EXHIBIT 4.5
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MEGAMEDIA NETWORKS, INC.
2000 STOCK OPTION PLAN
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1. PURPOSE. The purpose of this Plan is to advance the interests of
MEGAMEDIA NETWORKS, INC., a Delaware corporation (the "Company"), and
its Subsidiaries by providing an additional incentive to attract and
retain qualified and competent persons who provide services to the
Company and its Subsidiaries, and upon whose efforts and judgment the
success of the Company and its Subsidiaries is largely dependent,
through the encouragement of stock ownership in the Company by such
persons.
2. DEFINITIONS. As used herein, the following terms shall have the meaning
indicated:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(c) "Committee" shall mean the committee appointed by the Board
pursuant to Section 13(a) hereof, or, if such committee is not
appointed, the Board.
(d) "Common Stock" shall mean the Company's Common Stock, par
value $.01 per share.
(e) "Company" shall mean MEGAMEDIA NETWORKS, INC., a Delaware
corporation.
(f) "Director" shall mean a member of the Board.
(g) "Effective Date" shall mean June 1, 2000.
(h) "Fair Market Value" of a Share on any date of reference shall
mean the fair market value of a Share of the Company's Common
Stock on that date, as determined by the Committee or the
Board in a fair and uniform manner. After the Publicly-Traded
Date, Fair Market Value shall mean the "Closing Price" (as
defined below) of the Common Stock on the business day
immediately preceding the date of reference, unless the
Committee or the Board in its sole discretion shall determine
otherwise in a fair and uniform manner. For the purpose of
determining Fair Market Value, the "Closing Price" of the
Common Stock on any business day shall be (i) if the Common
Stock is listed or admitted for trading on any
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United States national securities exchange, or if actual
transactions are otherwise reported on a consolidated
transaction reporting system, the last reported sale price of
Common Stock on such exchange or reporting system, as reported
in any newspaper of general circulation, (ii) if the Common
Stock is quoted on the National Association of Securities
Dealers Automated Quotations System ("NASDAQ"), or any similar
system of automated dissemination of quotations of securities
prices in common use, the last reported sale price of Common
Stock on such system or, if sales prices are not reported, the
mean between the closing high bid and low asked quotations for
such day of Common Stock on such system, as reported in any
newspaper of general circulation or (iii) if neither clause
(i) or (ii) is applicable, the mean between the high bid and
low asked quotations for the Common Stock as reported by the
National Quotation Bureau, Incorporated if at least two
securities dealers have inserted both bid and asked quotations
for Common Stock on at least five of the ten preceding days.
(i) "Incentive Stock Option" shall mean an incentive stock option
as defined in Section 422 of the Internal Revenue Code.
(j) "Non-Qualified Stock Option" shall mean an Option that is not
an Incentive Stock Option.
(k) "Officer" shall mean the Company's Chairman of the Board,
President, Chief Executive Officer, principal financial
officer, principal accounting officer, any vice-president of
the Company in charge of a principal business unit, division
or function (such as sales, administration or finance), any
other officer who performs a policy-making function, or any
other person who performs similar policy-making functions for
the Company. Officers of Subsidiaries shall be deemed Officers
of the Company if they perform such policy-making functions
for the Company. As used in this paragraph, the phrase
"policy-making function" does not include policy-making
functions that are not significant. If pursuant to Item 401(b)
of Regulation S-K (17 C.F.R.ss. 229.401(b)) the Company
identifies a person as an "executive officer," the person so
identified shall be deemed an "Officer" even though such
person may not otherwise be an "Officer" pursuant to the
foregoing provisions of this paragraph.
(l) "Option" (when capitalized) shall mean any option granted
under this Plan.
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(m) "Option Agreement" means the agreement between the Company and
the Optionee for the grant of an option.
(n) "Optionee" shall mean a person to whom a stock option is
granted under this Plan or any person who succeeds to the
rights of such person under this Plan by reason of the death
of such person.
(o) "Outside Director" shall mean a member of the Board who
qualifies as an "outside director" under Section 162(m) of the
Internal Revenue Code and the regulations thereunder and as a
"Non-Employee Director" under Rule 16b-3 promulgated under the
Securities Exchange Act.
(p) "Plan" shall mean this 2000 Stock Option Plan for the Company.
(q) "Publicly-Traded Date" shall mean the date on which the Common
Stock of the Company, or the stock of any successor company
into which the Option or any substituted option or right
becomes exercisable pursuant to Section 10(c) hereof, are
registered pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act.
(r) "Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time.
(s) "Share" shall mean a share of Common Stock.
(t) "Subsidiary" shall mean any corporation (other than the
Company) in any unbroken chain of corporations beginning with
the Company if, at the time of the granting of the Option,
each of the corporations other than the last corporation in
the unbroken chain owns stock possessing 50 percent or more of
the total combined voting power of all classes of stock in one
of the other corporations in such chain.
3. SHARES AVAILABLE FOR OPTION GRANTS. The Committee or the Board may
grant to Optionees from time to time Options to purchase an aggregate
of up to [One Million Five Hundred Thousand] ([1,500,000]) Shares from
the Company's authorized and unissued Shares. If any Option granted
under the Plan shall terminate, expire, or be canceled or surrendered
as to any Shares, new Options may thereafter be granted covering such
Shares.
4. INCENTIVE AND NON-QUALIFIED OPTIONS.
(a) An Option granted hereunder shall be either an Incentive Stock
Option or a Non-Qualified Stock Option as determined by the
Committee or the
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Board at the time of grant of the Option and shall clearly
state whether it is an Incentive Stock Option or Non-Qualified
Stock Option. All Incentive Stock Options shall be granted
within 10 years from the effective date of this Plan.
Incentive Stock Options may not be granted to any person who
is not an employee of the Company or any Subsidiary.
(b) Options otherwise qualifying as Incentive Stock Options
hereunder will not be treated as Incentive Stock Options to
the extent that the aggregate fair market value (determined at
the time the Option is granted) of the Shares, with respect to
which Options meeting the requirements of Section 422(b) of
the Code are exercisable for the first time by any individual
during any calendar year (under all plans of the Company and
its parent and subsidiary corporations as defined in Section
424 of the Code), exceeds $100,000.
5. CONDITIONS FOR GRANT OF OPTIONS.
(a) Each Option shall be evidenced by an Option Agreement that may
contain any term deemed necessary or desirable by the
Committee or the Board, provided such terms are not
inconsistent with this Plan or any applicable law. Optionees
shall be (i) those persons selected by the Committee or the
Board from the class of all regular employees of, or persons
who provide consulting or other services as independent
contractors to, the Company or its Subsidiaries, including
Directors and Officers who are regular employees, and (ii)
Directors who are not employees of the Company or of any
Subsidiaries.
(b) In granting Options, the Committee or the Board shall take
into consideration the contribution the person has made to the
success of the Company or its Subsidiaries and such other
factors as the Committee or the Board shall determine. The
Committee or the Board shall also have the authority to
consult with and receive recommendations from officers and
other personnel of the Company and its Subsidiaries with
regard to these matters. The Committee or the Board may from
time to time in granting Options under the Plan prescribe such
other terms and conditions concerning such Options as it deems
appropriate, including, without limitation, (i) prescribing
the date or dates on which the Option becomes exercisable,
(ii) providing that the Option rights accrue or become
exercisable in installments over a period of years, or upon
the attainment of stated goals or both, or (iii) relating an
Option to the continued employment of the Optionee for a
specified period of time, provided that such terms and
conditions are not more favorable to an Optionee than those
expressly permitted herein.
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(c) The Options granted to employees under this Plan shall be in
addition to regular salaries, pension, life insurance or other
benefits related to their employment with the Company or its
Subsidiaries. Neither the Plan nor any Option granted under
the Plan shall confer upon any person any right to employment
or continuance of employment by the Company or its
Subsidiaries.
(d) The Committee or the Board shall have the discretion to grant
Options that are exercisable for unvested shares of Common
Stock. Should the Optionee cease to be employed with or
perform services for the Company (or a Subsidiary) while
holding such unvested shares, the Company shall have the right
to repurchase, at the exercise price paid per share, any or
all of those unvested shares. The terms upon which such
repurchase right shall be exercisable (including the period
and procedure for exercise and the appropriate vesting
schedule for the purchased shares) shall be established by the
Committee or the Board and set forth in the document
evidencing such repurchase right.
(e) Notwithstanding any other provision of this Plan, an Incentive
Stock Option shall not be granted to any person owning
directly or indirectly (through attribution under Section
424(d) of the Code) at the date of grant, stock possessing
more than 10% of the total combined voting power of all
classes of stock of the Company (or of its parent or
subsidiary corporation [as defined in Section 424 of the Code]
at the date of grant) unless the option price of such Option
is at least 110% of the Fair Market Value of the Shares
subject to such Option on the date the Option is granted, and
such Option by its terms is not exercisable after the
expiration of five years from the date such Option is granted.
(f) Notwithstanding any other provision of this Plan, and in
addition to any other requirements of this Plan, the aggregate
number of Options granted to any one Optionee may not exceed
[750,000], subject to adjustment as provided in Section 10
hereof.
6. OPTION PRICE. The option price per Share of any Option shall be any
price determined by the Committee or the Board but shall not be less
than the par value per Share; provided, however, that in no event shall
the option price per Share of any Incentive Stock Option be less than
the Fair Market Value of the Shares underlying such Option on the date
such Option is granted.
7. EXERCISE OF OPTIONS. An Option shall be deemed exercised when (i) the
Company has received written notice of such exercise in accordance with
the terms of the
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Option, (ii) full payment of the aggregate option price of the Shares
as to which the Option is exercised has been made, and (iii)
arrangements that are satisfactory to the Committee or the Board in its
sole discretion have been made for the Optionee's payment to the
Company of the amount that is necessary for the Company or Subsidiary
employing the Optionee to withhold in accordance with applicable
Federal or state tax withholding requirements. The consideration to be
paid for the Shares to be issued upon exercise of an Option, as well as
the method of payment of the exercise price and of any withholding and
employment taxes applicable thereto, shall be determined by the
Committee or the Board and may, in the discretion of the Committee or
the Board, consist of: (1) cash, (2) certified or official bank check,
(3) money order, (4) Shares that have been held by the Optionee for at
least six (6) months (or such other Shares as the Company determines
will not cause the Company to recognize for financial accounting
purposes a charge for compensation expense), (5) the withholding of
Shares issuable upon exercise of the Option, (6) pursuant to a
"cashless exercise" procedure, by delivery of a properly executed
exercise notice together with such other documentation, and subject to
such guidelines, as the Board or the Committee shall require to effect
an exercise of the Option and delivery to the Company by a licensed
broker acceptable to the Company of proceeds from the sale of Shares or
a margin loan sufficient to pay the exercise price and any applicable
income or employment taxes, or (7) in such other consideration as the
Committee or the Board deems appropriate, or by a combination of the
above. In the case of an Incentive Stock Option, the permissible
methods of payment shall be specified at the time the Option is
granted. The Committee or the Board in its sole discretion may accept a
personal check in full or partial payment of any Shares. If the
exercise price is paid, and/or the Optionee's tax withholding
obligation is satisfied, in whole or in part with Shares, or through
the withholding of Shares issuable upon exercise of the Option, the
value of the Shares surrendered or withheld shall be their Fair Market
Value on the date the Option is exercised. The Committee or the Board
in its sole discretion may, on an individual basis or pursuant to a
general program established in connection with this Plan, cause the
Company to lend money to an Optionee, guarantee a loan to an Optionee,
or otherwise assist an Optionee to obtain the cash necessary to
exercise all or a portion of an Option granted hereunder or to pay any
tax liability of the Optionee attributable to such exercise. If the
exercise price is paid in whole or part with Optionee's promissory
note, such note shall (i) provide for full recourse to the maker, (ii)
be collateralized by the pledge of the Shares that the Optionee
purchases upon exercise of the Option, (iii) bear interest at the prime
rate of the Company's principal lender, and (iv) contain such other
terms as the Committee or the Board in its sole discretion shall
reasonably require. No Optionee shall be deemed to be a holder of any
Shares subject to an Option unless and until a stock certificate or
certificates for those Shares are issued to that person(s) under the
terms of this Plan. No adjustment shall be made for dividends
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(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 the stock certificate is issued, except as expressly
provided in Section 10 hereof.
8. EXERCISABILITY OF OPTIONS. Any Option shall become exercisable in such
amounts, at such intervals and upon such terms as the Committee or the
Board shall provide in the Option Agreement for that Option, except as
otherwise provided in this Section 8:
(a) The expiration date of an Option shall be determined by the
Committee or the Board at the time of grant, but in no event
shall an Option be exercisable after the expiration of 10
years from the date of grant of the Option.
(b) Unless otherwise provided in any Option, each outstanding
Option shall become immediately fully exercisable in the event
of a "Change in Control" or in the event that the Committee or
the Board exercises its discretion to provide a cancellation
notice with respect to the Option pursuant to Section 9(b)
hereof. For this purpose, the term "Change in Control" shall
mean:
(i) Approval by the shareholders of the Company of a
reorganization, merger, consolidation or other form
of corporate transaction or series of transactions,
in each case, with respect to which persons who were
the shareholders of the Company immediately prior to
such reorganization, merger or consolidation or other
transaction do not, immediately thereafter, own more
than 50% of the combined voting power entitled to
vote generally in the election of directors of the
reorganized, merged or consolidated company's then
outstanding voting securities, in substantially the
same proportions as their ownership immediately prior
to such reorganization, merger, consolidation or
other transaction, or a liquidation or dissolution of
the Company or the sale of all or substantially all
of the assets of the Company (unless such
reorganization, merger, consolidation or other
corporate transaction, liquidation, dissolution or
sale is subsequently abandoned); or
(ii) Individuals who, as of the date on which the Option
is granted hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute
at least a majority of the Board, provided that any
person becoming a director subsequent to the date on
which the Option was granted whose election, or
nomination for election by the Company's
shareholders, was approved by a vote of at least
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a majority of the directors then comprising the
Incumbent Board (other than an election or nomination
of an individual whose initial assumption of office
is in connection with an actual or threatened
election contest relating to the election of the
Directors of the Company, as such terms are used in
Rule 14a-11 of Regulation 14A of Regulation 14A
promulgated under the Securities Exchange Act) shall
be, for purposes of this Agreement, considered as
though such person were a member of the Incumbent
Board.; or
(iii) The acquisition (other than from the Company) by any
person, entity or "group", within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act, of beneficial ownership (within the
meaning of Rule 13-d promulgated under the Securities
Exchange Act, of more than 50% of either the then
outstanding shares of the Company's Common Stock or
the combined voting power of the Company's then
outstanding voting securities entitled to vote
generally in the election of directors (hereinafter
referred to as the ownership of a "Controlling
Interest") excluding, for this purpose, any
acquisitions by (1) the Company or its Subsidiaries,
(2) any person, entity or "group" that as of the date
on which the Option is granted owns beneficial
ownership (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act) of a
Controlling Interest or (3) any employee benefit plan
of the Company or its Subsidiaries.
(d) The Committee or the Board may in its sole discretion
accelerate the date on which any Option may be exercised and
may accelerate the vesting of any Shares subject to any Option
or previously acquired by the exercise of any Option.
9. TERMINATION OF OPTION PERIOD.
(a) Unless otherwise provided in any Option Agreement, the
unexercised portion of any Option shall automatically and
without notice terminate and become null and void at the time
of the earliest to occur of the following:
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(i) three months after the date on which the Optionee's
employment is terminated other than by reason of (A)
Cause, which, solely for purposes of this Plan, shall
mean the termination of the Optionee's employment by
reason of the Optionee's willful misconduct or gross
negligence, (B) a mental or physical disability
(within the meaning of Internal Revenue Code Section
22(e)) of the Optionee as determined by a medical
doctor satisfactory to the Committee, or (C) death of
the Optionee;
(ii) immediately upon the termination of the Optionee's
employment for Cause;
(iii) twelve months after the date on which the Optionee's
employment is terminated by reason of a mental or
physical disability (within the meaning of Section
22(e) of the Code) as determined by a medical doctor
satisfactory to the Committee or the Board;
(iv) (A) twelve months after the date of termination of
the Optionee's employment by reason of death of the
Optionee, or , if later, (B) three months after the
date on which the Optionee shall die if such death
shall occur during the one year period specified in
Subsection 9(a)(iii) hereof;
(v) the tenth anniversary of the date on which the Option
was granted.
All references herein to the termination of the Optionee's employment
shall, in the case of an Optionee who is not an employee of the Company
or a Subsidiary, refer to the termination of the Optionee's service
with the Company.
(b) To the extent not previously exercised, (i) each Option shall
terminate immediately in the event of (1) the liquidation or
dissolution of the Company, or (2) any reorganization, merger,
consolidation or other form of corporate transaction in which
the Company does not survive, unless the successor
corporation, or a parent or subsidiary of such successor
corporation, assumes the Option or substitutes an equivalent
option or right pursuant to Section 10(c) hereof, and (ii) the
Committee or the Board in its sole discretion may by written
notice ("cancellation notice") cancel, effective upon the
consummation of any corporate transaction described in
Subsection 8(b)(i) hereof in which the Company does survive,
any Option that remains unexercised on such date. The
Committee or the Board shall give written notice of any
proposed transaction referred to in this Section 9(b) a
reasonable period of time prior to the closing date for such
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transaction (which notice may be given either before or after
approval of such transaction), in order that Optionees may
have a reasonable period of time prior to the closing date of
such transaction within which to exercise any Options that
then are exercisable (including any Options that may become
exercisable upon the closing date of such transaction). An
Optionee may condition his exercise of any Option upon the
consummation of a transaction referred to in this Section
9(b).
10. ADJUSTMENT OF SHARES.
(a) If at any time while the Plan is in effect or unexercised
Options are outstanding, there shall be any increase or
decrease in the number of issued and outstanding Shares
through the declaration of a stock dividend or through any
recapitalization resulting in a stock split-up, combination or
exchange of Shares, then and in that event:
(i) appropriate adjustment shall be made in the maximum
number of Shares available for grant under the Plan,
or available for grant to any person under the Plan,
so that the same percentage of the Company's issued
and outstanding Shares shall continue to be subject
to being so optioned; and
(ii) the Board or the Committee may, in its discretion,
make any adjustments it deems appropriate in the
number of Shares and the exercise price per Share
thereof then subject to any outstanding Option, so
that the same percentage of the Company's issued and
outstanding Shares shall remain subject to purchase
at the same aggregate exercise price.
(b) Unless otherwise provided in any Option Agreement, the
Committee may change the terms of Options outstanding under
this Plan, with respect to the option price or the number of
Shares subject to the Options, or both, when, in the
Committee's sole discretion, such adjustments become
appropriate so as to preserve benefits under the Plan.
(c) In the event of a proposed sale of all or substantially all of
the Company's assets or any reorganization, merger,
consolidation or other form of corporate transaction in which
the Company does not survive, where the securities of the
successor corporation, or its parent company, are issued to
the Company's shareholders, then the successor corporation or
a parent of the successor corporation may, with the consent of
the Committee or the Board, assume each outstanding Option or
substitute an equivalent option or right. If the successor
corporation, or its parent, does not cause such an
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assumption or substitution to occur, or the Committee or the
Board does not consent to such an assumption or substitution,
then each Option shall terminate pursuant to Section 9(b)
hereof upon the consummation of sale, merger, consolidation or
other corporate transaction.
(d) Except as otherwise expressly provided herein, the issuance by
the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any
class, either in connection with a direct sale or upon the
exercise of rights or warrants to subscribe therefore, or upon
conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made to, the number of
or exercise price for Shares then subject to outstanding
Options granted under the Plan.
(e) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under the Plan shall
not affect in any manner the right or power of the Company to
make, authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger
or consolidation of the Company; (iii) any issue by the
Company of debt securities, or preferred or preference stock
that would rank above the Shares subject to outstanding
Options; (iv) the dissolution or liquidation of the Company;
(v) any sale, transfer or assignment of all or any part of the
assets or business of the Company; or (vi) any other corporate
act or proceeding, whether of a similar character or
otherwise.
11. TRANSFERABILITY OF OPTIONS AND SHARES. No Incentive Stock Option, and
unless the prior written consent of the Committee or the Board is
obtained (which consent may be withheld for any reason) and the
transaction does not violate the requirements of Rule 16b-3 promulgated
under the Securities Exchange Act no Non-Qualified Stock Option, shall
be subject to alienation, assignment, pledge, charge or other transfer
other than by the Optionee by will or the laws of descent and
distribution, and any attempt to make any such prohibited transfer
shall be void. Each Option shall be exercisable during the Optionee's
lifetime only by the Optionee, or in the case of a Non-Qualified Stock
Option that has been assigned or transferred with the prior written
consent of the Committee or the Board, only by the permitted assignee.
12. ISSUANCE OF SHARES.
(a) Notwithstanding any other provision of this Plan, the Company
shall not be obligated to issue any Shares unless it is
advised by counsel of its
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selection that it may do so without violation of the
applicable Federal and State laws pertaining to the issuance
of securities, and may require any stock so issued to bear a
legend, may give its transfer agent instructions, and may take
such other steps, as in its judgment are reasonably required
to prevent any such violation.
(b) As a condition to any sale or issuance of Shares upon exercise
of any Option, the Committee or the Board may require such
agreements or undertakings as the Committee or the Board may
deem necessary or advisable to facilitate compliance with any
applicable law or regulation including, but not limited to,
the following:
(i) a representation and warranty by the Optionee to the
Company, at the time any Option is exercised, that he
is acquiring the Shares to be issued to him for
investment and not with a view to, or for sale in
connection with, the distribution of any such Shares;
and
(ii) a representation, warranty and/or agreement to be
bound by any legends endorsed upon the certificate(s)
for the Shares that are, in the opinion of the
Committee or the Board, necessary or appropriate to
facilitate compliance with the provisions of any
securities laws deemed by the Committee or the Board
to be applicable to the issuance and transfer of
those Shares.
13. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Board or, at the
discretion of the Board, by a committee appointed by the Board
(the "Committee") which shall be composed of two or more
Directors. At any time after the Publicly Traded Date, the
membership of the Committee shall be constituted so as to
comply at all times with the then applicable requirements for
Outside Directors of Rule 16b-3 promulgated under the
Securities Exchange Act and Section 162(m) of the Internal
Revenue Code. The Committee shall serve at the pleasure of the
Board and shall have the powers designated herein and such
other powers as the Board may from time to time confer upon
it.
(b) The Committee or the Board may grant Options pursuant to this
Plan to any persons to whom Options may be granted under
Section 5(a) hereof.
(c) The Committee or the Board, from time to time, may adopt rules
and regulations for carrying out the purposes of the Plan. The
determinations of the Committee or the Board, and its
interpretation and construction of
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any provision of the Plan or any Option Agreement, shall be
final and conclusive.
(d) Any and all decisions or determinations of the Committee shall
be made either (i) by a majority vote of the members of the
Committee at a meeting or (ii) without a meeting by the
unanimous written approval of the members of the Committee.
14. WITHHOLDING OR DEDUCTION FOR TAXES. If at any time specified herein for
the making of any issuance or delivery of any Option or Common Stock to
any Optionee, any law or regulation of any governmental authority
having jurisdiction in the premises shall require the Company to
withhold, or to make any deduction for, any taxes or to take any other
action in connection with the issuance or delivery then to be made, the
issuance or delivery shall be deferred until the withholding or
deduction shall have been provided for by the Optionee or beneficiary,
or other appropriate action shall have been taken.
15. INTERPRETATION.
(a) As it is the intent of the Company that after the
Publicly-Traded Date, the Plan shall comply in all respects
with Rule 16b-3 promulgated under the Securities Exchange Act
("Rule 16b-3"), any ambiguities or inconsistencies in
construction of the Plan shall be interpreted to give effect
to such intention, and if any provision of the Plan is found
not to be in compliance with Rule 16b-3, such provision shall
be deemed null and void to the extent required to permit the
Plan to comply with Rule 16b-3. The Committee or the Board may
from time to time adopt rules and regulations under, and
amend, the Plan in furtherance of the intent of the foregoing.
(b) The Plan and any Option Agreements entered into pursuant to
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. If any
provision of the Plan or any Option Agreement relating to an
Incentive Stock Option should be held invalid for the granting
of Incentive Stock Options or illegal for any reason, that
determination shall not affect the remaining provisions
hereof, but instead the Plan and the Option Agreement shall be
construed and enforced as if such provision had never been
included in the Plan or the Option Agreement.
(c) This Plan shall be governed by the laws of the State of
[Delaware].
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(d) Headings contained in this Plan are for convenience only and
shall in no manner be construed as part of this Plan.
(e) Any reference to the masculine, feminine, or neuter gender
shall be a reference to such other gender as is appropriate.
16. AMENDMENT AND DISCONTINUATION OF THE PLAN. The Committee or the Board
may from time to time amend, suspend or terminate the Plan or any
Option; provided, however, that, any amendment to the Plan shall be
subject to the approval of the Company's shareholders if such
shareholder approval is required by any federal or state law or
regulation (including, without limitation, Rule 16b-3 or to comply with
Section 162(m) of the Internal Revenue Code) or the rules of any Stock
exchange or automated quotation system on which the Common Stock may
then be listed or granted. Except to the extent provided in Sections 9
and 10 hereof, no amendment, suspension or termination of the Plan or
any Option issued hereunder shall substantially impair the rights or
benefits of any Optionee pursuant to any Option previously granted
without the consent of the Optionee.
17. EFFECTIVE DATE AND TERMINATION DATE. The effective date of the Plan is
June 1, 2000 and the Plan shall terminate on the 10th anniversary of
the Effective Date. The Plan shall be submitted to the shareholders of
the Company for their approval and adoption and Options hereunder may
be granted prior to such approval and adoption but contingent upon such
approval and adoption.
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