Exhibit 4.1
MULTI-LINK TELECOMMUNICATIONS, INC.
AMENDED AND RESTATED STOCK OPTION PLAN
(Amended and Restated as of December 13, 1999)
On January 15, 1997, the shareholders of Multi-Link Telecommunications,
Inc. (the "Company") approved the Company's Stock Option Plan (the "Original
Plan"). The effective date of the Original Plan was January 15, 1997. The
maximum number of shares of Common Stock authorized to be issued upon exercise
of Stock Options (as defined below) granted under the Original Plan was 300,000.
As of December 13, 1999, 279,390 shares of Common Stock were subject to
outstanding Stock Options or had been issued upon exercise of Stock Options
under the Original Plan. Stock Options granted prior to the effective date of
this Amended and Restated Stock Option Plan shall be governed by the terms and
provisions of the Original Plan.
On March 22, 2000, the shareholders of the Company approved this Amended
and Restated Stock Option Plan (the "Plan"), effective as of December 13, 1999,
and the reservation of an additional 500,000 shares of Common Stock for issuance
upon exercise of Stock Options granted under the Plan. The total number of
shares of Common Stock that may be issued pursuant to Stock Options under the
Plan is 800,000 (including shares reserved for issuance under the Original
Plan). Stock Options granted on or after December 13, 1999, shall be governed by
the Plan.
1. Purpose.
This Plan provides for the grant of Stock Options, Reload Options and
Stock Appreciation Rights to Employees and Consultants of the Company, and such
of its subsidiaries (as defined in Section 424(f) of the Code) as the Board of
Directors of the Company (the "Board") shall from time to time designate
("Participating Subsidiaries"), in order to advance the interests of the Company
and its Participating Subsidiaries, if any, through the motivation, attraction
and retention of their respective Employees and Consultants.
2. Incentive Stock Options and Nonstatutory Stock Options.
The Stock Options granted under this Plan may be either (a) Incentive
Stock Options ("ISOs") which are intended to be "incentive stock options" as
that term is defined in Section 422 of the Code; or (b) Nonstatutory Stock
Options ("NSOs") which are intended to be options that do not qualify as
incentive stock options under Section 422 of the Code. ISOs may only be granted
to individuals who are Employees. To the extent granted to Employees, all Stock
Options shall be ISOs unless the Option Agreement clearly designates the Stock
Options granted thereunder, or a specified portion thereof, as NSOs. Subject to
the other provisions of this Plan, a Participant may receive ISOs and NSOs at
the same time, provided that the ISOs and NSOs are clearly designated as such.
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3. Administration.
3.1 Committee. With respect to grants of Stock Options, Reload Options
and Stock Appreciation Rights to Employees and Consultants other than officers
and directors of the Company, this Plan shall be administered by a committee
comprised of at least two members of the Board, unless the Board is comprised of
only one director, in which case this Plan will be administered by the Board
(the "Committee"). With respect to grants of Stock Options, Reload Options and
Stock Appreciation Rights to Employees who are officers or directors of the
Company, this Plan shall be administered by the Board, if each director is a
Disinterested Person, or by a special committee of two or more Disinterested
Persons. Such special committee may be the Committee if all of the members
thereof are Disinterested Persons, or a separate committee appointed by the
Board comprised of at least two Disinterested Persons. The Committee or the
Board, as the case may be, shall have full authority to administer this Plan,
including, but not limited to, authority to interpret and construe any provision
of this Plan and any Stock Option, Reload Option or Stock Appreciation Right
granted hereunder, to adopt such rules and regulations for administering this
Plan as it may deem necessary in order to comply with the requirements of this
Plan or the Code or in order that Stock Options that are intended to be ISOs
will be classified as incentive stock options under the Code, or in order to
conform to any regulation or to any change in any law or regulations applicable
thereto and to take the actions permitted hereunder. The Committee or the Board
may delegate any of its responsibilities under this Plan, other than its
responsibility to make grants of Stock Options, Reload Options and Stock
Appreciation Rights, to determine whether the Stock Appreciation Rights, if any,
payable to a Participant shall be paid in cash, in shares of Common Stock or a
combination thereof, or to interpret and construe this Plan. If the Board is
composed entirely of Disinterested Persons, the Board may reserve to itself any
of the authority granted to the Committee as set forth herein, and it may
perform and discharge all of the functions and responsibilities of the Committee
at any time that a duly constituted Committee is not appointed and serving. All
references in this Plan to the "Committee" shall be deemed to refer to the Board
whenever the Board is discharging the powers and responsibilities of the
Committee, and to any special committee appointed by the Board to administer
particular aspects of this Plan.
3.2 Actions of Committee. All actions taken and all interpretations
and determinations made by the Committee in good faith (including determinations
of Fair Market Value) shall be final and binding upon all Participants, the
Company and all other interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation made in good
faith with respect to this Plan, and all members of the Committee shall, in
addition to their rights as directors, be fully indemnified by the Company with
respect to any such action, determination or interpretation.
4. Definitions.
4.1 "Code." The Code means the Internal Revenue Code of 1986, as
amended.
4.2 "Common Stock." A share of Common Stock means a share of no par
value common stock of the Company.
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4.3 "Consultant." A Consultant means any person who is engaged by the
Company or any Participating Subsidiary to render consulting or advisory
services as an independent contractor (and not as an Employee) and is
compensated for such services.
4.4 "Disinterested Person." A Disinterested Person is a director of
the Company who, during the shorter of (a) the one-year period prior to service
as an administrator of this Plan, or (b) the period between the date on which
capital stock of the Company is registered pursuant to Section 12 of the 1934
Act and the director's service as an administrator of this Plan, has not been
granted or awarded equity securities pursuant to this Plan or any other plan of
the Company or any of its affiliates except as may be permitted by Rule
16b-3(c)(2) promulgated under the 1934 Act or any successor to such rule.
4.5 "Fair Market Value." The Fair Market Value of a share of Common
Stock on any date shall be the closing bid price, as quoted by the National
Association of Securities Dealers through NASDAQ (its automated system for
reporting quotes), for the date in question.
4.6 "Employee." Employee means an individual who performs services
while in the employ of the Company or a Participating Subsidiary subject to the
control and direction of the employer entity not only as to the work to be
performed but also as to the manner and method of performance.
4.7 "1934 Act." The 1934 Act means the Securities and Exchange Act of
1934, as amended.
4.8 "Option Agreement." An Option Agreement means a written agreement
evidencing a Stock Option.
4.9 "Option Price." An Option Price means the price which the
Committee designates for the exercise of a Stock Option.
4.10 "Participant." A Participant means an Employee or Consultant to
whom a Stock Option, Reload Option and/or Stock Appreciation Right is granted.
4.11 "Redemption Value." The Redemption Value of shares of Common
Stock purchasable under a Stock Option means the amount, if any, by which the
Fair Market Value of one share of Common Stock on the date on which the Stock
Option is exercised exceeds the Option Price for such share.
4.12 "Reload Option." A Reload Option means a Stock Option granted
under and subject to the terms of Section 8 of this Plan.
4.13 "Stock Appreciation Right." A Stock Appreciation Right means the
right to receive payment, in shares of Common Stock, cash or a combination of
shares of Common Stock and cash, of the Redemption Value of a specified number
of shares of Common Stock then purchasable under a Stock Option.
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4.14 "Stock Option." A Stock Option means the right granted under this
Plan to a Employee or Consultant to purchase, at such time or times and at such
Option Price as are determined by the Committee and specified in the Option
Agreement, the number of shares of Common Stock determined by the Committee and
specified in the Option Agreement.
5. Eligibility and Participation.
Grants of Stock Options, Reload Options and Stock Appreciation Rights
may be made to Employees and Consultants of the Company or any Participating
Subsidiary, if any. Any director of the Company or of a Participating Subsidiary
who is also an Employee or Consultant shall also be eligible to receive Stock
Options, Reload Options and Stock Appreciation Rights; provided, however,
members of the Committee and directors who are not Employees or Consultants
shall not be eligible to receive Stock Options, Reload Options or Stock
Appreciation Rights under this Plan. The Committee shall from time to time
determine the Employees or Consultants to whom Stock Options shall be granted,
the number of shares of Common Stock subject to the Stock Options to be granted
to each such Employee or Consultant, the Option Price of such Stock Options, and
the terms and provisions of such Stock Options, all as provided in this Plan.
The Option Price of any ISO shall be not less than the Fair Market Value of a
share of Common Stock on the date on which the Stock Option is granted, but the
Option Price of an NSO may be less than the Fair Market Value on the date the
NSO is granted if the Committee so determines. If an ISO is granted to an
Employee who then owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or any subsidiary
corporation of the Company, the Option Price of such ISO shall be at least 110%
of the Fair Market Value of the Common Stock subject to the ISO at the time such
ISO is granted, and such ISO shall not be exercisable after five years after the
date on which it was granted. Each Stock Option shall be evidenced by an Option
Agreement containing such terms and provisions as the Committee may determine,
subject to the provisions of this Plan.
6. Shares of Common Stock Subject to this Plan.
6.1 Maximum Number. The maximum aggregate number of shares of Common
Stock that may be made subject to Stock Options granted under this Plan shall be
800,000 authorized but unissued shares (including shares allocated under the
Original Plan). The aggregate Fair Market Value (determined as of the time the
ISO is granted) of the Common Stock subject to ISOs granted to a Participant
which may first become exercisable in a particular calendar year may not exceed
$100,000. If any shares of Common Stock subject to Stock Options are not
purchased or otherwise paid for before such Stock Options expire, such shares
may again be made subject to Stock Options.
6.2 Capital Changes. Subject to the provisions of Section 13 hereof,
in the event any changes are made to the shares of Common Stock (whether by
reason of merger, consolidation, reorganization, recapitalization, stock
dividend, stock split, combination of shares, exchange of shares, change in
corporate structure or otherwise), proportionate adjustments shall be made in:
(i) the number of shares of Common Stock theretofore made subject to Stock
Options; (ii) the purchase price of shares of Common Stock theretofore made
subject to Stock Options; and (iii) the aggregate number of shares of Common
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Stock which may be made subject to Stock Options. If any of the foregoing
adjustments shall result in a fractional share, the fraction shall be
disregarded, and the Company shall have no obligation to make any cash or other
payment with respect to such fractional share.
7. Exercise of Stock Options.
7.1 Time of Exercise. Subject to the provisions of this Plan, the
Committee, in its discretion, shall determine the time when a Stock Option, or a
portion of a Stock Option, shall become exercisable, and the time when a Stock
Option, or a portion of a Stock Option, shall expire. Such time or times shall
be set forth in the Option Agreement evidencing such Stock Option. A Stock
Option shall expire, to the extent not exercised, no later than the tenth
anniversary of the date on which it was granted. The Committee may accelerate
the vesting of any Participant's Stock Option by giving written notice to the
Participant. Upon receipt of such notice, the Participant and the Company shall
amend the Option Agreement to reflect the new vesting schedule, if, however, the
Option Agreement is not amended, the notice given by the Committee shall be
deemed to amend the Option Agreement with respect to the vesting schedule. The
acceleration of the exercise period of a Stock Option shall not affect the
expiration date of that Stock Option. Any shares of Common Stock not purchased
at the time a Stock Option first becomes exercisable shall remain purchasable at
any time until the Stock Option expires.
7.2 Exercise of Stock Options. A Participant may elect to exercise
Stock Options by delivering a written notice to the Company specifying the
number of shares of Common Stock with respect to which he exercises such Stock
Options and delivering payment of the Exercise Price of such Stock Options as
provided in this Section 7.2. The Exercise Price shall become immediately due
upon exercise of the Stock Options, and shall be payable in one of the
alternatives specified below:
(a) full payment in cash or check made payable to the Corporation's
order;
(b) with the prior consent of the Company, full payment in shares of
Common Stock valued at Fair Market Value on the exercise date;
(c) with the prior consent of the Company, full payment in a
combination of shares of Common Stock valued at Fair Market Value
on the exercise date, and cash or check made payable to the
Corporation's order; or
(d) full payment through a broker-dealer sale and remittance
procedure pursuant to which the Participant shall provide
concurrent irrevocable written instructions (i) to a
Company-designated brokerage firm to effect the immediate sale of
the purchased shares and remit to the Company, out of the sale
proceeds available on the settlement date, sufficient funds to
cover the aggregate Exercise Price payable for the purchased
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shares plus all applicable Federal, state and local income and
employment taxes required to be withheld by the Company in
connection with such purchase, and (ii) to the Company to deliver
the certificates for the purchased shares directly to such
brokerage firm in order to complete the sale transaction.
7.3 Stock Appreciation Rights. The Committee, in its sole discretion,
may permit a Participant to surrender all or part of an unexercised Stock Option
under this Plan in exchange for a distribution from the Company in an amount
equal to the excess of (i) the Fair Market Value (on the Option surrender date)
of the number of shares in which the Participant is at the time vested under the
surrendered Stock Option (or surrendered portion thereof), over (ii) the
aggregate exercise price payable for such vested shares of Common Stock.
(a) No such Stock Option surrender shall be effective unless it is
approved by the Committee. If the surrender is so approved, then
the distribution to which the Participant shall accordingly
become entitled may be made in shares of Common Stock valued at
Fair Market Value on the Stock Option surrender date, in cash, or
partly in shares and partly in cash, as the Committee shall in
its sole discretion deem appropriate.
(b) If the surrender of a Stock Option is rejected by the Committee,
then the Participant shall retain whatever rights the Participant
had under the surrendered Stock Option (or surrendered portion
thereof) on the Stock Option surrender date and may exercise such
rights at any time prior to the later of (i) five (5) business
days after the receipt of the rejection notice, or (ii) the last
day on which the Stock Option is otherwise exercisable in
accordance with the terms of the instrument evidencing such
option.
7.4 Termination of Employment Before Exercise. If a Participant's
employment with the Company or a Participating Subsidiary, if any, shall
terminate by reason of the Participant's death or disability within the meaning
of Section 22(e)(3) of the Code, any Stock Options then held by the Participant,
to the extent then exercisable under the applicable Option Agreement(s), shall
remain exercisable after the termination of his employment for a period of
twelve months (but in no event beyond ten years from the date of grant of the
Stock Option). If a Participant's employment with the Company or a Participating
Subsidiary, if any, shall terminate for any reason other than the Participant's
death or disability, any Stock Options then held by the Participant, to the
extent then exercisable under the applicable Option Agreement(s), shall remain
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exercisable after the termination of his or her employment for a period of three
months. If the Stock Option is not exercised during the applicable period, it
shall be deemed to have been forfeited and of no further force or effect.
7.5 Disposition of Forfeited Stock Options. Any shares of Common Stock
subject to Stock Options forfeited by a Participant under this Plan shall not
thereafter be eligible for purchase by the Participant, but may be made subject
to Stock Options granted to other Participants.
8. Reload Options.
8.1 Authorization of Reload Options. Concurrently with the award of
Stock Options to any Participant, the Committee may authorize Reload Options to
purchase, for cash or shares of Common Stock, a number of shares of Common
Stock. The number of Reload Options shall equal:
(a) the number of shares of Common Stock used to exercise the
underlying Stock Options; and
(b) to the extent authorized by the Committee, the number of shares
of Common Stock used to satisfy any tax withholding requirement
incident to the exercise of the underlying Stock Options. The
grant of a Reload Option will become effective upon the exercise
of underlying Stock Options or Reload Options through the use of
shares of Common Stock held by the Participant for at least
twelve months. Notwithstanding the fact that the underlying Stock
Option may be an Incentive Stock Option, a Reload Option is not
intended to qualify as an "incentive stock option" under Section
422 of the Code.
8.2 Reload Option Amendment. Each Option Agreement shall state whether
the Committee has authorized Reload Options with respect to the underlying Stock
Options. Upon the exercise of an underlying Stock Option or other Reload Option,
the Reload Option will be evidenced by an amendment to the underlying Option
Agreement.
8.3 Reload Option Price. The Option Price per share of Common Stock
deliverable upon the exercise of a Reload Option shall be the Fair Market Value
of a share of Common Stock on the date the grant of the Reload Option becomes
effective.
8.4 Term and Exercise. Each Reload Option shall be fully exercisable
six months from the date the grant of the Reload Option becomes effective. The
term of each Reload Option shall be equal to the remaining option term of the
underlying Stock Option.
8.5 Termination of Employment. No additional Reload Options shall be
granted to Participants when Stock Options and/or Reload Options are exercised
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pursuant to the terms of this Plan following termination of the Participant's
employment with the Company or a Participating Subsidiary.
8.6 Applicability of Stock Option Sections. Section 7 of this Plan
shall apply equally to Reload Options. Section 7 of this Plan is incorporated by
reference in this Section 8 as though fully set forth herein.
9. Stock Appreciation Rights.
9.1 Grant of Stock Appreciation Rights. The Committee may, from time
to time, grant Stock Appreciation Rights to a Participant with respect to not
more than the number of shares of Common Stock which are, or may become,
purchasable under the Stock Options held by the Participant. The Committee may,
in its sole discretion, specify the terms and conditions of such rights,
including without limitation the time period or time periods during which such
rights may be exercised and the date or dates upon which such rights shall
expire and become void and unexercisable; provided, however, that in no event
shall such rights expire and become void and unexercisable later than the time
when the related Stock Option is exercised, expires or terminates. Each Option
Agreement shall state whether the Committee has granted Stock Appreciation
Rights and shall specify the terms and conditions of such rights, which shall be
subject to all the provisions of this Plan.
9.2 Exercise of Stock Appreciation Rights. Subject to Section 9.3, and
in lieu of purchasing shares of Common Stock upon the exercise of a Stock Option
held by him, a Participant may elect to exercise the Stock Appreciation Rights,
if any, he has been granted and receive payment of the Redemption Value of all,
or any portion, of the number of shares of Common Stock subject to such Stock
Option with respect to which he has been granted Stock Appreciation Rights;
provided, however, that the Stock Appreciation Rights may be exercised only when
the Fair Market Value of the shares of Common Stock subject to such Stock Option
exceeds the exercise price of the Stock Option. A Participant shall exercise
Stock Appreciation Rights by delivering a written notice to the Committee
specifying the number of shares of Common Stock with respect to which he
exercises Stock Appreciation Rights and agreeing to surrender the right to
purchase an equivalent number of shares of Common Stock subject to his Stock
Option. If a Participant exercises Stock Appreciation Rights, payment of his
Stock Appreciation Rights shall be made in accordance with Section 9.3 on or
before the 90th day after the date of exercise of the Stock Appreciation Rights.
9.3 Form of Payment. If a Participant elects to exercise Stock
Appreciation Rights as provided in Section 9.2, the Committee may, in its
absolute discretion, elect to pay any part or all of the Redemption Value of the
shares with respect to which the Participant has exercised Stock Appreciation
Rights in: (i) cash; (ii) shares of Common Stock; or (iii) any combination of
cash and shares of Common Stock. The Committee's election pursuant to this
Section 9.3 shall be made by giving written notice to the Participant within 90
days after the date of exercise of the Stock Appreciation Rights, which notice
shall specify the portion which the Committee elects to pay in cash, shares of
Common Stock or a combination thereof. In the event any portion is to be paid in
shares of Common Stock, the number of shares of Common Stock to be delivered
shall be determined by dividing the amount which the Committee elects to pay in
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shares of Common Stock by the Fair Market Value of one share of Common Stock on
the date of exercise of the Stock Appreciation Rights. Any fractional share
resulting from any such calculation shall be disregarded. The shares of Common
Stock, together with any cash payable to the Participant, shall be delivered
within the 90-day period required above.
10. No Contract of Employment.
Nothing in this Plan shall confer upon the Participant the right to
continue in the employ of the Company, or any Participating Subsidiary, if any,
nor shall it interfere in any way with the right of the Company, or any
Participating Subsidiary, if any, to discharge the Participant at any time for
any reason whatsoever, with or without cause. Nothing in this Section 10 shall
affect any rights or obligations of the Company or any Participant under any
written contract of employment.
11. No Rights as a Shareholder.
A Participant shall have no rights as a shareholder with respect to
any shares of Common Stock subject to a Stock Option granted under this Plan.
Except as provided in Section 6.2, no adjustments shall be made in the number of
shares of Common Stock issued to a Participant, or in any other rights of the
Participant upon exercise of a Stock Option, by reason of any dividend,
distribution or other right granted to shareholders for which the record date is
prior to the date of exercise of the Participant's Stock Option.
12. Assignability.
No Stock Option, Reload Option or Stock Appreciation Right awarded
under this Plan, nor any other rights acquired by a Participant under this Plan,
shall be assignable or transferable by a Participant, other than by will or
applicable laws of intestate succession. During a Participant's lifetime, Stock
Options may be exercised only by such Participant or the guardian or legal
representative of the Participant. Notwithstanding the foregoing, the Committee
may, in its sole discretion, permit the assignment or transfer of an NSO by a
Participant, other than an officer or director, and the exercise thereof by a
person other than such Participant, on such terms and conditions as the
Committee in its sole discretion, may determine. Any such terms shall be
determined at the time the NSO is granted, and shall be set forth in the Option
Agreement. In the event of a Participant's death, the Stock Option or any Reload
Option or Stock Appreciation Right may be exercised by the personal
representative of the Participant's estate or, if no personal representative has
been appointed, by the successor or successors in interest determined under the
Participant's will or under the applicable laws of intestate succession.
13. Termination of Plan.
In the event of dissolution or liquidation of the Company, or upon any
reorganization, merger or consolidation of the Company with one or more
corporations where the Company is the surviving corporation and the shareholders
of the Company immediately prior to such transaction do not own at least fifty
percent (50%) of the issued and outstanding Common Stock immediately after such
transaction, or upon any reorganization, merger or consolidation of the Company
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with one or more corporations where the Company is not the surviving
corporation, or upon a sale of substantially all of the assets of the Company to
another corporation or entity or upon the sale of Common Stock to another person
or entity in one or a series of transactions with the result that such person or
entity owns more than fifty percent (50%) of the issued and outstanding Common
Stock immediately after such sale(s), the Plan and all Stock Options and Reload
Options and Stock Appreciation Rights, if any, outstanding under the Plan shall
terminate on the effective date of the transaction (or, in the event of a tender
offer resulting in the sale of fifty percent (50%) or more of the then
outstanding Common Stock (a "Tender Offer"), 30 days after the final expiration
of the Tender Offer) unless prior to the effective date of the transaction the
Board elects, in its sole discretion, to continue the Plan. In the event the
Board does not elect to continue the Plan, however, any Stock Options, Reload
Options and Stock Appreciation Rights theretofore granted and outstanding under
the Plan shall become immediately exercisable in full at such time as the
approval of the transaction by the Board, or the final expiration of any Tender
Offer (notwithstanding any performance, vesting or other criteria contained
therein), and shall remain exercisable until the effective date of such
transaction or 30 days after the final expiration of the Tender Offer, whichever
is applicable (unless the Stock Option, Reload Option or Stock Appreciation
Right would otherwise expire by its own terms on an earlier date). The Company
shall give each optionee written notice at least 30 days prior to the effective
date of any termination of the Plan as a result of a transaction described above
in order to permit the optionee to exercise his Stock Options and/or Reload
Options and Stock Appreciation Rights, if any, prior to the effective date of
termination. Unless the Board has elected to continue the Plan, any option not
exercised by the effective date of a transaction described above shall terminate
on such date.
14. Withholding Taxes.
The Company or Participating Subsidiary, if any, may take such steps
as it may deem necessary or appropriate for the withholding of any taxes which
the Company or the Participating Subsidiary, if any, is required by any law or
regulation or any governmental authority, whether federal, state or local,
domestic or foreign, to withhold in connection with any Stock Option, Reload
Option or Stock Appreciation Right, including, but not limited to, the
withholding of all or any portion of any payment or the withholding of issuance
of shares of Common Stock to be issued upon the exercise of any Stock Option,
Reload Option or Stock Appreciation Right, until the Participant reimburses the
Company or Participating Subsidiary, if any, for the amount the Company or
Participating Subsidiary, if any, is required to withhold with respect to such
taxes, or canceling any portion of such award in an amount sufficient to
reimburse itself for the amount it is required to so withhold.
15. Amendment.
The Board may from time to time alter, amend, suspend or discontinue
this Plan, including, where applicable, any modifications or amendments as it
shall deem advisable in order that ISOs will be classified as incentive stock
options under the Code, or in order to conform to any regulation or to any
change in any law or regulations applicable thereto; provided, however, that no
such action shall adversely affect the rights and obligations with respect to
Stock Options at any time outstanding under this Plan; and provided further,
however, that no such action shall, without the approval of the holders of a
majority of the outstanding Common Stock of the Company, (i) increase the
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maximum number of shares of the Common Stock that may be made subject to Stock
Options (unless necessary to effect the adjustments required by Section 6.2),
(ii) materially increase the benefits accruing to Participants under this Plan,
or (iii) materially modify the requirements as to eligibility for participation
in this Plan.
16. Application of Section 16.
With respect to persons subject to Section 16 of the 1934 Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the 1934 Act. To the extent any
provision of this Plan or action by the Committee fails to so comply, it shall
be deemed null and void, to the extent permitted by law and deemed advisable by
the Committee.
17. Registration of Optioned Shares.
The Stock Options shall not be exercisable unless the purchase of such
optioned shares is pursuant to an applicable effective registration statement
under the Securities Act of 1933, as amended (the "Act"), or unless, in the
opinion of counsel to the Company, the proposed purchase of such optioned shares
would be exempt from the registration requirements of the Act, and from the
registration or qualification requirements of applicable state securities laws.
The Company shall have no obligation to register any shares of Common Stock.
18. Stock Restrictions.
The Committee may provide that shares of Common Stock issuable upon
the exercise of a Stock Option, Reload Option or Stock Appreciation Right, be
subject to various restrictions, including restrictions which provide that the
Company has a right to prohibit sales of such shares of Common Stock, a right of
first refusal with respect to such shares of Common Stock or a right or
obligation to repurchase all or a portion of such shares of Common Stock, which
restrictions may survive a Participant's term of employment with the Company.
The acceleration of time or times at which the Stock Option becomes exercisable
may be conditioned upon the Participant's agreement to such restrictions.
19. Nonexclusivity of this Plan.
Neither the adoption of this Plan by the Board nor the submission of
this Plan to shareholders of the Company for approval shall be construed as
creating any limitations on the power or authority of the Board to adopt such
other or additional incentive or other compensation arrangements of whatever
nature as the Board may deem necessary or desirable or preclude or limit the
continuation of any other plan, practice or arrangement for the payment of
compensation or fringe benefits to employees generally, or to any class or group
of employees, which the Company or any Participating Subsidiary, if any, has
lawfully put into effect, including, without limitation, any retirement,
pension, savings and stock purchase plan, insurance, death and disability
benefits and executive short-term incentive plans.
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20. Effective Date.
This Plan was adopted by the Board and became effective as of December
13, 1999, and was approved by the shareholders of the Company on March 22, 2000.
No ISOs shall be granted under this Plan subsequent to 10 years after its
original effective date, although NSOs may continue to be granted under this
Plan after such ten-year period. ISOs outstanding subsequent to ten years after
the original effective date of this Plan shall continue to be governed by the
provisions of this Plan.
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