-----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, FTZgyGLiaDXT7Apa5ADpZNzmWAuQvYqKpJKFdQymSiWm4Ehz33IO7vCfAem0Kc9y 8+gRteAH3fjcG8gcf16UNA== 0000891618-99-002964.txt : 19990701 0000891618-99-002964.hdr.sgml : 19990701 ACCESSION NUMBER: 0000891618-99-002964 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19990630 EFFECTIVENESS DATE: 19990630 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CISCO SYSTEMS INC CENTRAL INDEX KEY: 0000858877 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER COMMUNICATIONS EQUIPMENT [3576] IRS NUMBER: 770059951 STATE OF INCORPORATION: CA FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-81971 FILM NUMBER: 99656934 BUSINESS ADDRESS: STREET 1: 170 WEST TASMAN DRIVE CITY: SAN JOSE STATE: CA ZIP: 95134-1706 BUSINESS PHONE: 4085264000 MAIL ADDRESS: STREET 1: 225 WEST TASMAN DRIVE CITY: SAN JOSE STATE: CA ZIP: 95134-1706 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on June 30, 1999 Registration No. 333-____________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 CISCO SYSTEMS, INC. (Exact name of registrant as specified in its charter) CALIFORNIA 77-0059951 (State or other jurisdiction (IRS Employer Identification No.) of incorporation or organization) 170 WEST TASMAN DRIVE, SAN JOSE, CALIFORNIA 95134-1706 (Address of principal executive offices) (Zip Code) AMTEVA TECHNOLOGIES, INC. 1998 STOCK INCENTIVE PLAN AMTEVA TECHNOLOGIES, INC. (FORMERLY AUM TECH OF VIRGINIA, INC.) STOCK OPTION PLAN (Full title of the Plans) JOHN T. CHAMBERS PRESIDENT, CHIEF EXECUTIVE OFFICER AND DIRECTOR CISCO SYSTEMS, INC. 170 WEST TASMAN DRIVE, SAN JOSE, CALIFORNIA 95134-1706 (Name and address of agent for service) (408) 526-4000 (Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE =========================================================================================================== Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Offering Registration Registered Registered(1) per Share(2) Price (2) Fee ---------- ------------- ------------ ---------- ------------ AMTEVA TECHNOLOGIES, INC. 1998 STOCK INCENTIVE PLAN 422,692 shares $25.57 $10,808,234.44 $3,004.69 Common Stock, $0.001 par value AMTEVA TECHNOLOGIES, INC. STOCK OPTION PLAN 230,096 shares $ 0.895 $205,935.92 $57.25 Common Stock, $0.001 par value Aggregate $3,061.94 Filing Fee: ===========================================================================================================
(1) This Registration Statement shall also cover any additional shares of Registrant's Common Stock which become issuable under the Amteva Technologies, Inc. 1998 Stock Incentive Plan and the Amteva Technologies, Inc. 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. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference Cisco Systems, Inc. (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 July 25, 1998 filed with the Commission on September 25, 1998, pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "1934 Act"); (b) The Registrant's Current Report on Form 8-K filed with the Commission on October 13, 1998 (for the period date September 30, 1998), November 20, 1998 (for period date November 2, 1998) and November 20, 1998 (for period date November 4, 1998) and May 14, 1999 (for period date May 11, 1999); (c) The Registrant's Quarterly Reports on Form 10-Q filed with the Commission on December 8, 1998 for the fiscal quarter ended October 24, 1998 and filed on March 9, 1999, as amended on May 14, 1999, for the fiscal quarter ended January 23, 1999 and filed on June 15, 1999 for the fiscal quarter ended May 1, 1999; (d) The Registrant's Registration Statement No. 000-18225 on Form 8-A filed with the Commission on January 11, 1990, together with Amendment No.1 on Form 8-A/A filed with the Commission on February 15, 1990, and including any other amendments or reports filed for the purpose of updating such description, in which there is described the terms, rights and provisions applicable to the Registrant's Common Stock; and (e) The Registrant's Registration Statement No. 000-18225 on Form 8-A filed with the Commission on June 11, 1998, including any amendments or reports filed for the purpose of updating such description, in which there is described the terms, rights and provisions applicable to the Registrant's Preferred Stock Purchase Rights. 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 Securities Not Applicable. Item 5. Interests of Named Experts and Counsel Not Applicable. II-1 3 Item 6. Indemnification of Directors and Officers Section 317 of the California Corporations Code authorizes a court to award, or a corporation's Board of Directors to grant, indemnity to directors and officers in terms sufficiently broad to permit indemnification (including reimbursement of expenses incurred) under certain circumstances for liabilities arising under the Securities Act of 1933, as amended, (the "1933 Act"). The Registrant's Restated Articles of Incorporation, as amended, and Amended and Restated Bylaws provide for indemnification of its directors, officers, employees and other agents to the maximum extent permitted by the California Corporations Code. In addition, the Registrant has entered into Indemnification Agreements with each of its directors and officers. Item 7. Exemption from Registration Claimed Not Applicable. Item 8. Exhibits
Exhibit Number Exhibit 4 Instruments Defining the Rights of Stockholders. Reference is made to Registrant's Registration Statements No. 000-18225 on Form 8-A, together with the amendments and exhibits thereto, which are incorporated herein by reference pursuant to Items 3(d) and 3(e). 5 Opinion and consent of Brobeck, Phleger & Harrison LLP. 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants. 23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5. 24 Power of Attorney. Reference is made to page II-3 of this Registration Statement. 99.1 Amteva Technologies, Inc. 1998 Stock Incentive Plan. 99.2 Amteva Technologies, Inc. 1998 Stock Incentive Plan Form of Nonstatutory Stock Option Agreement. 99.3 Amteva Technologies, Inc. 1998 Stock Incentive Plan Form of Incentive Stock Option Agreement. 99.4 Amteva Technologies, Inc. (formerly Aum Tech of Virginia, Inc.) Stock Option Plan. 99.5 Amteva Technologies, Inc. (formerly Aum Tech of Virginia, Inc.) Stock Option Plan Form of Stock Purchase Option Agreement. 99.6 Form of Stock Option Assumption Agreement.
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 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 clauses 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 this 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 at the termination of the Amteva Technologies, Inc. 1998 Stock Incentive Plan and the Amteva Technologies, Inc. Stock Option Plan. 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. II-2 4 C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers or controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6 or otherwise, the Registrant has been advised that, in the opinion of the Commission, 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. 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 30th day of June, 1999. CISCO SYSTEMS, INC. By: /s/ John T. Chambers ------------------------------------------ John T. Chambers President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John T. Chambers and Larry R. Carter, and each of them, as such person's true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for such person and in such person's name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated:
Signature Title Date - --------- ----- ---- /s/ John T. Chambers President, Chief Executive June 30, 1999 - --------------------------------- Office and Director John T. Chambers (Principal Executive Officer) /s/ Larry R. Carter Senior Vice President, Finance June 30, 1999 - --------------------------------- and Administration, Chief Financial Larry R. Carter Officer and Secretary (Principal Financial and Accounting Officer) /s/ John P. Morgridge Chairman of the Board and June 30, 1999 - -------------------------------- Director John P. Morgridge
II-3 5 /s/ Donald T. Valentine Vice Chairman of the Board and June 30, 1999 - --------------------------------- Director Donald T. Valentine /s/ James F. Gibbons Director June 30, 1999 - --------------------------------- James F. Gibbons /s/ Robert L. Puette Director June 30, 1999 - --------------------------------- Robert L. Puette Director - --------------------------------- Masayoshi Son /s/ Steven M. West Director June 30, 1999 - --------------------------------- Steven M. West /s/ Edward R. Kozel Director June 30, 1999 - --------------------------------- Edward R. Kozel - ---------------------------------- Director Carol A. Bartz /s/James C. Morgan Director June 30, 1999 - ---------------------------------- James C. Morgan /s/ Mary Cirillo Director June 30, 1999 - ---------------------------------- Mary Cirillo /s/ Arun Sarin Director June 30, 1999 - ---------------------------------- Arun Sarin
II-4 6 EXHIBIT INDEX
Exhibit Number Exhibit - -------------- ------- 4 Instruments Defining the Rights of Stockholders. Reference is made to Registrant's Registration Statements No. 000-18225 on Form 8-A, together with the amendments and exhibits thereto, which are incorporated herein by reference pursuant to Items 3(d) and 3(e). 5 Opinion and consent of Brobeck, Phleger & Harrison LLP. 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants. 23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5. 24 Power of Attorney. Reference is made to page II-3 of this Registration Statement. 99.1 Amteva Technologies, Inc. 1998 Stock Incentive Plan. 99.2 Amteva Technologies, Inc. 1998 Stock Incentive Plan Form of Nonstatutory Stock Option Agreement. 99.3 Amteva Technologies, Inc. 1998 Stock Incentive Plan Form of Incentive Stock Option Agreement. 99.4 Amteva Technologies, Inc. (formerly Aum Tech of Virginia, Inc.) Stock Option Plan. 99.5 Amteva Technologies, Inc. (formerly Aum Tech of Virginia, Inc.) Stock Option Plan Form of Stock Purchase Option Agreement. 99.6 Form of Stock Option Assumption Agreement.
EX-5 2 OPINION/CONSENT OF BROBECK PHLEGER & HARRISON LLP 1 EXHIBIT 5 OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON LLP June 30, 1999 Cisco Systems, Inc. 170 West Tasman Drive San Jose, California 95134-1706 Re: Cisco Systems, Inc. - Registration Statement for Offering of 652,788 Shares of Common Stock Dear Ladies and Gentlemen: We have acted as counsel to Cisco Systems, Inc., a California corporation (the "Company"), in connection with the registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of 652,788 shares of common stock (the "Shares") and related stock options under the Amteva Technologies, Inc. 1998 Stock Incentive Plan and the Amteva Technologies, Inc. Stock Option Plan (collectively, the "Plans"). 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 in connection with the assumption of the Plans and the options outstanding thereunder. Based on such review, we are of the opinion that if, as and when the Shares are issued and sold (and the consideration therefor received) pursuant to the provisions of option agreements duly authorized under the Plans and in accordance with the Registration Statement, such Shares will be duly authorized, legally issued, fully paid and nonassessable. 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 Plans or the Shares. Very truly yours, /s/ Brobeck, Phleger & Harrison LLP BROBECK, PHLEGER & HARRISON LLP EX-23.1 3 CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 (Amteva options) of our report dated August 4, 1998 relating to the financial statements, which appears in the 1998 Annual Report to Shareholders of Cisco Systems, Inc. which is incorporated by reference in Cisco System, Inc.'s Annual Report on Form 10-K for the year ended July 25, 1998. We also consent to the incorporation by reference of our report dated August 4, 1998 relating to the financial statement schedule, which appears in such Annual Report on Form 10-K. /s/ PricewaterhouseCoopers LLP San Jose, California June 30, 1999 EX-99.1 4 AMTEVA 1998 STOCK INCENTIVE PLAN 1 EXHIBIT 99.1 AMTEVA TECHNOLOGIES, INC. 1998 STOCK INCENTIVE PLAN 1. Purpose. The purpose of this 1998 Stock Incentive Plan (the "Plan") of Amteva Technologies, Inc., a Virginia corporation (the "Company"), is to advance the interests of the Company's stockholders by enhancing the Company's ability to attract, retain and motivate persons who make (or are expected to make) important contributions to the Company by providing such persons with equity ownership opportunities and performance-based incentives and thereby better aligning the interests of such persons with those of the Company's stockholders. Except where the context otherwise requires, the term "Company" shall include any of the Company's present or future subsidiary corporations as defined in Section 424(f) of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the "Code") and any other business venture (including, without limitation, joint venture or limited liability company) in which the Company has a significant interest, as determined by the Board of Directors of the Company (the "Board"). 2. Eligibility. All of the Company's employees, officers, directors, consultants and advisors (and any individuals who have accepted an offer for employment) are eligible to be granted options, restricted stock awards, or other stock-based awards (each, an "Award") under the Plan. Each person who has been granted an Award under the Plan shall be deemed a "Participant". 3. Administration, Delegation. (a) Administration by Board of Directors. The Plan will be administered by the Board. The Board shall have authority to grant Awards and to adopt, amend and repeal such administrative rules, guidelines and practices relating to the Plan as it shall deem advisable. The Board may correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award in the manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be the sole and final judge of such expediency. All decisions by the Board shall be made in the Board's sole discretion and shall be final and binding on all persons having or claiming any interest in the Plan or in any Award. No director or person acting, pursuant to the authority delegated by the Board shall be liable for any action or determination relating to or under the Plan made in good faith. (b) Delegation to Executive Officers. To the extent permitted by applicable law, the Board may delegate to one or more executive officers of the Company the power to make Awards and exercise such other powers under the Plan as the Board may determine, provided that the Board shall fix the maximum number of shares subject to Awards and the maximum number of shares for any one Participant to be made by such executive officers. 2 (c) Appointment of Committees. To the extent permitted by applicable law, the Board may delegate any or all of its powers under the Plan to one or more committees or subcommittees of the Board (a "Committee"). All references in the Plan to the Board shall mean the Board or a Committee of the Board or the executive officer referred to in Section 3(b) to the extent that the Board's powers or authority under the Plan have been delegated to such Committee or executive officer. If and when the common stock, $.0l par value per share, of the Company (the "Common Stock") is registered under the Securities Exchange Act of 1934 (the "Exchange Act"), the Board shall appoint one such Committee of not less than two members, each member of which shall be an "outside director" within the meaning of Section 162(m) of the Code and a "non-employee director" as defined in Rule 16b-3 promulgated under the Exchange Act. 4. Stock Available for Awards. (a) Number of Shares. Subject to adjustment under Section 8, Awards may be made under the Plan for up to 500,000 (five hundred thousand) shares of common stock, $.01 par value per share, of the Company (the "Common Stock"). In addition, the foregoing limit shall be increased by: (i) any shares of Common Stock authorized to be issued pursuant to options under the Company's Stock Option Plan, adopted March 14, 1996 (the "Existing Plan") which are. not, as of the date hereof, subject to an option under the Existing Plan; (ii) any shares of Common Stock which are subject to an option under the Existing Plan which expires, is terminated, surrendered, or canceled without having been fully exercised, or is forfeited in whole or in part, or results in any Common Stock not being issued; and (iii) any shares of Common Stock which are obtained pursuant to the exercise of an option under the Existing Plan and which are repurchased by the Company in accordance with the Company's repurchase right under the Existing Plan; provided that the aggregate number of shares of Common Stock which may be issued collectively under the Plan and the Existing Plan shall not exceed 2,500,000 (two million five hundred thousand) shares. If any Award expires or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or in part or results in any Common Stock not being issued, the unused Common Stock covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options (as hereinafter defined), to any limitation required under the Code. Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares. (b) Per-Participant Limit. Subject to adjustment under Section 8, for Awards granted after the Common Stock is registered under the Securities Exchange Act of 1934 (the "Exchange Act"), the maximum number of shares of Common Stock with respect to which an Award may be granted to any Participant under the Plan shall be 100,000 (one hundred thousand) per calendar year. The per-Participant limit described in this Section 4(b) shall be construed and applied consistently with Section 162(m) of the Code. 5. Stock Options. (a) General. The Board may grant options to purchase Common Stock (each, an "Option") and determine the number of shares of Common Stock to be covered by each Option, the exercise price of each Option and the conditions and limitations applicable to the 2 3 exercise of each Option, including conditions relating to applicable federal or state securities considers necessary or advisable. An Option which is not intended to be an Incentive Stock Option (as hereinafter defined) shall be designated a "Nonstatutory Stock Option". (b) Incentive Stock Options. An Option that the Board intends to be an "incentive stock option" as defined in Section 422 of the Code (an "Incentive Stock Option" shall only be granted to employees of the Company and shall be subject to and shall be construed consistently with the requirements of Section 422 of the Code. The Company shall have no liability to a Participant, or any other party, if an Option (or any part thereof) which is intended to be an Incentive Stock Option is not an Incentive Stock Option. (c) Exercise Price. The Board shall establish the exercise price at the time each Option is granted and specify it in the applicable option agreement. (d) Duration of Options. Each Option shall be exercisable at such times and subject to such terms and conditions as the Board may specify in the applicable option agreement. (e) Exercise of Option. Options may be exercised by delivery to the Company of a written notice of exercise signed by the proper person or by any other form of notice (including electronic notice) approved by the Board together with payment in full as specified in Section 5(f) for the number of shares for which the Option is exercised. (f) Payment Upon Exercise. Common Stock purchased upon the exercise of an Option granted under the Plan shall be paid for as follows: (i) in cash or by check, payable to the order of the Company; (ii) except as the Board may, in its sole discretion, otherwise provide in an option agreement, by (i) delivery of an irrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price or (ii) delivery by the Participant to the Company of a copy of irrevocable and unconditional instructions to a creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the exercise price; (iii) when the Common Stock is registered under the Exchange Act, by delivery of shares of Common Stock owned by the Participant valued at their fair market value as determined by (or in a manner approved by) the Board in good faith ("Fair Market Value"), which Common Stock was owned by the Participant at least six months prior to such delivery; (iv) to the extent permitted by the Board, in its sole discretion by (i) delivery of a promissory note of the Participant to the Company on terms determined by the Board, or (ii) payment of such other lawful consideration as the Board may determine; or (v) by any combination of the above permitted forms of payment. 3 4 6. Restricted Stock. (a) Grants. The Board may grant Awards entitling recipients to acquire shares of Common Stock, subject to the right of the Company to repurchase all or part of such shares at their issue price or other stated or formula price (or to require forfeiture of such at no cost) from the recipient in the event that conditions specified by the Board in the Award are not satisfied prior to the end of the applicable restriction period or periods established by the Board for such Award (each, a "Restricted Stock Award"). (b) Terms and Conditions. The Board shall determine the terms and conditions of any such Restricted Stock Award, including the conditions for repurchase (or forfeiture) and the issue price, if any. Any stock certificates issued in respect of a Restricted Stock Award shall be registered in the name of the Participant and, unless otherwise determined by the Board, deposited by the Participant, together with a stock power endorsed in blank, with the Company (or its designee). At the expiration of the applicable restriction periods, the Company (or such designee) shall deliver the certificates no longer subject to such restrictions to the Participant or if the Participant has died, to the beneficiary designated, in a manner determined by the Board, by a Participant to receive amounts due or exercise rights of the Participant in the event of the Participant's death (the "Designated Beneficiary"). In the absence of an effective designation by a Participant, Designated Beneficiary shall mean the Participant's estate. 7. Other Stock-Based Awards. The Board shall have the right to grant other Awards based upon the Common Stock having such terms and conditions as the Board may determine, including the grant of shares based upon certain conditions, the grant of securities convertible into Common Stock and the grant of stock appreciation rights. 8. Adjustments for Changes in Common Stock and Certain Other Events. (a) Changes in Capitalization. In the event of any stock split, reverse stock split, stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other similar change in capitalization or event, or any distribution to holders of Common Stock other than a normal cash dividend, (i) the number and class of securities available under this Plan, (ii) the per-Participant limit set forth in Section 4(b), (iii) the number and class of securities and exercise price per share subject to each outstanding Option, (iv) the repurchase price per share subject to each outstanding Restricted Stock Award, and (v) the terms of each other outstanding Award shall be appropriately adjusted by the Company (or substituted Awards may be made, if applicable) to the extent the Board shall determine, in good faith, that such an adjustment (or substitution) is necessary and appropriate. If this Section 8(a) applies and Section 8(c) also applies to any event, Section 8(c) shall be applicable to such event, and this Section 8(a) shall not be applicable. (b) Liquidation or Dissolution. In the event of a proposed liquidation or dissolution of the Company, the Board shall upon written notice to the Participants provide that 4 5 all then unexercised Options will (i) become exercisable in full as of a specified time at least 10 business days prior to the effective date of such liquidation or dissolution and (ii) terminate effective upon such liquidation or dissolution, except to the extent exercised before such effect date. The Board may specify the effect of a liquidation or dissolution on any Restricted or other Award granted under the Plan at the time of the grant of such Award. (c) Acquisition and Change in Control Events. (i) Definitions. (A) An "ACQUISITION EVENT" shall mean: (I) any merger or consolidation of the Company with or into another entity as a result of which the Common Stock is converted into or exchanged for the right to receive cash, securities or other property; or (II) any exchange of shares of the Company for cash, securities or other property pursuant to a statutory share exchange transaction. (B) A "CHANGE IN CONTROL EVENT" shall mean: (I) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership of any capital stock of the Company if, after such acquisition, such Person beneficially owns (within the meaning of Rule 13d-3 promulgated under the Exchange Act) 20% or more of either (x) the then-outstanding shares of common stock of the Company (the "Outstanding Company Common Stock") or (y) the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors (the "Outstanding Company Voting Securities"); provided, however, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change in Control Event: (A) any acquisition directly from the Company (excluding an acquisition pursuant to the exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable for common stock or voting securities of the Company, unless the Person exercising, converting or exchanging such security acquired such security directly from the Company or an underwriter or agent of the Company), (B) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (C) any acquisition by any corporation pursuant to a Business Combination (as defined below) which complies with clauses (x) and (y) of subsection (iii) of this definition; or (II) such time as the Continuing Directors (as defined below) do not constitute a majority of the Board (or, if applicable, the Board of Directors of a successor corporation to the Company), where the term "Continuing Director" means at any date a member of the Board (x) who was a member of the Board on the date of the initial adoption of this Plan by the Board or (y) who was nominated or elected subsequent to such date by at least a majority of the directors who were Continuing Directors at the time of such nomination or 5 6 election or whose election to the Board was recommended or endorsed by at least a majority of the directors who were Continuing Directors at the time of such nomination or election; provided, however, that there shall be excluded from this clause (y) any individual whose initial assumption of office occurred as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board; or (III) the consummation of a merger, consolidation, reorganization or statutory share exchange involving the Company or a sale or other disposition of all or substantially all of the assets of the Company (a "Business Combination"), unless, immediately following such Business Combination, each of the following two conditions is satisfied: (x) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then- outstanding shares of common stock and the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors, respectively, of the resulting or acquiring corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company's assets either directly or through one or more subsidiaries) (such resulting or acquiring corporation is referred to herein as the "Acquiring Corporation") in substantially the same proportions as their ownership of the Outstanding Company Common Stock and Outstanding Company Voting Securities, respectively, immediately prior to. such Business Combination and (y) no Person (excluding the Acquiring Corporation or any employee benefit plan (or related trust) maintained or sponsored by the Company or by the Acquiring Corporation) beneficially owns, directly or indirectly, 20% or more of the then-outstanding shares of common stock of the Acquiring Corporation, or of the combined voting power of the then-outstanding securities of such corporation entitled to vote generally in the election of directors (except to the extent that such ownership existed prior to the Business Combination). (C) "GOOD REASON" shall mean any significant diminution in the Participant's title, authority, or responsibilities from and after such Acquisition Event or Change in Control Event, as the case may be, or any reduction in the annual cash compensation payable to the Participant from and after such Acquisition Event or Change in Control Event, as the case may be, or the relocation of the place of business at which the Participant is principally located to a location that is greater than 50 miles from the current site. (D) "CAUSE" shall mean any (i) willful failure by the Participant, which failure is not cured within 30 days of written notice to the Participant from the Company, to perform his or her material responsibilities to the Company or (ii) willful misconduct by the Participant which affects the business reputation of the Company. [The Participant shall be considered to have been discharged for "Cause" if the Company determines, within 30 days after the Participant's resignation, that discharge for Cause was warranted.] 6 7 (ii) Effect on Options. (A) Acquisition Event. Upon the occurrence of an Acquisition Event (regardless of whether such event also constitutes a Change in Control Event), or the execution by the Company of any agreement with respect to an Acquisition Event (regardless of whether such event will result in a Change in Control Event), the Board shall provide that all outstanding Options shall be assumed, or equivalent options shall be substituted by the acquiring of succeeding corporation (or an affiliate thereof); provided that if such Acquisition Event also constitutes a Change in Control Event, except to the extent specifically provided to the contrary in the instrument evidencing any Option or any other agreement between a Participant and the Company (A) one-half of the number of shares subject to the Option which were not already vested shall be exercisable upon the occurrence of such Acquisition Event and, subject to (B) below, the remaining one-half of such number of shares shall continue to become vested in accordance with the original vesting schedule set forth in such option, with one-half of the number of shares that would otherwise have first become vested becoming so vested on each subsequent vesting date in accordance with the original schedule and (B) such assumed substituted options shall become immediately exercisable in full if, on or prior to the anniversary of the date of the consummation of the Acquisition Event, the Participant's employment with the Company or the acquiring or succeeding corporation is terminated for Good Reason by the Participant or is terminated without Cause by the Company or the acquiring or succeeding corporation. For purposes hereof, an Option shall be considered to be assumed if, following consummation of the Acquisition Event, the Option confers the right to purchase, for each share of Common Stock subject to the Option immediately prior to the consummation of the Acquisition Event, the consideration (whether cash, securities or other property) received as a result of the Acquisition Event by holders of Common Stock for each share of Common Stock held immediately prior to the consummation of the Acquisition Event (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares of Common Stock); provided, however, that if the consideration received as a result of the Acquisition Event is not solely common stock of the acquiring or succeeding corporation (or an affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation, provide for the consideration to be received upon the exercise of Options to consist solely of common stock of the acquiring or succeeding corporation (or an affiliate thereof) equivalent in fair market value to the per share consideration received by holders of outstanding shares of Common Stock as a result of the Acquisition Event. Notwithstanding the foregoing, if the acquiring or succeeding corporation (or an affiliate thereof) does not agree to assume, or substitute for, such Options, then the Board shall, upon written notice to the Participants, provide that all then unexercised Options will become exercisable in full as of a specified time prior to the Acquisition Event and will terminate immediately prior to the consummation of such Acquisition Event, except to the extent exercised by the Participants before the consummation of such Acquisition Event; provided, however, that in the event of an Acquisition Event under the terms of which holders of Common Stock will receive upon consummation thereof a cash payment for each share of Common Stock surrendered pursuant to such Acquisition Event (the "Acquisition Price"), then the Board may instead provide that all outstanding Options shall terminate upon consummation of such 7 8 Acquisition Event and that each Participant shall receive, in exchange therefor, a cash payment equal to the amount (if any) by which (A) the Acquisition Price multiplied by the number of shares of Common Stock subject to such outstanding Options (whether or not then exercisable), exceeds (B) the aggregate exercise price of such Options. (B) Change in Control Event that is not an Acquisition Event. Upon the occurrence of a Change in Control Event that does not also constitute as Acquisition Event, except to the extent specifically provided to the contrary in the instrument evidencing any Option or any other agreement between a Participant and the Company, the vesting schedule of such Option shall be accelerated in part so that one-half of the number of shares that would otherwise have first become vested on any date after the date of the Change in Control Event shall immediately become exercisable. The remaining one-half of such number of shares shall continue to become vested in accordance with the original vesting schedule set forth in such Option, with one-half of the number of shares that would otherwise have first become vested becoming so vested on each subsequent vesting date in accordance with the original schedule; provided, however, that each such Option shall be immediately exercisable in full if, on or prior to the first anniversary of the date of the consummation of the Change in Control Event, the Participant's employment with the Company or the acquiring or succeeding corporation is terminated for Good Reason by the Participant or is terminated without Cause by the Company or the acquiring or succeeding corporation. (iii) Effect on Restricted Stock Awards. (A) Acquisition Event that is not a Change in Control Event. Upon the occurrence of an Acquisition Event that is not a Change in Control Event, the repurchase and other rights of the Company under each outstanding Restricted Stock Award shall inure to the benefit of the Company's successor and shall apply to the cash, securities or other property which the Common Stock was converted into or exchanged for pursuant to such Acquisition Event in the same manner and to the same extent as they applied to the Common Stock subject to such Restricted Stock Award. (B) Change in Control Event. Upon the occurrence of a Change in Control Event (regardless of whether such event also constitutes an Acquisition Event), except to the extent specifically provided to the contrary in the instrument evidencing any Restricted Stock Award or any other agreement between a Participant and the Company, the vesting schedule of all Restricted Stock Awards shall be accelerated in part so that one-half of the number of shares that would otherwise have first become free from conditions or restrictions on any date after the date of the Change in Control Event shall immediately become free from conditions or restrictions. Subject to the following sentence, the remaining one-half of such number of shares shall continue to become free from conditions or restrictions in accordance with the original schedule set forth in such Restricted Stock Award, with one-half of the number of shares that would otherwise have first become free from conditions or restrictions becoming free from conditions or restrictions on each subsequent vesting date in accordance with the original schedule. In addition, each such Restricted Stock Award shall immediately become free from all conditions or restrictions if, on or prior to the first anniversary of the date of the consummation of the Change in Control Event, the Participant's employment with the Company 8 9 or the acquiring or succeeding corporation is terminated for Good Reason by the Participant or is terminated without Cause by the Company or the acquiring or succeeding corporation. (iv) Effect on Other Awards. (A) Acquisition Event that is not a Change in Control Event. The Board shall specify the effect of an Acquisition Event that is not a Change in Control Event or any other Award granted under the Plan at the time of the grant of such Award. (B) Change in Control Event. Upon the occurrence of a Change in Control Event (regardless of whether such event also constitutes an Acquisition Event), except to the extent specifically provided to the contrary in the instrument evidencing any Award or any other agreement between a Participant and the Company, the vesting schedule of all other Awards shall be accelerated in part so that one-half of the number of shares that would otherwise have first become exercisable, realizable, vested or free from conditions or restrictions on any date after the date of the Change in Control Event shall immediately become exercisable, realizable, vested or free from conditions or restrictions. Subject to the following sentence, the remaining one-half of such number of shares shall continue to become exercisable, realizable, vested or free from conditions or restrictions in accordance with the original schedule set forth in such Award, with one-half of the number of shares that would otherwise have first become exercisable, realizable, vested or free from conditions or restrictions becoming so exercisable, realizable, vested or free from conditions or restrictions on each subsequent vesting date in accordance with the original schedule. In addition, each such Award shall immediately become fully exercisable, realizable, vested or free from conditions or restrictions if, on or prior to the first anniversary of the date of the consummation of the Change in Control Event, the Participant's employment with the Company or the acquiring or succeeding corporation is terminated for Good Reason by the Participant or is terminated without Cause by the Company or the acquiring or succeeding corporation. 9. General Provisions Applicable to Awards. (a) Transferability of Awards. Except as the Board may otherwise determine or provide in an Award, Awards shall not be sold, assigned, transferred, pledged or otherwise encumbered by the person to whom they are granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the life of the Participant, shall be exercisable only by the Participant. References to a Participant, to the extent relevant in the context, shall include references to authorized transferees. (b) Documentation. Each Award shall be evidenced by a written instrument, to be signed by the Company and the Participant, in such form as the Board shall determine. Each Award may contain terms and conditions in addition to those set forth in the Plan. (c) Board Discretion. Except as otherwise provided by the Plan, each Award may be made alone or in addition or in relation to any other Award. The terms of each Award need not be identical, and the Board need not treat Participants uniformly. 9 10 (d) Termination of Status. The Board shall determine the effect on an Award of the disability, death, retirement, authorized leave of absence or other change in the employment or other status of a Participant and the extent to which, and the period during, which, the Participant, the Participant's legal representative, conservator, guardian or Designated Beneficiary may exercise rights under the Award. (e) Withholding. Each Participant shall pay to the Company, or make provision satisfactory to the Board for payment of, any taxes required by law to be withheld in connection with Awards to such Participant no later than the date of the event creating the tax liability. Except as the Board may otherwise provide in an Award, when the Common Stock under the Exchange Act, Participants may satisfy such tax obligations in whole or in part by delivery of shares of Common Stock, including shares retained from the Award creating- the tax obligation, valued at their Fair Market Value. The Company may, to the extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise due to a Participant. (f) Amendment of Award. The Board may amend, modify or terminate any outstanding Award, including but not limited to, substituting therefor another Award of the same or a different type, changing the date of exercise or realization, and converting an Incentive Stock Option to a Nonstatutory Stock Option, provided that the Participant's consent to such action shall be required unless the Board determines that the action, taking into account any related action, would not materially and adversely affect the Participant. (g) Conditions on Delivery of Stock. The Company will not be obligated to deliver any shares of Common Stock pursuant to the Plan or to remove restrictions from shares previously delivered under the Plan until (i) all conditions of the Award have been met or removed to the satisfaction of the Company, (ii) in the opinion of the Company's counsel, all other legal matters in connection with the issuance and delivery of such shares have been satisfied, including any applicable securities laws and any applicable stock exchange or stock market rules and regulations, and (iii) the Participant has executed and delivered to the Company such representations or agreements as the Company may consider appropriate to satisfy the requirements of any applicable laws, rules or regulations. (h) Acceleration. The Board may at any time provide that any Options shall become immediately exercisable in full or in part, that any Restricted Stock Awards shall be free of restrictions in full or in part or that any other Awards may become exercisable in full or in part or free of some or all restrictions or conditions, or otherwise realizable in full or in part, as the case may be. 10. Miscellaneous. (a) No Right To Employment or Other Status. No person shall have any claim or right to be granted an Award, and the grant of an Award shall not be construed as giving, a Participant the right to continued employment or any other relationship with the Company. The Company expressly reserves the right at any time to dismiss or otherwise 10 11 terminate its relationship with a Participant free from any liability or claim under the Plan, except as expressly provided in the applicable Award. (b) No Rights As Stockholder. Subject to the provisions of Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any shares of Common Stock to be distributed with respect to an Award holder of such shares. Notwithstanding the foregoing, in the event the Company effects a split of the Common Stock by means of a stock dividend and the exercise price of and shares subject to such Option are adjusted as of the date of the distribution of the dividend (rather than as of the record date for such dividend), then an optionee who exercises an Option between the record date and the distribution date for such stock dividend shall be entitled to receive, on the distribution date, the stock dividend with respect to the shares of Common Stock acquired upon such Option exercise, notwithstanding the fact that such shares were not outstanding as of the close of business on the record date for such stock dividend. (c) Effective Date and Term of Plan. The Plan shall become effective on the date on which it is adopted by the Board, but no Award granted to a Participant designated by the Board as subject to Section 162(m) of the Code by the Board shall become exercisable, vested or realizable, as applicable to such Award, unless and until the Plan has been approved by the Company's stockholders to the extent stockholder approval is required by Section 162(m) in the manner required under Section 162(m) (including the vote required under Section 162(m)). No Awards shall be granted under the Plan after the completion of ten years from the earlier of (i) the date on which the Plan was adopted by the Board or (ii) the date the Plan was approved by the Company's stockholders, but Awards previously granted may extend beyond that date. (d) Amendment of Plan. The Board may amend, suspend or terminate the Plan or any portion thereof at any time, provided that to the extent required by Section 162(m) of the Code, no Award granted to a Participant designated as subject to Section 162(m) by the Board after the date of such amendment shall become exercisable, realizable or vested, as applicable to such Award (to the extent that such amendment to the Plan was required to grant such Award to a particular Participant), unless and until such amendment shall have been approved by the Company's stockholders as required by Section 162(m) (including the vote required under Section 162(m)). (e) Governing Law. The provisions of the Plan and all Awards made hereunder shall be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia, without regard to any applicable conflicts of law. 11 EX-99.2 5 AMTEVA 1998 STOCK INCENTIVE PLAN FORM OF NONSTAT 1 EXHIBIT 99.2 AMTEVA TECHNOLOGIES, INC. Nonstatutory Stock Option Agreement Granted Under 1998 Stock Incentive Plan 1. Grant of Option. This agreement evidences the grant by Amteva Technologies, Inc., a Virginia corporation (the "Company"), on ___________, 199___ (the "Grant Date") to _____________, an [employee], [consultant], (director] of the Company (the 'Participant'), of an option to purchase, in whole or in part, on the terms provided herein and in the Company's 1998 Stock Incentive Plan (the "Plan"), a total of shares (the "Shares" of common stock, $.01 par value per share, of the Company ("Common Stock") at $_______ per Share. Unless earlier terminated, this option shall expire on (the "Final Exercise Date"). It is intended that the option evidenced by this agreement shall not be an incentive stock option as defined in Section 422 of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder (the "Code"). Except as otherwise indicated by the context, the term "Participant" as used in this option, shall be deemed to include any person who acquires the right to exercise this option validly under its terms. 2. Vesting Schedule. This option will become exercisable ("vest") according to the conditions set forth in Exhibit A hereto. The right of exercise shall be cumulative so that to the extent the option is not exercised in any period to the maximum extent permissible it shall continue to be exercisable, in whole or in part, with respect to all shares for which it is vested until the earlier of the Final Exercise Date or the termination of this option under Section 3 hereof or the Plan. 3. Exercise of Option. (a) Form of Exercise. Each election to exercise this option shall be in writing, signed by the Participant, and received by the Company at its principal office, accompanied by this agreement, and payment in full in the manner provided in the Plan. The Participant may purchase less than the number of shares covered hereby, provided that no partial exercise of this option may be for any fractional share or for fewer than ten (10) whole shares. (b) Continuous Relationship with the Company Required. Except as otherwise provided in this Section 3, this option may not be exercised unless the Participant, at the time he or she exercises thin option, is, and has been at all timer, since the Grant Date, an employee, officer or director of, or consultant or advisor to, the Company or any parent or subsidiary of the Company as defined in Section 424(c) or (f) of the Code (an "Eligible Participant"). (c) Termination of Relationship with the Company. If the Participant ceased to be an Eligible Participant for any reason, then, except as provided in paragraphs (d) and (e) below, the 2 right to exercise this option shall terminate three months after such cessation (but in no event after the Final Exercise Date), provided that this option shall be exercisable only to the extent that the Participant was entitled to exercise this option on the date of such cessation. Notwithstanding the foregoing, if the Participant, prior to the Final Exercise Date, violates the non-competition or confidentiality provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant and the Company, the right to exercise this option shall terminate immediately upon written notice to the Participant from the Company describing such violation. (d) Exercise Period Upon Death or Disability. If the Participant dies or becomes disabled (within the meaning of Section 22(o)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant and the Company has not terminated such relationship for "cause" as specified in paragraph (e) below, this option shall be exercisable, within the period of one year following the date of death or disability of the Participant, by the Participant, provided, that, this option shall be exercisable only to the extent that this option was exercisable by the Participant on the date of his or her death or disability, and further provided that this option shall not be exercisable after the Final Exercise Date, (e) Discharge for Cause. If the Participant, prior to the Final Exercise Date, is discharged by the Company for "cause" (as defined below), the right to exercise this option shall terminate immediately upon the effective date of such discharge. "Cause" shall mean willful misconduct by the Participant or willful failure by the Participant to perform his or her responsibilities to the Company (including, without limitation, breach by the Participant of any provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar agreement between the Participant and the Company), as determined by the Company, which determination shall be conclusive. The Participant shall be considered to have been discharged for "Cause" if the Company determines, within 30 days after the Participant's resignation, that discharge for cause was warranted. 4. Right of First Refusal. (a) If the Participant proposes to sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively, "transfer") any Shares acquired upon exercise of this option, then the Participant shall first give written notice of the proposed transfer (the 'Transfer Notice') to the Company. The Transfer Notice shall name the proposed transferee and state the number of such Shares the Participant proposes to transfer (the "Offered Shares"), the price per share and all other material terms and conditions of the transfer. (b) For 30 days following its receipt of such Transfer Notice, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the price and upon the terms set forth in the Transfer Notice. In the event the Company elects to purchase all of the Offered Shares, it shall give written notice of such election to the Participant within such 30-day period. Within 10 days after his receipt of such notice, the Participant shall tender to the Company at its principal offices the certificate or certificates representing the Offered Shares, duly endorsed in blank by the Participant or with duly endorsed stock powers attached thereto, all in a form suitable for transfer of the Offered Shares to the Company. Upon receipt of Such certificate or certificates, the Company shall deliver or mail to the Participant a check in payment 2 3 of the purchase price for the Offered Shares; provided that if the terms of payment set forth in the Transfer Notice were other than cash against delivery, the Company may pay for the Offered Shares on the same terms and conditions as were set forth in the Transfer Notice. (c) At and after the time at which the Offered Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Shares or permit the Participant to exercise any of the privileges or rights of a stockholder with respect to such Offered Shares, but shall, insofar as permitted by law, treat the Company as the owner of such Offered Shares. (d) If the Company does not elect to acquire all of the Offered Shares, the Participant may, within the 30-day period following the expiration of the option granted to the Company under subsection (b) above, transfer the Offered Shares to the proposed transferee, provided that such transfer shall not be on terms and conditions mom favorable to the transferee than those contained in the Transfer Notice. Notwithstanding any of the above, all Offered Shares transferred pursuant to this Section 4 shall remain subject to the right of first refusal set forth in this Section 4 and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Section 4. (e) The following transactions shall be exempt from the provisions of this Section 4: (1) any transfer of Shares to or for the benefit of any spouse, child or grandchild of the Participant, or to a trust for their benefit; (2) any transfer pursuant to an effective registration statement filed by the Company under the Securities Act of 1933, as amended (the "Securities Act"); and (3) any transfer of the Shares pursuant to the sale of all or substantially all of the business of the Company; provided, however, that in the case of a transfer pursuant to clause (1) above, such Shares shall remain subject to the right of first refusal set forth in this Section 4 and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Section 4. (f) The Company may assign its rights to purchase Offered Shares in any particular transaction under this Section 4 to one or mom persons or entities. (g) The provisions of this Section 4 shall terminate upon the earlier of the following events: (1) the closing of the sale of shares of Common Stock in an underwritten public offering pursuant to an effective registration statement filed by the Company under the Securities Act; or (2) the sale of all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise. 3 4 (h) The Company shall not be required (a) to transfer on its books any of the Shares which shall have been sold or transferred in violation of any of the provisions set forth in this Section 4, or (b) to treat as owner of such Share or to pay dividends to any transferee to whom any such Shares shall have been SO sold or transferred. 5. Agreement in Connection-with Public Offering. The Participant agrees, in connection with the initial underwritten public offering of the Company's securities pursuant to a registration statement under the Securities Act, (i) not to sell, make short sale of, loan, grant any options for the purchase of, or otherwise dispose of any shares of Common Stock held by the Participant (other than those shares included in the offering) without the prior written consent of the Company or the underwriters managing such initial underwritten public offering of the Company's securities for a period of 180 days from the effective date of such registration statement, and (ii) to execute any agreement reflecting clause (i) above as may be requested by the Company or the managing underwriters at the time of such offering. 6. Withholding. No Shares will be issued pursuant to the exercise of this option unless and until the Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any federal, state or local withholding taxes required by law to be withheld in respect of this option. 7. Nontransferability of Option. This option may not be sold, assigned, transferred, pledged or otherwise encumbered by the Participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the lifetime of the Participant, this option shall be exercisable only by the Participant. 8. Provisions of the Plan. This option is subject to the provisions of the Plan, a copy of which is furnished to the Participant with this option. 4 5 IN WITNESS WHEREOF, the Company has caused this option to be executed under its corporate by its duly authorized officer. This option shall take effect as a sealed instrument. Amteva Technologies, Inc. Dated: By: ------------------------- ------------------------------------ Title: ----------------------------------- PARTICIPANT'S ACCEPTANCE The undersigned hereby accepts the foregoing option and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy of the Company's 1998 Stock Incentive Plan. PARTICIPANT: ----------------------------------------- Title: ----------------------------------- ----------------------------------------- 5 6 EXHIBIT 99.2 Exhibit A This option will become exercisable ("vest") as to twenty five percent (25%) of the original number of Shares on the first anniversary of the Grant Date and as to an additional twenty five percent (25%) of the original number of Shares at the end of each successive full one-year period following the first anniversary of the Grant Date until the fourth (4th) anniversary of the Grant Date. [Notwithstanding the foregoing, upon the occurrence of the events set forth below, the vesting schedule shall be modified as set forth below. Event; Vesting Schedule upon the occurrence of the above Event:] - ------------------------------------ Recipient Initials - ------------------------------------ Amteva Initials EX-99.3 6 AMTEVA 1998 STOCK INCENTIVE PLAN FORM OF INCENTIVE 1 EXHIBIT 99.3 AMTEVA TECHNOLOGIES, INC. INCENTIVE STOCK OPTION AGREEMENT GRANTED UNDER 1998 STOCK INCENTIVE PLAN 1. GRANT OF OPTION. This agreement evidences the grant by Amteva Technologies, Inc., a Virginia corporation (the "Company"), on __________________, 199__ (the "Grant Date") to _____________________, an employee of the Company (the "Participant"). of an option to purchase, in whole or in part on the terms provided herein and in the Company's 1998 Stock Incentive Plan (the "Plan"), a total of _______________ shares (the "Shares") of common stock, $.0l par value per share, of the Company ("Common Stock") at $_________ per Share. Unless earlier terminated, this option shall expire on _______________ (the "Final Exercise Date"). It is intended that the option evidenced by this agreement shall be an incentive stock option as defined in Section 422 of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder (the "Code"). Except as otherwise indicated by the context, the term "Participant" as used in this option, shall be deemed to include any person who acquires the right to exercise this option validly under its terms. 2. VESTING SCHEDULE. This option will become exercisable ("vest") according to the conditions set forth in Exhibit A hereto. The right of exercise shall be cumulative so that to the extent the option is not exercised in any period to the maximum extent permissible it shall continue to be exercisable, in whole or in part, with respect to all shares for which it is vested until the earlier of the Final Exercise Date or the termination of this option under Section 3 hereof or the Plan. 3. EXERCISE OF OPTION. (a) Form of Exercise. Each election to exercise this option shall be in writing, signed by the Participant, and received by the Company at its principal office, accompanied by this agreement and payment (i) in full in the manner provided in the Plan, (ii) when the Company's Common Stock is registered under the Securities Exchange Act of 1934, by delivery of shares of Common Stock owned by the Participant valued at their fair market value as determined by the Board in good faith, which Common Stock was owned by the Participant at least six months prior to such delivery, (iii) by delivery of a promissory note of the Participant to the Company on terms determined by the Board, or (iv) by payment of such other lawful consideration as the Board may determine. The Participant may purchase less than the number of shares covered hereby, provided that no partial exercise of this option may be for any Factional share or for fewer than ten (10) whole Shares. (b) Continuous Relationship with the Company Required. Except as otherwise provided in this Section 3, this option may not be exercised unless the Participant, at the time he 2 or she exercises this option, is, and has been at all times since the Grant Date, an employee, officer or director of, or consultant or advisor to, the Company or any subsidiary of the Company as defined in Section 424(c) or (f) of the Code (an "Eligible Participant"). (c) Termination of Relationship with the Company. If the Participant ceases to be an Eligible Participant for any reason, then, except as provided in paragraphs (d) and (e) below, the right to exercise this option shall terminate three months after such cessation (but in no event after the Final Exercise Date), provided that this option shall be exercisable only to the extent that the Participant was entitled to exercise this option on the date of such cessation. Notwithstanding the foregoing, if the Participant, prior to the Final Exercise Date, violates the non-competition or confidentiality provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant and the Company, the right to exercise this option shall terminate immediately upon written notice to the Participant from the Company describing such violation. (d) Exercise Period Upon Death or Disability. If the Participant dies or becomes disabled (within the meaning of Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant and the Company has not terminated such relationship for "cause" as specified in paragraph (e) below, this option shall be exercisable, within the period of one year following the date of death or disability of the Participant by the Participant, provided that this option shall be exercisable only to the extent that this option was exercisable by the Participant on the date of his or her death or disability, and further provided that this option shall not be exercisable after the Final Exercise Date. (e) Discharge for Cause. If the Participant prior to the Final Exercise Date, is discharged by the Company for "cause" (as defined below), the right to exercise this option shall terminate immediately upon the effective date of such discharge. "Cause" shall mean willful misconduct by the Participant or willful failure by the Participant to perform his or her responsibilities to the Company (including without limitation, breach by the Participant of any provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar agreement between the Participant and the Company), as determined by the Company, which determination shall be conclusive. The Participant shall be considered to have been discharged for "cause" if the Company determines, within 30 days after the Participant's resignation, that discharge for cause was warranted. 4. RIGHT OF FIRST REFUSAL. (a) If the Participant proposes to sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively, "transfer") any Shares acquired upon exercise of this option, then the Participant shall first give written notice of the proposed transfer (the "Transfer Notice") to the Company. The Transfer Notice shall name the proposed transferee and state the number of such Shares the Participant proposes to transfer (the "Offered Shares"), the price per share and all other material terms and conditions of the transfer. (b) For 30 days following its receipt of such Transfer Notice, the Company shall have the option to purchase all (but not less than all) of the Offered Share at the price and upon the terms set forth in the Transfer Notice. In the event the Company elects to purchase all of the 2 3 Offered Shares, it shall give written notice of such election to the Participant within such 30-day period. Within 10 days after his receipt of such notice, the Participant shall tender to the Company at its principal offices the certificate or certificates representing the Offered Shares duly endorsed in blank by the Participant or with duly endorsed stock powers attached thereto, all in a form suitable for transfer of the Offered Shares to the Company. Upon receipt of such certificate or certificates, the Company shall deliver or mail to the Participant a check in payment of the purchase price for the Offered Shares; provided that if the terms of payment set forth in the Transfer Notice were other than cash against delivery, the Company may pay for the Offered Share on the same terms and conditions as were set forth in the Transfer Notice. (c) At and after the time at which the Offered Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Shares or permit the Participant to exercise any of the privileges or rights of a stockholder with respect to such Offered Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Offered Shares. (d) If the Company does not elect to acquire all of the Offered Shares, the Participant may, within the 30-day period following the expiration of the option granted to the Company under subsection (b) above, transfer the Offered Shares to the proposed transferee, provided that such transfer shall not be on terms and conditions more favorable to the transferee than those contained in the Transfer Notice. Notwithstanding any of the above, all Offered Shares transferred pursuant to this Section 4 shall remain subject to the right of first refusal set forth in this Section 4 and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Section 4. (e) The following transactions shall be exempt from the provisions of this Section 4: (1) any transfer of Shares to or for the benefit of any spouse, child or grandchild of the Participant, or to a trust for their benefit; (2) any transfer pursuant to an effective registration statement filed by the Company under the Securities Act of 1933, as amended (the "Securities Act"); and (3) any transfer of the Shares pursuant to the sale of all or substantially all of the business of the Company; provided, however, that in the law of a transfer pursuant to clause (1) above, such Shares shall remain subject to the right of first refusal set forth in this Section 4 and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Section 4. (f) The Company may assign its rights to purchase Offered Shares in any particular transaction under this Section 4 to one or more persons or entities. (g) The provisions of this Section 4 shall terminate upon the earlier of the following events: 3 4 (1) the closing of the sale of shares of Common Stock in an underwritten public offering pursuant to an effective registration statement filed by the Company under the Securities Act; or (2) the sale of all or substantially all of the capital stock, "gets or business of the Company, by merger, consolidation, sale of assets or otherwise. (h) The Company shall not be required (x) to transfer on its books any of the Shares which shall have been sold or transferred in violation of any of the provisions set forth in this Section 4 or (y) to treat as owner of such Shares or to pay dividends to any transferee to whom any such Shares shall have been so sold or transferred. 5. AGREEMENT IN CONNECTION WITH PUBLIC OFFERING. The Participant agrees, in connection with the initial underwritten public offering of the Company's securities pursuant to a registration statement under the Securities Act, (i) not to sell, make short sale of, loan, grant any options for the purchase of, or otherwise dispose of any shares of Common Stock held by the Participant (other than those shares included in the offering) without the prior written consent of the Company or the underwriters managing such initial underwritten public offering of the Company's securities for a period of 180 days from the effective date of such registration statement and (ii) to execute any agreement reflecting clause (i) above as may be requested by the Company or the managing underwriters at the time of such offering. 6. WITHHOLDING. No Shares will be issued pursuant to the exercise of this option unless and until the Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any federal, state or local withholding taxes required by law to be withhold in respect of this option. 7. NONTRANSFERABILITY OF OPTION. This option may not be sold, assigned, transferred, pledged or otherwise encumbered by the Participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution and, during the lifetime of the Participant, this option shall be exercisable only by the Participant. 8. DISQUALIFYING DISPOSITION. If the Participant disposes of Shares acquired upon exercise of this option within two years from the Grant Date or one year after such Shares were, acquired pursuant to exercise of this option, the Participant shall notify the Company in writing of such disposition. 9. PROVISIONS OF THE PLAN. This option is subject to the provisions of the Plan, a copy of which is furnished to the Participant with this option. 4 5 IN WITNESS WHEREOF, the Company has caused this option to be executed under its corporate seal by its duly authorized officer. This option shall take effect as a sealed instrument. AMTEVA TECHNOLOGIES, INC. Dated: By: --------------------- --------------------------- Title: ------------------------ PARTICIPANT'S ACCEPTANCE The undersigned hereby accepts the foregoing option and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy of the Company's 1998 Stock Incentive Plan. PARTICIPANT: --------------------------------- Address: ------------------------- --------------------------------- 5 6 EXHIBIT A This option will become exercisable ("vest") as to twenty five percent (25%) of the original number of Shares on the first anniversary of the Grant Date and as to an additional twenty five percent (25%) of the original number of Shares at the end of each successive full one-year period following the first anniversary of the Grant Date until the fourth (4th) anniversary of the Grant Date. [Notwithstanding the foregoing, upon the occurrence of the events set forth below, the vesting schedule shall be modified as set forth below. Event: Vesting Schedule upon the occurrence of the above Event:] - -------------------- Employee Initials - -------------------- Amteva Initials EX-99.4 7 AMTEVA TECHNOLOGIES, INC. (FORMERLY AUM TECH OF 1 EXHIBIT 99.4 AUM TECH OF VIRGINIA, INC. STOCK OPTION PLAN 1. PURPOSE. The purpose of the Aum Tech of Virginia, Inc. Stock Option Plan (the "Plan") is to advance the growth and prosperity of Aum Tech of Virginia, Inc., a Virginia corporation, (the "Corporation") and its subsidiaries (if any) by providing selected employees, officers and directors with an additional incentive to contribute to the best interests of the Corporation. Without prejudice to other compensation programs approved from time to time by the Board of Directors (the "Board") and/or shareholders of the Corporation, such additional incentive is to be given to selected individuals by means of stock options provided for under the Plan. Stock options issued under the Plan shall be limited to "non-statutory" stock options, and shall not constitute "Incentive Stock Options" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended. 2. ADMINISTRATION OF THE PLAN. (a) The Plan shall be administered by the Board unless and until such time as the Board delegates administration to a committee pursuant to subparagraph 2(c) (the "Committee"). Upon such date as the Corporation has a class of equity security registered under Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Board shall administer the Plan only if all of its members are disinterested persons. For the purposes of this paragraph 2, disinterested person shall mean a person who has not at any time within one year prior to the date in question participated in the Plan or any other plan of the Corporation or any of its subsidiaries entitling the participants therein to acquire stock or stock options of the Corporation; provided, however, that a disinterested person may participate in a plan that meets any of the exceptions contained in Rule 16b3(c)(2) as promulgated under the Exchange Act, as it may be amended from time to time. (b) The Board shall have the power, subject to, and within, the limits of the express provisions of the Plan: (i) To determine from time to time which of the eligible persons shall be granted options under the Plan, the time or times within which all or portions of each option shall be vested, and the number of shares for which each option shall be granted. (ii) To construe and interpret the Plan and options granted under it, and to establish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, shall generally determine all questions of policy and expediency that may arise and may correct any defect, omission or inconsistency in the Plan or in any option agreement in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective. (iii) To prescribe the terms and provisions of each option granted (which need not be identical). (iv) To amend the Plan as provided herein. 2 (v) Generally, to exercise such powers and to perform such acts as are deemed necessary or expedient to promote the best interests of the Corporation. (c) The Board, by resolution, may delegate administration of the Plan (including, without limitation, the Board's powers under subparagraph 2(b)) to a Committee composed of not less than two (2) members, which committee, upon such time as the Corporation has a class of equity security registered under Section 12 of the Exchange Act, will be constituted so as to permit the Plan to comply with Rule 16b-3 thereunder. If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board, subject, however, to such constraints, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board at any time may remove members from or add members to the Committee or may abolish the Committee and revest in the Board the administration of the Plan. Vacancies on the Committee, howsoever caused, shall be filled by the Board. (d) The interpretation and construction by the Board of any provisions of the Plan or of any option granted under it shall be final, and the interpretation or construction by any Committee appointed pursuant to subparagraph 2(c) of any such provisions or option shall also, unless otherwise determined by the Board, be final. No member of such Committee or of the Board shall be liable for any action or determination made in good faith with respect to the Plan or any option granted under 3. ELIGIBLE PARTICIPANTS. The Board or the Committee shall determine from time to time those officers, directors and employees of the Corporation and its subsidiaries to whom options shall be granted and, subject to the limitations and other provisions of the Plan, the amount thereof and the terms and conditions upon which such options or rights are granted and are vested. 4. THE STOCK. The stock subject to the options and other provisions of the Plan shall be shares of the Corporation's authorized and unissued Common Stock, par value $0.01 per share (referred to herein as "Stock"), or reacquired Stock held in the treasury. The total number of shares of Stock that may be transferred pursuant to the exercise of stock options under the Plan shall not exceed in the aggregate 1,000,000 shares of Stock. Shares subject to options which terminate or expire prior to exercise, or are repurchased by the Corporation pursuant to the provisions of the Plan, shall be available for further option hereunder. Each option granted under this Plan shall be subject to the requirement that if at any time the Board or the Committee shall reasonably determine that the listing, registration or qualification of the shares subject thereto upon any securities exchange or under any state or Federal law, or the consent or approval of any governmental regulatory body is necessary or desirable in connection with the issue or transfer of shares subject thereof, no such option may be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board or the Committee. If reasonably required at any time by the Board or the Committee, an option may not be exercised until the optionee has delivered an investment letter to the Corporation containing the representations that all shares being purchased are being acquired for investment and not with a view to, or for resale in connection with, any distribution of such shares. 2 3 5. TERMS AND CONDITIONS OF OPTIONS. All stock options granted pursuant to the Plan shall be in such form as the Board or the Committee shall from time to time determine, and shall be subject to the following terms and conditions: (a) Option Price. Unless otherwise determined by the Board or the Committee and such determination is expressly set forth in writing in the option granted to an optionee, the exercise price per share for Stock under any option granted pursuant to the Plan shall equal the Grant Book Value Per Share (as defined below). For purposes of the Plan, the "Grant Book Value Per Share" shall equal (i) the book value of the Corporation's assets less its liabilities (including contingent liabilities), on a consolidated basis including the Corporation's subsidiaries, as determined under the Corporation's normal and customary accounting methods as of the last day of the Corporation's monthly accounting period (which may or may not end as of the last day of a calendar month) immediately preceding the date of the grant of the option, and (ii) in the event any equity securities of the Corporation are then outstanding that have a senior liquidation or dividend preference to the Stock, such book value reduced by the greater of the aggregate issue price of such outstanding securities or, if applicable, the aggregate price on which such outstanding securities are required to be redeemed by the Corporation as provided under its Articles of Incorporation, and then (iii) the resulting number divided by the number of outstanding shares of Stock as of the date of grant of the option. Any determination of the foregoing book value based on the Corporation's internally-prepared management financial statements shall be final and binding as the exercise price per share for any options granted under the Plan. (b) Option Period. Unless otherwise determined by the Board or the Committee and such determination is expressly set forth in writing in the option granted to an optionee, the period during which an option may be exercised by such optionee shall be the fifteen (15) day period immediately following the cessation of employment or service in office of the optionee, as the case may be. Notwithstanding the foregoing, if such cessation is as a result of the Corporation's termination of the optionee's employment or service in office with cause, such option shall not be exercisable but instead shall be immediately terminated and of no force or effect. The exercise of an option granted under the Plan shall not affect the optionee's right or ability to exercise any other option granted under the Plan or any Other stock option plan of the Corporation or its subsidiaries. (c) Vesting. The Board or the Committee may determine that any option granted shall be fully vested immediately, or the Board or the Committee may prescribe installments in which any option granted shall vest. An option granted under the Plan shall be exercisable in accordance with the terms of the Plan only to the extent vested on the date of exercise. (d) Holding Period. Upon such time as the Corporation has a class of equity security registered under Section 12 of the Exchange Act, in order for the grant of an option under the Plan to be exempt from Section 16(b) of the Exchange Act, the optionee must make no disposition of the option (other than upon exercise) or the shares acquired pursuant to the exercise of the option, for a period of six (6) months after the date of grant of such option. 3 4 6. PAYMENT FOR STOCK. Payment for shares of Stock subject to options granted under the Plan shall be made by the optionee in the form of cash only. Payment shall be made in full upon the exercise of the option. Payment in currency or by check, bank draft, cashier's check or postal money order shall be considered payment in cash. 7. NON-ASSIGNABILITY; DEATH OF OPTIONEE. The Plan is intended to permit participation in the growth and success of the Corporation only by selected officers, directors and employees of the Corporation and its subsidiaries. Consequently, no option shall be assignable or otherwise transferable, in whole or in part, without the prior written consent of the Board or the Committee, which consent may be withheld in the discretion of either. All options granted to an optionee shall immediately terminate upon the death of such optionee, to the extent not earlier expired or terminated. 8. ADJUSTMENT UPON CHANGES IN STOCK. Subject to paragraph 10 below, the number and type of securities available for the granting of options under the Plan, and the number and type of securities and exercise price of outstanding options granted pursuant to the Plan, shall be adjusted by the Board or the Committee in an equitable manner to reflect changes in the capitalization of the Corporation, including, but not limited to, such changes as result from merger, consolidation, reorganization, recapitalization, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares and change in corporate structure. In particular and not by way of limitation, no optionee shall have any right of approval or vote with respect to any merger, consolidation, reorganization or other change in corporate structure (including any such change relating to an acquisition of securities or assets of the Corporation), but rather each optionee shall be entitled only to such number and type of securities into which the Stock covered by such optionee's options are equitably adjusted. If any adjustment under this paragraph 8 would create a fractional share of Stock or other securities of the Corporation or another entity, or a right to acquire a fractional share of Stock or such other securities, such fractional share shall be disregarded and the number of shares available under the Plan and the number covered under any options granted pursuant to the Plan shall be the next lower number of shares, rounding all fractions downward. Any adjustment made by the Board or the Committee under this paragraph 8 shall be conclusive and binding on all affected persons. 9. OPTION TO REPURCHASE. (a) If an optionee ceases to be employed by the Corporation or any of its subsidiaries (or for an optionee who is solely a director or officer, if such optionee ceases to serve in any such offices), whether due to death, permanent disability, resignation or any other reason, then the Corporation shall have the right and option (the "Repurchase Right"), but not the obligation, to purchase all or any of the shares of Stock acquired by such optionee through exercise of one or more options under the Plan. The Repurchase Right shall survive the cessation of employment or service of the optionee with the Corporation and/or its subsidiaries, and accordingly will apply to all Stock acquired from time to time through exercise of options under the Plan, regardless of the timing of any such exercise. The Repurchase Right shall be deemed to be exercised by the Corporation, automatically and without the need for any further action, as to all shares of Stock acquired by an optionee through exercise of options hereunder (regardless of the timing of such exercises), effective as of the latest date on which any option 4 5 hereunder is exercised by the optionee or, if later, the date of cessation of the optionee's employment or service with the Corporation, unless, within thirty (30) days following such date, the Corporation (as authorized by either the Board or the Committee) delivers written notice to the applicable optionee specifying that none of such shares, or a lesser number than all of such shares, will be repurchased. Upon expiration of such thirty (30) day period without delivery of any such notice, the exercise of the Repurchase Right as to all shares acquired by the optionee through exercise of options shall be deemed final and binding on the Corporation and the optionee. If a notice as described above is properly delivered within such thirty (30) day period, then the partial or non-exercise of the Repurchase Right shall be deemed final and binding on the Corporation and the optionee upon delivery of such notice to the optionee. Upon the full or partial exercise of the Repurchase Right, the shares of Stock as to which the Repurchase Right is exercised shall be deemed repurchased and redeemed by the Corporation automatically and without the need for any further action on the part of the Corporation, the applicable optionee or any other party. The Corporation shall be required to pay the entire purchase price for the Stock repurchased, as provided in subparagraph 9(b) below, by cash, corporate or certified check or wired funds, within ninety (90) days after the effective date of repurchase. If any such Stock repurchased is represented by one or more stock certificates, the optionee shall endorse for cancellation and deliver to the Corporation such stock certificates (or, if such stock certificates have been lost or destroyed, a lost stock affidavit in form and substance satisfactory to the Board or the Committee) within ten (10) days following the Corporation's exercise of the Repurchase Right. Notwithstanding the foregoing, the Corporation may elect to withhold payment for any Stock repurchased until such time as the optionee has endorsed or delivered such stock certificates (or lost stock affidavit), provided that the repurchase of such Stock shall be deemed consummated and effective despite such withheld payment. (b) The purchase price per share for any shares of Stock repurchased by the Corporation pursuant to any exercise of its Repurchase Right under this paragraph 9 shall equal the lesser of (i) the Grant Book Value Per Share, plus a rate of return of six percent (6%) per annum since the date of grant of the option by which such shares were acquired by the optionee or (ii) the Formula Value Per Share (as defined below) . The "Formula Value Per Share" shall equal (1) six (6) multiplied by the net income after taxes of the Corporation and its subsidiaries, on a consolidated basis as determined under the Corporation's normal and customary accounting methods, for the fiscal year of the Corporation ending on or most recently preceding the date of the Corporation's exercise of the Repurchase Right, and (11) in the event any equity securities of the Corporation are then outstanding that have a senior liquidation or dividend preference to the Stock, such resulting number reduced by the greater of the aggregate issue price of such outstanding securities or, if applicable, the aggregate price at which such outstanding securities are required to be redeemed by the Corporation under its Articles of Incorporation, and (111) the result divided by the number of outstanding shares of Stock as of the date of the Corporation's exercise of the Repurchase Right. Notwithstanding any of the foregoing, the purchase price per share for any shares of Stock repurchased by the Corporation pursuant to any exercise of its Repurchase Right under this paragraph 9 shall not be less than the Grant Book Value Per Share at which the repurchased shares were originally acquired by the applicable optionee. (c) If the Corporation exercises the Repurchase Right, the Corporation may elect not to issue a stock certificate to such optionee, and instead return any proceeds representing the option price to be paid for such Stock by the optionee, or waive the requirement 5 6 that such proceeds be paid by the optionee. In such case, the Corporation shall pay the difference between the purchase price at which such Stock is repurchased by the Corporation as provided in subparagraph (b) above, less the option price at which the optionee was entitled to acquire such Stock by exercise of his option. (d) Stock certificates issued representing shares of Stock acquired by exercise of options under the Plan shall bear a restrictive legend regarding this paragraph 9, in such form as determined by the Board or Committee. 10. PUBLIC OFFERING; ACQUISITION. Notwithstanding any other provision of this Plan, if the Corporation undertakes any underwritten public offering of the Stock or engages in a Nonaffiliated Acquisition (as defined below), then all options granted hereunder which have not previously terminated or expired, to the extent then vested, shall at the election of the Board or the Committee in its sole discretion (which election may be made differently with respect to different options, or different portions of options), (i) accelerate and become exercisable immediately prior to the consummation of such transaction or (ii) be converted into other securities of the Corporation (including but not limited to Stock or stock options issued under another plan) or, in the case of a Nonaffiliated Acquisition, securities of one or more of the acquiring or merging parties, in each case at such rate and upon such other terms as reasonably and in good faith determined by the Board of Directors or the Committee. In either of the above cases, the Repurchase Right of the Corporation established by paragraph 9 above shall terminate and be of no further force or effect, and consequently all shares of Stock acquired by exercise of such options, or all securities into which such options are converted, shall be free of the restrictions of paragraph 9 above. For purposes of this Plan, a "Nonaffiliated Acquisition" shall be deemed to occur if (1) all or substantially all the Corporation's assets are acquired in one or a series of related transactions other than in the ordinary course of business, (11) the Corporation is merged or consolidated with one or more other corporations or entities and the Corporation is not the surviving entity, or (111) as a result of any one or more transactions, a party who is not an existing shareholder of the Corporation as of the date of adoption of this Plan beneficially owns securities of the Corporation representing eighty percent (80%) or more of the combined voting power and value of the Corporation's outstanding securities; provided, that the party or parties acquiring such assets or Stock or merging or consolidating with the Corporation are not affiliated (within the meaning of Rule 405 promulgated under the Securities Act of 1933, as amended) with the Corporation or any such existing shareholder prior to the transactions). The acceleration of exercisability of options and termination of the Corporation's Repurchase Right described above shall not affect any restrictions on exercise of options or assignment of Stock reasonably imposed by underwriters or other non-affiliated parties as a condition to consummating an underwritten public offering of the Stock or Nonaffiliated Acquisition, or imposed by subparagraph 5(d) above. 11. AMENDMENT. The Board from time to time may amend this Plan, but except as provided above with respect to dilutions or other adjustments or mergers or share exchanges, or except with the approval of the Corporation's shareholders, may not (a) increase the aggregate number of shares available for option hereunder, (b) change the price at which options may be granted, (c) extend the maximum period during which an option may be exercised, or (d) change the eligibility requirements for options hereunder. Rights and obligations under any option 6 7 granted before amendment of the Plan shall not be altered or impaired by amendment of the Plan, except with the consent of the optionee to which the option was granted. 12. NO RIGHTS AS SHAREHOLDER. A participant in the Plan shall have no rights as a shareholder with respect to any shares covered by an option until the date of the issuance of a stock certificate to him representing shares acquired by valid exercise of an option. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record date is prior to the date such stock certificate is issued. 13. INDEMNIFICATION OF COMMITTEE. In addition to such other rights of indemnification as they may have as directors or as members of the Committee, the members of the Committee shall be indemnified by the Corporation against the reasonable expenses, including attorneys' fees actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any option granted thereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Corporation) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such Committee member is liable for negligence or misconduct in the performance of his duties; provided that within 60 days after institution of any such action, suit or proceeding, the Committee member shall in writing offer the Corporation the opportunity, at its own expense, to handle and defend the same. 14. NOTICES. Whenever notice is required or permitted to be given to a party under this Plan, such notice shall be in writing and shall be delivered either by personal delivery, by registered or certified mail, or by a nationally-recognized commercial delivery service, addressed to the Corporation at its principal offices and to any optionee at the optionee's address as it appears on the records of the Corporation. Any such notice shall be deemed to have been delivered on the date of personal delivery or on the date of deposit with the United States Post Office or applicable commercial delivery service, as shown on the postmark or other documentation of deposit. 15. WITHHOLDING. Each optionee shall be responsible for all federal, state and local income taxes, social security taxes and other taxes arising from the optionee's exercise of any option under this Plan, and each optionee hereby authorizes the withholding from any cash compensation otherwise payable to the optionee by the Corporation or any of its subsidiaries such amounts as necessary for the Corporation or any such subsidiary to comply with its withholding obligations under applicable federal and state law. In the event there is no or insufficient cash compensation payable to an optionee from which to make required withholdings, the applicable optionee shall remit to the Corporation or the appropriate subsidiary the deficient withholding amount. 16. PREVIOUS OPTIONS. The Plan shall apply to any stock option previously issued by the Corporation, unless the terms of such option specifically state that it is not to be governed by 7 8 the Plan, and all such previously-issued options shall be subject to all terms, conditions and restrictions of the Plan. 17. TERMINATION. This Plan shall terminate ten (10) years from the date of its adoption by the Board, unless sooner terminated by action of the Board. No option may be granted hereunder after a termination of the Plan, but such termination shall not affect the validity of any options then outstanding. The undersigned hereby certify that the Stock Option Plan of Aum Tech of Virginia, Inc. set forth above was duly approved by the Board of Directors and by the sole shareholder of the Corporation on March 14, 1996. AUM TECH OF VIRGINIA, INC., a Virginia corporation By: --------------------------- Dean Dodrill, President 8 EX-99.5 8 AMTEVA STOCK OPTION PLAN FORM OF STOCK PURCHASE 1 EXHIBIT 99.5 STOCK PURCHASE OPTION AUM TECH OF VIRGINIA, INC. STOCK OPTION PLAN In accordance with the provisions and restrictions of the Aum Technology of Virginia, Inc. Stock Option Plan (the "Plan"), the following employee, officer, or director of Aum Tech of Virginia, Inc. ("Aum Tech") is hereby given the nontransferable and non-assignable option to purchase common stock of Aum Tech (the "Stock") as set forth below. This option is to be exercised by completing and filing with Aum Tech certain forms which are available at Aum Tech's office. This option specifically supersedes and replaces in its entirety any stock options previously granted by Aum Tech to the individual named below, and all such previously granted options are hereby terminated and of no force or effect. NAME OF GRANTEE: DATE OF ISSUE OF THIS OPTION: NUMBER OF SHARES OF STOCK SUBJECT TO THIS OPTION: EXERCISE PRICE PER SHARE OF STOCK: VESTING DATE: AUM TECH OF VIRGINIA, INC. a Virginia corporation BY: ------------------- Lewis Dean Dodrill President DATE: EX-99.6 9 FORM OF STOCK OPTION ASSUMPTION AGREEMENT 1 EXHIBIT 99.6 CISCO SYSTEMS, INC. STOCK OPTION ASSUMPTION AGREEMENT AMTEVA TECHNOLOGIES, INC. 1996 STOCK OPTION PLAN 1998 STOCK INCENTIVE PLAN OPTIONEE: [[Employee]] STOCK OPTION ASSUMPTION AGREEMENT effective as of the 2nd day of June, 1999 by Cisco Systems, Inc., a California corporation ("Cisco"). WHEREAS, the undersigned individual ("Optionee") holds one or more outstanding options to purchase shares of the common stock of Amteva Technologies, Inc. (formerly Aum Tech of Virginia, Inc.), a Virginia corporation ("Amteva"), which were granted to Optionee under the Amteva 1996 Stock Option Plan or 1998 Stock Incentive Plan (the "Plans") and are each evidenced by a Stock Option Agreement (the "Option Agreement"). WHEREAS, Amteva has been acquired by Cisco through the merger of Amteva with and into Cisco (the "Merger") pursuant to the Agreement and Plan of Merger and Reorganization, by and between Cisco and Amteva (the "Merger Agreement"). WHEREAS, the provisions of the Merger Agreement require Cisco to assume all obligations of Amteva under all outstanding options under the Plans at the consummation of the Merger and to issue to the holder of each outstanding option an agreement evidencing the assumption of such option. WHEREAS, pursuant to the provisions of the Merger Agreement, the exchange ratio (the "Exchange Ratio") in effect for the Merger is 0.104902 shares of Cisco common stock ("Cisco Stock") for each outstanding share of Amteva common stock ("Amteva Stock"). WHEREAS, this Agreement became effective immediately upon the consummation of the Merger (the "Effective Time") in order to reflect certain adjustments to Optionee's outstanding options which have become necessary by reason of the assumption of those options by Cisco in connection with the Merger. NOW, THEREFORE, it is hereby agreed as follows: 1. The number of shares of Amteva Stock subject to the options held by Optionee immediately prior to the Effective Time (the "Amteva Options") and the exercise price payable per share are set forth in Exhibit(s) A hereto. Cisco hereby assumes, as of the Effective Time, all the duties and obligations of Amteva under each of the Amteva Options. In connection with such assumption, the number of shares of Cisco Stock purchasable under each Amteva 2 Option hereby assumed and the exercise price payable thereunder have been adjusted to reflect the Exchange Ratio. Accordingly, the number of shares of Cisco Stock subject to each Amteva Option hereby assumed shall be as specified for that option in attached Exhibit(s) A, and the adjusted exercise price payable per share of Cisco Stock under the assumed Amteva Option shall also be as indicated for that option in attached Exhibit(s) A. 2. The intent of the foregoing adjustments to each assumed Amteva Option is to assure that the spread between the aggregate fair market value of the shares of Cisco Stock purchasable under each such option and the aggregate exercise price as adjusted pursuant to this Agreement will, immediately after the consummation of the Merger, be not less than the spread which existed, immediately prior to the Merger, between the then aggregate fair market value of the Amteva Stock subject to the Amteva 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 Amteva Option immediately prior to the Merger. 3. The following provisions shall govern each Amteva Option hereby assumed by Cisco: (a) Unless the context otherwise requires, all references in each Option Agreement and, if applicable, in the Plans (as incorporated into such Option Agreement) (i) to the "Company" shall mean Cisco, (ii) to "Shares" shall mean shares of Cisco Stock, (iii) to the "Board" shall mean the Board of Directors of Cisco and (iv) to the "Committee" shall mean the Compensation Committee of the Cisco Board of Directors. (b) The grant date and the expiration date of each assumed Amteva Option and all other provisions which govern either the exercise or the termination of the assumed Amteva Option shall remain the same as set forth in the Option Agreement and the Plan, applicable to that option, and the provisions of the Option Agreement and the Plan shall accordingly govern and control Optionee's rights under this Agreement to purchase Cisco Stock. (c) Pursuant to the terms of the Option Agreement, none of your options assumed by Cisco in connection with the transaction will vest and become exercisable on an accelerated basis upon the consummation of the Merger. Each Amteva Option shall be assumed by Cisco as of the Effective Time. Each such assumed Amteva Option shall thereafter continue to vest for any remaining unvested shares of Cisco Stock subject to that option in accordance with the same installment vesting schedule in effect under the applicable Option Agreement immediately prior to the Effective Time; provided, however, that the number of shares subject to each such installment shall be adjusted to reflect the Exchange Ratio. 2 3 (d) For purposes of applying any and all provisions of the Option Agreement and/or the Plan relating to Optionee's status as an employee or a consultant of Amteva, 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 Cisco or any present or future Cisco subsidiary. Accordingly, the provisions of the Option Agreement governing the termination of the assumed Amteva Options upon Optionee's cessation of service as an employee or a consultant of Amteva shall hereafter be applied on the basis of Optionee's cessation of employee or consultant status with Cisco and its subsidiaries, and each assumed Amteva Option shall accordingly terminate, within the designated time period in effect under the Option Agreement for that option, following such cessation of service as an employee or a consultant of Cisco and its subsidiaries. Specifically, an assumed Amteva Option which was originally granted under the 1996 Stock Option Plan must be exercised by the Optionee within fifteen (15) days of the date of the Optionee's termination by Cisco or the assumed Amteva Option will terminate. An assumed Amteva Option which was originally granted under the 1998 Stock Incentive Plan must be exercised within three (3) months of the date of the Optionee's termination by Cisco or the assumed Amteva Option will terminate. (e) The adjusted exercise price payable for the Cisco Stock subject to each assumed Amteva 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 Cisco Stock delivered in payment of such adjusted exercise price, the period for which such shares were held as Amteva Stock prior to the Merger shall be taken into account. (f) In order to exercise each assumed Amteva Option, Optionee must deliver to Cisco a written notice of exercise in which the number of shares of Cisco 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 Cisco Stock and should be delivered to Cisco at the following address: Cisco Systems, Inc. 255 West Tasman Drive, Building J San Jose, CA 95134 Attention: Option Plan Administrator 4. 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. 3 4 IN WITNESS WHEREOF, Cisco Systems, Inc. has caused this Stock Option Assumption Agreement to be executed on its behalf by its duly-authorized officer effective as of the 2nd day of June, 1999. CISCO SYSTEMS, INC. By: /s/ LARRY R. CARTER --------------------------- Larry R. Carter Corporate Secretary 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 Amteva Options hereby assumed by Cisco are as set forth in the Option Agreement, the Plan, as applicable, and such Stock Option Assumption Agreement. ------------------------------------ [[EMPLOYEE]], OPTIONEE DATED: , 1999 --------- 4 -----END PRIVACY-ENHANCED MESSAGE-----