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EXHIBIT 10.71
CURIS, INC.
2000 STOCK INCENTIVE PLAN
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1. Purpose
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The purpose of this 2000 Stock Incentive Plan (the "Plan") of Curis, Inc.,
a Delaware corporation (the "Company"), is to advance the interests of the
Company's stockholders by enhancing the Company's ability to attract, retain and
motivate persons who make (or are expected to make) important contributions to
the Company by providing such persons with equity ownership opportunities and
performance-based incentives and thereby better aligning the interests of such
persons with those of the Company's stockholders. Except where the context
otherwise requires, the term "Company" shall include any of the Company's
present or future subsidiary corporations as defined in Section 424(f) of the
Internal Revenue Code of 1986, as amended, and any regulations promulgated
thereunder (the "Code").
2. Eligibility
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All of the Company's employees, officers, directors, consultants and
advisors (and any individuals who have accepted an offer for employment) are
eligible to be granted options, restricted stock awards, or other stock-based
awards (each, an "Award") under the Plan. Each person who has been granted an
Award under the Plan shall be deemed a "Participant." For purposes of the Plan,
the term Participant shall also include the holders of Company Stock Options (as
such term is defined in that certain Agreement and Plan of Merger, dated as of
February 14, 2000, by and among Creative BioMolecules, Inc., Ontogeny, Inc.,
Reprogenesis, Inc. and the Company (the "Merger Agreement")).
3. Administration, Delegation
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(a) Administration by Board of Directors. The Plan will be administered
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by the Board of Directors of the Company (the "Board"). The Board shall have
authority to grant Awards and to adopt, amend and repeal such administrative
rules, guidelines and practices relating to the Plan as it shall deem advisable.
The Board may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent it shall
deem expedient to carry the Plan into effect and it shall be the sole and final
judge of such expediency. All decisions by the Board shall be made in the
Board's sole discretion and shall be final and binding on all persons having or
claiming any interest in the Plan or in any Award. No director or person acting
pursuant to the authority delegated by the Board shall be liable for any action
or determination relating to or under the Plan made in good faith.
(b) Appointment of Committees. To the extent permitted by applicable law,
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the Board may delegate any or all of its powers under the Plan to one or more
committees or subcommittees of the Board (a "Committee"). All references in the
Plan to the "Board" shall
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mean the Board or a Committee of the Board to the extent that the Board's powers
or authority under the Plan have been delegated to such Committee.
4. Stock Available for Awards
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(a) Number of Shares. Subject to adjustment under Section 8, Awards may
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be made under the Plan for up to ten million (10,000,000) shares (the
"Authorized Amount") of common stock, $0.01 par value per share, of the Company
(the "Common Stock"). Commencing on January 1, 2001, and on each anniversary
date thereof, the Authorized Amount shall be increased by an amount equal to the
lesser of (i) one million (1,000,000) shares and (ii) four percent (4%) of the
then total amount of outstanding shares of Common Stock; provided, however, that
from and after January 1, 2001, the Authorized Amount shall not in any event
exceed the total Awards made under the Plan by more than six million (6,000,000)
shares. If any Award expires or is terminated, surrendered or canceled without
having been fully exercised or is forfeited in whole or in part or results in
any Common Stock not being issued, the unused Common Stock covered by such Award
shall again be available for the grant of Awards under the Plan, subject,
however, in the case of Incentive Stock Options (as hereinafter defined), to any
limitation required under the Code. Shares issued under the Plan may consist in
whole or in part of authorized but unissued shares or treasury shares.
(b) Per-Participant Limit. Subject to adjustment under Section 8, for
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Awards granted after the Common Stock is registered under the Securities
Exchange Act of 1934 (the "Exchange Act"), the maximum number of shares of
Common Stock with respect to which Awards may be granted to any Participant
under the Plan shall be one million five hundred thousand (1,500,000) per
calendar year. The per-Participant limit described in this Section 4(b) shall be
construed and applied consistently with Section 162(m) of the Code ("Section
162(m)").
5. Stock Options
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(a) General. The Board may grant options to purchase Common Stock (each,
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an "Option") and determine the number of shares of Common Stock to be covered by
each Option, the exercise price of each Option and the conditions and
limitations applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an Incentive Stock
Option (as hereinafter defined) shall be designated a "Nonstatutory Stock
Option".
(b) Incentive Stock Options. An Option that the Board intends to be an
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"incentive stock option" as defined in Section 422 of the Code (an "Incentive
Stock Option") shall only be granted to employees of the Company and shall be
subject to and shall be construed consistently with the requirements of Section
422 of the Code. The Company shall have no liability to a Participant, or any
other party, if an Option (or any part thereof) which is intended to be an
Incentive Stock Option is not an Incentive Stock Option.
(c) Exercise Price. The Board shall establish the exercise price at the
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time each Option is granted and specify it in the applicable option agreement,
provided, however, that the exercise price of Incentive Stock Options shall be
not less than 100% of the fair market value of
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the Common Stock, as determined by the Board, at the time the Incentive Stock
Option is granted. The exercise price of Nonstatutory Stock Options shall be as
determined by the Board.
(d) Duration of Options. Each Option shall be exercisable at such times
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and subject to such terms and conditions as the Board may specify in the
applicable option agreement provided, however, that no Option will be granted
for a term in excess of 10 years.
(e) Exercise of Option. Options may be exercised by delivery to the
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Company of a written notice of exercise signed by the proper person or by any
other form of notice (including electronic notice) approved by the Board
together with payment in full as specified in Section 5(f) for the number of
shares for which the Option is exercised.
(f) Payment Upon Exercise. Common Stock purchased upon the exercise of an
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Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may, in its sole discretion, otherwise
provide in an option agreement, by (i) delivery of an irrevocable and
unconditional undertaking by a creditworthy broker to deliver promptly to the
Company sufficient funds to pay the exercise price or (ii) delivery by the
Participant to the Company of a copy of irrevocable and unconditional
instructions to a creditworthy broker to deliver promptly to the Company cash or
a check sufficient to pay the exercise price;
(3) when the Common Stock is registered under the Exchange Act, by
delivery of shares of Common Stock owned by the Participant valued at their fair
market value as determined by (or in a manner approved by) the Board in good
faith ("Fair Market Value"), provided (i) such method of payment is then
permitted under applicable law and (ii) such Common Stock was owned by the
Participant at least six months prior to such delivery;
(4) to the extent permitted by the Board, in its sole discretion by
(i) delivery of a promissory note of the Participant to the Company on terms
determined by the Board, or (ii) payment of such other lawful consideration as
the Board may determine; or
(5) by any combination of the above permitted forms of payment.
(g) Substitute Options. In connection with a merger or consolidation of
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an entity with the Company or the acquisition by the Company of property or
stock of an entity, the Board may grant Options in substitution for any options
or other stock or stock-based awards granted by such entity or an affiliate
thereof. Substitute Options may be granted on such terms as the Board deems
appropriate in the circumstances, notwithstanding any limitations on Options
contained in the other sections of this Section 5. In the event of any
inconsistency between the Plan and the terms of the stock option agreements
pursuant to which grants of the Company Stock Options have been made, the terms
of such stock option agreements shall control, except to the extent that the
Board determines in its reasonable discretion that any such terms of the Company
Stock Options have been made obsolete by reason of the Merger, as that term is
defined in the Merger Agreement.
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6. Restricted Stock
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(a) Grants. The Board may grant Awards entitling recipients to acquire
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shares of Common Stock, subject to the right of the Company to repurchase all or
part of such shares at their issue price or other stated or formula price (or to
require forfeiture of such shares if issued at no cost) from the recipient in
the event that conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable restriction period or periods
established by the Board for such Award (each, a "Restricted Stock Award").
(b) Terms and Conditions. The Board shall determine the terms and
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conditions of any such Restricted Stock Award, including the conditions for
repurchase (or forfeiture) and the issue price, if any. Any stock certificates
issued in respect of a Restricted Stock Award shall be registered in the name of
the Participant and, unless otherwise determined by the Board, deposited by the
Participant, together with a stock power endorsed in blank, with the Company (or
its designee). At the expiration of the applicable restriction periods, the
Company (or such designee) shall deliver the certificates no longer subject to
such restrictions to the Participant or if the Participant has died, to the
beneficiary designated, in a manner determined by the Board, by a Participant to
receive amounts due or exercise rights of the Participant in the event of the
Participant's death (the "Designated Beneficiary"). In the absence of an
effective designation by a Participant, Designated Beneficiary shall mean the
Participant's estate.
7. Other Stock-Based Awards
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The Board shall have the right to grant other Awards based upon the Common
Stock having such terms and conditions as the Board may determine, including the
grant of shares based upon certain conditions, the grant of securities
convertible into Common Stock and the grant of stock appreciation rights.
8. Adjustments for Changes in Common Stock and Certain Other Events.
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(a) Changes in Capitalization. In the event of any stock split, reverse
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stock split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in capitalization
or event, or any distribution to holders of Common Stock other than a normal
cash dividend, (i) the number and class of securities available under this Plan,
(ii) the per-Participant limit set forth in Section 4(b), (iii) the number and
class of securities and exercise price per share subject to each outstanding
Option, (iv) the repurchase price per share subject to each outstanding
Restricted Stock Award, and (v) the terms of each other outstanding Award shall
be appropriately adjusted by the Company (or substituted Awards may be made, if
applicable) to the extent the Board shall determine, in good faith, that such an
adjustment (or substitution) is necessary and appropriate. If this Section 8(a)
applies and Section 8(c) also applies to any event, Section 8(c) shall be
applicable to such event, and this Section 8(a) shall not be applicable. The
Board shall adjust Awards initially made under the Plan in respect of options
assumed by the Company in connection with the merger of Creative BioMolecules,
Inc., Ontogeny, Inc. and Reprogenesis, Inc. with and into the Company by
rounding up any fractional Awards resulting directly from such merger, subject,
however, in the case of Incentive Stock Options to any limitations required
under the Code.
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(b) Liquidation or Dissolution. In the event of a proposed liquidation or
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dissolution of the Company, the Board shall upon written notice to the
Participants provide that all then unexercised Options will (i) become
exercisable in full as of a specified time at least 10 business days prior to
the effective date of such liquidation or dissolution and (ii) terminate
effective upon such liquidation or dissolution, except to the extent exercised
before such effective date. The Board may specify the effect of a liquidation or
dissolution on any Restricted Stock Award or other Award granted under the Plan
at the time of the grant of such Award.
(c) Acquisition and Change in Control Events.
(1) Definitions
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(a) An "Acquisition Event" shall mean:
(i) any merger or consolidation of the Company with or into
another entity as a result of which the Common Stock is
converted into or exchanged for the right to receive
cash, securities or other property; or
(ii) any exchange of shares of the Company for cash,
securities or other property pursuant to a statutory
share exchange transaction.
(b) A "Change in Control Event" shall mean:
(i) the acquisition by an individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership
of any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the
meaning of Rule 13d-3 promulgated under the Exchange
Act) 50% or more of either (x) the then-outstanding
shares of common stock of the Company (the "Outstanding
Company Common Stock") or (y) the combined voting power
of the then-outstanding securities of the Company
entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection
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(i), the following acquisitions shall not constitute a
Change in Control Event: (A) any acquisition directly
from the Company (excluding an acquisition pursuant to
the exercise, conversion or exchange of any security
exercisable for, convertible into or exchangeable for
common stock or voting securities of the Company,
unless the Person exercising, converting or exchanging
such security acquired such security directly
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from the Company or an underwriter or agent of the
Company), (B) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company,
or (C) any acquisition by any corporation pursuant to
a Business Combination (as defined below) which
complies with clauses (x) and (y) of subsection (iii)
of this definition; or
(ii) such time as the Continuing Directors (as defined
below) do not constitute a majority of the Board (or,
if applicable, the Board of Directors of a successor
corporation to the Company), where the term
"Continuing Director" means at any date a member of
the Board (x) who was a member of the Board on the
date of the initial adoption of this Plan by the Board
or (y) who was nominated or elected subsequent to such
date by at least a majority of the directors who were
Continuing Directors at the time of such nomination or
election or whose election to the Board was
recommended or endorsed by at least a majority of the
directors who were Continuing Directors at the time of
such nomination or election; provided, however, that
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there shall be excluded from this clause (y) any
individual whose initial assumption of office occurred
as a result of an actual or threatened election
contest with respect to the election or removal of
directors or other actual or threatened solicitation
of proxies or consents, by or on behalf of a person
other than the Board; or
(iii) the consummation of a merger, consolidation,
reorganization, recapitalization or statutory share
exchange involving the Company or a sale or other
disposition of all or substantially all of the assets
of the Company (a "Business Combination"), unless,
immediately following such Business Combination, each
of the following two conditions is satisfied: (x) all
or substantially all of the individuals and entities
who were the beneficial owners of the Outstanding
Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business
Combination beneficially own, directly or indirectly,
more than 50% of the then-outstanding shares of common
stock and the combined voting power of the then-
outstanding securities entitled to vote generally in
the election of directors, respectively, of the
resulting or acquiring corporation in such Business
Combination (which shall include, without limitation,
a corporation
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which as a result of such transaction owns the Company
or substantially all of the Company's assets either
directly or through one or more subsidiaries) (such
resulting or acquiring corporation is referred to
herein as the "Acquiring Corporation") in
substantially the same proportions as their ownership
of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, respectively,
immediately prior to such Business Combination and (y)
no Person (excluding the Acquiring Corporation or any
employee benefit plan (or related trust) maintained or
sponsored by the Company or by the Acquiring
Corporation) beneficially owns, directly or
indirectly, 50% or more of the then-outstanding shares
of common stock of the Acquiring Corporation, or of
the combined voting power of the then-outstanding
securities of such corporation entitled to vote
generally in the election of directors (except to the
extent that such ownership existed prior to the
Business Combination).
(c) "Good Reason" shall mean any significant diminution in the
Participant's title, authority, or responsibilities from and
after such Acquisition Event or Change in Control Event, as
the case may be, or any reduction in the annual cash
compensation payable to the Participant from and after such
Acquisition Event or Change in Control Event, as the case
may be, or the relocation of the place of business at which
the Participant is principally located to a location that is
greater than 50 miles from the current site.
(d) "Cause" shall mean any (i) willful failure by the
Participant, which failure is not cured within 30 days of
written notice to the Participant from the Company, to
perform his or her material responsibilities to the Company
or (ii) willful misconduct by the Participant which affects
the business reputation of the Company.
(2) Effect on Options
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(a) Acquisition Event. Upon the occurrence of an Acquisition
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Event (regardless of whether such event also constitutes a
Change in Control Event), or the execution by the Company of
any agreement with respect to an Acquisition Event
(regardless of whether such event will result in a Change in
Control Event), the Board shall provide that all outstanding
Options shall be assumed, or equivalent options shall be
substituted, by the acquiring or succeeding corporation (or
an affiliate thereof); provided that if such Acquisition
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Event also constitutes a Change in Control Event, except to
the extent specifically provided to the contrary in the
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instrument evidencing any Option or any other agreement
between a Participant and the Company (A) one-half of the
number of shares subject to the Option which were not
already vested shall be exercisable immediately prior to the
occurrence of such Acquisition Event and, subject to (B)
below, the remaining one-half of such number of shares shall
continue to become vested in accordance with the original
vesting schedule set forth in such option, with one-half of
the number of shares that would otherwise have first become
vested becoming so vested on each subsequent vesting date in
accordance with the original schedule and (B) such assumed
or substituted options shall become immediately exercisable
in full if, on or prior to the first anniversary of the date
of the consummation of the Acquisition Event, the
Participant's employment with the Company or the acquiring
or succeeding corporation is terminated for Good Reason by
the Participant or is terminated without Cause by the
Company or the acquiring or succeeding corporation. For
purposes hereof, an Option shall be considered to be assumed
if, following consummation of the Acquisition Event, the
Option confers the right to purchase, for each share of
Common Stock subject to the Option immediately prior to the
consummation of the Acquisition Event, the consideration
(whether cash, securities or other property) received as a
result of the Acquisition Event by holders of Common Stock
for each share of Common Stock held immediately prior to the
consummation of the Acquisition Event (and if holders were
offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding
shares of Common Stock); provided, however, that if the
consideration received as a result of the Acquisition Event
is not solely common stock of the acquiring or succeeding
corporation (or an affiliate thereof), the Company may, with
the consent of the acquiring or succeeding corporation,
provide for the consideration to be received upon the
exercise of Options to consist solely of common stock of the
acquiring or succeeding corporation (or an affiliate
thereof) equivalent in fair market value to the per share
consideration received by holders of outstanding shares of
Common Stock as a result of the Acquisition Event.
Notwithstanding the foregoing, if the acquiring or
succeeding corporation (or an affiliate thereof) does not
agree to assume, or substitute for, such Options, then the
Board shall, upon written notice to the Participants,
provide that all then unexercised Options will become
exercisable in full as of a specified time prior to the
Acquisition Event and will terminate immediately prior to
the consummation of such
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Acquisition Event; provided, however, that in the event of
an Acquisition Event under the terms of which holders of
Common Stock will receive upon consummation thereof a cash
payment for each share of Common Stock surrendered pursuant
to such Acquisition Event (the "Acquisition Price"), then
the Board may instead provide that all outstanding Options
shall terminate upon consummation of such Acquisition Event
and that each Participant shall receive, in exchange
therefor, a cash payment equal to the amount (if any) by
which (A) the Acquisition Price multiplied by the number of
shares of Common Stock subject to such outstanding Options
(whether or not then exercisable), exceeds (B) the aggregate
exercise price of such Options.
(b) Change in Control Event that is not an Acquisition Event.
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Upon the occurrence of a Change in Control Event that does
not also constitute an Acquisition Event, except to the
extent specifically provided to the contrary in the
instrument evidencing any Option or any other agreement
between a Participant and the Company, the vesting schedule
of such Option shall be accelerated in part so that one-half
of the number of shares that would otherwise have first
become vested on any date after the date of the Change in
Control Event shall immediately become exercisable prior to
the Change of Control. The remaining one-half of such number
of shares shall continue to become vested in accordance with
the original vesting schedule set forth in such Option, with
one-half of the number of shares that would otherwise have
first become vested becoming so vested on each subsequent
vesting date in accordance with the original schedule;
provided, however, that each such Option shall be
immediately exercisable in full if, on or prior to the first
anniversary of the date of the consummation of the Change in
Control Event, the Participant's employment with the Company
or the acquiring or succeeding corporation is terminated for
Good Reason by the Participant or is terminated without
Cause by the Company or the acquiring or succeeding
corporation.
(3) Effect on Restricted Stock Awards
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(a) Acquisition Event that is not a Change in Control Event.
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Upon the occurrence of an Acquisition Event that is not a
Change in Control Event, the repurchase and other rights of
the Company under each outstanding Restricted Stock Award
shall inure to the benefit of the Company's successor and
shall apply to the cash, securities or other property which
the Common Stock was converted into or exchanged for
pursuant to such Acquisition Event in the same manner and to
the same extent as they applied to the Common Stock subject
to such Restricted Stock Award.
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(b) Change in Control Event. Upon the occurrence of a Change in
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Control Event (regardless of whether such event also
constitutes an Acquisition Event), except to the extent
specifically provided to the contrary in the instrument
evidencing any Restricted Stock Award or any other agreement
between a Participant and the Company, the vesting schedule
of all Restricted Stock Awards shall be accelerated in part
so that one-half of the number of shares that would
otherwise have first become free from conditions or
restrictions on any date after the date of the Change in
Control Event shall immediately become free from conditions
or restrictions. Subject to the following sentence, the
remaining one-half of such number of shares shall continue
to become free from conditions or restrictions in accordance
with the original schedule set forth in such Restricted
Stock Award, with one-half of the number of shares that
would otherwise have first become free from conditions or
restrictions becoming free from conditions or restrictions
on each subsequent vesting date in accordance with the
original schedule. In addition, each such Restricted Stock
Award shall immediately become free from all conditions or
restrictions if, on or prior to the first anniversary of the
date of the consummation of the Change in Control Event, the
Participant's employment with the Company or the acquiring
or succeeding corporation is terminated for Good Reason by
the Participant or is terminated without Cause by the
Company or the acquiring or succeeding corporation.
(4) Effect on Other Awards
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(a) Acquisition Event that is not a Change in Control Event. The
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Board shall specify the effect of an Acquisition Event that
is not a Change in Control Event on any other Award granted
under the Plan at the time of the grant of such Award.
(b) Change in Control Event. Upon the occurrence of a Change in
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Control Event (regardless of whether such event also
constitutes an Acquisition Event), except to the extent
specifically provided to the contrary in the instrument
evidencing any Award or any other agreement between a
Participant and the Company, the vesting schedule of all
other Awards shall be accelerated in part so that one-half
of the number of shares that would otherwise have first
become exercisable, realizable, vested or free from
conditions or restrictions on any date after the date of the
Change in Control Event shall immediately become
exercisable, realizable, vested or free from conditions or
restrictions. Subject to the following sentence, the
remaining one-half of such number of shares shall continue
to become exercisable, realizable, vested or free from
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conditions or restrictions in accordance with the original
schedule set forth in such Award, with one-half of the
number of shares that would otherwise have first become
exercisable, realizable, vested or free from conditions or
restrictions becoming so exercisable, realizable, vested or
free from conditions or restrictions on each subsequent
vesting date in accordance with the original schedule. In
addition, each such Award shall immediately become fully
exercisable, realizable, vested or free from conditions or
restrictions if, on or prior to the first anniversary of the
date of the consummation of the Change in Control Event, the
Participant's employment with the Company or the acquiring
or succeeding corporation is terminated for Good Reason by
the Participant or is terminated without Cause by the
Company or the acquiring or succeeding corporation.
9. General Provisions Applicable to Awards
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(a) Transferability of Awards. Except as the Board may otherwise determine
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or provide in an Award, Awards shall not be sold, assigned, transferred, pledged
or otherwise encumbered by the person to whom they are granted, either
voluntarily or by operation of law, except by will or the laws of descent and
distribution, and, during the life of the Participant, shall be exercisable only
by the Participant. References to a Participant, to the extent relevant in the
context, shall include references to authorized transferees. Notwithstanding the
foregoing, Awards for Non-Statutory Stock Options may be transferred by the
Participant (i) to a spouse, lineal ancestor or descendant, brother or sister of
such Participant and to any trust for the benefit of such persons and (ii) as
gifts to charitable organizations within the meaning of Section 501(c)(3) of the
Code, so long as any such transferee agrees to be bound by the terms of such
written instrument(s) as the Board shall determine.
(b) Documentation. Each Award shall be evidenced by a written instrument
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in such form as the Board shall determine. Each Award may contain terms and
conditions in addition to those set forth in the Plan.
(c) Board Discretion. Except as otherwise provided by the Plan, each
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Award may be made alone or in addition or in relation to any other Award. The
terms of each Award need not be identical, and the Board need not treat
Participants uniformly.
(d) Termination of Status. The Board shall determine the effect on an
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Award of the disability, death, retirement, authorized leave of absence or other
change in the employment or other status of a Participant and the extent to
which, and the period during which, the Participant, the Participant's legal
representative, conservator, guardian or Designated Beneficiary may exercise
rights under the Award.
(e) Withholding. Each Participant shall pay to the Company, or make
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provision satisfactory to the Board for payment of, any taxes required by law to
be withheld in connection
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with Awards to such Participant no later than the date of the event creating the
tax liability. Except as the Board may otherwise provide in an Award, when the
Common Stock is registered under the Exchange Act, Participants may, to the
extent then permitted under applicable law, satisfy such tax obligations in
whole or in part by delivery of shares of Common Stock, including shares
retained from the Award creating the tax obligation, valued at their Fair Market
Value. The Company may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to a Participant.
(f) Amendment of Award. The Board may amend, modify or terminate any
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outstanding Award, including but not limited to, substituting therefor another
Award of the same or a different type, changing the date of exercise or
realization, and converting an Incentive Stock Option to a Nonstatutory Stock
Option, provided that the Participant's consent to such action shall be required
unless the Board determines that the action, taking into account any related
action, would not materially and adversely affect the Participant.
(g) Conditions on Delivery of Stock. The Company will not be obligated to
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deliver any shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan until (i) all
conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company's counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
(h) Acceleration. The Board may at any time provide that any Options
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shall become immediately exercisable in full or in part, that any Restricted
Stock Awards shall be free of restrictions in full or in part or that any other
Awards may become exercisable in full or in part or free of some or all
restrictions or conditions, or otherwise realizable in full or in part, as the
case may be.
10. Miscellaneous
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(a) No Right To Employment or Other Status. No person shall have any
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claim or right to be granted an Award, and the grant of an Award shall not be
construed as giving a Participant the right to continued employment or any other
relationship with the Company. The Company expressly reserves the right at any
time to dismiss or otherwise terminate its relationship with a Participant free
from any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) No Rights As Stockholder. Subject to the provisions of the applicable
------------------------
Award, no Participant or Designated Beneficiary shall have any rights as a
stockholder with respect to any shares of Common Stock to be distributed with
respect to an Award until becoming the record holder of such shares.
Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the
number of shares subject to such Option are adjusted as of the date of the
distribution of the dividend (rather
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than as of the record date for such dividend), then an optionee who exercises an
Option between the record date and the distribution date for such stock dividend
shall be entitled to receive, on the distribution date, the stock dividend with
respect to the shares of Common Stock acquired upon such Option exercise,
notwithstanding the fact that such shares were not outstanding as of the close
of business on the record date for such stock dividend.
(c) Effective Date and Term of Plan. The Plan shall become effective on
-------------------------------
the date on which it is adopted by the Board, but no Award granted to a
Participant that is intended to comply with Section 162(m) shall become
exercisable, vested or realizable, as applicable to such Award, unless and until
the Plan has been approved by the Company's stockholders to the extent
stockholder approval is required by Section 162(m) in the manner required under
Section 162(m) (including the vote required under Section 162(m)). No Awards
shall be granted under the Plan after the completion of ten years from the
earlier of (i) the date on which the Plan was adopted by the Board or (ii) the
date the Plan was approved by the Company's stockholders, but Awards previously
granted may extend beyond that date.
(d) Amendment of Plan. The Board may amend, suspend or terminate the Plan
-----------------
or any portion thereof at any time, provided that to the extent required by
Section 162(m), no Award granted to a Participant that is intended to comply
with Section 162(m) after the date of such amendment shall become exercisable,
realizable or vested, as applicable to such Award, unless and until such
amendment shall have been approved by the Company's stockholders as required by
Section 162(m) (including the vote required under Section 162(m)).
(e) Governing Law. The provisions of the Plan and all Awards made
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hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware, without regard to any applicable conflicts of law.
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