Exhibit 4.4
VEECO INSTRUMENTS INC.
2000 STOCK OPTION PLAN FOR NON-OFFICER EMPLOYEES
(Effective as of October 26, 2000)
1. Purpose
The purpose of the Plan is to provide a means through which the Company
and its Affiliates may attract capable persons to enter and remain in the employ
of the Company and Affiliates and to provide a means whereby non-officer
employees of the Company and its Affiliates can acquire and maintain Common
Stock ownership, thereby strengthening their commitment to the welfare of the
Company and Affiliates and promoting an identity of interest between
stockholders and these employees.
The Plan provides for granting Nonqualified Stock Options.
2. DEFINITIONS
The following definitions shall be applicable throughout the Plan.
"Affiliate" means (i) any entity that directly or indirectly is
controlled by, or is under common control with the Company, (ii) any entity in
which the Company has a significant equity interest, and (iii) any Subsidiary;
in each case as determined by the Committee.
"Board" means the Board of Directors of the Company or, to the extent
the Board of Directors of the Company has authorized a committee thereof to take
action with respect to the Plan on its behalf, the committee so authorized.
"Cause" means the Company or an Affiliate having "cause" to terminate a
Participant's employment or service, as defined in any existing agreement
between the Participant and the Company or an Affiliate or, in the absence of
such an agreement, upon (i) the determination by the Committee that the
Participant has ceased to perform his duties to the Company or an Affiliate
(other than as a result of his incapacity due to physical or mental illness or
injury), which failure amounts to an intentional and extended neglect of his
duties to such party, (ii) the Committee's determination that the Participant
has engaged or is about to engage in conduct materially injurious to the Company
or an Affiliate, (iii) the Participant having been convicted of, or pleaded
guilty or no contest to, a felony or a crime involving moral turpitude or (iv)
the failure of the Participant to follow instruction of the Board or his direct
superiors.
"Change in Control, shall, unless in the case of a particular Option
the applicable Stock Option Agreement states otherwise or contains a different
definition of "Change in Control", be deemed to occur upon:
(i) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (each, a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 30% or more (on a fully diluted
basis) of either (A) the then outstanding shares of Common Stock,
taking into account as outstanding for this purpose such Common Stock
issuable upon the exercise of options or warrants, the conversion of
convertible stock or debt, and the exercise of any similar right to
acquire such common stock (the "Outstanding Company Common Stock") or
(B) the combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities"); PROVIDED, HOWEVER, that
for purposes of the Plan, the following acquisitions shall not
constitute a Change of Control: (I) any acquisition by the Company,
(II) any acquisition by any employee benefit plan sponsored or
maintained by the Company or any Affiliate, (III) any acquisition by
any Person which complies with clauses (A), (B) and (C) of subsection
(v) of this Section 2(f), or (IV) in respect of an Award held by a
particular Participant, any acquisition by the Participant or any
"affiliate" (within the meaning of 17 C.F.R. Section 230.405) of the
Participant (persons described in clauses (I), (II), and (IV) being
referred to hereafter as "Excluded Persons");
(ii) Individuals who, on the date hereof, constitute the
Board (the "Incumbent Directors") cease for any reason to constitute at
least a majority of the Board, PROVIDED that any person becoming a
director subsequent to the date hereof, whose election or nomination
for election was approved by a vote of at least two-thirds of the
Incumbent Directors then on the Board (either by a specific vote or by
approval of the proxy statement of the Corporation in which such person
is named as a nominee for director, without written objection to such
nomination) shall be deemed to be an Incumbent Director; PROVIDED,
HOWEVER, that no individual initially elected or nominated as a
director of the Corporation as a result of an actual or threatened
election contest with respect to directors or as a result of any other
actual or threatened solicitation of proxies or consents by or on
behalf of any person other than the Board shall be deemed to be an
Incumbent Director;
(iii) the dissolution or liquidation of the Company;
(iv) the sale of all or substantially all of the business
or assets of the Company; or
(v) the consummation of a merger, consolidation, statutory
share exchange or similar form of corporate transaction involving the
Company that requires the approval of the Company's stockholders,
whether for such transaction or the issuance of securities in the
transaction (a "Business Combination"), unless immediately following
such Business Combination: (A) more than 50% of the total voting power
of (x) the corporation resulting from such Business Combination (the
"Surviving Corporation"), or (y) if applicable, the ultimate parent
corporation that directly or indirectly has beneficial ownership of
sufficient voting securities eligible to elect a majority of the
directors of the Surviving Corporation (the "Parent Corporation"), is
represented by the Outstanding Company Voting Securities that were
outstanding
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immediately prior to such Business Combination (or, if applicable, is
represented by shares into which the Outstanding Company Voting
Securities were converted pursuant to such Business Combination), (B)
no Person (other than any Excluded Person), is or becomes the
beneficial owner, directly or indirectly, of 30% or more of the total
voting power of the outstanding voting securities eligible to elect
directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) and (C) at least a majority of
the members of the board of directors of the Parent Corporation (or, if
there is no Parent Corporation, the Surviving Corporation) following
the consummation of the Business Combination were Incumbent Directors.
"Code" means the Internal Revenue Code of 1986, as amended. Reference
in the Plan to any section of the Code shall be deemed to include any amendments
or successor provisions to such section and any regulations under such section.
"Committee" means a committee of at least two people as the Board may
appoint to administer the Plan or, if no such committee has been appointed by
the Board, the Board. Unless the Board is acting as the Committee or the Board
specifically determines otherwise, each member of the Committee shall, at the
time he takes any action with respect to a Option under the Plan, be an Eligible
Director. However, the mere fact that a Committee member shall fail to qualify
as an Eligible Director shall not invalidate any Option granted by the Committee
which Option is otherwise validly made under the Plan.
"Common Stock" means the common stock, par value $0.01 per share, of
the Company.
"Company" means Veeco Instruments Inc.
"Date of Grant" means the date on which the granting of an Option is
authorized, or such other date as may be specified in such authorization or, if
there is no such date, the date indicated on the applicable Stock Option
Agreement.
"Disability" means, unless in the case of a particular Option, the
applicable Option Agreement states otherwise, entitled to receive benefits under
the long-term disability plan of the Company or an Affiliate, as may be
applicable to the Participant in question, or, in the absence of such a plan,
the complete and permanent inability by reason of illness or accident to perform
the duties of the occupation at which a Participant was employed or served when
such disability commenced or, as determined by the Committee based upon medical
evidence acceptable to it.
"Effective Date" means the means the date on which the Plan is approved
by the Board.
"Eligible Director" means a person who is a "non-employee director"
within the meaning of Rule 16b-3 under the Exchange Act, or a person meeting any
similar requirement under any successor rule or regulation.
"Eligible Person" means any individual regularly employed by the
Company or an Affiliate who satisfies all of the requirements of Section 6 and
who is not, at the time of grant, an
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officer of the Company or such Affiliate; PROVIDED, HOWEVER, that no such
employee covered by a collective bargaining agreement shall be an Eligible
Person unless and to the extent that such eligibility is set forth in such
collective bargaining agreement or in an agreement or instrument relating
thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value", on a given date means (i) if the Stock is listed
on a national securities exchange, the closing price on the primary exchange
with which the Stock is listed and traded on the date prior to such date, or, if
there is no such sale on that date, then on the last preceding date on which
such a sale was reported; (ii) if the Stock is not listed on any national
securities exchange but is quoted in the National Market System of the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") on a
last sale basis, the closing price reported on the date prior to such date, or,
if there is no such sale on that date, then on the last preceding date on which
a sale was reported; or (iii) if the Stock is not listed on a national
securities exchange nor quoted in the NASDAQ on a last sale basis, the amount
determined by the Committee to be the fair market value based upon a good faith
attempt to value the Stock accurately and computed in accordance with applicable
regulations of the Internal Revenue Service.
"Mature Shares" means shares of Stock owned by a Participant which are
not subject to any pledge or other security interest and have either been held
by the Participant for six months, previously acquired by the Participant on the
open market or meet such other requirements as the Committee may determine
necessary in order to avoid an accounting earnings charge on account of the use
of such shares to pay the Option Price or satisfy a withholding obligation in
respect of an Option.
"Nonqualified Stock Option" means an Option granted by the Committee to
a Participant under the Plan. Nonqualified Stock Options shall not be incentive
stock options as described in Section 422 of the Code.
"Normal Termination" means termination of employment with the Company
or an Affiliate:
(i) on account of death or Disability; or
(ii) by the Company or such Affiliate without Cause.
"Option" means an award granted under Section 7.
"Option Period" means the period described in Section 7(d).
"Option Price" means the exercise price for an Option as described in
Section 7(a).
"Participant" means an Eligible Person who has been selected by the
Committee to participate in the Plan and to receive an Option pursuant to
Section 6.
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"Plan" means this Veeco Instruments Inc. 2000 Stock Option Plan for
Non-Officer Employees.
"Securities Act" means the Securities Act of 1933, as amended.
"Stock" means the Common Stock or such other authorized shares of stock
of the Company as the Committee may from time to time authorize for use under
the Plan.
"Stock Option Agreement" means any agreement between the Company and a
Participant who has been granted an Option pursuant to Section 7 which defines
the rights and obligations of the parties thereto.
"Subsidiary" means any subsidiary of the Company as defined in Section
424(f) of the Code.
3. EFFECTIVE DATE AND DURATION
The Plan is effective as of the Effective Date. The expiration date of
the Plan, on and after which no Options may be granted hereunder, shall be the
tenth anniversary of the Effective Date; PROVIDED, HOWEVER, that the
administration of the Plan shall continue in effect until all matters relating
to Options previously granted have been settled.
4. ADMINISTRATION
The Committee shall administer the Plan. A majority of the members of
the Committee shall constitute a quorum. The acts of a majority of the members
present at any meeting at which a quorum is present or acts approved in writing
by a majority of the Committee shall be deemed the acts of the Committee.
Subject to the provisions of the Plan and applicable law, the Committee
shall have the power, in addition to other express powers and authorizations
conferred on the Committee by the Plan, to: (i) designate Participants; (ii)
determine the number of Shares to be covered by, or with respect to which
payments, rights, or other matters are to be calculated in connection with,
Options; (iii) determine the terms and conditions of any Options; (iv) determine
whether, to what extent, and under what circumstances Options may be settled or
exercised in cash, Stock, other securities, other Options or other property, or
canceled, forfeited or suspended and the method or methods by which Options may
be settled, exercised, canceled, forfeited or suspended; (v) determine whether,
to what extent, and under what circumstances cash, Shares, other securities,
other Options, other property and other amounts payable with respect to an
Option shall be deferred either automatically or at the election of the holder
thereof or of the Committee; (vi) interpret, administer reconcile any
inconsistency, correct any default and/or supply any omission in the Plan and
any instrument or agreement relating to, or Option granted under, the Plan;
(vii) establish, amend, suspend, or waive such rules and regulations and appoint
such agents as it shall deem appropriate for the proper administration of the
Plan; and (viii) make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of the Plan.
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(b) Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations and other decisions under or with respect to the
Plan or any Option or any documents evidencing Options shall be within the sole
discretion of the Committee, may be made at any time and shall be final,
conclusive and binding upon all parties, including, without limitation, the
Company, any Affiliate, any Participant, any holder or beneficiary of any
Option, and any shareholder.
5. GRANT OF AWARDS; SHARES SUBJECT TO THE PLAN
The Committee may, from time to time, grant Options to one or more
Eligible Persons; PROVIDED, HOWEVER, that:
(a) Subject to Section 9, the aggregate number of shares of
Stock in respect of which Options may be granted under the Plan shall not exceed
150,000;
(b) Shares authorized under the Plan shall be deemed to
have been used in settlement of Options whether or not they are actually
delivered. In the event any Option shall be surrendered, terminate, expire, or
be forfeited, the number of shares of Stock no longer subject thereto shall
thereupon be released and shall thereafter be available for new grants under the
Plan;
(c) Stock delivered by the Company in settlement of
Options granted under the Plan may be authorized and unissued Stock or Stock
held in the treasury of the Company or may be purchased on the open market or by
private purchase;
(d) Subject to Section 9, no person may be granted Options
under the Plan during any calendar year with respect to more than 25,000 shares
of Stock;
(e) Without limiting the generality of the preceding
provisions of this Section 5, the Committee may, but solely with the
Participant's consent, agree to cancel any Option under the Plan and issue a new
Option in substitution therefor upon such terms as the Committee may in its sole
discretion determine, PROVIDED that the substituted Option satisfies all
applicable Plan requirements as of the date such new Option grant is made,
PROVIDED FURTHER that, without shareholder approval, no such action may lower
the exercise price of a previously granted option.
6. ELIGIBILITY
Participation shall be limited to Eligible Persons who have received
written notification from the Committee, or from a person designated by the
Committee, that they have been selected to participate in the Plan.
7. TERMS OF OPTIONS
(a) OPTION GRANTS. The Committee is authorized to grant
one or more Nonqualified Stock Options to any Eligible Person. Each Option so
granted shall be
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subject to the following conditions of this Section 7, or to such other
conditions as may be reflected in the applicable Stock Option Agreement.
(b) OPTION PRICE. The exercise price ("Option Price") per
share of Stock for each Option shall be set by the Committee at the time of
grant but shall not be less than the Fair Market Value of a share of Stock on
the Date of Grant.
(c) MANNER OF EXERCISE AND FORM OF PAYMENT. No shares of
Stock shall be delivered pursuant to any exercise of an Option until payment in
full of the aggregate exercise price therefor is received by the Company.
Options which have become exercisable may be exercised by delivery of written
notice of exercise to the Committee accompanied by payment of the Option Price.
The Option Price shall be payable in cash and/or, at the sole discretion of the
Committee, shares of Stock valued at the Fair Market Value at the time the
Option is exercised (including by means of attestation of ownership of a
sufficient number of shares of Stock in lieu of actual delivery of such shares
to the Company), PROVIDED that such shares of Stock are Mature Shares, or, in
the discretion of the Committee, either (i) in other property having a fair
market value on the date of exercise equal to the Option Price, (ii) by
delivering to the Committee a copy of irrevocable instructions to a stockbroker
to deliver promptly to the Company an amount of loan proceeds, or proceeds of
the sale of the Stock subject to the Option, sufficient to pay the Option Price
or (iii) by such other method as the Committee may allow.
(d) VESTING. Unless otherwise provided in a Stock Option
Agreement or other written agreement between the Company and a Participant,
Options shall vest and become exercisable as follows:
(x) with respect to one-third of the shares of Stock
covered by the Option, on the first anniversary of the Date
of Grant;
(y) with respect to an additional one-third of the
shares of Stock covered by the Option, on the second anniversary of the Date of
Grant;
(z) with respect to the remaining one-third of the
shares of Stock covered by the Option, on the third anniversary of the Date of
Grant.
Notwithstanding the foregoing, the Committee may, in its sole discretion,
accelerate the exercisability of any Option, which acceleration shall not affect
the terms and conditions of any such Option other than with respect to
exercisability. If an Option is exercisable in installments, such installments
or portions thereof which become exercisable shall remain exercisable until the
Option expires.
(e) OPTION PERIOD AND TERMINATION. An Option may be exercised
by the holder thereof in accordance with Section 7(d) above; PROVIDED, HOWEVER,
that no Option shall be exercisable later than seven years from the Date of
Grant (the "Option Period"). Notwithstanding the foregoing, unless the
applicable Stock Option Agreement or other written agreement between the Company
and a Participant provides otherwise, an Option shall expire earlier than the
end of the Option Period in the following circumstances:
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(i) If prior to the end of the Option Period, the
Participant shall undergo a Normal Termination, the Option shall expire on the
earlier of the last day of the Option Period or the date that is three months
after the date of such Normal Termination; PROVIDED, HOWEVER, that any
Participant whose employment with the Company or any Affiliate is terminated and
who is subsequently rehired by the Company or any Affiliate prior to the
expiration of the Option shall not be considered to have undergone a
termination. In the event of a Normal Termination, the Option shall remain
exercisable by the Participant for the period described above, only to the
extent the Option was exercisable at the time of such Normal Termination.
(ii) If the Participant dies prior to the end of the
Option Period and while still in the employ or service of the Company or an
Affiliate, or following a Normal Termination but prior to the expiration of an
Option, the Option shall expire on the earlier of the last day of the Option
Period and the date that is one year after the date of death of the Participant.
In such event, the Option shall remain exercisable by the person or persons to
whom the Participant's rights under the Option pass by will or the applicable
laws of descent and distribution until its expiration, only to the extent the
Option was exercisable by the Participant at the time of death.
(iii) If the Participant ceases employment with the
Company and Affiliates for reasons other than Normal Termination or death, the
Option shall expire immediately upon such cessation of employment.
(f) OTHER TERMS AND CONDITIONS. Except as specifically provided
otherwise in a Stock Option Agreement, each Option granted under the Plan shall
be subject to the following terms and conditions:
(i) Each Option or portion thereof that is exercisable
shall be exercisable for the full amount of such exercisable portion or for any
part thereof.
(ii) Each Option shall cease to be exercisable, as to any
share of Stock, when the Participant purchases the share or when the Option
expires.
(iii) Subject to Section 8(h), Options shall not be
transferable by the Participant except by will or the laws of descent and
distribution and shall be exercisable during the Participant's lifetime only by
him.
(iv) Each Option shall vest and become exercisable by the
Participant in accordance the provisions of Section 7(d).
(v) At the time of any exercise of an Option, the Committee
may, in its sole discretion, require a Participant to deliver to the Committee a
written representation that the shares to be acquired upon such exercise are to
be acquired for investment and not for resale or with a view to the distribution
thereof. Upon such a request by the Committee, delivery of such representation
prior to the delivery of any shares issued upon exercise of an Option shall be a
condition precedent to the right of the Participant or such other person to
purchase any shares. In the event certificates for Stock
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are delivered under the Plan with respect to which such investment
representation has been obtained, the Committee may cause a legend or legends to
be placed on such certificates to make appropriate reference to such
representation and to restrict transfer in the absence of compliance with
applicable federal or state securities laws.
(g) VOLUNTARY SURRENDER. The Committee may permit the
voluntary surrender of all or any portion of any Nonqualified Stock Option
granted under the Plan to be conditioned upon the granting to the Participant of
a new option for the same or a different number of shares as the option
surrendered or require such voluntary surrender as a condition precedent to a
grant of a new Option to such Participant. Such new Option shall be exercisable
at an Option Price, during an Option Period, and in accordance with any other
terms or conditions specified by the Committee at the time the new Option is
granted, all determined in accordance with the provisions of the Plan without
regard to the Option Price, Option Period, or any other terms and conditions of
the Nonqualified Stock Option surrendered.
8. GENERAL
(a) ADDITIONAL PROVISIONS OF AN OPTION. Options granted
to a Participant under the Plan also may be subject to such other provisions
(whether or not applicable to the benefit awarded to any other Participant) as
the Committee determines appropriate including, without limitation, provisions
to assist the Participant in financing the purchase of Stock upon the exercise
of options, provisions for the forfeiture of or restrictions on resale or other
disposition of shares of Stock acquired under any Option, provisions giving the
Company the right to repurchase shares of Stock acquired under any Option in the
event the Participant elects to dispose of such shares, provisions allowing the
Participant to elect to defer the receipt of shares of Stock upon the exercise
of Options for a specified time or until a specified event, and provisions to
comply with Federal and state securities laws and Federal and state tax
withholding requirements. Any such provisions shall be reflected in the
applicable Stock Option Agreement.
(b) PRIVILEGES OF STOCK OWNERSHIP. Except as otherwise
specifically provided in the Plan, no person shall be entitled to the privileges
of ownership in respect of shares of Stock which are subject to Options
hereunder until such shares have been issued to that person.
(c) GOVERNMENT AND OTHER REGULATIONS. The obligation of
the Company to make payment of Options in Stock or otherwise shall be subject to
all applicable laws, rules, and regulations, and to such approvals by
governmental agencies as may be required. Notwithstanding any terms or
conditions of any Option to the contrary, the Company shall be under no
obligation to offer to sell or to sell and shall be prohibited from offering to
sell or selling any shares of Stock pursuant to an Option unless such shares
have been properly registered for sale pursuant to the Securities Act with the
Securities and Exchange Commission or unless the Company has received an opinion
of counsel, satisfactory to the Company, that such shares may be offered or sold
without such registration pursuant to an available exemption therefrom and the
terms and conditions of such exemption have been fully complied with. The
Company shall be under no obligation to register for sale under the Securities
Act any of the shares of Stock to be offered or sold under the Plan. If the
shares of Stock offered for sale or sold under the Plan are offered or sold
pursuant to an exemption from registration under the Securities
9
Act, the Company may restrict the transfer of such shares and may legend the
Stock certificates representing such shares in such manner as it deems advisable
to ensure the availability of any such exemption.
(d) TAX WITHHOLDING.
(i) A Participant may be required to pay to the
Company or any Affiliate and the Company or any Affiliate shall have the right
and is hereby authorized to withhold from any Shares or other property
deliverable under any Option or from any compensation or other amounts owing to
a Participant the amount (in cash, Stock or other property) of any required tax
withholding and payroll taxes in respect of an Option, its exercise, or any
payment or transfer under an Option or under the Plan and to take such other
action as may be necessary in the opinion of the Company to satisfy all
obligations for the payment of such taxes.
(ii) Without limiting the generality of clause (i)
above, the Committee may, in its sole discretion, permit a Participant to
satisfy, in whole or in part, the foregoing withholding liability (but no more
than the minimum required withholding liability) by (A) delivery of shares of
Stock owned by the Participant (which shares must be Mature Shares) with a Fair
Market Value equal to such withholding liability or (B) having the Company
withhold from the number of shares of Stock otherwise issuable pursuant to the
exercise of the Option a number of shares with a Fair Market Value equal to such
withholding liability.
(e) CLAIM TO OPTIONS AND EMPLOYMENT RIGHTS. No employee
of the Company or any Affiliate, or other person, shall have any claim or right
to be granted an Option under the Plan or, having been selected for the grant of
an Option, to be selected for a grant of any other Award. Neither the Plan nor
any action taken hereunder shall be construed as giving any Participant any
right to be retained in the employ or service of the Company or any Affiliate.
(f) NO LIABILITY OF COMMITTEE MEMBERS. No member of the
Committee shall be personally liable by reason of any contract or other
instrument executed by such member or on his behalf in his capacity as a member
of the Committee nor for any mistake of judgment made in good faith, and the
Company shall indemnify and hold harmless each member of the Committee and each
other employee, officer or director of the Company to whom any duty or power
relating to the administration or interpretation of the Plan may be allocated or
delegated, against any cost or expense (including counsel fees) or liability
(including any sum paid in settlement of a claim) arising out of any act or
omission to act in connection with the Plan unless arising out of such person's
own fraud or willful bad faith; PROVIDED, HOWEVER, that approval of the Board
shall be required for the payment of any amount in settlement of a claim against
any such person. The foregoing right of indemnification shall not be exclusive
of any other rights of indemnification to which such persons may be entitled
under the Company's Articles of Incorporation or By-Laws, as a matter of law, or
otherwise, or any power that the Company may have to indemnify them or hold them
harmless.
(g) GOVERNING LAW. The Plan shall be governed by and
construed in accordance with the internal laws of the State of Delaware without
regard to the principles of
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conflicts of law thereof, or principals of conflicts of laws of any other
jurisdiction which could cause the application of the laws of any jurisdiction
other than the State of Delaware.
(h) NONTRANSFERABILITY.
(i) Each Option shall be exercisable only by the
Participant during the Participant's lifetime, or, if permissible under
applicable law, by the Participant's legal guardian or representative. No Option
may be assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by a Participant otherwise than by will or by the laws of descent and
distribution and any such purported assignment, alienation, pledge, attachment,
sale, transfer or encumbrance shall be void and unenforceable against the
Company or any Affiliate; PROVIDED that the designation of a beneficiary shall
not constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance.
(ii) Notwithstanding the foregoing, the Committee or
its delegate may, in its sole discretion, permit Nonqualified Stock Options to
be transferred by a Participant, without consideration, subject to such rules as
the Committee may adopt consistent with any applicable Stock Option Agreement to
preserve the purposes of the Plan, to:
(A) any person who is a "family member" of the
Participant, as such term is used in the instructions
to Form S-8 (collectively, the "Immediate Family
Members");
(B) a trust solely for the benefit of the Participant and
his or her Immediate Family Members;
(C) a partnership or limited liability company whose only
partners or shareholders are the Participant and his
or her Immediate Family Members; or
(D) any other transferee as may be approved either (a)
by the Board or the Committee in its sole discretion,
or (b) as provided in the applicable Stock Option
Agreement;
(each transferee described in clauses (A), (B), (C) and (D) above is hereinafter
referred to as a "Permitted Transferee"); PROVIDED that the Participant gives
the Committee advance written notice describing the terms and conditions of the
proposed transfer and the Committee notifies the Participant in writing that
such a transfer would comply with the requirements of the Plan. For purposes of
this paragraph, "delegate" shall refer to the Chief Executive Officer of the
Company, except with respect to the transfer of any of Chief Executive Officer's
own Options.
(iii) The terms of any Option transferred in
accordance with the immediately preceding sentence shall apply to the Permitted
Transferee and any reference in the Plan, or in any applicable Stock Option
Agreement, to a Participant shall be deemed to refer to the Permitted
Transferee, except that (A) Permitted Transferees shall not be entitled to
transfer any Options, other than by will or the laws of descent and
distribution; (B) Permitted Transferees shall not be entitled to exercise any
transferred Options unless there shall be in effect a
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registration statement on an appropriate form covering the shares to be acquired
pursuant to the exercise of such Option if the Committee determines, consistent
with any applicable Stock Option Agreement, that such a registration statement
is necessary or appropriate, (C) the Committee or the Company shall not be
required to provide any notice to a Permitted Transferee, whether or not such
notice is or would otherwise have been required to be given to the Participant
under the Plan or otherwise, and (D) the consequences of termination of the
Participant's employment by, or services to, the Company or any Affiliate under
the terms of the Plan and the applicable Stock Option Agreement shall continue
to be applied with respect to the Participant, following which the Options shall
be exercisable by the Permitted Transferee only to the extent, and for the
periods, specified in the Plan and the applicable Stock Option Agreement.
(i) RELIANCE ON REPORTS. Each member of the Committee
and each member of the Board shall be fully justified in relying, acting or
failing to act, and shall not be liable for having so relied, acted or failed to
act in good faith, upon any report made by the independent public accountant of
the Company and upon any other information furnished in connection with the Plan
by any person or persons other than himself.
(j) RELATIONSHIP TO OTHER BENEFITS. No payment under the
Plan shall be taken into account in determining any benefits under any pension,
retirement, profit sharing, group insurance or other benefit plan of the Company
or any Affiliate except as otherwise specifically provided in such other plan.
(k) EXPENSES. The expenses of administering the Plan
shall be borne by the Company.
(l) PRONOUNS. Masculine pronouns and other words of
masculine gender shall refer to both men and women.
(m) TITLES AND HEADINGS. The titles and headings of the
sections in the Plan are for convenience of reference only, and in the event of
any conflict, the text of the Plan, rather than such titles or headings shall
control.
(n) TERMINATION OF EMPLOYMENT. For all purposes herein,
a person who transfers from employment with the Company to employment with an
Affiliate or vice versa, or from employment with one Affiliate to employment
with another Affiliate, shall not be deemed to have terminated employment with
the Company or any such Affiliate.
(o) SEVERABILITY. If any provision of the Plan or any
Stock Option Agreement is or becomes or is deemed to be invalid, illegal, or
unenforceable in any jurisdiction or as to any person or Option, or would
disqualify the Plan or any Option under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to the
applicable laws, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of the Plan or
the Option, such provision shall be stricken as to such jurisdiction, person or
Option and the remainder of the Plan and any such Option shall remain in full
force and effect.
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9. CHANGES IN CAPITAL STRUCTURE
Options granted under the Plan and any Stock Option Agreements, the
maximum number of shares of Stock subject to all Options stated in Section 5(a)
and the maximum number of shares of Stock with respect to which any one person
may be granted Options during any period stated in Section 5(d) shall be subject
to adjustment or substitution, as determined by the Committee in its sole
discretion, as to the number, price or kind of a share of Stock or other
consideration subject to such Options or as otherwise determined by the
Committee to be equitable (i) in the event of changes in the outstanding Stock
or in the capital structure of the Company by reason of stock or extraordinary
cash dividends, stock splits, reverse stock splits, recapitalization,
reorganizations, mergers, consolidations, combinations, exchanges, or other
relevant changes in capitalization occurring after the Date of Grant of any such
Option or (ii) in the event of any change in applicable laws or any change in
circumstances which results in or would result in any substantial dilution or
enlargement of the rights granted to, or available for, Participants, or which
otherwise warrants equitable adjustment because it interferes with the intended
operation of the Plan. The Company shall give each Participant notice of an
adjustment hereunder and, upon notice, such adjustment shall be conclusive and
binding for all purposes.
Notwithstanding the above, in the event of any of the following:
A. The Company is merged or consolidated with another corporation or
entity and, in connection therewith, consideration is received by shareholders
of the Company in a form other than stock or other equity interests of the
surviving entity;
B. All or substantially all of the assets of the Company are acquired
by another person;
C. The reorganization or liquidation of the Company; or
D. The Company shall enter into a written agreement to undergo an event
described in clauses A, B or C above,
then the Committee may, in its discretion and upon at least 10 days advance
notice to the affected persons, cancel any outstanding Options and pay to the
holders thereof, in cash or stock, or any combination thereof, the value of such
Options based upon the price per share of Stock received or to be received by
other shareholders of the Company in the event. The terms of this Section 9 may
be varied by the Committee in any particular Stock Option Agreement.
10. EFFECT OF CHANGE IN CONTROL
Except to the extent reflected in a particular Stock Option Agreement
or other written agreement between the Company and a Participant:
(a) In the event of a Change in Control, all Options
shall become immediately vested and exercisable with respect to 100 percent of
the shares subject to such Option; PROVIDED, HOWEVER, that no such vesting shall
occur if provision has been made in writing in connection with such transaction
for (a) the continuation of the Plan and/or assumption
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of such Options by a successor corporation (or a parent or subsidiary thereof)
or (b) the substitution for such Options of new options covering the stock of a
successor corporation (or a parent or subsidiary thereof), with appropriate
adjustments as to the number and kinds of shares and exercise prices. In the
event of any such continuation, assumption or substitution, the Plan and/or such
Options shall continue in the manner and under the terms so provided.
(b) In addition, in the event of a Change in Control,
the Committee may in its discretion and upon at least 10 days' advance notice to
the affected persons, cancel any outstanding Options and pay to the holders
thereof, in cash or stock, or any combination thereof, the value of such Options
based upon the price per share of Stock received or to be received by other
shareholders of the Company in the event.
(c) The obligations of the Company under the Plan shall
be binding upon any successor corporation or organization resulting from the
merger, consolidation or other reorganization of the Company, or upon any
successor corporation or organization succeeding to substantially all of the
assets and business of the Company. The Company agrees that it will make
appropriate provisions for the preservation of Participants' rights under the
Plan in any agreement or plan which it may enter into or adopt to effect any
such merger, consolidation, reorganization or transfer of assets.
11. NONEXCLUSIVITY OF THE PLAN
The adoption of this Plan by the Board shall not be construed as
creating any limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under this Plan, and such arrangements
may be either applicable generally or only in specific cases.
12. AMENDMENTS AND TERMINATION
(a) AMENDMENT AND TERMINATION OF THE PLAN. The Board may
amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof
at any time; PROVIDED that no such amendment, alteration, suspension,
discontinuation or termination shall be made without shareholder approval if
such approval is necessary to comply with any tax or regulatory requirement
applicable to the Plan; and PROVIDED FURTHER that any such amendment,
alteration, suspension, discontinuance or termination that would impair the
rights of any Participant or any holder or beneficiary of any Option theretofore
granted shall not to that extent be effective without the consent of the
affected Participant, holder or beneficiary.
(b) AMENDMENT OF STOCK OPTION AGREEMENTS. The Committee
may waive any conditions or rights under, amend any terms of, or alter, suspend,
discontinue, cancel or terminate, any Option theretofore granted or the
associated Stock Option Agreement, prospectively or retroactively; PROVIDED that
any such waiver, amendment, alteration, suspension, discontinuance, cancellation
or termination that would impair the rights of any Participant in respect of any
Option theretofore granted shall not to that extent be effective without the
consent of the affected Participant.
* * *
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As adopted by the Board of Directors of Veeco Instrument Inc. on
October 26, 2000.
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