AMENDED AND RESTATED
EXCELON CORPORATION
1997 NONQUALIFIED STOCK OPTION PLAN
Amended July 14, 2000
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AMENDED AND RESTATED
EXCELON CORPORATION
1997 NONQUALIFIED STOCK OPTION PLAN
TABLE OF CONTENTS
1. PURPOSE OF THE PLAN...................................................1
2. ADMINISTRATION........................................................1
3. OPTION SHARES.........................................................2
4. AUTHORITY TO GRANT OPTIONS............................................3
5. ELIGIBILITY...........................................................3
6. OPTION PRICE..........................................................3
7. DURATION OF OPTIONS...................................................3
8. AMOUNT EXERCISABLE....................................................3
9. EXERCISE OF OPTIONS...................................................4
10. TRANSFERABILITY OF OPTIONS............................................4
11. TERMINATION OF EMPLOYMENT OR DEATH OF OPTIONEE........................5
(a) TEMPORARY LEAVE..............................................5
(b) DEATH OR DISABILITY..........................................5
(c) RETIREMENT...................................................6
12. EMPLOYMENT RELATIONSHIP...............................................6
13. GENERAL RESTRICTIONS..................................................6
(a) INVESTMENT REPRESENTATIONS...................................6
(b) COMPLIANCE WITH SECURITIES LAWS..............................6
14. NO RIGHTS AS STOCKHOLDER..............................................7
15. EMPLOYMENT OBLIGATION.................................................8
16. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE............................8
(a) RIGHTS OF THE COMPANY........................................8
(b) RECAPITALIZATION, STOCK SPLITS, AND DIVIDENDS................8
(c) MERGER OF COMPANY WITH NO CHANGE OF CONTROL..................9
(d) SALE OR MERGER OF COMPANY WHERE COMPANY DOES NOT SURVIVE.....9
(e) CHANGES TO COMMON STOCK SUBJECT TO OPTIONS..................10
17. AMENDMENT OR TERMINATION OF THE PLAN.................................11
18. WRITTEN AGREEMENT....................................................11
19. EFFECTIVE DATE AND DURATION OF PLAN..................................11
AMENDED AND RESTATED
EXCELON CORPORATION
1997 NONQUALIFIED STOCK OPTION PLAN
1. PURPOSE OF THE PLAN.
This 1997 Nonqualified Stock Option Plan (the "Plan") of eXcelon
Corporation, a Delaware corporation (the "Company"), is designed to provide
additional incentive to present and future officers and other employees of the
Company. The Company intends that this purpose will be effected by the granting
of nonqualified stock options (collectively, the "Options", and individually, an
"Option") under the Plan which afford such officers and other employees an
opportunity to acquire or increase their proprietary interest in the Company
through the acquisition of shares of its Common Stock. By encouraging stock
ownership by such officers and other employees, the Company seeks to attract and
retain on a continuing basis the services of persons of exceptional competence
and seeks to furnish an added incentive for them to increase their efforts on
behalf of the Company. Except as otherwise provided, for all purposes of the
Plan the term "subsidiary" shall mean any corporation of which 50% or more of
its outstanding voting stock is at the time owned by the Company or by one or
more subsidiaries or by the Company and one or more subsidiaries.
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2. ADMINISTRATION.
The Plan shall be administered by the President of the Company. The
President shall have full and final authority to operate, manage and administer
the Plan on behalf of the Company. This authority includes, but is not limited
to: (i) the power to grant Options conditionally or unconditionally; (ii) the
power to prescribe the form or forms of the instruments evidencing Options
granted under the Plan; (iii) the power to interpret the Plan; (iv) the power to
provide regulations for the operation of the incentive features of the Plan, and
otherwise to prescribe regulations for interpretation, management and
administration of the Plan; (v) the power to delegate responsibility for Plan
operation, management and administration on such terms, consistent with the
Plan, as the President may establish; (vi) the power to delegate to other
persons the responsibility for performing ministerial acts in furtherance of the
Plan's purpose; and (vii) the power to engage the services of persons or
organizations in furtherance of the Plan's purpose, including but not limited to
banks, insurance companies, brokerage firms and consultants.
In addition, as to each Option, the President shall have full and final
authority in his discretion to determine: (i) the number of shares subject to
each Option; (ii) the time or times at which Options will be granted; (iii) the
option price for the shares subject to each Option; and (iv) the time or times
when each Option shall become exercisable, the conditions under which exercise
may be accelerated and the duration of the exercise period. The President shall
not be liable for any action or determination made in good faith with respect to
the Plan or any Option granted hereunder.
3. OPTION SHARES.
The stock subject to the Options and other provisions of the Plan shall
be shares of the Company's Common Stock, $.001 par value (the "Common Stock").
The total amount of the Common Stock with respect to which Options may be
granted shall not exceed in the aggregate 5,500,000 shares; provided, however,
that the class and aggregate number of shares which may be subject to Options
granted hereunder shall be subject to adjustment in accordance with the
provisions of Paragraph 16 hereof; and, provided further, that (i) no
participant may be awarded Options to purchase more than 50,000 shares pursuant
to grants under the Plan in any twelve (12) month period without the approval of
the Compensation Committee of the Board of Directors (the "Committee"); (ii)
individual Option grants may not exceed 5,000 shares per grant without the
approval of the Committee; (iii) no participant who is an "officer" of the
Company within the meaning of Section 16 of the Securities Exchange Act of 1934,
as amended, may be awarded an Option without the approval of the Committee; (iv)
no participant may be awarded more than two Option grants in any twelve (12)
month period without the approval of the Committee; and (v) the aggregate number
of shares subject to grants under the Plan may not exceed 1,000,000 in any
twelve (12) month period. Shares subject to Options granted hereunder may be
treasury shares or authorized but unissued shares.
In the event that any outstanding Option for any reason shall expire or
terminate prior to exercise, the shares of Common Stock allocable to the
unexercised portion of such Option may again be subject to an Option under the
Plan.
4. AUTHORITY TO GRANT OPTIONS.
The President may grant Options from time to time to such eligible
officers and other employees of the Company as he shall determine. Subject to
any applicable limitations set forth in the Plan or established from time to
time by the President, the number of shares of Common Stock to be covered by any
Option shall be as determined by the President.
5. ELIGIBILITY.
Options may be granted to officers and other employees of the Company
or its subsidiaries; provided, however, that no such participant may, in any
twelve (12) month period, be awarded Options to purchase more than 50,000
shares, except as otherwise set forth in Section 3 above.
6. OPTION PRICE.
The price at which shares may be purchased pursuant to Options shall be
specified by the President at the time the Option is granted.
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7. DURATION OF OPTIONS.
The President in his discretion may provide that an Option shall be
exercisable during any specified period of time from the date such Option is
granted.
8. AMOUNT EXERCISABLE.
Each Option may be exercised, so long as it is valid and outstanding,
from time to time in part or as a whole, subject to any limitations with respect
to the number of shares for which the Option may be exercised at a particular
time and to such other conditions as the President in his discretion may specify
upon granting the Option.
9. EXERCISE OF OPTIONS.
Subject to the provisions of Paragraph 13 hereof, Options shall be
exercised by the delivery of written notice to the Company setting forth the
number of shares with respect to which the Option is to be exercised, together
with (a) cash, certified check, bank draft or postal or express money order
payable to the order of the Company for an amount equal to the option price of
such shares, or, (b) with the consent of the Company, shares of Common Stock of
the Company having a fair market value equal to the option price of such shares,
or, (c) with the consent of the Company, a combination of (a) and (b), and
specifying the address to which the certificates for such shares are to be
mailed. For the purpose of the preceding sentence, the fair market value of the
shares of Common Stock so delivered to the Company shall be the closing price
per share as reported on the date of exercise by the National Association of
Securities Dealers Automated Quotation System, Inc. As promptly as practicable
after receipt of such written notification and payment, the Company shall
deliver to the optionee certificates for the number of shares with respect to
which such Option has been so exercised, issued in the optionee's name;
provided, however, that such delivery shall be deemed effected for all purposes
when a stock transfer agent of the Company shall have deposited such
certificates in the United States mail, addressed to the optionee, at the
address specified pursuant to this Paragraph 9.
10. TRANSFERABILITY OF OPTIONS.
Options shall not be transferable by the optionee otherwise than by
will or under the laws of descent and distribution, and shall be exercisable,
during his lifetime, only by him.
11. TERMINATION OF EMPLOYMENT OR DEATH OF OPTIONEE.
Except as may be otherwise expressly provided herein or as may be
otherwise expressly provided in the terms and conditions of the Option granted
to an optionee, Options may not be exercised after the earlier of:
(i) the date of expiration thereof; or
(ii) the date of termination of the optionee's employment with
the Company if the termination is by the Company for cause (as determined by the
Company), or if voluntarily by the optionee; or
(iii) thirty (30) days after termination of the optionee's
employment with the Company by it without cause.
(a) TEMPORARY LEAVE. Whether authorized temporary leave of absence, or
absence on military or government service, shall constitute termination of the
employment relationship between the Company and the optionee shall be determined
by the President at the time thereof.
(b) DEATH OR DISABILITY. In the event the optionee's employment with
the Company is terminated while the optionee is an employee in good standing for
reasons of permanent disability under the then established rules of the Company
or due to the death of the optionee and before the date of expiration of such
Option, such Option may be exercised until the earlier of such date of
expiration or one (1) year following the date of such termination for reason of
permanent disability or death. Should such termination for reason of permanent
disability or death occur after the first anniversary of the date on which the
optionee was first employed by the Company, the Option may be exercised for up
to the greater of (i) 50% of all Option shares (and such shares shall be deemed
vested) or (ii) the number of shares that had vested as of the date of such
death or termination due to disability. After the death of the optionee, his
executors, administrators or any person or persons to whom his Option may be
transferred by will or by the laws of descent and distribution, shall have the
right to exercise the Option.
(c) RETIREMENT. If, before the date of expiration of the Option, the
optionee as an employee shall be retired in good standing from the employ of the
Company for reasons of age under the then established rules of the Company, the
Option may be exercised until the earlier of such date of expiration or thirty
(30) days after the date of such retirement, to the extent to which the optionee
was entitled to exercise such Option immediately prior to such retirement.
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12. EMPLOYMENT RELATIONSHIP.
An employment relationship between the Company and the optionee shall
be deemed to exist during any period in which the optionee is employed by the
Company or a subsidiary of the Company.
13. GENERAL RESTRICTIONS.
(a) INVESTMENT REPRESENTATIONS. The Company may require any individual
to whom an Option is granted, as a condition of exercising such Option, to give
written assurances in substance and form satisfactory to the Company to the
effect that such individual is acquiring the shares subject to the Option for
his or her own account for investment and not with a view to the resale or
distribution thereof, and to such other effects as the Company deems necessary
or advisable in order to comply with the Securities Act of 1933, as now in
effect or hereafter amended (the "Act") and applicable state securities laws.
(b) COMPLIANCE WITH SECURITIES LAWS. The Company shall not be required
to sell or issue any shares under any Option if the issuance of such shares
shall constitute a violation by the optionee or by the Company of any provision
of any law, regulation or order of any governmental authority. Without limiting
the generality of the foregoing, upon exercise of any Option, the Company shall
not be required to issue such shares unless the Company has received evidence
satisfactory to it to the effect that the holder of such Option will not
transfer such shares except pursuant to a registration statement in effect under
the Act, and under the applicable securities laws of any State, unless the
Company has received an opinion of counsel satisfactory to the Company to the
effect that such registration is not required. Any determination in this
connection by the Company shall be final, binding and conclusive. In the event
the shares issuable on exercise of an Option are not registered under the Act,
the Company may imprint the following legend or any other legend which counsel
for the Company considers necessary or advisable to comply with the Act or other
applicable laws:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933 or under the
securities laws of any State and may not be sold or
transferred except upon such registration or upon receipt by
the Corporation of an opinion of counsel satisfactory to the
Corporation, in form and substance satisfactory to the
Corporation, that registration is not required for such sale
or transfer."
The Company may, but shall in no event be obligated to, register any
securities covered hereby pursuant to the Act; and in the event any shares are
so registered the Company may remove any legend on certificates representing
such shares. The Company shall not be obligated to take any other affirmative
action in order to cause the exercise of an Option or the issuance of shares
pursuant thereto to comply with any other law, regulation or order of any
governmental authority.
14. NO RIGHTS AS STOCKHOLDER
No optionee shall have rights as a stockholder with respect to shares
covered by his Option until the date of issuance of a stock certificate for such
shares; and, except as otherwise provided in Paragraph 16 hereof, no adjustment
for dividends, or otherwise, shall be made if the record date therefor is prior
to the date of issuance of such certificate.
15. EMPLOYMENT OBLIGATION.
The granting of any Option shall not impose upon the Company any
obligation to employ or continue to employ any optionee; and the right of the
Company to terminate the employment of any officer or other employee shall not
be diminished or affected by reason of the fact that an Option has been granted
to him.
16. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE.
(a) RIGHTS OF THE COMPANY.
The existence of outstanding Options shall not affect in any way the
right or power of the Company or its stockholders to make or authorize any or
all adjustments, recapitalizations, reorganizations or other changes in the
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Company's capital structure or its business, or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Common Stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all or any
part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
(b) RECAPITALIZATION, STOCK SPLITS, AND DIVIDENDS.
If the Company shall effect a subdivision or consolidation of shares or
other capital readjustment, the payment of a stock dividend, or other increase
or reduction of the number of shares of the Common Stock outstanding, without
receiving compensation therefor in money, services or property, then (i) the
number, class, and per share price of shares of stock subject to outstanding
Options hereunder shall be appropriately adjusted in such a manner as to entitle
an optionee to receive upon exercise of an Option, for the same aggregate cash
consideration, the same total number and class of shares as he would have
received as a result of the event requiring the adjustment had he exercised his
Option in full immediately prior to such event; and (ii) the number and class of
shares with respect to which Options may be granted under the Plan shall be
adjusted by substituting for the total number of shares of Common Stock then
reserved that number and class of shares of stock that would have been received
by the owner of an equal number of outstanding shares of Common Stock as the
result of the event requiring the adjustment.
(c) MERGER OF COMPANY WITH NO CHANGE OF CONTROL.
After a merger of one or more corporations into the Company, or after a
consolidation of the Company with one or more corporations in which (i) the
Company shall be the surviving corporation and (ii) the stockholders of the
Company prior to such merger of consolidation hold at least fifty percent (50%)
of the voting shares of the Company after such merger or consolidation, each
holder of an outstanding Option shall, at no additional cost, be entitled upon
exercise of such Option to receive (subject to any required action by
stockholders) in lieu of the number of shares as to which such Option shall then
be so exercisable, the number and class of shares of stock or other securities
to which such holder would have been entitled pursuant to the terms of the
agreement of merger or consolidation if, immediately prior to such merger or
consolidation, such holder had been the holder of record of a number of shares
of Common Stock equal to the number of shares as to which such Option shall be
so exercised.
(d) SALE OR MERGER OF COMPANY WHERE COMPANY DOES NOT SURVIVE.
If the Company is merged into or consolidated with another corporation
under circumstances where the Company is not the surviving corporation, or if
there is a merger or consolidation where the Company is the surviving
corporation and the stockholders of the Company prior to such merger or
consolidation do not hold at least fifty percent (50%) of the voting shares of
the Company after such merger or consolidation occurs, or if the Company is
liquidated, or sells or otherwise disposes of substantially all its assets to
another corporation while unexercised Options remain outstanding under the Plan,
(i) subject to the provisions of clause (iii) below, after the effective date of
such merger, consolidation or sale, as the case may be, each holder of an
outstanding Option shall be entitled, upon exercise of such Option, to receive,
in lieu of shares of Common Stock, shares of such stock or other securities,
cash or property as the holders of shares of Common Stock received pursuant to
the terms of the merger, consolidation or sale; (ii) the President may
accelerate the time for exercise of all unexercised and unexpired Options to and
after a date prior to the effective date of such merger, consolidation,
liquidation or sale, as the case may be; or (iii) all outstanding Options may be
canceled by the President as of the effective date of any such merger,
consolidation, liquidation or sale, provided that (x) notice of such
cancellation shall be given to each holder of an Option and (y) each holder of
an Option shall have the right to exercise such Option to the extent that the
same is then exercisable or, if the President shall have accelerated the time
for exercise of all unexercised and unexpired Options, in full during the thirty
(30) day period preceding the effective date of such merger, consolidation,
liquidation, sale or acquisition.
(e) CHANGES TO COMMON STOCK SUBJECT TO OPTIONS.
Except as herein before expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, for cash or property, or for labor or services either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or obligations of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or price of shares of Common Stock then subject to outstanding
Options.
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17. AMENDMENT OR TERMINATION OF THE PLAN.
The President may terminate the Plan at any time, and may amend the
Plan at any time and from time to time, subject to the limitation that, except
as provided in Paragraph 16 hereof, rights and obligations under any Option
granted before termination or amendment of the Plan shall not be altered or
impaired by such termination or amendment except with the consent of the
optionee.
18. WRITTEN AGREEMENT.
Each Option granted hereunder shall be embodied in a written option
agreement which shall be subject to the terms and conditions prescribed above
and shall be signed by the President, any Vice President or the Treasurer of the
Company for and in the name and on behalf of the Company. Such option agreement
shall contain such other provisions as the President in his discretion shall
deem available.
19. EFFECTIVE DATE AND DURATION OF PLAN.
The effective date of the Plan is April 22, 1997, the date of its
adoption by the Board of Directors of the Company. Options may not be granted
under the Plan more than ten (10) years after said effective date. The Plan
shall terminate (i) when the total amount of the Common Stock with respect to
which Options may be granted shall have been issued upon the exercise of Options
or (ii) by action of the President pursuant to Paragraph 17 hereof, whichever
shall first occur.
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