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EXHIBIT 10.3
NOVIENT, INC.
1997 STOCK OPTION PLAN
NOVIENT, INC. (formerly InfoWave Technologies, Inc.), a Georgia
corporation, hereby establishes this Plan to be called the Novient, Inc. 1997
Stock Option Plan to encourage key employees of the Company and others to
acquire Common Stock of the Company, and thus provide an incentive for
continuation of their efforts for the success of the Company, for continuity of
employment and to further the interests of the shareholders.
SECTION 1. DEFINITIONS
Whenever used herein, the masculine pronoun shall be deemed to include
the feminine, the singular to include the plural, unless the context clearly
indicates otherwise, and the following capitalized words and phrases are used
herein with the meaning thereafter ascribed:
1.1 "Affiliate" shall mean any Parent or Subsidiary of the
Company, or any other entity designated by the Committee in which the Company
owns, directly or indirectly, fifty percent (50%) or more of the voting stock or
capital at the time of the granting of an Option; provided, however, that no
Incentive Stock Option may be granted to any employee of an Affiliate which is
not a corporation. Any Incentive Stock Options held by an employee of an
Affiliate which ceases to be fifty percent (50%) owned will be deemed to be a
Non-Qualified Stock Option three (3) months after the date that the Company's
ownership of the Affiliate falls below fifty percent (50%). If ownership by the
Company of the Affiliate falls below twenty-five percent (25%), a Participant's
employment will be considered terminated on the date that the Company's
ownership of the Affiliate falls below twenty-five percent (25%).
1.2 "Beneficiary" means the person or persons designated by a
Participant to exercise an Option in the event of the Participant's death while
employed by the Company, or in the absence of such designation, the executor or
administrator of the Participant's estate.
1.3 "Board" means the Board of Directors of the Company.
1.4 "Cause" means conduct by the Participant amounting to (1)
fraud or dishonesty against the Company or the Participant's employer, (2)
willful misconduct, repeated refusal to follow the reasonable directions of the
Participant's employer, or knowing violation of law in the course of performance
of the duties of the Participant's employment, (3) repeated absences from work
without a reasonable excuse, (4) intoxication with alcohol or drugs while on the
Company's or any Affiliate's premises during regular business hours, (5) a
conviction or plea of guilty or nolo contendere to a felony or a crime involving
dishonesty, or (6) a breach or violation of the terms of any employment or other
agreement to which the Participant and the Company or the Participant's employer
are parties.
1.5 "Change in Control" shall be deemed to have occurred if (i) a
tender offer shall be made and consummated with respect to the ownership of more
than fifty percent (50%) of the outstanding voting securities of the Company,
(ii) the Company shall be merged or consolidated with another corporation and as
a result of such merger or consolidation less than fifty percent (50%) of the
outstanding voting securities of the surviving or resulting corporation shall be
owned in the aggregate by the former shareholders of the Company, other than
affiliates (within the meaning of the Securities Exchange Act of 1934) of any
party to such merger or consolidation, (iii) the Company shall sell
substantially all of its assets to another corporation which corporation is not
wholly owned by the Company, or (iv) a person, within the meaning of Section
3(a)(9) or of Section 13(d)(3) (as in effect on the date hereof) of the
Securities Exchange Act of 1934, shall acquire more than fifty percent (50%) or
more of the outstanding voting securities of the Company (whether directly,
indirectly beneficially or of record). For purposes hereof, ownership of voting
securities shall take into account and shall include ownership as determined by
applying the provisions of Rule 13d-3(d)(1)(i) (as in effect on the date hereof)
pursuant to the Securities Exchange Act of 1934.
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1.6 "Code" means the Internal Revenue Code of 1986, as amended.
1.7 "Committee" means the Compensation Committee or any successor
committee appointed by the Board or, if such committee is not so appointed, the
entire Board.
1.8 "Company" means Novient, Inc. (formerly InfoWave Technologies,
Inc.), a Georgia corporation.
1.9 "Disability" has the same meaning as provided in the long-term
disability plan maintained by the Company. In the event of a dispute, the
determination of Disability shall be made by the Committee. If, at any time
during the period that this Plan is in operation, the Company does not maintain
a long term disability plan, Disability shall mean a physical or mental
condition which, in the judgment of the Committee, permanently prevents a
Participant from performing his usual duties for the Company or Affiliate or
such other position or job which the Company makes available to him and for
which the Participant is qualified by reason of his education, training and
experience. In making its determination the Committee may, but is not required
to, rely on advice of a physician competent in the area to which such Disability
relates. The Committee may make the determination as to Disability in its sole
discretion and any decision of the Committee will be binding on all parties.
1.10 "Disposition" means any conveyance, sale, transfer,
assignment, pledge or hypothecation, whether outright or as security, inter
vivos or testamentary, with or without consideration, voluntary or involuntary.
1.11 "Fair Market Value" means, for any particular date, (i) for
any period during which the Stock shall be listed for trading on a national
securities exchange or the National Association of Securities Dealers Automated
Quotation System ("NASDAQ"), the closing price per share of Stock on such
exchange or the NASDAQ closing bid price as of the close of such trading day, or
(ii) until such time as the Stock is listed on a national securities exchange or
NASDAQ, the Committee acting in good faith shall determine, through any
reasonable valuation method, the Fair Market Value of the Stock subject to this
Plan. If the Fair Market Value is to be determined as of a day when the
securities markets are not open, the Fair Market Value on that day shall be the
Fair Market Value on the next succeeding day when the markets are open.
1.12 "Incentive Stock Option" means an incentive stock option, as
defined in Code Section 422, described in Plan Section 3.2.
1.13 "Non-Qualified Stock Option" means a stock option, other than
an option qualifying as an Incentive Stock Option, described in Plan Section
3.2.
1.14 "Option" means a Non-Qualified Stock Option or an Incentive
Stock Option.
1.15 "Over 10 Percent Owner" means an individual who at the time an
Incentive Stock Option is granted owns Stock possessing more than ten percent
(10%) of the total combined voting power of the Company, determined by applying
the attribution rules of Code Section 424(d).
1.16 "Parent" means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company if, with respect to
Incentive Stock Options, at the time of granting of the Option, each of the
corporations other than the Company owns stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one of the
other corporations in the chain.
1.17 "Participant" means an individual who receives an Option
hereunder.
1.18 "Plan" means the Novient, Inc. 1997 Stock Option Plan.
1.19 "Retirement" means a participant's termination of employment
after attaining age 62 and seven (7) years of service.
1.20 "Stock" means the Company's common stock, no par value.
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1.21 "Stock Option Agreement" means an agreement between the
Company and a Participant or other documentation evidencing on Option.
1.22 "Subsidiary" means any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company if, with respect to
Incentive Stock Options, at the time of the granting of the Option, each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in the chain.
1.23 "Termination of Employment" means the termination of the
employee-employer relationship between a Participant and the Company and its
Affiliates regardless of the fact that severance or similar payments are made to
the Participant, for any reason, including, but not by way of limitation, a
termination by resignation, discharge, death, Disability or Retirement. The
Committee shall, in its absolute discretion, determine the effect of all matters
and questions relating to Termination of Employment including, without
limitation, the question of whether a leave of absence constitutes a Termination
of Employment.
1.24 "Vested" means that an Option is nonforfeitable and
exercisable with regard to a designated number of shares of Stock.
SECTION 2. GENERAL TERMS
2.1 PURPOSE OF THE PLAN. The Plan is intended to (a) provide an
incentive to key employees and others to stimulate their efforts toward the
continued success of the Company and to operate and manage the business in a
manner that will provide for the long-term growth and profitability of the
Company; (b) encourage stock ownership by key employees and others by providing
them with a means to acquire a proprietary interest in the Company by acquiring
shares of Stock; and (c) provide a means of obtaining and rewarding key
employees and others.
2.2 STOCK SUBJECT TO THE PLAN. Subject to adjustment in accordance
with Section 6.2, 100,000 shares of Stock (the "Maximum Plan Shares") are hereby
reserved and subject to issuance under the Plan. At no time shall the Company
have outstanding Options and shares of Stock issued in respect to Options in
excess of the Maximum Plan Shares. To the extent permitted by law, the shares of
Stock attributable to the nonvested, unpaid, unexercised, unconverted or
otherwise unsettled portion of any Option that is forfeited, canceled or expires
or terminates for any reason without becoming vested, paid, exercised, converted
or otherwise settled in full shall again be available for purposes of the Plan.
2.3 ADMINISTRATION OF THE PLAN.
(a) Committee. The Plan shall be administered by the
Committee. Upon the Company becoming registered under the rules and regulations
of the Securities Exchange Act of 1934, as amended (the "1934 Act"), eligibility
for members of the Committee shall comply with any applicable rules and
regulations promulgated thereunder, or any successor rule or regulation. No
person, other than members of the Committee, shall have any discretion
concerning decisions regarding the Plan.
(b) Grant and Approval of Options. The Committee shall
have full and complete authority in its sole discretion, but subject to the
express provisions of the Plan: to grant Options; to determine the Participants
to whom Options shall be granted; to determine the option price and the number
of shares of Stock to be covered by each Option, the vesting and duration of
each Option, the time or times within which each Option may be exercised, and
the other terms and conditions of the grant of each Option; to cancel and amend
Options (with the consent of the holder of the Option where required); and to
impose such conditions on the grant of Options as it determines to be
appropriate, including the surrender of outstanding stock options issued under
the Plan or any other stock option plan of the Company. The provisions and
conditions of the Options need not be the same with respect to each Participant
or with respect to each Option.
Notwithstanding the foregoing, no Option shall be granted to an officer
or director of the Company or any
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Affiliate unless such grant: (i) is approved in advance by the Board; (ii) is
approved in advance by the Committee, if the Committee is composed solely of two
(2) or more "Non-Employee Directors" (as such term is defined in Rule 16b-3
promulgated pursuant to Section 16 of the 1934 Act, or any successor rule or
regulation); or (iii) is approved in advance by the shareholders or ratified no
later than the next annual meeting of the shareholders.
(c) Interpretation of Plan. The Committee may, subject to
the provisions of the Plan, establish, amend, and rescind such rules and
regulations as it deems necessary or advisable for the proper administration of
the Plan, and may make determinations and may take such other action in
connection with or in relation to the Plan as it deems necessary or advisable.
Each determination or other action made or taken pursuant to the Plan, including
interpretation of the Plan and the specific conditions and provisions of the
Options granted hereunder by the Committee shall be final and conclusive for all
purposes and upon all persons including, but without limitation, the Company,
its Affiliates, the Committee, the Board, officers, and the affected
Participants and their successors-in-interest.
(d) Liability of Committee Members. No member of the
Committee shall be liable for any action or determination made in good faith
with respect to the administration of the Plan and the granting of Options
thereunder.
2.4 ELIGIBILITY AND LIMITS. Participants in the Plan shall be
selected by the Committee. In the case of Incentive Stock Options, the aggregate
Fair Market Value (determined as of the date an Incentive Stock Option is
granted) of Stock with respect to which stock options intended to meet the
requirements of Code Section 422 become exercisable for the first time by an
individual during any calendar year under all plans of the Company and its
Parents and Subsidiaries shall not exceed $100,000; provided further, that if
the limitation is exceeded, the Incentive Stock Option(s) which cause the
limitation to be exceeded shall be treated as Non-Qualified Stock Options(s).
Incentive Stock Options shall be granted only to key employees of the Company
and its Subsidiaries.
SECTION 3. TERMS OF OPTIONS
3.1 TERMS AND CONDITIONS OF ALL OPTIONS.
(a) Number of Shares. The number of shares of Stock as to
which an Option shall be granted shall be determined by the Committee in its
sole discretion, subject to the provisions of Sections 2.2 and 2.4 as to the
total number of shares available for grants under the Plan.
(b) Stock Option Agreement. Each Option shall be
evidenced by a Stock Option Agreement in such form as the Committee may
determine is appropriate, subject to the provisions of the Plan.
(c) Date of Grant. The date an Option is granted shall be
the date on which the Committee has approved the terms and conditions of the
Stock Option Agreement and has determined the recipient of the Option and the
number of shares covered by the Option and has taken all such other action
necessary to complete the grant of the Option, or such later date as designated
by the Committee.
(d) Vesting of Options. The Committee may provide in any
Stock Option Agreement a vesting schedule. The vesting schedule shall specify
when such Options shall become Vested and thus exercisable.
(e) Transferability. Options shall not be transferable or
assignable except by will or by the laws of descent and distribution and, in
such case, such transferee shall be subject to all provisions of this Plan as
was the original Participant except and unless as provided for herein or in the
instrument evidencing such Option. Options shall be exercisable, during the
Participant's lifetime, only by the Participant, or in the event of the
Disability of the Participant, by the legal representative of the Participant.
(f) Rights as Shareholder. The holder of an Option, as
such, shall have none of the rights of a stockholder of the Company or any
Affiliate.
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3.2 ADDITIONAL TERMS AND CONDITIONS OF OPTIONS. At the time any
Option is granted, the Committee shall determine whether the Option is to be an
Incentive Stock Option or a Non-Qualified Stock Option, and the Option shall be
clearly identified as to its status as an Incentive Stock Option or a
Non-Qualified Stock Option. At the time any Incentive Stock Option is exercised,
the Company shall be entitled to place a legend on the certificates representing
the shares of Stock purchased pursuant to the Option to clearly identify them as
shares of Stock purchased upon exercise of an Incentive Stock Option. An
Incentive Stock Option may only be granted within ten (10) years from the date
the Plan, as amended and restated, is adopted or the date such Plan is approved
by the Company's stockholders, whichever is earlier.
(a) Option Price. Subject to adjustment in accordance
with Section 6.2 and the other provisions of this Section 3.2, the exercise
price (the "Exercise Price") per share of the Stock purchasable under any Option
shall be as set forth in the applicable Stock Option Agreement. With respect to
each grant of an Incentive Stock Option to a Participant who is not an Over 10
Percent Owner, the Exercise Price per share shall not be less than the Fair
Market Value on the date the Option is granted. With respect to each grant for
an Incentive Stock Option to a Participant who is an Over 10 Percent Owner, the
Exercise Price shall not be less than one hundred ten percent (110%) of the Fair
Market Value on the date the Option is granted.
(b) Option Term. The Stock Option Agreement shall set
forth the term of each Option. Any Incentive Stock Option granted to a
Participant who is not an Over 10 Percent Owner shall not be exercisable after
the expiration of ten (10) years after the date the Option is granted. Any
Incentive Stock Option granted to an Over 10 Percent Owner shall not be
exercisable after the expiration of five (5) years after the date the Option is
granted. In either case, the Committee may specify a shorter term and state such
term in the Stock Option Agreement.
(c) Payment. Payment for all shares of Stock purchased
pursuant to exercise of an Option shall be made in any form or manner authorized
by the Committee in the Stock Option Agreement or by amendment thereto,
including, but not limited to, cash or, if the Stock Option Agreement provides:
(i) by cancellation of indebtedness of the Company to the Participant; (ii) by
surrender of shares of Stock of the Company that have been owned by the
Participant for more than six (6) months (and which have been paid for within
the meaning of SEC Rule 144 and, if such shares were purchased from the Company
by use of a promissory note, such note has been fully paid with respect to such
Shares), or were obtained by the Participant in the open public market, having a
Fair Market Value equal to the Exercise Price of the Option; (iii) by
instructing the Company to withhold Shares otherwise issuable pursuant to an
exercise of the Option having a Fair Market Value equal to the Exercise Price of
the Option (including the withheld Shares); (iv) by waiver of compensation due
or accrued to the Participant for services rendered; (v) provided that a public
market for the Company's stock exists, through a "same day sale" commitment from
the Participant and a broker-dealer that is a member of the National Association
of Securities Dealers (an "NASD Dealer") whereby the Participant irrevocably
elects to exercise this Option and to sell a portion of the Shares so purchased
to pay for the Exercise Price and whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the Exercise Price directly to the
Company; (vi) provided that a public market for the Company's stock exists,
through a "margin" commitment from the Participant and an NASD Dealer whereby
the Participant irrevocably elects to exercise the Option and to pledge the
shares so purchased to the NASD Dealer in a margin account as security for a
loan from the NASD Dealer in the amount of the Exercise Price, and whereby the
NASD Dealer irrevocably commits upon receipt of such Shares to forward the
Exercise Price directly to the Company; or (vii) by any combination of the
foregoing. Payment shall be made at the time that the Option or any part thereof
is exercised, and no shares shall be issued or delivered upon exercise of an
Option until full payment has been made by the Participant.
(d) Conditions to the Exercise of an Option. Each Option
granted under the Plan shall be exercisable by whom, at such time or times, or
upon the occurrence of such event or events, and in such amounts, as the
Committee shall specify in the Stock Option Agreement; provided, however, that
subsequent to the grant of an Option, the Committee, at any time before complete
termination of such Option, may accelerate the time or times at which such
Option may be exercised in whole or in part, including, without limitation, upon
a Change in Control, and may permit the Participant or any other designated
person acting for the benefit of the Participant to exercise the Option, or any
portion thereof, for all or part of the remaining Option term notwithstanding
any provision of the Stock Option Agreement to the contrary.
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(e) Termination of Incentive Stock Option. With respect
to an Incentive Stock Option, in the event of Termination of Employment of a
Participant, the Option or portion thereof held by the Participant which is
unexercised shall expire, terminate, and become unexercisable as of the
expiration of three (3) months after the date of Termination of Employment, or
any earlier date set forth in the applicable Stock Option Agreement; provided,
however, that in the case of a holder whose Termination of Employment is due to
death or Disability, one (1) year shall be substituted for such three (3) month
period. For purposes of this Subsection (e), Termination of Employment of the
Participant shall not be deemed to have occurred if the Participant is employed
by another corporation (or a parent or subsidiary corporation of such other
corporation) which has assumed the Incentive Stock Option of the Participant in
a transaction to which Code Section 424(a) is applicable.
(f) Special Provisions for Certain Substitute Options.
Notwithstanding anything to the contrary in this Section 3.2, any Option issued
in substitution for an option previously issued by another entity, which
substitution occurs in connection with a transaction to which Code Section
424(a) is applicable, may provide for an exercise price computed in accordance
with such Code Section and the regulations thereunder and may contain such other
terms and conditions as the Committee may prescribe to cause such substitute
Option to contain as nearly as possible the same terms and conditions (including
the applicable vesting and termination provisions) as those contained in the
previously issued option being replaced thereby.
3.3 TREATMENT OF OPTIONS UPON TERMINATION OF EMPLOYMENT. Except as
otherwise provided by Section 3.2(e), any Option granted under this Plan to a
Participant who suffers a Termination of Employment may be canceled,
accelerated, paid or continued, as provided in the Stock Option Agreement or, in
the absence of such provision, as the Committee may determine. The portion of
any Option exercisable in the event of continuation or the amount of any payment
due under a continued Option may be adjusted by the Committee to reflect the
Participant's period of service from the date of grant through the date of the
Participant's Termination of Employment or such other factors as the Committee
determines that are relevant to its decision to continue the Option.
SECTION 4. SURRENDER OF OPTIONS
4.1 GENERAL RULE. The Committee acting in its absolute discretion
may incorporate a provision in a Stock Option Agreement to allow a Participant
to surrender his or her Option in whole or in part in lieu of the exercise in
whole or in part of that Option on any date that: (i) the Fair Market Value of
the Shares subject to such Option exceeds the Option Price for such Shares; and
(ii) the Option to purchase such Shares is otherwise exercisable.
4.2 PROCEDURE. The surrender of an Option in whole or in part
shall be effected by the delivery of the Stock Option Agreement to the Committee
(or to its delegate) together with a statement signed by the Participant which
specifies the number of Shares (the "Surrendered Shares") as to which the
Participant surrenders his or her Option and how he or she desires payment be
made for such Surrendered Shares.
4.3 PAYMENT. A Participant in exchange for his or her Surrendered
Shares shall receive a payment in cash or in Shares, or in a combination of cash
and Shares, equal in amount on the date such surrender is effected to the excess
of the Fair Market Value of the Surrendered Shares on such date over the
Exercise Price for the Surrendered Shares. The Committee acting in its absolute
discretion can approve or disapprove a Participant's request for payment in
whole or in part in cash and can make that payment in cash or in such
combination of cash and Shares as the Committee deems appropriate. A request for
payment only in Shares shall be approved and made in Shares to the extent
payment can be made in whole Shares and (at the Committee's discretion) in cash
in lieu of any fractional Shares.
4.4 RESTRICTIONS. Any Stock Option Agreement which incorporates a
provision to allow a Participant to surrender his or her Option in whole or in
part also shall incorporate such additional restrictions on the exercise or
surrender of such Option as the Committee deems necessary to satisfy the
conditions to the exemption under Rule 16b-3 (or any successor exemption) to
Section 16 of the 1934 Act.
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SECTION 5. RESTRICTION ON STOCK
The Participant shall not have the right to make or permit to exist any
Disposition of the shares of Stock issued pursuant to the Plan except as
provided in the Plan or the Stock Option Agreement. Any Disposition of the
shares of Stock issued under the Plan by the Participant not made in accordance
with the Plan or the Stock Option Agreement shall be void. The Company shall not
recognize, or have the duty to recognize, any Disposition not made in accordance
with the Plan and the Stock Option Agreement, and the shares so transferred
shall continue to be bound by the Plan and the Stock Option Agreement.
SECTION 6. GENERAL PROVISIONS
6.1 WITHHOLDING. Whenever the Company proposes or is required to
issue or transfer shares of Stock under the Plan, the Company shall have the
right to require the recipient to remit to the Company an amount sufficient to
satisfy any federal, state and local withholding tax requirements prior to the
delivery of any certificate or certificates for such shares. A Participant may
pay the withholding tax in cash, or, if the Stock Option Agreement provides, a
Participant may also elect to have the number of shares of Stock he is to
receive reduced by, or with respect to an exercised Option, tender back to the
Company, the smallest number of whole shares of Stock which, when multiplied by
the Fair Market Value of the shares determined as of the Tax Date (defined
below), is sufficient to satisfy federal, state and local, if any, withholding
taxes arising from exercise (a "Withholding Election"). A Participant may make a
Withholding Election only if both of the following conditions are met: (i) the
Withholding Election must be made on or prior to the date on which the amount of
tax required to be withheld is determined (the "Tax Date") by executing and
delivering to the Company a properly completed notice of Withholding Election as
prescribed by the Committee; and (ii) any Withholding Election made will be
irrevocable; however, the Committee may in its sole discretion disapprove and
give no effect to the Withholding Election.
6.2 CHANGES IN CAPITALIZATION; MERGER; LIQUIDATION.
(a) Stock Splits and Dividends. The number of shares of
Stock reserved for the grant of Options, and the number of shares of Stock
reserved for issuance upon the exercise and the Exercise Price of each
outstanding Option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Stock resulting from a subdivision or
combination of shares or the payment of a stock dividend in shares of Stock to
holders of outstanding shares of Stock or any other increase or decrease in the
number of shares of Stock outstanding effected without receipt of consideration
by the Company.
(b) Mergers, Etc. In the event of a merger, consolidation
or other reorganization of the Company or tender offer for shares of Stock, the
Committee may make such adjustments with respect to Options and take such other
action as it deems necessary or appropriate to reflect or anticipate such
merger, consolidation, reorganization or tender offer, including, without
limitation, the substitution of new Options, the termination or adjustment of
outstanding Options, the acceleration of Options, or the removal of restrictions
on outstanding Options. Any adjustment pursuant to this Section 6.2 may provide,
in the Committee's discretion, for the elimination without payment therefor of
any fractional shares that might otherwise become subject to any Option.
(c) No Impairment. The existence of the Plan and the
Options granted pursuant to the Plan shall not impair or affect in any way the
right or power of the Company to make or authorize any adjustment,
reclassification, reorganization or other change in its capital or business
structure, any merger or consolidation of the Company or its Affiliates, any
issue of debt or equity securities having preferences or priorities as to the
Stock or the rights thereof, the dissolution or liquidation of the Company or
any Affiliate, any sale or transfer of all or any part of its business or
assets, or any other corporate act or proceeding of the Company or any
Affiliate.
6.3 CASH DISTRIBUTIONS. The Committee may, at any time and in its
discretion, grant to any holder of an Option the right to receive, at such times
and in such amounts as determined by the Committee in its discretion, a cash
amount which is intended to reimburse such person for all or a portion of the
federal, state and local income taxes imposed upon such person as a consequence
of the receipt of the Option or the exercise of rights thereunder.
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6.4 COMPLIANCE WITH CODE. All Incentive Stock Options to be
granted hereunder are intended to comply with Code Section 422, and all
provisions of the Plan and all Incentive Stock Options granted hereunder shall
be construed in such manner as to effectuate that intent. If for any reason it
is subsequently determined that an Option intended to qualify as an Incentive
Stock Option does not so qualify, the Company and its Affiliates shall have no
liability to the Participant.
6.5 RIGHT TO TERMINATE EMPLOYMENT. Nothing in the Plan or in any
Option shall confer upon any Participant the right to continue as an officer,
employee or independent contractor of the Company or any of its Affiliates or
affect the right of the Company or any of its Affiliates to terminate the
Participant's employment or engagement at any time.
6.6 RESTRICTIONS ON DELIVERY AND SALE OF SHARES; LEGENDS. Each
Option is subject to the condition that if at any time the Committee, in its
discretion, shall determine that the listing, registration or qualification of
the shares covered by such Option upon any securities exchange or under any
state or federal law is necessary or desirable as a condition of or in
connection with the granting of such Option or the purchase or delivery of
shares thereunder, the delivery of any or all shares pursuant to such Option may
be withheld unless and until such listing, registration or qualification shall
have been effected. Shares shall not be issued with respect to any Option
granted under the Plan unless the issuance and delivery of such Shares shall
comply with (or be exempt from) all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended, the rules and
regulations promulgated thereunder, any applicable state securities law, and the
requirements of any stock exchange or national market system on which the Shares
may then be listed. If the issuance or transfer of Shares to be issued or issued
pursuant to any Option granted under this Plan may in the opinion of counsel to
the Company conflict or be inconsistent with any applicable laws or regulations
of any governmental agency having jurisdiction, including, without limitation,
federal and state securities laws, the Company reserves the right to delay the
issuance of the Shares upon the exercise of an Option and such delay shall be
without liability to or other obligation of the Company. The Company shall have
no obligation hereunder to file registration statements or other reports or
notices or obtain any license or permit or exemption under any federal or state
law with respect to the grant of an Option or the issuance of Shares upon the
exercise of an Option or the transfer of such Shares at any time thereafter. The
Committee may require that the Participant or other holder of an Option, as a
condition to each exercise of the Option in whole or in part, to represent to
the Company in writing that the Shares to be acquired upon the exercise of the
Option are to be acquired by the Participant or other holder of the Option for
investment purposes only, for such person's own account, and not with a view to
distribution and make such other representations as counsel to the Company may
reasonably request to assure the availability of an exemption from or compliance
with the registration, notice, reporting or licensing requirements of applicable
federal or state securities laws. The Option may also set forth such other terms
and conditions relating to the non-registration or qualification of the Shares
or the issuance or transfer of the Shares by the Company under the federal and
state securities laws, as the Committee may prescribe. Such representations and
other terms and conditions shall continue in effect as long as counsel to the
Company may reasonably request.
6.7 NON-ALIENATION OF BENEFITS. Other than as specifically
provided with regard to the death of a Participant, no benefit under the Plan
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge; and any attempt to do so shall be
void. No such benefit shall, prior to receipt by the Participant, be in any
manner liable for or subject to the debts, contracts, liabilities, engagements
or torts of the Participant.
6.8 AMENDMENTS, MODIFICATIONS AND TERMINATION OF THE PLAN. The
Committee may terminate the Plan, in whole or in part, may suspend the Plan, in
whole or in part, from time to time, and may amend the Plan from time to time,
including the adoption of amendments deemed necessary or desirable to qualify
the Options under the laws of various countries (including tax laws) and under
rules and regulations promulgated by the Securities and Exchange Commission (the
"SEC"), or to correct any defect or supply an omission or reconcile any
inconsistency in the Plan or in any Option granted thereunder, without the
approval of the stockholders of the Company; provided, however, that, no action
shall be taken without the prior or subsequent approval of the stockholders of
the Company, to increase the number of shares of Stock for which Options may be
granted, or materially increase the benefits accruing to participants under the
Plan, or materially modify the requirements as to eligibility for participation
in the Plan. Without limiting the foregoing, the Committee may make amendments
applicable or inapplicable only to participants who are subject to Section 16 of
the 1934 Act.
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No amendment or termination or modification of the Plan shall in any
manner affect any Option theretofore granted without the consent of the
Participant, except that the Committee may amend or modify the Plan in a manner
that does affect Options theretofore granted upon a finding by the Committee
that such amendment or modification is in the best interest of holders of
outstanding Options affected thereby.
This Plan is intended to comply with all applicable requirements of
Rule 16b-3 or its successors under the 1934 Act, insofar as participants subject
to Section 16 of that Act are concerned. To the extent any provision of the Plan
does not so comply, the provision shall, to the extent permitted by law and
deemed advisable by the Committee, be deemed null and void with respect to such
participants.
6.9 CHOICE OF LAW. The laws of the State of Georgia shall govern
the Plan, to the extent not preempted by federal law.
6.10 EFFECTIVE DATE OF PLAN; TERMINATION. The Plan shall become
effective on the date of its adoption by the Board, subject to the approval of
the Plan by the shareholders of the Company. The Plan shall terminate as of the
tenth (10th) anniversary of the date the Plan is adopted by the Board or
approved by the shareholders, whichever is earlier, or as of the date when there
are no longer any Options issuable or outstanding under the Plan, or such
earlier date as the Board may determine.
6.11 STOCKHOLDER APPROVAL. The Plan shall be submitted to the
stockholders of the Company for their approval within twelve (12) months before
or after the adoption of the Plan by the Board. Options may be granted under the
Plan prior to receipt of such approval; provided, however, that in the event
such approval is not obtained, all Incentive Stock Options granted under the
Plan shall automatically become Non-Qualified Stock Options.
NOVIENT, INC.
By: /s/ Mark E. Kopcha
--------------------------------
Title: Chief Executive Officer
-----------------------------
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