Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 81 461K
2: EX-3.1 Restated Articles of Incorporation 18 60K
3: EX-3.3 Registrant's Bylaws 39 131K
4: EX-3.4 Certificate of Amendment of the Bylaws 2± 9K
5: EX-10.1 Registrant's 1990 Stock Option Plan 28 95K
9: EX-10.10 Second Amended Investors Rights Agreement 22 86K
10: EX-10.11 Form of Indemnification Agreement 10 50K
11: EX-10.12 Pericom Technology Agreement 28 80K
12: EX-10.13 Harris Agreement 21 126K
6: EX-10.2 Registrant's 1995 Stock Option Plan 9 41K
7: EX-10.3 Registrant's 1997 Employee Stock Purchase Plan 15 62K
8: EX-10.4 Lease Dated November 29, 1993 67± 254K
13: EX-11.1 Computation of Net Income Per Share 1 8K
14: EX-27.1 Financial Data Schedule 2 10K
EX-10.2 — Registrant’s 1995 Stock Option Plan
EX-10.2 | 1st Page of 9 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 10.2
PERICOM SEMICONDUCTOR CORPORATION
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1995 STOCK OPTION PLAN
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1. Establishment, Purpose, and Definitions.
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(a) There is hereby adopted the 1995 Stock Option Plan (the "Plan") of
Pericom Semiconductor Corporation (the "Company").
(b) The purpose of the Plan is to provide a means whereby eligible
individuals (as defined in Section 4, below) can acquire Common Stock of the
Company (the "Stock"). The Plan provides employees (including officers and
directors who are employees) of the Company and of its Affiliates an opportunity
to purchase shares of Stock pursuant to options which may qualify as incentive
stock options (referred to as "incentive stock options") under Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code"), and employees,
officers, directors, independent contractors, and consultants of the Company and
of its Affiliates an opportunity to purchase shares of Stock pursuant to options
which are not described in Sections 422 or 423 of the Code (referred to as
"nonqualified stock options").
(c) The term "Affiliates" as used in the Plan means parent or
subsidiary corporations, as defined in Sections 424(e) and (f) of the Code (but
substituting "the Company" for "employer corporation"), including parents or
subsidiaries which become such after adoption of the Plan.
2. Administration of the Plan.
--------------------------
(a) The Plan shall be administered by the Board of Directors of the
Company (the "Board"). Subject to Section 2(e) below, the Board may delegate
the responsibility for administering the Plan to a committee, under such terms
and conditions as the Board shall determine (the "Committee"). The Committee
shall consist of two or more members of the Board or such lesser number of
members of the Board as permitted by Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended ("Rule 16b-3"). Except as permitted by Rule
16b-3, none of the members of the Committee shall receive, while serving on the
Committee, or during the one-year period preceding appointment to the Committee,
a grant or award of equity securities under (i) the Plan or (ii) any other plan
of the Company or its affiliates under which the participants are entitled to
acquire Stock (including restricted Stock), stock options, stock bonuses,
related rights or stock appreciation rights of the Company or any of its
affiliates, other than pursuant to the grant of automatic options provided in
Section 7 below and pursuant to transactions in any such other plan which do not
disqualify a director from being a disinterested person under Rule 16b-3. The
limitations set forth in this Section 2(a) shall automatically incorporate any
additional requirements that may in the future be necessary for the Plan to
comply with Rule 16b-3. Members of the Committee shall serve at the pleasure of
the Board. The Committee shall select one of its members as chairman, and shall
hold meetings at such times and places as it may determine. A majority of the
Committee shall constitute a
1
quorum and acts of the Committee at which a quorum is present, or acts reduced
to or approved in writing by all the members of the Committee, shall be the
valid acts of the Committee. If the Board does not delegate administration of
the Plan to the Committee, then each reference in this Plan to "the Committee"
shall be construed to refer to the Board.
(b) Except for options granted to Non-Employee Directors pursuant to
Section 7, the Committee shall determine which eligible individuals (as defined
in Section 4, below) shall be granted options under the Plan, the timing of such
grants, the terms thereof (including any restrictions on the Stock), and the
number of shares subject to such options.
(c) Except for options granted to Non-Employee Directors pursuant to
Section 7, the Committee may amend the terms of any outstanding option granted
under this Plan, but any amendment which would adversely affect the optionee's
rights under an outstanding option shall not be made without the optionee's
written consent. The Committee may, with the optionee's written consent, cancel
any outstanding stock option or accept any outstanding stock option in exchange
for a new option.
(d) The Committee shall have the sole authority, in its absolute
discretion to adopt, amend, and rescind such rules and regulations as, in its
opinion, may be advisable in the administration of the Plan, to construe and
interpret the Plan, the rules and the regulations, and the instruments
evidencing options or Stock granted under the Plan and to make all other
determinations deemed necessary or advisable for the administration of the Plan.
All decisions, determinations, and interpretations of the Committee shall be
binding on all participants. Notwithstanding the foregoing, the Committee shall
not exercise any discretionary functions with respect to options granted to Non-
Employee Directors pursuant to Section 7.
(e) Notwithstanding the foregoing provisions of this Section 2, grants
of options to any "Covered Employee," as such term is defined by Section 162(m)
of the Code shall be made only by a subcommittee of the Committee which, in
addition to meeting other applicable requirements of this Section 2, is composed
solely of two or more "outside directors," within the meaning of Section 162(m)
of the Code and the regulations thereunder (the "Subcommittee") to the extent
necessary to qualify such grants as "performance-based compensation" under
Section 162(m). In the case of such grants to Covered Employees, references to
the "Committee" shall be deemed to be references to the Subcommittee as
specified above.
3. Stock Subject to the Plan.
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(a) The aggregate number of shares of Common Stock of the Company
available for grant of options under the Plan initially shall be 1,200,000
shares, and commencing with the first business day of each fiscal year of the
Company thereafter beginning with July 1, 1996, such maximum number of shares
reserved for issuance hereunder shall be increased by a number equal to ten
percent (10%) of the number of shares of Common Stock outstanding as of June 30
of the immediately preceding year; provided, however, that such maximum number
of shares shall not exceed 1,800,000 shares. Notwithstanding the foregoing, the
aggregate number
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of shares of Common Stock available for grant of incentive stock options shall
be 1,200,000 shares, and such number shall not be subject to annual adjustment.
If an option is surrendered (except surrender for shares of Stock) or for any
other reason ceases to be exercisable in whole or in part, the shares which were
subject to such option but as to which the option had not been exercised shall
continue to be available under the Plan.
(b) If there is any change in the Stock subject to any option granted
under the Plan, through merger, consolidation, reorganization, recapitalization,
reincorporation, stock split, stock dividend (in excess of two percent), or
other change in the capital structure of the Company, appropriate adjustments
shall be made by the Committee in order to preserve but not to increase the
benefits to the individual, including adjustments to the number and kind of
shares and the price per share subject to outstanding options.
4. Eligible Individuals. The persons eligible to participate in the Plan
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(other than pursuant to Section 7) are such employees, officers, independent
contractors, and consultants of the Company or an Affiliate as the Committee, in
its discretion, shall designate from time to time. Notwithstanding the
foregoing, only employees of the Company or an Affiliate (including officers and
directors who are bona fide employees) shall be eligible to receive incentive
stock options. Except for grants pursuant to Section 7, Eligible Individuals
shall not include Non-Employee Directors.
5. The Option Price. Except as provided in Section 7, the exercise price
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of the each option shall be not less than the per share fair market value of the
Stock subject to such option on the date the option is granted. Notwithstanding
the foregoing, in the case of an incentive stock option granted to a person
possessing more than ten percent of the combined voting power of the Company or
an Affiliate, the exercise price shall be not less than 110 percent of the fair
market value of the Stock on the date the option is granted. The exercise price
of an option shall be subject to adjustment to the extent provided in Section
3(b), above.
6. Terms and Conditions of Options.
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(a) Each option granted pursuant to the Plan will be evidenced by a
written Stock Option Agreement executed by the Company and the person to whom
such option is granted.
(b) The Committee shall determine the term of each option granted
under the Plan; provided, however, that (i) the term of each option shall not be
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more than 10 years, (ii) in the case of an incentive stock option granted to a
person possessing more than ten percent of the combined voting power of the
Company or an Affiliate, the term of each incentive stock option shall be no
more than five years, and (iii) the term of an option granted pursuant to
Section 7 shall be as provided in Section 7.
(c) In the case of incentive stock options, the aggregate fair market
value (determined as of the time such option is granted) of the Stock with
respect to which incentive stock options are exercisable for the first time by
an eligible employee in any calendar year
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(under this Plan and any other plans of the Company or its Affiliates) shall not
exceed $100,000. If the aggregate fair market value of stock with respect to
which incentive stock options are exercisable by an optionee for the first time
during any calendar year exceeds $100,000 such options shall be treated as
nonqualified options to the extent required by Section 422 of the Code. The rule
set forth in the preceding sentence shall be applied by taking options into
account in the order in which they were granted.
(d) Except for grants to Non-Employee Directors pursuant to Section 7,
which shall be granted on the form of Stock Option Agreement attached hereto as
Exhibit A, the Stock Option Agreement may contain such other terms, provisions,
and conditions as may be determined by the Committee not inconsistent with this
Plan. If an option, or any part thereof is intended to qualify as an incentive
stock option, the Stock Option Agreement shall contain those terms and
conditions which are necessary to so qualify it.
(e) The maximum number of Shares with respect to which options may be
granted to any individual per calendar year under the Plan shall be 100,000
shares, subject to adjustment pursuant to Section 3(b). To the extent required
by Section 162(m) of the Code or the regulations thereunder, in applying the
foregoing limitation with respect to an employee, if any option is cancelled,
the cancelled option shall continue to count against the maximum number of
shares for which options may be granted to the employee under this Section 6(e).
For this purpose, the repricing of an option shall be treated as a cancellation
of the existing option and the grant of a new option.
7. Stock Options for Non-Employee Directors.
----------------------------------------
(a) All grants of options pursuant to this Section 7 shall be
automatic and nondiscretionary and shall be made strictly in accordance with the
provisions of this Section 7. No person shall have any discretion to select
which Non-Employee Directors shall be granted options or to determine the number
of shares of Stock to be covered by options granted to Non-Employee Directors,
the timing of such option grants or the exercise price thereof.
(b) An option to purchase 5,000 shares of Stock shall be granted
("Initial Grant") to each director who is not an officer of the Company ("Non-
Employee Director"), such Initial Grant to be made (i) to the then-existing Non-
Employee Directors upon approval of the Plan by the stockholders of the Company
("Approval Date") and (ii) to other Non-Employee Directors elected or appointed
to the Board after the Approval Date upon the date each such Non-Employee
Director first becomes a Non-Employee Director following the Approval Date. In
addition, immediately following each annual meeting of the Company's
stockholders, each Non-Employee Director who continues as a Non-Employee
Director following such annual meeting shall be granted an option to purchase
2,500 shares of Stock ("Subsequent Grant"); provided that no Subsequent Grant
shall be made to any Non-Employee Director who has not served as a director of
the Company, as of the time of such annual meeting, for at least one (1) year.
Each such Subsequent Grant shall be made on the date of the annual stockholders'
meeting in question. If any option ceases to be exercisable in whole or in
part, the shares which were subject to such option but as to which the option
had not been exercised shall continue to be
4
available under the Plan. All options granted to Non-Employee Directors shall be
nonqualified stock options.
(c) The exercise price per share of Stock covered by each option shall
be the per-share fair market value of the Stock on the date the option is
granted. The exercise price of an option granted under the Plan shall be
subject to adjustment to the extent provided in Section 3(b) hereof. The term
of each option shall be for ten years.
(d) Each Initial Grant shall be fully vested and exercisable as to all
of the shares covered thereby at the time of grant. Each Subsequent Grant shall
vest and become exercisable as to 625 of the shares covered thereby on the
expiration of each three (3) month period following the date of grant such that
the option will be fully exercisable one (1) year after its date of grant.
8. Use of Proceeds. Cash proceeds realized from the sale of Stock under
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the Plan or pursuant to options granted under the Plan shall constitute general
funds of the Company.
9. Amendment, Suspension, or Termination of the Plan.
-------------------------------------------------
(a) The Board may at any time amend, suspend or terminate the Plan as
it deems advisable; provided that such amendment, suspension or termination
complies with all applicable requirements of state and federal law, including
any applicable requirement that the Plan or an amendment to the Plan be approved
by the shareholders, and provided further that, except as provided in Section
3(b), above, the Board shall in no event amend the Plan in the following
respects without the consent of stockholders then sufficient to approve the Plan
in the first instance:
(i) To increase the maximum number of shares subject to stock
options issued under the Plan; or
(ii) To change the designation or class of persons eligible to
receive incentive stock options under the Plan.
(b) No option may be granted nor any Stock issued under the Plan
during any suspension or after the termination of the Plan, and no amendment,
suspension, or termination of the Plan shall, without the affected individual's
consent, alter or impair any rights or obligations under any option previously
granted under the Plan. The Plan shall terminate on the tenth anniversary of
the date of adoption of the Plan, unless previously terminated by the Board
pursuant to this Section 9.
(c) Notwithstanding the provisions of Sections 9(a) and 9(b), above,
the provisions set forth in Section 7 of the Plan (and any other sections of the
Plan that affect the formula award terms of option grants to Non-Employee
Directors required to be specified in the Plan by Rule 16b-3) shall not be
amended periodically and in no event more than once every six months, other than
to comport with changes to the Code, the Employee Retirement Income Security Act
of 1974, as amended, or any applicable rules and regulations thereunder.
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10. Assignability. To the extent required by Rule 16b-3, no option
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granted pursuant to this Plan shall be transferable by the holder except by
operation of law or by will or the laws of descent and distribution; provided,
that, if Rule 16b-3 is amended after the date of the Board's adoption of the
Plan to permit broader transferability of options under that Rule, (i) options
granted under Section 7 to Non-Employee Directors shall be transferable to the
fullest extent permitted by Rule 16b-3 as so amended, (ii) any other option
shall be transferable to the extent provided in the option agreement covering
the option, and the Committee shall have discretion to amend any such
outstanding option to provide for broader transferability of the option as the
Committee may authorize within the limitations of Rule 16b-3. Notwithstanding
the foregoing, if required by the Code, each incentive stock option under the
Plan shall be transferable by the optionee only by will or the laws of descent
and distribution, and, during the optionee's lifetime, shall be exercisable only
by the optionee. In the event of any Rule 16b-3 permitted transfer of an option
hereunder, the transferee shall be entitled to exercise the option in the same
manner and only to the same extent as the optionee (or his personal
representative or the person who would have acquired the right to exercise the
option by bequest or intestate succession) would have been entitled to exercise
the option under Sections 6, 7 and 11 had the option not been transferred.
11. Payment Upon Exercise of Options.
--------------------------------
(a) Payment of the purchase price upon exercise of any option granted
under this Plan shall be made in cash, by optionee's personal check, a certified
check, bank draft, or postal or express money order payable to the order of the
Company in lawful money of the United States (collectively, "Cash
Consideration"); provided, however, that, except for options granted under
Section 7, the Committee, in its sole discretion, may permit an optionee to pay
the option price in whole or in part (i) with shares of Stock owned by the
optionee or with shares of Stock withheld from the shares otherwise deliverable
to the optionee upon exercise of the option; (ii) by delivery on a form
prescribed by the Committee of an irrevocable direction to a securities broker
approved by the Committee to sell shares of Stock and deliver all or a portion
of the proceeds to the Company in payment for the Stock; (iii) by delivery of
the optionee's promissory note with such recourse, interest, security, and
redemption provisions as the Committee in its discretion determines appropriate;
or (iv) in any combination of the foregoing. The exercise price of any options
granted under Section 7 shall be paid in Cash Consideration, the consideration
specified in clauses (i) or (ii) of the preceding sentence, or in any
combination thereof. Any Stock used to exercise options shall be valued at its
fair market value on the date of the exercise of the option. In addition, the
Committee, in its sole discretion, may authorize the surrender by an optionee of
all or part of an unexercised option (excluding options granted under Section 7,
above) and authorize a payment in consideration thereof of an amount equal to
the difference between the aggregate fair market value of the Stock subject to
such option and the aggregate option price of such Stock. In the Committee's
discretion, such payment may be made in cash, shares of Stock with a fair market
value on the date of surrender equal to the payment amount, or some combination
thereof.
(b) In the event that the exercise price is satisfied by shares
withheld from the shares of Stock otherwise deliverable to the optionee, the
Committee may issue the optionee an
6
additional option, with terms identical to the option agreement under which the
option was exercised, entitling the optionee to purchase additional shares of
Stock equal to the number of shares so withheld but at an exercise price equal
to the fair market value of the Stock on the grant date of the new option;
provided, however, that no such additional options may be granted with respect
to options granted pursuant to Section 7, above. Any additional option shall be
subject to the provisions of Section 6(e), above.
12. Withholding Taxes.
-----------------
(a) No Stock shall be delivered under the Plan to any participant
until the participant has made arrangements acceptable to the Committee (or in
the case of exercise of options granted to Named Executives, the Subcommittee)
for the satisfaction of federal, state, and local income and social security tax
withholding obligations, including, without limitation, obligations incident to
the receipt of Stock under the Plan or to the failure to satisfy the conditions
for treatment as incentive stock options under applicable tax law. Upon
exercise of a stock option the Company shall withhold from the optionee an
amount sufficient to satisfy federal, state and local income and social security
tax withholding obligations.
(b) In the event that such tax withholding is satisfied by the Company
or the optionee's employer withholding shares of Stock otherwise deliverable to
the optionee, the Committee may issue the optionee an additional option, with
terms identical to the option agreement under which the option was exercised,
entitling the optionee to purchase additional shares of Stock equal to the
number of shares so withheld but at an exercise price equal to the fair market
value of the Stock on the grant date of the new option; provided, however, that
no such additional options may be granted with respect to options granted
pursuant to Section 7, above. Any additional option shall be subject to the
provisions of Section 6(e), above.
13. Change in Control.
-----------------
(a) For purposes of this Section 13, a "Change in Control" shall be
deemed to occur upon:
(i) The direct or indirect acquisition by any person or related
group of persons (other than an acquisition from or by the Company or by a
Company-sponsored employee benefit plan or by a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Company) of beneficial ownership (within the meaning of Rule 13d-3 of the
Securities Exchange Act of 1934, as amended) of securities possessing more than
fifty percent (50%) of the total combined voting power of the Company's
outstanding Stock;
(ii) A change in the composition of the Board over a period of
thirty-six (36) months or less such that a majority of the Board members cease,
by reason of one or more contested elections for Board membership or by one or
more actions by written consent of stockholders, to be comprised of individuals
who either (A) have been Board members continuously since the beginning of such
period or (B) have been elected or nominated for
7
election as Board members during such period by at least a majority of the Board
members described in clause (A) who were still in office at the time such
election or nomination was approved by the Board;
(iii) Approval by the Company's stockholders of a merger or
consolidation in which the Company is not the surviving entity, except for a
transaction the principal purpose of which is to change the state in which the
Company is incorporated;
(iv) Approval by the Company's stockholders of (A) the sale,
transfer or other disposition of all or substantially all of the assets of the
Company (including the capital stock of the Company's subsidiary corporations)
or (B) the complete liquidation or dissolution of the Company; or
(v) Approval by the Company's stockholders of any reverse merger
in which the Company survives as an entity but in which securities possessing
more than fifty percent (50%) of the total combined voting power of the
Company's outstanding securities are transferred to a person or persons
different from those who held such securities immediately prior to such merger.
(vi) For the purpose of this Section 13, "Approval by the
Company's Stockholders" shall mean approval by a majority of those shares of
Stock voting at a stockholder's meeting at which a quorum is present, excluding
shares beneficially owned (within the meaning of Rule 13d-3 under the Exchange
Act) by the Non-Employee Directors.
(b) Except for options granted to Non-Employee Directors under Section
7, the Committee may provide in any stock option agreement (or in an amendment
thereto) that, in the event of any Change in Control, any outstanding options
covered by such an agreement shall be fully vested, nonforfeitable and become
exercisable, as of the date of the Change in Control.
(c) If the Committee determines to incorporate a Change in Control
provision in any option agreement hereunder, the agreement shall provide that,
(i) in the event of a Change in Control described in clauses (i), (ii) and (v)
of paragraph (a) above, the option shall remain exercisable for the remaining
term of the option and (ii) in the event of a Change in Control described in
clauses (iii) or (iv) of paragraph (a) above, the option shall terminate as of
the effective date of the merger, disposition of assets, liquidation or
dissolution described therein.
(d) As to any options granted under Section 7 to Non-Employee
Directors, (i) in the event of a Change in Control described in clauses (i),
(ii) or (v) of paragraph (a) above, any such outstanding options under the Plan
shall become fully vested and remain exercisable for the remaining term of such
options and (ii) in the event of a Change in Control described in clauses (iii)
or (iv) of paragraph (a) above, outstanding options under the Plan shall
terminate as of the effective date of the merger, disposition of assets,
liquidation or dissolution described therein.
(e) Notwithstanding the foregoing provisions of this Section 13, an
outstanding option may not be accelerated under this Section 13 if and to the
extent (i) such
8
option is, in connection with the transaction giving rise to a Change of
Control, either to be assumed by the successor or parent thereof or to be
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 that preserves the
option spread existing at the time of the corporate transaction giving rise to
the Change of Control and provides for subsequent payment in accordance with the
same vesting schedule applicable to such option.
14. Stockholder Approval. The Plan and any options granted pursuant to
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Section 7 and options granted to Covered Employees hereunder shall become
effective only upon approval by the holders of a majority of the Company's
shares voting (in person or by proxy) at a stockholders' meeting held within 12
months of the Board's adoption of the Plan. The Committee may grant stock
options under the Plan prior to the stockholders' meeting, but until stockholder
approval of the Plan is obtained, no such option shall be exercisable. In the
event that stockholder approval is not obtained within the period provided
above, all options described in this Section 14 previously granted above, shall
terminate.
15. Rule 16b-3 Compliance. Transactions under the Plan are intended to
---------------------
comply with all applicable conditions of Rule 16b-3 or its successors under the
Exchange Act. To the extent any provision of the Plan or action by the Board or
the Committee fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Board or the Committee.
Moreover, in the event the Plan does not include a provision required by Rule
16b-3 to be stated therein in order to qualify the grants under Section 7 hereof
as grants under a non-discretionary formula under Rule 16b-3 such provision
(other than one relating to eligibility requirements, or the price and amount of
awards) shall be deemed automatically to be incorporated by reference into the
Plan with respect to grants of options to Non-Employee Directors.
16. Applicable Law. The law of the State of California will govern all
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matters relating to this Plan except to the extent it is superseded by the laws
of the United States.
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Dates Referenced Herein and Documents Incorporated by Reference
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This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
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Filed on: | | 9/10/97 | | | | | | | None on these Dates |
| | 7/1/96 | | 2 |
| List all Filings |
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