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EXHIBIT 99.1
AMENDED AND RESTATED
EXTENSIS CORPORATION
1994 STOCK INCENTIVE PLAN
1. PURPOSES AND SCOPE OF THE PLAN.
1.1 PURPOSES OF PLAN.The purposes of this Stock Incentive Plan are to
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to the Employees and Consultants
of the Company and to promote the success of the Company's business.
1.2 SCOPE OF PLAN. Options granted hereunder may be either "incentive
stock options," as defined in Section 422 of the Internal Revenue Code of 1986,
as amended, or "nonqualified stock options," at the discretion of the Board and
as reflected in the terms of the written option agreement. In addition, shares
of the Company's Common Stock may be Sold hereunder independent of any Option
grant.
2. DEFINITIONS. As used herein, the following definitions shall apply:
2.1 "Administrator" shall mean the Board or any of its Committees as
shall be administering the Plan, in accordance with Section 4.1.1 of the Plan.
2.2 "Board" shall mean the Board of Directors of the Company.
2.3 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.4 "Common Stock" shall mean the Common Stock of the Company.
2.5 "Company" shall mean Extensis Corporation, an Oregon corporation.
2.6 "Committee" shall mean the Committee appointed by the Board of
Directors in accordance with Section 4.1 of the Plan, if one is appointed.
2.7 "Consultant" shall mean any person who is engaged by the Company or
any Parent or Subsidiary to render consulting services and is compensated for
such consulting services and any Director of the Company whether or not
compensated by the Company for such services.
2.8 "Continuous Status as an Employee or Consultant" shall mean the
absence of any interruption or termination of service as an Employee or
consultant. Continuous Status as an Employee or Consultant shall not be
considered interrupted in the case of sick leave, military leave, or any
other leave of absence approved by the Company; provided that such leave is
for a period of not more than ninety days or reemployment upon the expiration
of such leave is guaranteed by contract or statute, and, provided, further,
that on the ninety-first day of such leave (where reemployment is not
guaranteed by contract or statute) the Optionee's Incentive Stock Option
shall automatically convert into a Nonqualified Stock Option.
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2.9 "Director" shall mean a member of the Board.
2.10 "Disability" shall mean total and permanent disability as defined
in Section 22(e)(3) of the Code.
2.11 "Employee" shall mean any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. Neither the
payment of a director's fee by the Company nor service as a Director shall be
sufficient to constitute "employment" by the Company.
2.12 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
2.13 "Incentive Stock Option" shall mean an Option intended to qualify
as an incentive stock option within the meaning of Section 422 of the Code.
2.14 "Nonqualified Stock Option" shall mean an Option not intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code.
2.15 "Officer" shall mean a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
2.16 "Option" shall mean a stock option granted pursuant to the Plan.
2.17 "Option Agreement" shall mean a written agreement between the
Company and an Optionee evidencing the terms and conditions of an individual
Option grant. The Option Agreement is subject to the terms and conditions of
the Plan.
2.18 "Optioned Stock" shall mean the Common Stock subject to an Option.
2.19 "Optionee" shall mean an Employee or Consultant who receives an
Option.
2.20 "Parent" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
2.21 "Plan" shall mean this Amended and Restated 1994 Stock Incentive
Plan.
2.22 "Rule 16b-3" shall mean Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
2.23 "Sale" or "Sold" shall include, with respect to the sale of Shares
under the Plan, the sale of Shares for consideration in the form of cash or
notes, as well as a grant of Shares without consideration, except past or future
services.
2.24 "Share" shall mean a share of the Common Stock, as adjusted in
accordance with Section 13 of the Plan.
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2.25 "Subsidiary" shall mean a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN
3.1 SIZE OF PLAN POOL. Subject to the provisions of Section 13 of the
Plan, the maximum aggregate number of Shares which may be optioned and/or Sold
under the Plan is 5,400,000 shares of Common Stock. The Shares may be
authorized, but unissued, or reacquired Common Stock.
3.2 RETURN OF UNEXERCISED OPTION SHARES. If an Option should expire or
become unexercisable for any reason without having been exercised in full, the
unpurchased Shares which were subject thereto shall, unless the Plan shall have
been terminated, become available for future Option grants and/or Sales under
the Plan.
3.3 RETURN OF UNVESTED OR RESTRICTED SHARES. If Shares Sold under the
Plan or purchased upon the exercise of an Option are repurchased by the
Company pursuant to restrictions applicable to such Shares, the number of
Shares repurchased shall, unless the Plan shall have been terminated, become
available for future Option grants and/or Sales under the Plan.
3.4 RESERVATION OF SHARES. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan. Inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
4. ADMINISTRATION OF THE PLAN.
4.1 PROCEDURE. The Plan shall be administered by the Board.
4.1.1 MULTIPLE ADMINISTRATIVE BODIES. If permitted by Rule 16b-3,
the Plan may be administered by different bodies with respect to Directors,
Officers who are not Directors, and Employees who are neither Directors nor
Officers.
4.1.2 ADMINISTRATION WITH RESPECT TO DIRECTORS AND OFFICERS
SUBJECT TO SECTION 16(b). With respect to Option grants made to Employees who
are also Officers or Directors subject to Section 16(b) of the Exchange Act,
the Plan shall be administered by (i) the Board, if the Board may administer
the Plan in compliance with the rules governing a plan intended to qualify as
a discretionary plan under Rule 16b-3, or (ii) a Committee designated by the
Board to administer the Plan, which Committee shall be constituted to comply
with the rules, if any, governing a plan intended to qualify as a
discretionary plan under Rule 16b-3. Once appointed, such Committee shall
continue to serve in its designated capacity until otherwise directed by the
Board. From time to time the Board may increase the size of the Committee and
appoint additional members, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), and remove all
members of the Committee and thereafter directly administer the Plan, all to
the extent permitted by the rules governing a plan intended to qualify as a
discretionary plan under Rule 16b-3. With respect to persons subject to
Section 16 of the Exchange Act, transactions under the Plan are intended to
comply with all applicable conditions of Rule 16b-3. To the extent any
provision of the Plan or action by the Administrator fails to so comply, it
shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Administrator.
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4.1.3 ADMINISTRATION WITH RESPECT TO OTHER PERSONS. With respect
to Option grants made to Employees or Consultants who are neither Directors
nor Officers of the Company, the Plan shall be administered by (i) the Board,
or (ii) a Committee designated by the Board, which Committee shall be
constituted to satisfy the legal requirements relating to the administration
of stock option plans under state corporate and securities laws and the Code.
Once appointed, such Committee shall serve in its designated capacity until
otherwise directed by the Board. From time to time the Board may increase the
size of the Committee and appoint additional members, remove members (with or
without cause) and substitute new members, fill vacancies (however caused),
and remove all members of the Committee and thereafter directly administer
the Plan, all to the extent permitted by the legal requirements relating to
the administration of stock option plans under state corporate and securities
laws and the Code.
4.2 POWERS OF THE ADMINISTRATOR. Subject to the provisions of the Plan,
and in the case of a Committee, subject to the specific duties delegated by the
Board to such Committee, the Administrator shall have the authority, in its
discretion, to do any or all of these things.
4.2.1 GRANT OPTIONS. To grant Incentive Stock Options in accordance
with Section 422 of the Code, or Nonqualified Stock Options.
4.2.2 AUTHORIZE SALES. To authorize Sales of Shares of Common Stock
hereunder.
4.2.3 DETERMINE FAIR MARKET VALUE. To determine, upon review of
relevant information and in accordance with Section 8-4 of the Plan, the fair
market value of the Common Stock.
4.2.4 DETERMINE EXERCISE OR PURCHASE PRICE. To determine the
exercise/purchase price per Share of Options to be granted or Shares to be Sold,
which exercise/purchase price shall be determined in accordance with Section 8.1
of the Plan.
4.2.5 DECIDE WHO GETS OPTIONS. To determine the Employees or
Consultants to whom, and the time or times at which, Options shall be granted
and the number of Shares to be represented by each Option.
4.2.6 DECIDE WHO GETS STOCK. To determine the Employees or
Consultants to whom, and the time or times at which, Shares shall be Sold and
the number of Shares to be Sold.
4.2.7 INTERPRET PLAN. To interpret the Plan.
4.2.8 MAKE RULES ABOUT PLAN. To prescribe, amend and rescind rules
and regulations relating to the Plan.
4.2.9 SET AND AMEND OPTION TERMS. To determine the terms and
provisions of each Option granted (which need not be identical) and, with
consent of the holder thereof, modify or amend each Option.
4.2.10 SET AND AMEND SALE TERMS. To determine the terms and
provisions of each Sale of Shares (which need not be identical) and, with the
consent of the purchaser thereof, modify or amend each Sale.
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4.2.11 CHANGE EXERCISE DATES OF OPTIONS. To accelerate or defer
(with the consent of the Optionee) the exercise date of any Option.
4.2.12 CHANGE VESTING RESTRICTIONS. To accelerate or defer (with the
consent of the Optionee or purchaser of Shares) the vesting restrictions
applicable to Shares Sold under the Plan or pursuant to Options granted under
the Plan.
4.2.13 AUTHORIZE SIGNERS. To authorize any person to execute on
behalf of the Company any instrument required to effectuate the grant of an
Option or Sale of Shares previously granted or authorized by the Board.
4.2.14 ESTABLISH SHAREHOLDER AGREEMENT RESTRICTIONS. To determine
the restrictions on transfer, vesting restrictions, repurchase rights, or other
restrictions applicable to Shares issued under the Plan.
4.2.15 CANCEL AND REISSUE OPTIONS (SUBJECT TO PRICE RESTRICTIONS).
To effect at any time and from time to time, with the consent of the affected
Optionees, the cancellation of any or all outstanding Options under the Plan and
to grant in substitution therefor new Options under the Plan covering the same
or different numbers of Shares, but having an Option price per Share consistent
with the provisions of Section 8 of this Plan as of the date of the new Option
grant.
4.2.16 MAKE CASE BY CASE EXCEPTIONS AT TERMINATION OF EMPLOYMENT.
To establish, on a case-by-case basis, different terms and conditions pertaining
to exercise or vesting rights upon termination of employment, whether at the
time of an Option grant or Sale of Shares, or thereafter.
4.2.17 APPROVE FORMS. To Approve forms of agreement for use under
the Plan.
4.2.18 REDUCE EXERCISE PRICE. To reduce the exercise price of any
Option to the then current fair market value if the fair market value of the
Common Stock covered by such Option shall have declined since the date the
Option was granted.
4.2.19 APPROVE CASH SETTLEMENTS. To determine whether and under what
circumstances an Option may be settled in cash under subsection 12.10 instead of
Common stock.
4.2.20 DO OTHER THINGS NEEDED OR ADVISABLE. To make all other
determinations deemed necessary or advisable for the administration of the Plan.
4.3 EFFECT OF ADMINISTRATOR'S DECISION. All decisions, determinations
and interpretations of the Administrator shall be final and binding on all
Optionees; and any other holders of any Options granted under the Plan or Shares
Sold under the Plan.
5. ELIGIBILITY
5.1 PERSONS ELIGIBLE. Options may be granted and/or Shares Sold only to
Employees and Consultants. Incentive Stock Options may be granted only to
Employees. An Employee or Consultant who has been granted an Option or Sold
Shares may, if he is otherwise eligible, be granted an additional Option or
Options or Sold additional Shares.
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5.2 ISO LIMITATION. No Incentive Stock Option may be granted to an
Employee which, when aggregated with all other Incentive Stock Options granted
to such Employee by the Company or any Parent or Subsidiary, would result in
Shares having an aggregate fair market value (determined for each Share as of
the date of grant of the Option covering such Share) in excess of $100,000
becoming first available for purchase upon exercise of one or more Incentive
Stock Options during any calendar year.
5.3 SECTION 5.2 LIMITATIONS. Section 5.2 of the Plan shall apply only
to an Incentive Stock Option evidenced by an "Incentive Stock Option Agreement"
which sets forth the intention of the Company and the Optionee that such Option
shall qualify as an Incentive Stock Option. Section 5.2 of the Plan shall not
apply to any Option evidenced by a "Nonqualified Stock Option Agreement" which
sets forth the intention of the Company and the Optionee that such Option shall
be a Nonqualified Stock Option.
5.4 NO RIGHT TO CONTINUED EMPLOYMENT. The Plan shall, not confer upon
any Optionee any right with respect to continuation of an employment or
consulting relationship with the Company, nor shall it interfere in any way
with his right or the Company's right to terminate his employment or
consulting relationship at any time, with or without cause.
5.5 OTHER LIMITATIONS. The following limitations shall apply to grants
of Options to Employees:
5.5.1 No Employee shall be granted, in any fiscal year of the
Company, Options to purchase more than 200,000 Shares.
5.5.2 In connection with his or her initial employment, an Employee
may be granted an Option to purchase up to an additional 200,000 Shares which
shall not count against the limit set forth in subsection 5.5.1 above.
5.5.3 The foregoing limitations shall be adjusted proportionately in
connection with any change in the Company's capitalization as described in
Section 13.
5.5.4 If any Option is canceled in the same fiscal year of the
Company in which it was granted (other than in connection with a transaction
described in Section 13), the canceled Option shall be counted against the
limits set forth in subsections 5.5.1 and 5.5.2 above). For this purpose, if
the exercise price of an Option is reduced, the transaction will be treated as
a cancellation of the Option and the grant of a new Option.
6. TERM OF PLAN. The Plan shall become effective upon the earlier to occur
of its adoption by the Board or its approval by the stockholders of the Company
as described in Section 16 of the Plan. It shall continue in effect for a term
of ten (10) years, unless sooner terminated under Section 14 of the Plan.
7. TERM OF OPTIONS.
7.1 TERM OF ISOS TO 10% OR LESS HOLDERS. The term of each Incentive
Stock Option shall be ten (10) years from the date of grant thereof or such
shorter term as may be provided in the Stock Option Agreement.
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7.2 TERM OF NONQUALIFIED OPTIONS TO 10% OR LESS HOLDERS. The term of
each Nonqualified Stock Option shall be ten (10) years and one (1) day from the
date of grant thereof or such other term as may be provided in the Stock Option
Agreement.
7.3 TERM FOR HOLDERS OF MORE THAN 10%. In the case of an Option granted
to an Optionee who, at the time the Option is granted, owns stock representing
more than ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, (a) if the Option is an Incentive Stock
Option, the term of the Option shall be five (5) years from the date of grant
thereof or such shorter time as may be provided in the Stock Option Agreement,
or (b) if the Option is a Nonqualified Stock Option, the term of the Option
shall be five (5) years and one (1) day from the date of grant thereof or such
other term as may be provided in the Stock Option Agreement.
8. EXERCISE/PURCHASE PRICE AND CONSIDERATION.
8.1 EXERCISE/PURCHASE PRICE. The per Share exercise/purchase price for
the Shares to be issued pursuant to exercise of an Option or a Sale (other than
a Sale which is a grant for which no purchase price is payable) shall be such
price as is determined by the Administrator, but shall be subject to the
requirements of this Section 8.
8.2 ISO PRICE.
8.2.1 ISO PRICE TO HOLDERS OF MORE THAN 10%. In the case of an
Incentive Stock Option granted to an Employee who, at the time of the grant of
such Incentive Stock Option, owns stock representing more than ten percent
(10%) of the voting power of all classes of stock of the Company or any Parent
or Subsidiary, the per Share exercise price shall be no less than one hundred
ten percent (110%) of the fair market value per Sham on the date of the grant.
8.2.2 ISO PRICE TO HOLDERS OF 10% OR LESS. In the case of an
Incentive Stock Option granted to any other Employee, the per Share exercise
price, shall be no less than one hundred percent (100%) of the fair market
value per Share on the date of grant.
8.3 NONQUALIFIED OPTION AND SALE PRICE.
8.3.1 NONQUALIFIED PRICE TO HOLDERS OF MORE THAN 10%. In the case
of a Nonqualified Stock Option or Sale, the per Share exercise/purchase price
shall be determined By the Administrator.
8.4 PRICING AT LESS THAN FAIR MARKET VALUE. Any determination to
establish an Option exercise price or affect a Sale of Common Stock at less
than fair market value on the date of the Option grant or authorization of Sale
shall be accompanied by an express finding by the Administrator specifying that
the grant or Sale is in the best interest of the Company, and specifying both
the fair market value and the Option exercise price or sale price of the Common
Stock.
8.5 FAIR MARKET VALUE. The fair market value per Share shall be
determined by the Administrator in its discretion; provided, however, that
where there is a public market for the Common Stock, the fair market value per
Share shall be the closing price of the Common Stock for the date of grant or
authorization of Sale, as reported in THE WALL STREET JOURNAL (or, if not so
reported, as otherwise reported by the National Association of Securities
Dealers Automated Quotation (NASDAQ) System) or, in the event the Common Stock
is listed on a stock exchange, the fair market value per Share shall be the
closing price on such exchange on the date of grant of the Option or
authorization of Sale, as reported in THE WALL STREET JOURNAL.
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8.6 CONSIDERATION. The consideration to be paid for the Shares to be
issued upon exercise of an Option or pursuant to a Sale, including the method of
payment, shall be determined by the Administrator and may consist in whole or
part of:
8.6.1 CASH, CHECK, NOTE. Cash, Check, or Promissory Note.
8.6.2 TRANSFERRED OR WITHHELD SHARES. Transfer to the Company of
Shares having a Fair Market Value at the time of such exercise equal to the
Option exercise price, or delivery of instructions to the Company to withhold
from the Shares that would otherwise be issued on the exercise that number of
Shares having a Fair Market Value at the time of such exercise equal to the
Option exercise price. If the Fair Market Value of the number of whole Shares
transferred or the number of whole Shares surrendered is less than the total
exercise price of the Option, the shortfall must be made up in cash or by check.
9. TIME OF GRANTING OPTIONS. The date of grant of an Option shall, for all
purposes, be the date on which the Administrator makes the determination
granting such Option. Notice of the determination shall be given to each
Employee or Consultant to whom An Option is so granted within a reasonable time
after the date of such grant.
10. OPTION AGREEMENT. Options shall be evidenced by written option
agreements in such form as the Administrator shall approve.
11. NONTRANSFERABILITY OF OPTIONS. Except as otherwise specifically
provided in the Option Agreement, an Option nay not be sold, pledged, assigned,
hypothecated, transferred or disposed of in any manner other than by will, or by
the laws of descent and distribution, and may be exercised during the lifetime
of the Optionee only by the Optionee or, if incapacitated, by his or her legal
guardian or legal representative.
12. EXERCISE OF OPTION.
12.1 WHEN EXERCISABLE. Any Option granted hereunder shall be exercisable
at such times and under such conditions as determined by the Board, including
performance criteria with respect to the Company and/or the Optionee, and as
shall be permissible under the terms of the Plan.
12.2 NO FRACTIONAL SHARES. An Option may not be exercised for a fraction
of a Share.
12.3 HOW EXERCISED. An Option shall be deemed to be exercised when
written notice of such exercise his been given to the Company in accordance
with the terms of the Option by the person entitled to exercise the Option and
full payment for the Shares with respect to which the Option is exercised has
been received by the Company. Full payment may, as authorized by the Board,
consist of any consideration and method of payment allowable under Section 8.6
of the Plan.
12.3.1 DEPOSITS FOR WITHHOLDING TAXES. Each Optionee who exercises
an Option shall, upon notification of the amount due (if any) and prior to or
concurrent with delivery of the certificate representing the Shares, pay to the
Company amounts necessary to satisfy applicable federal, state and local tax
withholding requirements.
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12.3.2 SHAREHOLDER AGREEMENTS. An Optionee must also provide a duly
executed copy of any stock transfer agreement then in effect and determined to
be applicable by the Board.
12.4 NO SHAREHOLDER RIGHTS OR ADJUSTMENTS UNTIL ISSUANCE. Until the
issuance (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or
any other rights as a stockholder shall exist with respect to the Optioned
Stock represented by such stock certificate, notwithstanding the exercise of
the Option. No adjustment will be made for a dividend or other right for
which the record date is prior to the date the stock certificate is issued,
except as provided in Section 13 of the Plan.
12.5 EFFECT OF EXERCISE AN PLAN POOL. Exercise of an Option in any
manner shall result in a decrease in the number of Shares which thereafter
may be available, both for purposes of the Plan and for sale under the
Option, by the number of Shares as to which the Option is exercised.
12.6 TERMINATION OF STATUS AS AN EMPLOYEE OR CONSULTANT. If an
Employee or Consultant ceases to serve as an Employee or Consultant (as the
case may be), he may, but only within three (3) months (or such other period
of time not exceeding the limitations of Section 7 above as is determined by
the Administrator at the time of grant of an Option or thereafter) after the
date he ceases to be an Employee or Consultant (as the case may be) of the
Company, exercise his Option to the extent that he was entitled to exercise
it at the date of such termination. To the extent that he was not entitled to
exercise the Option at the date of such termination, or if he does not
exercise such Option (which he was entitled to exercise) within the time
specified herein, the Option shall terminate.
12.7 DISABILITY OF OPTIONEE. Notwithstanding the provisions of
Section 12.6 above, in the event an Employee or Consultant is unable to
continue his employment or consulting relationship (as the case may be) with
the Company as a result of his total and permanent disability (as defined in
Section 22(e)(3) of the Code), he may, but only within twelve (12) months (or
such other period of time not exceeding the limitations of Section 7 above as
is determined by the Board at the time of grant of an Option or thereafter)
from the date of termination, exercise his Option to the extent he was
entitled to exercise it at the date of such termination. To the extent that
he was not entitled to exercise the Option at the date of termination, or if
be does not exercise such Option (which he was entitled to exercise) within
the time specified herein, the Option shall terminate.
12.8 DEATH OF OPTIONEE. In the event of the death of an Optionee
during the term of the Option who is at the time of his death an Employee or
Consultant of the Company and who shall have been in Continuous Status as an
Employee or Consultant since the date of grant of the Option, the Option may
be exercised, at any time within twelve (12) months (or such other period of
time not exceeding the limitations of Section 7 above as is determined by the
Board at the time of grant of an Option or thereafter) following the date of
death, by the Optionee's estate or by a person who acquired the right to
exercise the Option by bequest or inheritance, but only to the extent of the
right to exercise as of the date of death.
12.9 RULE 16b-3. Options granted to persons subject to Section 16(b)
of the Exchange Act must comply with Rule 16b-3 and shall contain such
additional conditions or restrictions as may be required thereunder to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
12.10 BUYOUT PROVISIONS. The Administrator may at any time offer to
buy out for a payment in cash or Shares, an Option previously granted, based
on such terms and conditions as the Administrator shall establish and
communicate to the Optionee at the time that such offer is made.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
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13.1 STOCK SPLIT AND THE LIKE. Subject to any required action by the
stockholders of the Company, the number of shares of Common Stock covered by
each outstanding Option and the number of shares of Common Stock which have
been authorized for issuance under the Plan but as to which no Options have
yet been granted or Sales made or which have been returned to the Plan upon
cancellation or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split,
stock dividend, combination or reclassification of the Common Stock, or any
other increase or decrease in the number of issued shares of Common Stock
effected without receipt of consideration by the Company; provided, however,
that conversion of any convertible securities of the Company shall not be
deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein,
no issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock subject to an Option.
13.2 TERMINATION ON DISSOLUTION OR LIQUIDATION. In the event of the
proposed dissolution or liquidation of the Company, the Option will terminate
immediately prior to the consummation of such proposed action, unless
otherwise provided by the Board. The Board may, in the exercise of its sole
discretion in such instances, declare that any Option shall terminate as of a
date fixed by the Board and give each Optionee the right to exercise his
Option as to all or any part of the Optioned Stock, including Shares as to
which the Option would not otherwise be exercisable.
13.3 SUBSTITUTION OR EXERCISE ON SALE OR MERGER. In the event of a
proposed sale of all or substantially all, of the assets of the Company, or
the merger of the Company with or into another corporation, the Option shall
be assumed or an equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation, unless
the Board determines, in the exercise of its sole discretion and in lieu of
such assumption or substitution, that the Optionee shall have the right to
exercise the Option as to all of the Optioned Stock, including Shares as to
which the Option would not otherwise be exercisable. If the Board makes an
Option fully exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee that the
Option shall be fully exercisable for a period of thirty (30) days from the
date of such notice or such shorter period as the Board may specify in the
notice, and the Option will terminate upon the expiration of such period.
14. AMENDMENT AND TERMINATION OF THE PLAN.
14.1 AMENDMENT AND TERMINATION. The Board may amend or terminate the
Plan from time to time in such respects as the Board may deem advisable.
14.2 STOCKHOLDER APPROVAL. The Company shall obtain stockholder
approval of any Plan amendment to the extent necessary and desirable to
comply with Rule 16b-3 or with Section 422 of the Code (or any successor rule
or statute or other applicable law, rule or regulation, including the
requirements of any exchange or quotation system on which the Common Stock is
listed or quoted). Such stockholder approval, if required, shall be obtained
in such a manner and to such a degree as is required by the applicable law,
rule or regulation.
14.3 EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan shall not affect Options already granted, and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee
and the Board, which agreement must be in writing and signed by the Optionee
and the Company.
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15. CONDITIONS UPON ISSUANCE OF SHARES.
15.1 GENERAL COMPLIANCE REQUIREMENT. Shares shall not be issued
pursuant to the exercise of an Option or a Sale unless the exercise of such
Option or consummation of the Sale and the issuance and delivery of such
Shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended,
applicable state securities laws, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange (including
NASDAQ) upon which the Shares may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
15.2 INVESTMENT INTENT WARRANTY. As a condition to the exercise of an
Option or a Sale, the Company may require the person exercising such Option
or to whom Shares are being Sold to represent and warrant at the time of any
such exercise or Sale that the Shares are being purchased only for investment
and without any present intention to sell or distribute such Shares if, in
the opinion of counsel for the Company, such a representation is required by
any of the aforementioned relevant provisions of law.
15.3 GRANTS EXCEEDING ALLOTTED SHARES. If the Optioned Stock covered
by an Option exceeds, as of the date of grant, the number of Shares which may
be issued under the Plan without additional stockholder approval, such Option
shall be void with respect to such excess Optioned Stock, unless stockholder
approval of an amendment sufficiently increasing the number of Shares subject
to the Plan is timely obtained in accordance with Section 14.2 of the Plan.
16. STOCKHOLDER APPROVAL. Continuance of the Plan shall be subject to
approval by the stockholders of the Company within twelve months, before or
after the date the Plan is adopted. Such stockholder approval shall be
obtained in the manner and to the degree required under applicable federal
and state law.
