EXHIBIT 99.10
INITIAL OPTION GRANT
GASONICS INTERNATIONAL CORPORATION
AUTOMATIC STOCK OPTION AGREEMENT
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RECITALS
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A. The Corporation has approved an automatic option grant program
under the 1994 Stock Option/Stock Issuance Plan (the "Plan"), pursuant to
which special option grants are to be made to eligible members of the
Corporation's Board of Directors (the "Board") at specified intervals over
their period of Board service in order to encourage such individuals to
remain in the Corporation's service.
B. Optionee is an eligible Board member and this Agreement is executed
pursuant to, and is intended to carry out the purposes of, the Plan in
connection with the automatic grant of a stock option to purchase shares of
the Corporation's common stock ("Common Stock") under the Plan.
C. The granted option is intended to be a non-statutory option which
does NOT meet the requirements of Section 422 of the Internal Revenue Code
and is designed to provide Optionee with a meaningful incentive to continue
to serve as a member of the Board.
NOW, THEREFORE, it is hereby agreed as follows:
1. GRANT OF OPTION. Subject to and upon the terms and conditions
set forth in this Agreement, there is hereby granted to Optionee, as of the
date of grant (the "Grant Date") specified in the accompanying Notice of
Grant of Automatic Stock Option (the "Grant Notice"), a stock option to
purchase up to that number of shares of Common Stock (the "Option Shares") as
is specified in the Grant Notice. The Option Shares shall be purchasable from
time to time during the option term at the price per share (the "Exercise
Price") specified in the Grant Notice.
2. OPTION TERM. This option shall have a maximum term of ten
(10) years measured from the Grant Date and shall expire at the close of
business on the Expiration Date specified in the Grant Notice, unless sooner
terminated under Paragraph 5, 7 or 8.
3. LIMITED TRANSFERABILITY. This option, together with the
special stock appreciation right provided under Paragraph 8.b, shall be
neither transferable nor assignable by Optionee, other than a transfer of
this option effected by will or by the laws of descent and distribution
following Optionee's death, and may be exercised, during Optionee's lifetime,
only by Optionee.
4. EXERCISABILITY. This option shall become exercisable for the
Option Shares in one or more installments as specified in the Grant Notice.
As the option becomes exercisable for such installments, those installments
shall accumulate and the option shall remain exercisable for the accumulated
installments until the Expiration Date or sooner termination of the option
term under Paragraph 5, 7 or 8.
5. CESSATION OF BOARD SERVICE. Should Optionee's service as a
Board member cease while this option remains outstanding, then the option
term specified in Paragraph 2 shall terminate (and this option shall cease to
remain outstanding) prior to the Expiration Date in accordance with the
following provisions:
a. Should the Optionee cease to serve as a Board member for
any reason (other than death or permanent disability) prior to the
fourth anniversary of the Grant Date, then the Optionee shall have a
period of twelve (12) months measured from the date of such cessation of
Board service (the "Post-Service Exercise Period") in which to exercise
this option for any or all of the Option Shares for which the option is
exercisable at the time of such cessation of Board service. In
addition, the option shall become exercisable for an additional
twenty-five percent (25%) of the Option Shares on the next anniversary
of the Grant Date following the Optionee's cessation of Board service
and shall remain so exercisable until the expiration date of the
Post-Service Exercise Period.
b. Should the Optionee cease Board service for any reason on
or after the fourth anniversary of the Grant Date, then the Optionee may
at any time during the Post-Service Exercise Period exercise this option
for any or all of the Option Shares for which this option is exercisable
at the time of such cessation of Board service.
c. This option shall, immediately upon the Optionee's
cessation of Board service for any reason (other than death or permanent
disability), terminate and cease to be outstanding with respect to any
and all Option Shares for which this option is not otherwise at that
time exercisable or for which it is not otherwise to become exercisable
in accordance with clause a. of this Paragraph 5.
d. Should the Optionee die after his or her cessation of
Board service but while this option still remains outstanding, then the
personal representative of the Optionee's estate or the person or
persons to whom the option is transferred pursuant to the Optionee's
will or in accordance with the laws of descent and distribution shall
have the remainder of the Post-Service Exercise Period in which to
exercise this option in accordance with the parameters established for
the Optionee in clauses a. through c. of this Paragraph 5.
2.
e. Should Optionee cease to serve as a Board member by
reason of death or permanent disability while this option remains
outstanding, then this option shall immediately accelerate and become
exercisable for all of the Option Shares at the time subject to this
option, and the Optionee (or the personal representative of the
Optionee's estate or by the person or persons to whom this option is
transferred pursuant to the Optionee's will or in accordance with the
laws of descent and distribution) shall have a twelve (12)-month period
following the date of such cessation of Board service in which to
exercise this option for any or all of those Option Shares.
f. In no event shall this option remain exercisable after
the specified Expiration Date of the ten (10)-year option term. Upon
the expiration of the applicable post-service exercise period under this
Paragraph 5 or (if earlier) upon the expiration of the ten (10)-year
option term, this option shall terminate and cease to be outstanding
with respect to any vested Option Shares for which this option has not
otherwise been exercised.
g. Optionee shall be deemed to be PERMANENTLY DISABLED if
Optionee is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
expected to result in death or to be of continuous duration of twelve
(12) months or more.
6. ADJUSTMENT IN OPTION SHARES. Should any change be made to the
Common Stock issuable under the Plan by reason of any stock split, stock
dividend, recapitalization, combination of shares, exchange of shares or
other change affecting such Common Stock as a class without the Corporation's
receipt of consideration, then the number and class of securities purchasable
under this option and the Exercise Price payable per share shall be
appropriately adjusted to prevent the dilution or enlargement of Optionee's
rights hereunder; provided, however, the aggregate Exercise Price shall
remain the same.
7. CORPORATE TRANSACTION.
a. In the event of any of the following stockholder-approved
transactions to which the Corporation is a party (a "Corporate Transaction"):
a. a merger or consolidation in which the Corporation is not
the surviving entity, except for a transaction the principal purpose of
which is to change the state in which the Corporation is incorporated,
b. the sale, transfer or other disposition of all or
substantially all of the assets of the Corporation in complete
liquidation or dissolution of the Corporation, or
3.
c. any reverse merger in which the Corporation is the
surviving entity but in which securities possessing more than fifty
percent (50%) of the total combined voting power of the Corporation's
outstanding securities are transferred to a person or persons different
from the persons holding those securities immediately prior to such
merger,
this option, to the extent outstanding at such time but not
otherwise fully exercisable, shall automatically accelerate so that this
option shall, immediately prior to the effective date of the Corporate
Transaction, become exercisable for all of the Option Shares at the time
subject to this option and may be exercised for any or all of those Option
Shares as fully-vested shares of Common Stock. Immediately following the
consummation of the Corporate Transaction, this option shall terminate and
cease to be outstanding, except to the extent assumed by the successor
corporation (or parent thereof).
b. If this option is assumed in connection with a Corporate
Transaction, then this option shall be appropriately adjusted, immediately
after such Corporate Transaction, to apply and pertain to the number and
class of securities which would have been issued to the Optionee, in
consummation of such Corporate Transaction, had this option been exercised
option immediately prior to such Corporate Transaction. Appropriate
adjustments shall also be made to the Exercise Price payable per share;
provided, however, the aggregate Exercise Price payable for such securities
shall remain the same.
8. CHANGE IN CONTROL/HOSTILE TAKEOVER.
a. In the event of a Change in Control (as defined below),
the exercisability of this option, to the extent outstanding at such time but
not otherwise fully exercisable, shall automatically accelerate so that this
option shall, immediately prior to the effective date of the Change in
Control, become exercisable for all of the Option Shares at the time subject
to this option and may be exercised for any or all of those Option Shares as
fully-vested shares of Common Stock. This option shall remain exercisable
for such fully-vested Option Shares until the EARLIEST to occur of (i) the
specified Expiration Date of the option term, (ii) the sooner termination of
this option in accordance with Paragraph 5 or 7 or (iii) the surrender of
this option under Paragraph 8.b.
b. Provided this option has been outstanding for at least
six (6) months prior to the occurrence of a Hostile Take-Over (as defined
below), Optionee shall have an unconditional right (exercisable during the
thirty (30)-day period immediately following the consummation of such Hostile
Take-Over) to surrender this option to the Corporation in exchange for a cash
distribution from the Corporation in an amount equal to the excess of (i) the
Take-Over Price of the Option Shares at the time subject to the surrendered
option (whether or not this option is at the time exercisable for those
Option Shares) over (ii) the aggregate Exercise Price payable for such shares.
4.
To exercise this limited stock appreciation right, Optionee
must, during the applicable thirty (30)-day exercise period, provide the
Corporation with written notice of the option surrender in which there is
specified the number of Option Shares as to which the Option is being
surrendered. Such notice must be accompanied by the return of Optionee's
copy of this Agreement, together with any written amendments to such
Agreement. The cash distribution shall be paid to Optionee within five (5)
days following such delivery date, and neither the approval of the Plan
Administrator nor the consent of the Board shall be required in connection
with the option surrender and cash distribution. Upon receipt of such cash
distribution, this option shall be cancelled with respect to the shares
subject to the surrendered option (or the surrendered portion), and Optionee
shall cease to have any further right to acquire those Option Shares under
this Agreement. However, should this option be surrendered for only a
portion of the Option Shares at the time subject to the option, a new stock
option agreement (substantially in the form of this Agreement) shall be
issued by the Corporation for the balance of the Option Shares for which this
option is not surrendered.
This limited stock appreciation right shall in all events
terminate upon the expiration or sooner termination of the option term and
may not be assigned or transferred by Optionee.
c. DEFINITIONS: For purposes of this Agreement, the following
definitions shall be in effect:
A CHANGE IN CONTROL shall be deemed to occur in the event:
- any person or related group of persons (other than
the Corporation or a person that directly or indirectly controls, is
controlled by, or is under common control with, the Corporation) directly or
indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 of
the Securities Exchange Act of 1934 (the "1934 Act")) of securities
possessing more than fifty percent (50%) of the total combined voting power
of the Corporation's outstanding securities pursuant to a tender or exchange
offer made directly to the Corporation's stockholders which the Board does
not recommend such stockholders to accept, or
- there is a change in the composition of the Board over a
period of thirty-six (36) consecutive months or less such that a majority of
the Board members ceases, by reason of one or more contested elections for
Board membership, to be comprised of individuals who either (i) have been
Board members continuously since the beginning of such period or (ii) have
been elected or nominated for election as Board members during such period by
at least a majority of the Board members described in clause (i) who were
still in office at the time such election or nomination was approved by the
Board.
A HOSTILE TAKE-OVER shall be deemed to occur in the event (i)
any person or related group of persons (other than the Corporation or a
person that directly or indirectly controls, is controlled by, or is under
common control with, the Corporation) directly or indirectly acquires
beneficial ownership (within the meaning of Rule 13d-3 of the 0000 Xxx) of
securities
5.
possessing more than fifty percent (50%) of the total combined voting power
of the Corporation's outstanding securities pursuant to a tender or exchange
offer made directly to the Corporation's stockholders which the Board does
not recommend such stockholders to accept AND (ii) more than fifty percent
(50%) of the securities so acquired in such tender or exchange offer are
accepted from holders other than the officers and directors of the
Corporation subject to the short-swing profit restrictions of Section 16 of
the 1934 Act.
The TAKE-OVER PRICE per share shall be deemed to be equal to
the GREATER of (i) the Fair Market Value per share of Common Stock on the
date the option is surrendered to the Corporation in connection with a
Hostile Take-Over, as determined in accordance with the valuation provisions
of Paragraph 9.b, or (ii) the highest reported price per share of Common
Stock paid by the tender offeror in effecting the Hostile Take-Over.
9. MANNER OF EXERCISING OPTION
a. In order to exercise this option for all or any part of
the Option Shares for which the option is at the time exercisable, Optionee
(or in the case of exercise after Optionee's death, Optionee's executor,
administrator, heir or legatee, as the case may be) must take the following
actions:
(1) Execute and deliver to the Corporation an exercise
notice ("Notice of Exercise") for the Option Shares for which the option is
exercised.
(2) Pay the aggregate Exercise Price for the purchased
shares in one of the following alternative forms:
(a) full payment in cash or check made payable to
the Corporation's order;
(b) full payment in shares of Common Stock held by
Optionee for the requisite period necessary to avoid a charge to
the Corporation's earnings for financial reporting purposes and
valued at Fair Market Value on the Exercise Date (as defined
below);
(c) full payment in a combination of shares of
Common Stock held for the requisite period necessary to avoid a
charge to the Corporation's earnings for financial reporting
purposes and valued at Fair Market Value on the Exercise Date and
cash or check made payable to the Corporation's order; or
(d) full payment effected through a broker-dealer
sale and remittance procedure pursuant to which Optionee shall
provide concurrent irrevocable written instructions (i) to a
Corporation-designated brokerage firm to effect the immediate sale
of the shares purchased under
6.
the option and remit to the Corporation, out of the sale proceeds
available on the settlement date, sufficient funds to cover the
aggregate Exercise Price payable for those shares and (ii) to the
Corporation to deliver the certificates for the purchased shares
directly to such brokerage firm in order to complete the sale.
(3) Appropriate documentation evidencing the right to
exercise this option shall be furnished the Corporation if the person or
persons exercising the option is other than Optionee.
b. For purposes of subparagraph 9.a. above and for all other
valuation purposes under this Agreement, the Fair Market Value per share of
Common Stock on any relevant date shall be determined in accordance with the
following provisions:
(1) If the Common Stock is not at the time listed or
admitted to trading on any national securities exchange but is traded on
the Nasdaq National Market, the Fair Market Value shall be the closing
selling price per share on the date in question, as such price is
reported by the National Association of Securities Dealers on the Nasdaq
National Market or any successor system. If there is no reported closing
selling price for the Common Stock on the date in question, then the
closing selling price on the last preceding date for which such quotation
exists shall be determinative of Fair Market Value.
(2) If the Common Stock is at the time listed or admitted
to trading on any national securities exchange, then the Fair Market Value
shall be the closing selling price per share on the date in question on the
securities exchange determined by the Plan Administrator to be the primary
market for the Common Stock, as such price is officially quoted in the
composite tape of transactions on such exchange. If there is no reported
sale of Common Stock on such exchange on the date in question, then the
Fair Market Value shall be the closing selling price on the exchange on
the last preceding date for which such quotation exists.
c. The Exercise Date shall be the date on which the Exercise
Notice is delivered to the Secretary of the Corporation. Except to the
extent the sale and remittance procedure specified above is utilized in
connection with the exercise of the option, payment of the Exercise Price for
the purchased shares must accompany such notice.
d. As soon as practical after the Exercise Date, the
Corporation shall issue to or on behalf of Optionee (or other person or
persons exercising this option) a certificate or certificates representing
the purchased Option Shares.
e. In no event may this option be exercised for any fractional
share.
7.
10. STOCKHOLDER RIGHTS. The holder of this option shall not have
any of the rights of a stockholder with respect to the Option Shares until
such individual shall have exercised this option and paid the Exercise Price
for the purchased shares.
11. NO IMPAIRMENT OF RIGHTS. This Agreement shall not in any way
affect the right of the Corporation to adjust, reclassify, reorganize or
otherwise make changes in its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets. Nor shall this Agreement in any way be construed or
interpreted so as to affect adversely or otherwise impair the right of the
Corporation or the stockholders to remove Optionee from the Board at any time
in accordance with the provisions of applicable law.
12. COMPLIANCE WITH LAWS AND REGULATIONS. The exercise of this
option and the issuance of the Option Shares upon such exercise shall be
subject to compliance by the Corporation and Optionee with all applicable
requirements of law relating thereto and with all applicable regulations of
any securities exchange on which shares of the Common Stock may be listed at
the time of such exercise and issuance.
13. SUCCESSORS AND ASSIGNS. Except to the extent otherwise
provided in Paragraph 3 or 7, the provisions of this Agreement shall inure to
the benefit of, and be binding upon, the successors, administrators, heirs,
legal representatives and assigns of Optionee and the Corporation's
successors and assigns.
14. DISCHARGE OF LIABILITY. The inability of the Corporation to
obtain approval from any regulatory body having authority deemed by the
Corporation to be necessary to the lawful issuance and sale of any Common
Stock pursuant to this option shall relieve the Corporation of any liability
with respect to the non-issuance or sale of the Common Stock as to which such
approval shall not have been obtained. However, the Corporation shall use
its best efforts to obtain all such applicable approvals.
15. NOTICES. Any notice required to be given or delivered to the
Corporation under the terms of this Agreement shall be in writing and
addressed to the Corporation in care of the Corporate Secretary at the
Corporate Offices at 0000 Xxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000. Any notice
required to be given or delivered to Optionee shall be in writing and
addressed to Optionee at the address indicated below Optionee's signature
line on the Grant Notice. All notices shall be deemed to have been given or
delivered upon personal delivery or upon deposit in the U.S. mail, postage
prepaid and properly addressed to the party to be notified.
16. CONSTRUCTION/GOVERNING LAW. This Agreement and the option
evidenced hereby are made and granted pursuant to the Plan and are in all
respects limited by and subject to the express terms and provisions of the
Plan, including the automatic option grant provisions of Article Three of the
Plan. The interpretation, performance and enforcement of this Agreement
8.
shall be governed by the laws of the State of California without resort to
that State's conflict-of-laws provisions.
17. STOCKHOLDER APPROVAL. This option may not be exercised in
whole or in part at any time prior to the approval of the July 19, 1995
restatement of the Plan by the Corporation's stockholders. Should such
stockholder approval not be obtained at the 1996 Annual Stockholders Meeting,
this option shall terminate and cease to remain outstanding without ever
becoming exercisable for any of the Option Shares.
9.
EXHIBIT I
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NOTICE OF EXERCISE OF
AUTOMATIC STOCK OPTION
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I hereby notify GaSonics International Corporation (the
"Corporation") that I elect to purchase shares of the
Corporation's Common Stock (the "Purchased Shares") at the option exercise
price of $ per share (the "Exercise Price") pursuant to that certain
option (the "Option") granted to me under the Corporation's 1994 Stock
Option/Stock Issuance Plan on to purchase up to shares of
the Corporation's Common Stock.
Concurrently with the delivery of this Exercise Notice to the
Secretary of the Corporation, I shall hereby pay to the Corporation the
Exercise Price for the Purchased Shares in accordance with the provisions of
my agreement with the Corporation evidencing the Option and shall deliver
whatever additional documents may be required by such agreement as a
condition for exercise. Alternatively, I may utilize the special
broker/dealer sale and remittance procedure specified in my agreement to
effect payment of the Exercise Price for any Purchased Shares.
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Date Optionee
Address:
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Print name in exact manner
it is to appear on the
stock certificate: ------------------------------------------
Address to which certificate
is to be sent, if different
from address above: ------------------------------------------
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Social Security Number:
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