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Exhibit 99.1
INTEGRATED MEASUREMENT SYSTEMS, INC.
2000 NONQUALIFIED STOCK OPTION PLAN
1. PURPOSES OF THE PLAN. The purposes of this Nonqualified Stock Option
Plan are to attract, retain and reward individuals who can and do
contribute to the Company's success by providing Employees and Consultants
an opportunity to share in the equity of the Company and to more closely
align their interests with the Company and its shareholders.
Options granted hereunder shall be nonqualified stock options, not
intended to qualified as incentive stock options within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended. In addition,
shares of the Company's Common Stock may be Sold hereunder independent of
any Option grant.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "ADMINISTRATOR" shall mean the Board or any of its Committees
as shall be administering the Plan, in accordance with Section 4(a) of the
Plan.
(b) "BOARD" shall mean the Board of Directors of the Company.
(c) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "COMMITTEE" shall mean a committee appointed by the Board in
accordance with Section 4(a) of the Plan.
(e) "COMMON STOCK" shall mean the Common Stock of the Company.
(f) "COMPANY" shall mean Integrated Measurement Systems, Inc., an
Oregon corporation.
(g) "CONSULTANT" shall mean any person who is engaged by the
Company or any Parent or Subsidiary to render consulting services and is
compensated for such consulting services, but shall not include any
Director of the Company.
(h) "CONTINUOUS STATUS AS AN EMPLOYEE OR CONSULTANT" shall mean the
absence of any interruption or termination of service as an Employee or
Consultant. Continuous Status as an Employee or Consultant shall not be
considered interrupted in the case of: (i) any sick leave, military leave,
or any other leave of absence approved by the Company; or (ii) transfers
between locations of the Company or between the Company, its Parent, its
Subsidiaries or its successor.
(i) "DIRECTOR" shall mean a member of the Board.
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(j) "DISABILITY" shall mean total and permanent disability as
defined in Section 22(e)(3) of the Code.
(k) "EMPLOYEE" shall mean any person, other than Officers and
Directors, employed by the Company or any Parent or Subsidiary.
(l) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
(m) "FAIR MARKET VALUE" shall mean, as of any date, the value of
Common Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the
Nasdaq National Market or the Nasdaq SmallCap Market of the Nasdaq Stock
Market, its Fair Market Value shall be the closing sales price for the
Common Stock (or the closing bid, if no sales were reported) as quoted on
such exchange or system for the last market trading day prior to the date
of determination, as reported in THE WALL STREET JOURNAL or such other
source as the Administrator deems reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market
Value shall be the mean between the high bid and low asked prices for the
Common Stock on the last market trading day prior to the date of
determination, as reported in THE WALL STREET JOURNAL or such other source
as the Administrator deems reliable;
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by the
Administrator.
(n) "NONQUALIFIED STOCK OPTION" shall mean an Option not intended
to qualify as an incentive stock option within the meaning of Section 422
of the Code.
(o) "NOTICE OF GRANT" shall mean a written notice evidencing
certain terms and conditions of an individual Option grant. The Notice of
Grant is part of the Option Agreement.
(p) "OFFICER" shall mean a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(q) "OPTION" shall mean a stock option granted pursuant to the
Plan.
(r) "OPTION AGREEMENT" shall mean a written agreement between the
Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject to the terms and
conditions of the Plan.
(s) "OPTIONED STOCK" shall mean the Common Stock subject to an
Option.
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(t) "OPTIONEE" shall mean an Employee or Consultant who holds an
Option.
(u) "PARENT" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(v) "PLAN" shall mean this 2000 Nonqualified Stock Option Plan.
(w) "SALE" or "SOLD" shall include, with respect to the sale of
Shares under the Plan, the sale of Shares for any form of consideration
specified in Section 8(b), as well as a grant of Shares for consideration
in the form of past or future services.
(x) "SHARE" shall mean a share of the Common Stock, as adjusted in
accordance with Section 11 of the Plan.
(y) "SUBSIDIARY" shall mean a "subsidiary corporation," whether now
or hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph (b) of this Section 3
and the provisions of Section 11 of the Plan, the maximum aggregate number
of Shares which may be optioned and/or Sold under the Plan is 750,000
shares of Common Stock. The Shares may be authorized, but unissued, or
reacquired Common Stock.
(b) If an Option should expire or become unexercisable for any
reason, or is otherwise terminated or forfeited, without having been
exercised in full, the unpurchased Shares which were subject thereto shall,
unless the Plan shall have been terminated, become available for future
Option grants and/or Sales under the Plan. If any Shares issued pursuant to
a Sale shall be reacquired, canceled or forfeited for any reason, such
Shares shall become available for future Option grants and/or Sales under
the Plan, unless the Plan shall have been terminated. If the exercise price
of any Option granted under the Plan is satisfied by tendering Shares of
Common Stock to the Company (by either actual delivery or by attestation),
only the number of shares of Common Stock issued net of the Shares of
Common Stock tendered shall be deemed delivered for purposes of determining
the maximum number of Shares available for delivery under the Plan.
4. ADMINISTRATION OF THE PLAN.
(a) PROCEDURE. The Plan shall be administered by () the Board or ()
a Committee designated by the Board, which Committee shall be constituted
to satisfy the legal requirements relating to the administration of stock
option plans under applicable corporate and securities laws and the Code.
Once appointed, such Committee shall serve in its designated capacity until
otherwise directed by the Board. The Board may increase the size of the
Committee and appoint additional members, remove members (with or without
cause) and substitute new members, fill vacancies (however caused), and
remove all members of the Committee and
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thereafter directly administer the Plan, all to the extent permitted by the
legal requirements relating to the administration of stock option plans
under state corporate and securities laws and the Code.
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions of the
Plan, and in the case of a Committee, subject to the specific duties
delegated by the Board to such Committee, the Administrator shall have the
authority, in its discretion:
(i) to grant Nonqualified Stock Options;
(ii) to authorize Sales of Shares of Common Stock hereunder;
(iii) to determine, upon review of relevant information, the
Fair Market Value of the Common Stock;
(iv) to determine the exercise/purchase price per Share of
Options to be granted or Shares to be Sold, which exercise/purchase price
shall be determined in accordance with Section 8(a) of the Plan;
(v) to determine the Employees or Consultants to whom, and the
time or times at which, Options shall be granted and the number of Shares
to be represented by each Option;
(vi) to determine the Employees or Consultants to whom, and
the time or times at which, Shares shall be Sold and the number of Shares
to be Sold;
(vii) to interpret the Plan;
(viii) to prescribe, amend and rescind rules and regulations
relating to the Plan;
(ix) to determine the terms and provisions of each Option
granted (which need not be identical) and, with the consent of the holder
thereof, modify or amend each Option;
(x) to determine the terms and provisions of each Sale of
Shares (which need not be identical) and, with the consent of the purchaser
thereof, modify or amend each Sale;
(xi) to accelerate or defer (with the consent of the Optionee)
the exercise date of any Option;
(xii) to accelerate or defer (with the consent of the Optionee
or purchaser of Shares) the vesting restrictions applicable to Shares Sold
under the Plan or pursuant to Options granted under the Plan;
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(xiii) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an Option or
Sale of Shares previously granted or authorized by the Administrator;
(xiv) to determine the restrictions on transfer, vesting
restrictions, repurchase rights, or other restrictions applicable to Shares
issued under the Plan;
(xv) to effect, at any time and from time to time, with the
consent of the affected Optionees, the cancellation of any or all
outstanding Options under the Plan and to grant in substitution therefor
new Options under the Plan covering the same or different numbers of
Shares, but having an Option price per Share consistent with the provisions
of Section 8 of this Plan as of the date of the new Option grant;
(xvi) to establish, on a case-by-case basis, different terms
and conditions pertaining to exercise or vesting rights upon termination of
employment, whether at the time of an Option grant or Sale of Shares, or
thereafter;
(xvii) to approve forms of agreement for use under the Plan;
(xviii) to reduce the exercise price of any Option to the then
current Fair Market Value if the Fair Market Value of the Common Stock
covered by such Option shall have declined since the date the Option was
granted;
(xix) to determine whether and under what circumstances an
Option may be settled in cash under subsection 9(e) instead of Common
Stock; and
(xx) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
(c) EFFECT OF ADMINISTRATOR'S DECISION. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees and any other holders of any Options granted under
the Plan or Shares Sold under the Plan.
5. ELIGIBILITY.
(a) PERSONS ELIGIBLE. Options may be granted and/or Shares Sold
only to Employees and Consultants. An Employee or Consultant who has been
granted an Option or Sold Shares may, if he or she is otherwise eligible,
be granted an additional Option or Options or Sold additional Shares.
(b) NO RIGHT TO CONTINUED EMPLOYMENT. The Plan shall not confer
upon any Optionee any right with respect to continuation of employment or
consulting relationship with the Company, nor shall it interfere in any way
with his or her right or the Company's right to terminate his or her
employment or consulting relationship at any time, with or without cause.
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6. TERM OF PLAN. The Plan shall become effective upon the earlier to
occur of its adoption by the Administrator. It shall continue in effect for
a term of ten (10) years, unless sooner terminated under Section 13 of the
Plan.
7. TERM OF OPTION. The term of each Option shall be stated in the
Notice of Grant.
8. EXERCISE/PURCHASE PRICE AND CONSIDERATION.
(a) EXERCISE/PURCHASE PRICE.
(i) The per Share exercise/purchase price for the Shares to be
issued pursuant to exercise of an Option or a Sale shall be such price as
is determined by the Administrator.
(ii) Any determination to establish an Option exercise price
or effect a Sale of Common Stock at less than Fair Market Value on the date
of the Option grant or authorization of Sale shall be accompanied by an
express finding by the Administrator specifying that the Option grant or
Sale is in the best interest of the Company, and specifying both the Fair
Market Value and the Option exercise price or Sale price of the Common
Stock.
(b) CONSIDERATION. The consideration to be paid for the Shares to
be issued upon exercise of an Option or pursuant to a Sale, including the
method of payment, shall be determined by the Administrator. Such
consideration may consist of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) transfer to the Company of Shares which
(A) in the case of Shares acquired upon exercise of an
Option, have been owned by the Optionee for more than six months on the
date of surrender, and
(B) have a Fair Market Value on the date of surrender
equal to the aggregate exercise price of the Shares to be acquired;
(v) if and so long as the Common Stock is registered under
Section 12(b) or 12(g) of the Exchange Act, delivery of a properly executed
exercise notice together with irrevocable instructions to a broker to
promptly deliver to the Company the amount of sale or loan proceeds
required to pay the exercise price;
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(vi) such other consideration and method of payment for the
issuance of Shares to the extent permitted by legal requirements relating
to the administration of stock option plans and issuances of capital stock
under applicable corporate and securities laws and the Code; or
(vii) any combination of the foregoing methods of payment.
If the Fair Market Value of the number of whole Shares transferred or
the number of whole Shares surrendered is less than the total exercise
price of the Option, the shortfall must be made up in cash or by check.
Notwithstanding the foregoing provisions of this Section 8(b), the
consideration for Shares to be issued pursuant to a Sale may not include,
in whole or in part, the consideration set forth in subsection (v) above.
9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option
granted hereunder shall be exercisable at such times and under such
conditions as determined by the Administrator, including performance
criteria with respect to the Company and/or the Optionee, and as shall be
permissible under the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and full payment
for the Shares with respect to which the Option is exercised has been
received by the Company. Full payment may, as authorized by the
Administrator, consist of any consideration and method of payment allowable
under the Option Agreement and Section 8(b) of the Plan. Each Optionee who
exercises an Option shall, upon notification of the amount due (if any) and
prior to or concurrent with delivery of the certificate representing the
Shares, pay to the Company amounts necessary to satisfy applicable federal,
state and local tax withholding requirements. An Optionee must also provide
a duly executed copy of any stock transfer agreement then in effect and
determined to be applicable by the Administrator. Until the issuance (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the stock certificate
evidencing such Shares, no right to vote or receive dividends or any other
rights as a shareholder shall exist with respect to the Optioned Stock
represented by such stock certificate, notwithstanding the exercise of the
Option. No adjustment will be made for a dividend or other right for which
the record date is prior to the date the stock certificate is issued,
except as provided in Section 11 of the Plan.
(b) TERMINATION OF EMPLOYMENT OR CONSULTING RELATIONSHIP. In the
event that an Optionee's Continuous Status as an Employee or Consultant
terminates (other than upon the Optionee's death or Disability), the
Optionee may exercise his or her Option, but only within such period of
time as is determined by the Administrator, and only to the extent that the
Optionee was entitled to exercise it at the date of termination (but in no
event later than the expiration of the term of such Option as set forth in
the Notice of Grant). The Administrator shall determine such period
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of time (in no event to exceed ninety (90) days from the date of
termination) when the Option is granted. If, at the date of termination,
the Optionee is not entitled to exercise his or her entire Option, the
Shares covered by the unexercisable portion of the Option shall revert to
the Plan. If, after termination, the Optionee does not exercise his or her
Option within the time specified by the Administrator, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(c) DISABILITY OF OPTIONEE. In the event that an Optionee's
Continuous Status as an Employee or Consultant terminates as a result of
the Optionee's Disability, the Optionee may exercise his or her Option at
any time within twelve (12) months from the date of such termination, but
only to the extent that the Optionee was entitled to exercise it at the
date of such termination (but in no event later than the expiration of the
term of such Option as set forth in the Notice of Grant). If, at the date
of termination, the Optionee is not entitled to exercise his or her entire
Option, the Shares covered by the unexercisable portion of the Option shall
revert to the Plan. If, after termination, the Optionee does not exercise
his or her Option within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(d) DEATH OF OPTIONEE. In the event of the death of an Optionee,
the Option may be exercised at any time within twelve (12) months following
the date of death (but in no event later than the expiration of the term of
such Option as set forth in the Notice of Grant), by the Optionee's estate
or by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent that the Optionee was entitled to
exercise the Option at the date of death. If, at the time of death, the
Optionee was not entitled to exercise his or her entire Option, the Shares
covered by the unexercisable portion of the Option shall revert to the
Plan. If, after death, the Optionee's estate or a person who acquired the
right to exercise the Option by bequest or inheritance does not exercise
the Option within the time specified herein, the Option shall terminate,
and the Shares covered by such Option shall revert to the Plan.
(e) BUYOUT PROVISIONS. The Administrator may at any time offer to
buy out, in whole or in part, for a payment in cash or Shares, an Option
previously granted, based on such terms and conditions as the Administrator
shall establish and communicate to the Optionee at the time that such offer
is made.
10. NONTRANSFERABILITY OF OPTIONS. Except as otherwise specifically
provided in the Option Agreement, an Option may not be sold, pledged,
assigned, hypothecated, transferred or disposed of in any manner other than
by will, or by the laws of descent and distribution, and may be exercised
during the lifetime of the Optionee only by the Optionee or, if
incapacitated, by his or her legal guardian or legal representative.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
(a) CHANGES IN CAPITALIZATION: Subject to any required action by
the shareholders of the Company, the number of shares of Common Stock
covered by each outstanding Option and the number of shares of Common Stock
which have been authorized for issuance under the Plan but as
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to which no Options have yet been granted or Sales made or which have been
returned to the Plan upon cancellation or expiration of an Option, as well
as the price per share of Common Stock covered by each such outstanding
Option, shall be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, or any other increase or decrease in the number of issued
shares of Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible securities
of the Company shall not be deemed to have been "effected without receipt
of consideration." Such adjustment shall be made by the Administrator,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares
of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock subject to
an Option.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liqui dation of the Company, each outstanding Option will
terminate immediately prior to the consummation of such proposed action,
unless otherwise provided by the Administrator. The Administrator may, in
the exercise of its sole discretion in such instances, declare that any
Option shall terminate as of a date fixed by the Board and give each
Optionee the right to exercise Optionee's Option as to all or any part of
the Common Stock subject to the Option, including Shares as to which the
Option would not otherwise be exercisable.
(c) MERGER OR ASSET SALE. Except as otherwise provided in an Option
Agreement, in the event of a proposed sale of all or substantially all of
the assets of the Company, or the merger of the Company with or into
another corporation, each outstanding Option shall be assumed or an
equivalent option shall be substituted by such successor corporation or a
Parent or Subsidiary of such successor corporation, unless the
Administrator determines, in the exercise of its sole discretion and in
lieu of such assumption or substitution, that each Optionee shall have the
right to exercise Optionee's Option as to all or any part of the Common
Stock subject to the Option, including Shares as to which the Option would
not otherwise be exercisable. If the Administrator determines that an
Option shall be exercisable in lieu of assumption or substitution in the
event of a merger or sale of assets, the Administrator shall notify the
Optionee that the Option shall be so exercisable for a period of thirty
(30) days from the date of such notice or such shorter period as the
Administrator may specify in the notice, and the Option will terminate upon
the expiration of such period. For the purposes of this paragraph, the
Option shall be considered assumed if, following the merger or sale of
assets, the Option confers the right to purchase, for each Share of
Optioned Stock subject to the Option immediately prior to the merger or
sale of assets, the consideration (whether stock, cash, or other securities
or property) received in the merger or sale of assets by holders of Common
Stock for each Share held on the effective date of the transaction (and if
holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the merger or sale of
assets was not solely common stock of the successor corporation or its
Parent, the Administrator may, with the consent of the successor
corporation and the Optionee, provide for the consideration to be received
upon the exercise of the Option, for each
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Share of Optioned Stock subject to the Option, to be solely common stock of
the successor corporation or its Parent equal in Fair Market Value to the
per share consideration received by holders of Common Stock in the merger
or sale of assets.
12. TIME OF GRANTING OPTIONS. The date of grant of an Option shall, for
all purposes, be the date on which the Administrator makes the
determination granting such Option. Notice of the determination shall be
given to each Optionee within a reasonable time after the date of such
grant.
13. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may amend or terminate the
Plan from time to time in such respects as the Board may deem advisable.
(b) SHAREHOLDER APPROVAL. The Company shall obtain shareholder
approval of any Plan amendment to the extent necessary and desirable to
comply with applicable law, rule or regulation, including the requirements
of any exchange or quotation system on which the Common Stock is listed or
quoted. Such shareholder approval, if required, shall be obtained in such a
manner and to such a degree as is required by the applicable law, rule or
regulation.
(c) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan shall not affect Options already granted, and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the
Optionee and the Administrator, which agreement must be in writing and
signed by the Optionee and the Company.
14. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
pursuant to the exercise of an Option or a Sale unless the exercise of such
Option or consummation of the Sale and the issuance and delivery of such
Shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended,
applicable state securities laws, the Exchange Act, the rules and
regulations promulgated thereunder, and the requirements of any stock
exchange (including NASDAQ) upon which the Shares may then be listed, and
shall be further subject to the approval of counsel for the Company with
respect to such compliance.
15. RESERVATION OF SHARES. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall
be sufficient to satisfy the requirements of the Plan.
16. LIABILITY OF COMPANY.
(a) INABILITY TO OBTAIN AUTHORITY. Inability of the Company to
obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of
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any liability in respect of the failure to issue or sell such Shares as to
which such requisite authority shall not have been obtained.
As a condition to the exercise of an Option or a Sale, the Company may
require the person exercising such Option or to whom Shares are being Sold
to represent and warrant at the time of any such exercise or Sale that the
Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel
for the Company, such a representation is required by any of the
aforementioned relevant provisions of law.
(b) GRANTS EXCEEDING ALLOTTED SHARES. If the Optioned Stock covered
by an Option exceeds, as of the date of grant, the number of Shares which
may be issued under the Plan without additional shareholder approval, such
Option shall be void with respect to such excess Optioned Stock, unless
shareholder approval of an amendment sufficiently increasing the number of
Shares subject to the Plan is timely obtained in accordance with Section 13
of the Plan.
17. MARKET STANDOFF. In connection with any underwritten public
offering by the Company of its equity securities pursuant to an effective
registration statement filed under the Securities Act, an Optionee or other
participant in the Plan shall not sell, make any short sale of, loan,
hypothecate, pledge, grant any option for the purchase of, or otherwise
dispose or transfer for value or otherwise agree to engage in any of the
foregoing transactions with respect to, any shares issuable or issued under
the Plan, whether pursuant to an Option or a Sale, without the prior
written consent of the Company or its underwriters. Such limitations shall
be in effect for such period of time as may be requested by the Company or
such underwriters and agreed to by the Company's officers and directors
with respect to their shares; provided, however, that in no event shall
such period exceed 180 days. The limitations of this paragraph shall in all
events terminate five years after the effective date of the Company's
initial public offering. Participants shall be subject to the market
standoff provisions of this Section 17 only if the officers and directors
of the Company are also subject to similar arrangements.
In the event of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
Company's outstanding Common Stock effected as a class without the
Company's receipt of consideration, then any new, substituted or additional
securities distributed with respect to the purchased shares shall be
immediately subject to the provisions of this Section 18, to the same
extent the purchased shares are at such time covered by such provisions.
In order to enforce the limitations of this Section 17, the Company may
impose stop-transfer instructions with respect to the purchased shares
until the end of the applicable standoff period.
