorporation of the Company, the Bylaws of the
Company, the Plans, the minutes of all meetings of the directors of the Company
in which any action was taken pertaining to the adoption of the Plans or the
issuance of the shares, the Registration Statement on Form S-8, and other
matters deemed relevant to us.
Based upon our examination of the foregoing documents and questions of
law as we have deemed applicable, we are of the following opinion:
1. That the Company is a corporation duly organized under the laws of
the State of Minnesota.
2. That the shares to be offered by the Company, when sold upon the
terms and in the manner set forth in the Plans and the Registration Statement,
will be duly authorized, validly issued, fully paid and nonassessable shares of
the Company's common stock.
<PAGE>
The undersigned firm hereby consents to the inclusion of this letter as
a part of any application by the Company for registration or qualification of
the shares to be sold pursuant to the requirements of any federal or state law.
Very truly yours,
BEST & FLANAGAN LLP
By: /s/ Charles C. Berquist
-------------------------------------
Charles C. Berquist, a Partner
EXHIBIT 23A
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Form S-8 Registration
Statement of Micro Component Technology, Inc. of our report dated August 17,
1999 appearing in the Annual Report on Form 10-K of Micro Component Technology,
Inc. for the year ended June 26, 1999.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Minneapolis, Minnesota
January 31, 2000.
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, David M. Sugishita hereby constitutes
and appoints Roger E. Gower and Jeffrey S. Mathiesen his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign:
1. the registration statement on Form S-4 to be filed by Micro
Component Technology, Inc. in connection with the merger with
Aseco Corporation;
2. a registration statement on Form S-8 to register shares to be
issued to former Aseco employees, officers and directors
pursuant to the merger and to register the additional shares
to be reserved for issuance under the Incentive Stock Option
Plan;
3. any amendments (whether pre-effective or post-effective) to
such registration statements and any registration statement
for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933; and
to file the same with all exhibits thereto and other documents in connection
therewith with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each of said attorneys-in-fact
and agents, or their substitute or substitutes, may do or cause to be done by
virtue hereof.
Signature
/s/ David M. Sugishita Date: 10/15/99
- --------------------------------- ---------------------------------
David M. Sugishita
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, Donald J. Kramer hereby constitutes and
appoints Roger E. Gower and Jeffrey S. Mathiesen his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign:
1. the registration statement on Form S-4 to be filed by Micro
Component Technology, Inc. in connection with the merger with
Aseco Corporation;
2. a registration statement on Form S-8 to register shares to be
issued to former Aseco employees, officers and directors
pursuant to the merger and to register the additional shares
to be reserved for issuance under the Incentive Stock Option
Plan;
3. any amendments (whether pre-effective or post-effective) to
such registration statements and any registration statement
for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933; and
to file the same with all exhibits thereto and other documents in connection
therewith with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each of said attorneys-in-fact
and agents, or their substitute or substitutes, may do or cause to be done by
virtue hereof.
Signature
/s/ Donald J. Kramer Date: 10/15/99
- --------------------------------- ---------------------------------
Donald J. Kramer
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, Donald VanLuvanee hereby constitutes
and appoints Roger E. Gower and Jeffrey S. Mathiesen his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign:
1. the registration statement on Form S-4 to be filed by Micro
Component Technology, Inc. in connection with the merger with
Aseco Corporation;
2. a registration statement on Form S-8 to register shares to be
issued to former Aseco employees, officers and directors
pursuant to the merger and to register the additional shares
to be reserved for issuance under the Incentive Stock Option
Plan;
3. any amendments (whether pre-effective or post-effective) to
such registration statements and any registration statement
for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933; and
to file the same with all exhibits thereto and other documents in connection
therewith with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each of said attorneys-in-fact
and agents, or their substitute or substitutes, may do or cause to be done by
virtue hereof.
Signature
/s/ Donald VanLuvanee Date: 10/15/99
- --------------------------------- ---------------------------------
Donald VanLuvanee
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, D. James Guzy hereby constitutes and
appoints Roger E. Gower and Jeffrey S. Mathiesen his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign:
1. the registration statement on Form S-4 to be filed by Micro
Component Technology, Inc. in connection with the merger with
Aseco Corporation;
2. a registration statement on Form S-8 to register shares to be
issued to former Aseco employees, officers and directors
pursuant to the merger and to register the additional shares
to be reserved for issuance under the Incentive Stock Option
Plan;
3. any amendments (whether pre-effective or post-effective) to
such registration statements and any registration statement
for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933; and
to file the same with all exhibits thereto and other documents in connection
therewith with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each of said attorneys-in-fact
and agents, or their substitute or substitutes, may do or cause to be done by
virtue hereof.
Signature
/s/ D. James Guzy Date: 10/15/99
- --------------------------------- ---------------------------------
D. James Guzy
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, Patrick Verderico hereby constitutes
and appoints Roger E. Gower and Jeffrey S. Mathiesen his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign:
1. the registration statement on Form S-4 to be filed by Micro
Component Technology, Inc. in connection with the merger with
Aseco Corporation;
2. a registration statement on Form S-8 to register shares to be
issued to former Aseco employees, officers and directors
pursuant to the merger and to register the additional shares
to be reserved for issuance under the Incentive Stock Option
Plan;
3. any amendments (whether pre-effective or post-effective) to
such registration statements and any registration statement
for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933; and
to file the same with all exhibits thereto and other documents in connection
therewith with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each of said attorneys-in-fact
and agents, or their substitute or substitutes, may do or cause to be done by
virtue hereof.
Signature
/s/ Patrick Verderico Date: 10/15/99
- --------------------------------- ---------------------------------
Patrick Verderico
