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EXHIBIT 10.9
STRATOS LIGHTWAVE, INC. 2000 STOCK PLAN
1. PREAMBLE.
Stratos Lightwave, Inc., a Delaware corporation (the "Company"), hereby
establishes the Stratos Lightwave, Inc. 2000 Stock Plan (the "Plan") as a means
whereby the Company may, through awards of (i) incentive stock options ("ISOs")
within the meaning of section 422 of the Code, (ii) non-qualified stock options
("NSOs"), (iii) stock appreciation rights ("SARs"), and (iv) restricted stock
("Restricted Stock"):
(a) provide selected officers, directors and
employees with additional incentive to promote the
success of the Company's business;
(b) encourage such persons to remain in the service
of the Company; and
(c) enable such persons to acquire proprietary interests
in the Company.
The provisions of this Plan do not apply to or affect any option,
stock, stock appreciation right or restricted stock hereafter granted under any
other stock plan of the Company, and all such options, stock, stock appreciation
rights or restricted stock shall be governed by and subject to the applicable
provisions of the plan under which they will be granted.
2. DEFINITIONS AND RULES OF CONSTRUCTION.
2.01 "Affiliate" means any entity during any period that, in
the opinion of the Committee, the Company has a significant economic interest in
the entity.
2.02 "Award" means the grant of Options, SARs and/or
Restricted Stock to a Participant.
2.03 "Award Date" means the date upon which an Option, SAR or
Restricted Stock is awarded to a Participant under the Plan.
2.04 "Board" or "Board of Directors" means the board of
directors of the Company.
2.05 "Cause" shall mean any willful misconduct by the
Participant which affects the business reputation of the Company or willful
failure by the Participant to perform his or her material responsibilities to
the Company (including, without limitation, breach by the Participant of any
provision of any employment, consulting, advisory, nondisclosure,
non-competition or other similar agreement between the Participant and the
Company or any Affiliate or Subsidiary).
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The Participant shall be considered to have been discharged for "Cause" if
the Company determines, within 30 days after the Participant's resignation,
that discharge for Cause was warranted.
2.06 "Change of Control" shall be deemed to have occurred on
the first to occur of any of the following:
(i) any "person" (as such term is used in Section 13(d) and
14(d)(2) of the Securities Exchange Act of 1934), other
than any Subsidiary or any employee benefit plan of the
Company or a Subsidiary, is or becomes a beneficial
owner, directly or indirectly, of stock of the Company
representing 25% or more of the total voting power of
the Company's then outstanding stock;
(ii) a tender offer (for which a filing has been made with
the SEC which purports to comply with the requirements
of Section 14(d) of the Securities Exchange Act of 1934
and the corresponding SEC rules) is made for the stock
of the Company. In case of a tender offer described in
this paragraph (ii), the "Change of Control" will be
deemed to have occurred upon the first to occur of (A)
any time during the offer when the person (using the
definition in (i) above) making the offer owns or has
accepted for payment stock of the Company with 25% or
more of the total voting power of the Company's
outstanding stock or (B) three business days before the
offer is to terminate unless the offer is withdrawn
first, if the person making the offer could own, by the
terms of the offer plus any shares owned by this
person, stock with 50% or more of the total voting
power of the Company's outstanding stock when the offer
terminates; or
(iii) individuals who were the Board's nominees for election
as directors of the Company immediately prior to a
meeting of the shareholders of the Company involving a
contest for the election of directors shall not
constitute a majority of the Board following the
election.
2.07 "Code" means the Internal Revenue Code of 1986, as
amended from time to time or any successor thereto.
2.08 "Committee" means two or more directors elected by the
Board of Directors from time to time; provided, however, that in the absence of
an election by the Board, the Committee shall mean the Compensation Committee of
the Board of Directors.
2.09 "Common Stock" means the Common Stock of the Company, par
value $.01 per share.
2.10 "Company" means Stratos Lightwave, Inc., a Delaware
corporation, and any successor thereto.
2.11 "Exchange Act" shall mean the Securities Exchange Act of
1934, as it exists now or from time to time may hereafter be amended.
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2.12 "Fair Market Value" means:
(i) for the date of the final prospectus for the Company's
initial public offering of its Common Stock, the
initial public offering price set forth in the final
prospectus for such offering; and
(ii) as of any other date, the closing price for the Common
Stock on that date, or if no sales occurred on that
date, the next trading day on which actual sales
occurred (as reported by the Nasdaq Stock Market System
or any securities exchange or automated quotation
system of a registered securities association on which
the Common Stock is then traded or quoted).
2.13 "Good Reason" shall mean any of the following:
(i) any significant diminution in the Participant's title,
authority, or responsibilities from and after a Change
of Control;
(ii) any reduction in the base compensation payable to the
Participant from and after a Change of Control; or
(iii) the relocation after a Change of Control of the
Company's place of business at which the Participant is
principally located to a location that is greater than
50 miles from the site immediately prior to the Change
of Control.
2.14 "ISO" means an incentive stock option within the meaning
of section 422 of the Code.
2.15 "NSO" means a non-qualified stock option, which is not
intended to qualify as an incentive stock option under section 422 of the Code.
2.16 "Option" means the right of a Participant, whether
granted as an ISO or an NSO, to purchase a specified number of shares of Common
Stock, subject to the terms and conditions of the Plan.
2.17 "Option Price" means the price per share of Common Stock
at which an Option may be exercised.
2.18 "Participant" means an individual to whom an Award has
been granted under the Plan.
2.19 "Plan" means the Stratos Lightwave, Inc. 2000 Stock Plan,
as set forth herein and from time to time amended.
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2.20 "Restricted Stock" means the Common Stock awarded to a
Participant pursuant to Section 8 of this Plan.
2.21 "SAR" means a stock appreciation right issued to a
Participant pursuant to Section 9 of this Plan.
2.22 "Subsidiary" means any entity during any period which the
Company owns or controls more than 50% of (i) the outstanding capital stock, or
(ii) the combined voting power of all classes of stock.
2.23 Rules of Construction:
2.23.1 GOVERNING LAW AND VENUE. The construction and
operation of this Plan are governed by the laws of the State of
Illinois without regard to any conflicts or choice of law rules or
principles that might otherwise refer construction or interpretation of
this Agreement to the substantive law of another jurisdiction, and any
litigation arising out of this Plan shall be brought in the Circuit
Court of the State of Illinois or the United States District Court for
the Eastern Division of the Northern District of Illinois.
2.23.2 UNDEFINED TERMS. Unless the context requires
another meaning, any term not specifically defined in this Plan is used
in the sense given to it by the Code.
2.23.3 HEADINGS. All headings in this Plan are for
reference only and are not to be utilized in construing the Plan.
2.23.4 CONFORMITY WITH SECTION 422. Any ISOs issued
under this Plan are intended to qualify as incentive stock options
described in section 422 of the Code, and all provisions of the Plan
relating to ISOs shall be construed in conformity with this intention.
Any NSOs issued under this Plan are not intended to qualify as
incentive stock options described in section 422 of the Code, and all
provisions of the Plan relating to NSOs shall be construed in
conformity with this intention.
2.23.5 GENDER. Unless clearly inappropriate, all nouns
of whatever gender refer indifferently to persons or objects of any
gender.
2.23.6 SINGULAR AND PLURAL. Unless clearly
inappropriate, singular terms refer also to the plural and vice versa.
2.23.7 SEVERABILITY. If any provision of this Plan is
determined to be illegal or invalid for any reason, the remaining
provisions are to continue in full force and effect and to be construed
and enforced as if the illegal or invalid provision did not exist,
unless the continuance of the Plan in such circumstances is not
consistent with its purposes.
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3. STOCK SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 12 hereof, the aggregate
number of shares of Common Stock for which Awards may be issued under this Plan
may not exceed 4,500,000 shares, and the aggregate number of shares of Common
Stock for which Restricted Stock Awards may be issued under this Plan may not
exceed 1,875,000 shares. Reserved shares may be either authorized but unissued
shares or treasury shares, in the Board's discretion. If any Award shall
terminate or expire, as to any number of shares of Common Stock, new Awards may
thereafter be awarded with respect to such shares. Notwithstanding the
foregoing, the total number of shares of Common Stock with respect to which
Awards may be granted to any Participant in any calendar year shall not exceed
1,600,000 shares (subject to adjustment as provided in Section 12 hereof).
4. ADMINISTRATION.
The Committee shall administer the Plan. All determinations of the
Committee are made by a majority vote of its members. The Committee's
determinations are final and binding on all Participants. In addition to any
other powers set forth in this Plan, the Committee has the following powers:
(a) to construe and interpret the Plan;
(b) to establish, amend and rescind appropriate rules and
regulations relating to the Plan;
(c) subject to the terms of the Plan, to select the
individuals who will receive Awards, the times when
they will receive them, the number of Options,
Restricted Stock and/or SARs to be subject to each
Award, the Option Price, the vesting schedule
(including any performance targets to be achieved in
connection with the vesting of any Award), the
expiration date applicable to each Award and other
terms, provisions and restrictions of the Awards (which
need not be identical) and subject to Section 17
hereof, to amend or modify any of the terms of
outstanding Awards;
(d) to contest on behalf of the Company or Participants, at
the expense of the Company, any ruling or decision on
any matter relating to the Plan or to any Awards;
(e) generally, to administer the Plan, and to take all such
steps and make all such determinations in connection
with the Plan and the Awards granted thereunder as it
may deem necessary or advisable; and
(f) to determine the form in which tax withholding under
Section 15 of this Plan will be made (I.E., cash,
Common Stock or a combination thereof).
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5. ELIGIBLE PARTICIPANTS.
Present and future directors, officers and employees of the Company or
any Subsidiary or Affiliate shall be eligible to participate in the Plan. The
Committee from time to time shall select those officers, directors and employees
of the Company and any Subsidiary or Affiliate of the Company who shall be
designated as Participants and shall designate in accordance with the terms of
the Plan the number, if any, of ISOs, NSOs, SARs and shares of Restricted Stock
or any combination thereof, to be awarded to each Participant.
6. TERMS AND CONDITIONS OF NON-QUALIFIED STOCK OPTIONS.
Subject to the terms of the Plan, the Committee, in its discretion, may
award an NSO to any Participant. Each NSO shall be evidenced by an agreement, in
such form as is approved by the Committee, and except as otherwise provided by
the Committee in such agreement, each NSO shall be subject to the following
express terms and conditions, and to such other terms and conditions, not
inconsistent with the Plan, as the Committee may deem appropriate:
6.01 OPTION PERIOD. Each NSO will expire as of the
earliest of:
(i) the date on which it is forfeited under the provisions
of Section 11.1;
(ii) 10 years from the Award Date;
(iii) in the case of a Participant who is an employee of the
Company, a Subsidiary or an Affiliate, three months
after the Participant's termination of employment with
the Company and its Subsidiaries and Affiliates for any
reason other than for Cause or death or total and
permanent disability;
(iv) in the case of a Participant who is a director of the
Company, but not an employee of the Company, a
Subsidiary or an Affiliate, three months after the
Participant's retirement from the Board for any reason
other than for Cause or death or total and permanent
disability or the sale, merger or consolidation, or
similar extraordinary transaction involving the
Company;
(v) immediately upon the Participant's termination of
employment with the Company and its Subsidiaries and
Affiliates or service on the Board for Cause;
(vi) 12 months after the Participant's death or total and
permanent disability; or
(vii) any other date specified by the Committee when the NSO
is granted.
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6.02 OPTION PRICE. At the time granted, the Committee shall
determine the Option Price of any NSO, and in the absence of such determination,
the Option Price shall be 100 % of the Fair Market Value of the Common Stock
subject to the NSO on the Award Date.
6.03 VESTING. Unless otherwise determined by the Committee and
set forth in the agreement evidencing an Award, NSO Awards shall vest in
accordance with Section 11.1.
6.04 OTHER OPTION PROVISIONS. The form of NSO authorized by
the Plan may contain such other provisions as the Committee may from time to
time determine.
7. TERMS AND CONDITIONS OF INCENTIVE STOCK OPTIONS
Subject to the terms of the Plan, the Committee, in its discretion, may
award an ISO to any employee of the Company or a Subsidiary. Each ISO shall be
evidenced by an agreement, in such form as is approved by the Committee, and
except as otherwise provided by the Committee, each ISO shall be subject to the
following express terms and conditions and to such other terms and conditions,
not inconsistent with the Plan, as the Committee may deem appropriate:
7.01 OPTION PERIOD. Each ISO will expire as of the earliest
of:
(i) the date on which it is forfeited under the provisions
of Section 11.1;
(ii) 10 years from the Award Date, except as set forth in
Section 7.02 below;
(iii) immediately upon the Participant's termination of
employment with the Company and its Subsidiaries for
Cause;
(iv) three months after the Participant's termination of
employment with the Company and its Subsidiaries for
any reason other than for Cause or death or total and
permanent disability;
(v) 12 months after the Participant's death or total and
permanent disability; or
(vi) any other date (within the limits of the Code)
specified by the Committee when the ISO is granted.
Notwithstanding the foregoing provisions granting discretion to the Committee to
determine the terms and conditions of ISOs, such terms and conditions shall meet
the requirements set forth in section 422 of the Code or any successor thereto.
7.02 OPTION PRICE AND EXPIRATION. The Option Price of any ISO
shall be determined by the Committee at the time an ISO is granted, and shall be
no less than 100% of the Fair Market Value of the Common Stock subject to the
ISO on the Award Date; provided, however, that if an ISO is granted to a
Participant who, immediately before the grant of the ISO, beneficially
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owns stock representing more than 10% of the total combined voting power of all
classes of stock of the Company or its parent or subsidiary corporations, the
Option Price shall be at least 110% of the Fair Market Value of the Common Stock
subject to the ISO on the Award Date and in such cases, the exercise period
specified in the Option agreement shall not exceed five years from the Award
Date.
7.03 VESTING. Unless otherwise determined by the Committee and
set forth in the agreement evidencing an Award, ISO Awards shall vest in
accordance with Section 11.1.
7.04 OTHER OPTION PROVISIONS. The form of ISO authorized by
the Plan may contain such other provisions as the Committee may, from time to
time, determine; provided, however, that such other provisions may not be
inconsistent with any requirements imposed on incentive stock options under Code
section 422 and the regulations thereunder.
8. TERMS AND CONDITIONS OF RESTRICTED STOCK AWARDS.
Subject to the terms of the Plan, the Committee, in its discretion, may
award Restricted Stock to any Participant at no additional cost to the
Participant. Each Restricted Stock Award shall be evidenced by an agreement, in
such form as is approved by the Committee, and all shares of Common Stock
awarded to Participants under the Plan as Restricted Stock shall be subject to
the following express terms and conditions and to such other terms and
conditions, not inconsistent with the Plan, as the Committee shall deem
appropriate:
(a) RESTRICTED PERIOD. Shares of Restricted Stock awarded
under this Section 8 may not be sold, assigned,
transferred, pledged or otherwise encumbered before
they vest.
(b) VESTING. Unless otherwise determined by the Committee
and set forth in the agreement evidencing an Award,
Restricted Stock Awards under this Section 8 shall vest
in accordance with Section 11.2.
(c) CERTIFICATE LEGEND. Each certificate issued in respect
of shares of Restricted Stock awarded under this
Section 8 shall be registered in the name of the
Participant and shall bear the following (or a similar)
legend until such shares have vested:
"The transferability of this certificate and
the shares of stock represented hereby are
subject to the terms and conditions
(including forfeiture) relating to
Restricted Stock contained in Section 8 of
the Stratos Lightwave, Inc. 2000 Stock Plan
and an Agreement entered into between the
registered owner and Stratos Lightwave, Inc.
Copies of such Plan and Agreement are on
file at the principal office of Stratos
Lightwave, Inc."
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9. TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS.
The Committee may, in its discretion, grant an SAR to any Participant
under the Plan. Each SAR shall be evidenced by an agreement between the Company
and the Participant, and may relate to and be associated with all or any part of
a specific ISO or NSO. An SAR shall entitle the Participant to whom it is
granted the right, so long as such SAR is exercisable and subject to such
limitations as the Committee shall have imposed, to surrender any then
exercisable portion of his SAR and, if applicable, the related ISO or NSO, in
whole or in part, and receive from the Company in exchange, without any payment
of cash (except for applicable employee withholding taxes), that number of
shares of Common Stock having an aggregate Fair Market Value on the date of
surrender equal to the product of (i) the excess of the Fair Market Value of a
share of Common Stock on the date of surrender over the Fair Market Value of the
Common Stock on the date the SARs were issued, or, if the SARs are related to an
ISO or an NSO, the per share Option Price under such ISO or NSO on the Award
Date, and (ii) the number of shares of Common Stock subject to such SAR, and, if
applicable, the related ISO or NSO or portion thereof which is surrendered.
An SAR granted in conjunction with an ISO or NSO shall terminate on the
same date as the related ISO or NSO and shall be exercisable only if the Fair
Market Value of a share of Common Stock exceeds the Option Price for the related
ISO or NSO, and then shall be exercisable to the extent, and only to the extent,
that the related ISO or NSO is exercisable. The Committee may at the time of
granting any SAR add such additional conditions and limitations to the SAR as it
shall deem advisable, including, but not limited to, limitations on the period
or periods within which the SAR shall be exercisable and the maximum amount of
appreciation to be recognized with regard to such SAR. Any ISO or NSO or portion
thereof which is surrendered with an SAR shall no longer be exercisable. An SAR
that is not granted in conjunction with an ISO or NSO shall terminate on such
date as is specified by the Committee in the SAR agreement and shall vest in
accordance with Section 11.2. The Committee, in its sole discretion, may allow
the Company to settle all or part of the Company's obligation arising out of the
exercise of an SAR by the payment of cash equal to the aggregate Fair Market
Value of the shares of Common Stock which the Company would otherwise be
obligated to deliver.
10. MANNER OF EXERCISE OF OPTIONS.
To exercise an Option in whole or in part, a Participant (or, after his
death, his executor or administrator) must give written notice to the Committee
on a form acceptable to the Committee, stating the number of shares with respect
to which he intends to exercise the Option. The Company will issue the shares
with respect to which the Option is exercised upon payment in full of the Option
Price. The Committee may permit the Option Price to be paid in cash or shares of
Common Stock held by the Participant having an aggregate Fair Market Value, as
determined on the date of delivery, equal to the Option Price. The Committee may
also permit the Option Price to be paid by any other method permitted by law,
including by delivery to the Committee from the Participant of an election
directing the Company to withhold the number of shares of Common Stock from the
Common Stock otherwise due upon exercise of the Option having an aggregate Fair
Market Value on that date equal to the Option Price. If a Participant pays the
Option Price with shares of Common Stock which were received by the Participant
upon exercise of one or more ISOs, and such Common Stock has not been held by
the Participant for at least the greater of:
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(a) two years from the date the ISOs were granted; or
(b) one year after the transfer of the shares of Common
Stock to the Participant;
the use of the shares shall constitute a disqualifying disposition and the ISO
underlying the shares used to pay the Option Price shall no longer satisfy all
of the requirements of Code section 422.
11. VESTING.
11.1 OPTIONS. A Participant may not exercise an Option until
it has become vested. The portion of an Award of Options that is vested depends
upon the period that has elapsed since the Award Date. The following schedule
applies to any Award of Options under this Plan unless the Committee establishes
a different vesting schedule on the Award Date:
<TABLE>
<CAPTION>
NUMBER OF MONTHS VESTED PERCENTAGE
SINCE AWARD DATE
<S> <C>
fewer than 12 months 0.0%
12 months 25.00%
15 months 31.25%
18 months 37.50%
21 months 43.75%
24 months 50.00%
27 months 56.25%
30 months 62.50%
33 months 68.75%
36 months 75.00%
39 months 81.25%
42 months 87.50%
45 months 93.75%
48 months or more 100.00%
</TABLE>
Not withstanding the above schedule, unless otherwise determined by the
Committee and set forth in the agreement evidencing an Award, a Participant's
Awards shall become fully vested if a Participant's employment with the Company
and its Subsidiaries and Affiliates or service on the Board is terminated due
to: (i) retirement on or after his sixty-fifth birthday; (ii) retirement on or
after his fifty-fifth birthday with consent of the Company; (iii) retirement at
any age on account of total and permanent disability as determined by the
Company; or (iv) death. Unless the Committee otherwise provides in the
applicable agreement evidencing an Award or Section 11.3 applies, if a
Participant's employment with or service to the Company terminates for any other
reason, any Awards that are not yet vested are immediately and automatically
forfeited.
A Participant's employment shall not be considered to be terminated
hereunder by reason of a transfer of his employment from the Company to a
Subsidiary or Affiliate, or vice versa, or a leave of absence approved by the
Participant's employer. A Participant's employment shall be considered to be
terminated hereunder if, as a result of a sale or other transaction, the
Participant's
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employer ceases to be a Subsidiary or Affiliate (and the Participant's employer
is or becomes an entity that is separate from the Company and its Subsidiaries
and Affiliates).
11.2 RESTRICTED STOCK AND SARS. The Committee shall establish
the vesting schedule to apply to any Award of Restricted Stock or SAR that is
not associated with an ISO or NSO granted under the Plan to a Participant, and
in the absence of such a vesting schedule, such Award shall vest in accordance
with Section 11.1.
11.3 EFFECT OF "CHANGE OF CONTROL". Notwithstanding Sections
11.1 and 11.2 above, if within 12 months following a "Change of Control" the
employment of a Participant with the Company and its Subsidiaries and Affiliates
is terminated without Cause or the Participant resigns for Good Reason, any
Award issued to the Participant shall be fully vested, and in the case of an
Award other than a Restricted Stock Award, fully exercisable for 90 days
following the date on which the Participant's service with the Company and its
Subsidiaries and Affiliates is terminated, but not beyond the date the Award
would otherwise expire but for the Participant's termination of employment.
12. ADJUSTMENTS TO REFLECT CHANGES IN CAPITAL STRUCTURE.
12.01 ADJUSTMENTS. If there is any change in the corporate
structure or shares of the Company, the Committee may make any appropriate
adjustments, including, but limited to, such adjustments deemed necessary to
prevent accretion, or to protect against dilution, in the number and kind of
shares of Common Stock with respect to which Awards may be granted under this
Plan (including the maximum number of shares of Common Stock with respect to
which Awards may be granted under this Plan in the aggregate and individually to
any Participant during any calendar year as specified in Section 3) and, with
respect to outstanding Awards, in the number and kind of shares covered thereby
and in the applicable Option Price. For the purpose of this Section 12, a change
in the corporate structure or shares of the Company includes, without
limitation, any change resulting from a recapitalization, stock split, stock
dividend, consolidation, rights offering, separation, reorganization, or
liquidation (including a partial liquidation) and any transaction in which
shares of Common Stock are changed into or exchanged for a different number or
kind of shares of stock or other securities of the Company or another
corporation.
12.02 CASHOUTS. In the event of an extraordinary dividend or
other distribution, merger, reorganization, consolidation, combination, sale of
assets, split up, exchange, or spin off, or other extraordinary corporate
transaction, the Committee may, in such manner and to such extent (if any) as it
deems appropriate and equitable make provision for a cash payment or for the
substitution or exchange of any or all outstanding Awards or the cash,
securities or property deliverable to the holder of any or all outstanding
Awards based upon the distribution or consideration payable to holders of Common
Stock upon or in respect of such event; provided, however, in each case, that
with respect to any ISO no such adjustment may be made that would cause the Plan
to violate section 422 of the Code (or any successor provision).
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13. NONTRANSFERABILITY OF AWARDS.
ISOs are not transferable, voluntarily or involuntarily, other than by
will or by the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code. During a Participant's
lifetime, his ISOs may be exercised only by him. All other Awards granted
pursuant to this Plan are transferable by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined by
the Code, or in the Committee's discretion after vesting.
14. RIGHTS AS STOCKHOLDER.
No Common Stock may be delivered upon the exercise of any Option until
full payment has been made. A Participant has no rights whatsoever as a
stockholder with respect to any shares covered by an Option until the date of
the issuance of a stock certificate for the shares.
15. WITHHOLDING TAX.
The Committee may, in its discretion and subject to such rules as it
may adopt, permit or require a Participant to pay all or a portion of the
federal, state and local taxes, including FICA and Medicare withholding tax,
arising in connection with any Awards by (i) having the Company withhold shares
of Common Stock at the minium rate legally required, (ii) tendering back shares
of Common Stock received in connection with such Award or (iii) delivering other
previously acquired shares of Common Stock having a Fair Market Value
approximately equal to the amount to be withheld.
16. NO RIGHT TO EMPLOYMENT.
Participation in the Plan will not give any Participant a right to be
retained as an employee or director of the Company or its parent or
Subsidiaries, or any right or claim to any benefit under the Plan, unless the
right or claim has specifically accrued under the Plan.
17. AMENDMENT OF THE PLAN.
The Board of Directors may from time to time amend or revise the terms
of this Plan in whole or in part and may, without limitation, adopt any
amendment deemed necessary; provided, however, that no change in any Award
previously granted to a Participant may be made that would impair the rights of
the Participant without the Participant's consent.
18. CONDITIONS UPON ISSUANCE OF SHARES.
An Option shall not be exercisable and a share of Common Stock shall
not be issued pursuant to the exercise of an Option, and Restricted Stock shall
not be awarded until and unless the award of Restricted Stock, exercise of such
Option and the issuance and delivery of such share pursuant thereto shall comply
with all relevant provisions of law, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange or national
securities association upon which the shares of
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Common Stock may then be listed or quoted, 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 of Common Stock are being purchased only for
investment and without any present intention to sell or distribute such shares
if, in the opinion of counsel for the Company, such a representation is required
by any of the aforementioned relevant provisions of law.
19. SUBSTITUTION OR ASSUMPTION OF AWARDS BY THE COMPANY.
The Company, from time to time, also may substitute or assume
outstanding awards granted by another company, whether in connection with an
acquisition of such other company or otherwise, by either (a) granting an Award
under the Plan in substitution of such other company's award, or (b) assuming
such award as if it had been granted under the Plan if the terms of such assumed
award could be applied to an Award granted under the Plan. Such substitution or
assumption shall be permissible if the holder of the substituted or assumed
award would have been eligible to be granted an Award under the Plan if the
other company had applied the rules of the Plan to such grant. In the event the
Company assumes an award granted by another company, the terms and conditions of
such award shall remain unchanged (except that the exercise price and the number
and nature of Shares issuable upon exercise of any such option will be adjusted
appropriately pursuant to section 424(a) of the Code). In the event the Company
elects to grant a new Award rather than assuming an existing option, such new
Award may be granted with a similarly adjusted exercise price.
20. EFFECTIVE DATE AND TERMINATION OF PLAN.
20.01 EFFECTIVE DATE. This Plan is effective as of the date of
its adoption by the Board of Directors; provided, however, that no Award granted
hereunder shall be effective until the date the Company's initial underwritten
public offering of its common stock has been declared effective by the
Securities Exchange Commission (the "IPO Date"), and provided further, that any
Award granted before or as of the IPO Date shall be null and void unless
approved by the Committee on or before the IPO Date.
20.02 TERMINATION OF THE PLAN. The Plan will terminate 10
years after the date it is approved by the Board of Directors; provided,
however, that the Board of Directors may terminate the Plan at any time prior
thereto with respect to any shares that are not then subject to Awards.
Termination of the Plan will not affect the rights and obligations of any
Participant with respect to Awards granted before termination.
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