EXHIBIT 4.1
AMTECH SYSTEMS, INC.
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
Purposes of the Plan. The purposes of this Plan are to attract and
retain the best available individuals to serve as non-employee members of the
Board of Directors of Amtech Systems, Inc. (the "Company"), to reward such
directors for their contributions to the profitable growth of the Company, and
to maximize the identity of interest between such directors and stockholders
generally.
1. Definitions. As used herein, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Company" shall mean Amtech Systems, Inc., an Arizona
corporation.
(c) "Effective Date" shall be the date that the Board of
Directors of the Company adopts this Plan.
(d) "Eligible Director" shall mean (i) those individuals who
are serving as non-employee members of the Board on the Effective Date,
or (ii) those individuals who are elected or appointed as non-employee
members of the Board after the Effective Date, whether through
appointment by the Board or election of the Company's stockholders.
(e) "Exercise Price" shall mean, with respect to Shares of
Optioned Stock, the Fair Market Value of such Shares on the date of
grant of the Option.
(f) "Fair Market Value" shall mean, with respect to the date a
given Option is granted or exercised, the value of the Common Stock
determined by the Board in such manner as it may deem equitable for
Plan purposes; provided, however, that where there is a public market
for the Common Stock, the Fair Market Value per Share shall be the mean
of the bid and asked prices of the Common Stock on the date of grant,
as reported in the Wall Street Journal (or, if not reported, as
otherwise reported by the National Association of Securities Dealers
Automated Quotation System) or, in the event the Common Stock is listed
on the New York Stock Exchange or the American Stock exchange, the Fair
Market Value per Share shall be the closing price on such exchange on
the date of grant of the Option, as reported in the Wall Street
Journal.
(g) "Option" shall mean a right to purchase Stock, granted
pursuant to the Plan.
(h) "Optioned Stock" shall mean the Stock subject to an
Option.
(i) "Optionee" shall mean a non-employee director of the
Company who has been granted an Option.
(j) "Plan" shall mean this Non-Employee Directors Stock Option
Plan.
(k) "Share" shall mean a share of the Stock.
(l) "Stock" shall mean the Common Stock of the Company
described in the Certificate of Incorporation of the Company.
(m) "Stock Option Agreement" shall mean the written agreement
evidencing the grant of an Option.
(n) "Trading Day" shall mean a day on which the Fair Market
Value of the Stock can be determined.
2. Common Stock Subject to the Plan. Subject to increases and
adjustments pursuant to Section 9 of the Plan, the number of Shares reserved and
available for distribution under the Plan shall be two hundred thousand
(200,000). If an Option shall expire or become unexercisable for any reason
without having been exercised in full, the unauthorized Shares covered by the
Option shall, unless the Plan shall have terminated, be available for future
grants of Options.
3. Option Grants.
(a) Each individual who first becomes an Eligible Director
after the Effective Date, whether through election by the stockholders
or appointment of the Board, shall automatically be granted at the time
of such initial election or appointment, an Option to purchase 12,000
shares of Stock.
(b) On the first business day following the Company's Annual
Meeting of Shareholders each year (the "Annual Grant Date"), beginning
with March 1, 1997, each individual who is at that time an Eligible
Director shall automatically be granted an Option under the Plan to
purchase an additional 6,000 shares of Stock; provided such individual
(i) has attended 75% of the meetings of the Board held during the 12-
month period immediately preceding the Annual Grant Date, or (ii) if
such individual was appointed or elected as a director during such
12-month period, he or she has attended 75% of the meetings of the
Board held during his of her term as a director, and (iii) has attended
75% of the meetings of any Committee of the Board to which such
individual has been appointed as a member during such 12-month period.
(c) The purchase price of Shares subject to an Option shall be
the Fair Market Value on the date of grant.
(d) Each Option granted pursuant to this Plan shall vest and
become exercisable according to the following schedule, provided that
the Optionee remains an Eligible Director at such vesting date:
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Vesting Date Percentage of Shares Vesting
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First Anniversary of Grant 33-1/3%
Second Anniversary of Grant 66-2/3%
Third Anniversary of Grant 100%
4. Stockholder Approval. This Plan was adopted by the Board of
Directors of the Company on December 21, 1995 (the "Effective Date"). Options
may be granted under the Plan on and after the Effective Date. The Plan shall be
submitted for stockholder approval at the next annual or special meeting of
stockholders. However, the failure to obtain such approval shall not affect the
effectiveness of the Plan. No Option may be granted after the expiration of ten
(10) years from the effective date of the Plan; provided, however, that the Plan
and all outstanding Options shall remain in effect until such Options shall have
been exercised, shall have expired or shall otherwise be terminated.
5. Term; Exercise; Rights as a Stockholder.
(a) The term of each Option shall be ten (10) years from the
date of grant thereof. To the extent vested the Option may be exercised
in whole or in part at any time and during the term of the Option. No
fractional Shares will be issued upon exercise of the Option and, if
the exercise results in a fractional interest, an amount will be paid
in cash equal to the value of such fractional interest based on the
Fair Market Value of the Shares on the date of exercise.
(b) An Option shall be deemed to be exercised upon receipt by
the Company from the Optionee of written notice of such exercise. Such
notice shall be accompanied by full payment for the Shares subject to
such exercise.
6. Payment. The Exercise Price shall be paid:
(a) In United States dollars in cash or by check payable to
the order of the Company; or
(b) Subject to the approval of the Board, by delivery of
Shares with an aggregate Fair Market Value equal to the Exercise Price;
or
(c) By any combination of (a) and (b) above.
The Board shall determine acceptable methods for tendering
Stock as payment upon exercise of an Option and may impose such limitations and
prohibitions on the use of Stock to exercise an Option as it deems appropriate.
7. Transferability of Options. The 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 to the limited extent provided
herein or pursuant to a "qualified domestic relations order" as defined by the
Internal Revenue Code or the Employee Retirement Income Security Act
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or the rules thereunder. Except as permitted herein, an Option may be exercised,
during the lifetime of the Optionee, only by the Optionee or by his guardian or
legal representative.
In the event of the Optionee's death, his or her Option shall
be exercisable, prior to the expiration of the Option, by the person or persons
to whom his or her accrued and vested rights pass by will or by the laws of
descent and distribution.
8. Adjustments Upon Changes in Capitalization or Merger. Subject to any
required action by the stockholders of the Company, the number of Shares covered
by each outstanding Option, and the number of Shares which have been authorized
for issuance under the Plan but as to which no Options have yet been granted or
which have been returned to the Plan upon cancellation or expiration of an
Option, as well as the price per Share covered by each such outstanding Option,
shall be proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split, reverse stock split, consolidation,
subdivision, stock dividend, combination or reclassification of the Shares, or
any other increase or decrease in the number of issued Shares 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 Board, 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 subject to an Option.
In the event of the proposed dissolution or liquidation of the
Company, all Options will terminate immediately prior to the consummation of
such proposed action, unless otherwise provided by the Board. The Board 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 holder the right
to exercise the Option as to all or any part thereof, including Shares as to
which the Option would not otherwise be exercisable. 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 or a parent
or subsidiary of such successor corporation, unless the Board determines, in the
exercise of its sole discretion and in lieu of such assumption or substitution,
that the holder shall have the right to exercise the Option as to all of the
Shares, including Shares as to which the Option would not otherwise be
exercisable. If the Board makes an Option exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board shall notify
the holder that the Option shall be fully exercisable for a period of 30 days
from the date of such notice (but not later than the expiration of the term of
the Option), and the Option will terminate upon the expiration of such period.
9. Amendment and Termination of the Plan. The Board may amend the Plan
from time to time in such respects as the Board may deem advisable or terminate
the Plan; provided, however, that amendments to the Plan relating to the amount,
price or timing of Option grants shall not be made more than once in any six
month period, other than amendments necessary to comply with changes in the
Internal Revenue Code of 1986, as amended, the Employee Retirement Income
Security Act, as amended, or the rules thereunder. Any 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.
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Notwithstanding the foregoing, revisions or amendments that
accomplish any of the following shall require approval of the stockholders of
the Company, to the extent required by law, rule or regulation:
(a) Materially increase the benefits accruing to participants
under the Plan;
(b) Materially increase the number of Shares which may be
issued under the Plan;
(c) Materially modify the Plan as to eligibility for
participation in the Plan; or
(d) Otherwise cause the Plan to lose its exemption under
Section 16(b) of the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
10. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option 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, the Securities Exchange Act of 1934, as amended, the rules and
regulations promulgated thereunder, and the requirements of any stock exchange
or market system upon which the Shares may be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
As a condition to the exercise of an Option, the Company may
require the Optionee to represent and warrant at the time of any such exercise
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 or advisable.
Inability of the Company to obtain authority from a regulatory
body having jurisdiction, which authority is deemed by the Company's counsel to
be necessary or advisable to the lawful issuance and sale of any Shares
hereunder, shall relieve the Company of any liability in respect of the failure
to issue or sell such Shares as to which such requisite authority shall not have
been obtained.
11. Termination of Option.
(a) Termination as a Director. If an Optionee ceases to be a
director, unless such cessation occurs due to death or disability, then
the Option shall terminate on the date thirty days after the date the
Optionee ceases to be a director.
(b) Disability. Unless otherwise provided in the Stock Option
Agreement, in the event an Optionee is unable to continue to be a
member of the Board as a result of his permanent and total disability
(as defined in Section 22(e)(3) of the Internal Revenue Code of 1986,
as amended), he may exercise the Option at any time within twelve (12)
months following the date he ceased to be a director, but only to the
extent he was entitled to exercise it on the date he ceased to be a
director. To
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the extent that he was not entitled to exercise the Option on the date
he ceased to be a director, or if he does not exercise such Option
(which he was entitled to exercise) within the time specified herein,
the Option shall terminate.
(c) Death. Unless otherwise provided in the Stock Option
Agreement, if an Optionee dies during the term of the Option, the
Option may be exercised at any time within twelve (12) months following
the date of death, but only to the extent that an Optionee was entitled
to exercise the Option on the date of death. To the extent that
decedent was not entitled to exercise the Option on the date of death,
or if the Optionee's estate, or person who acquired the right to
exercise the Option by bequest or inheritance, does not exercise such
Option (which he was entitled to exercise) within the time specified
herein, the Option shall terminate.
12. Option Agreement. Options shall be evidenced by Stock Option
Agreements in such form as the Board shall approve.
13. Miscellaneous Provisions.
(a) Plan Expense. Any expenses of administering this Plan
shall be borne by the Company.
(b) Construction of Plan. The validity, construction,
interpretation, administration and effect of the Plan and of its rules
and regulations, and rights relating to the Plan, shall be determined
by the Board in accordance with the laws of the State of Arizona.
(c) Taxes. The Company shall be entitled if necessary or
desirable to pay or withhold the amount of any tax attributable to the
delivery of Common Shares under the Plan after giving the person
entitled to receive such Shares notice as far in advance as practical,
and the Company may defer making delivery of such Shares if any such
tax may be pending unless and until indemnified to its satisfaction.
(d) Gender. For purposes of this Plan, words used in the
masculine gender shall include the female and neuter, and the singular
shall include the plural and vice versa, as appropriate.
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