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<title>Rudolph Technologies, Inc. Form S-8</title>
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<p>S-8 1 s8_rtec111705.htm RUDOLPH TECHNOLOGIES, INC. FORM S-8 <font size="1"></p>

<p align="right">As filed with the Securities and Exchange Commission on November 17, 2005<br>
Registration No. 333-_____________</p>
</font>

<hr>

<p align="center">&nbsp;</p>
<div align="center"><center>

<table cellSpacing="0" width="650" border="0">
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    <td align="middle" colSpan="3"><font size="5"><b>SECURITIES AND EXCHANGE COMMISSION</b></font></td>
  </tr>
  <tr>
    <td align="middle" colSpan="3"><font size="3">Washington, D.C. 20549</font></td>
  </tr>
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    <td align="middle" colSpan="3"></td>
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    <td align="middle" colSpan="3"><font size="5"><b>FORM S-8</b></font></td>
  </tr>
  <tr>
    <td align="middle" colSpan="3"><font size="5"><b>REGISTRATION STATEMENT</b></font></td>
  </tr>
  <tr>
    <td align="middle" colSpan="3"><font size="3"><i>Under<br>
    THE SECURITIES ACT OF 1933</i></font></td>
  </tr>
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    <td align="middle" colSpan="3"></td>
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    <td align="middle" colSpan="3"><font size="5"><b>RUDOLPH TECHNOLOGIES, INC.</b></font></td>
  </tr>
  <tr>
    <td align="middle" colSpan="3"><font size="1">(Exact name of Registrant as specified in
    its charter)</font></td>
  </tr>
  <tr>
    <td colSpan="3"></td>
  </tr>
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    <td align="middle" width="33%"><font size="3"><u>Delaware </u></font></td>
    <td width="33%"></td>
    <td align="middle" width="33%"><font size="3"><u>22-3531208</u></font></td>
  </tr>
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    <td align="middle" width="33%"><font size="1">(State of Incorporation)</font></td>
    <td width="33%"></td>
    <td align="middle" width="33%"><font size="1">(I.R.S. Employer Identification Number)</font></td>
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    <td align="middle" width="33%"></td>
    <td align="middle" width="33%"><p align="center"><font size="3">One Rudolph Road<br>
    Flanders, NJ 07836 </font></td>
    <td width="33%"></td>
  </tr>
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    <td align="middle" colSpan="3"><p align="center"><font size="1">&nbsp; (Address of
    principal executive offices)</font></td>
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    <td align="middle" colSpan="3"></td>
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</center></div><font size="5"><b>

<p align="center">1999 STOCK PLAN<br>
1999 EMPLOYEE STOCK PURCHASE PLAN<br>
</b></font><font size="1">(Full title of the Plans)</font><font size="5"><b></p>
</b></font><div align="center"><center>

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    <td width="716" colSpan="3"></td>
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    <td width="716" colSpan="3"><p align="center"><font size="3">PAUL F. McLAUGHLIN<br>
    Chairman and Chief Executive Officer<br>
    RUDOLPH TECHNOLOGIES, INC.<br>
    One Rudolph Road<br>
    Flanders, NJ 07836<br>
    (973) 691-1300</font><br>
    <font size="1">(Name, address and telephone number of agent for service)</font></td>
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  <tr>
    <td width="206"></td>
    <td width="313"><font size="3"><i><br>
    Copies to:</i></font></td>
    <td width="189"></td>
  </tr>
  <tr>
    <td width="206"></td>
    <td width="313"><p align="center"><font size="3"><br>
    TREVOR J. CHAPLICK, ESQ.<br>
    Wilson Sonsini Goodrich &amp; Rosati<br>
    Professional Corporation<br>
    &nbsp; Two Fountain Square, Reston Town Center&nbsp;<br>
    11921 Freedom Drive, Suite 600&nbsp;<br>
    Reston, Virginia 20190-5634<br>
    (703) 734-3100</font></td>
    <td align="middle" width="189"></td>
  </tr>
</table>
</center></div>

<p><font size="3">&nbsp;</p>

<hr>

<p align="center">&nbsp;</p>
<b>

<p align="center">CALCULATION OF REGISTRATION FEE</b></font></p>
<div align="center"><center>

<table cellSpacing="0" cellPadding="8" width="650" border="0">
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="middle" width="33%"><font size="2">Title
    of Securities to be Registered</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="middle" width="17%"><font size="2">Amount
    to be Registered (1)</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="middle" width="17%"><font size="2">Proposed
    Maximum Offering Price Per Share</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="middle" width="17%"><font size="2">Proposed
    Maximum Aggregate Offering Price</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="middle" width="17%"><font size="2">Amount
    of Registration Fee</font></td>
  </tr>
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" width="33%"><font size="2">Common Stock
    $0.001 par value, to be issued under the 1999 Stock Plan</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="right" width="17%"><font size="2">669,564
    (2)</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="right" width="17%"><font size="2">$
    12.30 (3)</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="right" width="17%"><font size="2">$
    &nbsp; 8,235,637.20</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="right" width="17%"><font size="2">$
    &nbsp;&nbsp;&nbsp; &nbsp; 969.33</font></td>
  </tr>
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" width="33%"><font size="2">Common Stock
    $0.001 par value, to be issued under the 1999 Employee Stock Purchase Plan</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="right" width="17%"><font size="2">600,000
    (4)</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="right" width="17%"><font size="2">$
    12.30 (3)</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="right" width="17%"><font size="2">$
    &nbsp; 7,380,000.00</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="right" width="17%"><font size="2">$
    &nbsp; &nbsp;&nbsp; 868.63</font></td>
  </tr>
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" width="33%"><font size="2">Total</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="right" width="17%"><font size="2">1,269,564
    &nbsp;&nbsp;&nbsp; </font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="right" width="17%">&nbsp;&nbsp; </td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="right" width="17%"><font size="2">$
    15,615,637.20</font></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) thin solid" align="right" width="17%"><font size="2">$
    &nbsp; 1,837.96</font></td>
  </tr>
</table>
</center></div><font size="3">

<p align="justify"></font>&nbsp;</p>

<blockquote>
  <p align="justify"><font size="3">(1) For the sole purpose of calculating the registration
  fee, the number of shares to be registered under this Registration Statement is the number
  of additional shares authorized to be issued under the 1999 Stock Plan and the 1999
  Employee Stock Purchase Plan.&nbsp; This Registration Statement shall also cover any
  additional shares of Common Stock which become issuable by reason of any stock dividend,
  stock split, recapitalization or other similar transaction effected without the receipt of
  consideration which results in an increase in the number of the outstanding shares of
  Common Stock.</font></p>
  <p align="justify"><font size="3">(2) Includes the following automatic annual increases to
  the number of shares of the Registrant&#146;s Common Stock reserved for issuance under the
  1999 Stock Plan: (i) 333,224 shares on January 1, 2004, and (ii) 336,340 shares on January
  1, 2005.</font></p>
  <p align="justify"><font size="3">(3) Estimated solely for the purpose of determining the
  registration fee pursuant to Rule 457(h) on the basis of the average of the high and low
  sale prices of Common Stock on the Nasdaq National Market on November 14, 2005.</font></p>
  <p align="justify"><font size="3">(4) Includes the following automatic annual increases to
  the number of shares of the Registrant&#146;s Common Stock reserved for issuance under the
  1999 Employee Stock Purchase Plan: (i) 300,000 shares on January 1, 2004 and (iii) 300,000
  shares on January 1, 2005.</font></p>
  <p align="justify">&nbsp;</p>
</blockquote>
<font size="3"><b>

<hr>

<p align="center">PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT</p>

<p align="justify">Item 3</b>. <u>Information Incorporated by Reference</u></p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
following documents and information heretofore filed with the Securities and Exchange
Commission (the &quot;Commission&quot;) are hereby incorporated by reference:</p>

<blockquote>
  <b><p align="justify">Item 3(a)</p>
  </b><p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Registrant's Annual
  Report on Form 10-K for the fiscal year ended December 31, 2004, filed on March 15, 2005.</p>
</blockquote>

<blockquote>
  <b><p align="justify">Item 3(b) </p>
  <p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </b>The Registrant&#146;s
  Quarterly Reports on Form 10-Q for the quarters ended March 31, 2005, June 30, 2005 and
  September 30, 2005, respectively.</p>
  <b><p align="justify">Item 3(c) </p>
  <p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </b>The Registrant&#146;s
  Current Reports on Form 8-K, filed with the Commission subsequent to December 31, 2004.<b></p>
  <p>Item 3(d) </p>
  </b><p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The description of the Common Stock of
  the Registrant contained in the Registrant's Registration Statement on Form 8-A filed on
  November 5, 1999, pursuant to Section 12 of the Securities Exchange Act of 1934, as
  amended (the &quot;Exchange Act&quot;).</p>
  <p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; All documents subsequently
  filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
  Act, prior to the filing of a post-effective amendment which indicates that all securities
  registered hereby have been sold or which deregisters all securities then remaining
  unsold, shall be deemed to be incorporated by reference in this Registration Statement and
  to be part hereof from the date of filing such documents.</p>
</blockquote>

<p><b>&nbsp;</p>

<p align="justify">Item 4</b>. <u>Description of Securities</u></p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Not
Applicable.</p>

<p><b>&nbsp;</p>

<p align="justify">Item 5</b>. <u>Interests of Named Experts and Counsel</u></p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Not
Applicable.</p>
<b>

<p align="justify"></b>&nbsp;</p>

<p align="justify"><b>Item 6</b>. <u>Indemnification of Directors and Officers</u></p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
Registrant&#146;s certificate of incorporation contains certain provisions permitted under
the Delaware General Corporation Law relating to the liability of directors. These
provisions eliminate a director&#146;s personal liability for monetary damages resulting
from a breach of fiduciary duty, except in certain circumstances involving certain
wrongful acts, including: (i) for any breach of the director&#146;s duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments
of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of
the Delaware General Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit.</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
Registrant&#146;s Bylaws provide that the Registrant shall indemnify its directors and
officers and may indemnify its employees and other agents to the fullest extent permitted
by law. The Registrant&#146;s Bylaws also permit the Registrant to secure insurance on
behalf of any officer, director, employee or other agent for any liability arising out of
his or her actions in such capacity, regardless of whether the Registrant would have the
power to indemnify him or her against such liability under the General Corporation Law of
Delaware.</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
Registrant has entered into agreements to indemnify its directors and officers, in
addition to indemnification provided for in the Registrant&#146;s Bylaws. Subject to
certain conditions, these agreements, among other things, indemnify the Registrant&#146;s
directors and officers for certain expenses (including attorney&#146;s fees), judgments,
fines and settlement amounts incurred by any such person in any action or proceeding,
including any action by or in the right of the Registrant, arising out of such
person&#146;s services as a director or officer of the Registrant.</p>

<p><b>&nbsp;</p>

<p align="justify">Item 7</b>. <u>Exemption From Registration Claimed</u></p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Not
Applicable.</p>

<p><b>&nbsp;</p>

<p align="justify">Item 8</b>. <u>Exhibits</u></p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
4.1(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Restated Certificate of
Incorporation of Registrant</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
4.2(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Restated Bylaws of Registrant</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
4.3(3) &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Rights Agreement</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
5.1&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Opinion
of Wilson, Sonsini, Goodrich &amp; Rosati, Professional Corporation, as to legality of
securities being registered<br>
<br>
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 10.1(4)
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 1999 Stock Plan</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
10.2&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;1999
Employee Stock Purchase Plan, as amended and restated.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 23.1
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Consent of KPMG LLP,
independent registered public accountants</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 23.2
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Consent of Counsel
(contained in Exhibit 5.1).</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 24.1
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Power of Attorney (see
Page II-5).<br>
<u>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
</u></p>

<p align="justify">(1) Exhibit 4.1 is incorporated by reference to Exhibit 3.1(c) filed
with the Registrant&#146;s Registration Statement on Form S-1, No. 333-86821.</p>

<p align="justify">(2) Exhibit 4.2 is incorporated by reference to Exhibit 3.2(b) filed
with the Registrant&#146;s Registration Statement on Form S-1, No. 333-86821.</p>

<p>(3) Exhibit 4.3 incorporated by reference to Exhibit 4.1 of the Registrant's
Registration Statement on Form 8-A, filed with the SEC on June 28, 2005.<b></p>

<p></b>(4) Exhibit 10.1 is incorporated by reference to Exhibit 10.5 filed with the
Registrant&#146;s Registration Statement on Form S-1, No. 333-86821.<b></p>

<p>&nbsp;</p>

<p align="justify">Item 9</b>. <u>UNDERTAKINGS</u></p>

<p align="justify">(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The undersigned
Registrant hereby undertakes:</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (1)
To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement: </p>

<blockquote>
  <blockquote>
    <p align="justify">(i) To include any prospectus required by Section 10(a)(3) of the
    Securities Act; </p>
    <p align="justify">(ii) To reflect in the prospectus any facts or events arising after the
    effective date of the 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 the registration statement; and </p>
    <p align="justify">(iii) To include any material information with respect to the plan of
    distribution not previously disclosed in the registration statement or any material change
    to such information in the registration statement.</p>
  </blockquote>
</blockquote>

<p align="justify">Provided, however, that the undertakings set forth in clauses (i) and
(ii) above shall not apply if the information required to be included in a post-effective
amendment by these clauses is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this registration statement.</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (2)
That, for the purpose of determining any liability under the Securities 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;</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (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 offering.</p>

<p align="justify">(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The undersigned
Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrant&#146;s annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan&#146;s annual report under Section 15(d) of the Exchange Act) that
is incorporated by reference in the 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.
</p>

<p align="justify">(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Insofar as
indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities
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 Securities Act and will
be governed by the final adjudication of such issue.</p>

<p><b>&nbsp;</p>

<hr>

<p align="center">SIGNATURES</b></p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant,
Rudolph Technologies, Inc., a corporation organized and existing under the laws of the
State of Delaware, 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
Flanders, State of New Jersey, on this 17th day of November, 2005.</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
RUDOLPH TECHNOLOGIES, INC.</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
By:<u> &nbsp;&nbsp; /s/ <font face="Book Antiqua">Paul F. McLaughlin</font> </u><br>
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp; </font><font size="2"><strong>&nbsp;&nbsp; Paul F. McLaughlin,<br>
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Chairman and Chief Executive Officer</strong></font><font size="3"></p>

<p><b>&nbsp;</p>

<p align="center">POWER OF ATTORNEY</b></p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Paul F. McLaughlin and Steven R. Roth, jointly and severally, his or her
attorneys-in-fact, each with the power of substitution, for him or her in any and all
capacities, to sign any amendments to this Registration Statement on Form S-8, and to file
the same, with exhibits thereto and other documents in connection therewith, with the
Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or
his substitute or substitutes, may do or cause to be done by virtue hereof.</p>

<p align="justify">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates indicated:</font></p>
<div align="center"><center>

<table height="882" cellSpacing="0" cellPadding="8" width="650" border="0">
  <tr>
    <td width="33%" height="17"><p align="center"><u><font size="2"><b>Signature</b></font></u></td>
    <td width="38%" height="17"><p align="center"><u><font size="2"><b>Title</b></font></u></td>
    <td width="29%" height="17"><p align="center"><u><font size="2"><b>Date</b></font></u></td>
  </tr>
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) 1px solid" vAlign="bottom" width="33%" height="31"><font
    size="3">/s/ <font face="Book Antiqua">Paul F. McLaughlin</font></font></td>
    <td width="38%" height="83" rowSpan="2"><font size="3">Chairman and Chief Executive
    Officer (Principal Executive Officer)</font> <p>&nbsp;</td>
    <td width="29%" height="83" rowSpan="2"><font size="3">November 17, 2005</font> <p>&nbsp;</td>
  </tr>
  <tr>
    <td vAlign="top" width="33%" height="36"><strong><font size="2">Paul F. McLaughlin</font><font
    size="3"><br>
    &nbsp; </font></strong></td>
  </tr>
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) 1px solid" vAlign="top" width="33%" height="22"><font
    size="3">/s/ <font face="Book Antiqua">Steven R. Roth</font></font></td>
    <td width="38%" height="74" rowSpan="2"><font size="3">Senior Vice President &amp; Chief
    Financial Officer (Principal Financial and Accounting Officer)</font></td>
    <td width="29%" height="74" rowSpan="2"><font size="3">November 17, 2005</font> <p>&nbsp;</td>
  </tr>
  <tr>
    <td vAlign="top" width="33%" height="36"><font size="2"><strong>Steven R. Roth</strong></font><font
    size="3"><br>
    &nbsp; </font></td>
  </tr>
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) 1px solid" vAlign="top" width="33%" height="22"><font
    size="3">/s/ <font face="Book Antiqua">David Belluck</font></font></td>
    <td width="38%" height="74" rowSpan="2"><font size="3">Director </font><p>&nbsp;</td>
    <td width="29%" height="74" rowSpan="2"><font size="3">November 17, 2005</font> <p>&nbsp;</td>
  </tr>
  <tr>
    <td vAlign="bottom" width="33%" height="36"><font size="2"><strong>David Belluck</strong></font><font
    size="3"><br>
    &nbsp; </font></td>
  </tr>
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) 1px solid" width="33%" height="22"><font size="3">/s/
    <font face="Book Antiqua">Daniel H. Berry</font></font></td>
    <td width="38%" height="74" rowSpan="2"><font size="3">Director </font><p>&nbsp;</td>
    <td width="29%" height="74" rowSpan="2"><font size="3">November 17, 2005</font> <p>&nbsp;</td>
  </tr>
  <tr>
    <td vAlign="top" width="33%" height="36"><font size="2"><strong>Daniel H. Berry</strong></font><font
    size="3"><br>
    &nbsp; </font></td>
  </tr>
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) 1px solid" width="33%" height="22"><font size="3">/s/
    <font face="Book Antiqua">Paul Craig</font></font></td>
    <td width="38%" height="74" rowSpan="2"><font size="3">Director </font><p>&nbsp;</td>
    <td width="29%" height="74" rowSpan="2"><font size="3">November 17, 2005</font> <p>&nbsp;</td>
  </tr>
  <tr>
    <td width="33%" height="36"><font size="2"><strong>Paul Craig</strong></font><font
    size="3"><br>
    &nbsp; </font></td>
  </tr>
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) 1px solid" width="33%" height="22"><font size="3">/s/<font
    face="Book Antiqua"> Thomas G. Greig</font></font></td>
    <td width="38%" height="74" rowSpan="2"><font size="3">Director </font><p>&nbsp;</td>
    <td width="29%" height="74" rowSpan="2"><font size="3">November 17, 2005</font> <p>&nbsp;</td>
  </tr>
  <tr>
    <td width="33%" height="36"><font size="2"><strong>Thomas G. Greig</strong></font><font
    size="3"><br>
    &nbsp; </font></td>
  </tr>
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) 1px solid" width="33%" height="21"><font size="3">/s/
    </font><font face="Book Antiqua" size="3">Carl E. Ring, Jr.</font>&nbsp;&nbsp;&nbsp; </td>
    <td width="38%" height="73" rowSpan="2"><font size="3">Director </font><p>&nbsp;</td>
    <td width="29%" height="73" rowSpan="2"><font size="3">November 17, 2005</font> <p>&nbsp;</td>
  </tr>
  <tr>
    <td width="33%" height="36"><font size="2"><strong>Carl E. Ring, Jr.</strong></font><font
    size="3"><br>
    &nbsp; </font></td>
  </tr>
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) 1px solid" width="33%" height="20"><font size="3">/s/
    <font face="Book Antiqua">Richard F. Spanier</font></font></td>
    <td width="38%" height="72" rowSpan="2"><font size="3">Director </font><p>&nbsp;</td>
    <td width="29%" height="72" rowSpan="2"><font size="3">November 17, 2005</font> <p>&nbsp;</td>
  </tr>
  <tr>
    <td width="33%" height="36"><font size="2"><strong>Richard F. Spanier</strong></font><font
    size="3"><br>
    &nbsp; </font></td>
  </tr>
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) 1px solid" width="33%" height="22"><font size="3">/s/
    <font face="Book Antiqua">Aubrey C. Tobey</font></font></td>
    <td width="38%" height="70" rowSpan="2"><font size="3">Director </font><p>&nbsp;</td>
    <td width="29%" height="70" rowSpan="2"><font size="3">November 17, 2005</font> <p>&nbsp;</td>
  </tr>
  <tr>
    <td width="33%" height="32"><font size="2"><strong>Aubrey C. Tobey<br>
    </strong></font></td>
  </tr>
  <tr>
    <td width="33%" height="21"></td>
    <td width="38%" height="21"></td>
    <td width="29%" height="21"></td>
  </tr>
</table>
</center></div>

<p><font size="3">&nbsp;</p>

<hr>

<p align="center">&nbsp;</p>

<p align="center">&nbsp;</p>

<p align="center">&nbsp;</p>

<p align="center">SECURITIES AND EXCHANGE COMMISSION</p>

<p align="center">Washington, D.C. 20549</p>

<p align="center">&nbsp;</p>

<p align="center">&nbsp;</p>

<p align="center">EXHIBITS</p>

<p align="center">&nbsp;</p>

<p align="center">Registration Statement on Form S-8</p>

<p align="center">RUDOLPH TECHNOLOGIES, INC.</p>

<p align="center">November 17, 2005</p>

<p><b>&nbsp;</p>

<p>&nbsp;</p>

<p>&nbsp;</p>

<hr>

<p align="center">INDEX TO EXHIBITS</b></p>

<p align="justify"></font>&nbsp;</p>
<div align="center"><center>

<table cellSpacing="0" cellPadding="8" width="570" border="0">
  <tr>
    <td style="BORDER-BOTTOM: rgb(0,0,0) 1px solid" width="68"><font size="3"><b>Exhibit
    Number</b></font></td>
    <td width="12"></td>
    <td style="BORDER-BOTTOM: rgb(0,0,0) 1px solid" width="442"></td>
  </tr>
  <tr>
    <td width="68"><font size="3">4.1(1) </font></td>
    <td width="12"></td>
    <td width="442"><font size="3">Restated Certificate of Incorporation of Registrant </font></td>
  </tr>
  <tr>
    <td width="68"><font size="3">4.2(2)</font></td>
    <td width="12"></td>
    <td width="442"><font size="3">Restated Bylaws of Registrant</font></td>
  </tr>
  <tr>
    <td width="68"><font size="3">4.3(3)</font></td>
    <td width="12"></td>
    <td width="442"><font size="3">Rights Agreement</font></td>
  </tr>
  <tr>
    <td width="68"><font size="3">5.1<br>
    &nbsp; </font></td>
    <td width="12"></td>
    <td width="442"><font size="3">Opinion of Wilson, Sonsini, Goodrich &amp; Rosati,
    Professional Corporation, as to legality of securities being registered</font></td>
  </tr>
  <tr>
    <td width="68"><font size="3">10.1(4)</font></td>
    <td width="12"></td>
    <td width="442"><font size="3">1999 Stock Plan</font></td>
  </tr>
  <tr>
    <td width="68"><font size="3">10.2</font></td>
    <td width="12"></td>
    <td width="442"><font size="3">1999 Employee Stock Purchase Plan, as amended and restated.</font></td>
  </tr>
  <tr>
    <td width="68"><font size="3">23.1</font></td>
    <td width="12"></td>
    <td width="442"><font size="3">Consent of KPMG LLP, independent registered public
    accountants</font></td>
  </tr>
  <tr>
    <td width="68"><font size="3">23.2</font></td>
    <td width="12"></td>
    <td width="442"><font size="3">Consent of Counsel (contained in Exhibit 5.1)</font></td>
  </tr>
  <tr>
    <td width="68"><font size="3">24.1</font></td>
    <td width="12"></td>
    <td width="442"><font size="3">Power of Attorney (see Page II-5)</font></td>
  </tr>
</table>
</center></div><font size="3">

<hr color="#000000" noShade>

<p align="justify">(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Exhibit 4.1 is
incorporated by reference to Exhibit 3.1(c) filed with the Registrant&#146;s Registration
Statement on Form S-1, No. 333-86821.</p>

<p align="justify">(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Exhibit 4.2 is
incorporated by reference to Exhibit 3.2(b) filed with the Registrant&#146;s Registration
Statement on Form S-1, No. 333-86821.</p>

<p>(3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Exhibit 4.3 incorporated by reference to
Exhibit 4.1 of the Registrant's Registration Statement on Form 8-A, filed with the SEC on
June 28, 2005.<b></p>

<p></b>(4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Exhibit 10.1 is incorporated by
reference to Exhibit 10.5 filed with the Registrant&#146;s Registration Statement on Form
S-1, No. 333-86821.<b></p>
</b>

<p><b>&nbsp;</p>

<p>&nbsp;</p>

<p>&nbsp;</p>

<hr>

<p align="right">EXHIBIT 5.1</b></p>

<p>November 16, 2005</p>

<p>Rudolph Technologies, Inc.&nbsp;<br>
One Rudolph Road&nbsp;<br>
Flanders, NJ 07836&nbsp;<br>
<br>
Re: Registration Statement on Form S-8&nbsp;<br>
<br>
Ladies and Gentlemen:&nbsp;<br>
<br>
We have examined the Registration Statement on Form S-8 to be filed by Rudolph
Technologies, Inc. (the &quot;Company&quot;) with the Securities and Exchange Commission
on or about November 16, 2005 (the &quot;Registration Statement&quot;) in connection with
the registration under the Securities Act of 1933, as amended, of 1,269,564 shares of
Common Stock (the &quot;Shares&quot;) reserved for issuance under the 1999 Stock Plan and
1999 Employee Stock Purchase Plan (collectively, the &quot;Plans&quot;). As your counsel,
we have examined the proceedings taken and are familiar with the proceedings proposed to
be taken by you in connection with said issuance and sale of the Shares pursuant to the
Plans.&nbsp;<br>
<br>
It is our opinion that, upon completion of the proceedings being taken or contemplated by
us to be taken prior to the issuance and sale of the Shares pursuant to the Plans, and
upon completion of the proceedings being taken in order to permit such transaction to be
carried out in accordance with the securities laws of the various states where required,
the Shares, when issued and sold in the manner referred to in the Plans and the
Registration Statement, will be legally and validly issued, fully-paid and
non-assessable.&nbsp;<br>
<br>
We consent to the use of this opinion as an exhibit to the Registration Statement, and
further consent to the use of our name wherever appearing in the Registration Statement,
including the prospectus constituting a part thereof, and any amendments thereto.&nbsp;</p>

<p>Very truly yours,</p>

<p>&nbsp;</p>

<p>WILSON SONSINI GOODRICH &amp; ROSATI&nbsp;<br>
Professional Corporation</p>

<p>/s/ Wilson Sonsini Goodrich &amp; Rosati, P.C.</p>

<p>&nbsp;</p>

<p>&nbsp;</p>

<p>&nbsp;</p>

<p>&nbsp;</p>

<p>&nbsp;</p>

<p>&nbsp;</p>

<hr>

<p align="right"><strong>EXHIBIT 10.2</strong></p>

<p align="center"><strong>RUDOLPH TECHNOLOGIES, INC. <br>
1999 EMPLOYEE STOCK PURCHASE PLAN </strong><br>
(as amended and restated effective on May 1, 2005) </p>

<p>The following constitute the provisions of the 1999 Employee Stock Purchase Plan of
Rudolph Technologies, Inc. </p>

<p>1. <u>Purpose</u>. The purpose of the Plan is to provide employees of the Company and
its Designated Subsidiaries with an opportunity to purchase Common Stock of the Company
through accumulated payroll deductions. It is the intention of the Company to have the
Plan qualify as an &quot;Employee Stock Purchase Plan&quot; under Section 423 of the
Internal Revenue Code of 1986, as amended. The provisions of the Plan, accordingly, shall
be construed so as to extend and limit participation in a manner consistent with the
requirements of that section of the Code. </p>

<p>2. <u>Definitions</u>. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (a) &quot;<u>Board</u>&quot; shall mean the
Board of Directors of the Company. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b) &quot;<u>Code</u>&quot; shall mean the
Internal Revenue Code of 1986, as amended. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (c) &quot;<u>Common Stock</u>&quot; shall
mean the common stock of the Company. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (d) &quot;<u>Company</u>&quot; shall mean
Rudolph Technologies, Inc. and any Designated Subsidiary of the Company. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (e) &quot;<u>Compensation</u>&quot; shall
mean all salary, wages (including amounts elected to be deferred by the employee, that
would otherwise have been paid, under a cash or deferred arrangement established by the
Company), overtime pay, commissions, bonuses and any other remuneration paid directly to
the employee, but excluding profit sharing, the cost of employee benefits paid for by the
Company, education or tuition reimbursements, imputed income arising under any Company
group insurance or benefit program, traveling expenses, business and moving expense
reimbursements, income recognized in connection with stock options, contributions made by
the Company under any employee benefit plan, and similar items of compensation. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (f) &quot;<u>Designated Subsidiary</u>&quot;
shall mean any Subsidiary that has been designated by the Board from time to time in its
sole discretion as eligible to participate in the Plan. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (g) &quot;<u>Employee</u>&quot; shall mean
any individual who is an Employee of the Company for tax purposes whose customary
employment with the Company is at least twenty (20) hours per week and more than five (5)
months in any calendar year. For purposes of the Plan, the employment relationship shall
be treated as continuing intact while the individual is on sick leave or other leave of
absence approved by the Company. Where the period of leave exceeds 90 days and the
individual's right to reemployment is not guaranteed either by statute or by contract, the
employment relationship shall be deemed to have terminated on the 91st day of such leave. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (h) &quot;<u>Enrollment Date</u>&quot; shall
mean the first Trading Day of each Offering Period. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (i) &quot;<u>Exercise Date</u>&quot; shall
mean the last Trading Day of each Offering Period. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (j) &quot;<u>Fair Market Value</u>&quot;
shall mean, as of any date, the value of Common Stock determined as follows: </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(i) If the Common Stock is listed on any established stock exchange or a national market
system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap
Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price
for such stock (or the closing bid, if no sales were reported) as quoted on such exchange
or system on the date of determination, as reported in The Wall Street Journal or such
other source as the Board deems reliable; </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling
prices are not reported, its Fair Market Value shall be the mean of the closing bid and
asked prices for the Common Stock on the date of determination, as reported in The Wall
Street Journal or such other source as the Board deems reliable; or </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(iii) In the absence of an established market for the Common Stock, the Fair Market Value
thereof shall be determined in good faith by the Board. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (k) &quot;<u>Offering Periods</u>&quot;
shall mean the periods of approximately six (6) months during which an option granted
pursuant to the Plan may be exercised, commencing on the first Trading Day on or after May
1st and November 1st of each year and terminating on the last Trading Day in the periods
ending six months later. The duration and timing of Offering Periods may be changed
pursuant to Section 4 of this Plan. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (l) &quot;<u>Plan</u>&quot; shall mean this
1999 Employee Stock Purchase Plan. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (m) &quot;<u>Purchase Price</u>&quot; shall
mean 95% of the Fair Market Value of a share of Common Stock on the Exercise Date;
provided however, that the Purchase Price may be adjusted by the Board pursuant to Section
20. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (n) &quot;<u>Reserves</u>&quot; shall mean
the number of shares of Common Stock covered by each option under the Plan which have not
yet been exercised and the number of shares of Common Stock which have been authorized for
issuance under the Plan but not yet placed under option. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (o) &quot;<u>Subsidiary</u>&quot; shall mean
a corporation, domestic or foreign, of which not less than 50% of the voting shares are
held by the Company or a Subsidiary, whether or not such corporation now exists or is
hereafter organized or acquired by the Company or a Subsidiary. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (p) &quot;<u>Trading Day</u>&quot; shall
mean a day on which national stock exchanges and the Nasdaq System are open for trading. </p>

<p>3. <u>Eligibility</u>. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (a) Any Employee who shall be employed by
the Company on a given Enrollment Date shall be eligible to participate in the Plan. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b) Any provisions of the Plan to the
contrary notwithstanding, no Employee shall be granted an option under the Plan: </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(i) to the extent that, immediately after the grant, such Employee (or any other person
whose stock would be attributed to such Employee pursuant to Section 424(d) of the Code)
would own capital stock of the Company and/or hold outstanding options to purchase such
stock possessing five percent (5%) or more of the total combined voting power or value of
all classes of the capital stock of the Company or of any Subsidiary, or </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(ii) to the extent that his or her rights to purchase stock under all employee stock
purchase plans of the Company and its Subsidiaries accrues at a rate which exceeds
twenty-five Thousand Dollars ($25,000) worth of stock (determined at the fair market value
of the shares at the time such option is granted) for each calendar year in which such
option is outstanding at any time. </p>

<p>4. <u>Offering Periods</u>. The Plan shall be implemented by consecutive Offering
Periods with a new Offering Period commencing on the first Trading Day on or after May 1st
and November 1st each year, or on such other date as the Board shall determine, and
continuing thereafter until terminated in accordance with Section 20 hereof. The Board
shall have the power to change the duration of Offering Periods (including the
commencement dates thereof) with respect to future offerings without shareholder approval
if such change is announced prior to the scheduled beginning of the first Offering Period
to be affected thereafter. </p>

<p>5. <u>Participation</u>. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (a) An eligible Employee may become a
participant in the Plan by completing a subscription agreement authorizing payroll
deductions in the form of Exhibit A to this Plan and filing it with the Company's payroll
office prior to the applicable Enrollment Date. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b) Payroll deductions for a participant
shall commence on the first payroll following the Enrollment Date and shall end on the
last payroll in the Offering Period to which such authorization is applicable, unless
sooner terminated by the participant as provided in Section 10 hereof. </p>

<p>6. <u>Payroll Deductions</u>. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (a) At the time a participant files his or
her subscription agreement, he or she shall elect to have payroll deductions made on each
pay day during the Offering Period in an amount not exceeding fifteen percent (15%) of the
Compensation which he or she receives on each pay day during the Offering Period. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b) All payroll deductions made for a
participant shall be credited to his or her account under the Plan and shall be withheld
in whole percentages only. A participant may not make any additional payments into such
account. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (c) A participant may discontinue his or her
participation in the Plan as provided in Section 10 hereof, or may increase or decrease
the rate of his or her payroll deductions during the Offering Period by completing or
filing with the Company a new subscription agreement authorizing a change in payroll
deduction rate. The Board may, in its discretion, limit the number of participation rate
changes during any Offering Period. The change in rate shall be effective with the first
full payroll period following five (5) business days after the Company's receipt of the
new subscription agreement unless the Company elects to process a given change in
participation more quickly. A participant's subscription agreement shall remain in effect
for successive Offering Periods unless terminated as provided in Section 10 hereof. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (d) Notwithstanding the foregoing, to the
extent necessary to comply with Section 423(b)(8) of the Code and Section 3(b) hereof, a
participant's payroll deductions may be decreased to zero percent (0%) at any time during
an Offering Period. Payroll deductions shall recommence at the rate provided in such
participant's subscription agreement at the beginning of the first Offering Period which
is scheduled to end in the following calendar year, unless terminated by the participant
as provided in Section 10 hereof. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (e) At the time the option is exercised, in
whole or in part, or at the time some or all of the Company's Common Stock issued under
the Plan is disposed of, the participant must make adequate provision for the Company's
federal, state, or other tax withholding obligations, if any, which arise upon the
exercise of the option or the disposition of the Common Stock. At any time, the Company
may, but shall not be obligated to, withhold from the participant's compensation the
amount necessary for the Company to meet applicable withholding obligations, including any
withholding required to make available to the Company any tax deductions or benefits
attributable to sale or early disposition of Common Stock by the Employee. </p>

<p>7. <u>Grant of Option</u>. On the Enrollment Date of each Offering Period, each
eligible Employee participating in such Offering Period shall be granted an option to
purchase on each Exercise Date during such Offering Period (at the applicable Purchase
Price) up to a number of shares of the Company's Common Stock determined by dividing such
Employee's payroll deductions accumulated prior to such Exercise Date and retained in the
Participant's account as of the Exercise Date by the applicable Purchase Price; provided
that in no event shall an Employee be permitted to purchase during each Offering Period
more than 3,000 shares of the Company's Common Stock (subject to any adjustment pursuant
to Section 19), and provided further that such purchase shall be subject to the
limitations set forth in Sections 3(b) and 12 hereof. The Board may, for future Offering
Periods, increase or decrease, in its absolute discretion, the maximum number of shares of
the Company's Common Stock an Employee may purchase during such Offering Period. Exercise
of the option shall occur as provided in Section 8 hereof, unless the participant has
withdrawn pursuant to Section 10 hereof. The option shall expire on the last day of the
Offering Period. </p>

<p>8. <u>Exercise of Option</u>. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (a) Unless a participant withdraws from the
Plan as provided in Section 10 hereof, his or her option for the purchase of shares shall
be exercised automatically on the Exercise Date, and the maximum number of full shares
subject to option shall be purchased for such participant at the applicable Purchase Price
with the accumulated payroll deductions in his or her account. No fractional shares shall
be purchased; any payroll deductions accumulated in a participant's account which are not
sufficient to purchase a full share shall be retained in the participant's account for the
subsequent Offering Period, subject to earlier withdrawal by the participant as provided
in Section 10 hereof. Any other monies left over in a participant's account after the
Exercise Date shall be returned to the participant. During a participant's lifetime, a
participant's option to purchase shares hereunder is exercisable only by him or her. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b) If the Board determines that, on a given
Exercise Date, the number of shares with respect to which options are to be exercised may
exceed: </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(i) the number of shares of Common Stock that were available for sale under the Plan on
the Enrollment Date of the applicable Offering Period, or </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(ii) the number of shares available for sale under the Plan on such Exercise Date; </p>

<p>the Board may in its sole discretion (x) provide that the Company shall make a pro rata
allocation of the shares of Common Stock available for purchase on such Enrollment Date or
Exercise Date, as applicable, in as uniform a manner as shall be practicable and as it
shall determine in its sole discretion to be equitable among all participants exercising
options to purchase Common Stock on such Exercise Date, and continue all Offering Periods
then in effect, or (y) provide that the Company shall make a pro rata allocation of the
shares available for purchase on such Enrollment Date or Exercise Date, as applicable, in
as uniform a manner as shall be practicable and as it shall determine in its sole
discretion to be equitable among all participants exercising options to purchase Common
Stock on such Exercise Date, and terminate any or all Offering Periods then in effect
pursuant to Section 20 hereof. The Company may make pro rata allocation of the shares
available on the Enrollment Date of any applicable Offering Period pursuant to the
preceding sentence, notwithstanding any authorization of additional shares for issuance
under the Plan by the Company's shareholders subsequent to such Enrollment Date. </p>

<p>9. <u>Delivery</u>. As promptly as practicable after each Exercise Date on which a
purchase of shares occurs, the Company shall arrange the delivery to each participant, as
appropriate, of a certificate representing the shares purchased upon exercise of his or
her option. </p>

<p>10. <u>Withdrawal</u>. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (a) A participant may withdraw all but not
less than all the payroll deductions credited to his or her account and not yet used to
exercise his or her option under the Plan at any time by giving written notice to the
Company in the form of Exhibit B to this Plan. All of the participant's payroll deductions
credited to his or her account shall be paid to such participant promptly after receipt of
notice of withdrawal and such participant's option for the Offering Period shall be
automatically terminated, and no further payroll deductions for the purchase of shares
shall be made for such Offering Period. If a participant withdraws from an Offering
Period, payroll deductions shall not resume at the beginning of the succeeding Offering
Period unless the participant delivers to the Company a new subscription agreement. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b) A participant's withdrawal from an
Offering Period shall not have any effect upon his or her eligibility to participate in
any similar plan which may hereafter be adopted by the Company or in succeeding Offering
Periods which commence after the termination of the Offering Period from which the
participant withdraws. </p>

<p>11. <u>Termination of Employment</u>. Upon a participant's ceasing to be an Employee,
for any reason, he or she shall be deemed to have elected to withdraw from the Plan and
the payroll deductions credited to such participant's account during the Offering Period
but not yet used to exercise the option shall be returned to such participant or, in the
case of his or her death, to the person or persons entitled thereto under Section 15
hereof, and such participant's option shall be automatically terminated. The preceding
sentence notwithstanding, a participant who receives payment in lieu of notice of
termination of employment shall be treated as continuing to be an Employee for the
participant's customary number of hours per week of employment during the period in which
the participant is subject to such payment in lieu of notice. </p>

<p>12. <u>Interest</u>. No interest shall accrue on the payroll deductions of a
participant in the Plan. </p>

<p>13. <u>Stock</u>. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (a) Subject to adjustment upon changes in
capitalization of the Company as provided in Section 19 hereof, the maximum number of
shares of the Company's Common Stock which shall be made available for sale under the Plan
shall be 300,000 shares, plus an annual increase to be added on the first day of the
Company's fiscal year, beginning in 2001, equal to the lesser of: </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(i) 300,000 shares of Common Stock, </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(ii) two percent (2%) of the outstanding shares of Common Stock on such date, or </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(iii) a lesser amount determined by the Board. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b) The participant shall have no interest
or voting right in shares covered by his option until such option has been exercised. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (c) Shares to be delivered to a participant
under the Plan shall be registered in the name of the participant or in the name of the
participant and his or her spouse. </p>

<p>14. <u>Administration</u>. The Plan shall be administered by the Board or a committee
of members of the Board appointed by the Board. The Board or its committee shall have full
and exclusive discretionary authority to construe, interpret and apply the terms of the
Plan, to determine eligibility and to adjudicate all disputed claims filed under the Plan.
Every finding, decision and determination made by the Board or its committee shall, to the
full extent permitted by law, be final and binding upon all parties. </p>

<p>15. <u>Designation of Beneficiary</u>. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (a) A participant may file a written
designation of a beneficiary who is to receive any shares and cash, if any, from the
participant's account under the Plan in the event of such participant's death subsequent
to an Exercise Date on which the option is exercised but prior to delivery to such
participant of such shares and cash. In addition, a participant may file a written
designation of a beneficiary who is to receive any cash from the participant's account
under the Plan in the event of such participant's death prior to exercise of the option.
If a participant is married and the designated beneficiary is not the spouse, spousal
consent shall be required for such designation to be effective. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b) Such designation of beneficiary may be
changed by the participant at any time by written notice. In the event of the death of a
participant and in the absence of a beneficiary validly designated under the Plan who is
living at the time of such participant's death, the Company shall deliver such shares
and/or cash to the executor or administrator of the estate of the participant, or if no
such executor or administrator has been appointed (to the knowledge of the Company), the
Company, in its discretion, may deliver such shares and/or cash to the spouse or to any
one or more dependents or relatives of the participant, or if no spouse, dependent or
relative is known to the Company, then to such other person as the Company may designate. </p>

<p>16. <u>Transferability</u>. Neither payroll deductions credited to a participant's
account nor any rights with regard to the exercise of an option or to receive shares under
the Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other
than by will, the laws of descent and distribution or as provided in Section 15 hereof) by
the participant. Any such attempt at assignment, transfer, pledge or other disposition
shall be without effect, except that the Company may treat such act as an election to
withdraw funds from an Offering Period in accordance with Section 10 hereof. </p>

<p>17. <u>Use of Funds</u>. All payroll deductions received or held by the Company under
the Plan may be used by the Company for any corporate purpose, and the Company shall not
be obligated to segregate such payroll deductions. </p>

<p>18. <u>Reports</u>. Individual accounts shall be maintained for each participant in the
Plan. Statements of account shall be given to participating Employees at least annually,
which statements shall set forth the amounts of payroll deductions, the Purchase Price,
the number of shares purchased and the remaining cash balance, if any. </p>

<p>19. <u>Adjustments Upon Changes in Capitalization, Dissolution, Liquidation, Merger or
Asset Sale</u>. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (a) Changes in Capitalization. Subject to
any required action by the shareholders of the Company, the Reserves, the maximum number
of shares each participant may purchase each Offering Period (pursuant to Section 7), the
number of shares that may be added annually to the shares reserved under the Plan
(pursuant to Section 13(a)(i)), as well as the price per share and the number of shares of
Common Stock covered by each option under the Plan which has not yet been exercised shall
be proportionately adjusted for any increase or decrease in the number of issued shares of
Common Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or decrease in
the number of shares of Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been &quot;effected without receipt of consideration.&quot;
Such adjustment shall be made by the Board, whose determination in that respect shall be
final, binding and conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares of Common Stock subject to an option. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b) Dissolution or Liquidation. In the event
of the proposed dissolution or liquidation of the Company, the Offering Period then in
progress shall be shortened by setting a new Exercise Date (the &quot;New Exercise
Date&quot;), and shall terminate immediately prior to the consummation of such proposed
dissolution or liquidation, unless provided otherwise by the Board. The Board shall notify
each participant in writing, at least ten (10) business days prior to the New Exercise
Date, that the Exercise Date for the participant's option has been changed to the New
Exercise Date and that the participant's option shall be exercised automatically on the
New Exercise Date, unless prior to such date the participant has withdrawn from the
Offering Period as provided in Section 10 hereof. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (c) Merger or Asset Sale. In the event of a
proposed sale of all or substantially all of the assets of the Company, or the merger of
the Company with or into another corporation, each outstanding option shall be assumed or
an equivalent option substituted by the successor corporation or a Parent or Subsidiary of
the successor corporation. In the event that the successor corporation refuses to assume
or substitute for the option, any Offering Periods then in progress shall be shortened by
setting a new Exercise Date (the &quot;New Exercise Date&quot;) and any Offering Periods
then in progress shall end on the New Exercise Date. The New Exercise Date shall be before
the date of the Company's proposed sale or merger. The Board shall notify each participant
in writing, at least ten (10) business days prior to the New Exercise Date, that the
Exercise Date for the participant's option has been changed to the New Exercise Date and
that the participant's option shall be exercised automatically on the New Exercise Date,
unless prior to such date the participant has withdrawn from the Offering Period as
provided in Section 10 hereof. </p>

<p>20. <u>Amendment or Termination</u>. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (a) The Board of Directors of the Company
may at any time and for any reason terminate or amend the Plan. Except as provided in
Section 19 hereof, no such termination can affect options previously granted, provided
that an Offering Period may be terminated by the Board of Directors on any Exercise Date
if the Board determines that the termination of the Offering Period or the Plan is in the
best interests of the Company and its shareholders. Except as provided in Section 19 and
this Section 20 hereof, no amendment may make any change in any option theretofore granted
which adversely affects the rights of any participant. To the extent necessary to comply
with Section 423 of the Code (or any successor rule or provision or any other applicable
law, regulation or stock exchange rule), the Company shall obtain shareholder approval in
such a manner and to such a degree as required. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (b) Without shareholder consent and without
regard to whether any participant rights may be considered to have been &quot;adversely
affected,&quot; the Board (or its committee) shall be entitled to change the Offering
Periods, limit the frequency and/or number of changes in the amount withheld during an
Offering Period, establish the exchange ratio applicable to amounts withheld in a currency
other than U.S. dollars, permit payroll withholding in excess of the amount designated by
a participant in order to adjust for delays or mistakes in the Company's processing of
properly completed withholding elections, establish reasonable waiting and adjustment
periods and/or accounting and crediting procedures to ensure that amounts applied toward
the purchase of Common Stock for each participant properly correspond with amounts
withheld from the participant's Compensation, and establish such other limitations or
procedures as the Board (or its committee) determines in its sole discretion advisable
which are consistent with the Plan. </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; (c) In the event the Board determines that
the ongoing operation of the Plan may result in unfavorable financial accounting
consequences, the Board may, in its discretion and, to the extent necessary or desirable,
modify or amend the Plan to reduce or eliminate such accounting consequence including, but
not limited to: </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(i) altering the Purchase Price for any Offering Period including an Offering Period
underway at the time of the change in Purchase Price; </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(ii) shortening any Offering Period so that Offering Period ends on a new Exercise Date,
including an Offering Period underway at the time of the Board action; and </p>

<p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
(iii) allocating shares. </p>

<p>Such modifications or amendments shall not require stockholder approval or the consent
of any Plan participants. </p>

<p>21. <u>Notices</u>. All notices or other communications by a participant to the Company
under or in connection with the Plan shall be deemed to have been duly given when received
in the form specified by the Company at the location, or by the person, designated by the
Company for the receipt thereof. </p>

<p>22. <u>Conditions Upon Issuance of Shares</u>. Shares shall not be issued with respect
to an option unless the exercise of such option and the issuance and delivery of such
shares pursuant thereto shall comply with all applicable provisions of law, domestic or
foreign, including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may then be
listed, and shall be further subject to the approval of counsel for the Company with
respect to such compliance. </p>

<p>As a condition to the exercise of an option, the Company may require the person
exercising such option to represent and warrant at the time of any such exercise that the
shares are being purchased only for investment and without any present intention to sell
or distribute such shares if, in the opinion of counsel for the Company, such a
representation is required by any of the aforementioned applicable provisions of law. </p>

<p>23. <u>Term of Plan</u>. The Plan shall become effective upon the earlier to occur of
its adoption by the Board or its approval by the stockholders of the Company. The Plan
shall continue in effect for a term of ten (10) years unless sooner terminated under
Section 20 hereof. <b></p>
</b>

<p>&nbsp;</p>

<p><b>&nbsp;</p>

<hr>
</b>

<p><b>&nbsp;</p>

<p align="right">EXHIBIT 23.1</p>

<p align="center"></b>&nbsp;</p>

<p align="center">&nbsp;</p>

<p align="center"></font><strong><font face="Times New Roman" size="3">CONSENT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNT</font><font size="3"><font face="Times New Roman">ING
FIRM</font></strong></p>

<p class="LetterBody" style="TEXT-ALIGN: justify">&nbsp;</p>

<p>&nbsp;</p>

<p>The Board of Directors </p>

<p>Rudolph Technologies, Inc.: </p>

<p>We consent to the use of our reports dated March 7, 2005, with respect to the
consolidated balance sheets of Rudolph Technologies, Inc. as of December 31, 2004 and
2003, and the related consolidated statements of income (loss), stockholders' equity and
comprehensive income (loss), and cash flows for each of the years in the three-year period
ended December 31, 2004, and the related consolidated financial statement schedule,
management's assessment of the effectiveness of internal control over financial reporting
as of December 31, 2004, and the effectiveness of internal control over financial
reporting as of December 31, 2004, incorporated by reference in this Registration
Statement on Form S-8 of Rudolph Technologies, Inc.</p>

<p align="justify">&nbsp;</p>

<p align="justify"><font face="Times New Roman" size="3">/s/ KPMG LLP<br>
</font></p>

<p align="justify"><font face="Times New Roman" size="3">KPMG LLP<br>
Short Hills, New Jersey<br>
</font><font face="Times New Roman">November 17, 2005</font></p>
</font>
</body>
</html>
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Rudolph Technologies, Inc. Form S-8
S-8 1 s8_rtec111705.htm RUDOLPH TECHNOLOGIES, INC. FORM S-8
As filed with the Securities and Exchange Commission on November 17, 2005
Registration No. 333-_____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
RUDOLPH TECHNOLOGIES, INC.
(Exact name of Registrant as specified in
    its charter)
Delaware
22-3531208
(State of Incorporation)
(I.R.S. Employer Identification Number)
One Rudolph Road
Flanders, NJ 07836
(Address of
    principal executive offices)
1999 STOCK PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
PAUL F. McLAUGHLIN
Chairman and Chief Executive Officer
RUDOLPH TECHNOLOGIES, INC.
One Rudolph Road
Flanders, NJ 07836
(973) 691-1300
(Name, address and telephone number of agent for service)
Copies to:
TREVOR J. CHAPLICK, ESQ.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
Two Fountain Square, Reston Town Center
11921 Freedom Drive, Suite 600
Reston, Virginia 20190-5634
(703) 734-3100
CALCULATION OF REGISTRATION FEE
Title
    of Securities to be Registered
Amount
    to be Registered (1)
Proposed
    Maximum Offering Price Per Share
Proposed
    Maximum Aggregate Offering Price
Amount
    of Registration Fee
Common Stock
    $0.001 par value, to be issued under the 1999 Stock Plan
669,564
    (2)
$
    12.30 (3)
$
      8,235,637.20
$
          969.33
Common Stock
    $0.001 par value, to be issued under the 1999 Employee Stock Purchase Plan
600,000
    (4)
$
    12.30 (3)
$
      7,380,000.00
$
         868.63
Total
1,269,564
$
    15,615,637.20
$
      1,837.96
(1) For the sole purpose of calculating the registration
  fee, the number of shares to be registered under this Registration Statement is the number
  of additional shares authorized to be issued under the 1999 Stock Plan and the 1999
  Employee Stock Purchase Plan.  This Registration Statement shall also cover any
  additional shares of Common Stock which become issuable by reason of any stock dividend,
  stock split, recapitalization or other similar transaction effected without the receipt of
  consideration which results in an increase in the number of the outstanding shares of
  Common Stock.
(2) Includes the following automatic annual increases to
  the number of shares of the Registrant's Common Stock reserved for issuance under the
  1999 Stock Plan: (i) 333,224 shares on January 1, 2004, and (ii) 336,340 shares on January
  1, 2005.
(3) Estimated solely for the purpose of determining the
  registration fee pursuant to Rule 457(h) on the basis of the average of the high and low
  sale prices of Common Stock on the Nasdaq National Market on November 14, 2005.
(4) Includes the following automatic annual increases to
  the number of shares of the Registrant's Common Stock reserved for issuance under the
  1999 Employee Stock Purchase Plan: (i) 300,000 shares on January 1, 2004 and (iii) 300,000
  shares on January 1, 2005.
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3
.
Information Incorporated by Reference
The
following documents and information heretofore filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference:
Item 3(a)
The Registrant's Annual
  Report on Form 10-K for the fiscal year ended December 31, 2004, filed on March 15, 2005.
Item 3(b)
The Registrant's
  Quarterly Reports on Form 10-Q for the quarters ended March 31, 2005, June 30, 2005 and
  September 30, 2005, respectively.
Item 3(c)
The Registrant's
  Current Reports on Form 8-K, filed with the Commission subsequent to December 31, 2004.
Item 3(d)
The description of the Common Stock of
  the Registrant contained in the Registrant's Registration Statement on Form 8-A filed on
  November 5, 1999, pursuant to Section 12 of the Securities Exchange Act of 1934, as
  amended (the "Exchange Act").
All documents subsequently
  filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
  Act, prior to the filing of a post-effective amendment which indicates that all securities
  registered hereby have been sold or which deregisters all securities then remaining
  unsold, shall be deemed to be incorporated by reference in this Registration Statement and
  to be part hereof from the date of filing such documents.
Item 4
.
Description of Securities
Not
Applicable.
Item 5
.
Interests of Named Experts and Counsel
Not
Applicable.
Item 6
.
Indemnification of Directors and Officers
The
Registrant's certificate of incorporation contains certain provisions permitted under
the Delaware General Corporation Law relating to the liability of directors. These
provisions eliminate a director's personal liability for monetary damages resulting
from a breach of fiduciary duty, except in certain circumstances involving certain
wrongful acts, including: (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments
of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of
the Delaware General Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit.
The
Registrant's Bylaws provide that the Registrant shall indemnify its directors and
officers and may indemnify its employees and other agents to the fullest extent permitted
by law. The Registrant's Bylaws also permit the Registrant to secure insurance on
behalf of any officer, director, employee or other agent for any liability arising out of
his or her actions in such capacity, regardless of whether the Registrant would have the
power to indemnify him or her against such liability under the General Corporation Law of
Delaware.
The
Registrant has entered into agreements to indemnify its directors and officers, in
addition to indemnification provided for in the Registrant's Bylaws. Subject to
certain conditions, these agreements, among other things, indemnify the Registrant's
directors and officers for certain expenses (including attorney's fees), judgments,
fines and settlement amounts incurred by any such person in any action or proceeding,
including any action by or in the right of the Registrant, arising out of such
person's services as a director or officer of the Registrant.
Item 7
.
Exemption From Registration Claimed
Not
Applicable.
Item 8
.
Exhibits
4.1(1)          Restated Certificate of
Incorporation of Registrant
4.2(2)          Restated Bylaws of Registrant
4.3(3)          Rights Agreement
5.1              Opinion
of Wilson, Sonsini, Goodrich & Rosati, Professional Corporation, as to legality of
securities being registered
10.1(4)
       1999 Stock Plan
10.2             1999
Employee Stock Purchase Plan, as amended and restated.
23.1
            Consent of KPMG LLP,
independent registered public accountants
23.2
            Consent of Counsel
(contained in Exhibit 5.1).
24.1
            Power of Attorney (see
Page II-5).
(1) Exhibit 4.1 is incorporated by reference to Exhibit 3.1(c) filed
with the Registrant's Registration Statement on Form S-1, No. 333-86821.
(2) Exhibit 4.2 is incorporated by reference to Exhibit 3.2(b) filed
with the Registrant's Registration Statement on Form S-1, No. 333-86821.
(3) Exhibit 4.3 incorporated by reference to Exhibit 4.1 of the Registrant's
Registration Statement on Form 8-A, filed with the SEC on June 28, 2005.
(4) Exhibit 10.1 is incorporated by reference to Exhibit 10.5 filed with the
Registrant's Registration Statement on Form S-1, No. 333-86821.
Item 9
.
UNDERTAKINGS
(a)         The undersigned
Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
    Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
    effective date of the 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 the registration statement; and
(iii) To include any material information with respect to the plan of
    distribution not previously disclosed in the registration statement or any material change
    to such information in the registration statement.
Provided, however, that the undertakings set forth in clauses (i) and
(ii) above shall not apply if the information required to be included in a post-effective
amendment by these clauses is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this registration statement.
(2)
That, for the purpose of determining any liability under the Securities 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;
(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 offering.
(b)         The undersigned
Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report under Section 15(d) of the Exchange Act) that
is incorporated by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)         Insofar as
indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities
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 Securities 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,
Rudolph Technologies, Inc., a corporation organized and existing under the laws of the
State of Delaware, 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
Flanders, State of New Jersey, on this 17th day of November, 2005.
RUDOLPH TECHNOLOGIES, INC.
By:
/s/
Paul F. McLaughlin
Paul F. McLaughlin,
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Paul F. McLaughlin and Steven R. Roth, jointly and severally, his or her
attorneys-in-fact, each with the power of substitution, for him or her in any and all
capacities, to sign any amendments to this Registration Statement on Form S-8, and to file
the same, with exhibits thereto and other documents in connection therewith, with the
Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or
his substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates indicated:
Signature
Title
Date
/s/
Paul F. McLaughlin
Chairman and Chief Executive
    Officer (Principal Executive Officer)
November 17, 2005
Paul F. McLaughlin
/s/
Steven R. Roth
Senior Vice President & Chief
    Financial Officer (Principal Financial and Accounting Officer)
November 17, 2005
Steven R. Roth
/s/
David Belluck
Director
November 17, 2005
David Belluck
/s/
Daniel H. Berry
Director
November 17, 2005
Daniel H. Berry
/s/
Paul Craig
Director
November 17, 2005
Paul Craig
/s/
Thomas G. Greig
Director
November 17, 2005
Thomas G. Greig
/s/
Carl E. Ring, Jr.
Director
November 17, 2005
Carl E. Ring, Jr.
/s/
Richard F. Spanier
Director
November 17, 2005
Richard F. Spanier
/s/
Aubrey C. Tobey
Director
November 17, 2005
Aubrey C. Tobey
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
Registration Statement on Form S-8
RUDOLPH TECHNOLOGIES, INC.
November 17, 2005
INDEX TO EXHIBITS
Exhibit
    Number
4.1(1)
Restated Certificate of Incorporation of Registrant
4.2(2)
Restated Bylaws of Registrant
4.3(3)
Rights Agreement
5.1
Opinion of Wilson, Sonsini, Goodrich & Rosati,
    Professional Corporation, as to legality of securities being registered
10.1(4)
1999 Stock Plan
10.2
1999 Employee Stock Purchase Plan, as amended and restated.
23.1
Consent of KPMG LLP, independent registered public
    accountants
23.2
Consent of Counsel (contained in Exhibit 5.1)
24.1
Power of Attorney (see Page II-5)
(1)        Exhibit 4.1 is
incorporated by reference to Exhibit 3.1(c) filed with the Registrant's Registration
Statement on Form S-1, No. 333-86821.
(2)        Exhibit 4.2 is
incorporated by reference to Exhibit 3.2(b) filed with the Registrant's Registration
Statement on Form S-1, No. 333-86821.
(3)        Exhibit 4.3 incorporated by reference to
Exhibit 4.1 of the Registrant's Registration Statement on Form 8-A, filed with the SEC on
June 28, 2005.
(4)        Exhibit 10.1 is incorporated by
reference to Exhibit 10.5 filed with the Registrant's Registration Statement on Form
S-1, No. 333-86821.
EXHIBIT 5.1
November 16, 2005
Rudolph Technologies, Inc.
One Rudolph Road
Flanders, NJ 07836
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by Rudolph
Technologies, Inc. (the "Company") with the Securities and Exchange Commission
on or about November 16, 2005 (the "Registration Statement") in connection with
the registration under the Securities Act of 1933, as amended, of 1,269,564 shares of
Common Stock (the "Shares") reserved for issuance under the 1999 Stock Plan and
1999 Employee Stock Purchase Plan (collectively, the "Plans"). As your counsel,
we have examined the proceedings taken and are familiar with the proceedings proposed to
be taken by you in connection with said issuance and sale of the Shares pursuant to the
Plans.
It is our opinion that, upon completion of the proceedings being taken or contemplated by
us to be taken prior to the issuance and sale of the Shares pursuant to the Plans, and
upon completion of the proceedings being taken in order to permit such transaction to be
carried out in accordance with the securities laws of the various states where required,
the Shares, when issued and sold in the manner referred to in the Plans and the
Registration Statement, will be legally and validly issued, fully-paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration Statement, and
further consent to the use of our name wherever appearing in the Registration Statement,
including the prospectus constituting a part thereof, and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati, P.C.
EXHIBIT 10.2
RUDOLPH TECHNOLOGIES, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(as amended and restated effective on May 1, 2005)
The following constitute the provisions of the 1999 Employee Stock Purchase Plan of
Rudolph Technologies, Inc.
1.
Purpose
. The purpose of the Plan is to provide employees of the Company and
its Designated Subsidiaries with an opportunity to purchase Common Stock of the Company
through accumulated payroll deductions. It is the intention of the Company to have the
Plan qualify as an "Employee Stock Purchase Plan" under Section 423 of the
Internal Revenue Code of 1986, as amended. The provisions of the Plan, accordingly, shall
be construed so as to extend and limit participation in a manner consistent with the
requirements of that section of the Code.
2.
Definitions
.
(a) "
Board
" shall mean the
Board of Directors of the Company.
(b) "
Code
" shall mean the
Internal Revenue Code of 1986, as amended.
(c) "
Common Stock
" shall
mean the common stock of the Company.
(d) "
Company
" shall mean
Rudolph Technologies, Inc. and any Designated Subsidiary of the Company.
(e) "
Compensation
" shall
mean all salary, wages (including amounts elected to be deferred by the employee, that
would otherwise have been paid, under a cash or deferred arrangement established by the
Company), overtime pay, commissions, bonuses and any other remuneration paid directly to
the employee, but excluding profit sharing, the cost of employee benefits paid for by the
Company, education or tuition reimbursements, imputed income arising under any Company
group insurance or benefit program, traveling expenses, business and moving expense
reimbursements, income recognized in connection with stock options, contributions made by
the Company under any employee benefit plan, and similar items of compensation.
(f) "
Designated Subsidiary
"
shall mean any Subsidiary that has been designated by the Board from time to time in its
sole discretion as eligible to participate in the Plan.
(g) "
Employee
" shall mean
any individual who is an Employee of the Company for tax purposes whose customary
employment with the Company is at least twenty (20) hours per week and more than five (5)
months in any calendar year. For purposes of the Plan, the employment relationship shall
be treated as continuing intact while the individual is on sick leave or other leave of
absence approved by the Company. Where the period of leave exceeds 90 days and the
individual's right to reemployment is not guaranteed either by statute or by contract, the
employment relationship shall be deemed to have terminated on the 91st day of such leave.
(h) "
Enrollment Date
" shall
mean the first Trading Day of each Offering Period.
(i) "
Exercise Date
" shall
mean the last Trading Day of each Offering Period.
(j) "
Fair Market Value
"
shall mean, as of any date, the value of Common Stock determined as follows:
(i) If the Common Stock is listed on any established stock exchange or a national market
system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap
Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price
for such stock (or the closing bid, if no sales were reported) as quoted on such exchange
or system on the date of determination, as reported in The Wall Street Journal or such
other source as the Board deems reliable;
(ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling
prices are not reported, its Fair Market Value shall be the mean of the closing bid and
asked prices for the Common Stock on the date of determination, as reported in The Wall
Street Journal or such other source as the Board deems reliable; or
(iii) In the absence of an established market for the Common Stock, the Fair Market Value
thereof shall be determined in good faith by the Board.
(k) "
Offering Periods
"
shall mean the periods of approximately six (6) months during which an option granted
pursuant to the Plan may be exercised, commencing on the first Trading Day on or after May
1st and November 1st of each year and terminating on the last Trading Day in the periods
ending six months later. The duration and timing of Offering Periods may be changed
pursuant to Section 4 of this Plan.
(l) "
Plan
" shall mean this
1999 Employee Stock Purchase Plan.
(m) "
Purchase Price
" shall
mean 95% of the Fair Market Value of a share of Common Stock on the Exercise Date;
provided however, that the Purchase Price may be adjusted by the Board pursuant to Section
20.
(n) "
Reserves
" shall mean
the number of shares of Common Stock covered by each option under the Plan which have not
yet been exercised and the number of shares of Common Stock which have been authorized for
issuance under the Plan but not yet placed under option.
(o) "
Subsidiary
" shall mean
a corporation, domestic or foreign, of which not less than 50% of the voting shares are
held by the Company or a Subsidiary, whether or not such corporation now exists or is
hereafter organized or acquired by the Company or a Subsidiary.
(p) "
Trading Day
" shall
mean a day on which national stock exchanges and the Nasdaq System are open for trading.
3.
Eligibility
.
(a) Any Employee who shall be employed by
the Company on a given Enrollment Date shall be eligible to participate in the Plan.
(b) Any provisions of the Plan to the
contrary notwithstanding, no Employee shall be granted an option under the Plan:
(i) to the extent that, immediately after the grant, such Employee (or any other person
whose stock would be attributed to such Employee pursuant to Section 424(d) of the Code)
would own capital stock of the Company and/or hold outstanding options to purchase such
stock possessing five percent (5%) or more of the total combined voting power or value of
all classes of the capital stock of the Company or of any Subsidiary, or
(ii) to the extent that his or her rights to purchase stock under all employee stock
purchase plans of the Company and its Subsidiaries accrues at a rate which exceeds
twenty-five Thousand Dollars ($25,000) worth of stock (determined at the fair market value
of the shares at the time such option is granted) for each calendar year in which such
option is outstanding at any time.
4.
Offering Periods
. The Plan shall be implemented by consecutive Offering
Periods with a new Offering Period commencing on the first Trading Day on or after May 1st
and November 1st each year, or on such other date as the Board shall determine, and
continuing thereafter until terminated in accordance with Section 20 hereof. The Board
shall have the power to change the duration of Offering Periods (including the
commencement dates thereof) with respect to future offerings without shareholder approval
if such change is announced prior to the scheduled beginning of the first Offering Period
to be affected thereafter.
5.
Participation
.
(a) An eligible Employee may become a
participant in the Plan by completing a subscription agreement authorizing payroll
deductions in the form of Exhibit A to this Plan and filing it with the Company's payroll
office prior to the applicable Enrollment Date.
(b) Payroll deductions for a participant
shall commence on the first payroll following the Enrollment Date and shall end on the
last payroll in the Offering Period to which such authorization is applicable, unless
sooner terminated by the participant as provided in Section 10 hereof.
6.
Payroll Deductions
.
(a) At the time a participant files his or
her subscription agreement, he or she shall elect to have payroll deductions made on each
pay day during the Offering Period in an amount not exceeding fifteen percent (15%) of the
Compensation which he or she receives on each pay day during the Offering Period.
(b) All payroll deductions made for a
participant shall be credited to his or her account under the Plan and shall be withheld
in whole percentages only. A participant may not make any additional payments into such
account.
(c) A participant may discontinue his or her
participation in the Plan as provided in Section 10 hereof, or may increase or decrease
the rate of his or her payroll deductions during the Offering Period by completing or
filing with the Company a new subscription agreement authorizing a change in payroll
deduction rate. The Board may, in its discretion, limit the number of participation rate
changes during any Offering Period. The change in rate shall be effective with the first
full payroll period following five (5) business days after the Company's receipt of the
new subscription agreement unless the Company elects to process a given change in
participation more quickly. A participant's subscription agreement shall remain in effect
for successive Offering Periods unless terminated as provided in Section 10 hereof.
(d) Notwithstanding the foregoing, to the
extent necessary to comply with Section 423(b)(8) of the Code and Section 3(b) hereof, a
participant's payroll deductions may be decreased to zero percent (0%) at any time during
an Offering Period. Payroll deductions shall recommence at the rate provided in such
participant's subscription agreement at the beginning of the first Offering Period which
is scheduled to end in the following calendar year, unless terminated by the participant
as provided in Section 10 hereof.
(e) At the time the option is exercised, in
whole or in part, or at the time some or all of the Company's Common Stock issued under
the Plan is disposed of, the participant must make adequate provision for the Company's
federal, state, or other tax withholding obligations, if any, which arise upon the
exercise of the option or the disposition of the Common Stock. At any time, the Company
may, but shall not be obligated to, withhold from the participant's compensation the
amount necessary for the Company to meet applicable withholding obligations, including any
withholding required to make available to the Company any tax deductions or benefits
attributable to sale or early disposition of Common Stock by the Employee.
7.
Grant of Option
. On the Enrollment Date of each Offering Period, each
eligible Employee participating in such Offering Period shall be granted an option to
purchase on each Exercise Date during such Offering Period (at the applicable Purchase
Price) up to a number of shares of the Company's Common Stock determined by dividing such
Employee's payroll deductions accumulated prior to such Exercise Date and retained in the
Participant's account as of the Exercise Date by the applicable Purchase Price; provided
that in no event shall an Employee be permitted to purchase during each Offering Period
more than 3,000 shares of the Company's Common Stock (subject to any adjustment pursuant
to Section 19), and provided further that such purchase shall be subject to the
limitations set forth in Sections 3(b) and 12 hereof. The Board may, for future Offering
Periods, increase or decrease, in its absolute discretion, the maximum number of shares of
the Company's Common Stock an Employee may purchase during such Offering Period. Exercise
of the option shall occur as provided in Section 8 hereof, unless the participant has
withdrawn pursuant to Section 10 hereof. The option shall expire on the last day of the
Offering Period.
8.
Exercise of Option
.
(a) Unless a participant withdraws from the
Plan as provided in Section 10 hereof, his or her option for the purchase of shares shall
be exercised automatically on the Exercise Date, and the maximum number of full shares
subject to option shall be purchased for such participant at the applicable Purchase Price
with the accumulated payroll deductions in his or her account. No fractional shares shall
be purchased; any payroll deductions accumulated in a participant's account which are not
sufficient to purchase a full share shall be retained in the participant's account for the
subsequent Offering Period, subject to earlier withdrawal by the participant as provided
in Section 10 hereof. Any other monies left over in a participant's account after the
Exercise Date shall be returned to the participant. During a participant's lifetime, a
participant's option to purchase shares hereunder is exercisable only by him or her.
(b) If the Board determines that, on a given
Exercise Date, the number of shares with respect to which options are to be exercised may
exceed:
(i) the number of shares of Common Stock that were available for sale under the Plan on
the Enrollment Date of the applicable Offering Period, or
(ii) the number of shares available for sale under the Plan on such Exercise Date;
the Board may in its sole discretion (x) provide that the Company shall make a pro rata
allocation of the shares of Common Stock available for purchase on such Enrollment Date or
Exercise Date, as applicable, in as uniform a manner as shall be practicable and as it
shall determine in its sole discretion to be equitable among all participants exercising
options to purchase Common Stock on such Exercise Date, and continue all Offering Periods
then in effect, or (y) provide that the Company shall make a pro rata allocation of the
shares available for purchase on such Enrollment Date or Exercise Date, as applicable, in
as uniform a manner as shall be practicable and as it shall determine in its sole
discretion to be equitable among all participants exercising options to purchase Common
Stock on such Exercise Date, and terminate any or all Offering Periods then in effect
pursuant to Section 20 hereof. The Company may make pro rata allocation of the shares
available on the Enrollment Date of any applicable Offering Period pursuant to the
preceding sentence, notwithstanding any authorization of additional shares for issuance
under the Plan by the Company's shareholders subsequent to such Enrollment Date.
9.
Delivery
. As promptly as practicable after each Exercise Date on which a
purchase of shares occurs, the Company shall arrange the delivery to each participant, as
appropriate, of a certificate representing the shares purchased upon exercise of his or
her option.
10.
Withdrawal
.
(a) A participant may withdraw all but not
less than all the payroll deductions credited to his or her account and not yet used to
exercise his or her option under the Plan at any time by giving written notice to the
Company in the form of Exhibit B to this Plan. All of the participant's payroll deductions
credited to his or her account shall be paid to such participant promptly after receipt of
notice of withdrawal and such participant's option for the Offering Period shall be
automatically terminated, and no further payroll deductions for the purchase of shares
shall be made for such Offering Period. If a participant withdraws from an Offering
Period, payroll deductions shall not resume at the beginning of the succeeding Offering
Period unless the participant delivers to the Company a new subscription agreement.
(b) A participant's withdrawal from an
Offering Period shall not have any effect upon his or her eligibility to participate in
any similar plan which may hereafter be adopted by the Company or in succeeding Offering
Periods which commence after the termination of the Offering Period from which the
participant withdraws.
11.
Termination of Employment
. Upon a participant's ceasing to be an Employee,
for any reason, he or she shall be deemed to have elected to withdraw from the Plan and
the payroll deductions credited to such participant's account during the Offering Period
but not yet used to exercise the option shall be returned to such participant or, in the
case of his or her death, to the person or persons entitled thereto under Section 15
hereof, and such participant's option shall be automatically terminated. The preceding
sentence notwithstanding, a participant who receives payment in lieu of notice of
termination of employment shall be treated as continuing to be an Employee for the
participant's customary number of hours per week of employment during the period in which
the participant is subject to such payment in lieu of notice.
12.
Interest
. No interest shall accrue on the payroll deductions of a
participant in the Plan.
13.
Stock
.
(a) Subject to adjustment upon changes in
capitalization of the Company as provided in Section 19 hereof, the maximum number of
shares of the Company's Common Stock which shall be made available for sale under the Plan
shall be 300,000 shares, plus an annual increase to be added on the first day of the
Company's fiscal year, beginning in 2001, equal to the lesser of:
(i) 300,000 shares of Common Stock,
(ii) two percent (2%) of the outstanding shares of Common Stock on such date, or
(iii) a lesser amount determined by the Board.
(b) The participant shall have no interest
or voting right in shares covered by his option until such option has been exercised.
(c) Shares to be delivered to a participant
under the Plan shall be registered in the name of the participant or in the name of the
participant and his or her spouse.
14.
Administration
. The Plan shall be administered by the Board or a committee
of members of the Board appointed by the Board. The Board or its committee shall have full
and exclusive discretionary authority to construe, interpret and apply the terms of the
Plan, to determine eligibility and to adjudicate all disputed claims filed under the Plan.
Every finding, decision and determination made by the Board or its committee shall, to the
full extent permitted by law, be final and binding upon all parties.
15.
Designation of Beneficiary
.
(a) A participant may file a written
designation of a beneficiary who is to receive any shares and cash, if any, from the
participant's account under the Plan in the event of such participant's death subsequent
to an Exercise Date on which the option is exercised but prior to delivery to such
participant of such shares and cash. In addition, a participant may file a written
designation of a beneficiary who is to receive any cash from the participant's account
under the Plan in the event of such participant's death prior to exercise of the option.
If a participant is married and the designated beneficiary is not the spouse, spousal
consent shall be required for such designation to be effective.
(b) Such designation of beneficiary may be
changed by the participant at any time by written notice. In the event of the death of a
participant and in the absence of a beneficiary validly designated under the Plan who is
living at the time of such participant's death, the Company shall deliver such shares
and/or cash to the executor or administrator of the estate of the participant, or if no
such executor or administrator has been appointed (to the knowledge of the Company), the
Company, in its discretion, may deliver such shares and/or cash to the spouse or to any
one or more dependents or relatives of the participant, or if no spouse, dependent or
relative is known to the Company, then to such other person as the Company may designate.
16.
Transferability
. Neither payroll deductions credited to a participant's
account nor any rights with regard to the exercise of an option or to receive shares under
the Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other
than by will, the laws of descent and distribution or as provided in Section 15 hereof) by
the participant. Any such attempt at assignment, transfer, pledge or other disposition
shall be without effect, except that the Company may treat such act as an election to
withdraw funds from an Offering Period in accordance with Section 10 hereof.
17.
Use of Funds
. All payroll deductions received or held by the Company under
the Plan may be used by the Company for any corporate purpose, and the Company shall not
be obligated to segregate such payroll deductions.
18.
Reports
. Individual accounts shall be maintained for each participant in the
Plan. Statements of account shall be given to participating Employees at least annually,
which statements shall set forth the amounts of payroll deductions, the Purchase Price,
the number of shares purchased and the remaining cash balance, if any.
19.
Adjustments Upon Changes in Capitalization, Dissolution, Liquidation, Merger or
Asset Sale
.
(a) Changes in Capitalization. Subject to
any required action by the shareholders of the Company, the Reserves, the maximum number
of shares each participant may purchase each Offering Period (pursuant to Section 7), the
number of shares that may be added annually to the shares reserved under the Plan
(pursuant to Section 13(a)(i)), as well as the price per share and the number of shares of
Common Stock covered by each option under the Plan which has not yet been exercised shall
be proportionately adjusted for any increase or decrease in the number of issued shares of
Common Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or decrease in
the number of shares of Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of consideration."
Such adjustment shall be made by the Board, whose determination in that respect shall be
final, binding and conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares of Common Stock subject to an option.
(b) Dissolution or Liquidation. In the event
of the proposed dissolution or liquidation of the Company, the Offering Period then in
progress shall be shortened by setting a new Exercise Date (the "New Exercise
Date"), and shall terminate immediately prior to the consummation of such proposed
dissolution or liquidation, unless provided otherwise by the Board. The Board shall notify
each participant in writing, at least ten (10) business days prior to the New Exercise
Date, that the Exercise Date for the participant's option has been changed to the New
Exercise Date and that the participant's option shall be exercised automatically on the
New Exercise Date, unless prior to such date the participant has withdrawn from the
Offering Period as provided in Section 10 hereof.
(c) Merger or Asset Sale. In the event of a
proposed sale of all or substantially all of the assets of the Company, or the merger of
the Company with or into another corporation, each outstanding option shall be assumed or
an equivalent option substituted by the successor corporation or a Parent or Subsidiary of
the successor corporation. In the event that the successor corporation refuses to assume
or substitute for the option, any Offering Periods then in progress shall be shortened by
setting a new Exercise Date (the "New Exercise Date") and any Offering Periods
then in progress shall end on the New Exercise Date. The New Exercise Date shall be before
the date of the Company's proposed sale or merger. The Board shall notify each participant
in writing, at least ten (10) business days prior to the New Exercise Date, that the
Exercise Date for the participant's option has been changed to the New Exercise Date and
that the participant's option shall be exercised automatically on the New Exercise Date,
unless prior to such date the participant has withdrawn from the Offering Period as
provided in Section 10 hereof.
20.
Amendment or Termination
.
(a) The Board of Directors of the Company
may at any time and for any reason terminate or amend the Plan. Except as provided in
Section 19 hereof, no such termination can affect options previously granted, provided
that an Offering Period may be terminated by the Board of Directors on any Exercise Date
if the Board determines that the termination of the Offering Period or the Plan is in the
best interests of the Company and its shareholders. Except as provided in Section 19 and
this Section 20 hereof, no amendment may make any change in any option theretofore granted
which adversely affects the rights of any participant. To the extent necessary to comply
with Section 423 of the Code (or any successor rule or provision or any other applicable
law, regulation or stock exchange rule), the Company shall obtain shareholder approval in
such a manner and to such a degree as required.
(b) Without shareholder consent and without
regard to whether any participant rights may be considered to have been "adversely
affected," the Board (or its committee) shall be entitled to change the Offering
Periods, limit the frequency and/or number of changes in the amount withheld during an
Offering Period, establish the exchange ratio applicable to amounts withheld in a currency
other than U.S. dollars, permit payroll withholding in excess of the amount designated by
a participant in order to adjust for delays or mistakes in the Company's processing of
properly completed withholding elections, establish reasonable waiting and adjustment
periods and/or accounting and crediting procedures to ensure that amounts applied toward
the purchase of Common Stock for each participant properly correspond with amounts
withheld from the participant's Compensation, and establish such other limitations or
procedures as the Board (or its committee) determines in its sole discretion advisable
which are consistent with the Plan.
(c) In the event the Board determines that
the ongoing operation of the Plan may result in unfavorable financial accounting
consequences, the Board may, in its discretion and, to the extent necessary or desirable,
modify or amend the Plan to reduce or eliminate such accounting consequence including, but
not limited to:
(i) altering the Purchase Price for any Offering Period including an Offering Period
underway at the time of the change in Purchase Price;
(ii) shortening any Offering Period so that Offering Period ends on a new Exercise Date,
including an Offering Period underway at the time of the Board action; and
(iii) allocating shares.
Such modifications or amendments shall not require stockholder approval or the consent
of any Plan participants.
21.
Notices
. All notices or other communications by a participant to the Company
under or in connection with the Plan shall be deemed to have been duly given when received
in the form specified by the Company at the location, or by the person, designated by the
Company for the receipt thereof.
22.
Conditions Upon Issuance of Shares
. Shares shall not be issued with respect
to an option unless the exercise of such option and the issuance and delivery of such
shares pursuant thereto shall comply with all applicable provisions of law, domestic or
foreign, including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may then be
listed, and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
As a condition to the exercise of an option, the Company may require the person
exercising such option to represent and warrant at the time of any such exercise that the
shares are being purchased only for investment and without any present intention to sell
or distribute such shares if, in the opinion of counsel for the Company, such a
representation is required by any of the aforementioned applicable provisions of law.
23.
Term of Plan
. The Plan shall become effective upon the earlier to occur of
its adoption by the Board or its approval by the stockholders of the Company. The Plan
shall continue in effect for a term of ten (10) years unless sooner terminated under
Section 20 hereof.
EXHIBIT 23.1
CONSENT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNT
ING
FIRM
The Board of Directors
Rudolph Technologies, Inc.:
We consent to the use of our reports dated March 7, 2005, with respect to the
consolidated balance sheets of Rudolph Technologies, Inc. as of December 31, 2004 and
2003, and the related consolidated statements of income (loss), stockholders' equity and
comprehensive income (loss), and cash flows for each of the years in the three-year period
ended December 31, 2004, and the related consolidated financial statement schedule,
management's assessment of the effectiveness of internal control over financial reporting
as of December 31, 2004, and the effectiveness of internal control over financial
reporting as of December 31, 2004, incorporated by reference in this Registration
Statement on Form S-8 of Rudolph Technologies, Inc.
/s/ KPMG LLP
KPMG LLP
Short Hills, New Jersey
November 17, 2005