As filed with the Securities and Exchange Commission on October 7, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ADVANCED ENERGY INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-0846841
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
1625 SHARP POINT DRIVE, FORT COLLINS, COLORADO 80525
(Address of Principal Executive Offices) (Zip Code)
RF POWER PRODUCTS, INC. 1992 STOCK OPTION PLAN
RF POWER PRODUCTS, INC. 1993 NON-EMPLOYEE DIRECTORS STOCK OPTION
PLAN
RF POWER PRODUCTS, INC. 1995 STOCK OPTION PLAN
(Full title of the plans)
RICHARD P. BECK
ADVANCED ENERGY INDUSTRIES, INC.
1625 SHARP POINT DRIVE, FORT COLLINS, COLORADO 80525
(Name and address of agent for service)
(970) 221-4670
(Telephone number, including area code, of agent for service)
with copies to:
CARISSA C. W. COZE
THELEN REID & PRIEST LLP
TWO EMBARCADERO CENTER, 21ST FLOOR, SAN FRANCISCO, CALIFORNIA
94111-3995
CALCULATION OF REGISTRATION FEE
Title of securities Amount to Proposed Proposed Amount of
to be be maximum maximum registration
registered registered offering aggregate fee
(1) price offering
per share (2) price (2)
- -----------------------------------------------------------------------------
Common Stock, $0.001 14,027 shares $ 0.67 $1,561,740.87 $460.75
par value 6,582 shares 3.42
88,627 shares 8.75
494 shares 8.93
494 shares 10.26
3,292 shares 11.03
8,229 shares 15.01
28,797 shares 17.29
4,937 shares 17.65
(1) Pursuant to the Agreement and Plan of Merger dated as of June
1, 1998 (the "Merger Agreement"), by and among the registrant,
Warpspeed, Inc. and RF Power Products, Inc. ("RF Power"), the
registrant will assume all of the outstanding options to
purchase common stock of RF Power granted under the RF Power
Products, Inc. 1992 Stock Option Plan, RF Power Products, Inc.
1993 Non-Employee Directors Stock Option Plan and RF Power
Products, Inc. 1995 Stock Option Plan. Such options will be
converted into options to purchase Common Stock of the
registrant, with appropriate adjustments to the number of
shares and exercise price of each assumed option to reflect
the ratio at which RF Power common stock will be converted
into Common Stock of the registrant under the Merger
Agreement.
(2) Pursuant to Rule 457(h) under the Securities Act of 1933, the
aggregate offering price and the registration fee have been
computed based on the fixed prices at which the options to
purchase Common Stock of the registrant will be exercisable.
<PAGE>
PART 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This Registration Statement on Form S-8 is being filed to
register the Common Stock, $0.001 par value ("Common Stock"), of
Advanced Energy Industries, Inc., a Delaware corporation (the
"Company"), issuable pursuant to the Company's assumption of the
RF Power Products, Inc. 1992 Stock Option Plan, RF Power
Products, Inc. 1993 Non-Employee Directors Stock Option Plan and
RF Power Products, Inc. 1995 Stock Option Plan (collectively, the
"Plans"), and certain options granted under the Plans, which
Plans and options were assumed by the Company in connection with
its acquisition of RF Power Products, Inc. The documents
containing the information specified in Part I of Form S-8 will
be or have been sent or given to participants in the Plans, as
specified by Rule 428(b)(1) under the Securities Act of 1933, as
amended (the "Securities Act"). Such documents are not submitted
to the Securities and Exchange Commission (the "Commission")
herewith in accordance with the Note to Part I of Form S-8, but
(together with the documents incorporated by reference herein
pursuant to Item 3 of Part II, below) shall constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act.
Item 1. PLAN INFORMATION
See above.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION
See above.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the
Company are incorporated by reference in this Registration
Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997;
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the
Annual Report referred to in (a) above; and
(c) The description of the Common Stock contained in the
Company's registration statement on Form 8-A filed under the
Exchange Act on October 12, 1995, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act shall be
deemed to be incorporated by reference herein and to be a part
hereof from the date of filing (except that no document shall be
deemed to be incorporated by reference herein if such document is
filed after the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or
which deregisters securities then remaining unsold).
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware General Corporation Law
("DGCL"), the Company's Certificate of Incorporation, as amended
(the "AE Certificate"), provides that no director shall be
personally liable to the Company or any stockholder for monetary
damages for breach of fiduciary duty as a director, except for
liability: (i) for any breach of the duty of loyalty to the
Company or its stockholders; (ii) for acts or omissions not in
good faith or involving intentional misconduct or a knowing
violation of the law; (iii) arising from payment of dividends or
approval of a stock purchase in violation of Section 174 of the
DGCL; or (iv) for any action from which the director derived an
improper personal benefit. While the AE Certificate provides
protection from awards for monetary damages for breaches of the
duty of care, it does not eliminate the director's duty of care.
Accordingly, the AE Certificate will not affect the availability
of equitable remedies, such as an injunction, based on a
director's breach of the duty of care. The provisions of the AE
Certificate described above apply to officers of the Company only
if they are directors of the Company and are acting in their
capacity as directors, and does not apply to officers of the
Company who are not directors.
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In addition, the Company's Bylaws provide that the Company
shall indemnify its Executive Officers (as defined in Rule 3b-7
promulgated under the Exchange Act) and directors, and any
employee who serves as an Executive Officer or director of any
corporation at the Company's request, to the fullest extent
permitted under and in accordance with the DGCL; provided,
however, that the Company may modify the extent of such
indemnification by individual contracts with its Executive
Officers and directors; and, provided further, that the Company
shall not be required to indemnify any Executive Officer or
director in connection with any proceeding (or part thereof)
initiated by such person unless: (i) such indemnification is
expressly required to be made by law; (ii) the proceeding was
authorized by the directors of the Company; (iii) such
indemnification is provided by the Company, in its sole
discretion, pursuant to the powers vested in the Company under
the DGCL; or (iv) such indemnification is required to be made
under Article XI, Section 43, Subsection (d) of the Company's
Bylaws. Under the DGCL, directors and officers as well as
employees and individuals may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation as a derivative action) if they acted in good faith
and in a manner they reasonably believed to be in or not opposed
to the best interests of the corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe
their conduct was unlawful.
The Company maintains a policy of directors' and officers'
liability insurance that insures the Company's directors and
officers against the costs of defense, settlement or payment of a
judgment under certain circumstances.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
Item 8. EXHIBITS
Number Exhibit
4 INSTRUMENTS DEFINING THE RIGHTS OF SECURITY
HOLDERS, INCLUDING INDENTURES
4.1 Company's Restated Certificate of Incorporation *
4.2 Company's Bylaws *
4.3 RF Power Products, Inc. 1992 Stock Option Plan
4.4 RF Power Products, Inc. 1993 Non-Employee
Directors Stock Option Plan
4.5 RF Power Products, Inc. 1995 Stock Option Plan
5 OPINION OF COUNSEL
23 CONSENTS OF EXPERTS AND COUNSEL
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
24 POWERS OF ATTORNEY (included on the Signature
Pages to this Registration Statement)
* Incorporated by reference to the Company's Registration Statement on Form
S-1 (File No. 33-97188) filed September 20, 1995, as amended.
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<PAGE>
Item 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease
in the volume of securities offered (if the total
dollar value of securities offered would not exceed
that which was registered) and any deviation from the
low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration
statement;
provided, however that paragraphs (a)(1)(i) and (a)(1)(ii) above
do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
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event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-8 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Collins, State of Colorado, on
October 6, 1998.
Advanced Energy Industries, Inc.,
a Delaware corporation
By: /s/ Richard P. Beck
Name: Richard P. Beck
Title: Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints
Douglas S. Schatz, Hollis Caswell and Richard P. Beck, and each
of them severally, acting alone and without the other, his true
and lawful attorney-in-fact with authority to execute in the name
of each such person, and to file with the Securities and Exchange
Commission, together with any exhibits thereto and other
documents therewith, any and all amendments (including without
limitation post-effective amendments) to this registration
statement, and to sign any registration statement for the same
offering covered by this registration statement that is to be
effective upon filing pursuant to Rule 462(b) under the
Securities Act, necessary or advisable to enable the Registrant
to comply with the Securities Act and any rules, regulations and
requirements of the Securities and Exchange Commission in respect
thereof, which amendments may make such changes in this
registration statement as the aforesaid attorney-in-fact deems
appropriate.
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 date indicated.
/s/ Douglas S. Schatz
Date: October 6, 1998 Douglas S. Schatz
President and Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Richard P. Beck
Date: October 6, 1998 Richard P. Beck
Senior Vice President and
Chief Financial Officer and Director
(Principal Financial and Accounting Officer)
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<PAGE>
Date: G. Brent Backman
Director
/s/ Hollis Caswell
Date: October 6, 1998 Hollis Caswell
Director
Date: Elwood Spedden
Director
/s/ Arthur A. Noeth
Date: October 6, 1998 Arthur A. Noeth
Director
II-6
<PAGE>
EXHIBIT INDEX
Number Exhibit
4 INSTRUMENTS DEFINING THE RIGHTS OF SECURITY
HOLDERS, INCLUDING INDENTURES
4.1 Company's Restated Certificate of Incorporation *
4.2 Company's Bylaws *
4.3 RF Power Products, Inc. 1992 Stock Option Plan
4.4 RF Power Products, Inc. 1993 Non-Employee
Directors Stock Option Plan
4.5 RF Power Products, Inc. 1995 Stock Option Plan
5 OPINION OF COUNSEL
23 CONSENTS OF EXPERTS AND COUNSEL
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
24 POWERS OF ATTORNEY (included on the Signature
Pages to this Registration Statement)
* Incorporated by reference to the Company's Registration Statement on Form
S-1 (File No. 33-97188) filed September 20, 1995, as amended.
As Amended 4/25/97
RF POWER PRODUCTS, INC.
1992 STOCK OPTION PLAN
1. Purpose. RF Power Products, Inc. (the "Company")
hereby adopts the RF Power Products, Inc. 1992 Stock Option Plan
(the "Plan"). The Plan is intended to recognize the
contributions made to the Company by employees (including
employees who are members of the Board of Directors), consultants
and advisors of the Company or any Affiliate, to provide such
persons with additional incentive to devote themselves to the
future success of the Company or an Affiliate, and to improve the
ability of the Company or an Affiliate to attract, retain, and
motivate individuals upon whom the Company's sustained growth and
financial success depend, by providing such persons with an
opportunity to acquire or increase their proprietary interest in
the Company through receipt of rights to acquire the Company's
Common Stock, par value $.01 per share (the "Common Stock").
2. Definitions. Unless the context clearly indicates
otherwise, the following terms shall have the following meanings:
(a) "Affiliate" means a corporation which is a
parent corporation or a subsidiary corporation with respect to
the Company within the meaning of section 424(e) or (f) of the
Code.
(b) "Board of Directors" means the Board of
Directors of the Company.
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(c) "Change of Control" shall have the meaning as
set forth in Section 9 of the Plan.
(d) "Code" means the Internal Revenue Code of
1986, as amended.
(e) "Committee" means the members of the Board of
Directors who are not eligible to receive options under the Plan
or a committee designated by the Board of Directors as described
in Section 3 of the Plan.
(f) "Company" means RF Power Products, Inc., a
New Jersey corporation.
(g) "Disability" shall have the meaning set forth
in section 22(e)(3) of the Code.
(h) "Fair Market Value" shall have the meaning
set forth in Section 8(b) of the Plan.
(i) "ISO" means an Option granted under the Plan
which is intended to qualify as an "incentive stock option"
within the meaning of section 422(b) of the Code.
(j) "Non-qualified Stock Option" means an option
granted under the Plan which is not intended to qualify, or
otherwise does not qualify, as an "incentive stock option" within
the meaning of section 422(b) of the Code.
(k) "Option" means either an ISO or a
Non-qualified Stock Option granted under the Plan.
(l) "Optionee" means a person to whom an option
has been granted under the Plan, which Option has not been
exercised and has not expired or terminated.
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(m) "Option Document" means the document
described in Section 8 which sets forth the terms and conditions
of each grant of Options.
(n) "Option Price" means the price at which
Shares may be purchased upon exercise of an Option, as calculated
pursuant to subsection 8(b).
(o) "Shares" means the shares of Common Stock of
the Company which are the subject of Options.
3. Administration of the Plan. The Plan shall be
administered by a committee composed of two or more of the
members of the Company's Board of Directors who are not eligible
to receive Options under the Plan; however, the Board may
designate two committees to operate and administer the Plan in
its stead, one of such committees composed of two or more of its
directors who are not eligible to receive Options under the Plan
to operate and administer the Plan with respect to each person
who is a "Principal Officer" (as defined below), and the other
such committee composed of two or more directors (which may
include directors who are also employees, consultants or advisors
of the Company) to operate and administer the Plan with respect
to each person other than a "Principal Officer." Any of such
committees designated by the Board of Directors is referred to as
the "Committee." As used herein, the term "Principal Officer"
means a person who is an "officer" of the Company, within the
meaning of Rule 16a-l(f) promulgated under the Securities
Exchange Act of 1934, as amended, or any successor regulation.
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<PAGE>
(a) Meetings. The Committee shall hold meetings
at such times and places as it may determine. Acts approved at a
meeting by a majority of the members of the Committee or acts
approved in writing by the unanimous consent of the members of
the Committee shall be the valid acts of the Committee.
(b) Grants. The Committee shall from time to
time at its discretion direct the Company to grant Options
pursuant to the terms of the Plan. The Committee shall have
plenary authority to (i) determine the Optionees to whom, the
times at which, and the price at which Options shall be granted,
(ii) determine the type of Option to be granted and the number of
Shares subject thereto, and (iii) approve the form and terms and
conditions of the Option Documents; all subject, however, to the
express provisions of the Plan. In making such determinations,
the Committee may take into account the nature of the Optionee's
services and responsibilities, the Optionee's present and
potential contribution to the Company's success and such other
factors as it may deem relevant. The interpretation and
construction by the Committee of any provisions of the Plan or of
any Option granted under it shall be final, binding and
conclusive.
(c) Exculpation. No member of the Committee
shall be personally liable for monetary damages as such for any
action taken or any failure to take any action in connection with
the administration of the Plan or the granting of options
thereunder unless (i) the member of the Committee has breached or
failed to perform the duties of his office within the meaning of
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Chapter 6 of the Business Corporation Act of New Jersey, New
Jersey Revised Statutes Title 14A, as amended, and (ii) the
breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness; provided, however, that the
provisions of this subsection 3(c) shall not apply to the
responsibility or liability of a member of the Committee pursuant
to any criminal statute or to the liability of a member of the
Committee for the payment of taxes pursuant to local, state or
federal law.
(d) Indemnification. Service on the Committee
shall constitute service as a member of the Board of Directors of
the Company. Each member of the Committee shall be entitled
without further act on his part to indemnity from the Company to
the fullest extent provided by applicable law and the Company's
Certificate of Incorporation and/or Bylaws in connection with or
arising out of any action, suit or proceeding with respect to the
administration of the Plan or the granting of Options thereunder
in which he or she may be involved by reason of his or her being
or having been a member of the Committee, whether or not he or
she continues to be such member of the Committee at the time of
the action, suit or proceeding.
4. Grants under the Plan. Grants under the Plan may
be in the form of a Non-qualified Stock Option, an ISO or a
combination thereof, at the discretion of the Committee.
5. Eligibility. All employees (including employees
who are members of the Board of Directors of the Company or its
Affiliates), consultants and advisors of the Company or its
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Affiliates shall be eligible to receive Options hereunder. The
Committee, in its sole discretion, shall determine whether an
individual qualifies as an employee, consultant or advisor of the
Company or its Affiliates.
6. Shares Subject to Plan. Prior to November 30,
1996, the aggregate maximum number of Shares for which Options
may be granted pursuant to the Plan is 1,200,000. On and after
November 30, 1996, subject to stockholder approval at the 1997
Annual Stockholders Meeting, the aggregate number of Shares which
may be issued pursuant to the Plan is (i) 1,200,000 Shares, plus
(ii) an amount equal to 1% of the total number of shares of
Common Stock outstanding on the last trading day of the fiscal
year ended November 30, 1996, plus (iii) additional amounts equal
to 1% of the total number of shares of Common Stock outstanding
on the last trading day of each succeeding fiscal year, such
amounts to be added at the end of each such year. The Shares
shall be issued from authorized and unissued Common Stock or
Common Stock held in or hereafter acquired for the treasury of
the Company. If an Option terminates or expires without having
been fully exercised for any reason, the Shares for which the
Option was not exercised may again be the subject of an Option
granted pursuant to the Plan.
7. Term of the Plan. The Plan is effective as of
July 10, 1992, the date on which it was adopted by the Board of
Directors, subject to the approval of the Plan on or before
July 10, 1993, by a majority of the votes cast at a duly called
meeting of the shareholders at which a quorum representing a
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majority of all outstanding voting stock of the Company is,
either in person or by proxy, present and voting, or by consent
in writing of shareholders representing a majority of all
outstanding voting stock of the Company. No Option may be
granted under the Plan after July 10, 2002. No Option granted
pursuant to the Plan may be exercised before the Plan is so
approved by the Company's shareholders. If the Plan is not so
approved on or before July 10, 1993, all options granted under
the Plan shall be null and void.
8. Option Documents and Terms. Each Option granted
under the Plan shall be a Non-qualified Stock Option unless the
Option shall be specifically designated at the time of grant to
be an ISO for Federal income tax purposes. Options granted
pursuant to the Plan shall be evidenced by the Option Documents
in such form as the Committee shall from time to time approve,
which Option Documents shall comply with and be subject to the
following terms and conditions and such other terms and
conditions as the Committee shall from time to time require which
are not inconsistent with the terms of the Plan.
(a) Number of Option Shares. Each Option
Document shall state the number of Shares to which it pertains.
An Optionee may receive more than one Option, which may include
options which are intended to be ISOs and Options which are not
intended to be ISOs, but only on the terms and subject to the
conditions and restrictions of the Plan.
(b) Option Price. Each Option Document shall
state the Option Price which, for all ISOs, shall be at least
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100% of the Fair Market Value of the Shares at the time the
Option is granted as determined by the Committee in accordance
with this subsection 8(b); provided, however, that if an ISO is
granted to an Optionee who then owns, directly or by attribution
under section 424(d) of the Code, shares possessing more than 10%
of the total combined voting power of all classes of stock of the
Company or an Affiliate, then the Option Price shall be at least
110% of the Fair Market Value of the Shares at the time the
option is granted. If the Common Stock is traded in a public
market, then the Fair Market Value per share shall be, if the
Shares are listed on a national securities exchange or included
in the NASDAQ National Market System, the last reported sale
price thereof on the relevant date, or, if the Shares are not so
listed or included, the mean between the last reported "bid" and
"asked" prices thereof, as reported on NASDAQ or, if not so
reported, as reported by the National Daily Quotation Bureau,
Inc., or as reported in a customary financial reporting service,
as applicable and as the Committee determines, on the relevant
date. If the Common Stock is not traded in a public market on
the relevant date, the Fair Market Value shall be as determined
in good faith by the Committee.
(c) Exercise. No Option shall be deemed to have
been exercised prior to the receipt by the Company of written
notice of such exercise and of payment in full of the Option
Price for the Shares to be purchased. Each such notice shall
specify the number of Shares to be purchased and shall (unless
the Shares are covered by a then current registration statement
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or a Notification under Regulation A under the Securities Act of
1933, as amended (the "Act")), contain the Optionee's
acknowledgment in form and substance satisfactory to the Company
that (i) such Shares are being purchased for investment and not
for distribution or resale (other than a distribution or resale
which, in the opinion of counsel satisfactory to the Company, may
be made without violating the registration provisions of the
Act), (ii) the Optionee has been advised and understands that
(A) the Shares have not been registered under the Act and are
"restricted securities" within the meaning of Rule 144 under the
Act, and are subject to restrictions on transfer and (B) the
Company is under no obligation to register the Shares under the
Act or to take any action which would make available to the
Optionee any exemption from such registration, (iii) such Shares
may not be transferred without compliance with all applicable
federal and state securities laws, and (iv) an appropriate legend
referring to the foregoing restrictions on transfer and any other
restrictions imposed under the Option Documents may be endorsed
on the certificates. Notwithstanding the foregoing, if the
Company determines that issuance of Shares should be delayed
pending (i) registration under federal or state securities laws,
(ii) the receipt of an opinion that an appropriate exemption from
such registration is available, (iii) the listing or inclusion of
the Shares on any securities exchange or in an automated
quotation system or (iv) the consent or approval of any
governmental regulatory body whose consent or approval is
necessary in connection with the issuance of such Shares, the
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Company may defer exercise of any Option granted hereunder until
any of the events described in this subsection 8(c) has occurred.
(d) Medium of Payment. An Optionee shall pay for
Shares (i) in cash, (ii) by certified check payable to the order
of the Company, or (iii) by such other mode of payment as the
Committee may approve, including payment through a broker in
accordance with procedures permitted by Regulation T of the
Federal Reserve Board. Furthermore, the Committee may provide in
an Option Document that payment may be made in whole or in part
in shares of the Company's Common Stock held by the Optionee for
at least six months. If payment is made in whole or in part in
shares of the Company's Common Stock, then the Optionee shall
deliver to the Company certificates registered in the name of
such Optionee representing the shares owned by such Optionee,
free of all liens, claims and encumbrances of every kind and
having an aggregate Fair Market Value on the date of delivery
that is at least as great as the Option Price of the Shares (or
relevant portion thereof) with respect to which such Option to be
exercised by the payment in shares of Common Stock, accompanied
by stock powers duly endorsed in blank by the Optionee.
Notwithstanding the foregoing, the Committee may impose from time
to time such limitations and prohibitions on the use of shares of
the Common Stock to exercise an Option as it deems appropriate.
(e) Termination of Options.
(i) No Option shall be exercisable after the
first to occur of the following:
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(A) Expiration of the Option term
specified in the Option Document, which for an ISO shall not
exceed (1) ten years from the date of grant, or (2) five years
from the date of grant if the Optionee on the date of grant owns,
directly or by attribution under section 424(d) of the Code,
shares possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or
of an Affiliate;
(B) The date the Optionee's employment
or service with the Company or its Affiliates terminates for any
reason other than Disability or death or as otherwise specified
in subsection 8(e)(i)(D) or Section 9 below;
(C) Expiration of one year from the
date the Optionee's employment or service with the Company or its
Affiliates terminates due to the Optionee's Disability or death;
(D) A finding by the Committee, after
full consideration of the facts presented on behalf of both the
Company and the Optionee, that the Optionee has breached his
employment or Service contract with the Company or an Affiliate,
or has been engaged in any sort of disloyalty to the Company or
an Affiliate, including, without limitation, fraud, embezzlement,
theft, commission of a felony or proven dishonesty in the course
of his employment or Service, or has disclosed trade secrets or
confidential information of the Company or an Affiliate. In such
event, in addition to immediate termination of the Option, the
Optionee shall automatically forfeit all Shares for which the
Company has not yet delivered the share certificates upon refund
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<PAGE>
by the Company of the Option Price of such Shares.
Notwithstanding anything herein to the contrary, the Company may
withhold delivery of share certificates pending the resolution of
any inquiry that could lead to a finding resulting in a
forfeiture; or
(E) The date, if any, set by the Board
of Directors as an accelerated expiration date pursuant to
Section 9 hereof.
(ii) Notwithstanding the foregoing, the
Committee may extend the period during which an Option may be
exercised to a date no later than the date of the expiration of
the Option term specified in the Option Documents, as they may be
amended, provided that any change pursuant to this
subsection 8(e)(ii) that would cause an ISO to become a
Non-qualified Stock Option may be made only with the consent of
the Optionee.
(A) Transfers. No Option granted under
the Plan may be transferred, except by will or by the laws of
descent and distribution. During the lifetime of the person to
whom an Option is granted, such Option may be exercised only by
him. Notwithstanding the foregoing, Non-qualified Stock Option
may be transferred pursuant to the terms of a "qualified domestic
relations order," within the meaning of sections 401(a)(13) and
414(p) of the Code or within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, as amended.
(B) Holding Period. No Option granted
under the Plan may be exercised unless such period of time as may
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<PAGE>
be specified in the Option Documents has elapsed from the date of
grant.
(C) Limitation on ISO Grants. No ISO
shall be granted if, for any calendar year during which such ISO
may be exercised, the Fair Market Value of the Shares (determined
at the time the ISO is granted) with respect to which such ISO is
exercisable for the first time by the Optionee, plus the
aggregate Fair Market Value (determined at such time) of any
Shares with respect to which any other incentive stock option of
the Company or its Affiliates are exercisable for the first time
by the Optionee, exceeds $100,000.
(D) Other Provisions. The Option
Documents shall contain such other provisions including, without
limitation, provisions authorizing the Committee to accelerate
the exercisability of all or any portion of an Option granted
pursuant to the Plan, additional restrictions upon the exercise
of the Option or additional limitations upon the term of the
Option, as the Committee shall deem advisable.
(E) Amendment. The Committee shall
have the right to amend Option Documents issued to an Optionee,
subject to the Optionee's consent if such amendment is not
favorable to the Optionee, except that the consent of the
Optionee shall not be required for any amendment made under
Section 9 of the Plan.
9. Change of Control. In the event of a Change
of Control, the Committee may take whatever action with respect
to the Options outstanding it deems necessary or desirable,
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<PAGE>
including, without limitation, accelerating the expiration or
termination date or the date of exercisability in the respective
Option Documents.
A "Change of Control" shall be deemed to have
occurred upon the earliest to occur of the following events:
(i) the date the shareholders of the Company (or the Board of
Directors, if shareholder action is not required) approve a plan
or other arrangement pursuant to which the Company will be
dissolved or liquidated, or (ii) the date the shareholders of the
Company (or the Board of Directors, if shareholder action is not
required) approve a definitive agreement to sell or otherwise
dispose of substantially all of the assets of the Company, or
(iii) the date the shareholders of the Company (or the Board of
Directors, if shareholder action is not required) and the
shareholders of the other constituent corporation (or its board
of directors if shareholder action is not required) have approved
a definitive agreement to merge or consolidate the Company with
or into such other corporation, other than, in either case, a
merger or consolidation of the Company in which holders of shares
of the Company's Common Stock or other common voting stock
immediately prior to the merger or consolidation will hold at
least a majority of the ownership of common stock of the
surviving corporation (and, if one class of common stock is not
the only class of voting securities entitled to vote on the
election of directors of the surviving corporation, a majority of
the voting power of the surviving corporation's voting
securities) immediately after the merger or consolidation, which
14
<PAGE>
common stock (and if applicable voting securities) is to be held
in the same proportion as such holders, ownership of Common Stock
or other common voting stock of the Company immediately before
the merger or consolidation, or (iv) the date any entity, person
or group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Securities Exchange Act of 1934, as
amended) other than the Company or any of its subsidiaries, or
any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its subsidiaries, shall have
become the beneficial owner of, or shall have obtained voting
control over, outstanding shares of the Company's voting stock
representing more than fifty percent (50%) of the voting power of
all of the Company's outstanding voting stock.
10. Adjustments on Changes in Capitalization. The
aggregate number of Shares and class of shares as to which
Options may be granted hereunder, and the Option Price shall be
appropriately adjusted in the event of a stock dividend, stock
split, recapitalization or other change in the number or class of
issued and outstanding equity securities of the Company resulting
from a subdivision or consolidation of the Common Stock and/or,
if appropriate, other outstanding equity securities or a
recapitalization or other capital adjustment (not including the
issuance of Common Stock on the conversion of other securities of
the Company which are convertible into Common Stock) affecting
the Common Stock which is effected without receipt of
consideration by the Company. The Committee shall have authority
to determine the adjustments to be made under this Section, and
15
<PAGE>
any such determination by the Committee shall be final, binding
and conclusive; provided, however, that no adjustment shall be
made which will cause an ISO to lose its status as such without
the consent of the Optionee, except for adjustments made pursuant
to Section 9 hereof.
11. Amendment of the Plan. The Board of Directors of
the Company may amend the Plan from time to time in such manner
as it may deem advisable. Nevertheless, the Board of Directors
of the Company may not: (i) change the class of individuals
eligible to receive an ISO, (ii) increase the maximum number of
Shares as to which Options may be granted, or (iii) make any
other change or amendment as to which shareholder approval is
required in order to satisfy the conditions set forth in
Rule 16b-3 promulgated under the Securities Exchange Act of 1934,
as amended, in each case without obtaining approval, within
twelve months before or after such action, by vote of a majority
of the votes cast at a duly called meeting of the shareholders at
which a quorum representing a majority of all outstanding voting
stock of the Company is, either in person or by proxy, present
and voting on the matter. No amendment to the Plan shall
adversely affect any outstanding Option, however, without the
consent of the Optionee.
12. No Commitment to Retain. The grant of an Option
pursuant to the Plan shall not be construed to imply or to
constitute evidence of any agreement, express or implied, on the
part of the Company or any Affiliate to retain the Optionee in
16
<PAGE>
the employ of the Company or an Affiliate and/or as a member of
the Company's Board of Directors or in any other capacity.
13. Withholding of Taxes. Whenever the Company
proposes or is required to deliver or transfer Shares in
connection with the exercise of an Option, the Company shall have
the right to (a) require the recipient to remit or otherwise make
available to the Company an amount sufficient to satisfy any
federal, state and/or local withholding tax requirements prior to
the delivery or transfer of any certificate or certificates for
each Shares or (b) take whatever other action it deems necessary
to protect its interests with respect to tax liabilities. The
Company's obligation to make any delivery or transfer of Shares
shall be conditioned on the Optionee's compliance, to the
Company's satisfaction, with any withholding requirement.
14. Interpretation. The Plan is intended to enable
transactions under the Plan with respect to directors and
officers (within the meaning of Section 16(a) under the
Securities Exchange Act of 1934, as amended) to satisfy the
conditions of Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended; any provision of the Plan which
would cause a conflict with such conditions shall be deemed null
and void to the extent permitted by applicable law and in the
discretion of the Board of Directors.
17
<PAGE>
RF POWER PRODUCTS, INC.
1993 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
1. Purpose. RF Power Products, Inc. (the "Company")
hereby adopts the RF Power Products, Inc. 1993 Non-Employee
Directors Stock Option Plan (the "Plan"). The Plan is intended
to recognize the contributions made to the Company by the
non-employee members of the Board of Directors of the Company or
any Affiliate (as defined below), to provide such persons with
additional incentive to devote themselves to the future success
of the Company or an Affiliate, and to improve the ability of the
Company or an Affiliate to attract, retain, and motivate
individuals upon whom the Company's sustained growth and
financial success depend, by providing such persons with an
opportunity to acquire or increase their proprietary interest in
the Company through receipt of options to purchase the Company's
Common Stock, par value $ .01 per Share (the "Common Stock").
2. Definitions. Unless the context clearly indicates
otherwise, the following terms shall have the following meanings:
(a) "Affiliate" means a corporation which is a parent
corporation or a subsidiary corporation with respect to the
Company within the meaning of Section 424(e) or (f) of the Code.
(b) "Board of Directors" or "Board" means the Board of
Directors of the Company.
(c) "Change in Control" shall have the meaning as set forth
in Section 10 of the Plan.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" shall have the meaning set forth in Section
3 of the Plan.
(f) "Company" means RF Power Products, Inc., a Delaware
corporation.
(g) "Disability" shall have the meaning set forth in
Section 22(e)(3) of the Code.
(h) "Fair Market Value" shall have the meaning set forth in
Subsection 8(c) of the Plan.
(i) "Non-employee Director" means a member of the Board of
Directors who is not an employee of the Company or an Affiliate.
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(j) "Non-qualified Stock Option" means an Option granted
under the Plan which is not intended to qualify, or otherwise
does not qualify, as an "incentive stock option" within the
meaning of Section 422(b) of the Code.
(k) "Option" means a Non-qualified Stock Option granted
under the Plan.
(1) "Optionee" means a person to whom an Option has been
granted under the Plan, which Option has not been exercised and
has not expired or terminated.
(m) "Option Document" means the document described in
Section 8 of the Plan, as applicable, which sets forth the terms
and conditions of each grant of Options.
(n) "Option Price" means the price at which Shares may be
purchased upon exercise of an Option, as calculated pursuant to
Subsection 8(c) of the Plan.
(o) "Rule 16b-3" means Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended.
(p) "Shares" means the shares of Common Stock of the
Company which are the subject of Options.
3. Administration of the Plan. The Plan shall be
administered by the Board of Directors of the Company; however,
the Board of Directors may designate a committee composed of two
or more of its Non-employee Directors to operate and administer
the Plan in its stead.
(a) Meetings. The Committee shall hold meetings at such
times and places as it may determine. Acts approved at a meeting
by a majority of the members of the Committee or acts approved in
writing by the unanimous consent of the members of the Committee
shall be the valid acts of the Committee.
(b) Administration. The interpretation and construction by
the Committee of any provisions of the Plan or of any Option
granted under it shall be final, binding and conclusive.
(c) Exculpation. No member of the Board of Directors shall
be personally liable for monetary damages for any action taken or
any failure to take any action in connection with the
administration of the Plan or the granting of Options under the
Plan, provided that this
2
<PAGE>
Subsection 3(c) shall not apply to (i)
any breach of such member's duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or
involving intentional misconduct or a knowing violation of law,
(iii) acts or omissions that would result in liability under
Section 174 of the General Corporation Law of the State of
Delaware, as amended, and (iv) any transaction from which the
member derived an improper personal benefit.
(d) Indemnification. Service on the Committee shall
constitute service as a member of the Board of Directors of the
Company. Each member of the Committee shall be entitled without
further act on his or her part to indemnity from the Company to
the fullest extent provided by applicable law and the Company's
Certificate of Incorporation and/or By-laws in connection with or
arising out of any action, suit or proceeding with respect to the
administration of the Plan or the granting of Options thereunder
in which he or she may be involved by reason of his or her being
or having been a member of the Committee, whether or not he or
she continues to be such member of the Committee at the time of
the action, suit or proceeding.
(e) Limitations on Grants of Options to Consultants and
Advisors. With respect to the grant of Options to consultants or
advisors, bona fide services shall be rendered by consultants or
advisors and such services must not be in connection with the
offer or sale of securities in a capital-raising transaction.
4. Grants under the Plan. Grants under the Plan may only
be in the form of a Non-qualified Stock Option.
5. Eligibility. All Non-employee Directors shall be
eligible to receive Options hereunder. The Committee, in its
sole discretion, shall determine whether an individual is
eligible to receive Options under the Plan.
6. Shares Subject to Plan. The aggregate maximum number
of Shares for which Options may be granted pursuant to the Plan
will be increased to one hundred and ninety-five thousand
(195,000), subject to adjustment as provided in Section 10 of the
Plan. The Shares shall be issued from authorized and unissued
Common Stock or Common Stock held in or hereafter acquired for the
treasury of the Company. If an Option terminates or expires without
3
<PAGE>
having been fully exercised for any reason, the Shares
for which the Option was not exercised may again be the subject
of one or more Options granted pursuant to the Plan.
7. Term of the Plan. The Plan is effective as of March
24, 1993 the date on which it was adopted by the Board of
Directors, subject to the approval of the Plan on or before March
23, 1994 by a majority of the votes cast at a duly called meeting
of the stockholders at which a quorum representing a majority of
all outstanding voting stock of the Company is, either in person
or by proxy, present and voting. If the Plan is not so approved
on or before March 23, 1994, all Options granted under the Plan
shall be null and void. No Option may be granted under the Plan
after March 23, 2003.
8. Option Documents and Terms. Each Option granted under
the Plan shall be a Non-qualified Stock Option. Options granted
pursuant to the Plan shall be evidenced by the Option Documents
in such form as the Committee shall from time to time approve,
which Option Documents shall comply with and be subject to the
following terms and conditions and such other terms and
conditions as the Committee shall from time to time require which
are not inconsistent with the terms of the Plan.
(a) Number of Option Shares. Each Option Document shall
state the number of Shares to which it pertains. An Optionee may
receive more than one Option on the terms and subject to the
conditions and restrictions of the Plan.
(b) Timing of Grants, Number of Shares Subject to Options.
Each Non-Employee Director shall be granted automatically, in
accordance with the provisions of this Plan:
(i) upon appointment to the Board of Directors, an
Option to purchase fifteen thousand (15,000) Shares; and
(ii) annually, commencing on the last business day of
November 1995 and on the last business day of November
thereafter, an Option to purchase fifteen thousand (15,000)
Shares.
(c) Option Price. Each Option Document shall state the
Option Price which shall be equal to the Fair Market Value of the
Shares on the date the option is granted. If the Common
4
<PAGE>
Stock is traded in a public market, then the Fair Marker Value per share
shall be, if the Common Stock is listed on a national securities
exchange or included in the NASDAQ National Market System, the
last reported sale price thereof on the relevant date, or, if the
Common Stock is not so listed or included, the mean between the
last reported "bid" and "asked" prices thereof on the relevant
date, as reported on NASDAQ or, if not so reported, as reported
by the National Daily Quotation Bureau, Inc. or as reported in a
customary financial reporting service, as applicable and as the
Committee determines.
(d) Exercise. Each Option shall be exercisable six (6)
months after the date on which it was granted. No Option shall
be deemed to have been exercised prior to the receipt by the
Company of written notice of such exercise and payment in full of
the Option Price for the Shares to be purchased. Each such
notice shall specify the number of Shares to be purchased and
shall (unless the Shares are covered by a then current
registration statement or a Notification under Regulation A under
the Securities Act of 1933, as amended (the "Act")), contain the
Optionee's acknowledgment in form and substance satisfactory to
the Company that (a) such Shares are being purchased for
investment and not for distribution or resale (other than a
distribution or resale which, in the opinion of counsel
satisfactory to the Company, may be made without violating the
registration provisions of the Act), (b) the Optionee has been
advised and understands that (i) the Shares have not been
registered under the Act and are "restricted securities" within
the meaning of Rule 144 under the Act and are subject to
restrictions on transfer and (ii) the Company is under no
obligation to register the Shares under the Act or to take any
action which would make available to the Optionee any exemption
from such registration, (c) such Shares may not be transferred
without compliance with all applicable federal and state
securities laws, and (d) an appropriate legend referring to the
foregoing restrictions on transfer and any other restrictions
imposed under the Option Documents may be endorsed on the
certificates. Notwithstanding the foregoing, if the Company
determines that issuance of Shares should be delayed pending (A)
registration under federal or state securities laws, (B) the receipt
of an opinion of counsel acceptable to the Company that an appropriate
5
<PAGE>
exemption from such registration is available, (C)
the listing or inclusion of the Shares on any securities exchange
or an automated quotation system or (D) the consent or approval
of any governmental regulatory body whose consent or approval is
necessary in connection with the issuance of such Shares, the
Company may defer exercise of any Option granted hereunder until
any of the events described in this Subsection 8(d) has occurred.
(e) Medium of Payment. An Optionee shall pay for Shares
(i) in cash, (ii) by certified or cashier's check payable to the
order of the Company, or (iii) by such other mode of payment as
the Committee may approve, including payment through a broker in
accordance with procedures permitted by Regulation T of the
Federal Reserve Board. Without limiting the foregoing, the
Committee may provide an Option Document that payment may be made
in whole or in part in shares of the Company's Common Stock. If
payment is made in whole or in part in shares of the Company's
Common Stock, then the Optionee shall deliver to the Company
certificates registered in the name of such Optionee representing
the shares owned by such Optionee, free of all liens, claims and
encumbrances of every kind and having an aggregate Fair Market
Value on the date of delivery that is at least as great as the
Option Price of the Shares (or relevant portion thereof) with
respect to which such Option is to be exercised by the payment in
shares of Common Stock, accompanied by stock powers duly endorsed
in blank by the Optionee. In the event that certificates for
shares of the Company's Common Stock delivered to the Company
represent a number of shares in excess of the number of shares
required to make payment for the Option Price of the Shares (or
relevant portion thereof) with respect to which such Option is to
be exercised by payment in shares of Common Stock, the stock
certificate issued to the Optionee shall represent (i) the Shares
in respect of which payment is made, and (ii) such excess number
of shares. Notwithstanding the foregoing, the Committee may
impose from time to time such limitations and prohibitions on the
use of shares of the Common Stock to exercise an Option as it
deems appropriate.
6
<PAGE>
(f) Termination of Options.
All Options granted pursuant to this Plan shall be
exercisable until the first to occur of the following:
(i) Expiration of ten (10) years from the date of
grant;
(ii) Expiration of three months from the date the
Optionee's service as a Non-employee Director terminates for any
reason other than Disability or death; or
(iii) Expiration of one year from the date the
Optionee's service with Company as a Non-employee Director
terminates due to the Optionee's Disability or death.
(g) Transfers. No Option granted under the Plan may be
transferred, except by will or by the laws of descent and
distribution. During the lifetime of the person to whom an
Option is granted, such Option may be exercised only by such
person. Notwithstanding the foregoing, a Non-qualified Stock
Option may be transferred pursuant to the terms of a "qualified
domestic relations order," within the meaning of Sections
401(a)(13) and 414(p) of the Code or within the meaning of Title
I of the Employee Retirement Income Security Act of 1974, as
amended.
(h) Other Provisions. Subject to the provisions of the
Plan, the Option Documents shall contain such other provisions
including, without limitation, additional restrictions upon the
exercise of the Option or additional limitations upon the term of
the Option, as the Committee shall deem advisable.
(i) Amendment. Subject to the provisions of the Plan, the
Committee shall have the right to amend Option Documents issued
to an Optionee, subject to the Optionee's consent if such
amendment is not favorable to the Optionee, except that the
consent of the Optionee shall not be required for any amendment
made under Section 9 of the Plan, as applicable.
9. Change in Control. In the event of a Change in
Control, the Committee may take whatever action it deems
necessary or desirable with respect to the Options outstanding,
including, without limitation, accelerating the expiration or
termination date in the respective Option Documents to a date no
earlier than thirty (30) days after notice of such acceleration is
7
<PAGE>
given to the Optionees. In addition to the foregoing, in the
event of a Change in Control, Options granted pursuant to the
Plan shall become immediately exercisable in full.
A "Change of Control" shall be deemed to have occurred upon
the earliest to occur of the following events: (i) the date the
stockholders of the Company (or the Board of Directors, if
stockholder action is not required) approve a plan or other
arrangement pursuant to which the Company will be dissolved or
liquidated, or (ii) the date the stockholders of the Company (or
the Board of Directors, if stockholder action is not required)
approve a definitive agreement to sell or otherwise dispose of
substantially all of the assets of the Company, or (iii) the date
the stockholders of the Company (or the Board of Directors, if
stockholder action is not required) and the stockholders of the
other constituent corporation (or its board of directors if
stockholder action is not required) have approved a definitive
agreement to merge or consolidate the Company with or into such
other corporation, other than, in either case, a merger or
consolidation of the Company in which holders of shares of the
Company's Common Stock immediately prior to the merger or
consolidation will hold at least a majority of the ownership of
common stock of the surviving corporation (and, if one class of
common stock is not the only class of voting securities entitled
to vote on the election of directors of the surviving
corporation, a majority of the voting power of the surviving
corporation's voting securities) immediately after the merger or
consolidation, which common stock (and if applicable voting
securities) is to be held in the same proportion as such holders'
ownership of Common Stock of the Company immediately before the
merger or c onsolidation, or (iv) the date any entity, person or
group (within the meaning of Section 13(d)(3) or Section 14(d)(2)
of the Securities Exchange Act of 1934, as amended) other than
(A) the Company or any of its subsidiaries or any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any of its subsidiaries; or (B) any person who, on the
date the Plan is effective, shall have been the beneficial owner
of or have voting control over shares of Common Stock of the
Company, possessing more than ten percent (10%) of the aggregate
voting power of the Company's Common Stock shall have become the
beneficial owner of, or shall have obtained voting control over,
more than ten percent (10%) of
8
<PAGE>
the outstanding shares of the
Company's Common Stock, or (v) the first day after the date this
Plan is effective when directors are elected such that a majority
of the Board of Directors shall have been members of the Board of
Directors for less than two (2) years, unless the nomination for
election of each new director who was not a director at the
beginning of such two (2) year period was approved by a vote of
at least two-thirds of the directors then still in office who
were directors at the beginning of such period.
Adjustments on Changes in Capitalization. The aggregate
number of Shares and class of shares as to which Options may be
granted hereunder, the number and class or classes of shares
covered by each outstanding Option and the Option Price thereof
shall be appropriately adjusted in the event of a stock dividend,
stock split, recapitalization or other change in the number or
class of issued and outstanding equity securities of the Company
resulting from a subdivision or consolidation of the Common Stock
and/or, if appropriate, other outstanding equity securities or a
recapitalization or other capital adjustment (not including the
issuance of Common Stock on the conversion of other securities of
the Company which are convertible into Common Stock) affecting
the Common Stock which is effected without receipt of
consideration by the Company. The Committee shall have authority
to determine the adjustments to be made under this Section, and
any such determination by the Committee shall be final, binding
and conclusive.
10. Amendment of the Plan. The Board of Directors of the
Company may amend the Plan from time to time in such manner as it
may deem advisable. The provisions of the Plan (i) which
directors shall be granted Options pursuant to Section 8; (ii)
the amount of Shares subject to Options granted pursuant to
Section 8; (iii) the price at which Shares subject to Options
granted pursuant to Section 8 may be purchased and (iv) the
timing of grants of Options pursuant to Section 8 shall not be
amended more than once every six months, other than to comport
with changes in the Code or the Employee Retirement Income
Security Act of 1974, as amended. No amendment to the Plan shall
adversely affect any outstanding Option, however, without the
consent of the Optionee that holds such Option. Notwithstanding
the foregoing, no amendment to or modification of the Plan that
(i) materially increases the benefits accruing to eligible
9
<PAGE>
individuals; (ii) except as provided in Section 10 of this Plan,
materially increases the number of shares that may be issued
under the Plan; or (iii) materially modifies the eligibility
requirements for participation under the Plan, shall be effective
without shareholder approval.
11. No Commitment to Retain. The grant of an Option
pursuant to the Plan shall not be construed to imply or to
constitute evidence of any agreement, express or implied, on the
part of the Company or any Affiliate to retain the Optionee as a
member of the Company's Board of Directors or in any other
capacity.
12. Withholding of Taxes. Whenever the Company proposes or
is required to deliver or transfer Shares in connection with the
exercise of an Option, the Company shall have the right to (a)
require the recipient to remit or otherwise make available to the
Company an amount sufficient to satisfy any federal, state and/or
local withholding tax requirements prior to the delivery or
transfer of any certificate or certificates for such Shares or
(b) take whatever other action it deems necessary to protect its
interests with respect to tax liabilities. The Company's
obligation to make any delivery or transfer of Shares shall be
conditioned on the Optionee's compliance, to the Company's
satisfaction, with any withholding requirement.
13. Interpretation. The Plan is intended to enable
transactions under the Plan with respect to directors and
officers (within the meaning of Section 16(a) under the
Securities Exchange Act of 1934, as amended) to satisfy the
conditions of Rule 16b-3; to the extent that any provision of the
Plan, or any provisions of any Option granted pursuant to the
Plan, would cause a conflict with such conditions or would cause
the administration of the Plan as provided in Section 3 to fail
to satisfy the conditions of Rule 16b-3, such provision shall be
deemed null and void to the extent permitted by applicable law.
10
RF POWER PRODUCTS, INC.
1995 STOCK OPTION PLAN
ARTICLE I
PURPOSE
1.1. RF Power Products, Inc. 1995 Stock Option Plan is
intended to advance the interests of RF Power Products, Inc. and
its stockholders and subsidiaries and to recognize the
contributions made to RF Power Products, Inc. by employees
(including employees who are members of the Board of Directors),
consultants and advisors of RF Power Products, Inc. or any of its
affiliates, to provide such persons with additional incentive to
devote themselves to the future success of RF Power Products,
Inc. or its affiliates, and to improve the ability of RF Power
Products, Inc. or its affiliates to attract, retain, and motivate
individuals upon whom RF Power Products, Inc.'s sustained growth
and financial success depend, by providing such persons with an
opportunity to acquire or increase their proprietary interest in
RF Power Products, Inc. through receipt of rights to acquire RF
Power Products, Inc. stock.
1.2. All shares of Common Stock issuable upon exercise
of Options granted hereunder shall have previously been
authorized by the Company and its shareholders in connection with
the exercise of stock options which have not yet been granted
under the 1992 Plan.
ARTICLE 11
DEFINITIONS
2.1. "Board" means the Board of Directors of the
Company.
2.2. "Code" means the Internal Revenue Code of 1986, as
amended.
2.3. "Common Stock" means the Company's Common Stock,
par value $.01 per share.
2.4. "Committee" means the Stock Option Committee
appointed by the Board or any successor committee appointed by
the Board to administer the Plan.
2.5. "Company" means RF Power Products, Inc.
2.6. "Date of Grant" means the date on which an Option
becomes effective in accordance with Section 6.1 hereof.
2.7. "Eligible Person" means any person who is an
officer, employee (including an employee who is a member of the
Board), consultant or advisor of the Company or any Subsidiary.
<PAGE>
2.8. "Fair Market Value" means the last reported sales
prices of the Common Stock on the American Stock Exchange on the
date as of which fair market value is to be determined or, in the
absence of any reported sales of Common Stock on such date, on
the first preceding date on which any such sale shall have been
reported. If Common Stock is not listed on the American Stock
Exchange on the date as of which fair market value is to be
determined, the Committee shall determine in good faith the fair
market value in whatever manner it considers appropriate.
2.9. "Incentive Stock Option" means a stock option
granted under the Plan that is intended to meet the requirements
of Section 422 of the Code and regulations promulgated
thereunder.
2.10. "Nonqualified Stock Option" means a stock
option granted under the Plan that is not an Incentive Stock
Option.
2.11. "0ption" means an Incentive Stock Option or a
Nonqualified Stock Option granted under the Plan.
2.12. "Optionee" means a person to whom an Option
has been granted, which Option has not expired, under the Plan.
2.13. " 0ption Price" means the price at which each
share of Common Stock subject to an Option may be purchased,
determined in accordance with Section 6.2 hereof.
2.14. "Plan" means the RF Power Products, Inc. 1995
Stock Option Plan.
2.15. "Stock Option Agreement" means an agreement
between the Company and an Optionee under which the Optionee may
purchase Common Stock under the Plan.
2.16. "Subsidiary" means a subsidiary corporation
of the Company, within the meaning of Section 424(f) of the Code.
2.17. "Ten-Percent Owner" means an Optionee who, at
the time an Incentive Stock Option is granted, owns stock
possessing more than ten percent of the total combined voting
power of all classes of stock of the Company, its parent, if any,
or any Subsidiary, within the meaning of Sections 422(b)(6) and
424(d) of the Code.
2.18. "1992 Plan" means the Company's 1992 Stock
Option Plan.
ARTICLE III
ELIGIBILITY
All Eligible Persons are eligible to receive a grant of
an Option under the Plan. The Committee shall, in its sole
discretion, determine and designate from time to time those
Eligible Persons who are to be granted an Option.
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<PAGE>
ARTICLE IV
ADMINISTRATION
4.1. Committee Members. The Plan shall be administered
by a Committee which shall be comprised of no fewer than two
members of the Board. Each Committee member shall be ineligible,
and shall have been ineligible for the one-year period prior to
appointment thereto, for selection as a person to whom stock
options or other equity securities of the Company may be granted
or awarded pursuant to the Plan or, solely to the extent
necessary to be deemed a "disinterested person" within the
meaning of Rule 16b-3 under the Securities Exchange Act of 1934,
pursuant to any similar plan of the Company or any affiliate of
the Company. Each Committee member shall qualify as an "outside
director" under Section 162(m) of the Code.
4.2. Committee Authority. Subject to the express
provisions of the Plan, the Committee shall have the authority,
in its discretion, to determine the Eligible Persons to whom an
Option shall be granted, the time or times at which an Option
shall be granted, the number of shares of Common Stock subject to
each Option, the Option Price of the shares subject to each
Option and the time or times when each Option shall become
exercisable and the duration of the exercise period.
Subject to the express provisions of the Plan, the
Committee shall also have discretionary authority to interpret
the Plan, to prescribe, amend and rescind rules and regulations
relating to it, to determine the details and provisions of each
Stock Option Agreement, and to make all the determinations
necessary or advisable in the administration of the Plan. All
such actions and determinations by the Committee shall be
conclusively binding for all purposes and upon all persons. No
Committee member shall be liable for any action or determination
made in good faith with respect to the Plan, any Option or any
Stock Option Agreement entered into hereunder.
4.3. Majority Rule. A majority of the members of the
Committee (or, if less than three, all of the members) shall
constitute a quorum, and any action taken by a majority present
at a meeting at which a quorum is present or any action taken
without a meeting evidenced by a writing executed by a majority
of the whole Committee shall constitute the action of the
Committee.
4.4. Company Assistance. The Company shall supply full
and timely information to the Committee on all matters relating
to Eligible Persons, their employment, death, disability or other
termination of employment, and such other pertinent facts as the
Committee may require. The Company shall furnish the Committee
with such clerical and other assistance as is necessary in the
performance of its duties.
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN; CHANGE IN CONTROL
5.1. Number of Shares. Subject to adjustment pursuant
to the provisions of this Article V, the maximum number of shares
of Common Stock which may be issued and sold
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hereunder shall be
265,635 shares, which constitute all of the shares of Common
Stock which had previously been authorized by the Company and its
shareholders in connection with the exercise of stock options
which have not yet been granted under the 1992 Plan. Shares of
Common Stock issued and sold under the Plan may be either
authorized but unissued shares or shares held in the Company's
treasury. Shares of Common Stock covered by an Option that shall
have been exercised shall not again be available for an Option
grant. If an Option shall terminate for any reason (including,
without limitation, the cancellation of an Option pursuant to
Section 6.6 hereof) without being wholly exercised, the number of
shares to which such Option termination relates shall again be
available for grant hereunder.
5.2. Antidilution. Subject to Section 5.4 hereof, in
the event of a reorganization, recapitalization, stock split,
stock dividend, combination of shares, merger or consolidation,
or the sale, conveyance, or other transfer by the Company of all
or substantially all of its property, or any other change in the
corporate structure or shares of the Company, pursuant to any of
which events the then outstanding shares of Common Stock are
split up or combined, or are changed into, become exchangeable at
the holder's election for, or entitle the holder thereof to,
other shares of stock, or in the case of any other transaction
described in Section 424(a) of the Code the Committee may change
the number and kind of shares (including by substitution of
shares of another corporation) subject to the Options and/or the
Option Price of such shares in the manner that it shall deem to
be equitable and appropriate. In no event may any such change be
made to an Incentive Stock Option which would constitute a
"modification" within the meaning of Section 424(h)(3) of the
Code.
5.3. Maximum Grant. The number of shares of Common
Stock underlying options that may be granted under the Plan to
any one person during any one calendar year shall not exceed
200,000 shares. To the extent required for exemption under
Section 162 (m) of the Code, (i) such maximum number of Option
shares may be adjusted in a manner consistent with Section 5.2
and (ii) any Option shares that are canceled or repriced shall
not again be available for grant under the maximum share limit.
5.4. Change in Control. Upon a "change in of control"
of the Company (as defined below), each outstanding Option, to
the extent that it shall not otherwise have exercisable, shall
become fully and immediately vested and exercisable (without
regard to any otherwise applicable installment exercise
requirement under Section 6.3 hereof) and an Optionee shall
surrender his Option and receive with respect to each share of
Common Stock issuable under such Option outstanding at such time,
a payment in cash equal to the excess of the Fair Market Value of
the Common Stock at the time of the change in control over the
Option Price of the Common Stock; provided, however, that no such
vesting and cash payment shall occur if (i) the change in control
has been approved by at least two-thirds of the members of the
Board who were serving as such immediately prior to such
transaction and (ii) provision has been made in connection with
such transaction for (a) the continuation of the Plan and/or the
assumption of such Options by a successor corporation (or a
parent or subsidiary thereof) or (b) the substitution for such
Options of new options covering the stock of a successor
corporation (or a parent or subsidiary thereof), with appropriate
adjustments as to the Y number and kinds of shares and exercise
prices. In the
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<PAGE>
event of any such continuation, assumption or
substitution, the Plan and/or such Options shall continue in the
manner and under the terms so provided.
For purposes of this Section 5.4 a "change in control"
of the Company shall mean (i) a merger, consolidation, or
reorganization of the Company with one or more other corporations
in which the Company is not the surviving corporation; (ii) a
sale or other transfer of substantially all of the assets of the
Company to another corporation; (iii) any transaction or series
of transactions (including, without limitation, a transaction in
which the Company is the surviving corporation) that results in
any person or entity (other than any Subsidiary) becoming owner
of more than 50 percent of the combined voting power of all
classes of stock of the Company; (iv) a change or series of
changes in the composition of the Board such that a majority of
its members shall cease to consist of "Continuing Directors"
(meaning directors of the Company who either were directors on
the date this Plan is approved by the Board or who subsequently
became directors and whose election, or nomination for election
by the Company's stockholders, was approved by a vote of at least
two-thirds of the then existing directors); or (v) a dissolution
or liquidation of the Company.
ARTICLE VI
OPTIONS
6.1. Grant of Option. An Option may be granted to any
Eligible Person selected by the Committee. The grant of an
Option shall first be effective upon the date it is approved by
the Committee, except to the extent the Committee shall specify a
later date upon which the grant of an Option shall first be
effective. Each Option shall be designated, at the discretion of
the Committee, as an Incentive Stock Option or a Nonqualified
Stock Option. The Company and the Optionee shall execute a Stock
Option Agreement which shall set forth such terms and conditions
of the Option as may be determined by the Committee to be
consistent with the Plan, and which may include additional
provisions and restrictions that are not inconsistent with the
Plan.
6.2. Option Price. The Option Price shall be
determined by the Committee; provided, however, such Option Price
shall in no event be less than 85 percent of the Fair Market
Value of a share of Common Stock on the Date of Grant; provided,
however, in the case of an Incentive Stock Option, such Option
Price shall in no event be less than 100% of the Fair Market
Value of a share of Common Stock on the Date of Grant (subject to
Section 8.1 hereof in the case of a Ten-Percent Owner).
6.3. Vesting; Term of Option. The Committee, in its
sole discretion, may prescribe in the Stock Option Agreement for
an Optionee the installment period over which an Option shall
vest and become exercisable, and may accelerate the
exercisability of any Option at any time. An Option may become
100 percent vested and exercisable upon an Optionee's death or
disability to the extent provided in. Article VII hereof. The
period during which a vested Option may be exercised shall be ten
years from the Date of Grant (subject to Section 8.1 hereof in
the case of a Ten-Percent Owner), unless a shorter exercise
period is specified by the Committee in the Stock Option
Agreement for an Optionee.
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6.4. Option Exercise. An Option may be exercised in
whole or in part at any time, with respect to whole shares only,
within the period permitted for the exercise thereof, and shall
be exercised by written notice of intent to exercise the Option
with respect to a specified number of shares delivered to the
Company at its principal office, and payment in full to the
Company at said office of the amount of the Option Price for the
number of shares of the Common Stock with respect to which the
Option is then being exercised. Payment of the Option Price
shall be made (i) in cash or by cash equivalent, (ii) at the
discretion of the Committee, in Common Stock (not subject to
limitations on transfer) valued at the Fair Market Value of such
shares on the trading date immediately preceding the date of
exercise or (iii) at the discretion of the Committee, by a
combination of such cash and such Common Stock. In addition to
and at the time of payment of the Option Price, the Optionee
shall pay to the Company in cash or, at the discretion of the
Committee, in Common Stock the full amount of all federal and
state withholding and other employment taxes applicable to the
taxable income of such Optionee resulting from such exercise.
6.5. Nontransferability of Option. No Option shall be
transferred by an Optionee other than by will or the laws of
descent and distribution. No transfer of an Option by the
Optionee by will or by laws of descent and distribution shall be
effective to bind the Company unless the Company shall have been
furnished with written notice thereof and an authenticated copy
of the will and/or such other evidence as the Committee may deem
necessary to establish the validity of the transfer. During the
lifetime of an Optionee, the Option shall be exercisable only by
him, except that, in the case of an Optionee who is legally
incapacitated, the Option shall be exercisable by his guardian or
legal representative.
6.6. Cancellation, Substitution and Amendment of
Options. The Committee shall have the authority to effect, at
any time and from time to time, with the consent of the affected
Optionees, (i) the cancellation of any or all outstanding Options
and the grant in substitution therefor of new Options covering
the same or different numbers of shares of Common Stock and
having an Option Price which may be the same as or different than
the Option Price of the canceled Options or (ii) the amendment of
the terms of any and all outstanding Options.
6.7. Right of First Refusal. At the time of grant, the
Committee may provide in connection with any grant made under the
Plan that the shares of Common Stock received pursuant to the
exercise of an Option shall be subject to a right of first
refusal, pursuant to which the Optionee shall be required to
offer to the Company any shares that the Optionee wishes to sell,
with the price being the then Fair Market Value of the Common
Stock, subject to such other terms and conditions as the
Committee may specify at the time of grant.
ARTICLE VII
TERMINATION OF EMPLOYMENT OR-SERVICE
7.1. Death. If an Optionee shall die at any time after
the Date of Grant and while he is an Eligible Person, the
executor or administrator of the estate of the decedent, or the
person or persons to whom an Option shall have been validly
transferred in accordance with Section 6.5 hereof pursuant to
will or the laws of descent and distribution, shall have the right,
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<PAGE>
during the period ending one year after the date of the
Optionee's death (subject to Sections 6.3 and 8.1 hereof
concerning the maximum term of an Option), to exercise the
Optionee's Option to the extent that it was exercisable at the
date of the Optionee's death and shall not have been previously
exercised. The Committee may determine at or after grant to make
any portion of his Option that is not exercisable at the date of
death immediately vested and exercisable.
7.2. Disability. If an Optionee's employment with or
service to the Company or any Subsidiary shall be terminated as a
result of his permanent and total disability (within the meaning
of Section 22(e)(3) of the Code) at any time after the Date of
Grant and while he is an Eligible Person, the Optionee (or in the
case of an Optionee who is legally incapacitated, his guardian or
legal representative) shall have the right, during a period
ending one year after the date of his disability (subject to
Sections 6.3 and 8.1 hereof concerning the maximum term of an
Option), to exercise such Option to the extent that it was
exercisable at the date of such termination of employment or
service and shall not have been exercised. The Committee may
determine at or after grant to make any portion of his Option
that is not exercisable at the date of termination of employment
or service due to disability immediately vested and exercisable.
7.3. Termination for Cause. If an Optionee's
employment with or service to the Company or any Subsidiary shall
be terminated for cause, the Optionee's right to exercise any
exercised portion of his Option shall immediately terminate and
all rights thereunder shall cease. For purposes of this Section
7.3 termination for "cause" shall include, but not be limited to,
embezzlement or misappropriation of corporate funds, any acts of
dishonesty resulting in conviction for a felony, misconduct
resulting in material injury to the Company or any Subsidiary,
significant activities harmful to the reputation of the Company
or any Subsidiary, a significant violation of Company or
Subsidiary policy, willful refusal to perform, or substantial
disregard of, the duties properly assigned to the Optionee, or a
significant violation of any contractual, statutory or common law
duty of loyalty to the Company or any Subsidiary. The Committee
shall have the power to determine whether the Optionee has been
terminated for cause and the date upon which such termination for
cause occurs. Any such determination shall be final, conclusive
and binding upon the Optionee.
7.4. Other Termination of Employment or Service. If an
Optionee's employment with or service to the Company or any
Subsidiary shall be terminated for any reason other than death,
permanent and total disability or termination for cause, the
Optionee shall have the right, during the period ending 90 days
after such termination (subject to Sections 6.3 and 8.1 hereof
concerning the maximum term of an Option), to exercise such
Option to the extent that it was exercisable at the date of such
termination of employment or service and shall not have been
exercised. For purposes of this Section 7.4, an Optionee shall
not be considered to have terminated employment with or service
to the Company or any Subsidiary until the expiration of the
period of any military, sick leave or other bona fide leave of
absence, up to a maximum period of 90 days (or such greater
period during which the Optionee is guaranteed reemployment
either by statute or contract).
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<PAGE>
ARTICLE VIII
INCENTIVE STOCK OPTIONS
8.1. Ten-Percent Owners. Notwithstanding any other
provisions of this Plan to the contrary, in the case of an
Incentive Stock Option granted to a Ten-Percent Owner, (i) the
period during which any such Incentive Stock Option may be
exercised shall not be greater than five years from the Date of
Grant and (ii) the Option Price of such Incentive Stock Option
shall not be less than 110 percent of the Fair Market Value of a
share of Common Stock on the Date of Grant.
8.2. Annual Limits. No Incentive Stock Option shall be
granted to an Optionee as a result of which the aggregate fair
market value (determined as of the date of grant) of the stock
with respect to which incentive stock options are exercisable for
the first time in any calendar year under the Plan, and any other
stock option plans of Company, any Subsidiary or any parent
corporation, would exceed $100,000, determined in accordance with
Section 422(d) of the Code. This limitation shall be applied by
taking options into account in the order in which granted.
8.3. Disqualifying Dispositions. If shares of Common
Stock acquired by exercise of an Incentive Stock Option are
disposed of within two years following the Date of Grant or one
year following the transfer of such shares to the Optionee upon
exercise, the Optionee shall, within 10 days after such
disposition, notify the Company in writing of the date and terms
of such disposition and provide such other information regarding
the disposition as the Committee may reasonably require.
8.4. Other Terms and Conditions. Any Incentive Stock
Option granted hereunder shall contain such additional terms and
conditions, not inconsistent with the terms of this Plan, as are
deemed necessary or desirable by the Committee, which terms,
together with terms of this Plan, shall be intended and
interpreted to cause such Incentive Stock Option to qualify as an
"incentive stock option" under Section 422 of the Code.
ARTICLE IX
STOCK CERTIFICATES
9.1. Issuance of Certificates. Subject to Section 9.2
hereof, the Company shall issue a stock certificate in the name
of the Optionee (or other person exercising the Option in
accordance with the provisions of the Plan) for the shares of
Common Stock purchased by exercise of an Option as soon as
practicable after due exercise and payment of the aggregate
Option Price for such shares. A separate stock certificate or
separate stock certificates shall be issued for any shares of
Common Stock purchased pursuant to the exercise of an Option that
is an Incentive Stock Option, which certificate or certificates
shall not include any shares of Common Stock that were purchased
pursuant to the exercise of an Option that is a Nonqualified
Stock Option.
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9.2. Conditions. The Company shall not be required to
issue or deliver any certificate for shares of Common Stock
purchased upon the exercise of any Option granted hereunder or
any portion thereof prior to fulfillment of all of the following
conditions:
(a) The completion of any registration or other
qualification of such shares, under any federal or state law or
under the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body, that the
Committee shall in its sole discretion deem necessary or
advisable;
(b) The obtaining of any approval or other clearance
from any federal or state governmental agency which the Committee
shall in its sole discretion determine to be necessary or
advisable;
(c) The lapse of such reasonable period of time
following the exercise of the Option as the Committee from time
to time may establish for reasons of administrative convenience;
(d) Satisfaction by the Optionee of all applicable
withholding taxes or other withholding liabilities; and
(e) If required by the Committee, in its sole
discretion, the receipt by the Company from an Optionee of (i) a
representation in writing that the shares of Common Stock
received upon exercise of an Option are being acquired for
investment and not with a view to distribution and (ii) such
other representations and warranties as are deemed necessary by
counsel to the Company.
9.3. Legends. The Company reserves the right to legend
any certificate for shares of Common Stock, conditioning sales of
such shares upon compliance with applicable federal and state
securities laws and regulations.
ARTICLE X
EFFECTIVE DATE, TERMINATION AND AMENDMENT
10.1. Effective Date. The Plan shall become
effective on the date of its adoption by the Board; provided,
however, that no Option shall be exercisable by an Optionee
unless and until the Plan shall have been approved by the
stockholders of the Company, which approval shall be obtained
within 12 months before or after the adoption of the Plan by the
Board. If the stockholders fail to approve the Plan within one
year from the Effective Date, any Options granted hereunder shall
be null and void and of no effect.
10. 2. Termination. The Plan shall terminate on the
date immediately preceding the tenth anniversary of the earlier
of the date the Plan is adopted by the Board or the date the Plan
is approved by the Company's stockholders. The Board may, in its
sole discretion and at any earlier date, terminate the Plan.
Notwithstanding the foregoing, no termination of the Plan shall
in any manner affect any Option theretofore granted without the
consent of the Optionee or the permitted transferee of the
Option.
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10.3. Amendment. The Board may at any time and
from time to time and in any respect, amend or modify the Plan;
provided, however, that, solely to the extent required by Rule
16b-3 under the Securities Exchange Act of 1934, the approval of
the Company's stockholders will be required for any amendment
that (i) changes the class of persons eligible for the grant of
an Option, as specified in Article III hereof, (ii) increases
(other than as described in Section 5.2 or 5.4 hereof) the
maximum number of shares of Common Stock subject to Options
granted under the Plan, as specified in Section 5.1 hereof, or
(iii) materially increases the benefits accruing to Optionees
under the Plan, within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934. Any such approval shall be by
the affirmative votes of the stockholders of the Company present,
or represented, and entitled to vote at a meeting duly held in
accordance with applicable state law and the Certificate of
Incorporation and By-Laws of the Company. Notwithstanding the
foregoing, no amendment or modification of the Plan shall in any
manner affect any Option theretofore granted without the consent
of the Optionee or the permitted transferee of the Option.
ARTICLE XI
MISCELLANEOUS
11.I. Employment. Nothing in the Plan, in the
grant of any Option or in any Stock Option Agreement shall confer
upon any Eligible Person the right to continue in the capacity in
which he is employed or retained by the Company or any
Subsidiary. Notwithstanding anything contained in the Plan to
the contrary, unless otherwise provided in a Stock Option
Agreement, no Option shall be affected by any change of duties or
position of the Optionee (including a transfer to or from the
Company or any Subsidiary), so long as such Optionee continues to
be an Eligible Person.
11.2. Rights as Shareholder. An Optionee or the
permitted transferee of an Option shall have no rights as a
shareholder with respect to any shares subject to such Option
prior to the purchase of such shares by exercise of such Option
as provided herein. Nothing contained herein or in the Stock
Option Agreement relating to any Option shall create an
obligation on the part of the Company to repurchase any shares of
Common Stock purchased hereunder.
11.3. Other Compensation and Benefit Plans. The
adoption of the Plan shall not affect any other stock option or
incentive or other compensation plans in effect for the Company
or any Subsidiary, nor shall the Plan preclude the Company from
establishing any other forms of incentive or other compensation
for employees of the Company or any Subsidiary. The amount of
any compensation deemed to be received by an Optionee as a result
of the exercise of an Option or the sale of shares received upon
such exercise shall not constitute compensation with respect to
which any other employee benefits of such Optionee are
determined, including, without limitation, benefits under any
bonus, pension, profit sharing, life insurance or salary
continuation plan, except as otherwise specifically determined by
the Board or the Committee or provided by the terms of such plan.
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11.4. Plan Binding on Successors. The Plan shall
be binding upon the Company, its successors and assigns, and the
Optionee, his executor, administrator and permitted transferees.
11.5. Construction and Interpretation. Whenever
used herein, nouns in the singular shall include the plural, and
the masculine pronoun shall include the feminine gender. Heading
of Articles and Sections hereof are inserted for convenience and
reference and constitute no part of the Plan.
11.6. Severability. If any provision of the Plan
or any Stock Option Agreement shall be determined to be illegal
or unenforceable by any court of law in any jurisdiction, the
remaining provisions hereof and thereof shall be severable and
enforceable in accordance with their terms, and all provisions
shall remain enforceable in any other jurisdiction.
11.7. Governing Law. The validity and construction
of this Plan and of the Stock Option Agreements shall be governed
by the laws of the State of Delaware.
11
[LETTERHEAD OF THELEN REID & PRIEST LLP]
October 5, 1998
Advanced Energy Industries, Inc.
1625 Sharp Point Drive
Fort Collins, CO 80525
Ladies and Gentlemen:
We have acted as counsel for Advanced Energy Industries, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 relating to the issuance and sale of common
stock, $0.001 par value, of the Company ("Common Stock"), pursuant to its
assumption of the RF Power Products, Inc. 1992 Stock Option Plan, RF Power
Products, Inc. 1993 Non-Employee Director Stock Option Plan and RF Power
Products, Inc. 1995 Stock Option Plan (collectively, the "Plans"), and the
options granted thereunder.
Please be advised that we are of the opinion that the Common Stock to be
offered and sold by the Company, when issued and paid for in the manner
contemplated by the Plans, will be legally issued, fully paid and
non-assessable.
We are members of the bar of the State of California and we express no
opinion as to the laws of any state or jurisdiction other than federal laws of
the United States, the laws of the State of California and the corporate laws of
the State of Delaware.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement on Form S-8.
Very truly yours,
/s/THELEN REID & PRIEST LLP
THELEN REID & PRIEST LLP
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on
Form S-8 of our report dated February 6, 1998 included in Advanced
Energy Industries, Inc.'s Form 10-K for the year ended December
31, 1997.
/s/ ARTHUR ANDERSEN LLP
Denver, Colorado
October 6, 1998
