<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 9, 1998
REGISTRATION NO. 333-62287
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- - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933*
CYTEC INDUSTRIES INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 22-3268660
(STATE OR OTHER JURISDICTION OF INCORPORATION
OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
FIVE GARRET MOUNTAIN PLAZA
WEST PATERSON, NEW JERSEY 07424
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
THE AMERICAN MATERIALS AND TECHNOLOGIES CORPORATION
1996 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
THE AMERICAN MATERIALS AND TECHNOLOGIES CORPORATION
1997 STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
EDWARD F. JACKMAN, ESQ.
FIVE GARRET MOUNTAIN PLAZA
WEST PATERSON, NEW JERSEY 07424
(973) 357-3100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPY TO:
JOHN T. GAFFNEY, ESQ.
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
(212) 474-1000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF SECURITIES
PURSUANT TO THE PLANS: Promptly after the filing of this Post-Effective
Amendment.
- - ---------------
* Filed as a Post-Effective Amendment on Form S-8 to such Form S-4 Registration
Statement pursuant to the procedure described herein. See "INTRODUCTORY
STATEMENT".
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<PAGE> 2
INTRODUCTORY STATEMENT
Cytec Industries Inc. ("Cytec") hereby amends its Registration Statement on
Form S-4 (No. 333-62287) (the "Form S-4") by filing this Post-Effective
Amendment No. 1 on Form S-8 (the "Post-Effective Amendment") relating to the
sale of up to 275,000 shares of the Common Stock, par value $.01 per share, of
Cytec ("Cytec Common Stock") issuable upon the exercise of stock options granted
under (i) The American Materials & Technologies Corporation 1996 Incentive and
Nonqualified Stock Option Plan and The American Materials & Technologies
Corporation 1997 Stock Option Plan, as amended on March 13, 1998 (the "Plans")
and (ii) issuable pursuant to the agreement between The American Materials &
Technologies Corporation and Paul W. Pendorf, dated May 9, 1995, as amended, and
pursuant to the agreement between The American Materials & Technologies
Corporation and James L. Russell, dated March 13, 1998 (collectively, the
"Agreements").
On October 9, 1998, CAM Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Cytec, was merged with and into The American
Materials & Technologies Corporation, a Delaware corporation ("AMT"). As a
result of such merger (the "Merger"), AMT became a wholly owned subsidiary of
Cytec and each outstanding share (other than shares owned by Cytec, AMT, or any
subsidiary of Cytec) of Common Stock, par value $.01 per share, of AMT ("AMT
Common Stock") has been converted into .3098 shares of Cytec Common Stock. In
addition, each outstanding option issued pursuant to the Plans and the
Agreements will no longer be exercisable for shares of AMT Common Stock, but
instead, will constitute an option to acquire, on substantially the same terms
and conditions as were applicable under such option, shares of Cytec Common
Stock.
This Post-Effective Amendment relates only to the shares of Cytec Common
Stock issuable on the exercise of stock options under the Plans and the
Agreements and is the first Post-Effective Amendment to the Form S-4 filed with
respect to such shares.
2
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
have been or will be sent or given to participating employees as specified by
Rule 428(b)(1) under the Securities Act of 1933 (the "Act"). These documents and
the documents incorporated by reference into this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Act.
I-1
<PAGE> 4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Cytec with the Securities and Exchange
Commission are incorporated herein by reference:
(a) Cytec's Annual Report on Form 10-K for the year ended December 31, 1997
and Cytec's Form 10-K/A relating to the year ended December 31, 1997;
(b) Cytec's Quarterly Reports on Form 10-Q for the quarterly periods ended
March 31, 1998 and June 30, 1998 and Cytec's Current Reports on Form
8-K dated March 18, 1998, April 16, 1998, May 6, 1998 and September 17,
1998;
(c) The description of Cytec's Common Stock set forth in Cytec's
Registration Statements filed pursuant to Section 12 of the Exchange
Act and any announcements or reports filed for the purpose of updating
such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
after the date hereof and prior to the filing of a post-effective amendment that
indicates that all securities offered have been sold or that deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-laws of Cytec provide that Cytec shall indemnify, to the extent
permitted by Delaware law, its directors, officers and employees against
liabilities (including expenses, judgments and settlements) incurred by them in
connection with any actual or threatened action, suit or proceeding to which
they are or may become parties and which arises out of their status as
directors, officers or employees.
Sections 145(a) and 145(b) of the General Corporation Law of Delaware
("DGCL") permit a corporation to indemnify any director, officer, employee or
agent of the corporation against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement or incurred by him in connection with any
proceeding arising out of his status as director, officer, employee or agent if
such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action, had no reasonable cause to believe his conduct was
unlawful. To the extent that such a person has been successful in defense of any
such action or claim, Section 145(c) provides that he shall be indemnified
against expenses incurred by him in connection therewith.
As permitted by Section 102(b)(7) of the DGCL, Article Ninth of Cytec's
Certificate of Incorporation limits the personal liability of Cytec's directors
to Cytec or its stockholders for monetary damages for breach of fiduciary duty
except for liability (i) for any breach of the director's duty of loyalty to
Cytec or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL or (iv) for any transaction from which the director
derived an improper personal benefit.
II-1
<PAGE> 5
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<C> <S>
4.1(a) Certificate of Incorporation of the Registrant (incorporated
by reference to exhibit 3.1(a) to the Registrant's quarterly
report for the quarter ended September 30, 1996).
4.1(b) Certificate of Amendment to Certificate of Incorporation
dated May 13, 1997 (incorporated by reference to exhibit
3.1(a) to Registrant's quarterly report on Form 10-Q for the
quarter ended June 30, 1997).
4.1(c) Conformed copy of the Registrant's certificate of
incorporation, as amended (incorporated by reference to
exhibit 3(c) to Registrant's registration statement on Form
S-8, registration number 333-45577).
4.2 By-laws of the Registrant (incorporated by reference to
exhibit 3.2 to Registrant's quarterly report on Form 10-Q
for the quarter ended September 30, 1996).
4.3 The 1996 Incentive and Nonqualified Stock Option Plan.
4.4 The 1997 Stock Option Plan, as amended on March 13, 1998.
4.5 Stock Purchase Option Agreement between The American
Materials & Technologies Corporation and James L. Russell,
dated March 13, 1998.
4.6(a) Stock Option Agreement between The American Materials &
Technologies Corporation and Paul W. Pendorf, dated May 9,
1995.
4.6(b) Amendment to the Stock Option Agreement between The American
Materials & Technologies Corporation and Paul W. Pendorf,
dated October 8, 1998.
5.1 Opinion of Cravath, Swaine & Moore regarding the legality of
Cytec Common Stock.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Arthur Anderson LLP.
23.3 Consent of Cravath, Swaine & Moore (included in exhibit
5.1).
24.1* Power of Attorney.
24.2 Certified resolution of the Board of Directors of Cytec
authorizing the signature of the Chief Executive Officer and
the Chief Financial Officer by power of attorney.
</TABLE>
- - ---------------
* Previously filed.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: 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;
(b) 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;
(c) 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;
(d) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
II-2
<PAGE> 6
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;
(e) insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of West Paterson, State of New Jersey, on October 9,
1998.
CYTEC INDUSTRIES, INC.
By: /s/ E. F. JACKMAN
------------------------------------
Name: E. F. Jackman
Title: Vice President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Chief Executive Officer & October 9, 1998
- - ----------------------------------------------------- Director
D. Lilley
* Executive Vice President and October 9, 1998
- - ----------------------------------------------------- Chief Financial and
J. P. Cronin Accounting Officer
* Chairman of the Board October 9, 1998
- - -----------------------------------------------------
D. D. Fry
* Director October 9, 1998
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F. W. Armstrong
* Director October 9, 1998
- - -----------------------------------------------------
G. A. Burns
* Director October 9, 1998
- - -----------------------------------------------------
L. L. Hoynes, Jr.
* Director October 9, 1998
- - -----------------------------------------------------
W. P. Powell
* Director October 9, 1998
- - -----------------------------------------------------
J. R. Satrum
*By /s/ E. F. JACKMAN
-------------------------------------------------
E. F. Jackman
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- - ------- -----------
<C> <S>
4.1(a) Certificate of Incorporation of the Registrant (incorporated
by reference to exhibit 3.1(a) to the Registrant's quarterly
report for the quarter ended September 30, 1996).
4.1(b) Certificate of Amendment to Certificate of Incorporation
dated May 13, 1997 (incorporated by reference to Exhibit
3.1(a) to Registrant's quarterly report on Form 10-Q for the
quarter ended June 30, 1997).
4.1(c) Conformed copy of the Registrant's certificate of
incorporation, as amended (incorporated by reference to
exhibit 3(c) to Registrant's registration statement on Form
S-8, registration number 333-45577).
4.2 By-laws of the Registrant (incorporated by reference to
exhibit 3.2 to Registrant's quarterly report on Form 10-Q
for the quarter ended September 30, 1996).
4.3 The 1996 Incentive and Nonqualified Stock Option Plan.
4.4 The 1997 Stock Option Plan, as amended on March 13, 1998.
4.5 Stock Purchase Option Agreement between The American
Materials & Technologies Corporation and James L. Russell,
dated March 13, 1998.
4.6(a) Stock Option Agreement between The American Materials &
Technologies Corporation and Paul W. Pendorf, dated May 9,
1995.
4.6(b) Amendment to the Stock Option Agreement between The American
Materials & Technologies Corporation and Paul W. Pendorf,
dated October 8, 1998.
5.1 Opinion of Cravath, Swaine & Moore regarding the legality of
the Cytec Common Stock.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Arthur Anderson LLP.
23.3 Consent of Cravath, Swaine & Moore (included in exhibit
5.1).
24.1* Power of Attorney.
24.2 Certified resolution of the Board of Directors of Cytec
authorizing the signature of the Chief Executive Officer and
the Chief Financial Officer by power of attorney.
</TABLE>
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* Previously filed.
II-5
<PAGE> 1
Exhibit 4.3
THE AMERICAN MATERIALS TECHNOLOGIES CORPORATION
1996 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
SECTION 1. PURPOSE
This 1996 Incentive and Nonqualified Stock Option Plan (the
"Plan") of The American Materials & Technology Corporation, a Delaware
corporation (the "Company"), is designed to provide additional incentive to
executives and other key employees of the Company and its subsidiaries and for
certain other individuals providing services to or acting as directors of the
Company and its subsidiaries. The Company intends that this purpose will be
effected by the granting of incentive stock options ("Incentive Stock Options")
as defined in Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), and nonqualified stock options ("Nonqualified Options") under the Plan
which afford such executives, key employees, directors and other eligible
individuals an opportunity to acquire or increase their proprietary interest in
the Company through the acquisition of shares of its Common Stock. The Company
intends that Incentive Stock Options issued under the Plan will qualify as
"incentive stock options" as defined in Section 422 of the Code and the terms of
the Plan shall be interpreted in accordance with this intention; provided,
however, that no option granted hereunder will qualify as an "incentive stock
option" unless the Plan is approved by the stockholders of the Company within
twelve months prior to or following the adoption of the Plan by the Board. The
terms "parent" and "subsidiary" shall have the respective meanings set forth in
Section 424 of the Code.
SECTION 2. ADMINISTRATION
2.1 BOARD OF DIRECTORS/COMMITTEE.
(a) Except as otherwise provided in section 2.1 (b) below, the Plan
shall be administered by the Board of Directors (the "Board") of the Company.
(b) At such time as the Company has a class of securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Plan shall be administered by a Committee (the "Committee")
consisting of at least two members of the Board of Directors. None of the
members of the Committee shall be an officer or other employee of the Company,
and none shall have been granted any incentive stock option or nonqualified
option under this Plan (other than pursuant to Section 4.4) or any other stock
option plan of the Company within one year prior to service on the Committee. It
is the intention of the
<PAGE> 2
2
Company that, so long as the Company has a class of securities registered
pursuant to the Exchange Act, the Plan shall be administered by "disinterested
persons" within the meaning of Rule 16b-3 under the Exchange Act, but the
authority and validity of any act taken or not taken by the Committee shall not
be affected if any person administering the Plan is not a disinterested person.
Except as specifically reserved to the Board under the terms of the Plan, the
Committee shall have full and final authority to operate, manage and administer
the Plan on behalf of the Company. Action by the Committee shall require the
affirmative vote of a majority of all members thereof.
2.2 POWERS OF THE BOARD/COMMITTEE. Subject to the terms and conditions
of the Plan, the Board or the Committee, as the case may be, shall have the
power:
(a) To determine from time to time the persons eligible to
receive options and the options to be granted to such persons under the
Plan and to prescribe the terms, conditions, restrictions, if any, and
provisions (which need not be identical) of each option granted under
the Plan to such persons;
(b) To construe and interpret the Plan and options granted
thereunder and to establish, amend, and revoke rules and regulations
for administration of the Plan. In this connection, the Board or the
Committee, as the case may be, may correct any defect or supply any
omission, or reconcile any inconsistency in the Plan, or in any option
agreement, in the manner and to the extent it shall doom necessary or
expedient to make the Plan fully effective. All decisions and
determinations by the Board or the Committee, as the case may be, in
the exercise of this power shall be final and binding upon the Company
and optionees;
(c) To make, in its sole discretion, changes to any
outstanding option granted under the Plan, including: (i) to reduce the
exercise price, (ii) to accelerate the vesting schedule or (iii) to
extend the expiration date; and
(d) Generally, to exercise such powers and to perform such
acts as are deemed necessary or expedient to promote the best interests
of the Company with respect to the Plan.
SECTION 3. STOCK
3.1 STOCK TO BE ISSUED. The stock subject to the options granted under
the Plan shall be shares of the Company's authorized but unissued common stock,
<PAGE> 3
3
$.01 par value per share (the "Common Stock"), or shares of the Company's Common
Stock held in treasury. The total number of shares that may be issued pursuant
to options granted under the Plan shall not exceed an aggregate of 350,000
shares of Common Stock; provided, however, that the class and aggregate number
of shares which may be subject to options granted under the Plan shall be
subject to adjustment as provided In Section 8 hereof.
3.2 EXPIRATION, CANCELLATION OR TERMINATION OF OPTION. Whenever any
outstanding option under the Plan expires, is cancelled or is otherwise
terminated (other than by exercise), the shares of Common Stock allocable to the
unexercised portion of such option may again be the subject of options under the
Plan.
SECTION 4. ELIGIBILITY
4.1 PERSONS ELIGIBLE. Incentive Stock Options under the Plan may be
granted only to officers and other employees of the Company or its subsidiaries.
Nonqualified Options may be granted to officers or other employees of the
Company or its subsidiaries, to members of the Board of Directors of the Company
or its subsidiaries, and to consultants or other persons who render services to
the Company or its subsidiaries (regardless of whether they are also employees),
provided, however, that no such option may be granted to a person who is a
member of the Committee, if any, at the time of grant.
4.2 GREATER-THAN-TEN-PERCENT STOCKHOLDERS. Except as may otherwise be
Permitted by the Code or other applicable law or regulation, no Incentive Stock
Option shall be granted to an individual who, at the time the option is granted,
owns (including ownership attributed pursuant to Section 424 of the Code) more
than ten percent of the total combined voting power of all classes of stock of
the Company or any parent or subsidiary (a "greater-than-ten-percent
stockholder"), unless such Incentive Stock Option provides that (i) the purchase
price per share shall not be less than one hundred ten percent of the fair
market value of the Common Stock at the time such option is granted, and (ii)
that such option shall not be exercisable to any extent after the expiration of
five years from the date it is granted.
4.3 MAXIMUM AGGREGATE FAIR MARKET VALUE. The aggregate fair market
value (determined at the time the option is granted) of the Common Stock with
respect to which Incentive Stock Options are exercisable for the first time by
any optionee during any calendar year (under the Plan and any other plans of the
Company or any parent or subsidiary for the issuance of incentive stock options)
shall not exceed $100,000 (or such greater amount as may from time to time be
permitted with respect lo incentive stock options by the Code or any other
applicable law or regulation).
<PAGE> 4
4
4.4 OPTION GRANTS TO DIRECTORS. As compensation for services to the
Company, each director of the Company who is not an employee of the Company or
any subsidiary of the Company (a "Non-Employee Director") shall be automatically
granted a Nonqualified Option to purchase 5,000 shares of Common Stock upon his
or her election to the Board initially on or subsequent to the date on which
this Plan is approved by stockholders as set forth In Section 12. Each
Non-Employee Director shall be automatically granted an additional option to
purchase 5,000 shares of Common Stock on each of the first and second
anniversaries of his or her initial election as a director of the Company,
provided that the optionee is then a director of the Company. Any director of
the Company who is elected to the Board but who is not a Non-Employee Director
at the time of his or her initial election and later becomes a Non-Employee
Director shall be automatically granted an option to Purchase 5,000 shares of
Common Stock on the date on which such director becomes a Non-Employee Director,
and on each of the first and second anniversaries thereof provided that the
optionee is then a director of the Company. Each Nonqualified Option granted to
a Non-Employee Director pursuant to this Section 4.4 shall expire on the fifth
anniversary of the date of grant and shall not become exercisable until the
first anniversary of its date of grant, provided the optionee is a director of
the Company on such first anniversary. The exercise price per share of Common
Stock of each Nonqualified Option granted pursuant to this Section 4.4 shall be
equal to the fair market value of the Common Stock on the date the Nonqualified
Option is granted, such fair market value to be determined in accordance with
the provisions of Section 6.3.
The rights of a Non-Employee Director in an Option granted under this
Section 4.4 shall terminate 60 days after such Director ceases to be a Director
of the Company or on the specified expiration date, if earlier; provided,
however, that if the Non-Employee ceases to be a Director for cause, as defined
in Section 5.1, the rights shall terminate immediately on the date on which he
ceases to be a Director.
No Nonqualified Option granted under this Section 4.4 shall be
transferable by the optionee otherwise than by will or by the laws of descent
and distribution, and such Options shall be exercisable during the optionee's
lifetime only by the optionee. Any Nonqualified Option granted to a Non-Employee
Director and outstanding on the date of his or her death may be exercised by the
legal representative or legatee of the optionee for a period of one year from
the date of death or until the expiration of the stated term of the option, if
earlier.
Nonqualified Options granted under this Section 4.4 may be exercised
only by written notice to the Company specifying the number of shares to be
purchased. Payment of the full purchase may be made by one or more of the
methods specified
<PAGE> 5
5
in Section 7.2. An optionee shall have the rights of a stockholder only as to
shares acquired upon the exercise of an Option and not as to unexercised
Options.
The provisions of this Section 4.4 shall apply only to Options granted
or to be granted to Non-Employee Directors, and shall not be deemed to modify,
limit or otherwise apply to any other provision of this Plan or to any Option
issued under this Plan to a participant who is not a Non-Employee Director of
the Company. To the extent inconsistent with the provisions of any other Section
of this Plan, the provisions of this Section 4.4 shall govern the rights and
obligations of the Company and Non-Employee Directors respecting Options granted
or to be granted to Non-Employee Directors. The provisions of this Section 4.4
which affect the price, date of exercisability, option period or amount of
shares under an option shall not he amended more than once in any six-month
period, other than to comport with Changes in the Code.
SECTION 5. TERMINATION OF EMPLOYMENT OR DEATH OF OPTIONEE
5.1 TERMINATION OF EMPLOYMENT. Except as may be otherwise expressly
provided in the terms and conditions of the option granted to an optionee,
options shall terminate on the earlier of:
(a) the date of expiration thereof,
(b) the date of termination of the optionee's employment with
or services to the Company by it for cause (as determined by the
Company);
(c) the date of termination of the optionee's employment with
or services to the Company voluntarily by the optionee; or
(d) 60 days after the date of termination of the optionee's
employment with or services to the Company by it without cause;
provided that Nonqualified Options granted to persons who are not employees of
the Company need not, unless the Board or the Committee, as the case may be,
determines otherwise, be subject to the provisions set forth in clauses (b), (c)
and (d) above.
An employment relationship between the Company and the optionee shall be deemed
to exist during any period in which the optionee is employed by the Company or
any subsidiary. Whether authorized leave of absence, or absence on military or
government service, shall constitute termination of the employment
<PAGE> 6
6
relationship between the Company and the optionee shall be determined by the
Committee at the time thereof.
As used herein, "cause" shall mean (x) any material breach by the
optionee of any agreement to which the optionee and the Company are both
parties, (y) any act or omission to act by the optionee which may have a
material and adverse effect on the Company's business or on the optionee's
ability to perform services for the Company, including, without limitation, the
commission of any crime (other than ordinary traffic violations), or (z) any
material misconduct or material neglect of duties by the optionee in connection
with the business or affairs of the Company or any affiliate of the Company.
5.2 DEATH OR PERMANENT DISABILITY OF OPTIONEE. In the event of the,
death or permanent and total disability of the holder of an option prior to
termination of the optionee's employment with or services to the Company and
before the date of expiration of such option, such option shall terminate on the
earlier of such date of expiration or one year following the date of such death
or disability. After the death of the optionee, his/her executors,
administrators or any person or persons to whom his/her option may be
transferred by will or by the laws of descent and distribution, shall have the
right, at any time prior to such termination, to exercise the option to the
extent the optionee was entitled to exercise such option immediately prior to
his/her death. An optionee is permanently and totally disabled if he/she is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to last for a
continuous period of not less than 12 months; permanent and total disability
shall be determined in accordance with Section 22(e)(3) of the Code and the
regulations issued thereunder.
SECTION 6. TERMS OF THE OPTION AGREEMENTS
<PAGE> 7
7
Each option agreement shall be in writing and shall contain such terms,
conditions, restrictions, if any, and provisions as the Board or the Committee,
as the case may be, shall from time to time deem appropriate. Such provisions or
conditions may include without limitation restrictions on transfer, repurchase
rights, or such other provisions as shall be determined by the Board or the
Committee, as the case may be, provided that such additional provisions shall
not be inconsistent with any other term or condition of the Plan and such
additional provisions shall not cause any Incentive Stock Option granted under
the Plan to fall to qualify as an incentive option within the meaning of Section
422 of the Code. At such time as the Company has a class of securities
registered pursuant to Section 12 of the Exchange Act, the shares of stock
issuable upon exercise of an option by any executive officer, director or
beneficial owner of more than ten percent of the Common Stock of the Company may
not be sold or transferred (except that such shares may be issued upon exercise
of such option) by such officer, director or beneficial owner for a period of
six months following the grant of such option.
Option agreements need not be identical, but each option agreement by
appropriate language shall include the substance of all of the following
provisions:
6.1 EXPIRATION OF OPTION. Notwithstanding any other provision of the
Plan or of any option agreement, each option shall expire on the date specified
in the option agreement, which date shall not, in the case of an Incentive Stock
Option, be later than the tenth anniversary (fifth anniversary in the case of a
greater-than-ten-percent stockholder) of the date on which the option was
granted, or as specified in Section 5 of this Plan.
6.2 EXERCISE. Each option may be exercised, so long as it is valid and
outstanding, from time to time in part or as a whole, subject to any limitations
with respect to the number of shares for which the option may be exercised at a
particular time and to such other conditions as the Board or the Committee, as
the case may be, in its discretion may specify upon granting the option.
6.3 PURCHASE PRICE. The purchase price per share under each option
shall be determined by the Board or the Committee, as the case may be, at the
time the option is granted; provided, however, that the option price of any
Incentive Stock Option shall not, unless otherwise permitted by the Code or
other applicable law or regulation, be less than the fair market value of the
Common Stock on the date the Option is granted (110% of the fair market value in
the case of a greater-than-ten-percent stockholder). For the purpose of the Plan
the fair market value of the Common Stock shall be the closing price per share
on the date of grant of the option as reported on NASDAQ or by a nationally
recognized stock exchange, or,
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if the Common Stock is not listed on NASDAQ or such an exchange, the fair market
value as determined by the Board or the Committee, as the case may be.
6.4 TRANSFERABILITY OF OPTIONS. Options shall not be transferable by
the optionee otherwise than by will or under the laws of descent and
distribution, and shall be exercisable, during his or her lifetime, only by him
or her.
6.5 RIGHTS OF OPTIONEES. No optionee shall be deemed for any purpose to
be the owner of any shares of Common Stock subject to any option unless and
until the option shall have been exercised pursuant to the terms thereof, and
the Company shall have issued and delivered the shares to the optionee.
SECTION 7. METHOD OF EXERCISE; PAYMENT OF PURCHASE PRICE
7.1 METHOD OF EXERCISE. Any option granted under the Plan may be
exercised by the optionee by delivering to the Company an any business day a
written notice specifying the number of shares of Common Stock the optionee then
desires to purchase and specifying the address to which the certificates for
such shares are to be mailed (the "Notice"), accompanied by payment for such
shares.
7.2 PAYMENT OF PURCHASE PRICE. Payment for the shares of Common Stock
purchased pursuant to the exercise of an option shall be made by:
(a) cash in an amount, or a check, bank draft or postal or
express money order payable in an amount, equal to the aggregate
exercise price for the number of shares specified in the Notice;
(b) with the consent of the Board or the Committee, as the
case may be, shares of Common Stock of the Company having a fair market
value (as defined for purposes of Section 6.3 hereof) equal to such
aggregate exercise price;
(c) with the consent of the Board or the Committee, as the
case may be, a personal recourse note issued by the optionee to the
Company in a principal amount equal to such aggregate exercise price
and with such other terms, including interest rate and maturity, as
said Board or Committee may determine in its discretion; provided that
the interest rate borne by such note shall not be less than the lowest
applicable federal rate, as defined in Section 1274(d) of the Code;
(d) with the consent of the Board or the Committee, as the
case may be, such other consideration that is acceptable to said Board
or
<PAGE> 9
9
Committee and that has a fair market value, as determined by the
Board or Committee, equal to such aggregate exercise price; or
(e) with the consent of the Board or the Committee, as the
case may be, any combination of the foregoing.
As promptly as practicable after receipt of the Notice and accompanying payment,
the Company shall deliver to the optionee certificates for the number of shares
with respect to which such option has been so exercised, issued in the
optionee's name; provided, however, that such delivery shall be deemed effected
for all purposes when the Company or a stock transfer agent of the Company shall
have deposited such certificates in the United States mail, addressed to the
optionee, at the address specified in the Notice.
SECTION 8. CHANGES IN COMPANY'S CAPITAL STRUCTURE
8.1 RIGHTS OF COMPANY. The existence of outstanding options shall not
affect in any way the right or power of the Company or its stockholders to make
or authorize, without limitation, any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of Common
Stock, or any issue of bonds, debentures, preferred or prior preference stock or
other capital stock ahead of or affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
8.2 RECAPITALIZATION, STOCK SPLITS AND DIVIDENDS. If the Company shall
effect a subdivision or consolidation of shares or other capital readjustment,
the payment of a stock dividend, or other increase or reduction of the number of
shares of the Common Stock outstanding, in any such case without receiving
compensation therefor in money, services or property, then (i) the number,
class, and price per share of shares of stock subject to outstanding options
hereunder shall be appropriately adjusted in such a manner as to entitle an
optionee to receive upon exercise of an option, for the same aggregate cash
consideration, the same total number and class of shares as he or she would have
received as a result of the event requiring the adjustment had he or she
exercised his or her option in full immediately prior to such event; and (iii)
the number and class of shares with respect to which options may be granted
under the Plan shall be adjusted by substituting for the total number of shares
of Common Stock then reserved for issuance under the Plan that number and class
of shares of stock that the owner
<PAGE> 10
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of an equal number of outstanding shares of Common Stock would own as the result
of the event requiring the adjustment.
8.3 MERGER WITHOUT CHANGE OF CONTROL. After a merger of one or more
corporations into the Company, or after a consolidation of the Company and one
or more corporations in which (i) the Company shall be the surviving
corporation, and (ii) the stockholders of the Company immediately prior to such
merger or consolidation own after such merger or consolidation shares
representing at least fifty percent of the voting power of the Company, each
holder of an outstanding option shall, at no additional cost, be entitled upon
exercise of such option to receive in lieu of the number of shares as to which
such option shall then be so exercisable, the number and class of shares of
stock or other securities to which such holder would have been entitled pursuant
to the terms of the agreement of merger or consolidation if, immediately prior
to such merger or consolidation, such holder had been the holder of record of a
number of shares of Common Stock equal to the number of shares for which such
option was exercisable.
8.4 SALE OR MERGER WITH CHANGE OF CONTROL. If the Company is merged
into or consolidated with another corporation under circumstances where the
Company is not the surviving corporation, or if there is a merger or
consolidation where the Company is the surviving corporation but the
stockholders of the Company immediately prior to such merger or consolidation do
not own after such merger or consolidation shares representing at least fifty
percent of the voting power of the Company, or if the Company is liquidated, or
sells or otherwise disposes of substantially all of its assets to another
corporation while unexercised options remain outstanding under the Plan, (i)
subject to the provisions of clause (iii) below, after the effective date of
such merger, consolidation, liquidation, sale or disposition, 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, cash or property as the holders of shares of Common Stock
received pursuant to the terms of the merger, consolidation, liquidation, sale
or disposition; (ii) the Board or the Committee, as the case may be, may
accelerate the time for exercise of all unexercised and unexpired options to and
after a date prior to the effective date of such merger, consolidation,
liquidation, sale or disposition, as the case may be, specified by said Board or
Committee; or (iii) all outstanding options may be cancelled by the Board or the
Committee, as the case may be, as of the effective date of any such merger,
consolidation, liquidation, sale or disposition provided that (x) notice of such
cancellation shall be given to each holder of an option and (y) each holder of
an option shall have the right to exercise such option to the extent that the
same is then exercisable or, if said Board or Committee shall have accelerated
the time for exercise of all unexercised and
<PAGE> 11
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unexpired options, in full during the 30-day period preceding the effective date
of such merger, consolidation, liquidation, sale or disposition.
8.5 ADJUSTMENTS TO COMMON STOCK SUBJECT TO OPTIONS. Except as
hereinbefore expressly provided, the issue by the Company of shares of stock of
any class, or securities convertible into shares of stock of any class, for cash
or property, or for labor or services, either upon direct sale or upon the
exercise of rights or warrants to subscribe therefor, or upon conversion of
shares or obligations of the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock then subject to
outstanding options.
8.6 MISCELLANEOUS. Adjustments under this Section 8 shall be determined
by the Board or the Committee, as the case may be, and such determinations shall
be conclusive. No fractional shares of Common Stock shall be issued under the
Plan on account of any adjustment specified above.
SECTION 9. GENERAL RESTRICTIONS
9.1 INVESTMENT REPRESENTATIONS. The Company may require any person to
whom an option is granted, as a condition of exercising such option, to give
written assurances in substance and form satisfactory to the Company to the
effect that such person is acquiring the Common Stock subject to the option for
his or her own account for investment and not with any present intention of
selling or otherwise distributing the same, and to such other effects as the
Company deems necessary or appropriate in order to comply with federal and
applicable state securities laws.
<PAGE> 12
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9.2 COMPLIANCE WITH SECURITIES LAWS. The Company shall not be required
to sell or issue any shares under any option if the issuance of such shares
shall constitute a violation by the optionee or by the Company of any provisions
of any law or regulation of any governmental authority. In addition, in
connection with the Securities Act of 1933, as now in effect or hereafter
amended (the "Securities Act") upon exercise of any option, the Company shall
not be required to issue such shares unless the Board or the Committee, as the
case may be, has received evidence satisfactory to it to the effect that the
holder of such option will not transfer such shares except pursuant to a
registration statement in effect under such Act or unless an opinion of counsel
satisfactory to the Company has been received by the Company to the effect that
such registration is not required. Any determination in this connection by the
Board or the Committee, as the case may be, shall be final, binding and
conclusive. In the event the shares issuable on exercise of an option are not
registered under the Securities Act, the Company may imprint upon any
certificate representing shares so issued the following legend or any other
legend which counsel for the Company considers necessary or advisable to comply
with the Securities Act and with applicable state securities laws:
The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933 or under the
securities laws of any State and may not be sold or
transferred except upon such registration or upon receipt by
the Corporation of an opinion of counsel satisfactory to the
Corporation, in form and substance satisfactory to the
Corporation, that registration is not required for such sale
or transfer.
The Company may, but shall in no event be obligated to, register any
securities covered hereby pursuant to the Securities Act; and in the event any
shares are so registered the Company may remove any legend on certificates
representing such shares. The Company shall not be obligated to take any other
affirmative action in order to cause the exercise of an option or the issuance
of shares pursuant thereto to comply with any law or regulation of any
governmental authority.
9.3 EMPLOYMENT OBLIGATION. The granting of any option shall not impose
upon the Company any obligation to employ or continue to employ any optionee;
and the right of the Company to terminate the employment of any officer or other
employee shall not be diminished or affected by reason of the fact that an
option has been granted to him or her.
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SECTION 10. AMENDMENT OR TERMINATION OF THE PLAN
The Board of Directors may modify, revise or terminate this Plan at any
time and from time to time, except that the class of persons eligible to receive
options and the aggregate number of shares issuable pursuant to this Plan shall
not be changed or increased, other than by operation of Section 8 hereof,
without the consent of the stockholders of the Company.
SECTION 11. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board of Directors nor the
submission of the Plan to the stockholders of the Company for approval shall be
construed as creating any limitations on the power of the Board of Directors to
adopt such other incentive arrangements as it may deem desirable, including,
without limitation, the granting of stock options otherwise than under the Plan,
and such arrangements may be either applicable generally or only in specific
cases.
SECTION 12. EFFECTIVE DATE AND DURATION OF PLAN
The Plan shall become effective upon its adoption by the Board of
Directors provided that the stockholders of the Company shall have approved the
Plan within twelve months prior to or following the adoption of the Plan by the
Board. No option may be granted under the Plan after the tenth anniversary of
the effective date. The Plan shall terminate (i) when the total amount of the
Stock with respect to which options may be granted shall have been issued upon
the exercise of options or (ii) by action of the Board of Directors pursuant to
Section 10 hereof, whichever shall first occur.
<PAGE> 1
EXHIBIT 4.4
THE AMERICAN MATERIALS & TECHNOLOGIES CORPORATION
1997 STOCK OPTION PLAN
AS AMENDED ON MARCH 13, 1998
SECTION 1. Purpose
This 1998 Stock Option Plan (the "Plan") of The American
Materials & Technologies Corporation, a Delaware corporation (the "Company"), is
designed to provide additional incentive to executives and other key employees
of the Company and its subsidiaries and for certain other individuals providing
services to or acting as directors of the Company and its subsidiaries. The
Company intends that this purpose will be effected by the granting of incentive
stock options ("Incentive Stock Options") as defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), and nonqualified stock
options ("Nonqualified Options") under the Plan which afford such executives,
key employees, directors and other eligible individuals an opportunity to
acquire or increase their proprietary interest in the Company through the
acquisition of shares of its Common Stock. The Company intends that Incentive
Stock Options issued under the Plan will qualify as "incentive stock options" as
defined in Section 422 of the Code and the terms of the Plan shall be
interpreted in accordance with this intention, provided, however, that no option
granted hereunder will qualify as an "incentive stock option" unless the Plan is
approved by the stockholders of the Company within twelve months prior to or
following the adoption of the Plan by the Board. The term "subsidiary" shall
have the meaning set forth in Section 424 of the Code.
SECTION 2. Administration
2.1 Administration by the Board. The Plan shall be
administered by the Board of Directors.
2.2 Powers of the Board. Subject to the terms and conditions
of the Plan, the Board shall have the power:
(a) To determine from time to time the persons eligible to
receive options and the options to be granted to such persons under the
Plan and to prescribe
<PAGE> 2
the terms, conditions, restrictions, if any, and provisions (which need
not be identical) of each option granted under the Plan to such
persons;
(b) To construe and interpret the Plan and options granted
thereunder and to establish, amend, and revoke rules and regulations
for administration of the Plan. In this connection, the Board may
correct any defect or supply any omission, or reconcile any
inconsistency in the Plan, or in any option agreement, in the manner
and to the extent it shall deem necessary or expedient to make the Plan
fully effective. All decisions and determinations by the Board in the
exercise of this power shall be final and binding upon the Company and
optionees;
(c) To make, in its sole discretion, changes to any
outstanding option granted under the Plan, including: (i) to reduce the
exercise price, (ii) to accelerate the vesting schedule or (iii) to
extend the expiration date; and
(d) Generally, to exercise such powers and to perform such
acts as are deemed necessary or expedient to promote the best interests
of the Company with respect to the Plan.
SECTION 3. Stock
3.1 Stock to be Issued. The stock subject to the options
granted under the Plan shall be shares of the Company's authorized but unissued
Common Stock, $0.01 par value (the "Common Stock"), or shares of the Company's
Common Stock held in treasury. The aggregate number of shares that may be issued
upon exercise of options granted under the Plan shall not exceed 350,000;
provided, however, that on the last business day of each fiscal year beginning
with December 31, 1997, such maximum number shall be increased by a number equal
to 3% of the number of shares of Common Stock issued and outstanding as of the
close of business on such day. In no event shall the aggregate number of shares
which may be issued upon exercise of options under the Plan exceed 1,500,000.
3.2 Expiration, Cancellation or Termination of Option.
Whenever any outstanding option under the Plan expires, is canceled or is
otherwise terminated (other than by exercise), the shares of Common Stock
allocable to the unexercised portion of such option may again be the subject of
options under the Plan.
3.3 Limitation on Grants. In no event may any Plan participant
be granted options with respect to more
<PAGE> 3
3
than 100,000 shares of Common Stock under the Plan in any calendar year. The
number of shares of Common Stock issuable pursuant to an option granted to a
Plan participant in a calendar year that is subsequently forfeited, canceled or
otherwise terminated shall continue to count toward the foregoing limitation in
such calendar year. In addition, if the exercise price of an option is
subsequently reduced, the transaction shall be deemed a cancellation of the
original option and the grant of a new one so that both transactions shall count
toward the maximum shares issuable in the calendar year of each respective
transaction.
SECTION 4. Eligibility
4.1 Persons Eligible. Incentive Stock Options under the Plan
may be granted only to officers and other employees of the Company or its
subsidiaries. Nonqualified Options may be granted to officers or other employees
of the Company or its subsidiaries, and to members of the Board and consultants
or other persons who render services to the Company (regardless of whether they
are also employees).
4.2 Greater-Than-Ten-Percent Stockholders. Except as may
otherwise be permitted by the Code or other applicable law or regulation, no
Incentive Stock Option shall be granted to an individual who, at the time the
option is granted, owns (including ownership attributed pursuant to Section 424
of the Code) more than ten percent of the total combined voting power of all
classes of stock of the Company or any subsidiary (a "greater-than-ten- percent
stockholder"), unless such Incentive Stock Option provides that (i) the purchase
price per share shall not be less than one hundred ten percent of the fair
market value of the Common Stock at the time such option is granted, and (ii)
that such option shall not be exercisable to any extent after the expiration of
five years from the date it is granted.
4.3 Maximum Aggregate Fair Market Value. The aggregate fair
market value (determined at the time the option is granted) of the Common Stock
with respect to which Incentive Stock Options are exercisable for the first time
by any optionee during any calendar year (under the Plan and any other plans of
the Company or its subsidiary for the issuance of incentive stock options) shall
not exceed $100,000 (or such greater amount as may from time to time be
permitted with respect to incentive stock options by the Code or any other
applicable law or regulation).
<PAGE> 4
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4.4 Option Grants to Non-Employee Directors. As compensation
for services to the Company, each director of the Company who is a "Non-Employee
Director," as that term is defined in Rule 16b-3(b)(3) under the Exchange Act
shall be automatically granted a Nonqualified Option to purchase 10,000 shares
of Common Stock upon his or her election to the Board initially on or subsequent
to the date on which the Plan is approved by stockholders as set forth in
Section 12. Any director of the Company who is elected to the Board but who is
not a Non-Employee Director at the time of his or her initial election and later
becomes a Non- Employee Director shall be automatically granted an option to
purchase 10,000 shares of Common Stock upon his or her first election to the
Board as a Non-Employee Director. Each such grant (an "Initial Option Grant")
shall become exercisable in its entirety on the first anniversary of the date of
grant and shall expire on the fifth annual anniversary of the date of grant. At
the first meeting of the Board of Directors following each annual meeting of
stockholders, commencing with the first meeting of the Board of Directors
following the Company's annual meeting of stockholders in 1997, each
Non-Employee Director (other than any Non-Employee Director who has received an
Initial Option Grant as a result of election to the Board at such meeting) shall
be automatically granted an additional Nonqualified Option to purchase 10,000
shares of Common Stock of the Company (the "Subsequent Option Grant"). Each
Subsequent Option Grant shall become exercisable in its entirety on the first
anniversary of the date of grant and shall expire on the fifth annual
anniversary of the date of grant. The exercise price per share of Common Stock
of each Nonqualified Option granted pursuant to this Section 4.4 shall be equal
to the fair market value of the Common Stock on the date the Nonqualified Option
is granted, such fair market value to be determined in accordance with the
provisions of Section 6.3.
The rights of a Non-Employee Director in an Option granted
under this Section 4.4 shall terminate 60 days after such Director ceases to be
a Director of the Company or on the specified expiration date, if earlier;
provided, however, that if the Non-Employee ceases to be a Director for cause,
as defined in Section 5.1, the rights shall terminate immediately on the date on
which he ceases to be a Director.
<PAGE> 5
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No Nonqualified option granted under this Section 4.4 shall be
transferable by the optionee otherwise than by will or by the laws of descent
and distribution, and such options shall be exercisable during the optionee's
lifetime only by the optionee. Any Nonqualified Option granted to a Non-Employee
Director and outstanding on the date of his or her death may be exercised by the
legal representative or legatee of the optionee until the expiration of the
stated term of the option.
Nonqualified Options granted under this Section 4.4 may be
exercised only by written notice to the Company specifying the number of shares
to be purchased. Payment of the full purchase may be made by one or more of the
methods specified in Section 7.2. An optionee shall have the rights of a
stockholder only as to shares acquired upon the exercise of an option and not as
to unexercised options.
The provisions of this Section 4.4 shall apply only to options
granted or to be granted to Non-Employee Directors, and shall not be deemed to
modify, limit or otherwise apply to any other provision of the Plan or to any
option issued under the Plan to a participant who is not a Non-Employee Director
of the Company. To the extent inconsistent with the provisions of any other
Section of the Plan, the provisions of this Section 4.4 shall govern the rights
and obligations of the Company and Non-Employee Directors respecting options
granted or to be granted to Non-Employee Directors.
SECTION 5. Termination of Employment or Death of Optionee
5.1 Termination of Employment. Except as may be otherwise
expressly provided herein, options shall terminate on the earlier of:
(a) the date of expiration thereof,
(b) the date of termination of the optionee's employment
with or services to the Company by it for cause (as determined by the
Company), or voluntarily by the optionee; or
(c) thirty days after the date of termination of
the optionee's employment with or services to the
Company by it without cause;
<PAGE> 6
6
provided that Nonqualified Options granted to persons who are not employees of
the Company need not, unless the Board determines otherwise, be subject to the
provisions set forth in clauses (b) and (c) above.
An employment relationship between the Company and the
optionee shall be deemed to exist during any period in which the optionee is
employed by the Company or any subsidiary. Whether authorized leave of absence,
or absence on military or government service, shall constitute termination of
the employment relationship between the Company and the optionee shall be
determined by the Board at the time thereof.
As used herein, "cause" shall mean (x) any material breach by
the optionee of any agreement to which the optionee and the Company are both
parties, (y) any act or omission to act by the optionee which may have a
material and adverse effect on the Company's business or on the optionee's
ability to perform services for the Company, including, without limitation, the
commission of any crime (other than ordinary traffic violations), or (z) any
material misconduct or material neglect of duties by the optionee in connection
with the business or affairs of the Company or any affiliate of the Company.
5.2 Death or Permanent Disability of Optionee. In the event of
the death or permanent and total disability of the holder of an option prior to
termination of the optionee's employment with or services to the Company and
before the date of expiration of such option, such option shall terminate on the
earlier of such date of expiration or one year following the date of such death
or disability. After the death of the optionee, his/her executors,
administrators or any person or persons to whom his/her option may be
transferred by will or by the laws of descent and distribution, shall have the
right, at any time prior to such termination, to exercise the option to the
extent the optionee was entitled to exercise such option immediately prior to
his/her death. An optionee is permanently and totally disabled if he/she is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to last for a
continuous period of not less than twelve months; permanent and total disability
shall be determined in accordance with Section 22(e)(3) of the Code and the
regulations issued thereunder.
<PAGE> 7
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SECTION 6. Terms of the Option Agreements
Each option agreement shall be in writing and shall contain
such terms, conditions, restrictions, if any, and provisions as the Board shall
from time to time deem appropriate. Such provisions or conditions may include
without limitation restrictions on transfer, repurchase rights, or such other
provisions as shall be determined by the Board; provided that such additional
provisions shall not be inconsistent with any other term or condition of the
Plan and such additional provisions shall not cause any Incentive Stock Option
granted under the Plan to fail to qualify as an incentive option within the
meaning of Section 422 of the Code. Option agreements need not be identical, but
each option agreement by appropriate language shall include the substance of all
of the following provisions:
6.1 Expiration of Option. Subject to Section 4.4 hereof,
notwithstanding any other provision of the Plan or of any option agreement, each
option shall expire on the date specified in the option agreement, which date
shall not, in the case of an Incentive Stock Option, be later than the tenth
anniversary (fifth anniversary in the case of a greater-than-ten-percent
stockholder) of the date on which the option was granted, or as specified in
Section 5 hereof.
6.2 Exercise. Subject to Sections 4.4 and 7.3 hereof, each
option may be exercised, so long as it is valid and outstanding, from time to
time in part or as a whole, subject to any limitations with respect to the
number of shares for which the option may be exercised at a particular time and
to such other conditions as the Board in its discretion may specify upon
granting the option.
6.3 Purchase Price. Subject to Section 4.4 hereof, the
purchase price per share under each option shall be determined by the Board at
the time the option is granted; provided, however, that the option price of any
Incentive Stock Option shall not, unless otherwise permitted by the Code or
other applicable law or regulation, be less than the fair market value of the
Common Stock on the date the option is granted (110% of the fair market value in
the case of a greater-than-ten-percent stockholder). For the purpose of the Plan
the fair market value of the Common Stock shall be the closing price per share
on the date of the grant of the option as reported by The Nasdaq Stock Market,
Inc. ("Nasdaq"), or, if the Common Stock is not quoted on Nasdaq, as reported by
a nationally recognized
<PAGE> 8
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stock exchange, or, if the Common Stock is not listed on such an exchange, the
fair market value as determined by the Board.
6.4 Transferability of Options. Options shall not be
transferable by the optionee otherwise than by will or under the laws of descent
and distribution, and shall be exercisable, during his or her lifetime, only by
him or her.
6.5 Rights of Optionees. Except as required under any law or
regulation respecting reporting or disclosure of beneficial ownership of
securities, no optionee shall be deemed for any purpose to be the owner of any
shares of Common Stock subject to any option unless and until the option shall
have been exercised pursuant to the terms thereof, and the Company shall have
issued and delivered the shares to the optionee.
6.6 Lockup Agreement. The Board may in its discretion specify
upon granting an option that the optionee shall agree for a period of time from
the effective date of any registration of securities of the Company (upon
request of the Company or the underwriters managing any underwritten offering of
the Company's securities), not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any shares issued pursuant
to the exercise of such option, without the prior written consent of the Company
or such underwriters, as the case may be.
SECTION 7. Method of Exercise; Payment of Purchase Price
7.1 Method of Exercise. Any option granted under the Plan may
be exercised by the optionee by delivering to the Company on any business day a
written notice specifying the number of shares of Common Stock the optionee then
desires to purchase and specifying the address to which the certificates for
such shares are to be mailed (the "Notice"), accompanied by payment for such
shares.
7.2 Payment of Purchase Price. Payment for the
shares of Common Stock purchased pursuant to the exercise of
an option shall be made by:
(a) cash in an amount, or a check, bank draft or postal or
express money order payable in an amount, equal to the aggregate
exercise price for the number of shares specified in the Notice;
<PAGE> 9
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(b) with the consent of the Board, shares of Common Stock of
the Company having a fair market value (as defined for purposes of
Section 6.3 hereof) equal to such aggregate exercise price;
(c) with the consent of the Board, a personal recourse note
issued by the optionee to the Company in a principal amount equal to
such aggregate exercise price and with such other terms, including
interest rate and maturity, as the Board may determine in its
discretion; provided that the interest rate borne by such note shall
not be less than the lowest applicable federal rate, as defined in
Section 1274(d) of the Code;
(d) with the consent of the Board, such other consideration
that is acceptable to the Board and that has a fair market value, as
determined by the Board, equal to such aggregate exercise price,
including any broker-directed cashless exercise/resale procedure
adopted by the Board; or
(e) with the consent of the Board, any combination of the
foregoing.
As promptly as practicable after receipt of the Notice and
accompanying payment, the Company shall deliver to the optionee certificates for
the number of shares with respect to which such option has been so exercised,
issued in the optionee's name; provided, however, that such delivery shall be
deemed effected for all purposes when the Company or a stock transfer agent of
the Company shall have deposited such certificates in the United States mail,
addressed to the optionee, at the address specified in the Notice.
7.3 Special Limits Affecting Section 16(b) Option Holders.
Shares issuable upon exercise of options granted to a person who in the opinion
of the Board may be deemed to be a director or officer of the Company within the
meaning of Section 16(b) of the Exchange Act and the rules and regulations
thereunder shall not be sold or disposed of until after the expiration of six
months following the date of grant.
SECTION 8. Changes in Company's Capital Structure
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8.1 Rights of Company. The existence of outstanding options
shall not affect in any way the right or power of the Company or its
stockholders to make or authorize, without limitation, any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of Common Stock, or any issue of bonds, debentures, preferred or prior
preference stock or other capital stock ahead of or affecting the Common Stock
or the rights thereof, or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.
8.2 Recapitalization, Stock Splits and Dividends. If the
company shall effect a subdivision or consolidation of shares or other capital
readjustment, the payment of a stock dividend, or other increase or reduction of
the number of shares of the Common Stock outstanding, in any such case without
receiving compensation therefor in money, services or property, then (i) the
number, class, and price per share of shares of stock subject to outstanding
options hereunder shall be appropriately adjusted in such a manner as to entitle
an optionee to receive upon exercise of an option, for the same aggregate cash
consideration, the same total number and class of shares as he or she would have
received as a result of the event requiring the adjustment had he or she
exercised his or her option in full immediately prior to such event; and
(ii) the number and class of shares with
respect to which options may be granted under the Plan, and the number and class
of shares set forth in Sections 3.3 and 4.4, shall be adjusted by substituting
for the total number of shares of Common Stock then reserved for issuance under
the Plan that number and class of shares of stock that the owner of an equal
number of outstanding shares of Common Stock would own as the result of the
event requiring the adjustment.
8.3 Merger Without Change of Control. After a merger of one or
more corporations into the Company, or after a consolidation of the Company and
one or more corporations in which (i) the Company shall be the surviving
corporation, and (ii) the stockholders of the Company immediately prior to such
merger or consolidation own after such merger or consolidation shares
representing at least
<PAGE> 11
11
fifty percent of the voting power of the Company, each holder of an outstanding
option shall, at no additional cost, be entitled upon exercise of such option to
receive in lieu of the number of shares as to which such option shall then be so
exercisable, the number and class of shares of stock or other securities to
which such holder would have been entitled pursuant to the terms of the
agreement of merger or consolidation if, immediately prior to such merger or
consolidation, such holder had been the holder of record of a number of shares
of Common Stock equal to the number of shares for which such option was
exercisable.
8.4 Sale or Merger With Change of Control. If the Company is
merged into or consolidated with another corporation under circumstances where
the Company is not the surviving corporation, or if there is a merger or
consolidation where the Company is the surviving corporation but the
stockholders of the Company immediately prior to such merger or consolidation do
not own after such merger or consolidation shares representing at least fifty
percent of the voting power of the Company, or if the Company is liquidated, or
sells or otherwise disposes of substantially all of its assets to another
corporation while unexercised options remain outstanding under the Plan, (i)
subject to the provisions of clause (iii) below, after the effective date of
such merger, consolidation, liquidation, sale or disposition, 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, cash or property as the holders of shares of Common Stock
received pursuant to the terms of the merger, consolidation, liquidation, sale
or disposition; (ii) the Board may accelerate the time for exercise of all
unexercised and unexpired options to and after a date prior to the effective
date of such merger, consolidation, liquidation, sale or disposition, as the
case may be, specified by the Board; or (iii) all outstanding options may be
canceled by the Board as of the effective date of any such merger,
consolidation, liquidation, sale or disposition provided that (x) notice of such
cancellation shall be given to each holder of an option and (y) each holder of
an option shall have the right to exercise such option to the extent that the
same is then exercisable or, if the Board shall have accelerated the time for
exercise of all unexercised and unexpired options, in full during the 30-day
period preceding the effective date of such merger, consolidation, liquidation,
sale or disposition.
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8.5 Adjustments to Common Stock Subject to Options. Except as
previously provided, the issue by the Company of shares of stock of any class,
or securities convertible into shares of stock of any class, for cash or
property, or for labor or services, either upon direct sale or upon the exercise
of rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares of Common Stock then subject to outstanding
options.
8.6 Miscellaneous. Adjustments under this Section 8 shall be
determined by the Board, and such determinations shall be conclusive. No
fractional shares of Common Stock shall be issued under the Plan on account of
any adjustment specified above.
SECTION 9. General Restrictions
9.1 Investment Representations. The Company may require any
person to whom an option is granted, as a condition of exercising such option,
to give written assurances in substance and form satisfactory to the Company to
the effect that such person is acquiring the Common Stock subject to the option
for his or her own account for investment and not with any present intention of
selling or otherwise distributing the same, and to such other effects as the
Company deems necessary or appropriate in order to comply with federal and
applicable state securities laws.
9.2 Compliance with Securities Laws. The Company shall not be
required to sell or issue any shares under any option if the issuance of such
shares shall constitute a violation by the optionee or by the Company of any
provisions of any law or regulation of any governmental authority. In addition,
in connection with the Securities Act of 1933, as now in effect or hereafter
amended (the "Act"), upon exercise of any option, the Company shall not be
required to issue such shares unless the Board has received evidence
satisfactory to it to the effect that the holder of such option will not
transfer such shares except pursuant to a registration statement in effect under
such Act or unless an opinion of counsel satisfactory to the Company has been
received by the Company to the effect that such registration is not required.
Any determination in this connection by the Board shall be final, binding and
conclusive. In the event the shares issuable on exercise of
<PAGE> 13
13
an option are not registered under the Act, the Company may imprint upon any
certificate representing shares so issued the following legend or any other
legend which counsel for the Company considers necessary or advisable to comply
with the Act and with applicable state securities laws:
The shares of stock represented by this certificate have been
acquired for investment and have not been registered under the
Securities Act of 1933. Such securities may not be sold,
transferred, pledged or hypothecated unless the registration
provisions of said Act have been complied with or unless the
Corporation has received an opinion of its counsel that such
registration is not required, except upon such registration or
upon receipt by the Corporation of an opinion of counsel
satisfactory to the Corporation, in form and substance
satisfactory to the Corporation, that registration is not
required for such sale or transfer.
The Company may, but shall in no event be obligated to,
register any securities covered hereby pursuant to the Act; and in the event any
shares are so registered the Company may remove any legend on certificates
representing such shares. The Company shall not be obligated to take any other
affirmative action in order to cause the exercise of an option or the issuance
of shares pursuant thereto to comply with any law or regulation of any
governmental authority.
9.3 Employment Obligation. The granting of any option shall
not impose upon the Company any obligation to employ or continue to employ any
optionee; and the right of the Company to terminate the employment of any
officer or other employee shall not be diminished or affected by reason of the
fact that an option has been granted to him or her.
<PAGE> 14
14
SECTION 10. Withholding Taxes
10.1 Rights of Company. The Company may require an employee
exercising a Nonqualified Option, or disposing of shares of Common stock
acquired pursuant to the exercise of an Incentive Option in a disqualifying
disposition (as defined in Section 421(b) of the Code), to reimburse the Company
for any taxes required by any government to be withheld or otherwise deducted
and paid by the Company in respect of the issuance or disposition of such
shares. In lieu thereof, the Company shall have the right to withhold the amount
of such taxes from any other sums due or to become due from the Company to the
employee upon such terms and conditions as the Company may prescribe. The
Company may, in its discretion, hold the stock certificate to which such
employee is otherwise entitled upon the exercise of an option as security for
the payment of any such withholding tax liability, until cash sufficient to pay
that liability has been received or accumulated.
10.2 Payment in Shares. An employee may elect to have such tax
withholding obligation satisfied, in whole or in part, by (i)authorizing the
Company to withhold from shares of Common Stock to be issued pursuant to the
exercise of a Nonqualified Option a number of shares with an aggregate fair
market value (as defined in Section 6.3 hereof determined as of the date the
withholding is effected) that would satisfy the withholding amount due with
respect to such exercise, or (ii) transferring to the Company shares of Common
Stock owned by the employee with an aggregate fair market value (as defined in
Section 6.3 hereof determined as of the date the withholding is effected) that
would satisfy the withholding amount due. With respect to any employee who is
subject to Section 16 of the Exchange Act, the following additional restrictions
shall apply:
(a) the election to satisfy tax withholding obligations
relating to an option exercise in the manner permitted by this Section 10.2
shall be made either (1) during the period beginning on the third business day
following the date of release of quarterly or annual summary statements of sales
and earnings of the Company and ending on the twelfth business day following
such date, or (2) at least six (6) months prior to the date of exercise of the
option;
(b) such election shall be irrevocable;
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15
(c) such election shall be subject to the consent or approval
of the Board; and
(d) the Common Stock withheld to satisfy tax withholding, if
granted at the discretion of the Board, must pertain to an option which has been
held by the employee for at least six (6) months from the date of grant of the
option.
10.3 Notice of Disqualifying Disposition. Each holder of an
Incentive Option shall agree to notify the Company in writing immediately after
making a disqualifying disposition (as defined in Section 421(b) of the Code) of
any Common Stock purchased upon exercise of the Incentive Option.
SECTION 11. Amendment or Termination of Plan
11.1 Amendment. The Board may terminate the Plan and may amend
the Plan at any time, and from time to time, subject to the limitation that,
except as provided in Section 8 hereof, no amendment shall be effective unless
approved by the stockholders of the Company in accordance with applicable law
and regulations, at an annual or special meeting held within 12 months before or
after the date of adoption of such amendment, in any instance in which such
amendment would: (i) increase the number of shares of Common Stock that may be
issued under, or as to which Options may be granted pursuant to, the Plan; or
(ii) change in substance the provisions of Section 4 hereof relating to
eligibility to participate in the Plan. In addition, the provisions of Section
4.4 shall not be amended more than once every six months, other than to comport
with changes in the Code, the Employee Retirement Income Security Act, or the
rules thereunder. Without limiting the generality of the foregoing, the Board is
expressly authorized to amend the Plan, at any time and from time to time, to
conform it to the provisions of Rule 16b-3 under the Exchange Act, as that Rule
may be amended from time to time.
Except as provided in Section 8 hereof, the rights and
obligations under any option granted before amendment of the Plan or any
unexercised portion of such option shall not be adversely affected by amendment
of the Plan or such option without the consent of the holder of such option.
11.2 Termination. The Plan shall terminate as of the tenth
anniversary of its effective date. The Board may
<PAGE> 16
16
terminate the Plan at any earlier time for any or no reason. No Option may be
granted after the Plan has been terminated. No Option granted while the Plan is
in effect shall be altered or impaired by termination of the Plan, except upon
the consent of the holder of such Option. The power of the Board to construe and
interpret the Plan and the Options granted prior to the termination of the Plan
shall continue after such termination.
SECTION 12. Nonexclusivity of Plan
Neither the adoption of the Plan by the Board of Directors nor
the submission of the Plan to the stockholders of the Company for approval shall
be construed as creating any limitations on the power of the Board to adopt such
other incentive arrangements as it may deem desirable, including the granting of
stock options otherwise than under the Plan, and such arrangements may be either
applicable generally or only in specific cases.
SECTION 13. Effective Date and Duration of Plan
The Plan shall become effective upon its adoption by the
Board, provided that the stockholders of the Company shall have approved the
Plan within twelve months prior to or following the adoption of the Plan by the
Board. Subject to the foregoing, options may be granted under the Plan at any
time subsequent to its effective date; provided, however, that (a) no such
option shall be exercised or exercisable unless the stockholders of the Company
shall have approved the Plan within twelve months prior to or following the
adoption of the Plan by the Board, and (b) all options issued prior to the date
of such stockholders' approval shall contain a reference to such condition. No
option may be granted under the Plan after the tenth anniversary of the
effective date. The Plan shall terminate (i) when the total amount of the Common
Stock with respect to which options may be granted shall have been issued upon
the exercise of options or (ii) by action of the Board of Directors pursuant to
Section 11 hereof, whichever shall first occur.
SECTION 14. Provisions of General Application
14.1 Severability. The invalidity or unenforceability of any
provision of the Plan shall not affect the validity or enforceability of any
other provision of the Plan, each of which shall remain in full force and
effect.
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14.2 Construction. The headings in the Plan are included for
convenience only and shall not in any way effect the meaning or interpretation
of the Plan. Any term defined in the singular shall include the plural, and vice
versa. The words "herein," "hereof" and "hereunder" refer to the Plan as a whole
and not to any particular part of the Plan. The word "including" as used herein
shall not be construed so as to exclude any other thing not referred to or
described.
14.3 Further Assurances. The Company and any holder of an
option shall from time to time execute and deliver any and all further
instruments, documents and agreements and do such other and further acts and
things as may be required or useful to carry out the intent and purpose of the
Plan and such option and to assure to the Company and such option holder the
benefits contemplated by the Plan; provided, however, that neither the Company
nor any option holder shall in any event be required to take any action
inconsistent with the provisions of the Plan.
14.4 Governing Law. The Plan and each Option shall be governed
by the laws of the State of Delaware.
<PAGE> 1
Exhibit 4.5
THE AMERICAN MATERIALS & TECHNOLOGIES CORPORATION
STOCK PURCHASE OPTION
Option to Purchase 25,000 Shares of Common Stock
Void After March 12, 2008
This Stock Purchase Option is issued to
JAMES L. RUSSELL
(hereinafter called the "Registered Holder," which term shall include any and
all successors and assigns) by The American Materials & Technologies
Corporation, a Delaware Corporation (hereinafter called the "Company").
SECTION 1. The Option
1.01. For value received and subject to the terms and conditions
hereinafter set forth, the Registered Holder is entitled, upon surrender of this
Option at any time on or prior to March 12, 2008 (with the subscription form
annexed hereto duly executed) at the office of the Company at The American
Materials & Technologies Corporation, 5915 Rodeo Road, Los Angeles, California
90016, or such other office or agency of which the Company shall notify the
Registered Holder hereof in writing (the "Company Office"), to purchase from the
Company 25,000 fully paid and non-assessable shares of common stock, $0.01 par
value per share, of the Company ("Common Stock") for $2.00 per share (the
"Option Purchase Price"). This Option may be exercised in full or in part from
time to time. As promptly as practicable after surrender of this Option and
receipt of payment of the Option Purchase Price, the Company shall issue and
deliver to the Registered Holder a certificate or certificates for shares of
Common Stock, in certificates of such denominations and in such names as the
Registered Holder may specify, together with any other stock, securities or
property to which such holder may be entitled to receive pursuant to Section
1.05(1)(c) or Section 1.05(2) hereof. In the case of the purchase of less than
all the shares purchasable under this Option, the Company shall cancel this
Option upon the surrender hereof and shall executed and deliver a new Option of
like tenor for the balance of the shares purchasable hereunder. This Option
shall expire at the close of business on March 12, 2008 and shall be void
thereafter.
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<PAGE> 2
1.02. During the period within which the rights represented by this
Option may be exercised, the Company shall at all times have authorized and
reserved for the purpose of issue upon exercise of the rights evidenced hereby,
a sufficient number of shares of its Common Stock to provide for the exercise of
such rights. Upon surrender for exercise, this Option shall be canceled and
shall not be reissued; provided, however, that upon the partial exercise hereof
a substitute Option representing the rights to subscribe for and purchase any
such unexercised portion hereof shall be issued.
1.03. This Option may be subdivided into one or more Stock Purchase
Options entitling the Registered Holder to purchase shares of Common Stock in
multiples of one or more whole shares, upon surrender of this Option by the
Registered Holder for such purpose at the Company Office.
1.04. The Company shall maintain a register containing the names and
addresses of the holders of all Options. The Registered Holder of this Option
shall be the person in whose name such Option is originally issued and
registered, unless a subsequent holder shall have presented to the Company this
Option, duly assigned to him in compliance with law and Section 5 hereof,
together with a written notice of his acquisition of this Option, designating in
writing the address of such holder, in which case such subsequent holder of this
Option shall become a subsequent Registered Holder. Any Registered Holder of
this Option may change his address as shown on such register by written notice
to the Company requesting such change. Any written notice required or permitted
to be given to the Registered Holder of this Option shall be mailed, by
registered or certified mail, to such Registered Holder at his address as shown
on such register.
1.05. The rights of the Registered Holder shall be subject to the
following terms and conditions:
(1) Adjustment of Option Purchase Price. The Option Purchase Price
hereinbefore set forth shall be subject to adjustment from time to time as set
forth below. Upon each adjustment of the Option Purchase Price pursuant to this
Section 1.05(1), the Registered Holder shall (until another such adjustment )
thereafter be entitled to purchase at the adjusted Option Purchase Price the
number of shares obtained by dividing $50,000 (the product of the number of
shares called for on the face of this Option and the initial Option Purchase
Price) by the adjusted Option Purchase Price:
(a) In case the Company shall declare a dividend or make any other
distribution upon any stock of the Company payable in Common Stock any Common
Stock issuable in payment of such dividend or distribution shall be deemed to
have been issued or sold without consideration, and the Option Purchase Price
shall be adjusted to a price (calculated to the nearest cent) determined by
dividing (i) an amount equal to the number of shares of Common Stock outstanding
immediately prior to such deemed issue or sale multiplied by the then existing
Option Purchase Price, by (ii) the total number of shares of Common Stock deemed
to be outstanding pursuant to the provisions of this Section 1.05(1)(a)
immediately after such deemed issue or sale. In case the Company shall fix a
record date for determining the holders of its Common Stock entitled to receive
a dividend or other distribution payable in Common Stock, then such record date
shall be deemed to be the date of the issue or sale of the shares of Common
Stock so deemed to have been issued or sold thereby.
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<PAGE> 3
(b) In case the Company shall declare a dividend payable upon its
Common Stock otherwise than out of earnings or earned surplus (except in Common
Stock), then thereafter the Registered Holder, upon exercise of all or part of
this Option, shall be entitled to receive the number of shares of Common Stock
being purchased upon such exercise and, in addition and without further payment,
the cash, stock or other securities and other property which the Registered
Holder hereof would have received by way of such dividend (otherwise than out of
such earnings or surplus or in Common Stock) as if continuously since the date
hereof such Registered Holder had been the record holder of the number of shares
of Common Stock then being purchased and had retained all dividends in stock or
securities (other than Common Stock) payable in respect of such Common Stock or
in respect of any stock or securities paid as dividends and originating directly
or indirectly from such Common Stock. For the purposes of the foregoing, a
dividend other than in cash shall be considered payable out of earnings or
earned surplus only to the extent that such earnings or surplus are charged an
amount equal to the fair value of such dividend as reasonably determined by the
Board of Directors of the Company.
(c) In case the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the Option Purchase Price in
effect immediately prior to such subdivision shall be proportionately reduced,
and conversely, in case the outstanding shares of Common Stock of the Company
shall be combined into a smaller number of shares, the Option Purchase Price in
effect immediately prior to such combination shall be proportionately increased.
(d) The number of shares of Common Stock outstanding at any given time
shall not include shares owned or held by or for the account of the Company.
(2) Notice of Adjustment of Option Purchase Price. Upon any adjustment
or other change relating to the Option Purchase Price or the securities
purchasable upon the exercise of this Option, then, and in each such case, the
Company shall give written notice thereof, by first class mail, postage prepaid,
addressed to the Registered Holder at the address of such Registered Holder as
shown on the books of the Company, which notice shall state the Option Purchase
Price resulting from such adjustment and the increase or decrease in the number
of shares of Common Stock purchasable at such price upon the exercise of this
Option setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
(3) Reorganization, etc. If the Company is a party to reorganization or
merger with one or more other corporations, whether or not the Company is the
surviving corporation, or if the Company consolidates with or into one or more
other corporations, or if the Company is liquidated or sells or otherwise
disposes of substantially all of its assets to another corporation (each
hereinafter referred to as a "Transaction"), in any such event while
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<PAGE> 4
this Option remains outstanding, then: (a) subject to the provisions of clause
(b) below, after the effective date of such Transaction, the unexercised portion
of this Option shall remain outstanding, and lawful and adequate provision shall
be made whereby the Registered Holder shall thereafter have the right to
purchase and receive, upon the basis and upon the terms and conditions herein
specified and in lieu of the shares of Common Stock of the Company immediately
theretofore purchasable and receivable upon exercise of this Option, such shares
of stock, securities or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal to the
number of shares of Common Stock immediately theretofore purchasable and
receivable upon the exercise of this Option had such Transaction not taken
place, and in any such case appropriate provision shall be made with respect to
the rights and interests of the Registered Holder to the end that the provisions
hereof (including, without limitation, provisions for adjustments to the Option
Purchase Price and of the number of shares purchasable upon the exercise of this
Option) shall thereafter be applicable, as nearly as may be, in relation to any
shares of stock, securities or assets thereafter deliverable upon the exercise
hereof; or (b) this Option may be canceled by the Board of Directors as of the
effective date of such Transaction, provided that (i) notice of such cancelation
shall be given to the Registered Holder of this Option pursuant to Section
1.05(4) hereof and (ii) the Registered Holder of this Option shall have the
right to exercise this Option to the extent it has not theretofore been
exercised.
(4) Notice. In case: (1) the Company shall pay any dividend or make any
distribution (other than regular cash dividends from earnings or earned surplus
paid at an established rate) to the holders of its Common Stock; (2) there shall
be any capital reorganization or reclassification of the capital stock of the
Company or any consolidation or merger of the Company with, or sale of all or
substantially all of its assets to, another corporation; or (3) there shall be a
voluntary or involuntary dissolution, liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give written notice,
by first class mail, postage prepaid, addressed to the Registered Holder at the
address of such Registered Holder as shown on the books of the Company of the
date on which (a) the books of the Company shall close or a record date shall be
fixed for determining the shareholders entitled to such dividend or
distribution, or (b) such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up shall take place, as the
case may be. Such notice shall also provide reasonable details of the proposed
transaction and specify the date as of which the holders of Common Stock of
record shall participate in such dividend or distribution, or shall be entitled
to exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be. Such notice shall further specify
whether this Option will be canceled by the Board of Directors in accordance
with Section 1.05(2) hereof. Such written notice shall be given at least 10 days
prior to the action in question.
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(5) Voting Rights. This Option shall not entitle the Registered Holder
to any voting rights or any other rights as a stockholder of the Company but
upon presentation of this Option with the subscription form annexed duly
executed and the tender of payment of the Option Purchase Price at the Company
Office pursuant to the provisions of this Option the Registered Holder shall
forthwith be deemed a stockholder of the Company in respect of the shares of
Common Stock so subscribed and paid for.
SECTION 2. Covenant of the Company. All shares of Common Stock which may be
issued upon the exercise of the rights represented by this Option shall, when
issued upon receipt of consideration therefor in accordance with the terms of
this Option, be duly authorized, validly issued, fully paid and non-assessable
and free from all taxes, liens and charges with respect to the issue thereof.
SECTION 3. Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon exercise of this Option. If, upon
exercise of this Option as an entirety, the Registered Holder would, except for
the provisions of this Section 3, be entitled to receive a fractional share of
Common Stock, then an amount equal to such fractional share multiplied by the
fair market value (as reasonably determined by the Board of Directors of the
Company) of shares of Common Stock shall be paid by the Company in cash to such
Registered Holder.
SECTION 4. Substitution. In case this Option shall be mutilated, lost, stolen or
destroyed, the Company will issue a new Option of like tenor and denomination
and deliver the same (a) in exchange and substitution for and upon surrender and
cancelation of any mutilated Option, or (b) in lieu of any Option lost, stolen
or destroyed, upon receipt of evidence satisfactory to the Company of the loss,
theft, or destruction or such Option (including a reasonably detailed affidavit
with respect to the circumstances of any loss, theft or destruction), and of
indemnity (or, in the case of the initial holder of any institutional holder, an
indemnity agreement) satisfactory to the Company.
SECTION 5. Transfer Restrictions. Neither this Option nor any security issuable
hereunder shall be sold, transferred, pledged or hypothecated (a "Disposition")
unless the proposed Disposition is the subject of a currently effective
registration statement under the Securities Act of 1933, as amended, or unless
the Company has received an opinion of counsel, in form and substance
satisfactory to the Company, to the effect that such registration is not
required in connection with such Disposition.
SECTION 6. Governing Law. This Option shall be deemed a contract made under the
laws of the State of Delaware and its provisions, and the rights and obligations
of the parties hereunder, shall be construed and enforced in accordance with and
governed by the substantive laws of the State of Delaware without regard to its
principles of conflicts of laws.
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SECTION 7. Miscellaneous. This Option and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought.
IN WITNESS WHEREOF, the Company has caused this Stock Purchase Option
to be signed by its President thereunto duly authorized.
THE AMERICAN MATERIALS & TECHNOLOGIES
By: _______________________________
Paul W. Pendorf
President
Acknowledgment
The Undersigned Holder acknowledges receipt of this Stock Option
Agreement, including Schedule A hereto, and agrees to be bound by all
obligations of the Holder as set forth in such Stock Option Agreement.
HOLDER
__________________________________
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SUBSCRIPTION FORM
The undersigned, the registered holder of the within Stock Purchase
Option, hereby irrevocably elects to exercise the purchase right represented by
such Option for, and to purchase thereunder, _________ shares of Common Stock of
The American Materials & Technologies Corporation and herewith makes payment of
$______ therefor and requests that the certificates representing such shares be
issued in the name of and delivered to
and if such shares shall not include all of the shares issuable under this
Option, that a new Option of like tenor and date be delivered to the undersigned
for the shares not issued.
Date:_______
Signature: ______________________
Name: ___________________________
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FORM OF ASSIGNMENT
For value received the undersigned hereby sells, assigns and transfers
unto _______________________, whose address is ________________________________,
the within Option with respect to ______ shares of common stock, $0.01 par value
per share, of The American Materials & Technologies Corporation purchasable
thereby, and does hereby irrevocably constitute and appoint ____________________
attorney to transfer the within Option on the books of The American Materials &
Technologies Corporation with full power of substitution in the premises.
Dated:
___________________________
Name:
In the presence of:
_____________________________
Signature
Name:
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<PAGE> 1
EXHIBIT 4.6(a)
The American Materials and Technologies Corporation
STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into as of the 9th day of May, 1995,
by and between The American Materials and Technologies Corporation, a California
corporation (the "Company") with its principal office at 5632 Soledad Mountain
Road, La Jolla, California 92037, and Paul W. Pendorf ("Employee").
Recitals
The Board of Directors ("the Board") regards Employee as a key
employee and has determined that it would be in the best interests of the
Company and its stockholders to grant the option provided for herein to Employee
as an inducement to become employed by, or to remain in the service of, the
Company and as an incentive for productive efforts during such service.
NOW, THEREFORE, the parties agree:
1. Grant of Option. The Company hereby grants to Employee the
right and option to purchase under the terms of this Agreement all or any part
of an aggregate of 75,000 shares of the Company's common stock ("Stock"). These
options are intended to be "incentive stock options" within the meaning of
Section 422A of the Internal Revenue Code to the maximum extent permitted by the
Code. Employee is advised to consult his or her personal advisor concerning the
federal and state income tax consequences of this option.
2. Option Price. The option price for the shares of Stock
covered by this Agreement shall be $1.00 per share ("Option Price").
3. Exercise of Option. Employee may exercise this option with
respect to all or any part of the shares of Stock then subject to purchase under
this option by (i) giving the Company written notice of such exercise specifying
the number of shares of Stock as to which such option is so exercised, and (ii)
delivering to the Company (a) cash equal to the Option Price for such shares,
(b) shares of Stock owned by the Employee in a form acceptable to the Committee,
or (c) a combination of such Stock or cash; except that the Committee in its
sole discretion may require that payment be made solely by delivering cash equal
to the option price of the shares as to which the option is exercised.
<PAGE> 2
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4. Conditions of Exercise. The Employee's right to exercise
this option shall be subject to and limited by the following conditions:
(1) This option shall become exercisable as
follows: 25,000 shares on the first anniversary of the Company's initial public
offering (if and only if that occurs), 25,000 shares on the second anniversary
of the Company's initial public offering, 25,000 shares on the third anniversary
of the Company's initial public offering.
(2) The options shall not be exercisable if
and to the extent the Committee determines that such exercise would be in
violation of applicable state or federal securities laws or the rules and
regulations of any securities exchange on which the stock is traded. If the
Committee makes such a determination, it shall use its best efforts to obtain
compliance with such laws, rules or regulations. In making any determination
hereunder the Committee may rely on an opinion of counsel for the Company.
If deemed appropriate by the Company's counsel, the share
certificates issued hereunder will bear a legend restricting transfer in
conformity with the Securities Act of 1933.
(3) In the event the Company determines that
it is required to withhold or collect, as a result of any exercise of this
option or as a result of the disposition of the shares of Stock acquired upon
such exercise, any state or federal income or other tax, Employee agrees to make
arrangements satisfactory to the Company to meet such withholding or collection
requirements. Withholding may be paid by delivery of shares of Stock owned by
the employee in form acceptable to the Committee.
(4) As soon as practicable after receipt of payment and
notice of exercise, without transfer or issue tax or other incidental expense to
Employee (except incident to a transfer permitted by Section 6), the Company
shall deliver to Employee at Company's principal office, or such other place as
may be mutually acceptable to the Company and Employee, a certificate or
certificates for the shares of Stock with respect to which exercise is made
hereunder. Such shares, which shall be fully paid and non-assessable, shall be
issued in the name of Employee, or, in the event the options granted hereby are
properly exercised by some person other than Employee, such person. With the
consent of the Committee such shares may be issued jointly in the name of
Employee and one or more other persons specified by Employee.
5. Term of Option. This Agreement and all rights of Employee
hereunder shall terminate at 5:00 p.m. Pacific Time on the tenth anniversary of
issuance. Further, the option granted hereunder may be exercised only while
Employee is in the
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employ of the Company, to the extent the option was exercisable at the date of
termination, as follows:
(1) within six months following termination
of employment on account of death or disability or by the
Company without cause;
(2) within three months following termination of
employment by the Company or by employee upon retirement after age 60; or
(3) within 30 days following termination by
resignation (other than retirement after age 60) or by the Company for cause.
6. Nontransferability. The option granted hereby shall, during
Employee's lifetime, be exercisable only by him or her, and neither such option
nor any right thereunder shall be transferable by him or her by operation of
law, or otherwise, except by will or the laws of descent and distribution.
7. Adjustment for stock splits, stock dividends and other
unusual adjustment events. In the event of stock splits, stock dividends and
other unusual adjustment events the Compensation Committee will make the
appropriate adjustments in the option terms so as to leave the Employee's
potential financial position unchanged.
8. Miscellaneous.
(1) Stockholder Rights. Employee shall not have any
of the rights of a stockholder with respect to the shares of Stock subject to
the option granted hereby, except to the extent the certificates for such shares
shall have been issued upon the exercise of such option as provided for herein.
(2) Employment. Nothing in this Agreement shall confer
upon Employee any right to continue in the employ of the Company or interfere in
any way with the right of the Company to terminate his or her employment at any
time with or without cause.
(3) Notices. Any notices or communications by either
party to the other hereunder shall be given by first class mail, return receipt
requested, addressed, if to the Company, at its principal office, and if to
Employee, at:
William A. Timmerman
5632 Soledad Mountain Road
La Jolla, CA 92037
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4
Notices or communications shall be deemed given on the date of mailing. Either
party may change its address for the receipt of notices or communications
hereunder, provided notice of such change is given in advance to the other party
in the manner provided in this paragraph.
(4) Interpretation and Enforcement. The
interpretation, constructions, performance and enforcement of this Agreement and
the Plan shall be within the sole discretion of the Board, and its determination
shall be conclusive and binding upon all interested parties.
(5) Executors, Successors and Assigns. Subject to
terms and provisions of this Agreement, limiting the right of assignment, this
Agreement shall be binding upon and inure to the benefit of the parties, their
heirs, executors, successors and assigns.
(6) Governing Law. This Agreement, and all rights and
obligations hereunder, shall be governed by the laws of the State of California.
IN WITNESS HEREOF, this Agreement has been executed the year
and date first herein above written.
/s/ Paul Pendorf
----------------------------
Paul Pendorf
The American Materials and
Technologies Corporation
By: /s/ Steven Georgiev
-------------------------
Chairman
<PAGE> 1
Exhibit 4.6(b)
AMENDMENT, dated as of October 8, 1998, to
the Stock Option Agreement (the "Stock Option
Agreement") dated as of May 9, 1995, by and between
The American Materials & Technologies Corporation
(f/k/a The American Materials and Technologies
Corporation), a Delaware corporation (the "Company")
with its principal office at 5632 Soledad Mountain
Road, La Jolla, California 92037, and Paul W.
Pendorf ("Employee").
WHEREAS, The Company has entered into an Agreement and Plan of
Merger dated as of July 8, 1998, as amended (the "Merger Agreement"), with Cytec
Industries Inc. and CAM Acquisition Corp.;
WHEREAS, pursuant to the Merger Agreement, the Company is
required to take certain actions to amend the terms of outstanding options and
warrants to purchase securities of the Company as set forth in Section 2.2(a) of
the Merger Agreement;
WHEREAS, Employee is entering into an employment agreement in
connection with the transactions contemplated by the Merger Agreement, and in
connection therewith, the Company and Employee desire to amend the terms of the
Stock Option Agreement as set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Amendment. Section 7 of the Stock Option
Agreement is hereby amended by adding to the end thereof the following:
"If the Company is a party to a reorganization or merger with one or
more other corporations, whether or not the Company is the surviving
corporation, or if the Company consolidates with or into one or more
other corporations, or if the Company is liquidated or sells or
disposes of substantially all of its assets to another corporation
(each hereinafter referred to as a "Transaction"), in any such event
while this option remains outstanding, then (a) subject to the
provisions of Section 4(b) above, after the effective date of such
Transaction, the unexercised portion of this option shall remain
outstanding, and lawful and adequate
<PAGE> 2
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provision shall be made whereby Employee shall thereafter have the
right to purchase and receive, upon the basis and upon the terms and
conditions herein specified and in lieu of the shares of Stock
immediately theretofore purchasable and receivable upon exercise of
this option, such shares of stock, securities or assets as may be
issued or payable with respect to or in exchange for a number of
outstanding shares of such Stock equal to the number of shares of Stock
immediately theretofore purchasable and receivable upon the exercise of
this option had such Transaction not taken place, and in any such case
appropriate provision shall be made with respect to the rights and
interests of Employee to the end that the provisions hereof shall
thereafter be applicable, as nearly as may be, in relation to any
shares of stock, securities or assets thereafter deliverable upon the
exercise hereof.".
SECTION 2. Acknowledgment and Agreement. Employee hereby
acknowledges and agrees that in connection with the transactions contemplated by
the Merger Agreement, the option granted pursuant to the Stock Option Agreement
shall be deemed to have been amended as set forth in Section 2.2(a) of the
Merger Agreement, and any action taken by the Board of Directors of the Company
pursuant to such Section 2.2(a) shall satisfy the requirements of Section 7 of
the Stock Option Agreement, as amended hereby.
SECTION 3. Governing Law. This Amendment shall be governed
by the laws of the State of California.
SECTION 4. Full Force and Effect. Except as specifically
amended hereby, the Stock Option Agreement shall continue in full force and
effect in accordance with the provisions thereof. As used therein, the term
"hereto" and words of similar import shall, unless the context otherwise
requires, refer to the Stock Option Agreement as amended hereby. Any reference
in any document to the Stock Option Agreement shall be deemed to be a reference
to the Stock Option Agreement as amended hereby.
THE AMERICAN MATERIALS &
TECHNOLOGIES CORPORATION
by: _________________________
Name:
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Title:
____________________________
Paul W. Pendorf
<PAGE> 1
Exhibit 5.1
[Letterhead of]
CRAVATH, SWAINE & MOORE
October 9, 1998
Cytec Industries Inc.
Post-Effective Amendment on Form S-8
Dear Sirs:
We have acted as counsel for Cytec Industries Inc., a Delaware
corporation (the "Company"), in connection with the filing with the Securities
and Exchange Commission, under the Securities Act of 1933, as amended, of the
Post-Effective Amendment No.1 on Form S-8 to the Company's Registration
Statement on Form S-4, Registration No.333-62287. The Post-Effective Amendment
No.1 relates to 275,000 shares of Common Stock, par value $.01 per share, (the
"Common Stock") of Cytec, issuable upon the exercise of stock options granted
under The American Materials & Technologies Corporation 1996 Incentive and
Nonqualified Stock Option Plan and The American Materials & Technologies
Corporation 1997 Stock Option Plan, as amended on March 13, 1998 (collectively,
the "Plans"), and issuable pursuant to the agreement between The American
Materials & Technologies Corporation and Paul W. Pendorf, dated May 9, 1995, as
amended, and pursuant to the agreement between The American Materials &
Technologies Corporation and James L. Russell, dated March 13, 1998,
(collectively, the "Agreements"), which have been assumed by the Company in
connection with the merger of CAM Acquisition Corp., a wholly owned subsidiary
of the Company, with and into The American Materials & Technologies Corporation
pursuant to an
<PAGE> 2
Agreement and Plan of Merger, dated as of July 8, 1998 (as amended, the "Merger
Agreement").
We have examined such documents, corporate records and other
instruments as we have deemed necessary or appropriate for the purpose of this
opinion. In such examination, we have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals and the
conformity to the originals of all documents submitted to us as copies.
Based on such examination, we are of the opinion that the
Company has the corporate power and authority under the General Corporation Law
of the State of Delaware and under its Certificate of Incorporation and By-Laws
to issue the Common Stock, that the Common Stock will be validly authorized
shares of Common Stock, and when issued in accordance with the terms of the
options under the Plans and the Agreements, as assumed by the Company pursuant
to the Merger Agreement, and paid for, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ CRAVATH, SWAINE & MOORE
Cravath, Swaine & Moore
Cytec Industries Inc.
Five Garret Mountain Plaza
West Paterson, NJ 07424
<PAGE> 1
Exhibit 23.1
Accountants' Consent
The Board of Directors
Cytec Industries Inc.:
We consent to the use of our reports relating to the consolidated financial
statements and schedules of Cytec Industries Inc. and subsidiaries incorporated
herein by reference.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Short Hills, New Jersey
October 8, 1998
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[Letterhead of]
ARTHUR ANDERSEN LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Post-Effective Amendment No. 1 on Form S-8 to Cytec Industries
Inc. Registration Statement on Form S-4 File No. 333-62287 of our report dated
February 19, 1997, included in Current Report on Form 8-K File No. 001-12372. It
should be noted that we have not audited any financial statements of Fiberite
Holdings, Inc. subsequent to December 31, 1996, or performed any audit
procedures subsequent to the date of our report.
/s/ ARTHUR ANDERSEN LLP
Phoenix, Arizona,
October 8, 1998
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Exhibit 24.2
SECRETARY'S
CERTIFICATE
I, E.F., Jackman, Secretary of Cytec Industries Inc., a Delaware
corporation (the "Corporation"), hereby certify that set forth below is a
complete and accurate copy of a certain resolution adopted by the Board of
Directors of the Corporation on June 24, 1998, and that such resolution is in
full force and effect as of the date of this certificate.
FURTHER RESOLVED: That the Board of Directors hereby authorizes each of
D. Lilley, J.P. Cronin and E.F. Jackman to sign the registration statement or
registration statements registering such shares and any shares issuable upon the
exercise of AMT stock options, for sale under the Securities Act of 1933, and
any amendment or amendments to such registration statements, in the capacity of
Chief Executive Officer and Chief Financial and Accounting Officer of the
Corporation, pursuant to powers of attorney in favor of such individuals signed
by the Chief Executive Officer and the Chief Financial and Accounting Officer,
respectively; and
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
the corporation this 9th day of October 1998.
/s/ E.F. Jackman
--------------------------------
E.F. Jackman
Secretary
