Exhibit 99.12
ULTRATECH STEPPER, INC.
STOCK OPTION AGREEMENT
WITNESSETH:
RECITALS
A. The Corporation's Board of Directors (the "Board") has adopted
the Corporation's 1998 Supplemental Stock Option/Stock Issuance Plan (the
"Plan") for the purpose of attracting and retaining the services of employees
who are not officers of the Corporation, employees with the title of Vice
President, General Manager, or members of the Board.
B. Optionee is an individual who is to render valuable services to
the Corporation or one or more parent or subsidiary corporations, and this
Agreement is executed pursuant to, and is intended to carry out the purposes of,
the Plan in connection with the Corporation's grant of a stock option to
Optionee.
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, the Corporation hereby grants to Optionee, as of
the grant date (the "Date of Grant") specified in the accompanying Notice of
Grant of Stock Option (the "Grant Notice"), a stock option to purchase up to
that number of shares of the Corporation's 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 option price per share (the "Option
Price") specified in the Grant Notice.
2. OPTION TERM. This option shall expire at the close of business
on the expiration date (the "Expiration Date") specified in the Grant Notice,
unless sooner terminated in accordance with Paragraph 5 or 6.
3. LIMITED TRANSFERABILITY. This option may, in connection with
the Optionee's estate plan, be assigned in whole or in part during the
Optionee's lifetime to one or more members of the Optionee's immediate family or
to a trust established exclusively for one or more such family members. The
assigned portion may only be exercised by the person or persons who acquire a
proprietary interest in this option pursuant to the assignment. Should the
Optionee while holding this option, then this option shall be transferred in
accordance with the Optionee's will or the laws of descent and distribution.
4. DATES OF EXERCISE. This option shall become exercisable for
the Option Shares in accordance with the installment exercise schedule specified
in the Grant Notice. As the option becomes exercisable for one or more
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 or Paragraph 6 of this
Agreement. In no event shall this option become exercisable for any additional
Option Shares following Optionee's cessation of Service.
5. CESSATION OF SERVICE. The option term specified in Paragraph 2
shall terminate (and this option shall cease to be outstanding) prior to the
Expiration Date in accordance with the following provisions:
(i) This option shall immediately terminate and cease to be
outstanding for any Option Shares for which this option is not exercisable
at the time of Optionee's cessation of Service.
(ii) Should Optionee cease Service for any reason other than
death or permanent disability while holding this option, then Optionee
shall have a three (3)-month period measured from the date of such
cessation of Service in which to exercise this option for any or all of the
Option Shares for which this option is exercisable at the time of such
cessation of Service. In no event, however, may this option be exercised
at any time after the specified Expiration Date of the option term. Upon
the expiration of such three (3)-month period or (if earlier) upon the
specified Expiration Date of the option term, this option shall terminate
and cease to be outstanding.
(iii) Should Optionee die while in Service or within the three
(3)-month period following his or her cessation of Service and hold this
option at the time of his or her death, then the personal representative of
Optionee's estate or the person or persons to whom this option is
transferred pursuant to Optionee's will or in accordance with the laws of
descent and distribution shall have the right to exercise the option for
any or all of the Option Shares for which this option is exercisable at the
time of Optionee's cessation of Service, less any Option Shares
subsequently purchased by Optionee prior to death. Such right shall lapse,
and this option shall terminate and cease to remain outstanding, upon the
EARLIER of (A) the expiration of the twelve (12)-month period measured from
the date of Optionee's death or (B) the Expiration Date.
(iv) Should Optionee become permanently disabled while
holding this option and cease Service by reason of such disability, then
Optionee shall have a twelve (12) month period commencing with the date of
such cessation of Service in which to exercise this option for any or all
of the Option Shares for which this option is exercisable at the time of
such cessation of Service. In no event, however, may this option be
exercised at any time after the specified Expiration Date of the option
term. Upon the expiration of such limited period of exercisability or (if
earlier) upon the Expiration Date, this option shall terminate and cease to
be outstanding.
(v) Should (A) Optionee's Service be terminated for
misconduct (including, but not limited to, any act of dishonesty, willful
misconduct, fraud or embezzlement) or (B) Optionee make any unauthorized
use or disclosure of confidential information or trade secrets of the
Corporation or any parent or subsidiary, then in any such event this option
shall terminate immediately and cease to be outstanding.
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(vi) During the limited period of post-Service exercisability
applicable pursuant to subparagraphs (ii) through (iv) above, this option
may not be exercised in the aggregate for more than the number of Option
Shares (if any) for which this option is, at the time of the Optionee's
cessation of Service, exercisable in accordance with either the normal
exercise provisions specified in the Grant Notice or the special
acceleration provisions of Paragraph 6 of this Agreement.
(vii) For purposes of this Agreement, the following
definitional provisions shall be in effect:
A. Optionee shall be deemed to remain in SERVICE for so
long as such individual renders services on a periodic basis to the
Corporation (or any parent or subsidiary) in the capacity of an Employee or
an independent consultant or advisor.
B. Optionee shall be considered to be an EMPLOYEE
for so long as such individual remains in the employ of the
Corporation or any parent or subsidiary, subject to the control and
direction of the employer entity not only as to the work to be
performed but also as to the manner and method of performance.
C. Optionee shall be deemed to be PERMANENTLY
DISABLED and to have incurred a PERMANENT DISABILITY 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.
D. A corporation shall be considered to be a
SUBSIDIARY of the Corporation if it is a member of an unbroken chain
of corporations beginning with the Corporation, provided each such
corporation in the chain (other than the last corporation) owns, at
the time of determination, stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one
of the other corporations in such chain.
E. A corporation shall be considered to be a PARENT
of the Corporation if it is a member of an unbroken chain ending with
the Corporation, provided each such corporation in the chain (other
than the Corporation) owns, at the time of determination, stock
possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such
chain.
6. CORPORATE TRANSACTION.
A. In the event of any of the following stockholder-approved
transactions to which the Corporation is a party (a "Corporate Transaction"):
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(i) 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,
(ii) 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
(iii) 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 such
option shall, immediately prior to the specified effective date for the
Corporate Transaction, become exercisable for all the Option Shares at the
time subject to such option and may be exercised for all or any portion of
such shares as fully-vested shares. No such acceleration of this option,
however, shall occur if and to the extent: (i) this option is, in connection
with the Corporate Transaction, to be assumed by the successor corporation or
parent thereof or replaced with a comparable option to purchase shares of the
capital stock of the successor corporation or parent thereof or (ii) such
option is to be replaced with a cash incentive program of the successor
corporation which preserves the option spread existing at the time of the
Corporate Transaction on the Option Shares for which the option is not
otherwise at that time exercisable (the excess of the Fair Market Value of
those Option Shares over the aggregate Option Price payable for such shares)
and provides for subsequent pay-out in accordance with the same vesting
schedule in effect for the Option Shares pursuant to the option exercise
schedule set forth in the Grant Notice. The determination of option
comparability under clause (i) shall be made by the Plan Administrator, and
such determination shall be final, binding and conclusive.
B. This option, to the extent not previously exercised, shall
terminate upon the consummation of such Corporate Transaction and cease to be
outstanding, except to the extent expressly assumed by the successor corporation
or parent thereof.
C. 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.
7. ADJUSTMENT IN OPTION SHARES.
A. In the event any change is 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 the
outstanding Common Stock as a class effected without the Corporation's receipt
of consideration, the Plan Administrator shall make appropriate
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adjustments to (i) the number and/or class of securities subject to this option
and (ii) the Option Price payable per share in order to prevent any dilution or
enlargement of benefits hereunder. Such adjustments shall be final, binding and
conclusive.
B. If this option is to be assumed in connection with any
Corporate Transaction under Paragraph 6 or is otherwise to continue outstanding,
then this option shall, immediately after such Corporate Transaction, be
appropriately adjusted to apply and pertain to the number and class of
securities which would have been issued to Optionee in the consummation of such
Corporate Transaction had the option been exercised immediately prior to such
Corporate Transaction. Appropriate adjustments shall also be made to the Option
Price payable per share, PROVIDED the aggregate Option Price payable hereunder
shall remain the same.
8. PRIVILEGE OF STOCK OWNERSHIP. 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 the option, paid the Option Price for
the purchased shares and become the holder of record of those shares.
9. MANNER OF EXERCISING OPTION.
A. In order to exercise this option with respect to any or all of
the Option Shares for which this 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:
(i) Deliver to the Corporate Secretary of the Corporation an
executed notice of exercise in substantially the form of Exhibit I to this
Agreement (the "Exercise Notice") in which there is specified the number of
Option Shares to be purchased under the exercised option.
(ii) Pay the aggregate Option Price for the purchased shares
through one or more of the following alternatives:
- full payment in cash or by check payable to the
Corporation;
- full payment in 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 (as such term is defined below); or
- full payment effected through a broker-dealer sale and
remittance procedure pursuant to which Optionee shall provide irrevocable
instructions to (I) a Corporation-designated brokerage firm to effect the
immediate sale of the purchased shares and remit to the Corporation, out of
the sale proceeds available on the settlement date, sufficient funds to
cover the aggregate Option Price payable for the purchased shares plus all
applicable
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Federal, State and local income taxes and employment taxes required to be
withheld in connection with such purchase and (II) to the Corporation to
deliver the certificates for the purchased shares directly to such
brokerage firm in order to complete the sale transaction.
(iii) Furnish to the Corporation appropriate documentation
that the person or persons exercising the option (if other than Optionee)
have the right to exercise this option.
B. For purposes of this Agreement, the Exercise Date shall be the
date on which the executed Exercise Notice shall have been delivered to the
Corporation. Except to the extent the sale and remittance procedure specified
above is utilized in connection with the option exercise, payment of the Option
Price for the purchased shares must accompany such Exercise Notice. For all
valuation purposes under this Agreement, the Fair Market Value per share of
Common Stock on any relevant date shall be the closing selling price per share
of Common Stock on the date in question, as such price is reported by the
National Association of Securities Dealers on the Nasdaq National Market. If
there is no such reported price on the date in question, then the Fair Market
Value shall be the closing selling price on the last preceding date for which
such quotation exists.
C. As soon as practical after receipt of the Exercise Notice, the
Corporation shall mail or deliver to or on behalf of Optionee (or any other
person or persons exercising this option in accordance herewith) a certificate
or certificates representing the purchased shares.
D. In no event may this option be exercised for any fractional
shares.
10. GOVERNING LAW. The interpretation, performance, and
enforcement of this Agreement shall be governed by the laws of the State of
California without resort to that State's conflict-of-laws rules.
11. 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 stock
exchange on which shares of the Corporation's Common Stock may be listed at the
time of such exercise and issuance.
12. SUCCESSORS AND ASSIGNS. Except to the extent otherwise
provided in Paragraph 3 or 6, the provisions of this Agreement shall inure to
the benefit of, and be binding upon, the successors, administrators, heirs and
legal representatives of Optionee and the successors and assigns of the
Corporation.
13. LIABILITY OF CORPORATION. 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. The Corporation however, shall use its
best efforts to obtain all such approvals.
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14. AT WILL EMPLOYMENT. Nothing in this Agreement or in the Plan
shall confer upon Optionee any right to continue in the Service of the
Corporation (or any parent or subsidiary employing or retaining Optionee) for
any period of specific duration or interfere with or otherwise restrict in any
way the rights of the Corporation (or any such parent or subsidiary) or
Optionee, which rights are hereby expressly reserved by each party, to terminate
Optionee's Service at any time for any reason whatsoever, with or without cause.
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 Corporation's
principal offices at 0000 Xxxxxx Xxxx, 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 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, by registered or certified mail, postage prepaid and properly
addressed to the party to be notified.
16. CONSTRUCTION. 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. All decisions of the
Plan Administrator with respect to any question or issue arising under the Plan
or this Agreement shall be conclusive and binding on all persons having an
interest in this option.
17. TAX WITHHOLDING. Optionee shall make appropriate arrangements
with the Corporation or any parent or subsidiary employing Optionee for the
satisfaction of all Federal, State and local income and employment withholding
taxes applicable to such exercise.
18. LEAVE OF ABSENCE. The following provisions shall apply upon
the Optionee's commencement of an approved leave of absence:
(i) The exercise schedule in effect under the Grant Notice
shall be frozen as of the first day of the authorized leave, and this option
shall not become exercisable for any additional installments of the Option
Shares during the period Optionee remains on such leave.
(ii) Should Optionee resume active Employee status within
thirty (30) days after the start date of the authorized leave, then Optionee
shall, for purposes of the exercise schedule set forth in the Grant Notice,
receive Service credit for the entire period of such leave. If Optionee does
not resume active Employee status within such thirty (30)-day period, then no
Service credit shall be given for the period of such leave.
(iii) In no event shall this option become exercisable for any
additional Option Shares or otherwise continue to remain outstanding if Optionee
does not resume Employee status prior to the Expiration Date of the option term.
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EXHIBIT I
NOTICE OF EXERCISE OF STOCK OPTION
I hereby notify Ultratech Stepper, Inc. (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 "Option Price") pursuant to that certain option (the "Option") granted to
me under the Corporation's 1998 Supplemental Stock Option/Stock Issuance Plan on
______________________, 199 .
Concurrently with the delivery of this Exercise Notice to the
Corporate Secretary of the Corporation, I shall hereby pay to the Corporation
the Option 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 the payment of the
Option Price for the Purchased Shares.
_______________, 199__
Date
_________________________________
Optionee
Address: _________________________________
_________________________________
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: _________________________________
_________________________________
Social Security Number: _________________________________
Employee Number: _________________________________
