z`<PAGE>
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
PRI AUTOMATION, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MASSACHUSETTS 04-2495703
(STATE OR OTHERJURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
805 MIDDLESEX TURNPIKE, BILLERICA, MASSACHUSETTS 01821-3986
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PRI AUTOMATION, INC.
1994 EMPLOYEE STOCK
PURCHASE PLAN (as amended)
PRI AUTOMATION, INC.
2000 EMPLOYEE STOCK
PURCHASE PLAN
PRI AUTOMATION, INC.
2000 STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
-------------------------
MITCHELL G. TYSON
President and Chief Executive Officer
PRI Automation, Inc.
805 Middlesex Turnpike
Billerica, Massachusetts 01821-3986
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(978) 670-4270
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
--------------------
WITH COPIES TO:
Robert L. Birnbaum, Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------- ---------------------- ------------------------ ---------------------- -------------------
Title of Proposed Proposed
securities Amount maximum maximum
to be to be offering price aggregate Amount of
registered registered per share (4) offering price registration fee
---------- ---------- -------------- -------------- -----------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value 350,000 (1) 50.24 17,584,000 $ 4,642.18
per share
Common Stock,
$0.01 par value 400,000 (2) 59.10 23,640,000 $ 6,240.96
per share
Common Stock,
$0.01 par value 70,000 (3) 50.24 3,516,800 $ 928.44
per share
- ------------------------- ---------------------- ------------------------ ---------------------- ------------------
TOTAL 820,000 44,740,800 $11,811.58
</TABLE>
(1) Represents shares issuable upon exercise of options granted
under the Company's 2000 Employee Stock Purchase Plan.
(2) Represents shares issuable upon exercise of options granted
under the Company's 2000 Stock Option Plan.
(3) Represents shares issuable upon exercise of options granted
under the Company's 2000 Employee Stock Purchase Plan.
(4) For shares issuable under the 2000 Stock Option Plan, calculated
pursuant to Rule 457(c) and (d) based on the average of the bid and ask
prices of the Common Stock on the Nasdaq Stock Market on March 30, 2000,
$59.10 (the "Nasdaq Price"). For shares issuable under the 1994 and 2000
Employee Stock Purchase Plans, calculated pursuant to Rule 457(c) and (d)
based on 85% of the Nasdaq Price.
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission are incorporated in this registration statement by reference:
(a) PRI's Annual Report on Form 10-K for the fiscal year ended
September 30, 1999, as filed with the Commission on December
23, 1999, as amended by PRI's Form 10-K/A, as filed with the
Commission on January 28, 2000;
(b) PRI's Quarterly Report on Form 10-Q for the quarter ended
January 2, 2000;
(c) PRI's definitive Proxy Statement used in connection with its
2000 Annual Meeting of Stockholders, as filed with the
Commission on February 7, 2000; and
(d) the description of PRI's common stock, par value $0.01 per share,
contained in the Registration Statement on Form 8-A filed with the
Commission on October 12, 1994 under Section 12 of the Securities
Exchange Act of 1934, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by PRI pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities registered hereby is being passed upon
for PRI by Foley, Hoag & Eliot LLP, Boston, Massachusetts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
<PAGE>
Article 6C of PRI's Restated Articles of Organization provides that PRI
(with certain exceptions) will indemnify and hold harmless to the fullest extent
authorized by the Massachusetts Business Corporation Law each person who was or
is made a party or is threatened to be made a party to or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative,
investigative or otherwise (hereinafter a "Proceeding"), by reason of the fact
that he or she is or was (a) a director of PRI, (b) an officer of PRI elected or
appointed by the stockholders or the Board of Directors, or (c) serving, at the
request of PRI as evidenced by a vote of the Board of Directors prior to the
occurrence of the event to which the indemnification relates, as a director,
officer, employee or other agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (such persons described in (a), (b) and (c) are sometimes
hereinafter referred to as "Indemnitees") against all expense, liability, and
loss reasonably incurred by any such Indemnitee in connection therewith. PRI may
also, to the extent authorized by the Board of Directors, grant rights to
indemnification, and to an advancement of expenses, to any employee or agent of
PRI. Notwithstanding the foregoing, if Massachusetts Business Corporation Law
requires, an advancement of expenses incurred by an Indemnitee will be made only
upon delivery to PRI of an undertaking, by or on behalf of such Indemnitee, to
repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is not further right to appeal that such
Indemnitee is not entitled to be indemnified for such expenses.
The rights under Article 6C may not be amended or terminated so as to
adversely affect an individual's rights with respect to the period prior to such
amendment without the consent of the person entitled to the indemnification
(unless otherwise required by the Massachusetts Business Corporation Law).
Section 67 of Chapter 156B of the Massachusetts Business Corporation
Law authorizes a corporation to indemnify its directors, officers, employees and
other agents unless such person shall have been adjudicated in any proceeding
not to have acted in good faith in the reasonable belief that his action was in
the best interests of the Corporation or to the extent that such matter relates
to service with respect to an employee benefit plan, in the best interests of
the participants of such employee benefit plan.
The effect of these provisions would be to authorize such
indemnification by PRI for liabilities arising out of the Securities Act of
1933.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Foley, Hoag & Eliot LLP
10.1 PRI Automation, Inc. 1994 Employee Stock Purchase Plan (as
amended)
10.2 PRI Automation, Inc. 2000 Employee Stock Purchase Plan (as
amended)
10.3 PRI Automation, Inc. 2000 Stock Option Plan
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)
<PAGE>
24.1 Power of Attorney (contained on the signature page)
ITEM 9. UNDERTAKINGS.
1. The undersigned registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(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)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the registration statement.
(b) that, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director,
<PAGE>
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Billerica, Massachusetts, on this 31st day of March,
2000.
PRI AUTOMATION, INC.
By:/s/ MITCHELL G. TYSON
-----------------------------------------
Mitchell G. Tyson
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Mitchell G. Tyson and Cosmo Trapani,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
which they, or any of them, may deem necessary or advisable to be done in
connection with this Registration Statement, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or any
substitute or substitutes for him, any or all of them, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Mordechai Wiesler Chairman of the Board of Directors March 31, 2000
- -------------------------------------
Mordechai Wiesler
/s/ Mitchell G. Tyson Chief Executive Officer, President and March 31, 2000
- ------------------------------------- Director (PRINCIPAL EXECUTIVE OFFICER)
Mitchell G. Tyson
/s/ Cosmo Trapani Chief Financial Officer March 31, 2000
- ------------------------------------- (PRINCIPAL FINANCIAL AND ACCOUNTING
Cosmo Trapani OFFICER)
/s/ Alexander V. d'Arbeloff Director March 31, 2000
- -------------------------------------
Alexander V. d'Arbeloff
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Boruch B. Frusztajer Director March 31, 2000
- -------------------------------------
Boruch B. Frusztajer
/s/ Amram Rasiel Director March 31, 2000
- -------------------------------------
Amram Rasiel
/s/ Kenneth M. Thompson Director March 31, 2000
- -------------------------------------
Kenneth M. Thompson
</TABLE>
<PAGE>
EXHIBIT INDEX
5.1 Opinion of Foley, Hoag & Eliot LLP
10.1 PRI Automation, Inc. 1994 Employee Stock Purchase Plan (as
amended)
10.2 PRI Automation, Inc. 2000 Employee Stock Purchase Plan (as
amended)
10.3 PRI Automation, Inc. 2000 Stock Option Plan
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF FOLEY HOAG & ELIOT LLP]
March 31, 2000
PRI Automation, Inc.
805 Middlesex Turnpike
Billerica, Massachusetts 01821-3986
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-8 (the "S-8
Registration Statement") filed today by PRI Automation, Inc., a Massachusetts
corporation (the "Company"), with the Securities and Exchange Commission
under the Securities Act of 1933, as amended. The S-8 Registration Statement
relates to the proposed offering by the Company of 820,000 shares (the
"Shares") of its common stock, par value $0.01 per share (the "Common
Stock"), issuable upon exercise of stock options granted pursuant to the
Company's 1994 Employee Stock Purchase Plan (as amended), 2000 Employee Stock
Purchase Plan and 2000 Stock Purchase Plan (the "Plans").
In arriving at the opinion expressed below, we have examined and relied
on the following documents:
1. The Restated Articles of Organization, as amended, and the
Amended and Restated By-Laws of the Company.
2. The records of meetings and consents of the Board of Directors
and stockholders of the Company provided to us by the Company.
3. The Plans.
<PAGE>
PRI Automation, Inc.
March 31, 1999
Page 2
In addition, we have examined and relied on the originals or copies certified
or otherwise identified to our satisfaction of all such corporate records of
the Company and such other instruments and other certificates of public
officials, officers and representatives of the Company and such other
persons, and we have made such investigations of law, as we have deemed
appropriate as a basis for the opinions expressed below.
Based upon the foregoing, it is our opinion that:
1. The Company has corporate power adequate for the issuance of the
Shares in accordance with the S-8 Registration Statement.
2. The Company has taken all necessary corporate action required to
authorize the issuance and sale of the Shares.
3. When certificates for the Shares have been duly executed and
countersigned, and delivered against due receipt of the exercise
price for the Shares as described in the options relating
thereto and the Plans, the Shares will be legally issued, fully
paid and non-assessable.
We here consent to the filing of this opinion as an exhibit to the
S-8 Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By: /s/ Robert L. Binabaum
-------------------------
a Partner
<PAGE>
EXHIBIT 10.1
APPENDIX C
PRI AUTOMATION, INC.
1994 EMPLOYEE STOCK PURCHASE PLAN
(AS AMENDED)
1. PURPOSE.
The PRI Automation, Inc. Employee Stock Purchase Plan (the "Plan") is
intended to provide a method whereby employees of PRI Automation, Inc. (the
"Company") will have an opportunity to acquire an ownership interest (or
increase an existing ownership interest) in the Company through the purchase of
shares of the Common Stock of the Company. It is the intention of the Company
that the Plan qualify as an "employee stock purchase plan" under Section 423 of
the Internal Revenue Code of 1986, as amended (the "Code"). The provisions of
the Plan shall, accordingly, be construed so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code.
2. DEFINITIONS.
(a) "Board" means the Board of Directors of the Company.
(b) "Code" shall have the meaning set forth in Paragraph 1.
(c) "Committee" means the Compensation Committee of the Board.
(d) "Common Stock" means the common stock, $.01 par value per share, of the
Company.
(e) "Company" shall also include any subsidiary of PRI Automation, Inc.
designated as a participant in the Plan by the Board, unless the context
otherwise requires.
(f) "Compensation" means, for the purpose of any Offering pursuant to this
Plan, base pay in effect as of the Offering Commencement Date (as hereinafter
defined). Compensation shall not include any deferred compensation other than
contributions by an individual through a salary reduction agreement to a cash or
deferred plan pursuant to Section 401(k) of the Code or to a cafeteria plan
pursuant to Section 125 of the Code.
(g) "Employee" means any person who is customarily employed at least
20 hours per week and more than five months in a calendar year by (i) the
Company or (ii) any subsidiary corporation.
(h) "Investment Accounts" shall have the meaning set forth in Paragraph 9.
(i) "Offering" shall have the meaning set forth in Paragraph 4.
(j) "Offering Commencement Date" shall have the meaning set forth in
Paragraph 4.
(k) "Offering Termination Date" shall have the meaning set forth in
Paragraph 4.
(l) "Plan" shall have the meaning set forth in Paragraph 1.
(m) "Subsidiary corporation" shall mean any present or future corporation
which is or would constitute a "subsidiary corporation" as that term is defined
in Section 425 of the Code.
3. ELIGIBILITY.
(a) Participation in the Plan is completely voluntary. Participation in any
one or more of the offerings under the Plan shall neither limit, nor require,
participation in any other offering.
C-1
<PAGE>
(b) Each employee of the Company shall be eligible to participate in the
Plan on the first Offering Commencement Date, as hereafter defined, his becoming
an employee. Notwithstanding the foregoing, no employee shall be granted an
option under the Plan:
(i) if, immediately after the grant, such employee would own stock,
and/or hold outstanding options to purchase stock, possessing 5% or more of
the total combined voting power or value of all classes of stock of the
Company or any subsidiary corporation; for purposes of this Paragraph the
rules of Section 425(d) of the Code shall apply in determining stock
ownership of any employee; or
(ii) which permits his rights to purchase stock under all Section 423
employee stock purchase plans of the Company and its subsidiary corporations
to exceed $25,000 of the fair market value of the stock (determined at the
time such option is granted) for each calendar year in which such option is
outstanding; for purposes of this Paragraph, the rules of Section 423(b)(8)
of the Code shall apply.
4. OFFERING DATES.
The right to purchase stock hereunder shall be made available by a series of
six-month offerings (the "Offering" or "Offerings") to employees eligible in
accordance with Paragraph 3 hereof. The Committee will, in its discretion,
determine the applicable date of commencement ("Offering Commencement Date") and
termination date ("Offering Termination Date") for each Offering. Participation
in any one or more of the Offerings under the Plan shall neither limit, nor
require, participation in any other Offering.
5. PARTICIPATION.
Any eligible employee may become a participant by completing a payroll
deduction authorization form provided by the Company and filing it with the
office of the Company's Treasurer 20 days prior to each applicable Offering
Commencement Date, as determined by the Committee pursuant to Paragraph 4.
6. PAYROLL DEDUCTIONS.
(a) At the time a participant files his authorization for a payroll
deduction, he shall elect to have deductions made from his pay on each payday
during any Offering in which he is a participant at a specified percentage of
his Compensation as determined on the applicable Offering Commencement Date;
said percentage shall be in increments of one percent up to a maximum percentage
of ten percent.
(b) Payroll deductions for a participant shall commence on the applicable
Offering Commencement Date when his authorization for a payroll deduction
becomes effective and shall end on the Offering Termination Date of the Offering
to which such authorization is applicable unless sooner terminated by the
participant as provided in Paragraph 10.
(c) All payroll deductions made for a participant shall be credited to his
account under the Plan. A participant may not make any separate cash payment
into such account.
(d) A participant may withdraw from the Plan at any time during the
applicable Offering period; provided, however, that a participant who is an
officer or director of the Company and who withdraws from the Plan during any
Offering period will not be eligible for the grant of any subsequent option
under the Plan for a period of six months.
C-2
<PAGE>
7. GRANTING OF OPTION.
(a) Except as set forth in Paragraph 7(c) hereof, on the Offering
Commencement Date of each Offering, a participating employee shall be deemed to
have been granted an option to purchase a maximum number of shares of the Common
Stock equal to an amount determined as follows: 85% of the market value per
share of the Common Stock on the applicable Offering Commencement Date shall be
divided into an amount equal to the percentage of the employee's Compensation
which he has elected to have withheld (but no more than 10%) multiplied by the
employee's Compensation over the Offering period. Such market value per share of
the Common Stock shall be determined as provided in clause (i) of
Paragraph 7(b).
(b) The option price of the Common Stock purchased with payroll deductions
made during each such Offering for a participant therein shall be the lower of:
(i) 85% of the average of the bid and the asked prices as reported by
the National Association of Securities Dealers Automated Quotation
System, Inc. ("NASDAQ") in the Wall Street Journal, or, if the Common Stock
is designated as a national market security by the National Association of
Securities Dealers, Inc. ("NASD") the last trading price of the Common Stock
as reported by the NASDAQ National Market System in the Wall Street Journal,
or, if the Common Stock is listed on an exchange the closing price of the
Common Stock on the exchange on the Offering Commencement Date applicable to
such Offering (or on the next regular business date on which shares of the
Common Stock shall be traded in the event that no shares of the Common Stock
have been traded on the Offering Commencement Date); or if the Common Stock
is not quoted on NASDAQ, not designated as a NASDAQ national market security
and not listed on an exchange, 85% of the fair market value on the Offering
Commencement Date as determined by the Committee; and
(ii) 85% of the average of the bid and the asked prices as reported by
NASDAQ in the Wall Street Journal, or, if the Common Stock is designated as
a national market security by the NASD the last trading price of the Common
Stock as reported by the NASDAQ National Market System in the Wall Street
Journal, or, if the Common Stock is listed on an exchange the closing price
of the Common Stock on the exchange on the Offering Termination Date
applicable to such Offering (or on the next regular business date on which
shares of the Common Stock shall be traded in the event that no shares of
the Common Stock shall have been traded on the Offering Termination Date);
or if the Common Stock is not quoted on NASDAQ, not designated as a national
market security and not listed on an exchange, 85% of the fair market value
on the Offering Termination Date as determined by the Committee.
(c) A participant who is an officer or director of the Company and who
elects pursuant to Paragraph 8(a) with respect to any Offering not to exercise
an option deemed to have been granted pursuant to this Paragraph 7, shall not be
eligible for the grant of an option hereunder for a period of six months.
8. EXERCISE OF OPTION.
(a) Unless a participant gives written notice to the Treasurer of the
Company as hereinafter provided, his option for the purchase of Common Stock
with payroll deductions made during any Offering will be deemed to have been
exercised automatically on the Offering Termination Date applicable to such
Offering for the purchase of the number of full shares of Common Stock which the
accumulated payroll deductions in his account at that time will purchase at the
applicable option price (but not in excess of the number of shares for which
options have been granted the employee pursuant to Paragraph 7(a)), and any
excess in his account at that time will be automatically carried forward to the
next Offering unless the participant elects, by written notice to the Treasurer
of the Company, to have the excess returned to him.
C-3
<PAGE>
(b) Fractional shares will not be issued under the Plan and any accumulated
payroll deductions which would have been used to purchase fractional shares
shall be automatically carried forward to the next Offering unless the
participant elects, by written notice to the Treasurer of the Company, to have
the excess cash returned to him.
9. INVESTMENT ACCOUNTS.
All shares of Common Stock purchased pursuant to Paragraph 8 shall be held
in separate investment accounts ("Investment Accounts") maintained by such
brokerage house, investment banking firm, commercial bank or other such similar
institution as may be selected by the Board for the participants. Each
Investment Account shall be in the name of the participating employee. All
dividends, if any, paid with respect to shares of Common Stock in a
participant's Investment Account shall be credited to his or her Investment
Account. Each participant shall have all of the rights and privileges of a
stockholder of the Company with respect to those shares purchased under the Plan
and held in his or her Investment Account.
10. WITHDRAWAL AND TERMINATION.
(a) Prior to the Offering Termination Date for an Offering, any participant
may withdraw the payroll deductions credited to his account under the Plan for
such Offering by giving written notice to the Treasurer of the Company. All of
the participant's payroll deductions credited to such account will be paid to
him promptly after receipt of notice of withdrawal, without interest, and no
future payroll deductions will be made from his pay during such offering. The
Company will treat any attempt to borrow by a participant on the security of
accumulated payroll deductions as an election to withdraw such deductions.
(b) Except as set forth in Paragraphs 6(d) and 7(c), a participant's
election not to participate in, or withdrawal from, any Offering will not have
any effect upon his eligibility to participate in any succeeding Offering or in
any similar plan which may hereafter be adopted by the Company.
(c) Upon termination of the participant's employment for any reason,
including retirement but excluding death, the payroll deductions credited to his
account will be returned to him, or, in the case of his death, to the person or
persons entitled thereto under Paragraph 14.
(d) Upon termination of the participant's employment because of death, his
beneficiary (as defined in Paragraph 14) shall have the right to elect, by
written notice given to the Company's Treasurer prior to the expiration of a
period of 90 days commencing with the date of the death of the participant,
either:
(i) to withdraw all of the payroll deductions credited to the
participant's account under the Plan; or
(ii) to exercise the participant's option for the purchase of stock on
the Offering Termination Date next following the date of the participant's
death for the purchase of the number of full shares which the accumulated
payroll deductions in the participant's account at the date of the
participant's death will purchase at the applicable option price (subject to
the limitation contained in Paragraph 7(a)), and any excess in such account
will be returned to said beneficiary. In the event that no such written
notice of election shall be duly received by the office of the Company's
Treasurer, the beneficiary shall automatically be deemed to have elected to
withdraw the payroll deductions credited to the participant's account at the
date of the participant's death and the same will be paid promptly to said
beneficiary.
C-4
<PAGE>
11. INTEREST.
No interest will be paid or allowed on any money paid into the Plan or
credited to the account of any participating employee.
12. STOCK.
(a) The maximum number of shares of Common Stock available for issuance and
purchase by employees under the Plan, subject to adjustment upon changes in
capitalization of the Company as provided in Paragraph 17, shall be 520,000
shares of Common Stock, $.01 par value per share, of the Company. If the total
number of shares for which options are exercised on any Offering Termination
Date in accordance with Paragraph 8 exceeds the maximum number of shares for the
applicable Offering, the Company shall make a pro rata allocation of the shares
available for delivery and distribution in an equitable manner, with the
balances of payroll deductions credited to the account of each participant under
the Plan carried forward to the next Offering or returned to the participant if
he so chooses, by giving written notice to the Treasurer to this effect.
(b) The participant will have no interest in stock covered by his option
until such option has been exercised.
(c) The shares of stock purchased by a participant who is an officer or
director of the Company, or a beneficiary of a participant who was an officer or
director of the Company pursuant to Paragraph 14 hereof, at each Offering
Termination Date may not be sold or transferred by such participant or
beneficiary for a period of six months following such Offering Termination Date.
Certificates representing said shares of stock issued pursuant to this Plan may
bear legends to that effect.
13. ADMINISTRATION.
The Plan shall be administered by the Committee. The interpretation and
construction of any provision of the Plan and adoption of rules and regulations
for administering the Plan shall be made by the Committee. Determinations made
by the Committee with respect to any matter or provision contained in the Plan
shall be final, conclusive and binding upon the Company and upon all
participants, their heirs or legal representatives. Any rule or regulation
adopted by the Committee shall remain in full force and effect unless and until
altered, amended, or repealed by the Committee.
14. DESIGNATION OF BENEFICIARY.
A participant shall file with the Treasurer of the Company a written
designation of a beneficiary who is to receive any Common Stock and/or cash
under the Plan. Such designation of beneficiary may be changed by the
participant at any time by written notice. Upon the death of a participant and
upon receipt by the Company of proof of the identity and existence at the
participant's death of a beneficiary validly designated by him under the Plan,
the Company shall deliver such Common Stock and/or cash to such beneficiary. In
the event of the death of a participant and in the absence of a beneficiary
validly designated under the Plan who is living at the time of such
participant's death, the Company shall deliver such Common Stock and/or cash to
the executor or administrator of the estate of the participant. No beneficiary
shall prior to the death of the participant by whom he has been designated,
acquire any interest in the Common Stock and/or cash credited to the participant
under the Plan.
15. TRANSFERABILITY.
Neither payroll deductions credited to a participant's account nor any
rights with regard to the exercise of an option or to receive Common Stock under
the Plan may be assigned, transferred, pledged, or otherwise disposed of in any
way by the participant other than by will or the laws of descent and
distribution. Any such attempted assignment, transfer, pledge, or other
disposition shall be
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without effect, except that the Company may treat such act as an election to
withdraw funds in accordance with Paragraph 8(b).
16. USE OF FUNDS.
All payroll deductions received or held by the Company under this Plan may
be used by the Company for any corporate purpose, and the Company shall not be
obligated to segregate such payroll deductions.
17. EFFECT OF CHANGES OF COMMON STOCK.
If the Company shall subdivide or reclassify the Common Stock which has been
or may be optioned under this Plan, or shall declare thereon any dividend
payable in shares of such Common Stock, or shall take any other action of a
similar nature affecting such Common Stock, then the number and class of shares
of Common Stock which may thereafter be optioned (in the aggregate and to any
participant) shall be adjusted accordingly and in the case of each option
outstanding at the time of any such action, the number and class of shares which
may thereafter be purchased pursuant to such option and the option price per
share shall be adjusted to such extent as may be determined by the Committee,
with the approval of independent public accountants and counsel, to be necessary
to preserve the rights of the holder of such option.
18. AMENDMENT OR TERMINATION.
The Board may at any time terminate or amend the Plan. No such termination
shall affect options previously granted, nor may an amendment make any change in
any option theretofore granted which would adversely affect the rights of any
participant holding options under the Plan.
19. NOTICES.
All notices or other communications by a participant to the Company under or
in connection with the Plan shall be deemed to have been duly given when
received by the Treasurer of the Company.
20. MERGER OR CONSOLIDATION.
If the Company shall at any time merge into or consolidate with another
corporation, the holder of each option then outstanding will thereafter be
entitled to receive at the next Offering Termination Date upon the exercise of
such option for each share as to which such option shall be exercised, the
securities or property which a holder of one share of the Common Stock was
entitled to upon and at the time of such merger or consolidation. In accordance
with this Paragraph and Paragraph 17, the Committee shall determine the kind and
amount of such securities or property which such holder of an option shall be
entitled to receive. A sale of all or substantially all of the assets of the
Company shall be deemed a merger or consolidation for the foregoing purposes.
21. APPROVAL OF STOCKHOLDERS.
The Plan is subject to the approval of the stockholders of the Company at
their next annual meeting or at any special meeting of the stockholders for
which one of the purposes of such a special meeting shall be to act upon the
Plan.
22. GOVERNMENTAL AND OTHER REGULATIONS.
The Plan, and the grant and exercise of the rights to purchase shares
hereunder, and the Company's obligation to sell and deliver shares upon the
exercise of rights to purchase shares, shall be subject to all applicable
federal, state and foreign laws, rules and regulations, and to such approvals by
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any regulatory or governmental agency as may, in the opinion of counsel for the
Company, be required. The Plan shall be governed by, and construed and enforced
in accordance with, the provisions of Sections 421, 423 and 424 of the Code and
the substantive laws of the Commonwealth of Massachusetts. In the event of any
inconsistency between such provisions of the Code and any such laws, said
provisions of the Code shall govern to the extent necessary to preserve
favorable federal income tax treatment afforded employee stock purchase plans
under Section 423 of the Code.
* * *
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EXHIBIT 10.2
APPENDIX B
PRI AUTOMATION, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
PURPOSE, SCOPE AND ADMINISTRATION OF THE PLAN
1.1 PURPOSE AND SCOPE
The purpose of the PRI Automation, Inc. 2000 Employee Stock Purchase Plan is
to assist employees of PRI Automation, Inc. and its subsidiaries in acquiring a
stock ownership interest in the Company pursuant to a plan which is intended to
qualify as an "employee stock purchase plan" under Section 423 of the Internal
Revenue Code of 1986, as amended.
1.2 ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Committee. The Committee shall have
the power to make, amend and repeal rules and regulations for the interpretation
and administration of the Plan consistent with the qualification of the plan
under Section 423 of the Code, and the Committee also is authorized to change
the Option Periods, Offering Dates and Exercise Dates under the Plan by
providing written notice to all Employees at least 15 days prior to the date
following which such changes will take effect. The Committee may delegate
administrative tasks under the Plan to one or more agents. The Committee's
interpretation and decisions in respect to the Plan shall be final and
conclusive.
ARTICLE II
DEFINITIONS
Whenever the following terms are used in this Plan, they shall have the
meaning specified below unless the context clearly indicates to the contrary.
The singular pronoun shall include the plural where the context so indicates.
2.1 "BOARD" shall mean the Board of Directors of the Company.
2.2. "CODE" shall mean the Internal Revenue Code of 1986, as amended.
2.3 "COMMITTEE" shall mean the Compensation Committee of the Board, which
Committee shall administer the Plan as provided in Section 1.2 hereof.
2.4 "COMMON STOCK" shall mean shares of common stock of the Company.
2.5 "COMPANY" shall mean PRI Automation, Inc..
2.6 "COMPENSATION" shall mean for the purpose of any offering pursuant to the
Plan, base pay. Compensation shall not include any deferred compensation
other than contributions by an Employee through a salary reduction agreement
to a cash or deferred plan pursuant to Section 401(k) of the Code, or to a
cafeteria plan pursuant to Section 125 of the Code.
2.7 "ELIGIBLE EMPLOYEE" shall mean an Employee (a) who is employed by the
Company or a Subsidiary (b) who is customarily scheduled to work at least
20 hours per week and (c) whose customary employment is more than five
(5) months in a calendar year.
2.8 "EMPLOYEE" shall mean any employee of the Company or a Subsidiary.
2.9 "EXERCISE DATE" shall mean each March 31 and September 30.
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2.10 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
2.11 "FAIR MARKET VALUE" of a share of Common Stock as of a given date shall
mean (i) the average of the closing price of Common Stock on the trading
date previous to such date on a recognized national securities exchanges,
or, if not listed on any such exchange on the trading date previous to such
date, the last sale price reported in the NASDAQ System as of 4:00 p.m.,
New York time on the trading date previous to such date, or (iii) if on any
date such securities are not quoted in the NASDAQ System, the fair market
value of a share of Common Stock as established by the Committee acting in
good faith.
2.12 "OFFERING DATE" shall mean each April 1 and October 1; provided, however,
that the first Offering Date under the Plan shall be April 1, 2000.
2.13 "OPTION PERIOD" shall mean the period beginning on an Offering Date and
ending on the next succeeding Exercise Date.
2.14 "OPTION PRICE" shall mean the purchase price of a share of Common Stock
hereunder as provided in Section 4.1 hereof.
2.15 "PARTICIPANT" shall mean any Eligible Employee who elects to participate.
2.16 "PLAN" shall mean this PRI Automation, Inc. 2000 Employee Stock Purchase
Plan, as the same may be amended from time to time.
2.17 "PLAN ACCOUNT" shall mean a bookkeeping account established and maintained
by the Company in the name of each Participant.
2.18 "SUBSIDIARY" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other
than the last corporation in the unbroken chain then owns stock possessing
50% or more of the total combined voting power of all classes of stock in
one of the other corporations in such chain.
ARTICLE III
PARTICIPATION
3.1 ELIGIBILITY
An Eligible Employee may participate in the Plan if immediately after the
applicable Offering Date, such Employee would not be deemed for purposes of
Section 423(b)(3) of the Code to possess 5% or more of the total combined voting
power or value of all classes of stock of the Company or any Subsidiary.
3.2 ELECTION TO PARTICIPATE; PAYROLL DEDUCTIONS
(a) An Eligible Employee may participate in the Plan only by means of
payroll deduction. An Eligible Employee may elect to participate in the Plan
during on Option Period by delivering to the Company in the calendar month
preceding the Offering Date on which such initial Option Period commences a
written payroll deduction authorization on a form prescribed by the Company.
(b) Payroll deductions shall be equal to at least 1%, but not more than
10%, of the Participant's Compensation. Amounts deducted from a Participant's
Compensation pursuant to this Section 3.2 shall be credited to the Participant's
Plan Account.
(c) The Committee shall be entitled to amend the maximum payroll deduction
percentage as to any future Option Periods; provided, however, the maximum
payroll deduction shall not exceed 15% of the Participant's Compensation.
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ARTICLE IV
PURCHASE OF SHARES
4.1 OPTION PRICE
The Option Price per share of the Common Stock sold to Participants
hereunder shall be 85% of the Fair Market Value of such share on either the
Offering Date or the Exercise Date of the Option Period, whichever is lower, but
in no event shall the Option Price per share be less than the par value per
share of the Common Stock.
4.2 PURCHASE OF SHARES
(a) On each Exercise Date on which he or she is employed, each Participant
will automatically and without any action on his or her part be deemed to have
exercised his or her option to purchase at the Option Price the largest number
of whole shares of Common Stock which can be purchased with the amount in the
Participant's Plan Account. The balance, if any, other than amounts representing
fractional shares remaining in the Participant's Plan Account (after exercise of
his or her option) as of an Exercise Date shall be returned to the Participant.
Fractional shares will not be issued under the Plan and any accumulated payroll
deductions which would have otherwise been used to purchase such shares shall be
automatically forwarded to the next Offering Period, unless the Participant
elects to have such amounts returned to him or her.
(b) As soon as practicable following each Exercise Date, the Company will
deliver to the Participant a certificate issued in his or her name for such
number of shares purchased by such Participants pursuant to subsection
(a) above, or by depositing said shares in the Participant's brokerage account
at a stock broker designated by the Company. In the event the Company is
required to obtain from any commission or agency authority to issue any such
certificate, the Company will seek to obtain such authority. Inability of the
Company to obtain from any such commission or agency authority which counsel for
the Company deems necessary for the lawful issuance of any such certificate
shall relieve the Company from liability to any Participant except to refund to
him or her the amount withheld.
4.3 LIMITATIONS ON PURCHASE
No Employee shall be granted an option under the Plan which permits his or
her rights to purchase Common Stock under the Plan or any other employee stock
purchase plan of the Company, or any of its Subsidiaries to accrue at a rate
which exceeds $25,000 (as measured by the Fair Market Value of such Common Stock
at the time the option is granted) for each calendar year such option is
outstanding. No Employee may purchase during any Option Period more than 1,000
shares. For purposes of this Section 4.3, the right to purchase Common Stock
under an option accrues when the option (or any portion thereof) becomes
exercisable, and the right to purchase Common Stock which has accrued under one
option under the Plan may not be carried over to any other option.
4.4 TRANSFERABILITY OF RIGHTS
An option granted under the Plan shall not be transferable and is
exercisable only by the Participant. No option or interest or right therein or
part thereof shall be liable for the debts, contracts or engagements of the
Participant or his or her successors in interest or shall be subject to
disposition by alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by operation
of law by judgment, levy, attachment, garnishment or any other legal or
equitable proceedings (including bankruptcy), and any attempt at disposition
thereof shall be null and void and of no effect.
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ARTICLE V
PROVISIONS RELATING TO COMMON STOCK
5.1 COMMON STOCK RESERVED
There shall be 350,000 authorized but unissued or reacquired shares of
Common Stock reserved for issuance pursuant to this Plan, subject to adjustment
in accordance with Section 5.2 hereof.
5.2 ADJUSTMENT FOR CHANGES IN COMMON STOCK
In the event that adjustments are made in the number of outstanding shares
of Common Stock or the shares are exchanged for a different class of stock of
the Company by reason of a stock dividend, stock split or other subdivision, the
Committee shall make appropriate adjustments in (a) the number and class of
shares or other securities that may be reserved for purchase hereunder, (b) the
Option Price of outstanding options and (c) the maximum number of shares that an
Employee may purchase under the second sentence of Section 4.3.
5.3 MERGER, ACQUISITION OR LIQUIDATION
In the event of the merger or consolidation of the Company into another
corporation, the acquisition by another corporation of all or substantially all
of the Company's assets or 80% or more of the Company's then outstanding voting
stock or the liquidation or dissolution of the Company, the date of exercise
with respect to outstanding options shall be the business day immediately
preceding the effective date of such merger, consolidation, acquisition,
liquidation or dissolution unless the Committee shall, in its sole discretion,
provide for the assumption or substitution of such options in a manner complying
with Section 424(a) of the Code.
5.4 INSUFFICIENT SHARES
If the aggregate funds available for the purchase of Common Stock on any
Exercise Date would cause an issuance of shares in excess of the number provided
for in Section 5.1 hereof, (a) the Committee shall proportionately reduce the
number of shares that would otherwise be purchased by each Participant in order
to eliminate such excess, and (b) the Plan shall automatically terminate
immediately after such Exercise Date.
5.5 RIGHTS AS STOCKHOLDERS
With respect to shares of Common Stock subject to an option, a Participant
shall not be deemed to be a stockholder and shall not have any of the rights or
privileges of a stockholder. A Participant shall have the rights and privileges
of a stockholder when, but not until, a certificate for shares has been issued
to him or her following exercise of his or her option.
ARTICLE VI
TERMINATION OF PARTICIPATION
6.1 CESSATION OF CONTRIBUTIONS; VOLUNTARY WITHDRAWAL
(a) A Participant may cease payroll deductions during an Option Period by
delivering written notice of such cessation to the Company. Upon any such
cessation, such Participant may elect either to withdraw from the Plan pursuant
to subsection (b) below or to have amounts credited to his or her Plan Account
held in the Plan for the purchase of Common Stock pursuant to Section 4.2. A
Participant who ceases contributions to the Plan during any Option Period shall
not be permitted to resume contributions to the Plan during such Option Period.
(b) A Participant may withdraw from the Plan at any time by written notice
to the Company prior to the close of business on an Exercise Date. Within
21 days after the notice of withdrawal is delivered, the Company shall refund
the entire amount, if any, in a Participant's Plan Account to him or her, and
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thereupon, the Participant's payroll deduction authorization, his or her
interest in the Plan and his or her option under the Plan shall terminate. Any
Eligible Employee who withdraws from the Plan may again become a Participant in
accordance with Section 3.2 hereof.
6.2 TERMINATION OF ELIGIBILITY
(a) If a Participant ceases to be eligible under Section 3.1 hereof for any
reason, the amount in such Participant's Plan Account will be refunded to the
Participant or his or her designated beneficiary or estate within 21 days of his
or her termination of employment or other cessation of eligibility.
(b) Upon payment by the Company to the Participant or his or her beneficiary
or estate of the remaining balance, if any, in the Participant's Plan Account,
the Participant's interest in the Plan and the Participant's option under the
Plan shall terminate.
ARTICLE VII
GENERAL PROVISIONS
7.1 CONDITIONS OF EMPLOYMENT
Neither the creation of the Plan nor an Employee's participation therein
shall be deemed to create any right of continued employment or in any way affect
the right of the Company or a Subsidiary to terminate an Employee at any time
with or without cause.
7.2 AMENDMENT ON TERMINATION OF THE PLAN
The Board may at any time terminate or amend the Plan. No such termination
shall affect options previously granted, nor may an amendment make any change in
any option theretofore granted which would adversely affect the rights of any
participant holding options under the Plan.
7.3 USE OF FUNDS; NO INTEREST PAID
All funds received by the Company by reason of purchase of Common Stock
hereunder will be included in the general funds of the Company free of any trust
or other restriction and may be used for any corporate purpose. No interest will
be paid to any Participant or credited under the Plan.
7.4 TERM; APPROVAL BY STOCKHOLDERS
The Plan shall terminate on the tenth anniversary of the date of its initial
approval by the stockholders of the Company, unless earlier terminated by action
of the Board. No option may be granted during any period of suspension of the
Plan nor after termination of the Plan. The Plan will be submitted for the
approval of the Company's stockholders within 12 months after the date of the
Board's initial adoption of the Plan. Options may be granted prior to such
stockholder approval; provided, however, that such options shall not be
exercisable prior to the time when the Plan is approved by the stockholders;
provided further that if such approval has not been obtained by the end of said
12-month period, all options previously granted under the Plan shall thereupon
be canceled and become null and void.
7.5 EFFECT UPON OTHER PLANS
The adoption of the Plan shall not affect any other compensation or
incentive plans in effect for the Company or any Subsidiary. Nothing in this
Plan shall be construed to limit the right of the Company or any Subsidiary
(a) to establish any other forms of incentives or compensation for employees of
the Company or any Subsidiary or (b) to grant or assume options otherwise than
under this Plan in connection with any proper corporate purpose, including, but
not by way of limitation, the grant or assumption of options in connection with
the acquisition, by purchase, lease, merger, consolidation or otherwise, of the
business, stock or assets of any corporation, firm or association.
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7.6 CONFORMITY TO SECURITIES LAWS
Notwithstanding any other provision of this Plan, this Plan and the
participation in this Plan by any individual who is then subject to Section 16
of the Exchange Act shall be subject to any additional limitations set forth in
any applicable exemptive rule under Section 16 of the Exchange Act (including
any amendment to Rule 16b-3 of the Exchange Act) that are requirements for the
application of such exemptive rule. To the extent permitted by applicable law,
the Plan shall be deemed amended to the extent necessary to conform to such
applicable exemptive rule.
7.7 NOTICE OF DISPOSITION OF SHARES
The Company may require any participant to give the Company prompt notice of
any disposition of shares of Common Stock, acquired pursuant to the Plan within
two years after the applicable Offering Date or within one year after the
applicable Exercise Date with respect to such shares. The Company may direct
that the certificates evidencing shares acquired pursuant to the Plan refer to
such requirement.
7.8 TAX WITHHOLDING
The Company shall be entitled to require payment in cash or deduction from
other compensation payable to each Participant of any sums required by federal,
state or local tax law to be withheld with respect to any purchase of shares of
Common Stock under the Plan or any sale of such shares.
7.9 GOVERNING LAW
The Plan and all rights and obligations thereunder shall be construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts.
* * * * * *
I hereby certify that the foregoing PRI Automation, Inc. 2000 Employee Stock
Purchase Plan was duly approved by the Board of Directors of PRI
Automation, Inc. on .
I hereby certify that the foregoing PRI Automation, Inc. 2000 Employee Stock
Purchase Plan was duly approved by the stockholders of PRI Automation, Inc. on
.
Executed on the of .
______________________________________
SECRETARY
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EXHIBIT 10.3
APPENDIX A
PRI AUTOMATION, INC.
2000 STOCK OPTION PLAN
SECTION 1. PURPOSES OF PLAN; DEFINITIONS
1.1. GENERAL PURPOSES. PRI Automation, Inc., a Massachusetts corporation
(the "Company"), desires to afford certain executives, key employees and
directors of, and certain other individuals providing services to, the Company
or its subsidiary companies an opportunity to initiate or increase their
proprietary interests in the Company, and thus to create in such persons an
increased interest in and greater concern for the long-term welfare of the
Company. The Company, by granting under this 2000 Stock Option Plan (this
"Plan") stock options to acquire shares of common stock of the Company (an
"Option"), seeks to retain the services of persons now holding key positions
with the Company and to secure the services of other persons capable of filling
key positions with the Company or its subsidiary companies.
1.2. DEFINITIONS. For purposes of this Plan, the following terms shall have
the indicated meanings:
"AFFILIATE" means a parent corporation, if any, and each subsidiary
corporation of the Company, as those terms are defined in Section 424 of the
Code.
"BOARD" means the Board of Directors of the Company.
"CAUSE" shall mean, with respect to any Option holder, a determination by
the Company (including the Board) or any Affiliate that the Holder's employment
or other relationship with the Company or any such Affiliate should be
terminated as a result of (i) a material breach by the Option holder of any
agreement to which the Option holder and the Company (or any such Affiliate) are
parties, (ii) any act (other than retirement) or omission to act by the Option
holder that may have a material and adverse effect on the business of the
Company, such Affiliate or any other Affiliate or on the Option holder's ability
to perform services for the Company or any such Affiliate, including, without
limitation, the proven or admitted commission of any crime (other than an
ordinary traffic violation), or (iii) any material misconduct or material
neglect of duties by the Option holder in connection with the business or
affairs of the Company or any such Affiliate.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor code thereto, together with related rules, regulations and
interpretations; and any reference herein to a particular Section of the Code
shall include any successor provision of the Code.
"COMMITTEE" has the meaning set forth in Section 2.1 hereof.
"COMMON STOCK" means the Common Stock, par value $.01 per share, of the
Company, subject to adjustment pursuant to Section 8 hereof.
"GREATER-THAN-TEN-PERCENT STOCKHOLDER" means any individual who, at the time
he or she is granted an Option, owns or, as a result of the attribution rules of
Section 424(d) of the Code, is deemed to own more than ten percent of the total
combined voting power of all classes of stock of the Company or any Affiliate.
"INCENTIVE OPTION" means any Option designated and qualified as an
"incentive stock option" within the meaning of Section 422 of the Code. The
Company intends that Incentive Options will qualify as "incentive stock options"
within the meaning of Section 422 of the Code, and the terms of this Plan shall
be interpreted in accordance with this intention; the Company makes no warranty,
however, as to the qualification of any Option as an Incentive Option.
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"NONQUALIFIED OPTION" means any Option that is not an Incentive Option.
"NON-EMPLOYEE DIRECTOR" means any director who is not also an employee of
the Company, its parent or any subsidiary.
"OUTSIDE DIRECTOR" means any director who (i) is not an employee of the
Company or of any "affiliated group," as such term is defined in Section
1504(a) of the Code, which includes the Company (an "Affiliated Group Member"),
(ii) is not a former employee of the Company or any Affiliated Group Member who
is receiving compensation for prior services (other than benefits under a tax-
qualified retirement plan) during the Company's or any Affiliated Group Member's
taxable year, (iii) has not been an officer of the Company or any Affiliated
Group Member, and (iv) does not receive remuneration from the Company or any
Affiliated Group Member, either directly or indirectly, in any capacity other
than as a director. "Outside Director" shall be determined in accordance with
Section 162(m) of the Code and the Treasury regulations issued thereunder.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and any
successor act thereto, together with related rules, regulations and
interpretations.
SECTION 2. ADMINISTRATION
2.1. COMMITTEE. This Plan shall be administered by a committee (the
"Committee") consisting of at least two Outside Directors. It is the intention
of the Company that the Plan shall be administered to comply with the provisions
of Rule 16b-3 under the Securities Exchange Act of 1934 (the "Exchange Act"),
but the authority and validity of any act taken or not taken by the Committee
shall not be affected if any person administering the Plan is not a Non-Employee
Director as defined in the Rule. Except as specifically reserved to the Board
under the terms of the Plan, the Committee shall have full and final authority
to operate, manage and administer the Plan on behalf of the Company. Any or all
powers and functions of the Committee may at any time and from time to time be
exercised by the Board, and any reference in this Plan to the Committee shall be
deemed to refer to the Board to the extent the Board is exercising any of the
powers and functions of the Committee.
2.2. POWERS OF THE COMMITTEE. Subject to the terms and conditions of this
Plan, the Committee shall have the power:
(a) to determine from time to time the individuals to whom Options shall be
granted and the terms, conditions, restrictions and provisions (which
need not be identical) of each of those Options, including, with respect
to each Option, the time at which the Option shall be granted, the number
of shares of Common Stock that shall be subject to the Option, the
exercise price for each share of Common Stock subject to the Option
(which price shall be subject to the requirements of Section 6.3), the
period during which the Option shall be exercisable (whether in whole or
in part) and the time or times when each Option shall become exercisable;
(b) to modify or amend, in its sole discretion, conditionally or
unconditionally, any outstanding Option granted under this Plan,
including a reduction of the exercise price, an acceleration of the
vesting schedule, or an extension of the expiration date;
(c) to accelerate, in its sole discretion, an Option holder's right to
exercise his or her Option in whole or in part, conditionally or
unconditionally, at any time;
(d) generally, to exercise such powers and to perform such acts as are
deemed necessary or expedient to promote the best interests of the
Company with respect to this Plan;
(e) to delegate to a committee consisting of one or more officers of the
Company the authority to grant options under this Plan to eligible
persons who are not then subject to Section 16 of the
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Exchange Act and with respect to whom the Company does not wish to comply
with Section 162(m) of the Code, and to delegate to other persons the
responsibility for performing ministerial acts in furtherance of the
Plan's purpose;
(f) to engage the services of persons or organizations in furtherance of the
Plan's purpose, including but not limited to banks, insurance companies,
brokerage firms and consultants; and
(g) to construe and interpret this Plan and Options granted hereunder and to
establish, amend, and revoke rules and regulations for the
interpretation, management and administration of this Plan. In this
connection, the Committee may supply any omission, reconcile any
inconsistency, or correct any other defect in this Plan or in any Option
agreement in the manner and to the extent it shall deem necessary or
expedient to make this Plan fully effective.
All decisions and determinations by the Committee in the exercise of the
foregoing powers shall be final and binding upon the Company and Option holders.
No member or former member of the Committee or the Board shall be liable for any
action or determination made in good faith with respect to this Plan or any
Option.
2.3. APPOINTMENT AND PROCEEDINGS OF COMMITTEE. The Board may from time to
time appoint members of the Committee in substitution for or in addition to
members previously appointed, and subject to Section 2.1 hereof, may fill
vacancies, however caused, in the Committee. The Committee shall select one of
its members as its chairman and shall hold its meetings at such times and places
as it shall deem advisable. A majority of its members shall constitute a quorum,
and all actions of the Committee shall require the affirmative vote of a
majority of its members. Any action may be taken by a written instrument signed
by all of the members, and any action so taken shall be as fully effective as if
it had been taken by a vote of a majority of the members at a meeting duly
called and held.
SECTION 3. STOCK
3.1. STOCK TO BE ISSUED. The stock subject to Options granted under this
Plan may be shares of authorized and issued Common Stock, shares of Common Stock
held in treasury or both, at the discretion of the Company. The total number of
shares of Common Stock that may be issued pursuant to Options granted under the
Plan shall not exceed 400,000 shares in the aggregate; PROVIDED, HOWEVER, that
the class and aggregate number of shares subject to Options shall be subject to
adjustment as provided in Section 8 hereof. Any shares of Company Common Stock
available for future awards under the PRI Automation, Inc. 1994 Incentive and
Nonqualified Stock Option Plan ("Prior Plan") and any shares of Company Common
Stock represented by awards granted under the Prior Plan which are forfeited,
expire or are canceled without delivery of shares of stock, or which result in
the forfeiture of shares of stock back to the Company, shall again be available
for issuance under the Plan; provided, however, such additional shares under the
Prior Plan shall not exceed 600,000 shares of Company Common Stock (subject to
adjustment as provided in Section 8 hereof).
3.2. TERMINATION OF OPTION. If any Option granted under this Plan expires
or otherwise terminates without having been exercised in whole or in part, the
shares of Common Stock previously subject to the unexercised portion of that
Option may be the subject of new Options under this Plan.
3.3. NO FRACTIONAL SHARES. In no event shall any Option be exercisable for
a fraction of a share of Common Stock.
SECTION 4. ELIGIBILITY
4.1. INDIVIDUALS ELIGIBLE. Incentive Options may be granted only to
officers and other employees of the Company and any Affiliate, including members
of the Board who are also employees of the Company or any Affiliate.
Nonqualified Options may be granted to officers or other employees of the
Company or any Affiliate, including members of the Board or the board of
directors of any Affiliate,
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and to consultants and other individuals who render services to the Company or
any Affiliate regardless of whether they are employees.
4.2. GREATER-THAN-TEN-PERCENT STOCKHOLDERS. Except as may otherwise be
permitted by the Code or other applicable law or regulation, no Incentive Option
shall be granted to a Greater-Than-Ten-Percent Stockholder unless (a) the
exercise price per share under the Incentive Option is not less than 110% of the
fair market value of the Common Stock at the time at which the Incentive Option
is granted and (ii) the Incentive Option is not exercisable to any extent after
the fifth anniversary of the date on which the Incentive Option is granted.
4.3. MAXIMUM AGGREGATE FAIR MARKET VALUE. The aggregate fair market value
(determined at the time the Incentive Option is granted) of the Common Stock
with respect to which Incentive Options are exercisable for the first time by
any Option holder during any calendar year under this Plan and any other plans
of the Company or any Affiliate for the issuance of incentive stock options
(within the meaning of Section 422 of the Code) shall not exceed $100,000 or
such greater amount as may from time to time be permitted with respect to
incentive stock options by the Code or any other applicable law or regulation.
To the extent any Option exceeds the foregoing limitation, it shall be deemed a
Nonqualified Option.
4.4. LIMITATION ON GRANTS. In no event may any individual be granted
Options with respect to more than 300,000 shares of Common Stock in any calendar
year (subject to adjustment as provided in Section 8 hereof). The number of
shares of Common Stock relating to an Option grant in a calendar year that is
subsequently forfeited, canceled or otherwise terminated shall continue to count
toward the foregoing limitation in such calendar year. In addition, if the
exercise price of an Option is subsequently reduced, the transaction shall be
deemed a cancellation of the original Option and the grant of a new one so that
both transactions shall count toward the maximum shares issuable in the calendar
year of each respective transaction.
SECTION 5. TERMINATION OF EMPLOYMENT OR DEATH OF OPTION HOLDER
5.1. TERMINATION OF EMPLOYMENT. Except as otherwise expressly provided
herein, an Option shall terminate on the earliest of:
(a) the date of expiration thereof;
(b) the date of cancellation thereof pursuant to Section 8.3;
(c) thirty days after the date on which the Option holder's employment with,
or directorship or other services to, the Company and all Affiliates
terminates other than for Cause; PROVIDED, HOWEVER, that if, before the
date of expiration of the Option, the Option holder shall be retired in
good standing from the employ of the Company for reasons of age under the
then established rules of the Company, the Option shall terminate on the
earlier of such date of expiration or twelve months after the date of
such retirement. In the event of such retirement, the Option holder shall
have the right prior to the termination of such Option to exercise the
Option to the extent to which the Option holder was entitled to exercise
such Option immediately prior to such retirement; and
(d) the date on which the Option holder's employment with, or directorship
or other services to, the Company and all Affiliates is terminated by the
Company or any Affiliate for Cause;
PROVIDED, HOWEVER, that Nonqualified Options need not, unless the Committee
determines otherwise, be subject to the provisions set forth in clauses (c) and
(d) above nor to Section 5.2 below. Whether authorized leave of absence, or
absence on military or government service, shall constitute termination of an
employment relationship between the Company and the Option holder shall be
determined by the Committee at the commencement thereof, and the Committee shall
promptly notify the Option
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holder of such determination. Options shall not be affected by any Option
holder's change of employment within the Company and any Affiliate or change in
the identity of the Company or any Affiliate to whom directorship or other
services are provided, so long as the Option holder continues to be an employee
of, or to provide such services to, the Company or any Affiliate.
5.2. DEATH OR PERMANENT DISABILITY OF OPTION HOLDER. In the event of the
death or permanent and total disability of an Option holder prior to termination
of the Option holder's services to the Company or any Affiliate and prior to the
date of expiration of such Option, such Option shall terminate on the earliest
of its date of expiration, its date of cancellation pursuant to Section 8.3, and
the date that is twelve (12) months after the date of such death or disability.
After the death of the Option holder, his or her executors, administrators or
any individual or individuals to whom the Option may be transferred by will or
by the laws of descent and distribution, shall have the right, at any time prior
to the date of such termination, to exercise the Option to the extent the Option
holder was entitled to exercise the Option immediately prior to his or her
death. "Permanent and total disability" for these purposes shall be determined
in accordance with Section 22(e)(3) of the Code and the rules, regulations and
interpretations issued thereunder.
SECTION 6. TERMS OF OPTION AGREEMENTS
Each Option shall be evidenced by an agreement (an "Option Agreement") in
writing that shall contain such terms, conditions, restrictions and other
provisions as the Committee shall from time to time deem appropriate. Any
additional provisions shall not, however, be inconsistent with any other term or
condition of this Plan and shall not cause any Incentive Option to fail to
qualify as an incentive stock option within the meaning of Section 422 of the
Code. Option agreements need not be identical, but each Option agreement shall,
by appropriate language, include the substance of the following provisions:
6.1. EXPIRATION OF OPTION. Notwithstanding any other provision of this Plan
or of the Option agreement, such Option shall expire on the date specified in
the Option agreement, which date shall not, in the case of an Incentive Option,
be later than the tenth anniversary (the fifth anniversary in the case of a
Greater-Than-Ten-Percent Stockholder) of the date on which the Option was
granted, or as specified in Section 5 hereof.
6.2. EXERCISE. Each Option may be exercised so long as it is valid and
outstanding, from time to time in part or as a whole, subject to any limitations
with respect to the number of shares for which the Option may be exercised at a
particular time and to such other conditions as the Committee in its discretion
may specify upon granting the Option.
The total number of shares of stock subject to an Option may, but need not,
be allotted in periodic installments (which may, but need not, be equal). The
Option Agreement may provide that from time to time during each of such
installment periods, the Option may become exercisable ("vest") with respect to
some or all of the shares allotted to that period, and may be exercised with
respect to some or all of the shares allotted to such period and/or any prior
period as to which the Option became vested but was not fully exercised. The
Option may be subject to such other terms and conditions on the time or times
when it may be exercised (which may be based on performance or other criteria)
as the Committee may deem appropriate. During the remainder of the term of the
Option (if its term extends beyond the end of the installment periods), the
Option may be exercised from time to time with respect to any shares then
remaining subject to the Option. In addition, the Option Agreement may, but need
not, include a provision whereby the Option holder may elect at any time, while
the Option holder is employed by or providing services to the Company or any
Affiliate, to exercise the Option as to any part or all of the shares subject to
the Option prior to the full vesting of the Option; provided, however, any
unvested shares shall be subject to a repurchase right in the
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Company at the Exercise Price in the event of the Optionee's termination of
employment with, or services to, the Company or any Affiliate.
6.3. EXERCISE PRICE. The exercise price per share under each Option shall
be determined by the Committee at the time the Option is granted and shall not
be less than the par value of the Common Stock obtainable upon the exercise
thereof; PROVIDED, HOWEVER, that the exercise price of any Incentive Option
shall not, unless otherwise permitted by the Code, be less than the fair market
value of the Common Stock on the date the Option is granted (110% of the fair
market value in the case of a Greater-Than-Ten-Percent Stockholder). For these
purposes, the "fair market value" of the Common Stock shall equal (a) the
closing price per share on the date of grant of the Option as reported by a
nationally recognized stock exchange, (b) if the Common Stock is not listed on
such an exchange, as reported by the National Association of Securities Dealers
Automatic Quotation System, Inc. ("NASDAQ"), or (c) if the Common Stock is not
quoted on NASDAQ, the fair market value as determined by the Committee.
6.4. TRANSFERABILITY OF OPTIONS AND OPTION SHARES. No Incentive Option
shall be transferable by its holder or by operation of law, otherwise than by
will or under the laws of descent and distribution and shall not be subject to
execution, attachment or similar process. Each Incentive Option shall, during
the Option holder's lifetime, be exercisable only by the Option holder. The
Committee may in its discretion provide upon the grant of any Option that the
shares of Common Stock purchasable upon exercise of such Option shall be subject
to such restrictions on transferability as the Committee may determine. Upon any
attempt to transfer any Option under the Plan or any right or privilege
conferred hereby, contrary to the provisions of the Plan, or (if the Committee
shall so determine) upon any levy or any attachment or similar process upon the
rights and privileges conferred hereby, such Option shall thereupon terminate
and become null and void.
6.5. RIGHTS OF OPTION HOLDERS. No Option holder or other person shall, by
virtue of the granting of an Option, be deemed for any purpose to be the owner
of any shares of Common Stock subject to such Option or to be entitled to the
rights or privileges of a holder of such shares unless and until the Option
shall have been exercised pursuant to the terms thereof with respect to such
shares and the Company shall have issued and delivered the shares to the Option
holder.
6.6. REPURCHASE RIGHT. The Committee may in its discretion provide upon the
grant of any Option that the Company shall have an option to repurchase, upon
terms and conditions determined by the Committee, all or any number of shares
purchased upon exercise of such Option. The repurchase price per share payable
by the Company shall be such amount or be determined by such formula as is fixed
by the Committee at the time of grant of the Option for the shares subject to
repurchase. In the event the Committee grants an Option subject to such a
repurchase option, then so long as the shares purchased upon exercise of that
Option remain subject to the repurchase option, each certificate representing
those shares shall bear a legend satisfactory to counsel for the Company
referring to the Company's repurchase option.
6.7. "LOCKUP" AGREEMENT. The Committee may in its discretion specify upon
granting an Option that the Option holder shall agree for a period of time (not
to exceed 180 days) from the effective date of any registration of securities of
the Company (upon request of the Company or the underwriters managing any
underwritten offering of the Company's securities), not to sell, make any short
sale of, loan, grant any option for the purchase of, or otherwise dispose of any
shares issued pursuant to the exercise of such Option, without the prior written
consent of the Company or such underwriters, as the case may be.
SECTION 7. METHOD OF EXERCISE; PAYMENT OF EXERCISE PRICE
7.1. METHOD OF EXERCISE. Any Option may be exercised by the Option holder
by delivering to the Company, on any business day prior to the termination of
the Option, a written notice specifying the
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number of shares of Common Stock the Option holder then desires to purchase and
the address to which the certificates for such shares are to be mailed,
accompanied by payment of the exercise price for such shares.
7.2. PAYMENT OF EXERCISE PRICE. Payment for the shares of Common Stock
purchased upon exercise of an Option shall be made by:
(a) cash in an amount, or a check, bank draft or postal or express money
order payable in an amount, equal to the aggregate exercise price of the
shares being purchased;
(b) with the consent of the Committee, shares of Common Stock having a fair
market value (as defined for purposes of Section 6.3 hereof) equal to
such aggregate exercise price and owned by the Option holder for a period
of at least six months;
(c) with the consent of the Committee, a personal recourse note issued by
the Option holder to the Company in a principal amount equal to such
aggregate exercise price and with such other terms, including interest
rate and maturity, as the Committee may determine in its discretion;
PROVIDED, HOWEVER, that the interest rate borne by such note shall not be
less than the lowest applicable federal rate, as defined in
Section 1274(d) of the Code;
(d) with the consent of the Committee, such other consideration that is
acceptable to the Committee and that has a fair market value, as
determined by the Committee, equal to such aggregate exercise price,
including any broker-directed cashless exercise/resale procedure adopted
by the Committee; or
(e) with the consent of the Committee, any combination of the foregoing.
As promptly as practicable after receipt of notice and payment pursuant to
Section 7.1 hereof and any documents required pursuant to Sections 9.2 and 9.3
hereof, the Company shall deliver to the Option holder a certificate registered
in the name of the Option holder and representing the number of shares with
respect to which such Option has been so exercised; PROVIDED, HOWEVER, that if
any law or regulation or order of the Securities and Exchange Commission or any
other body having jurisdiction in the premises shall require the Company or the
Option holder to take any action in connection with the shares then being
purchased, the date for the delivery of the certificates for such shares shall
be extended for the period necessary to take and complete such action. Delivery
by the Company of the certificate for such shares shall be deemed effected for
all purposes when the Company or a stock transfer agent of the Company shall
have deposited such certificate in the United States mail, addressed to the
Option holder, at the address specified in the notice delivered pursuant to
Section 7.1 hereof.
SECTION 8. CHANGES IN COMPANY'S CAPITAL STRUCTURE
8.1. RIGHTS OF COMPANY. The existence of outstanding Options shall not
affect in any way the right or power of the Company or its stockholders to enter
into, make or authorize, without limitation, (a) any adjustment,
recapitalization, reorganization or other change in the Company's capital
structure or its business, (b) any merger or consolidation of the Company,
(c) any issue of Common Stock or of bonds, debentures, preferred or prior
preference stock or other capital stock ahead of or affecting the Common Stock
or the rights thereof, (d) a dissolution or liquidation of the Company, (e) any
sale or transfer of all or any part of the assets or business of the Company, or
(f) any other corporate act or proceeding, whether of a similar character or
otherwise.
8.2. RECAPITALIZATION, STOCK SPLITS AND DIVIDENDS. If the Company shall
effect any subdivision or consolidation of shares of its stock or other capital
readjustment, the payment of a stock dividend, or any other increase or
reduction of the number of shares of its stock outstanding, in any such case
without receiving compensation therefor in money, services or property, then
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(a) the number, class and price per share of stock subject to each
outstanding Option shall be appropriately adjusted in such a manner as to
entitle an Option holder to receive upon exercise of an Option, for the
same aggregate cash consideration, the same total number and class of
shares as he or she would have received as a result of the event
requiring the adjustment had the Option holder exercised the Option in
full immediately prior to such event, and
(b) the number and class of shares with respect to which Options may be
granted under Section 3.1 of this Plan and the maximum annual limitation
on grants under Section 4.4 shall be adjusted by substituting for the
total number of shares of Common Stock then reserved for issuance under
this Plan and for the maximum annual limitation on grants that number and
class of shares of stock that the owner of an equal number of outstanding
shares of Common Stock would own as the result of the event requiring the
adjustment.
8.3. MERGERS, SALES, ETC. If the Company shall be a party to a
reorganization or merger with one or more other corporations (whether or not the
Company is the surviving or resulting corporation), shall consolidate with or
into one or more other corporations, shall be liquidated, or shall sell or
otherwise dispose of substantially all of its assets to another corporation
(each a "Transaction"), then each outstanding unexercised option shall
automatically accelerate so that it shall, prior to the effective date of the
Transaction, become fully exercisable for all of the shares of Common Stock at
the time subject to such option; provided, however, that an outstanding option
shall not so accelerate if and to the extent that:
(a) such option is under the terms of the Transaction either to be assumed
by the surviving or resulting corporation (or its parent);
(b) such option is under the terms of the Transaction to remain outstanding
and be exercisable in shares of Common Stock or, if applicable, shares of
such stock or other securities, cash or property as the holders of shares
of Common Stock are to receive pursuant to the terms of such Transaction;
or
(c) the acceleration of such option is subject to other limitations imposed
by the Board or Committee at the time of the option grant.
The determination of option comparability under clause (a) above shall be made
by the Board or Committee, and its determination shall be final, binding and
conclusive. Immediately upon the consummation of the Transaction, all
outstanding options shall terminate and cease to be outstanding, unless such
options are assumed by the surviving or resulting corporation (or its parent)
under clause (a) above or remain outstanding under clauses (b) or (c) above.
8.4. ADJUSTMENTS TO COMMON STOCK SUBJECT TO OPTIONS. Except as hereinbefore
expressly provided, the issue by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, for cash or property,
or for labor or services, either upon direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or obligations
of the Company convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock then subject to outstanding Options.
8.5. MISCELLANEOUS. Adjustments under this Section 8 shall be determined by
the Committee, and such determinations shall be conclusive. The Committee shall
have the discretion and power in any such event to determine and to make
effective provision for acceleration of the time or times at which any Option or
portion thereof shall become exercisable. No fractional shares of Common Stock
shall be issued under this Plan on account of any adjustment specified above.
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SECTION 9. GENERAL RESTRICTIONS
9.1. GRANTING OF OPTIONS. No Option may be granted under this Plan after
the tenth anniversary of the effective date hereof.
9.2. INVESTMENT REPRESENTATIONS. The Company may require any individual to
whom an Option is granted, as a condition of exercising such Option, to give
written assurances in substance and form satisfactory to the Company to the
effect that such individual is acquiring the Common Stock subject to the Option
for his or her own account for investment and not with a view to the resale or
distribution thereof, and to such other effects as the Company deems necessary
or advisable in order to comply with the Securities Act and applicable state
securities laws.
9.3. COMPLIANCE WITH SECURITIES LAWS. The Company shall not be required to
sell or issue any shares under any Option if the sale or issuance of such shares
would constitute a violation by the Option holder or the Company of any
provision of any law or regulation of any governmental authority, including the
Securities Act. In addition, the Company shall not be required to sell or issue
shares upon the exercise of any Option unless the Committee has received
evidence satisfactory to it that the holder of such Option will not transfer
such shares except pursuant to a registration statement in effect under the
Securities Act or unless an opinion of counsel satisfactory to the Company has
been received by the Company to the effect that such registration is not
required. Any determination in this connection by the Committee shall be final,
binding and conclusive. In the event the shares issuable on exercise of an
Option are not registered under the Securities Act, the Company may imprint upon
any certificate representing shares so issued the following legend or any other
legend that counsel for the Company considers necessary or advisable to comply
with the Securities Act and applicable state securities laws:
"The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933 or under the
securities laws of any state and may not be sold or transferred
except upon such registration or upon receipt by the issuer of an
opinion of counsel satisfactory to the issuer, in form and
substance satisfactory to the issuer, that registration is not
required for such sale or transfer."
The Company may, but shall not be obligated to, register the shares of stock
covered by any Options pursuant to the Securities Act. In the event such shares
are so registered, the Company may remove any legend on certificates
representing such shares. The Company shall not be obligated to take any
affirmative action in order to cause the exercise of an Option or the issuance
of shares pursuant thereto to comply with any law or regulation of any
governmental authority.
9.4. OTHER CERTIFICATE LEGENDS. The Company may endorse such other legends
upon the certificates for shares of Common Stock issued upon exercise of an
Option and may issue such "stop transfer" instructions to the transfer agent for
the Common Stock as the Committee may, in its discretion, determine to be
necessary or appropriate (a) to implement the provisions of this Plan and such
Option with respect to such shares and (b) to permit the Company to determine
the occurrence of a disqualifying disposition (as defined in Section 421(b) of
the Code) of shares issued upon exercise of Incentive Options.
9.5. EMPLOYMENT OBLIGATION. The granting of any Option shall not impose
upon the Company or any Affiliate any obligation to employ or continue to employ
any Option holder. The right of the Company and each Affiliate to terminate the
employment of any officer or other employee thereof shall not be diminished or
affected by reason of the fact that an Option has been granted to such officer
or other employee.
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SECTION 10. WITHHOLDING TAXES
10.1. RIGHTS OF COMPANY. The Company may require an employee exercising a
Nonqualified Option, or disposing of shares of Common Stock acquired pursuant to
the exercise of an Incentive Option in a disqualifying disposition (as defined
in Section 421(b) of the Code), to reimburse the Company or Affiliate that
employs such employee for any taxes required by any government to be withheld or
otherwise deducted and paid by such employer corporation in respect of the
issuance or disposition of such shares. In lieu thereof, the employer
corporation shall have the right to withhold the amount of such taxes from any
other sums due or to become due from such corporation to the employee upon such
terms and conditions as the Committee may prescribe. The employer corporation
may, in its discretion, hold the stock certificate to which such employee is
otherwise entitled upon the exercise of an Option as security for the payment of
any such withholding tax liability, until cash sufficient to pay that liability
has been received or accumulated.
10.2. PAYMENT IN SHARES. With the consent of the Committee, an employee may
elect to have any required minimum tax withholding obligation satisfied, in
whole or in part, by (i) authorizing the Company to withhold from shares of
Common Stock to be issued pursuant to the exercise of a Nonqualified Option a
number of shares with an aggregate fair market value (as defined in Section 6.3
hereof determined as of the date the withholding is effected) that would satisfy
the withholding amount due with respect to such exercise, or (ii) transferring
to the Company shares of Common Stock owned by the employee with an aggregate
fair market value (as defined in Section 6.3 hereof determined as of the date
the withholding is effected) that would satisfy the withholding amount due.
10.3. NOTICE OF DISQUALIFYING DISPOSITION. Each holder of an Incentive
Option shall agree to notify the Company in writing immediately after making a
disqualifying disposition (as defined in Section 421(b) of the Code) of any
Common Stock purchased upon exercise of the Incentive Option.
SECTION 11. AMENDMENT OR TERMINATION OF PLAN
11.1. AMENDMENT. The Board may terminate the Plan and may amend the Plan at
any time, and from time to time.
Except as provided in Section 8 hereof, the rights and obligations under any
Option granted before amendment of this Plan or any unexercised portion of such
Option shall not be adversely affected by amendment of this Plan or such Option
without the consent of the holder of such Option.
11.2. TERMINATION. This Plan shall terminate as of the tenth anniversary of
its effective date. The Board may terminate this Plan at any earlier time for
any or no reason. No Option may be granted after the Plan has been terminated.
No Option granted while this Plan is in effect shall be altered or impaired by
termination of this Plan, except upon the consent of the holder of such Option.
The power of the Committee to construe and interpret this Plan and the Options
granted prior to the termination of this Plan shall continue after such
termination.
SECTION 12. NONEXCLUSIVITY OF PLAN
Neither the adoption of this Plan by the Board nor the submission of this
Plan to the stockholders of the Company for approval shall be construed as
creating any limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including the granting of stock options
otherwise than under this Plan, and such arrangements may be either applicable
generally or only in specific cases.
The Committee's determinations under the Plan need not be uniform and may be
made by it selectively among persons who receive, or are eligible to receive,
awards under the Plan (whether or not such persons are similarly situated).
Without limiting the generality of the foregoing, the Committee shall be
entitled, among other things, to make non-uniform and selective determinations,
and to
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enter into non-uniform and selective Plan agreements, as to (i) the persons to
receive awards under the Plan, (ii) the terms and provisions of awards under the
Plan, (iii) the exercise by the Committee of its discretion in respect of the
exercise of options pursuant to the terms of the Plan, and (iv) the treatment of
leaves of absence pursuant to Section 5.1 hereof.
SECTION 13. EFFECTIVE DATE
This Plan shall become effective upon its adoption by the Board, PROVIDED
that the stockholders of the Company shall have approved this Plan within twelve
months prior to or following the adoption of this Plan by the Board. Subject to
the foregoing, Options may be granted under the Plan at any time subsequent to
its effective date; PROVIDED, HOWEVER, that (a) no such Option shall be
exercised or exercisable unless the stockholders of the Company shall have
approved the Plan within twelve months prior to or following the adoption of
this Plan by the Board, and (b) all Options issued prior to the date of such
stockholders' approval shall contain a reference to such condition.
SECTION 14. PROVISIONS OF GENERAL APPLICATION
14.1. SEVERABILITY. The invalidity or unenforceability of any provision of
this Plan shall not affect the validity or enforceability of any other provision
of this Plan, each of which shall remain in full force and effect.
14.2. CONSTRUCTION. The headings in this Plan are included for convenience
only and shall not in any way effect the meaning or interpretation of this Plan.
Any term defined in the singular shall include the plural, and vice versa. The
words "herein," "hereof" and "hereunder" refer to this Plan as a whole and not
to any particular part of this Plan. The word "including" as used herein shall
not be construed so as to exclude any other thing not referred to or described.
14.3. FURTHER ASSURANCES. The Company and any holder of an Option shall
from time to time execute and deliver any and all further instruments, documents
and agreements and do such other and further acts and things as may be required
or useful to carry out the intent and purpose of this Plan and such Option and
to assure to the Company and such Option holder the benefits contemplated by
this Plan; PROVIDED, HOWEVER, that neither the Company nor any Option holder
shall in any event be required to take any action inconsistent with the
provisions of this Plan.
14.4. GOVERNING LAW. This Plan and each Option shall be governed by the
laws of the Commonwealth of Massachusetts.
* * * * *
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 15, 1999 relating to the
financial statements and financial statement schedule of PRI Automation, Inc.,
which appears in PRI Automation, Inc.'s Annual Report on Form 10-K for the year
ended September 30, 1999.
/s/ PricewaterhouseCoopers LLP
Boston, MA
April 3, 2000
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration
statement on Form S-8 of PRI Automation, Inc. ("PRI") to register 820,000 shares
of Common Stock of our report dated February 27, 1998 with respect to the
financial statements of Promis Systems Corporation Ltd. as at December 31, 1997
and for the year ended December 31, 1997, which report is included as an exhibit
to PRI's Annual Report on Form 10-K for the year ended September 30, 1999.
Toronto, Canada (Signed) Ernst & Young LLP
March 31, 2000 Chartered Accountants
