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EXHIBIT 4.02
LEXON TECHNOLOGIES, INC. 2000 NON-QUALIFIED STOCK OPTION PLAN
LEXON TECHNOLOGIES, INC., a Delaware corporation (the "Company"), hereby
adopts this 2000 Non-Qualified Stock Option Plan (the "Plan"), this 14th day
of September 2000, under which options to acquire stock of the Company may be
granted from time to time to employees and consultants of the Company or its
subsidiaries. In addition, at the discretion of the board of directors,
options to acquire stock of the Company may from time to time be granted under
this Plan to other individuals who contribute to the success of the Company or
its subsidiaries and are not employees of the Company, all on the terms and
conditions set forth herein.
1. Purpose of the Plan. The Plan is intended to aid the Company in
maintaining and developing a management team, attracting qualified officers
and employees capable of assisting in the future success of the Company, and
rewarding those individuals who have contributed to the success of the
Company. It is designed to aid the Company in retaining the services of
executives and employees and in attracting new personnel when needed for
future operations and growth and to provide such personnel with an incentive
to remain employees of the Company, to use their best efforts to promote the
success of the Company's business, and to provide them with an opportunity to
obtain or increase a proprietary interest in the Company. It is also designed
to permit the Company to reward those individuals who are not employees of the
Company but who are perceived by management as having contributed to the
success of the Company or who are important to the continued business and
operations of the Company. The above aims will be effectuated through the
granting of options ("Options") to purchase shares of common stock of the
Company, par value $0.001 per share (the "Stock"), subject to the terms and
conditions of this Plan.
2. Effective Date. The Plan shall become effective immediately on adoption
by the board of directors of the Company (the "Board").
3. Administration of the Plan. Administration of the Plan shall be
determined by the Board. Subject to compliance with applicable provisions of
the governing law, the Board may delegate administration of the Plan or
specific administrative duties with respect to the Plan, on such terms and to
such committees of the Board as it deems proper. Any Option approved by the
Board shall be approved by a majority vote of those members of the Board in
attendance at a meeting at which a quorum is present. Any Option approved by
a committee designated by the Board shall be approved as specified by the
Board at the time of delegation. The interpretation and construction of the
terms of the Plan by the Board or a duly authorized committee shall be final
and binding on all participants in the Plan absent a showing of demonstrable
error. No member of the Board or duly authorized committee shall be liable
for any action taken or determination made in good faith with respect to the
Plan.
4. Shares of Stock Subject to the Plan. A total of two million five hundred
thousand (2,500,000) shares of Stock may be subject to, or issued pursuant to,
Options granted under the terms of this Plan. Any shares subject to an Option
under the Plan, which Option for any reason expires or is forfeited,
terminated, or surrendered unexercised as to such shares, shall be added back
to the total number of shares reserved for issuance under the terms of this
Plan, and if any right to acquire Stock granted under the Plan is exercised by
the delivery of shares of Stock or the relinquishment of rights to shares of
Stock, only the net shares of Stock issued (the shares of Stock issued less
the shares of Stock surrendered) shall count against the total number of
shares reserved for issuance under the terms of this Plan.
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5. Reservation of Stock on Granting of Option. At the time of granting any
Option under the terms of this Plan, there will be reserved for issuance on
the exercise of the Option the number of shares of Stock of the Company
subject to such Option. The Company may reserve either authorized but
unissued shares or issued shares that have been reacquired by the Company.
6. Eligibility. Options under the Plan may be granted to employees,
including officers, and directors of the Company or its subsidiaries, as may
be existing from time to time, and to other individuals who are not employees
of the Company, but performed bona fide services to the Company, as may be
deemed in the best interest of the Company by the Board or a duly authorized
committee. Such Options shall be in the amounts, and shall have the rights
and be subject to the restrictions, as may be determined by the Board or a
duly authorized committee, all as may be within the general provisions of this
Plan.
7. Term of Options and Certain Limitations on Right to Exercise.
(a) Each Option shall have the term established by the Board or duly
authorized committee at the time the Option is granted but in no event may an
Option have a term in excess of five (5) years.
(b) The term of the Option, once it is granted, may be reduced only as
provided for in this Plan and under the written provisions of the Option.
(c) Unless otherwise specifically provided by the written provisions of the
Option, no holder or his or her legal representative, legatee, or distributee
will be, or shall be deemed to be, a holder of any shares subject to an Option
unless and until the holder exercises his or her right to acquire all or a
portion of the Stock subject to the Option and delivers the required
consideration to the Company in accordance with the terms of this Plan and
then only to the extent of the number of shares of Stock acquired. Except as
specifically provided in this Plan or as otherwise specifically provided by
the written provisions of the Option, no adjustment to the exercise price or
the number of shares of Stock subject to the Option shall be made for
dividends or other rights for which the record date is prior to the date the
Stock subject to the Option is acquired by the holder.
(d) Options under the Plan shall vest and become exercisable at such time or
times and on such terms as the Board or a duly authorized committee may
determine at the time of the grant of the Option.
(e) Options granted under the Plan shall contain such other provisions,
including, without limitation, further restrictions on the vesting and
exercise of the Option, as the Board or a duly authorized committee shall deem
advisable.
(f) In no event may an Option be exercised after the expiration of its term.
8. Exercise Price. The exercise price of each Option issued under the Plan
shall be determined by the Board or a duly authorized committee on the date of
grant.
9. Payment of Exercise Price. The exercise of any Option shall be contingent
on receipt by the Company of cash, certified bank check to its order, or other
consideration acceptable to the Company; provided, that at the discretion of
the Board or a duly authorized committee, the written provisions of the Option
may provide that payment can be made in whole or in part in shares of Stock of
the Company, which Stock shall be valued at its then fair market value as
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determined by the Board or a duly authorized committee, or by the surrender or
cancellation of other rights to Stock of the Company, or by presentation of
invoices for services performed. Any consideration approved by the Board or a
duly authorized committee, that calls for the payment of the exercise price
over a period of more than one year shall provide for interest, which shall
not be included as part of the exercise price, that is equal to or exceeds the
imputed interest provided for in section 483 of the Code or any amendment or
successor section of like tenor.
10. Withholding. If the grant or exercise of an Option pursuant to this Plan
is subject to withholding or other trust fund payment requirements of the Code
or applicable state or local laws, such requirements may, at the discretion of
the Board or a duly authorized committee and to the extent permitted by the
terms of the Option and the then governing provisions of the Code and the
Exchange Act, be met (i) by the holder of the Option either delivering shares
of Stock or canceling Options or other rights to acquire Stock with a fair
market value equal to such requirements; (ii) by the Company withholding
shares of Stock subject to the Option with a fair market value equal to such
requirements; or (iii) by the Company making such withholding or other trust
fund payment and the Option holder reimbursing the Company such amount paid
within 10 days after written demand therefor from the Company.
11. Dilution or Other Adjustment. In the event that the number of shares of
Stock of the Company from time to time issued and outstanding is increased
pursuant to a stock split or a stock dividend, the number of shares of Stock
then covered by each outstanding Option granted hereunder shall be increased
proportionately, with no increase in the total purchase price of the shares
then so covered, and the number of shares of Stock subject to the Plan shall
be increased by the same proportion. In the event that the number of shares
of Stock of the Company from time to time issued and outstanding is reduced by
a combination or consolidation of shares, the number of shares of Stock then
covered by each outstanding Option granted hereunder shall be reduced
proportionately, with no reduction in the total purchase price of the shares
then so covered, and the number of shares of Stock subject to the Plan shall
be reduced by the same proportion. In the event that the Company should
transfer assets to another corporation and distribute the stock of such other
corporation without the surrender of Stock of the Company, and if such
distribution is not taxable as a dividend and no gain or loss is recognized by
reason of section 355 of the Code or any amendment or successor statute of
like tenor, then the total purchase price of the Stock then covered by each
outstanding Option shall be reduced by an amount that bears the same ratio to
the total purchase price then in effect as the market value of the stock
distributed in respect of a share of the Stock of the Company, immediately
following the distribution, bears to the aggregate of the market value at such
time of a share of the Stock of the Company plus the stock distributed in
respect thereof. In the event that the Company distributes the stock of a
subsidiary to its shareholders, makes a distribution of a major portion of its
assets, or otherwise distributes significant portion of the value of its
issued and outstanding Stock to its shareholders, the number of shares then
subject to each outstanding Option and the Plan, or the exercise price of each
outstanding Option, may be adjusted in the reasonable discretion of the Board
or a duly authorized committee. All such adjustments shall be made by the
Board or duly authorized committee, whose determination upon the same, absent
demonstrable error, shall be final and binding on all participants under the
Plan. No fractional shares shall be issued, and any fractional shares
resulting from the computations pursuant to this section shall be eliminated
from the respective Option. No adjustment shall be made for cash dividends,
for the issuance of additional shares of Stock for consideration approved by
the Board, or for the issuance to stockholders of rights to subscribe for
additional Stock or other securities.
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12. Options to Foreign Nationals. The Board or a duly authorized committee
may, in order to fulfill the purposes of this Plan and without amending the
Plan, grant Options to foreign nationals or individuals residing in foreign
countries that contain provisions, restrictions, and limitations different
from those set forth in this Plan and the Options made to United States
residents in order to recognize differences among the countries in law, tax
policy, and custom. Such grants shall be made in an attempt to provide such
individuals with essentially the same benefits as contemplated by a grant to
United States residents under the terms of this Plan.
13. Assignment. No Option granted under this Plan shall be transferable
other than by will or the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined in the Code. Except as
permitted by the foregoing, each Option granted under the Plan and the rights
and privileges thereby conferred shall not be transferred, assigned, pledged,
or hypothecated in any way (whether by operation of law or otherwise), and
shall not be subject to execution, attachment, or similar process. On any
attempt to transfer, assign, pledge, hypothecate, or otherwise dispose of the
Option, or of any right or privilege conferred thereby, contrary to the
provisions thereof, or on the levy of any attachment or similar process on
such rights and privileges, the Option and such rights and privileges shall
immediately become null and void.
14. Effect of Termination of Employment. In the event that any holder is
terminated or resigns from his or her position with the Company or a
subsidiary within six months of the grant of an award, any unexercised portion
of such Option shall immediately become null and void and such holder shall
have no further rights thereunder. In the event that any officer or employee
of the Company or a subsidiary is terminated at any time for, in the
determination of the Board or a duly authorized committee, gross negligence in
the performance of his or her duties, substantial failure to meet written
standards established by the Company and agreed to by the officer or employee
for the performance of his or her duties, criminal misconduct, or willful or
gross misconduct in the performance of his or her duties, the Board or a duly
authorized committee may cancel any and all rights such individual may have in
the unexercised portion of any Option held at the time of termination. In the
event that any individual contracted to perform services for the Company in
exchange for the grant of an Option hereunder fails to provide such services
and such contract is terminated, any unvested portion of such Option shall
immediately become null and void and such holder shall have no further rights
thereunder. The Board or a duly authorized committee may, at the time of the
grant of the Option, establish any other restrictions on the exercise of such
Option subsequent to the termination or resignation of any individual that it
deems appropriate. The foregoing paragraph shall not apply to consultants who
are issued options.
15. Listing and Registration of Shares. Each Option shall be subject to the
requirement that if at any time the Board shall determine, in its sole
discretion, that it is necessary or desirable to list, register, or qualify
the shares covered thereby on any securities exchange or under any state or
federal law, or obtain the consent or approval of any governmental agency or
regulatory body as a condition of, or in connection with, the granting of such
Option or the issuance or purchase of shares thereunder, such Option may not
be exercised in whole or in part unless and until such listing, registration,
consent, or approval shall have been effected or obtained free of any
conditions not acceptable to the Board.
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16. Expiration and Termination of the Plan. The Plan may be abandoned or
terminated at any time by the Board or a duly authorized committee except with
respect to any Options then outstanding under the Plan. The Plan shall
otherwise terminate on the earlier of the date that is: (i) ten years after
the date the Plan is adopted by the Board; or (ii) ten years after the date
the Plan is approved by the shareholders of the Company.
17. Form of Options. Options granted under the Plan shall be represented by
a written agreement which shall be executed by the Company and the holder and
which shall contain such terms and conditions as may be determined by the
Board or a duly authorized committee and permitted under the terms of this
Plan.
18. No Right of Employment. Nothing contained in this Plan or any Option
awarded pursuant to this Plan shall be construed as conferring on a director,
officer, or employee any right to continue or remain as a director, officer,
or employee of the Company or its subsidiaries.
19. Amendment of the Plan. This Plan may not be amended more than once
during any six month period, other than to comport with changes in the Code or
the Employee Retirement Income Security Act or the rules and regulations
promulgated thereunder. Subject to the foregoing and the limitations, the
Board or a duly authorized committee may modify and amend the Plan in any
respect.
LEXON TECHNOLOGIES, INC.
By:____________________________
Kenneth J. Eaken, President
