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EXHIBIT 10.1
ASIAINFO HOLDINGS, INC.
2000 STOCK OPTION PLAN
AsiaInfo Holdings, Inc. , a Delaware corporation, wishes to attract key
employees, directors and consultants to the Company and its Subsidiaries and
induce key employees, directors and consultants to remain with the Company and
its Subsidiaries, and encourage them to increase their efforts to make the
Company's business more successful whether directly or through its Subsidiaries.
In furtherance thereof, the Asialnfo Holdings, Inc. 2000 Stock Option Plan is
designed to provide equity-based incentives to key employees, directors and
consultants of the Company and its Subsidiaries.
1. DEFINITIONS.
Whenever used herein, the following terms shall have the meanings set
forth below:
"AWARD AGREEMENT" means a written agreement in a form approved by the
Committee to be entered into by the Company and the Optionee of an option,
as provided in Section 4.
"BOARD" means the Board of Directors of the Company.
"CAUSE" means, unless otherwise provided in the Optionee's Award
Agreement, (i) engaging in (A) willful or gross misconduct or (B) willful
or gross neglect, (ii) repeatedly failing to adhere to the directions of
superiors or the Board or the written policies and practices of the
Company or its Subsidiaries or its affiliates, (iii) the commission of a
felony or a crime of moral turpitude, or any crime involving the Company
or its Subsidiaries, or any affiliate thereof, (iv) fraud,
misappropriation or embezzlement, (v) a material breach of the Optionee's
employment agreement (if any) with the Company or its Subsidiaries or its
affiliates, or (vi) any illegal act detrimental to the Company or its
Subsidiaries or its affiliates.
"CHANGE IN CONTROL" shall mean the happening of any of the following:
1.1 any "person," including a "group" (as such terms are used in Sections 13
(d) and 14 (d) of the Exchange Act, but excluding the Company, any entity
controlling, controlled by or under common control with the Company, any
employee benefit plan of the Company or any such entity, and, with respect
to any particular Optionee, the Optionee and any "group" (as such term is
used in Section 13(d)(3) of the Exchange Act) of which the Optionee is a
member), is or becomes the "beneficial owner" (as defined in Rule 13(d)(3)
under the Exchange Act), directly or indirectly, of securities of the
Company representing 25% or more of either (A) the combined voting power
of the Company's then outstanding securities or (B) the then outstanding
Shares (in either such case other than as a result of an acquisition of
securities directly from the Company); or
1.2 any consolidation or merger of the Company where the stockholders of the
Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own (as such
term is defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, shares representing in the aggregate 50% or more of the
combined voting power of the securities of the corporation issuing cash or
securities in the consolidation or merger (or of its ultimate parent
corporation, if any); or
1.3 there shall occur (A) any sale, lease, exchange or other transfer (in one
transaction or a series of transactions contemplated or arranged by any
party as a single plan) of all or substantially all of the assets of the
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Company, other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, at least 50% of
the combined voting power of the voting securities of which are owned by
Persons in substantially the same proportion as their ownership of the
Company immediately prior to such sale or (B) the approval by stockholders
of the Company of any plan or proposal for the liquidation or dissolution
of the Company; or
1.4 the members of the Board at the beginning of any consecutive 24
calendar-month period (the "Incumbent Directors") cease for any reason
other than due to death to constitute at least a majority of the members
of the Board; provided that any director whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least
a majority of the members of the Board then still in office who were
members of the Board at the beginning of such 24-calendar-month period,
shall be deemed to be an Incumbent Director.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means the Stock Option Committee of the Board, or such other
committee of the Board designated by the Board to administer the Plan.
"COMMON STOCK" means the Company's Common Stock, par value $.01, either
currently existing or authorized hereafter.
"COMPANY" means AsiaInfo Holdings, Inc., a Delaware corporation.
"DISABILITY" means the occurrence of an event which would entitle an
employee of the Company to the payment of disability income under one of
the Company's approved long-term disability income plans, or as such term
is defined under Section 22 (e) of the Code.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FAIR MARKET VALUE" per Share as of a particular date means (i) if Shares
are then listed on a national stock exchange, the closing sales price per
Share on the exchange for the last preceding date on which there was a
sale of Shares on such exchange, as determined by the Committee, (ii) if
Shares are not then listed on a national stock exchange but are then
traded on an over-the-counter market, the average of the closing bid and
asked prices for the Shares in such over-the-counter market for the last
preceding date on which there was a sale of such Shares in such market, as
determined by the Committee, or (iii) if Shares are not then listed on a
national stock exchange or traded on an over-the-counter market, such
value as may be determined by the Committee in its discretion or as may be
determined in accordance with such methodologies, procedures or other
rules (which may provide, without limitation, that determinations of Fair
Market Value shall be made by an independent third party) as may be
established by the Committee in its discretion; provided that, where the
Shares are so listed or traded, the Committee may make discretionary
determinations, or implement such methodologies, procedures or other
rules, where the Shares have not been traded for 10 trading days.
"INCENTIVE STOCK OPTION" means an "incentive stock option" within the
meaning of Section 422 (b) of the Code.
"NON-QUALIFIED STOCK OPTION" means an option which is not an incentive
Stock Option.
"OPTION" means the right to purchase, at a price and for the term fixed by
the Committee in accordance with the Plan, and subject to such other
limitations and restrictions in the Plan and the applicable Award
Agreement, a number of Shares determined by the Committee.
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"OPTIONEE" means an employee or director of, or key consultant to, the
Company to whom an Option is granted, or the Successors of the Optionee,
as the context so requires.
"OPTION PRICE" means the exercise price per Share.
"PLAN" means this AsiaInfo Holdings, Inc. 2000 Stock option Plan, as set
forth herein and as the same may from time to time be amended.
"RETIREMENT" means, unless otherwise provided by the Committee in the
Optionee's Award Agreement, the termination (other than for Cause) of
employment (or other termination of service, in the case of key
consultants or directors) of an Optionee on or after the Optionee's
attainment of age 65 or on or after the Optionee's attainment of age 55
with five consecutive years of service with the Company and or its
Subsidiaries or its affiliates.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means shares of Common Stock of the Company.
"SUBSIDIARY" means any corporation (other than the Company) that is a
"subsidiary corporation" with respect to the Company under Section 424 (f)
of the Code. In the event the Company becomes a subsidiary of another
company, the provisions hereof applicable to subsidiaries shall, unless
otherwise determined by the Committee, also be applicable to any company
that is a "parent corporation" with respect to the Company under Section
424 (e) of the Code.
"Successor of the Optionee" means the legal representative of the estate
of a deceased Optionee or the person or persons who shall acquire the
right to exercise an option by bequest or inheritance or by reason of the
death of the Optionee.
2. EFFECTIVE DATE AND TERMINATION OF PLAN.
The effective date of the Plan is expected to be October 18, 2000. The
Plan shall not become effective unless and until it is approved by the
stockholders of the Company. The Plan shall terminate on, and no option
shall be granted hereunder on or after, the 10-year anniversary of the
earlier of the approval of the Plan by (i) the Board or (ii) the
stockholders of the Company; provided, however, that the Board may at any
time prior to that date terminate the Plan.
3. ADMINISTRATION OF PLAN.
The Plan shall be administered by the Committee appointed by the Board.
The Committee shall consist of at least two individuals, each of whom
shall be a "nonemployee director" as defined in Rule 16b-3 as promulgated
by the Securities and Exchange Commission ("Rule 16b-3") under the
Exchange Act and shall, at such times as the Company is subject to Section
162 (m) of the Code (to the extent relief from the limitation of Section
162 (m) of the Code is sought with respect to Options), qualify as
"outside directors" for purposes of Section 162 (m) of the Code. The acts
of a majority of the members present at any meeting of the Committee at
which a quorum is present, or acts approved in writing by a majority of
the entire Committee, shall be the acts of the Committee for purposes of
the Plan. If and to the extent applicable, no member of the Committee may
act as to matters under the Plan specifically relating to such member. If
no Committee is designated by the Board to act for these purposes, the
Board shall have the rights and responsibilities of the Committee
hereunder and under the Award Agreements.
4. ELIGIBILITY AND GRANT OF OPTIONS; COMMITTEE AUTHORITY.
Subject to the provisions of the Plan, the Committee shall, in its
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discretion as reflected by the terms of the Award Agreements: (i)
authorize the granting of Options to key employees, directors and key
consultants of the Company and its Subsidiaries; (ii) determine and
designate from time to time those key employees, directors and key
consultants of the Company and its Subsidiaries to whom Options are to
be granted and the number of Shares to be optioned to each employee,
director and key consultant; (iii) determine whether to grant Options
intended to be Incentive Stock Options, or to grant Non-Qualified Stock
Options, or both (to the extent that any Option does not qualify as an
Incentive Stock Option, it shall constitute a separate Non-Qualified
Stock Option); provided that Incentive Stock Options may only be
granted to employees; (iv) determine the time or times when and the
manner and condition in which each Option shall be exercisable and the
duration of the exercise period; and (v) determine or impose other
conditions to the grant or exercise of Options under the Plan as it may
deem appropriate. In determining the eligibility of an employee,
director or key consultant to receive an Option, as well as in
determining the number of Shares to be optioned to any employee,
director and key consultant, the Committee may consider the position
and responsibilities of the employee, director or key consultant, the
nature and value to the Company of the employee's, director's or key
consultant's services and accomplishments whether directly or through
its Subsidiaries, the employee's, director's or key consultant's
present and potential contribution to the success of the Company
whether directly or through its Subsidiaries and such other factors as
the Committee may deem relevant. The Award Agreement shall contain such
other terms, provisions and conditions not inconsistent herewith as
shall be determined by the Committee. The Optionee shall take whatever
additional actions and execute whatever additional documents the
Committee may in its reasonable judgment deem necessary or advisable in
order to carry out or effect one or more of the obligations or
restrictions imposed on the Optionee pursuant to the express provisions
of the Plan and the Award Agreement. The Committee shall designate each
option as one intended to be an Incentive Stock Option or as a
Non-Qualified Stock Option.
5. NUMBER OF SHARES SUBJECT TO OPTIONS.
Subject to adjustments pursuant to Section 18, Options with respect to an
aggregate of no more than 4,000,000 Shares may be granted under the Plan
in any calendar year. Notwithstanding the foregoing provisions of this
Section 5, Shares as to which an Option is granted under the Plan that
remains unexercised at the expiration, forfeiture or other termination of
such Option may be the subject of the grant of further Options. Subject to
adjustments pursuant to Section 18, in no event may any Optionee receive
in the aggregate Options for more than 1,000,000 Shares of Common Stock in
any calendar year. Shares of Common Stock issued hereunder may consist, in
whole or in part, of authorized and unissued shares or treasury shares.
The certificates for Shares issued hereunder may include any legend which
the Committee deems appropriate to reflect any restrictions on transfer
hereunder or under the Award Agreement, or as the Committee may otherwise
deem appropriate.
The aggregate Fair Market Value, determined as of the date an Option is
granted, of the Common Stock for which any Optionee may be awarded
Incentive Stock options which are first exercisable by the Optionee during
any calendar year under the Plan (or any other stock option plan required
to be taken into account under Section 422 (d) of the Code) shall not
exceed $100,000.
6. OPTION PRICE.
The Option Price shall be determined by the Committee on the date the
Option is granted and reflected in the Award Agreement, as the same may be
amended from time to time. Any particular Award Agreement may provide for
different exercise prices for specified amounts of Shares subject to the
Option. The Option Price with respect to each Incentive Stock Option shall
not be less than 100 (or 110, in the case of an individual described in
Section
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422(b)(6) of the Code (relating to certain 10% owners)) of the Fair Market
Value of a Share on the day the Option is granted.
7. PERIOD OF OPTION AND VESTING.
7.1 Unless earlier expired, forfeited or otherwise terminated, each Option
shall expire in its entirety upon the 10th anniversary of the date of
grant or shall have such other term as is set forth in the applicable
Award Agreement (except that, in the case of an individual described in
Section 422(b)(6) of the Code (relating to certain 10% owners) who is
granted an incentive Stock Option, the term of such Option shall be no
more than five years from the date of grant). The Option shall also
expire, be forfeited and terminate at such times and in such circumstances
as otherwise provided hereunder or under the Award Agreement.
7.2 Each Option, to the extent that there has been no termination of the
Optionee's employment (or other service, if applicable) and the Option has
not otherwise lapsed, expired, terminated or been forfeited, shall first
become exercisable according to the terms and conditions set forth in the
Award Agreement, as determined by the Committee at the time of grant.
Unless otherwise provided in the Award Agreement or herein, no option (or
portion thereof) shall ever be exercisable if the Optionee's employment or
other service with the Company and its Subsidiaries has terminated before
the time at which such option would otherwise have become exercisable, and
any Option that would otherwise become exercisable after such termination
shall not become exercisable and shall be forfeited upon such termination.
Notwithstanding the foregoing provisions of this Section 7(b), Options
exercisable pursuant to the schedule set forth by the Committee at the
time of grant may be fully or more rapidly exercisable or otherwise vested
at any time in the discretion of the Committee. Upon and after the death
of an Optionee, such Optionee's Options, if and to the extent otherwise
exercisable hereunder or under the applicable Award Agreement after the
Optionee's death, may be exercised by the Successors of the Optionee.
8. EXERCISABILITY UPON AND AFTER TERMINATION OF OPTIONEE.
8.1 Unless otherwise provided in the Award Agreement, if the Optionee's
employment (or other service, if applicable) with the Company and its
Subsidiaries is terminated other than by termination by the Company for
Cause, or termination by reason of death, Retirement or Disability, no
exercise of an Option may occur after the expiration of the three-month
period to follow the termination, or if earlier, the expiration of the
term of the Option as provided under Section 7; provided that, if the
Optionee should die after termination of employment (or other service, if
applicable), such termination being for a reason other than Disability or
Retirement, but while the option is still in effect, the option (if and to
the extent otherwise exercisable by the Optionee at the time of death) may
be exercised until the earlier of (i) one year from the date of
termination of employment (or other service, if applicable) of the
Optionee, or (ii) the date on which the term of the option expires in
accordance with Section 7.
8.2 Unless otherwise provided in the Award Agreement, if the Optionee's
employment with the Company and its Subsidiaries terminates due to the
death, Retirement or Disability of the Optionee, the option may be
exercised until the earlier of (i) one-year from the date of termination
of employment (or other service, if applicable) of the Optionee, or (ii)
the date on which the term of the Option expires in accordance with
Section 7.
8.3 Notwithstanding any other provision hereof, unless otherwise provided in
the Award Agreement, if the Optionee's employment is terminated by the
Company and its Subsidiaries for Cause, the Optionee's Options, to the
extent then unexercised, shall thereupon cease to be exercisable and shall
be forfeited forthwith.
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8.4 Except as may otherwise be expressly set forth in this Section B, and
except as may otherwise be expressly provided under the Award Agreement,
no provision of this Section 8 is intended to or shall permit the exercise
of the Option to the extent the Option was not exercisable upon cessation
of employment or other service.
9. EXERCISE OF OPTIONS.
9.1 Subject to vesting, restrictions on exercisability and other restrictions
provided for hereunder or otherwise imposed in accordance herewith, an
Option may be exercised, and payment in full of the aggregate Option Price
made, by an Optionee only by written notice (in the form prescribed by the
Committee) to the Company specifying the number of Shares to be purchased.
9.2 Without limiting the scope of the Committee's discretion hereunder, the
Committee may impose such other restrictions on the exercise of Incentive
Stock Options (whether or not in the nature of the foregoing restrictions)
as it may deem necessary or appropriate.
9.3 If Shares acquired upon exercise of an Incentive Stock Option are disposed
of in a disqualifying disposition within the meaning of Section 422 of the
Code by an Optionee prior to the expiration of either two years from the
date of grant of such Option or one year from the transfer of Shares to
the Optionee pursuant to the exercise of such option, or in any other
disqualifying disposition within the meaning of Section 422 of the Code,
such Optionee shall notify the Company in writing as soon as practicable
thereafter of the date and terms of such disposition and, if the Company
(or any affiliate thereof) thereupon has a tax-withholding obligation,
shall pay to the Company (or such affiliate) an amount equal to any
withholding tax the Company (or affiliate) is required to pay as a result
of the disqualifying disposition.
10. PAYMENT.
10.1 The aggregate Option Price shall be paid in full upon the exercise of the
Option. Payment must be made by one of the following methods:
(i) a certified or bank cashier's check;
(ii) the proceeds of a Company loan program or third-party sale program
or a notice acceptable to the Committee given as consideration under
such a program, in each case if permitted by the Committee in its
discretion, if such a program has been established and the Optionee
is eligible to participate therein;
(iii) if approved by the Committee in its discretion, Shares of previously
owned Common Stock having an aggregate Fair Market Value on the date
of exercise equal to the aggregate Option Price;
(iv) if approved by the Committee in its discretion, through the written
election of the Optionee to have Shares withheld by the Company from
the Shares otherwise to be received, with such withheld Shares
having an aggregate Fair Market Value on the date of exercise equal
to the aggregate Option Price; or
by any combination of such methods of payment or any other method
acceptable to the Committee in its discretion.
10.2 The Committee, in its discretion, may also permit the Optionee to elect to
exercise an Option by receiving a combination of Shares and cash, or, in
the discretion of the Committee, either Shares or solely in cash, with an
aggregate Fair Market Value (or, to the extent of payment in cash, in an
amount) equal to the excess of the Fair Market Value of the Shares with
respect to which the Option is being exercised over the aggregate Option
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Price, as determined as of the day the option is exercised.
10.3 Except in the case of Options exercised by certified or bank cashier's
check, the Committee may impose limitations and prohibitions on the
exercise of options as it deems appropriate, including, without
limitation, any limitation or prohibition designed to avoid accounting
consequences which may result from the use of Common Stock as payment upon
exercise of an Option.
10.4 The Committee may provide that no option may be exercised with respect to
any fractional Share. Any fractional Shares resulting from an Optionee's
exercise that is accepted by the Company shall in the discretion of the
Committee be paid in cash.
11. TAX WITHHOLDING.
The Committee may, in its discretion, require the Optionee to pay to the
Company at the time of exercise of any Option the amount that the
Committee deems necessary to satisfy the Company's obligation to withhold
federal, state or local income or other taxes incurred by reason of the
exercise. Upon exercise of the Option, the Optionee may, if approved by
the Committee in its discretion, make a written election to have Shares
then issued withheld by the Company from the Shares otherwise to be
received, or to deliver previously owned Shares, in order to satisfy the
liability for such withholding taxes. In the event that the Optionee
makes, and the Committee permits, such an election, the number of Shares
so withheld or delivered shall have an aggregate Fair Market Value on the
date of exercise sufficient to satisfy the applicable withholding taxes.
Where the exercise of an Option does not give rise to an obligation by the
Company to withhold federal, state or local income or other taxes on the
date of exercise, but may give rise to such an obligation in the future,
the Committee may, in its discretion, make such arrangements and impose
such requirements as it deems necessary or appropriate. Notwithstanding
anything contained in the Plan or the Award Agreement to the contrary, the
Optionee's satisfaction of any tax-withholding requirements imposed by the
Committee shall be a condition precedent to the Company's obligation as
may otherwise be provided hereunder to provide Shares to the Optionee, and
the failure of the Optionee to satisfy such requirements with respect to
the exercise of an option shall cause such Option to be forfeited.
12. EXERCISE BY SUCCESSORS.
An Option may be exercised, and payment in full of the aggregate Option
Price made, by the Successors of the Optionee only by written notice (in
the form prescribed by the Committee) to the Company specifying the number
of Shares to be purchased. Such notice shall state that the aggregate
Option Price will be paid in full, or that the Option will be exercised as
otherwise provided hereunder, in the discretion of the Company or the
Committee, if and as applicable.
13. NONTRANSFERABILITY OF OPTION.
Each Option granted under the Plan shall be nontransferable by the
Optionee except by will or the laws of descent and distribution of the
state wherein the Optionee is domiciled at the time of his death;
provided, however, that the Committee may (but need not) permit other
transfers, where the Committee concludes that such transferability (i)
does not result in accelerated income taxation, (ii) does not cause any
option intended to be an Incentive Stock option to fail to be described in
Section 422 (b) of the Code, and (iii) is otherwise appropriate and
desirable.
14. RIGHT OF FIRST REFUSAL; RIGHT OF REPURCHASE.
At the time of grant, the Committee may provide in connection with any
grant made under the Plan that Shares received in connection with options
shall be
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subject to a right of first refusal pursuant to which the Company shall be
entitled to purchase such Shares in the event of a prospective sale of the
Shares, subject to such terms and conditions as the Committee may specify
at the time of grant or (if permitted by the Award Agreement) thereafter,
and to a right of repurchase, pursuant to which the Company shall be
entitled to purchase such Shares at a price determined by, or under a
formula set by, the Committee at the time of grant or (if permitted by the
Award Agreement) thereafter, subject to such other terms and conditions as
the Committee may specify at the time of grant.
15. REGULATIONS AND APPROVALS.
15.1 The obligation of the Company to sell Shares with respect to Options
granted under the Plan shall be subject to all applicable laws, rules and
regulations, including all applicable federal and state securities laws,
and the obtaining of all such approvals by governmental agencies as may be
deemed necessary or appropriate by the Committee.
15.2 The Committee may make such changes to the Plan as may be necessary or
appropriate to comply with the rules and regulations of any government
authority or to obtain tax benefits applicable to stock options.
15.3 Each option is subject to the requirement that, if at any time the
Committee determines, in its discretion, that the listing, registration or
qualification of Shares issuable pursuant to the Plan is required by any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable as
a condition of, or in connection with, the grant of an Option or the
issuance of Shares, no Options shall be granted or payment made or Shares
issued, in whole or in part, unless listing, registration, qualification,
consent or approval has been effected or obtained free of any conditions
in a manner acceptable to the Committee.
15.4 In the event that the disposition of stock acquired pursuant to the Plan
is not covered by a then current registration statement under the
Securities Act, and is not otherwise exempt from such registration, such
Shares shall be restricted against transfer to the extent required under
the Securities Act, and the Committee may require any individual receiving
Shares pursuant to the Plan, as a condition precedent to receipt of such
Shares, to represent to the Company in writing that the Shares acquired by
such individual are acquired for investment only and not with a view to
distribution and that such Shares will be disposed of only if registered
for sale under the Securities Act or if there is an available exemption
for such disposition.
16. ADMINISTRATIVE RULES; INTERPRETATION.
The Committee may make such rules and regulations and establish such
procedures for the administration of the Plan as it deems appropriate.
Without limiting the generality of the foregoing, the Committee may (i)
determine (A) the conditions under which an Optionee will be considered to
have retired or become disabled and (B) whether any Optionee has done so;
(ii) establish or assist in the establishment of a program (which need not
be administered in a nondiscriminatory or uniform manner) under which the
Company or a third party may make bona-fide loans on arm's-length terms to
any or all Optionees to assist such Optionees with the satisfaction of any
or all of the obligations that such Optionees may have hereunder or under
which third-party sales may be made for such purpose (including, without
limitation, a loan program under which the Company or a third party would
advance the aggregate Option Price to the Optionee and be repaid with
Option stock or the proceeds thereof and a sale program under which funds
to pay for option stock are delivered by a third party upon the third
party's receipt from the Company of stock certificates); (iii) determine
the extent, if any, to which Options or Shares shall be forfeited (whether
or not such forfeiture is expressly contemplated hereunder); (iv)
interpret the Plan and
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the Award Agreements hereunder, with such interpretations to be conclusive
and binding on all persons and otherwise accorded the maximum deference
permitted by law, provided that the Committee's interpretation shall not
be entitled to deference on and after a Change in Control except to the
extent that such interpretations are made exclusively by members of the
Committee who are individuals who served as Committee members before the
Change in Control, and (v) take any other actions and make any other
determinations or decisions that it deems necessary or appropriate in
connection with the Plan or the administration or interpretation thereof.
In the event of any dispute or disagreement as to the interpretation of
the Plan or of any rule, regulation or procedure, or as to any question,
right or obligation arising from or related to the Plan, the decision of
the Committee shall be final and binding upon all persons. Unless
otherwise expressly provided hereunder, the Committee, with respect to any
Option, except as provided in clause (iv) of the foregoing sentence, may
exercise its discretion hereunder at the time of the award or thereafter.
17. AMENDMENTS.
The Board may amend the Plan as it shall deem advisable, except that no
amendment may adversely affect an Optionee with respect to Options
previously granted unless such amendments are in connection with
compliance with applicable laws; provided that the Board may not make any
amendment in the Plan that would, if such amendment were not approved by
the holders of the Common Stock, cause the Plan to fail to comply with any
requirement of applicable law or regulation, unless and until the approval
of the holders of such Common Stock is obtained. Without limiting the
generality of the foregoing, the Committee may (subject to such
considerations as may arise under Section 16 of the Exchange Act, or under
other corporate, securities or tax laws) take any steps it deems
appropriate, that are not inconsistent with the purposes and intent of the
Plan, to take into account the provisions of Section 162 (m) of the Code.
18. CHANGES IN CAPITAL STRUCTURE.
If (i) the Company shall at any time be involved in a merger,
consolidation, dissolution, liquidation, reorganization, exchange of
shares, sale of all or substantially all of the assets or stock of the
Company or a transaction similar thereto, (ii) any stock dividend, stock
split, reverse stock split, stock combination, reclassification,
recapitalization or other similar change in the capital structure of the
Company, or any distribution to holders of Common Stock other than cash
dividends, shall occur or (iii) any other event shall occur which in the
judgment of the Committee necessitates action by way of adjusting the
terms of the outstanding Options, then the Committee shall forthwith take
any such action as in its judgment shall be necessary to preserve to the
Optionees rights substantially proportionate to the rights existing prior
to such event, and to maintain the continuing availability of Shares under
Section 5 (if Shares are otherwise then available) in a manner consistent
with the intent hereof, including, without limitation, adjustments in (x)
the number and kind of shares or other property subject to Options, (y)
the Option Price, and (z) the number and kind of shares available under
Section 5. To the extent that such action shall include an increase or
decrease in the number of Shares (or units of other property then
available) subject to outstanding Options, the number of Shares (or units)
available under Section 5 shall be increased or decreased, as the case may
be, proportionately, as may be provided by Committee in its discretion.
If a Change in Control shall occur, then the Committee as constituted
immediately before the Change in Control may make such adjustments as it,
in its discretion, determines are necessary or appropriate in light of the
Change in Control (including, without limitation, the substitution of
stock other than stock of the Company as the stock optioned hereunder, and
the acceleration of the exercisability of the Options), provided that the
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Committee determines that such adjustments do not have a substantial
adverse economic impact on the Optionee as determined at the time of the
adjustments; provided that this provision shall not be effective to the
extent that the Company or the Committee determines that the accelerated
exercisability of the Options upon the occurrence of a Change in Control
as contemplated hereby would adversely affect the ability of the Company
or acquiror (in the case of a Change in Control in connection with which
the Company is not the surviving corporation) to use the pooling method of
accounting in connection with a Change in Control transaction, if such
method of accounting would otherwise be available and desired by the
Company or acquiror.
The judgment of the Committee with respect to any matter referred to in
this Section 18 shall be conclusive and binding upon each Optionee without
the need for any amendment to the Plan.
19. NOTICES.
All notices under the Plan shall be in writing, and if to the Company,
shall be delivered to the Board or mailed to its principal office,
addressed to the attention of the Board; and if to the Optionee, shall be
delivered personally, sent by facsimile transmission or mailed to the
Optionee at the address appearing in the records of the Company. Such
addresses may be changed at any time by written notice to the other party
given in accordance with this Section 19.
20. RIGHTS AS STOCKHOLDER.
Neither the Optionee nor any person entitled to exercise the Optionee's
rights in the event of death shall have any rights of a stockholder with
respect to the Shares subject to an Option, except to the extent that a
certificate for such Shares shall have been issued upon the exercise of
the Option as provided for herein.
21. RIGHTS TO EMPLOYMENT.
Nothing in the Plan or in any option granted pursuant to the Plan shall
confer on any individual any right to continue in the employ or other
service of the Company or its Subsidiaries or interfere in any way with
the right of the Company or its Subsidiaries and its stockholders to
terminate the individual's employment or other service at any time.
22. SUBSTITUTE OPTIONS.
Options may be granted under the Plan from time to time in substitution
for options held by employees of a corporation who become or are about to
become employees of the Company or its Subsidiaries as the result of a
merger or consolidation of the employing entity with the Company or the
acquisition by the Company of stock of the employing entity. The terms and
conditions set forth in this Plan to such extent as the Board as the time
of grant may deem appropriate to conform, in whole or in part, to the
provisions of the options in substitution for which they are granted, and,
if applicable pursuant to Section 424 of the Code.
23. INVESTMENT INTENT.
The Company may require that there be presented to and filed with it by
any Optionee under the Plan, such evidence as it may deem necessary to
establish that the Options granted or the Shares to be purchased or
transferred are being acquired for investment and not with a view to their
distribution.
24. EXCULPATION AND INDEMNIFICATION.
The Company shall indemnify and hold harmless the members of the Board and
<PAGE> 11
the members of the Committee from and against any and all liabilities,
costs and expenses incurred by such persons as a result of any act or
omission to act in connection with the performance of such person's
duties, responsibilities and obligations under the Plan, if such person
acts in good faith and in a manner that he or she reasonably believes to
be in, or not opposed to, the best interests of the Company, to the
maximum extent permitted by law.
25. CAPTIONS.
The use of captions in this Plan is for convenience. The captions are not
intended to and do not provide substantive rights.
26. SEVERABILITY.
The invalidity or unenforceability of any provision of the Plan shall not
affect the validity or enforceability of any other provision of the Plan,
which shall remain in full force and effect.
27. GOVERNING LAW.
THE PLAN SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS.
