EXHIBIT 10(xv)
KULICKE AND SOFFA INDUSTRIES, INC.
1999 NONQUALIFIED EMPLOYEE STOCK OPTION PLAN
(As Amended and Restated Effective March 21, 2003)
SECTION 1
PURPOSE
This KULICKE AND SOFFA INDUSTRIES, INC. 1999 NONQUALIFIED EMPLOYEE
STOCK OPTION PLAN ("Plan") is intended to provide a means whereby KULICKE AND
SOFFA INDUSTRIES, INC. ("Company") and any Subsidiary (as hereinafter defined)
may, through the grant of nonqualified stock options ("Options") to Employees
(as defined in Section 3), attract and retain Employees and motivate such
Employees to exercise their best efforts on behalf of the Company and of any
Subsidiary.
The term "Subsidiary" means any corporation (whether or not in
existence at the time the Plan is adopted) which, at the time an Option is
granted, is a subsidiary of the Company under the definition of "subsidiary
corporation" contained in section 424(f) of the Internal Revenue Code of 1986,
as amended (the "Code"). The term Subsidiary shall also mean any trade or
business (whether or not incorporated and whether or not in existence at the
time the Plan is adopted) in which, at the time the Option is granted, the
Company owns a more than 50% equity interest.
SECTION 2
ADMINISTRATION
The Plan shall be administered by the Company's Compensation Committee
("Committee"), which shall consist solely of not fewer than two (2)
"non-employee directors" (within the meaning of Rule 16b-3(b)(3) under the
Securities Exchange Act of 1934, or any successor thereto) of the Company who
are also "outside directors" (within the meaning of Treas. Reg. Section
1.162-27(e)(3), or any successor thereto), who shall be appointed by, and shall
serve at the pleasure of, the Company's Board of Directors ("Board"). Each
member of such Committee, while serving as such, shall be deemed to be acting in
his or her capacity as a director of the Company.
The Committee shall have the authority, subject to the terms of the
Plan, to select the persons to be granted Options under the Plan, to grant
Options on behalf of the Company, and to set the date of grant and the other
terms of such Options. The Committee may correct any defect, supply any omission
and reconcile any inconsistency in the Plan and in any Option granted hereunder
in the manner and to the extent it shall deem desirable. The Committee also
shall have the authority to establish such rules and regulations, not
inconsistent with the provisions of the Plan, for the proper administration of
the Plan, and to amend, modify or rescind any such rules and regulations, and to
make such determinations and interpretations under, or in connection with, the
Plan, as it deems necessary or advisable. All such rules, regulations,
determinations and interpretations shall be binding and conclusive upon the
Company, its Subsidiaries and shareholders and
all officers and employees and former officers and employees, and upon their
respective legal representatives, beneficiaries, successors and assigns and upon
all other persons claiming under or through any of them. The Committee may
delegate to the Office of the President and/or to other senior officers of the
Company its duties under the Plan pursuant to such conditions or limitations as
the Committee may establish, except that only the Committee may make any awards
to or determinations regarding grants to employees who are subject to Section 16
of the Securities Exchange Act of 1934.
No member of the Board or the Committee, and no delegate of the
Committee, shall be liable for any action or determination made in good faith
with respect to the Plan or any Option granted hereunder.
SECTION 3
ELIGIBILITY
The class of employees who shall be eligible to receive Options under
the Plan shall be the employees, excluding officers and directors, of the
Company or of a Subsidiary ("Employees"). More than one Option may be granted to
an Employee under the Plan.
SECTION 4
STOCK
Subject to adjustment as hereinafter provided, the aggregate number of
shares of common stock of the Company, no par value ("Common Shares"), that may
be subject to Options under the Plan shall equal (i) 500,000 shares reduced by
the number of shares subject to options outstanding immediately prior to July
17, 2000, (ii) multiplied by two, (iii) reduced by the number of shares subject
to options issued on or after July 17, 2000, (iv) increased by 1,500,000 shares
and by the number of shares subject to options expiring or terminating on or
after July 17, 2000, which aggregate number equals 68,515 shares as of the
effective date of this amended and restated Plan. Shares issuable under the Plan
may be authorized but unissued shares or reacquired shares, as the Company may
determine from time to time. Any Common Shares subject to an Option which
expires or otherwise terminates for any reason whatever (including, without
limitation, the Employee's surrender thereof) without having been exercised
shall continue to be available for the granting of Options under the Plan.
SECTION 5
OPTIONS
(a) GRANTING OF OPTIONS. From time to time until the expiration or
earlier suspension or discontinuance of the Plan, the Committee may, on behalf
of the Company, grant to Employees under the Plan such Options as it determines
are warranted, subject to the limitations of the Plan. The granting of an Option
under the Plan shall not be deemed either to entitle the Employee to, or to
disqualify the Employee from, any participation in any other grant of Options
under the Plan. In making any determination as to whether an
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Employee shall be granted an Option and as to the number of shares to be covered
by such Option, the Committee shall take into account the duties of the
Employee, the Committee's views as to his or her present and potential
contributions to the success of the Company or a Subsidiary, and such other
factors as the Committee shall deem relevant in accomplishing the purposes of
the Plan. Moreover, the Committee may determine that the Grant Letter (as
defined below) shall provide that said Option may be exercised only if certain
conditions, as determined by the Committee, are fulfilled.
(b) TERMS AND CONDITIONS OF OPTIONS. The Options granted pursuant
to the Plan shall include expressly or by reference the following terms and
conditions, as well as such other provisions not inconsistent with the
provisions of this Plan as the Committee shall deem desirable:
(1) NUMBER OF SHARES. A statement of the number of Common
Shares to which the Option pertains.
(2) PRICE. A statement of the Option exercise price,
which shall be determined and fixed by the Committee in its discretion at the
time of grant, but shall not be less than 100% of the Fair Market Value of the
optioned Common Shares on the date the Option is granted. The term "Fair Market
Value" shall mean the value of the Common Shares arrived at by a good faith
determination of the Committee and shall be:
(A) The quoted closing price, if there is a
market for and there are sales of Common Shares on a registered securities
exchange or in an over the counter market, on the date specified;
(B) The weighted average of the quoted closing
prices on the nearest date before and the nearest date after the specified date,
if there are no sales of Common Shares on the specified date but there are such
sales on dates within a reasonable period both before and after the specified
date;
(C) The mean between the bid and asked prices,
as reported by the National Quotation Bureau on the specified date, if actual
sales are not available during a reasonable period beginning before and ending
after the specified date; or
(D) Such other method of determining Fair Market
Value as shall be authorized by the Code, or the rules or regulations
thereunder, and adopted by the Committee.
Where the Fair Market Value of Common Shares is determined
under (B) above, the average of the closing prices on the nearest sales date
before and the nearest date after the specified date shall be weighted inversely
by the respective numbers of trading days between the dates of reported sales
and the specified date (i.e., the valuation date), in accordance with Treasury
Regulation Section 20.2031-2(b)(1), or any successor thereto, under the Code.
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(3) TERM. Subject to earlier termination as provided in
Subsections (5) through (8) below, the term of each Option shall be not more
than 10 years from the date of grant, unless otherwise provided in the
applicable Grant Letter.
(4) EXERCISE.
(A) GENERAL. Options shall be exercisable in
such installments, on such dates, and/or upon fulfillment of such other
conditions as the Committee may specify, provided, however, that Options granted
prior to October 2, 2001, shall be exercisable in such installments commencing
not less than 12 months from the date of grant; and further provided that:
(i) In the case of new Options granted
to an Employee in replacement for options (whether granted under this Plan or
otherwise) held by the Employee, the new Options may be made exercisable, if so
determined by the Committee, in its discretion, at the earliest date the
replaced options were exercisable; and
(ii) The Committee may accelerate the
exercise date of any outstanding Options in its discretion, if it deems such
acceleration to be desirable.
Any Common Shares the right to the purchase of which has
accrued under an Option may be purchased at any time up to the expiration or
termination of the Option. Exercisable Options may be exercised, in whole or in
part, from time to time by giving written notice of exercise to the Company at
its principal office, specifying the number of Common Shares to be purchased and
accompanied by payment in full of the aggregate Option exercise price for such
shares (or by following any other procedure prescribed for this purpose by the
Committee or its appointed third-party administrator). Options may not be
exercised in installments of less than ten shares, unless such Option is
exhausted upon its exercise. Only full shares shall be issued under the Plan,
and any fractional share which might otherwise be issuable upon the exercise of
an Option granted hereunder shall be forfeited.
(B) MANNER OF PAYMENT. The Option price shall be
payable in cash or its equivalent.
(5) TERMINATION OF EMPLOYMENT. If an Employee's
employment by the Company (and Subsidiaries) is terminated by either party prior
to the expiration date fixed for his or her Option for any reason other than
death, disability, Retirement or Cause (as hereinafter defined), such Option may
be exercised, to the extent of the number of shares with respect to which the
Employee could have exercised it on the date of such termination, or to any
greater extent permitted by the Committee, by the Employee at any time prior to
the earlier of:
(A) The expiration date specified in such
Option; or
(B) Three months after the date of such
termination of employment.
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If an Employee's employment by the Company (and Subsidiaries)
is terminated for Cause, all Options held by the Employee shall terminate
concurrently with receipt by the Optionee of oral or written notice that his or
her employment has been terminated. For purposes of this Plan, termination for
Cause shall include termination by reason of any dishonest or illegal act, or
any willful refusal or failure to perform duties properly assigned.
(6) EXERCISE UPON RETIREMENT OF EMPLOYEE. If an Employee'
s employment is terminated prior to the expiration date fixed for his or her
Option by reason of Retirement (as hereinafter defined), such Option shall
accelerate and may be exercised, to the extent it remains unexercised on the
date of such Retirement, by the Employee at any time prior to the earlier of:
(A) The expiration date specified in such
Option; or
(B) One year after the date of such Retirement.
For purposes of this Plan, Retirement shall mean, effective
for options granted on or after February 12, 2002, an Employee's retirement from
the Company or one of its Subsidiaries at or after attaining age 50 and
completing at least three years of employment with the Company and its
Subsidiaries, provided the sum of the Employee's age and years of employment
with the Company and its Subsidiaries equals or exceeds 60. The Office of the
President of the Company shall have the authority to grant requests for
termination on account of Retirement under the Plan, provided the requirements
of the foregoing standard are met. With respect to options granted prior to
February 12, 2002, Retirement shall mean (i) for options granted on or after May
16, 2000, an Employee's retirement from the Company or one of its Subsidiaries
at or after attaining the customary retirement age for the Employee's country
(as determined by the Company, in its sole discretion) and completing at least
five years of employment with the Company and its Subsidiaries, or before such
time if expressly agreed to by the Company, and (ii) for options granted prior
to May 16, 2000, an Employee's retirement from the Company or one of its
Subsidiaries at or after attaining the customary retirement age for the
Employee's country (as determined by the Company, in its sole discretion).
(7) EXERCISE UPON DISABILITY OF EMPLOYEE. If an Employee
shall become disabled (within the meaning of any applicable short-term
disability or long-term disability program of the Company or a Subsidiary, or as
otherwise determined by the Committee) during his or her employment and, prior
to the expiration date fixed for his or her Option, his or her employment is
terminated as a consequence of such disability, such Option shall accelerate and
may be exercised, to the extent it remains unexercised on the date of such
termination, by the Employee at any time prior to the earlier of:
(A) The expiration date specified in such
Option; or
(B) One year after the date of such termination
of employment.
In the event of the Employee's legal disability, such Option
may be so exercised by the Employee's legal representative.
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(8) EXERCISE UPON DEATH OF EMPLOYEE. If an Employee shall
die during his or her employment and prior to the expiration date fixed for his
or her Option, or if an Employee whose employment is terminated for any reason
shall die following his or her termination of employment but prior to the
earliest of:
(A) The expiration date fixed for his or her
Option;
(B) The expiration of the period determined
under Subsections (5), (6) (if applicable), and (7) above;
his or her Option shall accelerate and may be exercised, to the extent it
remains unexercised on the date of his or her death, by the Employee's estate,
personal representative or beneficiary who acquired the right to exercise such
Option by bequest or inheritance or by reason of the death of the Employee, at
any time prior to the earlier of:
(i) The expiration date specified in
such Option; or
(ii) One year after the date of death.
(9) RIGHTS AS A SHAREHOLDER. An Employee shall have no
rights as a shareholder with respect to any shares covered by his or her Option
until the issuance of a stock certificate to him or her for such shares.
(c) GRANT LETTERS. Options granted under the Plan shall be
evidenced by written documents ("Grant Letters") in such form as the Committee
shall, from time to time, approve, which Grant Letters shall contain such
provisions, not inconsistent with the provisions of the Plan, for Options
granted pursuant to the Plan as the Committee shall deem advisable. Each
Employee shall be bound by the terms of the Grant Letter.
SECTION 6
CAPITAL ADJUSTMENTS
The number of shares which may be issued under the Plan, as stated in
Section 4 hereof, and the number of shares issuable upon exercise of outstanding
Options under the Plan (as well as the Option exercise price per share under
such outstanding Options) shall, subject to the provisions of section 424(a) of
the Code, be adjusted, as may be deemed appropriate by the Committee, to reflect
any stock dividend, stock split, share combination, or similar change in the
capitalization of the Company.
In the event of a corporate transaction (as that term is described in
section 424(a) of the Code and the Treasury Regulations issued thereunder as,
for example, a merger, consolidation, acquisition of property or stock,
separation, reorganization, or liquidation), each outstanding Option shall be
assumed by the surviving or successor corporation; provided, however, that in
the event of a proposed corporate transaction, the Committee may terminate all
or a portion of the outstanding Options if it determines that such termination
is in the best interests of the Company. If the Committee decides to terminate
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outstanding Options, the Committee shall give each Employee holding an Option to
be terminated not less than ten days' notice prior to any such termination by
reason of such a corporate transaction, and any such Option which is to be so
terminated shall become fully exercisable and may be exercised up to, and
including the date immediately preceding such termination.
The Committee also may, in its discretion, change the terms of any
outstanding Option to reflect any such corporate transaction.
SECTION 7
CHANGE IN CONTROL
All Options shall become fully vested and exercisable upon a Change in
Control of the Company. "Change in Control" shall mean any of the following
events:
(a) An acquisition (other than directly from the Company) of any
voting securities of the Company ("Voting Securities") by any "Person" (as such
term is used for purposes of section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act")) immediately after which such Person
has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under
the 1934 Act) of 50% or more of the combined voting power of all then
outstanding Voting Securities, provided, however, that any such acquisition
approved by two-thirds of the Incumbent Board (as hereinafter defined) shall not
be deemed to be a Change in Control;
(b) The individuals who, as of September 28, 1999, are members of
the Company's Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least two-thirds of the Board of Directors; provided, however,
that if the election, or nomination for election by the shareholders, of any new
director was approved by a vote of at least two-thirds of the members of the
Board of Directors who constitute Incumbent Board members, such new directors
shall for all purposes be considered as members of the Incumbent Board as of
September 28, 1999; provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened "Election Contest" (as
described in Rule 14a-11 promulgated under the 1934 Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board of Directors (a "Proxy Contest") including by reason of any
agreement intended to avoid or settle any Election Contest or Proxy Contest;
(c) Approval by shareholders of the Company of (1) a merger or
consolidation involving the Company if the shareholders of the Company
immediately before such merger or consolidation do not own, directly or
indirectly, immediately following such merger or consolidation more than 50% of
the combined voting power of the outstanding Voting Securities of the
corporation resulting from such merger or consolidation in substantially the
same proportion as their ownership of the Voting Securities immediately before
such merger or consolidation or (2) a complete liquidation or dissolution of the
Company or an agreement for the sale or other disposition of all or
substantially all of the assets of the Company; or
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(d) Acceptance of shareholders of the Company of shares in a share
exchange if the shareholders of the Company immediately before such share
exchange do not own, directly or indirectly, immediately following such share
exchange more than 50% of the combined voting power of the outstanding Voting
Securities of the corporation resulting from such share exchange in
substantially the same proportion as their ownership of the Voting Securities
outstanding immediately before such share in exchange substantially the same
proportion as their ownership of the Voting Securities outstanding immediately
before such share exchange.
SECTION 8
AMENDMENT OR DISCONTINUANCE OF THE PLAN
At any time and from time to time, the Board may unilaterally suspend
or terminate the Plan or amend it, and the Committee may amend any outstanding
Options, in any respect whatsoever, provided, however, that no such suspension,
discontinuance or amendment shall materially impair the rights of any holder of
an outstanding Option without the consent of such holder.
SECTION 9
TERMINATION OF PLAN
Unless earlier terminated as provided in the Plan, the Plan and all
authority granted hereunder shall terminate absolutely at 12:00 midnight on
September 27, 2009, which date is within ten years after the date the Plan was
adopted by the Board, and no Options hereunder shall be granted thereafter.
Nothing contained in this Section 9, however, shall terminate or affect the
continued existence of rights created under Options issued hereunder and
outstanding on September 27, 2009 which by their terms extend beyond such date.
SECTION 10
EFFECTIVE DATE
This Plan became effective on September 28, 1999 (the date the Plan was
adopted by the Board). As amended and restated, the Plan shall be effective
March 21, 2003.
SECTION 11
MISCELLANEOUS
(a) GOVERNING LAW. The Plan and the Grant Letters entered into,
and the Options granted thereunder, shall be governed by the applicable Code
provisions to the maximum extent possible. Otherwise, the operation of, and the
rights of Employees under, the Plan, the Grant Letters, and the Options shall be
governed by applicable United States federal law and otherwise by the laws of
the Commonwealth of Pennsylvania.
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(b) RIGHTS. Neither the adoption of the Plan nor any action of the
Board or the Committee shall be deemed to give any individual any right to be
granted an Option, or any other right hereunder, unless and until the Committee,
in its sole discretion, shall have granted such individual an Option, and then
his or her rights shall be only such as are provided by this Plan and the Grant
Letter.
Any Option under the Plan shall not entitle the holder thereof to any
rights as a shareholder of the Company prior to the exercise of such Option and
the issuance of the shares pursuant thereto. Further, notwithstanding any
provisions of the Plan or any Grant Letter with an Employee, the Company shall
have the right, in its discretion, to retire an Employee at any time pursuant to
its retirement rules or otherwise to terminate his or her employment at any time
for any reason whatsoever.
(c) NO OBLIGATION TO EXERCISE OPTION. The granting of an Option
shall impose no obligation upon an Employee to exercise such Option.
(d) NON-TRANSFERABILITY. Except as otherwise provided by the
Committee, no Option shall be assignable or transferable by the Employee
otherwise than by will or by the laws of descent and distribution, and subject
to the preceding clause, during the lifetime of the Employee, any Options shall
be exercisable only by him or her or by his or her guardian or legal
representative. If an Employee is married at the time of exercise of an Option
and if the Employee so requests at the time of exercise, the certificate or
certificates issued shall be registered in the name of the Employee and the
Employee's spouse, jointly, with right of survivorship.
(e) WITHHOLDING TO SATISFY TAX OBLIGATIONS. The obligation of the
Company to deliver Common Shares to an Employee pursuant to any Option under the
Plan shall be subject to applicable tax withholding requirements.
(f) LISTING AND REGISTRATION OF SHARES. Each Option shall be
subject to the requirement that, if at any time the Committee shall determine,
in its discretion, that the listing, registration or qualification of the shares
covered thereby upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of such Option
or the purchase or vesting of shares thereunder, or that action by the Company
or by the Employee should be taken in order to obtain an exemption from any such
requirement, no such Option may be exercised, in whole or in part, unless and
until such listing, registration, qualification, consent, approval, or action
shall have been effected, obtained, or taken under conditions acceptable to the
Committee. Without limiting the generality of the foregoing, each Employee or
his or her legal representative or beneficiary may also be required to give
satisfactory assurance that shares purchased upon exercise of an Option are
being purchased for investment and not with a view to distribution, and
certificates representing such shares may be legended accordingly.
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