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NATIONSRENT, INC.
SECOND AMENDED AND RESTATED
1998 STOCK OPTION PLAN
1. ESTABLISHMENT, EFFECTIVE DATE AND TERM
NationsRent, Inc., a Delaware corporation (the "Company") hereby
establishes the "NationsRent, Inc. 1998 Stock Option Plan" (the "Plan"). The
effective date of the Plan shall be August 6, 1998 (the "Effective Date"), which
is the date that the Plan was approved and adopted by the Board of Directors of
the Company (the "Board") and the stockholders of the Company. The Plan was
amended by the Board of Directors on June 16, 1999 and March 27, 2000, which
amendments were approved by the stockholders of the Company on July 21, 1999 and
May 12, 2000, respectively, and incorporated into the Plan. Unless earlier
terminated pursuant to Section 17 hereof, the Plan shall terminate on August 6,
2008.
2. PURPOSE
The purpose of the Plan is to advance the interests of the Company by
providing Eligible Individuals (as defined in Section 5 below) with an
opportunity to acquire or increase a proprietary interest in the Company, which
thereby will create a stronger incentive to expend maximum effort for the growth
and success of the Company and its subsidiaries, and will encourage such
individuals to remain in the employ of the Company or one or more of its
subsidiaries.
3. TYPE OF OPTIONS
Each stock option granted under the Plan (an "Option") may be
designated by the Board, in its sole discretion, either as (i) an "incentive
stock option" ("Incentive Stock Options") within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended from time to time (the "Code"), or
(ii) as a non-qualified option which is not intended to meet the requirements of
Section 422 of the Code; PROVIDED that Incentive Stock Options may only be
granted to employees of the Company or any "subsidiary corporation" as defined
in Section 424 of the Code (a "Subsidiary"). In the absence of any designation,
Options granted under the Plan will be deemed to be non-qualified options. The
Plan shall be administered and interpreted so that all incentive stock options
granted under the plan will qualify as incentive stock options under Section 422
of the Code. Options designated as Incentive Stock Options that fail to continue
to meet the requirements of Section 422 of the Code shall be redesignated as
non-qualified options automatically on the date of such failure to continue to
meet such requirements without further action by the Board.
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4. ADMINISTRATION
(a) BOARD. The Plan shall be administered by the Board, which
shall have the full power and authority to take all actions,
and to make all determinations required or provided for under
the Plan or any Option granted or Option Agreement (as defined
in Section 9 below) entered into under the Plan and all such
other actions and determinations not inconsistent with the
specific terms and provisions of the Plan deemed by the Board
to be necessary or appropriate to the administration of the
Plan or any Option granted or Option Agreement entered into
hereunder. The Board may correct any defect or supply any
omission or reconcile any inconsistency in the Plan or in any
Option Agreement in the manner and to the extent it shall deem
expedient to carry the Plan into effect and shall be the sole
and final judge of such expediency. All such actions and
determinations shall be by the affirmative vote of a majority
of the members of the Board present at a meeting at which any
issue relating to the Plan is properly raised for
consideration or without a meeting by written consent of the
Board executed in accordance with the Company's Certificate of
Incorporation and By-laws and applicable law. The
interpretation and construction by the Board of any provision
of the Plan or of any Option granted or Option Agreement
entered into hereunder shall be final and conclusive.
(b) COMMITTEE. The Board may, in its discretion, from time to time
appoint a Stock Option Committee (the "Committee") consisting
of not less than two members of the Board, none of whom shall
be an officer or other salaried employee of the Company or any
Subsidiary, and each of whom shall qualify in all respects as
a "non-employee director" as defined in Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and an "outside director" for purposes of
Section 162(m) of the Code. The Board, in its sole discretion,
may provide that the role of the Committee shall be limited to
making recommendations to the Board concerning any
determinations to be made and actions to be taken by the Board
pursuant to or with respect to the Plan, or the Board may
delegate to the Committee such powers and authorities related
to the administration of the Plan, as set forth in Section
4(a) above, as the Board shall determine, consistent with the
Certificate of Incorporation and By-laws of the Company and
applicable law. The Board may remove members, add members, and
fill vacancies on the Committee from time to time, all in
accordance with the Company's Certificate of Incorporation and
By-laws, and with applicable law. The majority vote of the
Committee, or acts reduced to or approved in writing by a
majority of the members of the Committee, shall be the valid
acts of the Committee.
(c) NO LIABILITY. No member of the Board or of the Committee shall
be liable for any action or determination made in good faith
with respect to the Plan or any Option granted or Option
Agreement entered into hereunder.
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(d) DELEGATION TO THE COMMITTEE. In the event that the Plan or any
Option granted or Option Agreement entered into hereunder
provides for any action to be taken by or determination to be
made by the Board, such action may be taken by or such
determination may be made by the Committee if the power and
authority to do so has been delegated to the Committee by the
Board as provided for in Section 4(b) above. Unless otherwise
expressly determined by the Board, any such action or
determination by the Committee shall be final and conclusive.
5. COMMON STOCK
The capital stock of the Company that may be issued pursuant to Options
granted under the Plan shall be shares of common stock, $.01 par value, of the
Company (the "Common Stock"), which shares may be treasury shares or authorized
but unissued shares. The total number of shares of Common Stock that may be
issued pursuant to Options granted under the Plan shall be 10,000,000 shares,
subject to adjustment as provided in Section 18 below. If any Option expires,
terminates, or is terminated or canceled for any reason prior to exercise in
full, the shares of Common Stock that were subject to the unexercised portion of
such Option shall be available for future Options granted under the Plan.
6. ELIGIBILITY
Options may be granted under the Plan to any employee or director
(employee and non-employee directors) of the Company or any Subsidiary, as well
as to any independent contractor or consultant performing services for the
Company or any Subsidiary as determined by the Board from time to time on the
basis of their importance to the business of the Company or any Subsidiary
(collectively, "Eligible Individuals"), provided that Incentive Stock Options
may only be granted to employees of the Company and its Subsidiaries. An
individual may hold more than one Option, subject to such restrictions as are
provided herein.
7. GRANT OF OPTIONS
(a) GENERAL. Subject to the terms and conditions of the Plan, the
Board may, at any time and from time to time, prior to the
date of termination of the Plan, grant to such Eligible
Individuals as the Board may determine ("Optionees"), Options
to purchase such number of shares of Common Stock on such
terms and conditions as the Board may determine. The date on
which the Board approves the grant of an Option (or such later
date as is specified by the Board) shall be considered the
date on which such Option is granted. The maximum number of
shares of Common Stock subject to Options that may be granted
during any calendar year under the Plan to any executive
officer or other employee of the Company or any Subsidiary
whose compensation is or may be subject to Section 162(m) of
the Code is 1,000,000 shares (subject to adjustment as
provided in Section 18 below).
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(b) NON-EMPLOYEE DIRECTORS.
(i) Each member of the Board that is not an employee of the
Company, as determined by the Board in its sole discretion (a
"Non-Employee Director"), shall automatically be granted, as
of the effective date of the registration statement (the "IPO
Effective Date") relating to the Company's initial public
offering of its Common Stock ("IPO"), an Option to acquire
50,000 shares of Common Stock at a price per share equal to
the initial public offering price. Each Non-Employee Director
who joins the Board after the closing date of the IPO shall
automatically be granted, as of the date he or she joins the
Board, an Option to acquire 50,000 shares of Common Stock at a
price per share equal to the closing price of a share of
Common Stock on the New York Stock Exchange on the last
trading date immediately prior to the grant date, provided if
the Common Stock is not listed on the NYSE, the price per
share shall be determined in accordance with Section 10.
(ii) Additionally, each Non-Employee Director as of the first
day of each fiscal year of the Company, shall automatically be
granted, as of such date, an Option to acquire 10,000 shares
of Common Stock at a price per share equal to the closing
price of a share of Common Stock on the New York Stock
Exchange on the last trading date immediately prior to the
grant date, provided if the Common Stock is not listed on the
NYSE, the price per share shall be determined in accordance
with Section 10.
(iii) All Options granted under this Section 7(b) shall be
fully vested and immediately exercisable, and shall remain
exercisable for a term of ten years from the date of grant so
long as such person remains a member of the Board. At such
time as such person ceases to be a Board member, any portion
of the Option that has not been exercised shall no longer be
exercisable and shall terminate.
(iv) No Option referred to herein shall be granted, awarded,
or exercised at any time prior to the IPO Effective Date. If
the IPO is not consummated, the Options referred to herein
shall not be granted or awarded or become exercisable.
8. LIMITATION ON INCENTIVE STOCK OPTIONS
(a) TEN PERCENT STOCKHOLDER. Notwithstanding any other provision
of this Plan to the contrary, no individual may receive an
Incentive Stock Option under the Plan if such individual, at
the time the award is granted, owns (after application of the
rules contained in Section 424(d) of the Code) stock
possessing more than 10 percent of the total combined voting
power of all classes of stock of the Company or its
subsidiaries, unless (i) the purchase price for each share of
Common Stock subject to such Incentive Stock Option is at
least 110 percent of the fair market value of a share of
Common Stock on the date of grant (as determined in good faith
by the Board) and (ii) such Incentive Stock Option is not
exercisable after the date which is five years from the date
of grant.
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(b) LIMITATION ON GRANTS. The aggregate fair market value
(determined with respect to each Incentive Stock Option at the
time such Incentive Stock Option is granted) of the shares of
Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by an individual during any
calendar year (under this Plan or any other plan of the
Company or a subsidiary) shall not exceed $100,000. If an
incentive stock option is granted pursuant to which the
aggregate fair market value of shares with respect to which it
first becomes exercisable in any calendar year by an
individual exceeds such $100,000 limitation, the portion of
such option which is in excess of the $100,000 limitation, and
any such options issued subsequently in the same calendar
year, shall be treated as a non-qualified option pursuant to
Section 422(d)(1) of the Code. In the event that an individual
is eligible to participate in any other stock option plan of
the Company or any parent or subsidiary of the Company which
is also intended to comply with the provisions of Section 422
of the Code, such $100,000 limitation shall apply to the
aggregate number of shares for which incentive stock options
may be granted under this Plan and all such other plans.
9. OPTION AGREEMENTS
All Options granted pursuant to the Plan shall be evidenced by written
agreements ("Option Agreements"), to be executed by the Company and by the
Optionee, in such form or forms as the Board shall from time to time determine.
Option Agreements covering Options granted from time to time or at the same time
need not contain similar provisions; PROVIDED, HOWEVER, that all such Option
Agreements shall comply with all terms of the Plan.
10. OPTION PRICE
The purchase price of each share of Common Stock subject to an Option
(the "Option Price") shall be fixed by the Board and stated in each Option
Agreement, and subject to the provisions of Sections 7(b) and 8(a) above, shall
be not less than 100 percent of the fair market value of a share of Common Stock
on the date the Option is granted. If the Common Stock is then listed on any
national securities exchange, the fair market value shall be the closing price
of a share of Common Stock on such exchange on the last trading day immediately
prior to the date of grant; PROVIDED, HOWEVER, that when granting Incentive
Stock Options, the Board shall determine fair market value in accordance with
the provisions of Section 422 of the Code. If the Common Stock is not listed on
any such exchange, the fair market value shall be determined in good faith by
the Board. Notwithstanding the foregoing, the Option Price of Options granted on
the IPO Effective Date shall be equal to the initial public offering price.
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11. TERM AND VESTING OF OPTIONS
(a) OPTION PERIOD. Subject to the provisions of Sections 8(a) and
14 hereof, each Option granted under the Plan shall terminate
and all rights to purchase shares thereunder shall cease upon
the expiration of 10 years from the date such Option is
granted, or on such date prior thereto as may be fixed by the
Board and stated in the Option Agreement relating to such
Option. Notwithstanding the foregoing, the Board may in its
discretion, at any time prior to the expiration or termination
of any Option, extend the term of any such Option for such
additional period as the Board in its discretion may
determine; PROVIDED, HOWEVER, that in no event shall the
aggregate option period with respect to any Option, including
the initial term of such Option and any extensions thereof,
exceed 10 years.
(b) VESTING. Subject to the provisions of Section 14 hereof, and
except as set forth in Section 7(b)(iii), each Option shall
become exercisable with respect to 25% of the total number of
shares subject to the Option on the date that is 12 months
after the date of its grant (the "Vesting Date") and with
respect to an additional 25% of the number of such shares on
each of the next three succeeding anniversaries of the Vesting
Date. Notwithstanding the foregoing, the Board may in its
discretion provide that any vesting requirement or other such
limitation on the exercise of an Option may be rescinded,
modified or waived by the Board, in its sole discretion, at
any time and from time to time after the date of grant of such
Option, so as to accelerate the time at which the Option may
be exercised.
(c) CHANGE IN CONTROL. In the event of a Change in Control (as
defined below), except as the Board shall otherwise provide in
an Option Agreement with respect to an Option granted under
the Plan, all outstanding Options shall become immediately
exercisable in full, without regard to any limitation on
exercise imposed pursuant to Section 11(b) above. For purposes
of the Plan, a "Change in Control" shall be deemed to occur if
any person (excluding those persons or affiliates of those
persons who were stockholders of the Company prior to the
Company's initial public offering) shall acquire direct or
indirect beneficial ownership (whether as a result of stock
ownership, revocable or irrevocable proxies or otherwise) of
more than 50% of the total combined voting power with respect
to the election of directors of the issued and outstanding
capital stock of the Company (except that no Change in Control
shall be deemed to have occurred if the stockholders of the
Company immediately before such acquisition own all or
substantially all of the voting stock or other interests of
such acquiring person immediately after such transaction). For
purposes of the Plan, a "person" shall mean any person,
corporation, partnership, joint venture or other entity or any
group (as such term is defined for purposes of Section 13(d)
of the Exchange Act) and "beneficial ownership" shall be
determined in accordance with Rule 13d-3 under the Exchange
Act.
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12. MANNER OF EXERCISE AND PAYMENT
(a) EXERCISE. An Option that is exercisable hereunder may be
exercised by delivery to the Company on any business day, at
its principal office, addressed to the attention of the Stock
Option Administrator, of written notice of exercise, which
notice shall specify the number of shares with respect to
which the Option is being exercised, and shall be accompanied
by payment in full of the Option Price of the shares for which
the Option is being exercised, by one or more of the methods
provided below. The minimum number of shares of Common Stock
with respect to which an Option may be exercised, in whole or
in part, at any time shall be the lesser of 100 shares or the
maximum number of shares available for purchase under the
Option at the time of exercise.
(b) PAYMENT. Payment of the Option Price for the shares of Common
Stock purchased pursuant to the exercise of an Option shall be
made (i) in cash or in cash equivalents; (ii) through the
tender to the Company of shares of Common Stock, which shares
shall be valued, for purposes of determining the extent to
which the Option Price has been paid thereby, at their fair
market value (determined in the manner described in Section 10
above) on the date of exercise; (iii) by delivering a written
direction to the Company that the Option be exercised pursuant
to a "cashless" exercise/sale procedure (pursuant to which
funds to pay for exercise of the Option are delivered to the
Company by a broker upon receipt of stock certificates from
the Company) or a cashless exercise/loan procedure (pursuant
to which the Optionees would obtain a margin loan from a
broker to fund the exercise) through a licensed broker
acceptable to the Company whereby the stock certificate or
certificates for the shares of Common Stock for which the
Option is exercised will be delivered to such broker as the
agent for the individual exercising the Option and the broker
will deliver to the Company cash (or cash equivalents
acceptable to the Company) equal to the Option Price for the
shares of Common Stock purchased pursuant to the exercise of
the Option plus the amount (if any) of federal and other taxes
that the Company, may, in its judgment, be required to
withhold with respect to the exercise of the Option; (iv) to
the extent permitted by applicable law and agreed to by the
Board in its sole and absolute discretion, by the delivery of
a promissory note of the Optionee to the Company on such terms
as the Board shall specify in its sole and absolute
discretion; or (v) by a combination of the methods described
in clauses (i), (ii), (iii) and (iv). Payment in full of the
Option Price need not accompany the written notice of exercise
if the Option is exercised pursuant to the cashless
exercise/sale procedure described above. An attempt to
exercise any Option granted hereunder other than as set forth
above shall be invalid and of no force and effect.
(c) ISSUANCE OF CERTIFICATES. Promptly after the exercise of an
Option, the individual exercising the Option shall be entitled
to the issuance of a certificate or certificates evidencing
his ownership of such shares of Common Stock. An individual
holding or exercising an Option shall have none of the rights
of a
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stockholder until the shares of Common Stock covered thereby
are fully paid and issued to him and, except as provided in
Section 18 below, no adjustment shall be made for dividends or
other rights for which the record date is prior to the date of
such issuance.
13. TRANSFERABILITY OF OPTIONS
No Option shall be assignable or transferable by the Optionee to whom
it is granted, other than by will or the laws of descent and distribution.
14. TERMINATION OF EMPLOYMENT, DEATH OR DISABILITY
(a) GENERAL. Upon the termination of the employment or other
service of an Optionee with the Company or any Subsidiary,
other than by reason of death or "permanent and total
disability" (within the meaning of Section 22(e)(3) of the
Code) of such Optionee, any Option granted to such Optionee
pursuant to the Plan shall terminate upon the date of such
termination of employment or service and such Optionee shall
have no further right to purchase shares of Common Stock
pursuant to such Option. Notwithstanding the foregoing
provisions of this Section 14, the Board may provide, in its
discretion, that following the termination of employment or
service of an Optionee with the Company or any Subsidiary, an
Optionee may exercise an Option, in whole or in part, at any
time subsequent to such termination of employment or service
and prior to termination of the Option pursuant to Section
11(a) above, either subject to or without regard to any
vesting or other limitation on exercise imposed pursuant to
Section 11(b) above. Unless otherwise determined by the Board,
temporary absence from employment or service because of
illness, vacation, approved leaves of absence, military
service and transfer of employment shall not constitute a
termination of employment or service with the Company or any
Subsidiary.
(b) DEATH. If an Optionee dies while in the employ or service of
the Company or any Subsidiary, Optionee's estate or the
devisee named in the Optionee's valid last will and testament
or the Optionee's heir at law who inherits the Option shall
have the right, at any time within three years after the date
of such Optionee's death and prior to termination of the
Option pursuant to Section 11(a) above, to exercise, in whole
or in part, any vested portion of the Option (in accordance
with Section 11(b) above) held by such Optionee at the date of
such Optionee's death. On the date of Optionee's death, the
unvested portion of the Option shall terminate.
(c) DISABILITY. If an Optionee terminates employment or service
with the Company or any Subsidiary by reason of the "permanent
and total disability" (within the meaning of Section 22(e)(3)
of the Code) of such Optionee, then Optionee shall have the
right at any time within three years after such termination of
employment or service and prior to termination of the Option
pursuant to Section 11(a) above,
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to exercise, in whole or in part, any vested portion of the
Option (in accordance with Section 11(b) above) held by such
Optionee at the date of such termination of employment or
service. On the date of such termination of employment or
service, the unvested portion of the Option shall terminate.
Whether a termination of employment or service is to be
considered by reason of "permanent and total disability" for
purposes of this Plan shall be determined by the Board, which
determination shall be final and conclusive.
15. USE OF PROCEEDS
The proceeds received by the Company from the sale of Common Stock
pursuant to Options granted under the Plan shall constitute general funds of the
Company.
16. REQUIREMENTS OF LAW
(a) VIOLATIONS OF LAW. The Company shall not be required to sell
or issue any shares of Common Stock under any Option if the
sale or issuance of such shares would constitute a violation
by the individual exercising the Option or the Company of any
provisions of any law or regulation of any governmental
authority, including without limitation any federal or state
securities laws or regulations. Any determination in this
connection by the Board shall be final, binding, and
conclusive. The Company shall not be obligated to take any
affirmative action in order to cause the exercise of an Option
or the issuance of shares pursuant thereto to comply with any
law or regulation of any governmental authority.
(b) REGISTRATION. At the time of any exercise of any Option, the
Company may, if it shall determine it necessary or desirable
for any reason, require the Optionee (or his or her heirs,
legatees or legal representative, as the case may be), as a
condition to the exercise thereof, to deliver to the Company a
written representation of present intention to purchase the
shares for their own account as an investment and not with a
view to, or for sale in connection with, the distribution of
such shares, except in compliance with applicable federal and
state securities laws with respect thereto. In the event such
representation is required to be delivered, an appropriate
legend may be placed upon each certificate delivered to the
Optionee (or his or her heirs, legatees or legal
representative, as the case may be) upon his or her exercise
of part or all of the Option and a stop transfer order may be
placed with the transfer agent. Each Option shall also be
subject to the requirement that, if at any time the Company
determines, in its discretion, that the listing, registration
or qualification of the shares subject to the Option upon any
securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body is
necessary or desirable as a condition of or in connection
with, the issuance or purchase of the shares thereunder, the
Option may not be exercised in whole or in part unless such
listing, registration, qualification, consent or approval
shall have been effected or obtained free of any conditions
not acceptable to the Company in its sole
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discretion. The Company shall not be obligated to take any
affirmative action in order to cause the exercisability or
vesting of an Option or to cause the exercise of an Option or
the issuance of shares pursuant thereto to comply with any law
or regulation of any governmental authority.
(c) WITHHOLDING. The Board may make such provisions and take such
steps as it may deem necessary or appropriate for the
withholding of any taxes that the Company is required by any
law or regulation of any governmental authority, whether
federal, state or local, domestic or foreign, to withhold in
connection with the exercise of any Option, including, but not
limited to: (i) the withholding of delivery of shares of
Common Stock upon exercise of Options until the holder
reimburses the Company for the amount the Company is required
to withhold with respect to such taxes, (ii) the canceling of
any number of shares of Common Stock issuable upon exercise of
such Options in an amount sufficient to reimburse the Company
for the amount it is required to so withhold, or (iii)
withholding the amount due from any such person's wages or
compensation due such person.
(d) GOVERNING LAW. This Plan shall be governed by, and construed
and enforced in accordance with, the laws of the State of
Delaware.
17. AMENDMENT AND TERMINATION OF THE PLAN
The Board may, at any time and from time to time, amend, suspend or
terminate the Plan as to any shares of Common Stock as to which Options have not
been granted; PROVIDED, HOWEVER, that the approval by a majority of the votes
present and entitled to vote at a duly held meeting of the stockholders of the
Company at which a quorum representing a majority of all outstanding voting
stock is, either in person or by proxy, present and voting on the amendment, or
by written consent in accordance with applicable state law and the Certificate
of Incorporation and By-laws of the Company shall be required for any amendment
(i) that changes the requirements as to Eligible Individuals to receive Options
under the Plan, (ii) that increases the maximum number of shares of Common Stock
in the aggregate that may be sold pursuant to Options that are granted under the
Plan (except as permitted under Section 18 hereof), or (iii) if approval of such
amendment is necessary to comply with federal or state law (including without
limitation Rule 162(m) of the Code and Rule 16b-3 under the Exchange Act) or
with the rules of any stock exchange or automated quotation system on which the
Common Stock may be listed or traded. Except as permitted under Section 18
hereof, no amendment, suspension or termination of the Plan shall, without the
consent of the holder of the Option, alter or impair rights or obligations under
any Option theretofore granted under the Plan.
18. EFFECT OF CHANGES IN CAPITALIZATION
(a) RECAPITALIZATION. If the outstanding shares of Common Stock
are increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of the
Company by reason of any recapitalization, reclassification,
reorganization (other than as described in Section 18(b)
below),
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stock split, reverse split, combination of shares, exchange of
shares, stock dividend or other distribution payable in
capital stock of the Company, or other increase or decrease in
such shares effected without receipt of consideration by the
Company, occurring after the Effective Date, an appropriate
and proportionate adjustment shall be made by the Board (i) in
the aggregate number and kind of shares of Common Stock
available under the Plan, (ii) in the number and kind of
shares of Common Stock issuable upon exercise of outstanding
Options granted under the Plan, and (iii) in the Option Price
per share of outstanding Options granted under the Plan.
(b) REORGANIZATION. In connection with a merger, consolidation,
reorganization or other business combination of the Company
with one or more other entities in which the Company is not
the surviving entity, each then outstanding Option shall upon
exercise thereafter entitle the holder thereof to such number
of shares of Common Stock or other securities or property to
which a holder of shares of Common Stock would have been
entitled to upon such merger, consolidation, reorganization or
other business combination.
(c) DISSOLUTION OR LIQUIDATION. Upon the dissolution or
liquidation of the Company, the Plan and all Options
outstanding hereunder shall terminate. In the event of any
termination of the Plan under this Section 18(c), each
individual holding an Option shall have the right, immediately
prior to the occurrence of such termination and during such
reasonable period as the Board in its sole discretion shall
determine and designate, to exercise such Option in whole or
in part, whether or not such Option was otherwise exercisable
at the time such termination occurs and without regard to any
vesting or other limitation on exercise imposed pursuant to
Section 11(b) above.
(d) ADJUSTMENTS. Adjustments under this Section 18 related to
stock or securities of the Company shall be made by the Board,
whose determination in that respect shall be final, binding,
and conclusive. No fractional shares of Common Stock or units
of other securities shall be issued pursuant to any such
adjustment, and any fractions resulting from any such
adjustment shall be eliminated in each case by rounding
downward to the nearest whole share or unit.
(e) NO LIMITATIONS. The grant of an Option pursuant to the Plan
shall not affect or limit in any way the right or power of the
Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business
structure or to merge, consolidate, dissolve or liquidate, or
to sell or transfer all or any part of its business or assets.
19. DISCLAIMER OF RIGHTS
No provision in the Plan or in any Option granted or Option Agreement
entered into pursuant to the Plan shall be construed to confer upon any
individual the right to remain in the
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employ of the Company or any Subsidiary or to interfere in any way with the
right and authority of the Company or any Subsidiary either to increase or
decrease the compensation of any individual, including any Option holder, at any
time, or to terminate any employment or other relationship between any
individual and the Company or any Subsidiary. A holder of an option shall not be
deemed for any purpose to be a stockholder of the Company with respect to such
option except to the extent that such option shall have been exercised with
respect thereto and, in addition, a stock certificate shall have been issued
theretofore and delivered to the holder. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the date such stock certificate is issued, except as expressly provided in
Section 18 hereof.
20. NONEXCLUSIVITY OF THE PLAN
The adoption of the Plan shall not be construed as creating any
limitations upon the right and authority of the Board to adopt such other
incentive compensation arrangements (which arrangements may be applicable either
generally to a class or classes of individuals or specifically to a particular
individual or individuals) as the Board in its discretion determines desirable,
including, without limitation, the granting of stock options or stock
appreciation rights otherwise than under the Plan.
21. SEVERABILITY
If any provision of the Plan or any Option Agreement shall be
determined to be illegal or unenforceable by any court of law in any
jurisdiction, the remaining provisions hereof and thereof shall be severable and
enforceable in accordance with their terms, and all provisions shall remain
enforceable in any other jurisdiction.
22. NOTICES
Any communication or notice required or permitted to be given under the
Plan shall be in writing, and mailed by registered or certified mail or
delivered by hand, if to the Company, to its principal place of business,
attention: President, and if to the holder of an option, to the address as
appearing on the records of the Company.
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