-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OF2o3+MzT7DzWdH32jQlJtDz4A4ikzM7D4SkWvrG34cpK0dVonL6hm8uZGnIbTga i5WH4YYQA1MxHjSxtKCrnw== /in/edgar/work/0001012870-00-005370/0001012870-00-005370.txt : 20001024 0001012870-00-005370.hdr.sgml : 20001024 ACCESSION NUMBER: 0001012870-00-005370 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20001023 EFFECTIVENESS DATE: 20001023 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GASONICS INTERNATIONAL CORP CENTRAL INDEX KEY: 0000918647 STANDARD INDUSTRIAL CLASSIFICATION: [3559 ] IRS NUMBER: 942159729 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-48472 FILM NUMBER: 744404 BUSINESS ADDRESS: STREET 1: 2730 JUNCTION AVE CITY: SAN JOSE STATE: CA ZIP: 95134 BUSINESS PHONE: 4085707000 MAIL ADDRESS: STREET 1: 2730 JUNCTION AVE CITY: SAN JOSE STATE: CA ZIP: 95134 S-8 1 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on October 23, 2000 Registration No. 333-_____________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _______________________ FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 _______________________ GASONICS INTERNATIONAL CORPORATION (Exact name of issuer as specified in its charter) Delaware 94-2159729 (State or other jurisdiction (IRS Employer Identification No.) of incorporation or organization) 404 East Plumeria Drive San Jose, CA 95134-1912 (Address of principal executive offices) (Zip Code) _______________________ GAMMA PRECISION TECHNOLOGY, INC. 1998 STOCK OPTION PLAN (Full title of the plans) _______________________ Asuri Raghavan Chief Executive Officer and President Gasonics International Corporation 404 East Plumeria Drive San Jose, CA 95134-1912 (Name and address of agent for service) (408) 570-7400 (Telephone number, including area code, of agent for service) _______________________ CALCULATION OF REGISTRATION FEE
Aggregate Amount to be Offering Price Offering Amount of Title of Securities to be Registered Registered(1) per Share(2) Price(2) Registration Fee ================================================================================================================ Gamma Precision Technology, Inc. 64,774 shares $3.06 $198,208.44 $52.33 1998 Stock Option Plan (as assumed by Registrant) ------------------------ Common Stock, $0.001 par value - ----------------------------------------------------------------------------------------------------------------
(1) This Registration Statement shall also cover any additional shares of Registrant's Common Stock which become issuable under the Gamma Precision Technology 1998 Stock Option Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant's receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of Common Stock. (2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the weighted average exercise price of the outstanding options. PART II Information Required in the Registration Statement Item 3. Incorporation of Certain Documents by Reference ----------------------------------------------- Gasonics International Corporation (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "Commission"): (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended September 30, 1999 filed with the Commission on December 23, 1999, pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "1934 Act"); (b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters ended December 31, 1999, March 31, 2000 and June 30, 2000 filed with the Commission on February 8, 2000, May 9, 2000 and August 8, 2000, respectively; (c) The Registrant's Current Report on Form 8-K filed with the Commission on September 27, 2000; (d) The Registrant's Registration Statement No. 000-23372 on Form 8-A filed with the Commission on February 4, 1994 pursuant to Section 12 of the 1934 Act, together with Amendment No. 1 to the Form 8-A filed with the Commission on March 9, 1994, in which there is described the terms, rights and provisions applicable to the Registrant's outstanding Common Stock. All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Capital Stock ---------------------------- Inapplicable. Item 5. Interests of Named Experts and Counsel -------------------------------------- Inapplicable. II-1 Item 6. Indemnification of Directors and Officers ----------------------------------------- The Registrant has adopted provisions in its Amended and Restated Certificate of Incorporation that limit the liability of its directors in certain instances. As permitted by the Delaware General Corporation Law, directors will not be liable to us for monetary damages arising from a breach of their fiduciary duty as directors in certain circumstances. Such limitation does not affect liability for any breach of a director's duty to the Registrant or its stockholders (i) with respect to approval by the director of any transaction from which he derives an improper personal benefit, (ii) with respect to acts or omissions involving an absence of good faith, that he believes to be contrary to the Registrant's best interests or the best interest of the Registrant's stockholders, that involve intentional misconduct or a knowing and culpable violation of law, that constitute an unexcused pattern of inattention that amounts to an abdication of his duty to the Registrant or its stockholders, or that show a reckless disregard for his duty to the Registrant or its stockholders in circumstances in which he was, or should have been, aware, in the ordinary course of performing his duties, of a risk of serious injury to the Registrant or its stockholders, or (iii) based on transactions between the Registrant and its directors or another corporation with interrelated directors or on improper distributions, loans, or guarantees under applicable sections of the Delaware General Corporation Law. Such limitation of liability also does not affect the availability of equitable remedies such as injunctive relief or rescission, although in certain circumstances equitable relief may not be available as a practical matter. The limitation may relieve the directors of monetary liability to us for grossly negligent conduct, including conduct in situations involving attempted takeovers. No claim or litigation is currently pending against the Registrant's directors that would be affected by the limitation of liability. The Registrant's Amended and Restated Certificate of Incorporation and Bylaws provide that the Registrant shall indemnify its directors and may indemnify its officers to the fullest extent permitted by Delaware law, including circumstances in which indemnification is otherwise discretionary under Delaware law. The Registrant had entered into separate indemnification agreements with its directors and officers, which may require the Registrant, among other things, to indemnify the directors and officers against certain liabilities that may arise by reason of their status or service as directors or officers (other than liabilities arising from willful misconduct of a culpable nature), and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified. To the extent the Registrant may be required to make substantial payments under the indemnification agreements that are not covered by insurance, the Registrant's available cash and stockholder's equity would be adversely affected. Item 7. Exemption from Registration Claimed ----------------------------------- Inapplicable. Item 8. Exhibits -------- Exhibit Number Exhibit - -------------- ------- 4.0 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 000-23372 on Form 8-A, and the exhibits thereto, and Amendment No. 1 thereto, which are incorporated herein by reference pursuant to Item 3(d) of this Registration Statement. 5 Opinion of Brobeck, Phleger & Harrison LLP. 23.1 Consent of Arthur Andersen LLP, Independent Public Accountants. 23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5. 24.0 Power of Attorney. Reference is made to page II-4 of this Registration Statement. 99.1 Gamma Precision Technology, Inc. 1998 Stock Option Plan (as Assumed by Registrant). 99.2 Gamma Precision Technology, Inc. Form of Stock Option Agreement. 99.3 Form of Option Assumption Agreement. II-2 Item 9. Undertakings. ------------- A. The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement; (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "1933 Act"), (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement, and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, -------- however, that clauses (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference into the registration statement; (2) that for the purpose of determining any liability under the 1933 Act each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold upon the termination of the Gamma Precision Technology, Inc. 1998 Stock Option Plan (as Assumed by Registrant). B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6 above or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Jose, State of California, on this 23rd day of October, 2000. GASONICS INTERNATIONAL CORPORATION By /s/ Asuri Raghavan _________________________________________ Asuri Raghavan President, Chief Executive Officer and Director POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS: That the undersigned officers and directors of Gasonics International Corporation, a Delaware corporation, do hereby constitute and appoint Asuri Raghavan, President and Chief Executive Officer, and Rammy Rasmussen, Vice President of Finance and Chief Financial Officer, and each of them, the lawful attorneys-in-fact and agents, with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms all that said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts. IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signatures Title Date - ---------- ----- ---- /s/ Asuri Raghavan President, Chief Executive Officer and October 23, 2000 - ------------------ Director (Principal Executive Officer) Asuri Raghavan
II-4 /s/ Rammy Rasmussen Vice President of Finance and October 23, 2000 - ---------------------- Chief Financial Officer Rammy Rasmussen (Principal Financial and Accounting Officer) /s/ David Toole Chairman of the Board of Directors October 23, 2000 - ---------------------- David Toole _______________________ Director Monte M. Toole _______________________ Director Kenneth L. Schroeder _______________________ Director Joseph Van Poppelen /s/ Kenneth M. Thompson Director October 23, 2000 - ------------------------ Kenneth M. Thompson
II-5 EXHIBIT INDEX ------------- Exhibit Number Exhibit - ------ ------- 4.0 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 000-23372 on Form 8-A, and the exhibits thereto, and Amendment No. 1 thereto, which are incorporated herein by reference pursuant to Item 3(d) of this Registration Statement. 5 Opinion of Brobeck, Phleger & Harrison LLP. 23.1 Consent of Arthur Andersen LLP, Independent Public Accountants. 23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5. 24.0 Power of Attorney. Reference is made to page II-4 of this Registration Statement. 99.1 Gamma Precision Technology, Inc. 1998 Stock Option Plan (as Assumed by Registrant). 99.2 Gamma Precision Technology, Inc. Form of Stock Option Agreement. 99.3 Form of Option Assumption Agreement. EX-5 2 0002.txt OPINION OF BROBECK, PHLEGER, & HARRISON LLP EXHIBIT 5 OPINION OF BROBECK, PHLEGER & HARRISON LLP October 23, 2000 Gasonics International Corporation 2540 Junction Avenue San Jose, CA 95134-1909 Re: Gasonics International Corporation Registration Statement on Form S-8 for 64,774 Shares of Common Stock --------------------------------- Ladies and Gentlemen: We have acted as counsel to Gasonics International Corporation, a Delaware corporation (the "Company"), in connection with the registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of 64,774 shares of the Company's common stock reserved for issuance under the Gamma Precision Technology, Inc. 1998 Stock Option Plan as assumed by the Company (the "Gamma Plan"). This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K. We have reviewed the Company's charter documents and the corporate proceedings taken by the Company with respect to the assumption of the Gamma Plan and the options outstanding thereunder in connection with the Company's acquisition of Gamma Precision Technology, Inc. Based on such review, we are of the opinion that if, as and when the shares of the Company's common stock are issued and sold (and the consideration therefor received) pursuant to the provisions of option agreements for the outstanding options assumed under the Gamma Plan and in accordance with the Registration Statement, such shares will be duly authorized, legally issued, fully paid and non-assessable. We consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement. This opinion letter is rendered as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Gamma Plan or the shares of the Company's common stock issuable thereunder. Very truly yours, /s/ BROBECK, PHLEGER & HARRISON LLP BROBECK, PHLEGER & HARRISON LLP EX-23.1 3 0003.txt CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated October 27, 1999 included in the GaSonics International Corporation's Form 10-K for the year ended September 30, 1999 and to all references to our Firm included in this registration statement. /s/ ARTHUR ANDERSON LLP Arthur Anderson LLP San Jose, California October 23, 2000 EX-99.1 4 0004.txt GAMMA PRECISION 1998 STOCK OPTION PLAN EXHIBIT 99.1 GAMMA PRECISION TECHNOLOGY, INC. 1998 STOCK OPTION PLAN (as Assumed by Registrant) GAMMA PRECISION TECHNOLOGY, INC. 1998 STOCK OPTION PLAN 1. Purposes. Gamma Precision Technology, Inc. (the "Company") has -------- adopted this Plan to enhance the interest and concern of the Company's employees, officers, directors and consultants in the success of the Company by giving them an ownership interest in the Company, and to give them an incentive to continue their service to the Company. 2. Stock Subject to Plan. The Company shall reserve 1,300,000 shares --------------------- of its no par value Common Stock (the "Shares") to be issued upon exercise of options which may be granted from time to time under this Plan. As it may from time to time determine, the Board of Directors of the Company (the "Board') may authorize that the Shares may be comprised, in whole or in part, of authorized but unissued shares of the Company's Common Stock or of issued shares which have been reacquired. If options granted under this Plan terminate or expire before being exercised in whole or in part, the Shares subject to those options which have not been issued may be subjected to options subsequently granted under the Plan. 3. Administration of the Plan. The Board shall appoint a Stock -------------------------- Option Committee (the "Committee") which shall consist of not fewer than two (2) members of the Board, or, at the election of the Board or if the Board consists of fewer than two directors, may consist of the entire Board, to administer this Plan. Subject to the express provisions of this Plan and guidelines which may be adopted from time to time by the Board, the Committee shall have plenary authority in its discretion (a) to determine the individuals to whom, and the times at which, options are granted, and the number and purchase price of the Shares subject to each option; (b) to determine whether the options granted shall be "incentive stock options" within the meaning of Section 422A of the Internal Revenue Code of 1986 (the "Code"), or non-statutory stock options, or both; (c) to interpret the Plan and prescribe, amend and rescind rules and regulations relating to it; (d) to determine the terms and provisions (and amendments thereof) of the respective option agreements subject to Section 6 of the Plan, which need not be identical, including, if the Committee shall determine that a particular option is to be an incentive stock option, such terms and provisions (and amendments thereof) as the Committee deems necessary to provide for an incentive stock option or to conform to any change in any law, regulation, ruling or interpretation applicable to incentive stock options; and (e) to make any and all determinations which the Committee deems necessary or advisable in administering the Plan. The Committee's determination on the foregoing matters shall be conclusive. The Committee may delegate any of the foregoing authority -1- to the President with respect to options granted to or which are held by non- officers and non-directors. 4. Persons Eligible. Employees of the Company or its subsidiaries ---------------- (including officers) may be granted either incentive or non-statutory options. Consultants of the Company and its subsidiaries (including directors) may be granted only non-statutory options, except directors who are also employees, who may be granted either incentive or non-statutory options. For this purpose, "employee" shall conform to the requirements of Section 422A of the Code, and "subsidiary" means subsidiary corporations as defined in Section 424 of the Code. The aggregate fair market value (determined as of the time the option is granted) of the Shares with respect to which incentive stock options are exercisable for the first time by an optionee during any calendar year (under all incentive stock option plans of the Company or its parent or subsidiaries) shall not exceed $100,000. 5. Changes in Capital Structure. ---------------------------- 1. Effect on the Plan. In the event of changes in the ------------------ outstanding capital stock of the Company by reason of any stock dividend, stock split or reverse split, reclassification, recapitalization, merger or consolidation, acquisition of 80 percent or more of its gross assets or stock, reorganization or liquidation, the Committee and/or the Board shall make such adjustments in the aggregate number and class of shares available under the Plan as it deems appropriate, and such determination shall be final, binding and conclusive. 2. Effect on Outstanding Options. ----------------------------- 1. Stock Splits and Like Events. Should a stock dividend, ---------------------------- stock split, reverse stock split, or reclassification occur, then the Committee and/or the Board shall make such adjustments in (A) the number and class of shares to which optionees will thereafter be entitled upon exercise of their outstanding options and (B) the price which optionees shall be required to pay upon such exercise, as it in its sole discretion in good faith deems appropriate, and such determination shall be final, binding and conclusive. Such adjustments shall have the effect that the aggregate exercise price paid by, and number and class of shares received by, an optionee who exercises an option subsequent to such occurrence shall be the same as if such optionee had exercised the option immediately prior to such occurrence. 2. Recapitalizations. In the event of (A) a dissolution, ----------------- liquidation, or sale of all or substantially all of the -2- assets of the Company, or (B) a merger or consolidation in which the Company is not the surviving entity, or (C) a merger in which the Company is the surviving entity but the shares of the Company's common stock outstanding immediately preceding the merger are converted by virtue of the merger into other securities, cash, or other property, then, at the sole discretion of the Board and to the extent permitted by applicable law, options granted under this Plan: (1) shall terminate upon such event and may be exercised prior thereto only to the extent such options are then exercisable; or (2) shall terminate upon such event, or such date prior to the consummation of the event as the Board may determine, but shall become fully exercisable as to all shares upon the consummation of such event or on such date determined by the Board; or (3) shall continue in full force and effect and, if applicable, the surviving entity shall assume such options and/or shall substitute similar options for such options; or (4) shall be treated as provided in the applicable agreement or plan of merger, consolidation, dissolution, liquidation, sale of assets or other similar agreement. Notwithstanding the above, upon the occurrence of any such event, each optionee shall have such greater rights as may be provided in such optionee's stock option agreement, which at the discretion of the Board and/or Committee, may include any one or more of the above provisions. (c) Substitution or Assumption of Options by the Company. The ---------------------------------------------------- Company, from time to time, also may substitute or assume outstanding awards granted by another company, whether in connection with an acquisition of such other company or otherwise, by either (A) granting an option under the Plan in substitution of such other company's award, or (B) assuming such award as if it had been granted under the Plan if the terms of such assumed award could be applied to an option granted under the Plan. Such substitution or assumption shall be permissible if the holder of the substituted or assumed option would have been eligible to be granted an option under the Plan if the other company had applied the rules of the Plan to such grant. In the event the Company assumes an award granted by another company, the terms and conditions of such award shall remain unchanged (except that the exercise price and the number and nature of shares issuable upon exercise of any such option will be adjusted appropriately pursuant to Section 424(a) of the Code). In the event the Company elects to grant a new option rather than assuming an existing option, such new option may be granted with a similarly adjusted exercise price. -3- 6. Terms and Conditions of Options. Each option granted under this Plan ------------------------------- shall be evidenced by a stock option agreement (hereinafter called "Agreement") which is not inconsistent with this Plan, and the form of which the Committee and/or Board may from time to time determine, provided that the Agreement shall contain the substance of the following: 3. Option Price. The option price shall be not less than 100% of the ------------ fair market value of the Shares at the time the option is granted, which shall be the date the Committee and/or Board, or its delegate, awards the grant, except in the case of non-statutory stock options granted to employees, in which case the option price shall be not less then 85% of the fair market value of the Shares at the time the option is granted. If the optionee, at the time the option is granted, owns stock possessing more than ten percent (10%) of the total combined voting power of all the classes of stock of the Company or of its parent or subsidiaries (a "Principal Shareholder"), the option price of either incentive or non-statutory stock options shall be not less than 110% of the fair market value of the Shares at the time the option is granted. The fair market value of the Shares shall be determined and the option price of the Shares set by the Committee and/or Board in accordance with the valuation methods described in Section 20.2031-2 of the Treasury Regulations. 4. Method of Exercise. At the time of purchase, Shares purchased ------------------ under options shall be paid for in full either (i) in cash, (ii) at the discretion of the Board, with a promissory note secured by the Shares purchased, (iii) at the discretion of the Committee and/or Board, with outstanding stock of the Company at such value as the Board shall determine in its sole discretion to be the fair market value of such stock, or (iv) a combination of promissory note (if permitted pursuant to (ii) above), stock (if permitted pursuant to (iii) above), and/or cash. To the extent that the right to purchase Shares has accrued under an option, the optionee may exercise said option from time to time by giving written notice to the Company stating the number of Shares with respect to which the optionee is exercising the option, and submitting with said notice payment of the full purchase price of said Shares either in cash or, at the discretion of the Board and/or Committee as described above, with a promissory note, outstanding stock of the Company, or a combination of cash, promissory note, and/or such stock. As soon as practicable after receiving such notice and payment, the Company shall issue, without transfer or issue tax to the optionee (or other person entitled to exercise the option), and at the main office of the Company or such other place as shall be mutually acceptable, a certificate or certificates representing such Shares out of authorized but unissued Shares or reacquired Shares of its capital stock, as the Board and/or Committee, or its delegate, may elect, for the number of Shares to be delivered. The time of such delivery may be postponed by -4- the Company for such period as may be required for it with reasonable diligence to comply with such procedures as may, in the opinion of counsel to the Company, be desirable in view of federal and state laws, including corporate securities laws and revenue and taxation laws. If the optionee (or other person entitled to exercise the option) fails to accept delivery of any or all of the number of Shares specified in such notice upon tender of delivery of the certificates representing them, the right to exercise the option with respect to such undelivered Shares may be terminated. 5. Option Term. The Committee and/or Board may grant options for any ----------- term, but shall not grant any options for a term longer than ten (10) years from the date the option is granted (except in the case of an incentive or non- statutory option granted to a Principal Shareholder in which case the term shall be no longer then five (5) years from the date the option is granted). Each option shall be subject to earlier termination as provided in this section 6 of this Plan. 6. Exercise of Options. Each option granted under this Plan shall be ------------------- exercisable on such date or dates, upon or after the occurrence of certain events, or upon or after the achievement of certain performance milestones (which dates may be advanced or which occurrences or achievements may be waived in whole or in part or extended at the discretion of the Committee and/or Board) and during such period and for such number of Shares as shall be determined by the Committee and/or Board. An incentive option granted to a non-officer may not be exercised at any time unless the optionee shall have continuously served, to the extent determined by the Committee and/or Board, as an employee of the Company or its subsidiary throughout a period commencing on the date an option is granted and ending at a specified time no more than three (3) months and no fewer than thirty (30) days before an attempted exercise of the option, and, if applicable, unless the Committee and/or Board shall determine and notify the optionee in writing that certain events have occurred or certain performance milestones have been achieved. 7. Nonassignability of Option Rights. No option shall be assignable --------------------------------- or transferable by the optionee except by will or by the laws of descent and distribution. During the life of an optionee, the option shall be exercisable only by the optionee. 8. Effect of Termination of Employment or Death or Disability. In ---------------------------------------------------------- the event the optionee's employment with the Company and its subsidiaries ceases, as determined by the Committee, during the optionee's life for any reason (except disability or death), including retirement, any incentive option or unexercised portion thereof granted to a non-officer optionee which is otherwise exercisable shall terminate unless exercised within a specified period -5- not to exceed three (3) months nor to be fewer than thirty (30) days from the date on which such employment ceased but not later than the date of expiration of the option period. In the event of the death or disability of the optionee while employed or within a specified period not to exceed three (3) months nor to be fewer than thirty (30) days from the date on which such employment ceases, any option or unexercised portion thereof granted to the optionee, if otherwise exercisable by the optionee at the date of death or disability, may be exercised by the optionee (or by the optionee's personal representatives, heirs or legatees) at any time prior to the expiration of one year from the date of death or disability of the optionee but not later than the date of expiration of the option period. For purposes of this Plan, "disability" shall be defined as those conditions described in Code Section 22(e)(3), and such other conditions as the Committee may reasonably determine constitute a disability. 9. Rights of Optionee. The optionees shall have no rights as a ------------------ stockholder with respect to any Shares subject to an option until the date of issuance of a stock certificate to the optionee for such Shares. No adjustment shall be made for dividends or other rights of which the record date is prior to the date such stock certificate is issued. Neither this Plan, nor any action or agreement thereunder, shall confer any rights of employment, any rights to election or retention as an officer or director, or any rights to serve as a consultant. 7. Use of Proceeds. The proceeds from the sale of stock pursuant to --------------- options granted under the Plan shall constitute general funds of the Company. 8. Amendment of Plan. The Board of Directors may at any time amend the ----------------- Plan, provided that no amendment may affect any then outstanding options or any unexercised portions thereof. In addition, any amendment to the Plan increasing the number of Shares reserved under the Plan, altering the employees or class of employee eligible to be granted incentive stock options under the Plan, causing options granted to employees and intended to be incentive options under the Plan not to qualify as "incentive stock options" under Section 422A of the Code, or amending this Section 8 shall be subject to shareholder approval as shall any amendment which would cause the Plan not to satisfy the conditions of Rule 16b-3 once the Company registers a class of equity securities pursuant to Section 12 of the Securities Exchange Act of 1934. 9. Financial Information. Whenever the Company provides financial --------------------- statements, whether audited or unaudited, to all of its shareholders as a group, the Company shall concurrently provide each optionee with a copy of such financial statements. Notwithstanding -6- the foregoing, the Company shall provide each optionee at the end of its fiscal year with a copy of its financial statements, either audited or unaudited, for such fiscal year, within ninety (90) days after the end of such fiscal year if such person is then an optionee. In connection with such provision, the Company may require the optionee to enter into a nondisclosure agreement; provided, however, that such nondisclosure agreement may not contain provisions which are more stringent than those the Company imposes on its shareholders which are also receiving the financial statements. 10. Effective Date and Termination of Plan. This Plan was adopted by the -------------------------------------- Board of Directors on ________, 199__, and approved by the shareholders on _________, 199__. The Board may terminate this Plan at any time. If not earlier terminated, the Plan shall terminate on ________, 200__. Termination of the Plan will not affect rights and obligations theretofore granted and then in effect. This Plan, the granting of any option hereunder, and the issuance of stock upon the exercise of any option, shall be subject to such approval or other conditions as may be required or imposed by any regulatory authority having jurisdiction to issue regulations or rules with respect thereto, including the securities laws of various governmental entities. -7- EX-99.2 5 0005.txt GAMMA PRECISION FORM OF STOCK OPTION AGREEMENT EXHIBIT 99.2 GAMMA PRECISION TECHNOLOGY, INC. FORM OF STOCK OPTION AGREEMENT GAMMA PRECISION TECHNOLOGY, INC. INCENTIVE STOCK OPTION AGREEMENT GENERAL OPTION INFORMATION - -------------------------- Name of Employee: _________________________________ Address of Employee: __________________________ __________________________ Total Number of Option Shares: _______________ Option Exercise Price: $_______ per share Date of Grant: ______________, 199__. Option Expiration Date: ______________, 19__ (the day after the date ___ years from the Date of Grant). Exercise Schedule: Initially, none of the Option Shares shall be exercisable. ___% of the total number of Option Shares shall become exercisable on the first anniversary of _______________ 199__. An additional ___% of the total number of Option Shares shall become exercisable on each monthly anniversary thereafter until the Option is fully vested (so that all of the Option Shares will become exercisable on ______________, ____). TERMS OF AGREEMENT - ------------------ This Incentive Stock Option Agreement (the "Agreement") is made and entered into, as of the Date of Grant indicated above, between Gamma Precision Technology, Inc., a California corporation (the "Company"), and the Employee indicated above, pursuant to the Company's Stock Option Plan (the "Plan"), which reserves for issuance to persons serving the Company and its Subsidiaries as employees and consultants certain shares of the Company's no par value Common Stock (hereinafter called the "Common Stock"). As used in this Agreement, the term "Subsidiary" shall mean any present or future corporation which would be a "subsidiary corporation" of the Company, as that term is defined in Sections 425(f) and (g) of the Internal Revenue Code of 1986 (the "Code"). The Company desires to carry out the purposes of the Plan by affording the Employee, who is an employee of the Company, an opportunity to purchase shares of Common Stock by means of the grant of an incentive stock option, under the terms and conditions of this Agreement. Accordingly, the Company and the Employee agree as follows: 1. Grant of Option. The Company hereby grants to the Employee, subject --------------- to the terms and conditions of this Agreement, the right and option (hereinafter called the "Option") to purchase all or any part of the Total Number of Option Shares indicated in the General Option Information above (such number being subject to adjustment as provided in Section 7 of this Agreement and referred to in this Agreement as the "Option Shares"). The Option is intended to qualify as an "incentive stock option" within the meaning of Section 422A of the Code. 2. Purchase Price. The purchase price of the Option Shares shall be the -------------- Option Exercise Price indicated in the General Option Information above, which price has been determined by the Stock Option Committee (the "Committee") appointed by the Board of Directors to be not less than the fair market value of said shares as of the Date of Grant. 3. Terms of Option. The Option shall expire on the Option Expiration --------------- Date, and shall not be exercisable on or after that date, subject to earlier termination as provided in Sections 5, 6, and 7 hereof, or when all of the Option Shares have been acquired. Subject to the provisions of Section 8, the Option shall become exercisable as indicated in the Exercise Schedule in the General Option Information section above. Fractional shares shall be rounded to the nearest whole share. The Option my be exercised as to any or all of the available Option Shares; provided, however, that if the Option is exercised for fewer than all of the available Option Shares, it can-not be exercised for less than twenty percent (20%) of the Option Shares. The purchase price of the shares as to which the Option shall be exercised shall be paid in full at time of exercise as provided in Section 8. Except as provided in Sections 5 and 6 hereof, the Option may not be exercised at any time unless the Employee is then in the service of the Company and shall have been continuously employed by the Company or a subsidiary since the Date of Grant. The Employee shall not have any of the rights of a shareholder with respect to the Option Shares as to which there has been no exercise of the Option. 4. Nontransferability. The Option shall not be transferable otherwise ------------------ than by will or the laws of descent and distribution, and the Option may be exercised, during the lifetime of the Employee, only by the Employee. More particularly (but without limiting the generality of the foregoing), the Option may not be assigned, transferred (except as provided above), pledged or hypothecated in any way, shall not be assignable by operation of law and shall not be subject to execution, attachment or similar process. Any attempted assignment, transfer, pledge, hypothecation or other disposition of the Option contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the Option, shall be null and void and without effect. 5. Termination of Employment. Except as provided in Section 6, in the ------------------------- event that the Employee's employment with the Company and its Subsidiaries is terminated for any reason, with or without cause, and whether at the initiative of the Employee or the Company, the Option may be exercised by the Employee, to the extent that the Employee shall have been entitled to do so at the date of such termination, at any time within thirty (30) days after such termination, but not on or after the Option Expiration Date, on which date the Option shall terminate. Nothing in this Agreement shall confer upon the Employee any right to continue in the employ of the Company or any of its Subsidiaries or interfere in any way with the right of the Company or any such Subsidiary to terminate the Employee's employment at any time. 6. Death or Disability of Employee. If prior to the Option Expiration ------------------------------- Date the Employee shall die or became disabled while employed by the Company or one or more of its Subsidiaries or within thirty (30) days after the termination of such employment, the Option may be exercised (to the extent that the Employee shall have been entitled to do so at the date of the Employee's death or disability) by the Employee (or by the Employee's personal representatives, heirs or legatees) at any time within one (1) year after his death or disability, but not on or after the Option Expiration Date, on which date the Option shall terminate. For purposes of this Agreement, "disability" shall be defined as those conditions described in Code Section 22(e)(3), and such other conditions as the Committee may reasonably determine constitute a disability. 7. Adjustments Upon Changes in Capital Structure. --------------------------------------------- 1. Stock Splits and Like Events. If a stock dividend, stock split ---------------------------- or reverse stock split, or reclassification were to occur, then the aggregate number and/or class of shares subject to this Option and the exercise price prior to such occurrence shall be appropriately adjusted by the Committee in accordance with the terms of the Plan, and such adjustment shall be conclusive. Such adjustment shall have the result that if the Employee were to exercise a portion of the Option subsequent to such occurrence, then Employee shall pay the same aggregate exercise price to exercise such portion of the Option and shall then hold the same class and aggregate number of shares as if the Employee had exercised such portion of the Option immediately prior to such occurrence. 2. Recapitalization. In the event of (A) a dissolution, liquidation, ---------------- or sale of all or substantially all of the assets of the Company, or (B) a merger or consolidation in which the Company is not the surviving entity, or (C) a merger in which the Company is the surviving entity but the shares of the Company's common stock outstanding immediately preceding the merger are converted by virtue of the merger into other securities, cash, or other property, then, at the sole discretion of the Board and to the extent permitted by applicable law, the Option: (1) shall terminate upon such event and may be exercised prior thereto only to the extent the Option was then exercisable; or (2) shall terminate upon such event, or such date prior to the consummation of the event as the Board may determine, but shall become fully exercisable as to all shares upon the consummation of such event or on such date determined by the Board; or (3) shall continue in full force and effect and, if applicable, the surviving entity shall assume the Option and/or shall substitute a similar option for the Option; or (4) shall be treated as provided in the applicable agreement or plan of merger, consolidation, dissolution, liquidation, sale of assets or other similar agreement. 8. Method of Exercising Option; Investment Representation. Subject to the ------------------------------------------------------ terms and conditions of this Agreement, the Option may be exercised by written notice to the Company at its main office. Such notice shall be in a form reasonably satisfactory to the Company and shall state the election to exercise the Option and the number of shares in respect of which it is being exercised and shall be signed by the person or persons so exercising the Option. Such notice shall be accompanied by payment of the full purchase price of such shares in cash or by check. The Company shall deliver a certificate or certificates representing such shares as soon as practicable after the notice shall be received. The certificate or certificates for the shares as to which the Option shall have been so exercised shall be registered in the name of the Employee and shall be delivered as provided above to or upon the written order of the person or persons exercising the Option. In the event the Option shall be exercised pursuant to Section 6 hereof after the death of the Employee, such notice shall be accompanied by appropriate proof of the right of such person or persons to exercise the Option. All shares purchased upon the exercise of the Option as provided herein shall be fully paid and nonassessable. The shares purchasable upon the exercise of options granted under the Plan have not been registered under the Federal Securities Act of 1933 (the "Act"), or qualified under the California Corporate Securities Law of 1968 (the "Law"). Therefore, unless the Option Shares are so registered and qualified prior to Employee acquiring them by exercising the Option, the Option Shares shall be subject to the following restrictions and all certificates representing the Option Shares shall bear conspicuous legends containing said restrictions: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") IN RELIANCE IN PART ON THE EXEMPTION PROVIDED BY RULE 701, OR QUALIFIED UNDER THE CALIFORNIA CORPORATE SECURITIES LAW OF 1968 (THE "LAW"). THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND CONSTITUTE RESTRICTED SECURITIES FOR PURPOSES OF RULE 144. NEITHER SAID SHARES NOR ANY INTEREST THEREIN MAY BE TRANSFERRED, SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE ACT AND QUALIFICATION UNDER THE LAW, OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED AS TO SAID TRANSFER, SALE OR OFFER. Until registration of the Option Shares under the Act and qualification under the Law, the notice of exercise shall require the Employee to represent that the Employee is acquiring the Option Shares for the Employee's own account, for investment, and not for purposes of resale or distribution and each subsequent purchaser shall be required to so represent until such registration. The Company may prohibit any sale or transfer of any interest in the Option Shares by a person so representing for one year (or such longer time as the Company reasonably deems appropriate) if such person cannot demonstrate to the satisfaction of the Company that such sale or transfer was occasioned by circumstances which had changed from the date such person made such representation and that such representation was therefore truthful when made. 9. Disposition of Shares. The Employee agrees to notify the Company in --------------------- writing of any sale or transfer of any Option Shares which takes place either within two years from the Date of Grant or within one year from the issuance of Option Shares to the Employee pursuant to exercise of the Option. Such notice shall be given to the Company within ten (10) days of the sale or transfer and shall set forth the price and terms of any such sale or transfer. 10. Right of First Refusal. ---------------------- 1. Initiation of Right of First Refusal. Until a public offering of ------------------------------------ the Company's Common Stock has occurred with proceeds to the Company of at least Ten Million Dollars ($10,000,000) and a per share price valuing the Company's total outstanding Common Stock at least Forty-Five Million Dollars ($45,000,000), the Employee (which for purposes of this Section 10 shall include the Employee's heirs, executors, administrators and transferees, and shall be referred to as the "Shareholder") shall not sell pledge, assign, or otherwise transfer any of the Shareholder's interest in any of the Option Shares acquired upon exercise of the Option without first offering to the Company or its designees the right and option to purchase said shares as provided hereinafter in this Section 10 (the "Right of First Refusal"). Notwithstanding the above, the Employee may sell or transfer any interest in any of said Option Shares to the Employee's spouse or children, or to a trustee or custodian for the benefit of the Employee or Employee's spouse or children (collectively, "Permitted Transferees") without first offering said Option Shares to the Company or its designees, provided such buyer or transferee agrees in writing to be bound by the restrictions set forth in this Section 10 and Section 8 of this Agreement. In the event of a pledge or other hypothecation of the Option Shares, or the granting of any option or other right to purchase the Option Shares, then the Right of First Refusal shall come into existence at the time of any sale or transfer of ownership of the Option Shares pursuant to the foreclosure under such pledge or hypothecation or exercise of such option or right, as the case may be; provided, however, that Employee may not pledge or hypothecate the Option Shares or grant an option or right to purchase the Option Shares unless the pledge holder or option or right holder, as the case may be, agrees in writing at the time of the pledge or grant of the option or right to be bound by the Right of First Refusal as contained in this Section 10 and to cause any proposed assignee or transferee of such pledge or right or option to execute and deliver to the Company a similar writing prior to such assignment or transfer. 2. Mechanics. Any Shareholder desiring to sell any or all of the --------- Option Shares during such time period shall give written notice to the Company of the Shareholder's bona fide intention to sell the Option Shares pursuant to a bona fide written offer of a third party other than the Company (the "Proposed Purchaser"). The notice shall include a photocopy of such written offer which shall specify the identity of the Proposed Purchaser, the number of such Option Shares proposed to be sold (hereinafter the "Offered Shares"), and the price and payment terms of the proposed offer to buy the Offered Shares. The payment terms of the Proposed Purchaser to the Shareholder (and of the Shareholder to the Company) must be cash, cash equivalent (a certificate of deposit, shares of stock in a publicly traded company, and the like), or a promissory note of the Proposed Purchaser payable on date(s) specified by passage of time. The Company or its designees shall have the right and option to purchase the Offered Shares, at the price and on the payment terms specified in the Shareholder's notice, for a period of sixty (60) days from receipt of said notice from the Shareholder. That is, such notice by the Shareholder constitutes an irrevocable offer by the Shareholder to sell the Offered Shares to the Company or its designees at the price and payment terms specified in such notice for sixty (60) days from the Company's receipt of such notice. The Company shall exercise its option by giving written notice (the "Original Notice") to the Shareholder stating that it is exercising its option. The Company may not exercise the option as to fewer than all of the Offered Shares. The Shareholder shall deliver certificates representing the Offered Shares purchased by the Company or its designees against payment for the account of the Shareholder of the purchase price in compliance with the terms of the bona fide offer within thirty (30) days of the option exercise notice. In the event both the Company and its designees fail to exercise their option as provided in this section, the Offered Shares may be sold by the Shareholder to the Proposed Purchaser within a period of sixty (60) days following the end of the Company's sixty (60)-day option period specified above, provided that (1) such sale is made at a price and on terms no more favorable to the Proposed Purchaser than those made available to the Company and its designees under this section, (2) the Proposed Purchaser delivers a written undertaking to the Company to be bound by the restrictions on the Option Shares set forth in this Section 10 and Section 8 of this Agreement, and (3) the Company receives an opinion of counsel reasonably satisfactory to it that the sale to the Proposed Purchaser complies with applicable federal and state corporate securities laws. Upon receipt of a writing from Shareholder and Proposed Purchaser that the foregoing conditions have been satisfied and the purchase price paid to the Shareholder by the Proposed Purchasers, the Company shall transfer the ownership of record to the Proposed Purchaser (and reissue the certificate). If within this sixty (60)-day period the Shareholder does not enter into an agreement for such a sale of Offered Shares to the Proposed Purchaser which is consummated within thirty (30) days of the execution thereof, the Right of First Refusal shall be revived as to the Offered Shares which shall not be sold or transferred unless the Shareholder first offers the Company the right and option to repurchase all such Option Shares in accordance with this Section. Any transfer or purported transfer of the Option Shares or any interest therein shall be null and void unless the terms and conditions of this Section 10 are strictly observed and followed, or such terms and conditions are waived by the Company's Board of Directors. In addition to the other legends described in this Agreement, all certificates representing the Option Shares shall bear the following legend: THESE SHARES ARE ALSO SUBJECT TO CERTAIN TRANSFER RESTRICTIONS, INCLUDING A RIGHT OF FIRST REFUSAL, AS SET FORTH IN AN INCENTIVE STOCK OPTION AGREEMENT ON FILE WITH THE SECRETARY. 11. Notices. Any notice required to be given pursuant to this Agreement ------- shall be deemed effectively given (i) to the Company upon personal delivery to the Company's President, or three (3) days after it is deposited in the U.S. mail, by registered or certified mail, postage prepaid and addressed to the Company at it principal executive office, Attention: President, and (ii) to the Employee upon personal delivery or three (3) days after it is deposited in the U.S. mail, by registered or certified mail, postage prepaid and addressed to the Employee at his address appearing in the General Option Information section of this Agreement. Either party may designate another address for purposes of receiving notices under this Agreement by giving written notice to the other party of such new address in accordance with this section. 12. Delivery of Plan. The Employee acknowledges that the Employee has ---------------- received from the Company a copy of the Plan pursuant to which this Agreement is made and entered into. 13. Tax Advice. The Employee represents that he has not relied upon any ---------- tax advice from the Company or its counsel with respect to this Agreement. 14. Confidentiality and Financial Information. ----------------------------------------- 1. Confidentiality. The Company has a general policy of maintaining --------------- the confidentiality of certain corporate records. The Employee shall be subject to such policy and all certificates representing the Option Shares shall bear the following legend: THE HOLDER OF RECORD OF THESE SHARES, AND SUCH HOLDER'S AGENTS AND ATTORNEYS, MAY BE REQUIRED TO EXECUTE NONDISCLOSURE STATEMENTS PRIOR TO BEING PERMITTED TO INSPECT CERTAIN RECORDS OF THE COMPANY. 2. Financial Information. Whenever the Company provides financial --------------------- statements, whether audited or unaudited, to all of its shareholders as a group, the Company shall concurrently provide the Employee with a copy of such financial statements. Notwithstanding the foregoing, the Company shall provide the Employee at the end of its fiscal year with a copy of its financial statements, either audited or unaudited, for such fiscal year, within ninety (90) days after the end of such fiscal year, if this Option is then still in effect. The Employee acknowledges that such financial statements are confidential information of the Company and are being provided solely in order to assist Employee in the decision of whether and when to exercise the Option. The Employee agrees (1) to maintain the confidentiality of all such financial statements and not to disclose the contents of such financial statements to any third party without the prior written consent of an officer of the Company and (2) not to use such financial statements for any other purpose. Authorized Signatures - --------------------- In order to bind the parties to the terms and conditions of this Incentive Stock Option Agreement, the parties or their duly authorized representatives have signed their names below. Gamma Precision Technology, Inc. Employee By:_______________________ _________________________ President Signature EX-99.3 6 0006.txt FORM OF OPTION ASSUMPTION AGREEMENT EXHIBIT 99.3 FORM OF OPTION ASSUMPTION AGREEMENT Exhibit 99.3 GASONICS INTERNATIONAL CORPORATION STOCK OPTION ASSUMPTION AGREEMENT GAMMA PRECISION TECHNOLOGY, INC. 1998 Stock Option Plan Optionee: First Name Last Name STOCK OPTION ASSUMPTION AGREEMENT effective as of the 13th day of September, 2000. WHEREAS, the undersigned individual ("Optionee") holds one or more outstanding options to purchase shares of the common stock of Gamma Precision Technology, Inc., a California corporation ("Gamma"), which were granted to Optionee under the Gamma Precision Technology, Inc. 1998 Stock Option Plan (the "Plan"). WHEREAS, each of those options is evidenced by a Stock Option Agreement (the "Option Agreement") issued to Optionee under the Plan. WHEREAS, Gamma has been acquired by GaSonics International Corporation, a Delaware corporation ("GaSonics"), through the merger (the "Merger") of GPT Acquisition Corp., a California corporation and a wholly owned subsidiary of GaSonics ("Merger Sub"), with and into Gamma, pursuant to the Merger Agreement, by and among GaSonics, Gamma and Merger Sub, dated August 30, 2000 (the "Merger Agreement"). WHEREAS, the provisions of the Merger Agreement require the obligations of Gamma under each outstanding option under the Plan to be assumed by GaSonics at the consummation of the Merger and the holder of each outstanding option to be issued an agreement evidencing the assumption of such option. WHEREAS, the purpose of this Agreement is to evidence the assumption by GaSonics of the outstanding options held by Optionee at the time of the consummation of the Merger (the "Effective Time") and to reflect certain adjustments to those options which have become necessary in connection with their assumption by GaSonics in the Merger. NOW, THEREFORE, it is hereby agreed as follows: 1. The number of shares of Gamma common stock ("Gamma Stock") subject to the options held by Optionee immediately prior to the Effective Time (the "Gamma Options") and the exercise price payable per share are set forth below. GaSonics hereby assumes, as of the Effective Time, all the duties and obligations of Gamma under each of the Gamma Options. In connection with such assumption, the number of shares of GaSonics common stock ("GaSonics Stock") purchasable under each Gamma Option hereby assumed and the exercise price payable thereunder have been adjusted to reflect the Option Exchange Amount set forth in the Merger Agreement. Accordingly, the number of shares of GaSonics Stock subject to each Gamma Option hereby assumed shall be as specified for that option below, and the adjusted exercise price payable per share of GaSonics Stock under the assumed Gamma Option shall also be as indicated for that option below.
- -------------------------------------------------------------------------------------------------- GAMMA STOCK OPTIONS GASONICS ASSUMED OPTIONS - -------------------------------------------------------------------------------------------------- # of Shares # of Shares of Gamma Exercise Price of GaSonics Adjusted Exercise Common Stock per Share Common Stock Price per Share - --------------------------------------------------------------------------------------------------- $ $ - ---------------------------------------------------------------------------------------------------
2. The intent of the foregoing adjustments to each assumed Gamma Option is to assure that the spread between the aggregate fair market value of the shares of GaSonics Stock purchasable under each such option and the aggregate exercise price as adjusted pursuant to this Agreement will not, immediately after the consummation of the Merger, be greater than the spread which existed, immediately prior to the Merger, between the then aggregate fair market value of the Gamma Stock subject to the Gamma Option and the aggregate exercise price in effect at such time under the Option Agreement. Such adjustments are also intended to preserve, immediately after the Merger, on a per share basis, the same ratio of exercise price per option share to fair market value per share which existed under the Gamma Option immediately prior to the Merger. 3. Each Gamma Option shall continue to have a maximum term of ten (10) years from the date of grant, subject to earlier termination (as provided in the applicable Option Agreement) following Optionee's cessation of service or employment. 4. The following provisions shall govern each Gamma Option hereby assumed by GaSonics: (a) Unless the context otherwise requires, all references in each Option Agreement and the Plan (to the extent incorporated into such Option Agreement) shall be adjusted as follows: (i) all references to the "Company" shall mean GaSonics, (ii) all references to "Stock," "Common Stock" or "Shares" shall mean shares of GaSonics Stock, (iii) all references to the "Board" shall mean the Board of Directors of GaSonics and (iv) all references to the "Committee" shall mean the Compensation Committee of the GaSonics Board of Directors. (b) Except as modified by this Agreement, the grant date and the expiration date of each assumed Gamma Option and all other provisions which govern either the exercise or the termination of the assumed Gamma Option shall remain the same as set forth in the Option Agreement applicable to that option, and the provisions of the Plan and the Option Agreement shall accordingly govern and control Optionee's rights under this Agreement to purchase GaSonics Stock under the assumed Gamma Option. (c) Each Gamma Option assumed by GaSonics which was originally designated as an Incentive Stock Option under the federal tax laws is intended to retain such Incentive Stock Option status to the maximum extent allowed by law. However, according to the terms of the Merger Agreement negotiated between GaSonics and Gamma, Optionees may lose Incentive Stock Option status with respect to their assumed Gamma Options. Accordingly, Optionee acknowledges that Incentive Stock Option status may be lost with respect to certain assumed Gamma Options and Optionee hereby releases GaSonics and Merger Sub from any and all claims arising from the loss of such status. (d) Each Gamma Option hereby assumed by GaSonics shall continue to vest and become exercisable in accordance with the same installment vesting schedule in effect for that option under the applicable Option Agreement immediately prior to the Effective Time; except, that the number of shares subject to each such installment shall be adjusted to reflect the Option Exchange Amount. (e) For purposes of applying any and all provisions of the Option Agreement and the Plan relating to Optionee's status as an employee or a consultant of Gamma, Optionee shall be deemed to continue in such status as an employee or a consultant for so long as Optionee renders services as an employee or a consultant to GaSonics or any present or future majority-owned GaSonics subsidiary. Accordingly, the provisions of the Option Agreement governing the termination of the assumed Gamma Options upon Optionee's cessation of service as an employee or a consultant of Gamma shall hereafter be applied on the basis of Optionee's cessation of employee or consultant status with GaSonics and its subsidiaries, and each assumed Gamma Option shall accordingly terminate, within the designated time period in effect under the Option Agreement for that option, following such cessation of employee or consultant status. (f) The adjusted exercise price payable for the GaSonics Stock subject to each assumed Gamma Option shall be payable in any of the forms authorized under the Option Agreement applicable to that option. For purposes of determining the holding period of any shares of GaSonics Stock delivered in payment of such adjusted exercise price, the period for which such shares were held as Gamma Stock prior to the Merger shall be taken into account. (g) In order to exercise each assumed Gamma Option, Optionee must deliver to GaSonics a written notice of exercise in which the number of shares of GaSonics Stock to be purchased thereunder must be indicated. The exercise notice must be accompanied by payment of the adjusted exercise price payable for the purchased shares of GaSonics Stock and should be delivered to GaSonics at the following address: GaSonics International Corporation 2730 Junction Avenue San Jose, CA 95134-1909 Attention: President 5. Except to the extent specifically modified by this Option Assumption Agreement, all of the terms and conditions of each Option Agreement as in effect immediately prior to the Merger shall continue in full force and effect and shall not in any way be amended, revised or otherwise affected by this Stock Option Assumption Agreement. IN WITNESS WHEREOF, GaSonics International Corporation has caused this Stock Option Assumption Agreement to be executed on its behalf by its duly- authorized officer as of the ____ day of September, 2000. GASONICS INTERNATIONAL CORPORATION By:__________________________________ Asuri Raghavan, President ACKNOWLEDGMENT The undersigned acknowledges receipt of the foregoing Stock Option Assumption Agreement and understands that all rights and liabilities with respect to each of his or her Gamma Options hereby assumed by GaSonics are as set forth in the Option Agreement, the Plan and such Stock Option Assumption Agreement. _______________________________ Employee, Optionee DATED: September __, 2000 -----END PRIVACY-ENHANCED MESSAGE-----