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EXHIBIT 10.2.3
PETS.COM, INC.
2000 NON-STATUTORY STOCK OPTION PLAN
1. PURPOSES OF THE PLAN. The purposes of this 2000 Non-Statutory
Stock Option 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 its Subsidiaries to promote the
success of the Company's business. Options granted hereunder shall be
Nonstatutory Stock Options.
2. DEFINITIONS. As used herein, the following definitions shall
apply:
(a) "ADMINISTRATOR" shall mean the Board or any of its
Committees appointed pursuant to Section 4 of the Plan.
(b) "AFFILIATE" shall mean an entity other than a
Subsidiary in which the Company owns an equity interest or which, together with
the Company, is under common control of a third person or entity.
(c) "APPLICABLE LAWS" shall mean the legal requirements
relating to the administration of stock option plans under applicable U.S. state
corporate laws, U.S. federal and applicable state securities laws, the Code, any
Stock Exchange rules and regulations and the applicable laws of any other
country or jurisdiction where Options are granted under the Plan, as such laws,
rules, regulations and requirements shall be in place from time to time.
(d) "BOARD" shall mean the Board of Directors of the
Company.
(e) "CODE" shall mean the Internal Revenue Code of 1986,
as amended.
(f) "COMMITTEE" shall mean the Committee appointed by the
Board in accordance with paragraph (a) of Section 4 of the Plan, if one is
appointed.
(g) "COMMON STOCK" shall mean the Common Stock of the
Company.
(h) "COMPANY" shall mean Pets.com, Inc., a Delaware
corporation.
(i) "CONSULTANT" shall mean any person who is engaged by
the Company or any Parent, Subsidiary or Affiliate to render consulting services
and is compensated for such consulting services, excluding Officers, Named
Executives and Directors.
(j) "CONTINUOUS SERVICE STATUS" shall mean the absence of
any interruption or termination of service as an Employee or Consultant to the
Company or a Parent, Subsidiary or Affiliate. Continuous Service Status shall
not be considered interrupted in the case of: (i) sick leave; (ii) military
leave; (iii) any other leave of absence approved by the Administrator, provided
that such leave is for a period of not more than 90 days, unless reemployment
upon the
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expiration of such leave is guaranteed by contract or statute, or unless
provided otherwise pursuant to Company policy adopted from time to time; or (iv)
in the case of transfers between locations of the Company or between the
Company, its Parents, Subsidiaries or Affiliates or their respective successors.
Unless otherwise determined by the Administrator, a change in status from an
Employee to a Consultant or from a Consultant to an Employee will not constitute
an interruption of Continuous Service Status.
(k) "CORPORATE TRANSACTION" shall mean a sale of all or
substantially all of the Company's assets, or a merger, consolidation or other
capital reorganization of the Company with or into another corporation.
(l) "DIRECTOR" shall mean a member of the Board.
(m) "EMPLOYEE" shall mean any person who is employed by
the Company or any Parent, Subsidiary or Affiliate of the Company, excluding
Officers, Named Executives and Directors.
(n) "EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended.
(o) "FAIR MARKET VALUE" shall mean, as of any date, the
value of Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system including without limitation the
National Market of the National Association of Securities Dealers, Inc.
Automated Quotation ("Nasdaq") System, its Fair Market Value shall be the
closing sales price for such stock (or the closing bid, if no sales were
reported), as quoted on such system or exchange on the date of determination, or
if no trading occurred on the date of determination, on the last market trading
day prior to the time of determination, as reported in The Wall Street Journal
or such other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the Nasdaq
System (but not on the National Market thereof) or regularly quoted by a
recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean between the bid and asked prices for the Common
Stock on the date of determination as reported in The Wall Street Journal or
such other source as the Administrator deems reliable; or
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good faith by
the Administrator.
(p) "NAMED EXECUTIVE" shall mean any individual who, on
the last day of the Company's fiscal year, is the chief executive officer of the
Company (or is acting in such capacity) or among the four highest compensated
officers of the Company (other than the chief executive officer). Such officer
status shall be determined pursuant to the executive compensation disclosure
rules under the Exchange Act.
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(q) "NONSTATUTORY STOCK OPTION" shall mean an Option not
intended to qualify as an incentive stock option within the meaning of Section
422 of the Code, as designated in the applicable Option Agreement.
(r) "OFFICER" shall mean a person who is appointed or
elected by the Board of Directors as an officer of the Company, including but
not limited to a person who is an officer within the meaning of Section 16 of
the Exchange Act and the rules and regulations promulgated thereunder.
(s) "OPTION" shall mean a stock option granted pursuant to
the Plan.
(t) "OPTION AGREEMENT" means a written document, the
form(s) of which shall be approved from time to time by the Administrator,
reflecting the terms of an Option granted under the Plan and includes any
documents attached to or incorporated into such Option Agreement, including, but
not limited to, a notice of stock option grant and a form of exercise notice.
(u) "OPTIONED STOCK" shall mean the Common Stock subject
to an Option.
(v) "OPTIONEE" shall mean an Employee or Consultant who
receives an Option.
(w) "PARENT" shall mean a "parent corporation," whether
now or hereafter existing, as defined in Section 424(e) of the Code.
(x) "PLAN" shall mean this 2000 Non-Statutory Stock Option
Plan.
(y) "SHARE" shall mean a share of the Common Stock, as
adjusted in accordance with Section 12 of the Plan.
(z) "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. Subject to the provisions of Section 13
of the Plan, the maximum aggregate number of Shares that may be optioned and
sold under the Plan is 1,500,000 shares of Common Stock. The Shares may be
authorized, but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares that were subject
thereto shall, unless the Plan shall have been terminated, become available for
future grant under the Plan. In addition, any Shares of Common Stock that are
retained by the Company upon exercise of an Option in order to satisfy the
exercise or purchase price for such Option or any withholding taxes due with
respect to such exercise shall be treated as not issued and shall continue to be
available under the Plan. Notwithstanding any other provision of the Plan,
shares issued under the Plan and later repurchased by the Company shall not
become available for future grant or sale under the Plan.
4. ADMINISTRATION OF THE PLAN.
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(a) COMPOSITION OF ADMINISTRATOR. The Plan shall be
administered by (A) the Board or (B) a Committee designated by the Board, which
Committee shall be constituted in such a manner as to satisfy the Applicable
Laws. If a Committee has been appointed pursuant to this Section 4(a), 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 any
Committee and appoint additional members thereof, remove members (with or
without cause) and appoint new members in substitution therefor, fill vacancies
(however caused) and remove all members of a Committee and thereafter directly
administer the Plan, all to the extent permitted by the Applicable Laws.
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions
of the Plan, and in the case of a Committee, the specific duties delegated by,
or limitations of authority imposed by, the Board to or on such Committee, the
Administrator shall have the authority, in its discretion:
(i) to grant Options under the Plan;
(ii) to determine, upon review of relevant information
and in accordance with Section 2(o) of the Plan, the Fair Market Value of the
Common Stock;
(iii) to determine the exercise price per share of
Options to be granted, which exercise price shall be determined in accordance
with Section 10(a) of the Plan;
(iv) 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;
(v) to interpret the Plan;
(vi) to approve forms of agreement for use under the
Plan;
(vi) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award granted hereunder, which
terms and conditions include but are not limited to the exercise or purchase
price, the time or times when Options may be exercised (which may be based on
performance criteria), any vesting acceleration or waiver of forfeiture
restrictions, and any restriction or limitation regarding any Option, Optioned
Stock or Restricted Stock, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;
(vii) to determine whether and under what
circumstances an Option may be settled in cash under Section 9(f) instead of
Common Stock;
(viii) 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
and to make any other amendments or adjustments to any Option that the
Administrator determines, in its discretion and under the authority granted to
it under the Plan, to be necessary or advisable, provided however that no
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amendment or adjustment to an Option that would materially and adversely
affect the rights of any Optionee shall be made without the prior written
consent of the Optionee;
(x) to initiate an Option Exchange Program;
(xi) to construe and interpret the terms of the Plan
and awards granted under the Plan; and
(xii) in order to fulfill the purposes of the Plan and
without amending the Plan, to modify grants of Options to Participants who are
foreign nationals or employed outside of the United States in order to recognize
differences in local law, tax policies or customs.
(e) EFFECT OF ADMINISTRATOR'S DECISION. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Participants.
5. ELIGIBILITY.
(a) RECIPIENTS OF GRANTS. Options may be granted only to
Employees and Consultants. An Employee or Consultant who has been granted an
Option may, if he is otherwise eligible, be granted an additional Option or
Options.
(b) TYPE OF OPTION. Each Option shall be designated in the
Option Agreement as a Nonstatutory Stock Option.
(c) AT-WILL RELATIONSHIP. The Plan shall not confer upon
any Optionee any right with respect to continuation of employment or consulting
relationship with the Company, nor shall it interfere in any way with such
holder's right or the Company's right to terminate his or her employment or
consulting relationship at any time, with or without cause.
6. TERM OF PLAN. The Plan shall become effective upon its adoption by
the Board of Directors. It shall continue in effect for a term of ten (10) years
unless sooner terminated under Section 15 of the Plan.
7. TERM OF OPTION. The term of each Option shall be ten (10) years
from the date of grant thereof or such shorter term as may be provided in the
Option Agreement.
8. EXERCISE PRICE AND CONSIDERATION.
(a) The per Share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be such price as is determined by
the Administrator, but shall be no less than 85% of the Fair Market Value per
Share on the date of grant.
(b) The consideration to be paid for the Shares to be
issued upon exercise of an Option, including the method of payment, shall be
determined by the Administrator and may consist entirely of (1) cash, (2) check,
(3) promissory note, (4) other Shares of Common Stock which (i) either have been
owned by the Optionee for more than six (6) months on the date of surrender or
were not acquired, directly or indirectly, from the Company, and (ii) have a
fair market value on the date of surrender equal to the aggregate exercise price
of the Shares as to
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which said Option shall be exercised, (5) delivery of a properly executed
exercise notice together with irrevocable instructions to a broker to deliver
promptly to the Company the amount of sale or loan proceeds required to pay the
exercise price, (6) any combination of such methods of payment, or (7) such
other consideration and method of payment for the issuance of Shares to the
extent permitted under the Applicable Laws. In making its determination as to
the type of consideration to accept, the Administrator shall consider if
acceptance of such consideration may be reasonably expected to benefit the
Company, and the Administrator may refuse to accept a particular form of
consideration at the time of any Option exercise if, in its sole discretion,
acceptance of such form of consideration is not in the best interests of the
Company at such time.
9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any
Option granted hereunder shall be exercisable at such times and under such
conditions as determined by the Administrator, consistent with the terms of the
Plan and reflected in the Option Agreement, including vesting requirements
and/or performance criteria with respect to the Company and/or the Optionee.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written
notice of such exercise has 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 Administrator,
consist of any consideration and method of payment allowable under Section 8(b)
of the Plan. 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 shareholder shall exist with respect to the
Optioned Stock, notwithstanding the exercise of the Option. The Company shall
issue (or cause to be issued) such stock certificate promptly upon 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 12 of the Plan.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares that 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.
(b) TERMINATION OF EMPLOYMENT OR CONSULTING RELATIONSHIP.
In the event of termination of an Optionee's Continuous Service Status with the
Company, such Optionee may, but only within three (3) months (or such other
period of time, not less than 30 days, as is determined by the Administrator)
after the date of such termination (but in no event later than the date of
expiration of the term of such Option as set forth in the Option Agreement),
exercise his or her Option to the extent that the Optionee was entitled to
exercise it at the date of such termination. To the extent that the Optionee was
not entitled to exercise the Option at the date of such termination, or if the
Optionee does not exercise the Option to the extent so entitled within the time
specified above, the Option shall terminate and the Optioned Stock underlying
the unexercised portion of the Option shall revert to the Plan. Unless otherwise
determined by the
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Administrator, no termination shall be deemed to occur and this Section 9(b)
shall not apply if (i) the Optionee is a Consultant who becomes an Employee, or
(ii) the Optionee is an Employee who becomes a Consultant.
(c) DISABILITY OF OPTIONEE. Notwithstanding the provisions
of Section 9(b) above, in the event of termination of an Optionee's Continuous
Service Status as a result of Optionee's disability (including a disability
within the meaning of Section 22(e)(3) of the Code), Optionee may, but only
within twelve (12) months (or such other period of time as is determined by the
Administrator) from the date of such termination (but in no event later than the
date of expiration of the term of such Option as set forth in the Option
Agreement), exercise the Option to the extent otherwise entitled to exercise it
at the date of such termination. To the extent that Optionee was not entitled to
exercise the Option at the date of termination, or if Optionee does not exercise
such Option (to the extent so entitled) within the time specified above, the
Option shall terminate, and the Optioned Stock underlying the unexercised
portion of the Option shall revert to the Plan.
(d) DEATH OF OPTIONEE. In the event of the death of an
Optionee during the period of Continuous Service Status since the date of grant
of the Option, or within 30 days following termination of the Optionee's
Continuous Service Status, the Option may be exercised, at any time within
twelve months following the date of death (but in no event later than the
expiration date of the term of such Option as set forth in the Option
Agreement), by such 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 that had accrued at the date of death or, if earlier, the date
of termination of the Optionee's Continuous Service Status. To the extent that
the Optionee was not entitled to exercise the Option at the date of death or
termination, as the case may be, or if the Optionee does not exercise such
Option to the extent so entitled within the time specified above, the Option
shall terminate and the Optioned Stock underlying the unexercised portion of the
Option shall revert to the Plan.
(e) EXTENSION OF EXERCISE PERIOD. The Administrator shall
have full power and authority to extend the period of time for which an Option
is to remain exercisable following termination of an Optionee's Continuous
Service Status from the periods set forth in Sections 9(b), 9(c) and 9(d) above
or in the Option Agreement to such greater time as the Board shall deem
appropriate, provided, that in no event shall such Option be exercisable later
than the date of expiration of the term of such Option as set forth in the
Option Agreement.
(f) BUY-OUT PROVISIONS. The Administrator may at any time
offer to buy out for a payment in cash or Shares an Option previously granted
under the Plan, based on such terms and conditions as the Administrator shall
establish and communicate to the Optionee at the time such offer is made.
10. TAXES.
(a) As a condition of the exercise of an Option granted
under the Plan, the Optionee (or in the case of the Optionee's death, the person
exercising the Option) shall make such arrangements as the Administrator may
require for the satisfaction of any applicable federal, state, local or foreign
withholding tax obligations that may arise in connection with the exercise
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of an Option and the issuance of Shares. The Company shall not be required to
issue any Shares under the Plan until such obligations are satisfied.
(b) In the case of an Employee and in the absence of any
other arrangement, the Employee shall be deemed to have directed the Company to
withhold or collect from his or her compensation an amount sufficient to satisfy
such tax obligations from the next payroll payment otherwise payable after the
date of an exercise of the Option.
(c) In the case of a Optionee other than an Employee (or
in the case of an Employee where the next payroll payment is not sufficient to
satisfy such tax obligations, with respect to any remaining tax obligations), in
the absence of any other arrangement and to the extent permitted under the
Applicable Laws, the Optionee shall be deemed to have elected to have the
Company withhold from the Shares to be issued upon exercise of the Option that
number of Shares having a Fair Market Value determined as of the applicable Tax
Date (as defined below) equal to the minimum statutory amount required to be
withheld. For purposes of this Section 10, the Fair Market Value of the Shares
to be withheld shall be determined on the date that the amount of tax to be
withheld is to be determined under the Applicable Laws (the "Tax Date").
(d) If permitted by the Administrator, in its discretion,
a Optionee may satisfy his or her tax withholding obligations upon exercise of
an Option by surrendering to the Company Shares that (i) in the case of Shares
previously acquired from the Company, have been owned by the Optionee for more
than six months on the date of surrender, and (ii) have a Fair Market Value
determined as of the applicable Tax Date equal to the minimum statutory amount
required to be withheld.
(e) Any election or deemed election by a Optionee to have
Shares withheld to satisfy tax withholding obligations under Section 10(c) or
(d) above shall be irrevocable as to the particular Shares as to which the
election is made and shall be subject to the consent or disapproval of the
Administrator. Any election by an Optionee under Section 11(d) above must be
made on or prior to the applicable Tax Date.
(f) In the event an election to have Shares withheld is
made by a Optionee and the Tax Date is deferred under Section 83 of the Code
because no election is filed under Section 83(b) of the Code, the Optionee shall
receive the full number of Shares with respect to which the Option is exercised
but such Optionee shall be unconditionally obligated to tender back to the
Company the proper number of Shares on the Tax Date.
11. NON-TRANSFERABILITY OF OPTIONS. The Options may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any manner other
than by will or by the laws of descent or distribution; provided, that the
Administrator may in its discretion grant transferable Options pursuant to
option agreements specifying (i) the manner in which such Options are
transferable and (ii) that any such transfer shall be subject to the Applicable
Laws. The designation of a beneficiary by an Optionee will not constitute a
transfer. An Option may be exercised, during the lifetime of the Optionee, only
by the Optionee or a transferee permitted by this Section 11.
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12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, CORPORATE TRANSACTION
AND OTHER TRANSACTION.
(a) ADJUSTMENTS. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock that have been
authorized for issuance under the Plan but as to which no Options have yet been
granted or which have been returned to the Plan upon cancellation or expiration
of an Option and 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 (including any change in the number of Shares of Common Stock
effected in connection with a change of domicile of the Company), 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 Administrator, 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.
(b) DISSOLUTION OR LIQUIDATION. In the event of the
dissolution or liquidation of the Company, each outstanding Option will
terminate immediately prior to the consummation of such action, unless otherwise
provided by the Administrator.
(c) CORPORATE TRANSACTIONS. In the event of a Corporate
Transaction, each outstanding Option shall be assumed or an equivalent option
shall be substituted by the successor corporation (or a Parent or Subsidiary of
such successor corporation), unless the successor corporation does not agree to
assume the outstanding Options or substitute equivalent options, in which case
the outstanding Options shall terminate upon the consummation of the
transaction.
For purposes of this Section 12(c), an Option shall be
considered assumed, without limitation, if, at the time of issuance of the stock
or other consideration upon a Corporate Transaction, each Optionee would be
entitled to receive upon exercise of an Option the same number and kind of
shares of stock or the same amount of property, cash or securities as the
Optionee would have been entitled to receive upon the occurrence of such
transaction if the Optionee had been, immediately prior to the transaction, the
holder of the number of Shares of Common Stock covered by the Option at such
time (after giving effect to any adjustments in the number of Shares covered by
the Option as provided for in this Section 12); provided however that if such
consideration received in the transaction is not solely common stock of the
successor corporation or its Parent, the Administrator may, with the consent of
the successor corporation, provide for the consideration to be received upon
exercise of the Option to be solely common stock of the successor corporation or
its Parent equal to the Fair Market Value of the per Share consideration
received by holders of Common Stock in the transaction.
(d) CERTAIN DISTRIBUTIONS. In the event of any
distribution to the Company's shareholders of securities of any other entity or
other assets (other than dividends payable in cash
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or stock of the Company) without receipt of consideration by the Company, the
Administrator may, in its discretion, appropriately adjust the price per Share
of Common Stock covered by each outstanding Option to reflect the effect of such
distribution.
13. 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.
14. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may amend or
terminate the Plan from time to time in such respects as the Board may deem
advisable
(b) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment
or termination of the Plan shall not adversely affect Options already granted
(except to the extent contemplated by such Options) and such Options shall
remain in full force and effect, unless mutually agreed otherwise between the
Optionee and the Board (or other body then administering the Plan), which
agreement must be in writing and signed by the Optionee and the Company.
15. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with the
Applicable Laws, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise 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 the
Applicable Laws.
16. 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. The 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.
17. OPTION AGREEMENTS. Options shall be evidenced by Option
Agreements in such forms as the Administrator shall from time to time approve.
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