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EXHIBIT 10.22
KERYX BIOPHARMACEUTICALS, INC.
2000 STOCK OPTION PLAN
1. PURPOSES OF THE PLAN
The purposes of this Stock Option Plan are to attract and retain the best
available personnel for positions of substantial responsibility, to provide
additional incentive to Employees, Directors and Consultants, and to promote the
success of the Company's business. The Company intends that these purposes will
be effected by the granting of incentive stock options ("Incentive Options") as
defined in Section 422 of the United States Internal Revenue Code of 1986, as
amended (the "Code"), nonqualified stock options ("Nonqualified Options"),
restricted stock ("Restricted Stock Awards"), unrestricted stock ("Unrestricted
Stock Awards"), performance shares ("Performance Share Awards"), and stock
appreciation rights ("Stock Appreciation Rights").
2. DEFINITIONS
(a) "Administrator" means the Board or any of its Committees as shall
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be administering the Plan, in accordance with Section 4 hereof.
(b) "Applicable Laws" means the requirements relating to the
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administration of share option plans under U.S. state corporate laws, U.S.
federal and state securities laws, and the rules promulgated thereunder, U.S.
tax laws, the stock exchange or quotation system on which the Shares are listed
or quoted and the applicable laws of any country or jurisdiction where the
Shares are registered or Awards are granted under the Plan.
(c) "Award" means Options, Restricted Stock Awards, Unrestricted
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Stock Awards, Performance Share Awards, and Stock Appreciation Rights.
(d) "Award Agreement" means a written agreement between the Company
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and a Grantee evidencing the terms and conditions of an individual Award grant.
(e) "Award Share" means the Shares subject to an Award.
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(f) "Board" means the Board of Directors of the Company.
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(g) "Committee" means a committee of Directors appointed by the Board
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in accordance with Section 4 hereof.
(h) "Company" means Keryx Biopharmaceuticals, Inc., a corporation
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formed under the laws of the State of Delaware.
(i) "Consultant" means any person who is engaged by the Company or any
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Parent or Subsidiary to render consulting or advisory services to such entity.
(j) "Director" means a member of the Board.
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(k) "Employee" means any person, including officers of the Company
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(within the meaning of the U.S. Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder), and Directors employed by the
Company or any Parent or Subsidiary of the Company. A person employed by the
Company or any Parent or Subsidiary shall not cease to be an Employee in the
case of (i) any leave of absence approved by the Company or (ii) transfers
between locations of the Company or between the Company, any Parent, any
Subsidiary, or any successor. Neither service as a Director nor payment of a
director's fee by the Company shall be sufficient to constitute "employment" by
the Company for purposes of granting Incentive Options.
(l) "Fair Market Value" means, as of any date, the value of a Share
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determined as follows:
(i) If the Shares are listed on any established stock exchange or
a national market system, including without limitation the Nasdaq National
Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, Fair Market
Value shall be the average closing sales price for such Shares (or the closing
bid, if no sales were reported) as quoted on such exchange or system for the
last five full market trading days prior to the time of determination (except
with regard to Incentive Options, where Fair Market Value shall be based on the
price on the full market trading day immediately prior to the date of grant) as
reported in The Wall Street Journal or such other source as the Administrator
deems reliable;
(ii) If the Shares are regularly quoted by a recognized securities
dealer but selling prices are not reported, Fair Market Value shall be the mean
between the high bid and low asked prices for the Shares for the last five full
market trading day prior to the day of determination (except with regard to
Incentive Options, where the Fair Market Value shall be based on the price on
the on the full market day immediately prior to the date of grant; or
(iii) In the absence of an established market for the Shares, Fair
Market Value thereof shall be determined in good faith by the Administrator.
(m) "Grantee" means the holder of an outstanding Award granted under
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the Plan.
(n) "Non-employee Director" means a Director who is not also an
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employee or officer of the Company or any Parent or Subsidiary.
(o) "Option" means an Incentive Option or a Nonqualified Option.
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(p) "Parent" means any company other than the Company, whether now or
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hereafter existing, in an unbroken chain of companies ending with the Company
if, at the time of the granting of the Award, each of the companies other than
the Company owns shares possessing 50 percent or more of the total combined
voting power of all classes of shares in one of the other companies in such
chain.
(q) "Plan" means this Keryx Biopharmaceuticals, Inc. 2000 Stock Option
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Plan.
(r) "Repurchaser" means (i) the Company, if permitted by Applicable
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Laws; (ii) if the Company is not permitted by Applicable Laws, then any
affiliate or subsidiary of the Company designated by the Board; or (iii) if the
Board so decides, any other third party or parties
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designated by the Board, provided in no case shall the Company provide financial
assistance to any other party to purchase the Awards if doing so is prohibited
by Applicable Laws.
(s) "Service Provider" means an Employee, Director or Consultant.
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(t) "Share" means a share of the Company's common stock having a par
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value of $0.001, as adjusted in accordance with Section 16 below.
(u) "Subsidiary" means any company other than the Company, whether now
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or hereafter existing, in an unbroken chain of companies beginning with the
Company if, at the time of the granting of the Option, each of the companies
other than the last company in an unbroken chain owns shares possessing 50
percent or more of the total combined voting power of all classes of shares in
one of the other companies in such chain.
3. AUTHORIZED SHARES
(a) Options, Restricted Shares, Unrestricted Shares and Performance
Share Awards may be granted under the Plan subject to the provisions of Section
16 of the Plan, for up to an aggregate of 2,970,000 Shares.
(b) If an Award expires or becomes unexercisable without having been
exercised in full, the unpurchased Award Shares which were subject thereto shall
become available for future grant under the Plan (unless the Plan has
terminated); provided, however, that Shares that have actually been issued under
the Plan shall not be returned to the Plan and shall not become available for
future grant under the Plan.
4. ADMINISTRATION
(a) Procedure. The Plan shall be administered by the Board or a
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Committee appointed by the Board, which Committee shall be constituted to comply
with Applicable Laws.
(b) Powers of the Administrator. Subject to the terms and conditions
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of the Plan, and in the case of a Committee, the specific duties delegated by
the Board to such Committee, and subject to the approval of any relevant
authorities, the Administrator shall have the authority, in its discretion:
(i) to determine Fair Market Value;
(ii) to select the Service Providers to whom Awards may from time
to time be granted hereunder;
(iii) to determine from time to time the Awards to be granted to
eligible persons under the Plan and to prescribe the terms and conditions (which
need not be identical) of Awards granted under the Plan to such persons;
(iv) to approve forms of the Award Agreements for use under the
Plan;
(v) to determine the terms and conditions of any Award granted
hereunder, including, without limitation, the vesting schedule, and whether and
to what extent an Option shall be an Incentive Option;
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(vi) to determine whether and under what circumstances an Award
may be settled in cash as set forth under subsection 14(f) instead of Shares;
(vii) to reduce the exercise price of any Award to the then
current Fair Market Value, if the Fair Market Value of the Shares covered by
such Award has declined since the date the Award was granted;
(viii) to exercise such powers and to perform such acts as are
deemed necessary or expedient to promote the best interests of the Company with
respect to the Plan, including but not limited to prescribe, amend and rescind
any rules related to the Plan;
(ix) to amend any outstanding Award, subject to Section 17
hereof, and to accelerate the vesting or extend the exercisability of any Award
and to waive conditions or restrictions on any Award, to the extent it shall
deem appropriate;
(x) subject to Applicable Laws, to allow Grantees to satisfy
withholding tax obligations by electing to have the Company, if permitted under
Applicable Laws, withhold from the Shares to be issued upon exercise of an Award
that number of Shares having a Fair Market Value equal to the amount required to
be withheld. The Fair Market Value of the Shares to be withheld shall be
determined on the date that the amount of tax to be withheld is to be
determined. All elections by Grantees to have Shares withheld for this purpose
shall be made in such form and under such conditions as the Administrator may
deem necessary or advisable; and
(xi) to construe and interpret the terms of the Plan the Award
Agreements and Awards.
(c) Effect of Administrator's Decision. All decisions, determinations
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and interpretations of the Administrator shall be final and binding on all
Grantees.
(d) Grants to Committee Members. If the Administrator is a Committee
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appointed by the Board, the grant of Awards under the Plan to members of such
Committee, if any, shall be made by the Board and not by such Committee.
5. ELIGIBILITY
(a) General. Incentive Options may be granted only to officers or
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other employees of the Company or any Parent or Subsidiary, including to members
of the Board who are also officers or employees of the Company or any Parent or
Subsidiary. All other Awards may be granted to officers or other employees of
the Company, its Parent or Subsidiary and to Consultants and Non-employee
Directors. Nonqualified Options shall be granted to Non-employee Directors
pursuant to Section 8. In addition to the automatic grants set forth in Section
8, Nonqualified Options may be granted to Non-employee Directors in the
discretion of the Administrator, but such Option Awards shall be made subject to
approval by the stockholders of the Company.
(b) Limit on Incentive Option Grants. Notwithstanding any other
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provision of the Plan, the aggregate fair market value (determined as of the
time an Incentive Option is granted) of the Shares with respect to which
Incentive Options are exercisable for the first time by any individual during
any calendar year (under all plans of the Company, or any Parent or Subsidiary,
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if any) shall not exceed $100,000.
(c) Continuing Relationship. The Plan and the Award Agreements shall
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not confer upon any Grantee any right with respect to continuing the Grantee's
relationship as a Service Provider with the Company or its Parent or Subsidiary,
nor shall it interfere in any way with his or her right or the Company's right,
or the right of its Parent or Subsidiary, subject to any employment agreements,
to terminate such relationship at any time, with or without cause.
(d) Award Agreements. Subject to the terms and conditions of the
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Plan, each Award Agreement shall contain provisions as the Committee shall from
time to time deem appropriate. Award Agreements need not be identical, but each
Award Agreement shall include by appropriate language the substance of the
applicable provisions set forth herein, and any such provision may be included
in the Award Agreement by reference to the Plan. In the case of a conflict
between the terms of any Award Agreement and the Plan, the terms of the Plan
shall control in all cases.
6. TERM OF THE PLAN
The Plan shall become effective upon its adoption by the Board. It shall
continue in effect for a term of ten (10) years after the earlier of its
adoption by the Board or its approval by the Company's stockholders, unless
sooner terminated under Section 17 of the Plan.
7. OPTION AWARDS
(a) Expiration. Unless otherwise stated in the Award Agreement, each
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Option shall expire on the tenth anniversary of the date on which the Award was
granted, as specified in the Award Agreement.
(b) Exercise; Minimum Shares Exercisable. Each Award shall be
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exercisable in such installments (which need not be equal) and at such times as
may be designated by the Committee. The minimum number of shares with respect to
which an Award may be exercised at any time shall be one hundred (100) shares,
or such lesser number as is subject to exercise under the Option at the time. To
the extent not exercised, installments shall accumulate and be exercisable, in
whole or in part, at any time after becoming exercisable, but not later than the
date the Award expires.
(c) Purchase Price. The purchase price per Share subject to each
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Award shall be determined by the Administrator but shall not be less than 85% of
the Fair Market Value of the Shares at the time of grant; provided, however,
that the purchase price per Share subject to each Incentive Option shall be not
less than the Fair Market Value of the Shares at the time of grant.
(d) Transfer. No Award granted hereunder shall be transferable by the
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Grantee other than by will or by the laws of descent and distribution. Awards
may be exercised during the Grantee's lifetime only by the Grantee, or his or
her guardian or legal representative. Notwithstanding the foregoing,
Nonqualified Options may be transferred without consideration to members of the
Grantee's immediate family, to trusts for the benefit of such family members, to
partnerships in which such family members are the only partners and to charities
unless otherwise provided in the applicable Award Agreement.
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(e) Award Agreement to Israeli Grantees. At the discretion of the
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Administrator, the Award Agreement to Israeli Grantees may contain specific
provisions relating to the allocation of Options to a Trustee on behalf of the
Grantees and additional provisions as may be deemed appropriate pursuant to
relevant changes in tax legislation in Israel.
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8. OPTIONS GRANTED TO NON-EMPLOYEE DIRECTORS
(a) Automatic Grant. Each Non-Employee Director shall automatically
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be granted on the day he or she first becomes Director, a Nonqualified Option to
acquire 25,000 Shares and each Non-employee Director who is serving as Director
of the Company on the next business day after the adjournment of each annual
stockholders meeting, after the 2000 annual meeting, shall automatically be
granted on such day a Nonqualified Option to acquire 5,000 Shares. The exercise
price per share for the Shares covered by an Award Agreement granted under this
Section 8 shall be equal to the Fair Market Value of the Shares on the date the
Award is granted. An Award granted hereunder shall be subject to the provisions
set forth in Section 7 unless provided otherwise in the Award Agreement.
(b) Exercise. An Award granted under this Section 8 shall become
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exercisable in accordance with the Award Agreement. Awards granted under this
Section 8 may be exercised only by the written notice to the Company specifying
the number of Shares to be purchased and tender of the full purchase price of
the Shares pursuant to one or more of the methods specified in Section 15(a)
hereof.
(c) Transfer. No Award granted hereunder shall be transferable by the
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Grantee other than by will or by the laws of descent and distribution. Awards
may be exercised during the Grantee's lifetime only by the Grantee, or his or
her guardian or legal representative. Notwithstanding the foregoing,
Nonqualified Options may be transferred without consideration to members of the
Grantee's immediate family, to trusts for the benefit of such family members, to
partnerships in which such family members are the only partners and to charities
unless otherwise provided in the applicable Award Agreement.
9. RESTRICTED STOCK AWARDS
(a) Nature of Restricted Stock Awards. A Restricted Stock Award is an
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Award entitling the recipient to acquire Shares, at par value or such other
purchase price determined by the Administrator subject to such restrictions and
conditions as the Administrator may determine at the time of grant ("Restricted
Stock"). Conditions may be based, among other things, on continuing employment
(or other business relationship) and/or achievement of pre-established
performance goals and objectives.
(b) Rights as Stockholder. Upon execution of a written instrument
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setting forth the Restricted Stock Award and paying any applicable purchase
price, Grantee shall have the rights of a stockholder with the respect to the
voting of the Restricted Stock, subject to such conditions and terms contained
in the written instrument evidencing the Restricted Stock Award. Unless the
Administrator shall otherwise determine, certificates evidencing the Restricted
Stock shall remain in the possession of the Company until such Restricted Stock
is vested as provided in Section 9(d) below.
(c) Transfer. Restricted Stock may not be sold, assigned, transferred,
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pledged or otherwise encumbered or disposed of except as specifically provided
herein or in the written instrument evidencing the Restricted Stock Award. If a
Grantee's employment (or other business relationship) with the Company or its
Parent or Subsidiary terminates for any reason, the Company shall have the right
to repurchase all shares of Restricted Stock with the respect to
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which conditions have not lapsed at their purchase price, from the Grantee or
the Grantee's legal representative.
(d) Conditions of Vesting. The Administrator at the time of grant shall
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specify the date or dates and/or the attainment of pre-established performance
goals, objectives and other conditions on which the non-transferability of the
Restricted Stock and the Company's right of repurchase or forfeiture shall
lapse. Subsequent to such date or dates and/or the attainment of such pre-
established performance goals, objectives and other conditions, the Shares on
which all restrictions have lapsed shall no longer be Restricted Stock and shall
be deemed "vested." Except as may otherwise be provided by the Administrator at
any time, a Grantee's rights in any shares of Restricted Stock that have not
vested shall automatically terminate upon Grantee's termination of employment
(or other business relationship with the Company and its Subsidiary) and such
shares shall either be forfeited or subject to the Company's right of repurchase
as provided in this Section 9.
(e) Payment. The Award Agreement evidencing the Restricted Stock
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Award may require or permit the immediate payment, waiver, deferral or
investment of dividends paid on the Restricted Stock.
10. UNRESTRICTED STOCK AWARDS
(a) Nature of Unrestricted Stock Awards. The Administrator may, in
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its sole discretion, grant (or sell at a purchase price determined by the
Administrator) an Unrestricted Stock Award, pursuant to which the Grantee may
receive Shares free of any restrictions under the Plan. Unrestricted Stock
Awards may be granted or sold as described in the preceding sentence in respect
of past services or other valid consideration, or in lieu of cash compensation
due to such Grantee.
(b) Deferral of Receipt of Award. The Administrator may permit the
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Grantee of any Unrestricted Stock Award to elect in advance to defer receipt of
such Award in accordance with such rules and procedures as may be established by
the Administrator for that purpose.
(c) Transfer. The right to receive Shares on a deferred basis may not
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be sold, assigned, transferred, pledged or otherwise encumbered, other than by
will or the laws of decent and distribution.
11. PERFORMANCE SHARE AWARDS
(a) Nature of Performance Share Awards. A Performance Share Award is
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an Award entitling the recipient to receive Shares upon the attainment of
performance goals specified in the Award Agreement. The Administrator in its
sole discretion shall determine whether and to whom Performance Share Awards
shall be made, the performance goals applicable under each such Award, the
periods during which performance is measured, the price, if any, to be paid by
the Grantee for such Performance Shares upon the achievement of the performance
goals, and all other limitations and conditions applicable to the Performance
Share Awards.
(b) Restrictions on Transfer. Unless otherwise permitted by the
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Administrator, Performance Share Awards and all rights with respect to such
Awards may not be sold, assigned,
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transferred, pledged or otherwise encumbered, other than by will or the laws of
descent and distribution.
(c) Rights as a Stockholder. A Service Provider receiving a
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Performance Share Award shall have the rights of a stockholder only as to Shares
actually received by the Service Provider under the Plan and only upon
satisfaction of all conditions specified in the Award Agreement evidencing the
Performance Share Award (or in a performance plan adopted by the Administrator).
(d) Termination. Except as may otherwise be provided by the
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Administrator, at any time prior to termination of employment (or other business
relationship), a Service Provider's rights in all Performance Share Awards shall
automatically terminate upon the termination of his or her employment (or
business relationship) with the Company and any Parent or Subsidiary for any
reason.
12. STOCK APPRECIATION RIGHTS AWARDS
(a) Nature of Stock Appreciation Rights. A Stock Appreciation Right
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is an Award entitling the recipient to receive an amount in cash in an amount
equal to the excess of the Fair Market Value of a Share, on the date of exercise
over the exercise price per Stock Appreciation Right set by the Administrator at
the time of grant, which price shall not be less than 85% of the Fair Market
Value of the Shares on the grant date (or of the option exercise price per
share, if the Stock Appreciation Right was granted in tandem with an Option)
multiplied by the number of Shares with respect to which the Stock Appreciation
Right shall have been exercised.
(b) Grant of Stock Appreciation Rights. A Stock Appreciation Right
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may be granted by the Administrator in tandem with, or independently of, any
Award granted pursuant to the Plan (other than Options granted pursuant to
Section 8). In the case of a Stock Appreciation Right granted in tandem with a
Nonqualified Option, such Stock Appreciation Right may be granted either at or
after the time of the grant of such Option. In the case of a Stock Appreciation
Right granted in tandem with an Incentive Option, such Stock Appreciation Right
may be granted only at the time of the grant of the Incentive Option.
(c) Terms and Conditions of Stock Appreciation Rights. Stock
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Appreciation Rights shall be subject to such terms and conditions as shall be
determined from time to time by the Committee, subject to the following:
(i) Stock Appreciation Rights granted in tandem with an Option
shall be exercisable at such time or times and to the extent that the related
Option shall be exercisable.
(ii) A Stock Appreciation Right or applicable portion thereof
granted in tandem with an Option shall terminate and no longer be exercisable
upon the termination or exercise of the related Option. Upon exercise of Stock
Appreciation Right, the applicable portion of any related Option shall be
surrendered.
(iii) Stock Appreciation Rights granted in tandem with an Option
shall be transferable only when and to the extent that the underlying Option
would be transferable. Unless otherwise permitted by the Administrator, Stock
Appreciation Rights not granted in tandem with
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an Option shall not be transferable otherwise than by will or the laws of
descent or distribution. All Stock Appreciation Rights shall be exercisable
during the Grantee's lifetime only by the Grantee, the Grantee's legal
representative or a permitted transferee.
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13. CONDITIONS UPON ISSUANCE OF SHARES
(a) Legal Compliance. Shares shall not be issued pursuant to the
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exercise of an Award unless the exercise of such Award, the method of payment
and the issuance and delivery of such Shares shall comply with Applicable Laws
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an
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Award, the Administrator may require the person exercising such Award to
represent and warrant at the time of any such exercise that the Shares are being
purchased only for investment purposes and without any present intention to sell
or distribute such Shares if, in the opinion of counsel for the Company, such a
representation is in the best interests of the Company.
14. METHOD OF EXERCISE
(a) Delivery of Notice. Any Award granted under the Plan may be
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exercised by the Grantee in whole or, subject to Section 7(b) hereof, in part by
delivering to the Company on any business day a written notice stating the
number of Shares the Grantee then desires to purchase.
(b) Procedure for Exercise; Rights as a Stockholder. Any Award granted
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hereunder shall be exercisable according to the terms of the Plan and at such
times and under such conditions as determined by the Administrator and/or set
forth in the Award Agreement. Unless the Administrator provides otherwise,
vesting of Awards granted hereunder shall be tolled during any unpaid leave of
absence other than leave pursuant to law. An Award may not be exercised for a
fraction of a Share. A pro rata cash payment will be made to a Grantee in lieu
of fractional shares that may be due to such Grantee upon exercise of an Award.
An Award shall be deemed exercised when the Company receives: (i)
written notice of exercise (in accordance with the Award Agreement) from the
person entitled to exercise the Award, and (ii) full payment for the Shares with
respect to which the Award is exercised. Full payment may consist of any
consideration and method of payment authorized by the Administrator and
permitted by Applicable Laws, the Award Agreement and the Plan. Shares issued
upon exercise of an Award shall be issued in the name of the Grantee or, if
requested by the Grantee, in the name of the Grantee and his or her spouse, or
in the name of a valid transferee. Until the Shares are issued (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company), no right to vote or receive dividends or any
other rights as a stockholder shall exist with respect to the Shares,
notwithstanding the exercise of the Award. To avoid doubt, until the Shares are
issued, such Grantee shall not have the right to vote at any meeting of the
stockholders of the Company, nor shall the Grantees be deemed to be a class of
stockholders or creditors of the Company. Upon their issuance, the Shares shall
carry equal voting rights as the common stock of the company on all matters
where such vote is permitted by Applicable Law. The Company shall issue (or
cause to be issued) such Shares promptly after the Award is exercised. No
adjustment will be made for a dividend or other right for which the record date
is prior to the date the Shares are issued, except as provided in Section 16 of
the Plan.
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If any law or regulation requires the Company to take any action with
respect to the Shares specified in such notice before the issuance thereof, then
the date of their issuance shall be delayed for the period necessary to take
such action.
Exercise of an Award in any manner shall result in a decrease in the
number of Shares thereafter available, for delivery under the Award, by the
number of Shares as to which the Award is exercised.
(c) Termination of Relationship as a Service Provider. Unless the
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Administrator determines that a longer period is applicable or such longer
period is otherwise set forth in the Award Agreement, if a Grantee ceases to be
a Service Provider, other than upon the Grantee's death or Disability (as
defined below), the Grantee may exercise his or her Award within a period of
ninety (90) days following the Grantee's termination to the extent that the
Award is vested on the date of termination (but in no event later than the
expiration of such Award as set forth in the Award Agreement). Notwithstanding
the foregoing, should the Grantee's termination be for cause (as determined by
the Company), such period shall not exceed thirty (30) days following the
Grantee's termination. Unless otherwise determined by the Administrator, if, on
the date of termination, the Grantee is not vested as to his or her entire
Award, the unvested portion shall not be exercisable and the Shares covered by
the unvested portion of the Award shall revert to the Plan. If, after
termination, the Grantee does not exercise within the time specified by the
Award Agreement, the Plan or the Administrator the portion of his or her Award
that had vested, the vested portion of the Award shall terminate, and the Shares
covered by such portion shall revert to the Plan.
(d) Disability of Grantee. If a Grantee ceases to be a Service
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Provider as a result of a physical or mental impairment, which has lasted or is
expected to last for a continuous period of not less than 12 months and which
causes the Grantee's total and permanent disability to engage in any substantial
gainful activity ("Disability"), the Grantee may exercise his or her Award
within such period of time as is specified in the Award Agreement (such period
shall be at least six (6) months) to the extent the Award is vested on the date
of termination, but in no event later than the expiration date of the term of
such Award as set forth in the Award Agreement. In the absence of a specified
time in the Award Agreement, the Award shall remain exercisable for twelve (12)
months following the Grantee's termination. If, on the date of termination, the
Grantee is not vested as to the entire Award, the unvested portion shall not be
exercisable and the Shares covered by the unvested portion of the Award shall
revert to the Plan. If, after termination, the Award is not exercised within
the time specified herein, the Award shall terminate, and the Shares covered by
such Award shall revert to the Plan.
(e) Death of Grantee. If a Grantee dies while a Service Provider, the
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Award may be exercised within such period of time as is specified in the Award
Agreement (such period be at least six (6) months) to the extent that the Award
is vested on the date of death (but in no event later than the expiration of the
term of such Award as set forth in the Award Agreement) by the Grantee's estate
or by a person who acquires the right to exercise the Award by bequest or
inheritance. In the absence of a specified time in the Award Agreement, the
Award shall remain exercisable for twelve (12) months following the Grantee's
death, unless otherwise extended by the Administrator. If, at the time of
death, the Grantee is not vested as to the entire Award, the unvested portion
shall not be exercisable and the Shares covered by the unvested portion of the
Award shall revert to the Plan. If the Award is not so exercised within the
time specified herein, the Award shall terminate, and the Shares covered by such
Award shall revert to the Plan.
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(f) Buyout Provisions. The Administrator may at any time, if
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permitted under Applicable Laws, offer to buy out for a payment in cash or
Shares, an Award previously granted, based on such terms and conditions as the
Administrator shall establish and communicate to the Grantee at the time that
such offer is made. No such offer shall obligate the Grantee to relinquish his
or her Award.
15. PAYMENT OF PURCHASE PRICE
(a) Payment. Payment for the Shares purchased pursuant to the
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exercise of an Award may be made in such form as shall be acceptable to the
Administrator in its sole discretion and may consist entirely of (1) cash, (2)
check, (3) promissory note, (4) consideration received by the Company under a
formal cashless exercise program, or (5) any combination of the foregoing
methods of payment. In making its determination as to the type of consideration
to accept, the Administrator shall consider if acceptance of such consideration
may be reasonably expected to benefit the Company.
(b) Use of Proceeds. The proceeds received by the Company from the
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issuance of Shares subject to the Awards will be added to the general funds of
the Company and used for its corporate purposes.
16. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER
(a) Changes in Capitalization. Subject to any required action by the
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stockholders of the Company, the number of Shares covered by or underlying each
outstanding Award and the number of Shares which have been authorized for
issuance under the Plan but as to which no Awards have yet been granted or which
have been returned to the Plan upon cancellation or expiration of an Award, as
well as the exercise price per Share of each such outstanding Award shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares resulting from a share split, reverse share split, share dividend,
recapitalization, combination or reclassification of the Shares, rights issues
or any other increase or decrease in the number of issued Shares effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities (including the Series A Convertible
Preferred Stock) of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the
Administrator, whose determination shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of any
class, or securities convertible into shares of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of Shares subject to an Award.
(b) Dissolution or Liquidation. In the event of the proposed
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dissolution or liquidation of the Company, the Administrator shall notify each
Grantee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its sole discretion may provide for a Grantee
to have the right to exercise his or her Awards until fifteen (15) days prior to
such transaction as to all of the Shares, including Shares as to which the Award
would not otherwise be exercisable. To the extent it has not been previously
exercised, an Award will terminate immediately prior to the consummation of such
proposed action.
(c) Merger or Acquisition. In the event of a merger of the Company
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with or into another company, or the sale of all or substantially all of the
assets or shares of the Company,
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each outstanding Award shall be assumed or an equivalent Award substituted by
the successor company or a parent or subsidiary of the successor company. In the
event that the successor company refuses to assume or substitute for the Award,
the Grantee shall fully vest in and have the right to exercise the Award as to
all of the Shares, including Shares as to which it would not otherwise be vested
or exercisable. If an Award becomes fully vested and exercisable in lieu of
assumption or substitution in the event of a merger or acquisition, the
Administrator shall notify the Grantee in writing that the Award shall be fully
exercisable for a period not less than (15) days from the date of such notice,
and the Award shall terminate upon the expiration of such period. The
Administrator shall determine, in its discretion, the proper exchange ratio of
the Awards and the fair value of such Awards for purpose of such substitution,
shall be authorized to accelerate the vesting date of any or all Awards and
shall be authorized to make all necessary adjustments in the terms of the Awards
and the substituted Awards (including, without limitation, adjustments in the
exercise price) that are fair under the circumstances.
For the purposes of this Section 16(c), the Award shall be considered
assumed if, following the merger or acquisition, the Award (or substitute Award)
confers upon the Grantee the right to purchase or receive, for each Share of
Award Shares for which the Award was exercisable immediately prior to the merger
or acquisition, the pro rata consideration (whether shares, options, cash, or
other securities or property) received in the merger or acquisition by holders
of Shares for each Share held on the effective date of the transaction (and if
such holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding shares); provided,
however, that if such consideration received in the merger or acquisition is not
solely common shares (or their equivalent) of the successor company or its
parent, the Administrator may, with the consent of the successor company,
provide for the consideration to be received upon the exercise of the Award, for
each Share of Award Shares, to be solely common shares (or their equivalent) of
the successor company or its parent equal in fair market value to the per share
consideration received by holders of a majority of the outstanding shares in the
merger or acquisition, and provided further that the Administrator may
determine, in its sole discretion, that in lieu of such assumption or
substitution of Awards for awards by the acquiring corporation or its parent or
subsidiary, such Awards will be substituted for by any other type of asset or
property including cash which is fair under the circumstances.
17. AMENDMENT AND TERMINATION OF THE PLAN
(a) Amendment and Termination. The Board may at any time amend,
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alter, suspend or terminate the Plan.
(b) Stockholder Approval. The Board shall obtain stockholder approval
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of any Plan amendment to the extent necessary to comply with Applicable Laws.
(c) Effect of Amendment or Termination. No amendment, alteration,
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suspension or termination of the Plan shall impair the rights of any Grantee,
unless mutually agreed otherwise between the Grantee and the Administrator,
which agreement must be in writing and signed by the Grantee and the Company.
Termination of the Plan shall not affect the Administrator's ability to exercise
the powers granted to it hereunder with respect to Awards granted under the Plan
prior to the date of such termination.
18. INABILITY TO OBTAIN AUTHORITY
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The inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company's counsel to be
necessary for the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.
19. RESERVATION OF SHARES
The Company, during the term of this Plan, shall at all times reserve and
keep available and authorized for issuance such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
20. STOCKHOLDER APPROVAL OF PLAN
The Plan shall be subject to approval by the stockholders of the Company
obtained in the manner and to the degree required under applicable laws and the
Company's organizational documents.
21. GOVERNING LAW
This Plan shall be governed by and construed and enforced in accordance
with the internal laws of the State of Delaware, except to the extent that such
law is preempted by federal law.
22. TAX CONSEQUENCES
Any tax consequences arising from the grant or exercise of any Award, from
the payment for Shares, or from any other event or act (of the Company or the
Grantee) hereunder, shall be borne solely by the Grantee. Furthermore, the
Grantee shall agree to indemnify the Company and hold it harmless against and
from any and all liability for any such tax or interest or penalty thereon,
including without limitation, liabilities relating to the necessity to withhold,
or to have withheld, any such tax from any payment made to the Grantee.
23. PROVISIONS FOR FOREIGN PARTICIPANTS
The Board of Directors may, without amending the Plan, modify Awards
granted to participants who are foreign nationals or employed outside the United
States to recognize differences in laws, rules, regulations or customs of such
foreign jurisdictions with respect to tax, securities, currency, employee
benefits or other matters.
Adopted by the Board of Directors
June 14, 2000
