EXHIBIT 4.2
INCENTIVE STOCK OPTION AGREEMENT
BY THIS INCENTIVE STOCK OPTION AGREEMENT ("Agreement") made and entered
into this _____ day of _______________, 19__ ("Grant Date"), AMTECH SYTEMS,
INC., an Arizona corporation (the "Company), and ___________________________, an
employee of the Company (the "Optionee") hereby state, confirm, represent,
warrant and agree as follows:
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RECITALS
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1.1 The Company, through its Board of Directors (the "Board"), has
determined to advance the interests of Amtech Systems, Inc. (the "Company") by
inducing persons of outstanding ability and potential to join and remain with
the Company, by encouraging, motivating and enabling employees to acquire stock
ownership in the Company, and by providing the participating employees with an
additional incentive to promote the success of the Company through the grant of
options to purchase shares of the Company's Common Stock.
1.2 The Company adopted the Amended and Restated 1995 Stock Option Plan
(the "Plan") on October 20, 1995.
1.3 By this Agreement, the Company and the Optionee desire to establish
the terms upon which the Company is willing to grant to the Optionee, and upon
which the Optionee is willing to accept from the Company, an option to purchase
shares of common stock of the Company ("Common Stock").
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AGREEMENTS
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2.1 Grant of Incentive Stock Option. Subject to the terms and
conditions hereinafter set forth and those provisions set forth and those
contained in the Plan, the Company grants to the Optionee the right and option
(the "Option") to purchase from the Company all or any part of an aggregate
number of _______________ (______) shares of Common Stock, authorized but
unissued or, at the option of the Company, treasury stock if available (the
"Optioned Shares").
2.2 Exercise of Option. Subject to the terms and conditions of this
Agreement and those of the Plan, the Option may be exercised only by completing
and signing a written notice in substantially the following form:
I hereby exercise the Option granted to me by AMTECH SYSTEMS,
INC. and elect to purchase _____ shares of $.01 par value
Common Stock
of AMTECH SYSTEMS, INC. for the purchase price to be
determined under Paragraph 2.3 of this Incentive Stock Option
Agreement.
2.3 Purchase Price. The price to be paid for the Optioned Shares (the
"Purchase Price") shall be $_______ per share, which was not less than the Fair
Market Value of the Optioned Shares as determined by the Board on the Grant
Date, or, in the case of an Option granted to an employee who, on the Grant Date
owns ten percent (10%) or more of the Common Stock, as such amount is calculated
under Section 422A(b)(6) of the Internal Revenue Code of 1986, as amended (the
"Code") not less than one hundred and ten percent (110%) of the Fair Market
Value of the Optioned Shares.
2.4 Payment of Purchase Price. Payment of the Purchase Price may be
made as follows:
(a) In United States dollars in cash or by check, bank draft
or money order payable to the Company; or
(b) At the discretion of the Board, through the delivery of
shares of Common Stock with an aggregate fair market value at the date
of such delivery, equal to the Purchase Price; or
(c) By a combination of both (a) and (b) above.
The Board or a Committee appointed by the Board shall determine acceptable
methods for tendering Common Stock as payment upon exercise of an Option and may
impose such limitations and conditions on the use of Common Stock to exercise an
Option as it deems appropriate. At the election of the Optionee pursuant to
Section 18 of the Plan, and subject to the acceptance of such election by the
Board or a Committee appointed by the Board, to satisfy the Company's
withholding obligations, it may retain such number of shares of Common Stock
subject to the exercised Option which have an aggregate Fair Market Value (as
defined in the Plan) on the date of exercise equal to the Company's aggregate
federal, state, local and foreign tax withholding and FICA and FUTA obligations
with respect to the exercise of the Option by the Optionee.
2.5 Exercisability of Option. Subject to the provisions of Paragraph
2.6, and except as otherwise provided in Paragraph 2.8, the Option may be
exercised by the Optionee while in the employ of Company which shall include any
parent ("Parent") or subsidiary ("Subsidiary") corporation of the Company as
defined in Sections 424(e) and (f), respectively, of the Code, in whole or in
part from time to time prior to expiration, but only in accordance with the
following schedule:
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Cumulative Percentage of
Elapsed Number of Years Shares Subject To Options As To
After Grant Date Which Option May be Exercised
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In no case may any Option be exercised as to less than One Hundred (100) shares
at any one time, or the remaining shares covered by the Option if less than One
Hundred (100) shares. An Option may not be exercised for a fraction of a share.
2.6 Termination of Option. Except as otherwise provided herein, the
Option, to the extent not heretofore exercised, shall terminate upon the first
to occur of the following dates:
(a) The date on which the Optionee's employment by the Company
is terminated, whether voluntary or for cause, except if such
termination is due to retirement, death or disability within the
meaning of Section 22(e)(3) of the Code;
(b) Ninety (90) days after termination due to retirement;
(c) One (1) year after termination due to disability within
the meaning of Section 22(e)(3) of the Code; or
(d) One (1) year after the Optionee's death (or such other
period of time as determined by the Board).
2.7 Adjustments. In the event of any stock split, reverse stock split,
stock divided, combination or reclassification of shares of 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, the number and kind of
Optioned Shares (including any Option outstanding after termination of
employment or death) and the Purchase Price per share shall be proportionately
and appropriately adjusted without any change in the aggregate Purchase Price to
be paid therefor upon exercise of the Option. The determination by the Board as
to the terms of any of the foregoing adjustments shall be conclusive and
binding.
2.8 Liquidation, Sale of Assets or Merger. In the event of a proposed
dissolution or liquidation of the Company, the Option will terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Board. 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, the option shall be assumed or an equivalent option shall be
substituted by such successor corporation, unless the Board determines that the
Optionee shall have the right to exercise the Option as to all of the Common
Stock subject to the Option, including shares as to which the Option would not
otherwise be exercisable. If the Board makes
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an Option fully exercisable, the Board shall notify the Optionee that the Option
shall be fully exercisable for a period of thirty (30) days from the date of
such notice (but not later than the expiration of the Option term under
Paragraph 2.6, above), and the Option will terminate upon the expiration of such
period.
2.9 Change in Control. In the event of a Change in Control, each Option
that is outstanding on a Control Change Date, as defined in the Plan, shall be
exercisable in whole or in part on that date and thereafter during the remainder
of the Option period stated in the Option Agreement. A "Change in Control"
occurs if, after the date of the initial Agreement, (1) any person, including a
"group" as defined in Section 13(d)(3) of the Exchange Act, becomes the owner or
beneficial owner of the Company's securities having 20% or more of the combined
voting power of the then outstanding Company's securities that may be cast for
the election of the Company's directors (other than as a result of an issuance
of securities initiated by the Company, or open market purchases approved by the
Board of Directors as long as a majority of the Board of Directors approving the
purchases is in the majority at the time the purchases are made); or (2) as the
direct or indirect result of, or in connection with, a cash tender or exchange
offer, a merger or other business combination, a sale of assets, a contested
election, or any combination of these transactions, the persons who were
directors of the Company before such transactions ceased to constitute a
majority of the Company's Board of Directors or any successor's board, within
two years of the last of such transactions. For purposes of this Section, the
"Control Change Date" is the date on which an event described in (1) or (2)
occurs. If a Change of Control occurs on account of a series of transactions,
the Control Change Date is the date of the last of such transactions.
2.10 Notices. Any notice to be given under the terms of the Agreement
("Notice") shall be addressed to the Company in care of its Secretary at 131
South Clark Drive, Tempe, Arizona 85281, or at its then current corporate
headquarters. Notice to be given to the Optionee shall be addressed to him or
her at his or her then current residential address as appearing on the payroll
records. Notice shall be deemed duly given when enclosed in a properly sealed
envelope and deposited by certified mail, return receipt requested, in a post
office or branch post office regularly maintained by the United States
Government.
2.11 Notification of Disposition of Shares. The Optionee hereby
acknowledges that a disposition of shares of Common Stock acquired upon the
exercise of the Option within two (2) years from the Grant Date or within one
(1) year after the transfer of such shares of Common Stock to him or her would
result in detrimental income tax consequences to the Optionee. The Optionee
hereby agrees to promptly notify the Company of any disposition of shares of
Common Stock within either of the above time limitations.
2.12 Modification of Agreement. With the consent of Optionee, the Board
may at any time and from time to time direct that the Agreement be modified in
such respects deemed advisable in order that the Option shall constitute an
incentive stock option pursuant to Section 422A of the Code.
2.13 Transferability of Option. The Option shall not be transferable by
the Optionee otherwise than by the will or the laws of descent and distribution,
and may be exercised during the life of the Optionee only by the Optionee.
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2.14 Optionee Not A Shareholder. The Optionee shall not be deemed for
any purposes to be a shareholder of the Company with respect to any of the
Optioned Shares except to the extent that the Option herein granted shall have
been exercised with respect thereto and a stock certificate issued therefor.
2.15 Not a Contract of Employment. Nothing contained in the Plan or in
any Option Agreement executed pursuant to the Plan shall be deemed to confer
upon any individual to whom an Option may be granted hereunder any right to
remain in the employ or service of the Company or a parent or subsidiary
corporation of the Company.
2.16 Disputes or Disagreements. As a condition of the granting of the
Option herein granted, the Optionee agrees, for himself and his personal
representatives, that any disputes or disagreement which may arise under or as a
result of or pursuant to this Agreement shall be determined by the Board in its
sole discretion, and that any interpretation by the Board of the terms of this
Agreement shall be final, binding and conclusive.
2.17 Shareholder Approval. If the Plan is not approved by the
stockholders of the Company within one year of its date of adoption, the
Optionee acknowledges that the Option granted hereunder shall, without further
action on behalf of the Company, become a nonstatutory option under the Plan.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer, and the Optionee has hereunto affixed
his or her signature.
AMTECH SYSTEMS, INC.,
an Arizona corporation
By ______________________________________
Its _______________________________
"COMPANY"
_________________________________________
"OPTIONEE"
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