EXHIBIT 99.1
FILENET CORPORATION
1995 STOCK OPTION PLAN
AS AMENDED AND RESTATED THROUGH MARCH 31, 2000
ARTICLE One
GENERAL PROVISIONS
I. PURPOSE OF THE PLAN
This 1995 Stock Option Plan is intended to promote the interests of FileNET
Corporation, a Delaware corporation, by providing eligible persons with the
opportunity to acquire a proprietary interest, or otherwise increase their
proprietary interest, in the Corporation as an incentive for them to remain in
the service of the Corporation.
This Plan shall serve as the successor to the Corporation's existing Second
Amended and Restated Stock Option Plan (the "Predecessor Plan"), and no further
option grants or share issuances shall be made under the Predecessor Plan from
and after the Effective Date of this Plan. All outstanding stock options under
the Predecessor Plan on the Effective Date shall be incorporated into this Plan
and shall accordingly be treated as outstanding stock options under this Plan.
However, each outstanding option grant so incorporated shall continue to be
governed solely by the express terms and conditions of the agreement evidencing
such grant, and no provision of this Plan shall be deemed to affect or otherwise
modify the rights or obligations of the holders of such incorporated options
with respect to their acquisition of shares of the Corporation's Common Stock
thereunder.
Capitalized terms shall have the meanings assigned to such terms in the
attached Appendix.
All share numbers in this March 31, 2000 restatement reflect the 2-for-1
split of the Common Stock effective June 12, 1998.
II. STRUCTURE OF THE PLAN
A. The Plan shall be divided into five separate equity programs:
- the Discretionary Option Grant Program under which eligible
persons may, at the discretion of the Plan Administrator, be
granted options to purchase shares of Common Stock,
- the Salary Reduction Option Grant Program under which eligible
employees may elect to have a portion of their base salary
reduced each year in return for options to purchase shares of
Common Stock,
- the Stock Issuance Program under which eligible persons may, at
the discretion of the Plan Administrator, be issued shares of
Common Stock directly without any intervening option grant,
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- the Automatic Option Grant Program under which eligible
non-employee Board members shall automatically receive option
grants at periodic intervals to purchase shares of Common Stock,
and
- the Director Fee Option Grant Program under which non-employee
Board members may elect to have all or any portion of their
annual retainer fee otherwise payable in cash applied to a
special option grant.
B. The provisions of Articles One and Seven shall apply to all equity
programs under the Plan and shall govern the interests of all persons under
the Plan.
III. ADMINISTRATION OF THE PLAN
A. The Primary Committee shall have the sole and exclusive authority
to administer the Discretionary Option Grant and Stock Issuance Programs
with respect to Section 16 Insiders. Except to the extent the Primary
Committee is granted sole and exclusive authority under one or more
specific provisions of the Plan, administration of the Discretionary Option
Grant and Stock Issuance Programs with respect to all other persons
eligible to participate in these programs may, at the Board's discretion,
be vested in the Primary Committee or a Secondary Committee, or the Board
may retain the power to administer these programs with respect to such
persons. The members of the Secondary Committee may be individuals who are
Employees.
B. Members of the Primary Committee or any Secondary Committee shall
serve for such period of time as the Board may determine and may be removed
by the Board at any time. The Board may also at any time terminate the
functions of any Secondary Committee and reassume all powers and authority
previously delegated to such committee.
C. Each Plan Administrator shall, within the scope of its
administrative functions under the Plan, have full power and authority
(subject to the provisions of the Plan) to establish such rules and
regulations as it may deem appropriate for proper administration of the
Discretionary Option Grant and Stock Issuance Programs and to make such
determinations under, and issue such interpretations of, the provisions of
such programs and any outstanding options or stock issuances thereunder as
it may deem necessary or advisable. Decisions of the Plan Administrator
within the scope of its administrative functions under the Plan shall be
final and binding on all parties who have an interest in the Discretionary
Option Grant or Stock Issuance Program under its jurisdiction or any option
or stock issuance thereunder.
D. Service on the Primary Committee or the Secondary Committee shall
constitute service as a Board member, and members of each such committee
shall accordingly be entitled to full indemnification and reimbursement as
Board members for their service on such committee. No member of the Primary
Committee or the Secondary Committee shall be liable for any act or
omission made in good faith with respect to the Plan or any option grants
or stock issuances under the Plan.
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E. The Primary Committee shall have the sole and exclusive authority
to select the eligible individuals who are to participate in the Salary
Reduction Option Grant Program, but all option grants under the Salary
Reduction Option Grant Program shall be made in accordance with express
terms of that program and the Primary Committee shall exercise no
discretion with respect to the terms of those grants. Administration of the
Automatic Option Grant and Director Fee Option Grant Programs shall be
self-executing in accordance with the terms of that program, and no Plan
Administrator shall exercise any discretionary functions with respect to
any option grants or stock issuances made under those programs.
IV. ELIGIBILITY
A. The persons eligible to participate in the Discretionary Option
Grant and Stock Issuance Programs are as follows:
(i) Employees,
(ii) non-employee Board members, and
(iii)consultants and other independent advisors who provide
services to the Corporation (or any Parent or Subsidiary).
B. Only the Company's executive officers and other highly-compensated
Employees shall be eligible to participate in the Salary Reduction Option
Grant Program.
C. Each Plan Administrator shall, within the scope of its
administrative jurisdiction under the Plan, have full authority to
determine, (i) with respect to the option grants under the Discretionary
Option Grant Program, which eligible persons are to receive option grants,
the time or times when such option grants are to be made, the number of
shares to be covered by each such grant, the status of the granted option
as either an Incentive Option or a Non-Qualified Option, the time or times
when each option is to become exercisable, the vesting schedule (if any)
applicable to the option shares and the maximum term for which the option
is to remain outstanding and (ii) with respect to stock issuances under the
Stock Issuance Program, which eligible persons are to receive stock
issuances, the time or times when such issuances are to be made, the number
of shares to be issued to each Participant, the vesting schedule (if any)
applicable to the issued shares and the consideration for such shares.
D. The Plan Administrator shall have the absolute discretion either to
grant options in accordance with the Discretionary Option Grant or to
effect stock issuances in accordance with the Stock Issuance Program.
E. The individuals who shall be eligible to participate in the
Automatic Option Grant Program shall be limited to (i) those individuals
who first become non-employee Board members on or after the Effective Date,
whether through appointment by the Board or election by the Corporation's
stockholders, and (ii) those individuals who are re-elected to serve as
non-employee Board members at one or more Annual Stockholders Meetings
beginning with the 1996 Annual Meeting. A non-employee Board member who has
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previously been in the employ of the Corporation (or any Parent or
Subsidiary) shall not be eligible to receive an option grant under the
Automatic Option Grant Program at the time he or she first becomes a
non-employee Board member, but shall be eligible to receive periodic option
grants under the Automatic Option Grant Program upon his or her subsequent
re-election to the Board.
F. All non-employee Board members shall be eligible to participate in
the Director Fee Option Grant Program.
V. STOCK SUBJECT TO THE PLAN
A. The stock issuable under the Plan shall be shares of authorized but
unissued or reacquired Common Stock, including shares repurchased by the
Corporation on the open market. The maximum number of shares of Common
Stock which may be issued over the term of the Plan shall not exceed
11,174,830 shares. Such share reserve is comprised of (i) the 4,224,830
shares of Common Stock which remained available for issuance under the
Predecessor Plan as of the Effective Date, including the shares subject to
the outstanding option grants under the Predecessor Plan which have been
incorporated into this Plan and the additional shares of Common Stock
available for future grant under the Predecessor Plan, (ii) an additional
increase of 700,000 shares of Common Stock previously authorized by the
Board and approved by the Corporation's stockholders at the 1995 Annual
Meeting, (iii) an additional increase of 1,300,000 shares of Common Stock
authorized by the Board in March 1996 and approved by the stockholders at
the 1996 Annual Meeting, (iv) a further increase of 1,200,000 shares of
Common Stock authorized by the Board on March 20, 1997 and approved by the
stockholders at the 1997 Annual Meeting, (v) a further increase of
1,200,000 shares of Common Stock authorized by the Board on March 17, 1998
and approved by the stockholders at the 1998 Annual Meeting, (vi) a further
increase of 1,200,000 shares of Common Stock authorized by the Board on
March 31, 1999 and approved by the stockholders at the 1999 Annual Meeting
plus (vii) an additional increase of 1,350,000 shares authorized by the
Board on March 20, 2000, subject to stockholder approval at the 2000 Annual
Meeting. In no event, however, shall any person participating in the Plan
receive stock options and direct stock issuances under this Plan for more
than 400,000 shares of Common Stock per calendar year, beginning with the
1995 calendar year.
B. Shares of Common Stock subject to outstanding options (including
options incorporated into this Plan from the Predecessor Plan) shall be
available for subsequent issuance under the Plan to the extent those
options expire or terminate for any reason prior to exercise in full.
Unvested shares issued under the Plan and subsequently cancelled or
repurchased by the Corporation at the option exercise or direct issue price
paid per share pursuant to the Corporation's repurchase rights under the
Plan shall also be available for subsequent issuance under the Plan.
However, should the exercise price of an option under the Plan be paid with
shares of Common Stock or should shares of Common Stock otherwise issuable
under the Plan be withheld by the Corporation in satisfaction of the
withholding taxes incurred in connection with the exercise of an option or
the vesting of a stock issuance under the Plan, then the number of shares
of Common Stock available for issuance under the Plan shall be reduced by
the gross number of shares for which the option is exercised or which vest
under the stock issuance, and not by the net number of shares of Common
Stock issued to the holder of such option or stock issuance.
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C. If any change is made to the Common Stock by reason of any stock
split, stock dividend, recapitalization, combination of shares, exchange of
shares or other change affecting the outstanding Common Stock as a class
without the Corporation's receipt of consideration, appropriate adjustments
shall be made to (i) the maximum number and/or class of securities issuable
under the Plan, (ii) the number and/or class of securities for which any
one person may be granted stock options and direct stock issuances under
this Plan per calendar year, (iii) the number and/or class of securities
for which grants are subsequently to be made under the Automatic Option
Grant Program to new and continuing non-employee Board members, (iv) the
number and/or class of securities and the exercise price per share in
effect under each outstanding option under the Plan and (v) the number
and/or class of securities and price per share in effect under each
outstanding option incorporated into this Plan from the Predecessor Plan.
Such adjustments to the outstanding options are to be effected in a manner
which shall preclude the enlargement or dilution of rights and benefits
under such options. The adjustments determined by the Plan Administrator
shall be final, binding and conclusive.
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ARTICLE Two
DISCRETIONARY OPTION GRANT PROGRAM
I. OPTION TERMS
Each option shall be evidenced by one or more documents in the form
approved by the Plan Administrator; provided, however, that each such document
shall comply with the terms specified below. Each document evidencing an
Incentive Option shall, in addition, be subject to the provisions of the Plan
applicable to such options.
A. Exercise Price.
1. The exercise price per share shall be fixed by the Plan
Administrator but shall not be less than one hundred percent
(100%) of the Fair Market Value per share of Common Stock on the
option grant date.
2. The exercise price shall become immediately due upon exercise of
the option and shall, subject to the provisions of Section I of
Article Six and the documents evidencing the option, be payable
in one or more of the forms specified below:
(i) cash or check made payable to the Corporation,
(ii) shares of Common Stock held for the requisite period
necessary to avoid a charge to the Corporation's earnings
for financial reporting purposes and valued at Fair Market
Value on the Exercise Date, or
(iii)to the extent the option is exercised for vested shares,
through a special sale and remittance procedure pursuant to
which the Optionee shall concurrently provide irrevocable
written instructions to (a) a Corporation-designated
brokerage firm to effect the immediate sale of the purchased
shares and remit to the Corporation, out of the sale
proceeds available on the settlement date, sufficient funds
to cover the aggregate exercise price payable for the
purchased shares plus all applicable Federal, state and
local income and employment taxes required to be withheld by
the Corporation by reason of such exercise and (b) the
Corporation to deliver the certificates for the purchased
shares directly to such brokerage firm in order to complete
the sale.
Except to the extent such sale and remittance procedure is utilized,
payment of the exercise price for the purchased shares must be made on the
Exercise Date.
B. Exercise and Term of Options. Each option shall be exercisable at such
time or times, during such period and for such number of shares as
shall be determined by the Plan Administrator and set forth in the
documents evidencing the option. However, no option shall have a term
in excess of ten (10) years measured from the option grant date.
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C. Effect of Termination of Service.
1. The following provisions shall govern the exercise of any options
held by the Optionee at the time of cessation of Service or
death:
(i) Any option outstanding at the time of the Optionee's
cessation of Service for any reason shall remain exercisable
for such period of time thereafter as shall be determined by
the Plan Administrator and set forth in the documents
evidencing the option, but no such option shall be
exercisable after the expiration of the option term.
(ii) Any option exercisable in whole or in part by the Optionee
at the time of death may be subsequently exercised by the
personal representative of the Optionee's estate or by the
person or persons to whom the option is transferred pursuant
to the Optionee's will or in accordance with the laws of
descent and distribution.
(iii)Should the Optionee's Service be terminated for Misconduct,
then all outstanding options held by the Optionee shall
terminate immediately and cease to be outstanding.
(iv) During the applicable post-Service exercise period, the
option may not be exercised in the aggregate for more than
the number of vested shares for which the option is
exercisable on the date of the Optionee's cessation of
Service. Upon the expiration of the applicable exercise
period or (if earlier) upon the expiration of the option
term, the option shall terminate and cease to be outstanding
for any vested shares for which the option has not been
exercised. However, the option shall, immediately upon the
Optionee's cessation of Service, terminate and cease to be
outstanding to the extent the option is not otherwise at
that time exercisable for vested shares.
(v) In the event of a Corporate Transaction, the provisions of
Section III of this Article Two shall govern the period for
which the outstanding options are to remain exercisable
following the Optionee's cessation of Service and shall
supersede any provisions to the contrary in this section.
2. The Plan Administrator shall have complete discretion,
exercisable either at the time an option is granted or at any
time while the option remains outstanding, to:
(i) extend the period of time for which the option is to remain
exercisable following the Optionee's cessation of Service
from the limited exercise period otherwise in effect for
that option to such greater period of time as the Plan
Administrator shall deem appropriate, but in no event beyond
the expiration of the option term, and/or
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(ii) permit the option to be exercised, during the applicable
post-Service exercise period, not only with respect to the
number of vested shares of Common Stock for which such
option is exercisable at the time of the Optionee's
cessation of Service but also with respect to one or more
additional installments in which the Optionee would have
vested had the Optionee continued in Service.
D. Stockholder Rights. The holder of an option shall have no stockholder
rights with respect to the shares subject to the option until such
person shall have exercised the option, paid the exercise price and
become a holder of record of the purchased shares.
E. Repurchase Rights. The Plan Administrator shall have the discretion to
grant options which are exercisable for unvested shares of Common
Stock. Should the Optionee cease Service while holding such unvested
shares, the Corporation shall have the right to repurchase, at the
exercise price paid per share, any or all of those unvested shares.
The terms upon which such repurchase right shall be exercisable
(including the period and procedure for exercise and the appropriate
vesting schedule for the purchased shares) shall be established by the
Plan Administrator and set forth in the document evidencing such
repurchase right.
F. Limited Transferability of Options. During the lifetime of the
Optionee, Incentive Options shall be exercisable only by the Optionee
and shall not be assignable or transferable other than by will or by
the laws of descent and distribution following the Optionee's death.
However, a Non-Qualified Option may, in connection with the Optionee's
estate plan, be assigned in whole or in part during the Optionee's
lifetime to one or more members of the Optionee's immediate family or
to a trust established exclusively for one or more such family
members. The assigned portion may only be exercised by the person or
persons who acquire a proprietary interest in the option pursuant to
the assignment. The terms applicable to the assigned portion shall be
the same as those in effect for the option immediately prior to such
assignment and shall be set forth in such documents issued to the
assignee as the Plan Administrator may deem appropriate.
II. INCENTIVE OPTIONS
The terms specified below shall be applicable to all Incentive Options.
Except as modified by the provisions of this Section II, all the provisions of
Articles One, Two and Seven shall be applicable to Incentive Options. Options
which are specifically designated as Non-Qualified Options when issued under the
Plan shall not be subject to the terms of this Section II.
A. Eligibility. Incentive Options may only be granted to Employees.
B. Dollar Limitation. The aggregate Fair Market Value of the shares of
Common Stock (determined as of the respective date or dates of grant)
for which one or more options granted to any Employee under the Plan
(or any other option plan of the Corporation or any Parent or
Subsidiary) may for the first time become exercisable as Incentive
Options during any one calendar year shall not exceed the sum of One
Hundred Thousand Dollars ($100,000).
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To the extent the Employee holds two (2) or more such options which
become exercisable for the first time in the same calendar year, the
foregoing limitation on the exercisability of such options as
Incentive Options shall be applied on the basis of the order in which
such options are granted.
C. 10% Stockholder. If any Employee to whom an Incentive Option is
granted is a 10% Stockholder, then the exercise price per share shall
not be less than one hundred ten percent (110%) of the Fair Market
Value per share of Common Stock on the option grant date, and the
option term shall not exceed five (5) years measured from the option
grant date.
III. CORPORATE TRANSACTION/CHANGE IN CONTROL
A. In the event of any Corporate Transaction, each outstanding option
under this Discretionary Option Grant Program shall automatically
accelerate so that each such option shall, immediately prior to the
effective date of the Corporate Transaction, become fully exercisable
with respect to the total number of shares of Common Stock at the time
subject to such option and may be exercised for any or all of those
shares as fully-vested shares of Common Stock. However, an outstanding
option shall not so accelerate if and to the extent: (i) such option
is, in connection with the Corporate Transaction, either to be assumed
by the successor corporation (or parent thereof) or to be replaced
with a comparable option to purchase shares of the capital stock of
the successor corporation (or parent thereof), (ii) such option is to
be replaced with a cash incentive program of the successor corporation
which preserves the spread existing on the unvested option shares at
the time of the Corporate Transaction and provides for subsequent
payout in accordance with the same vesting schedule applicable to such
option or (iii) the acceleration of such option is subject to other
limitations imposed by the Plan Administrator at the time of the
option grant. The determination of option comparability under clause
(i) above shall be made by the Plan Administrator, and its
determination shall be final, binding and conclusive.
B. All outstanding repurchase rights under this Discretionary Option
Grant Program shall also terminate automatically, and the shares of
Common Stock subject to those terminated rights shall immediately vest
in full, in the event of any Corporate Transaction, except to the
extent: (i) those repurchase rights are to be assigned to the
successor corporation (or parent thereof) in connection with such
Corporate Transaction or (ii) such accelerated vesting is precluded by
other limitations imposed by the Plan Administrator at the time the
repurchase right is issued.
C. Immediately following the consummation of the Corporate Transaction,
all outstanding options under this Discretionary Option Grant Program
shall terminate and cease to be outstanding, except to the extent
assumed by the successor corporation (or parent thereof).
D. Each option which is assumed in connection with a Corporate
Transaction shall be appropriately adjusted, immediately after such
Corporate Transaction, to apply to the number and class of securities
which would have been issuable to the Optionee in consummation of such
Corporate Transaction had the option been exercised immediately prior
to such Corporate Transaction. Appropriate adjustments to reflect such
Corporate Transaction shall also be made to (i) the exercise price
payable per share under each outstanding option, provided the
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aggregate exercise price payable for such securities shall remain the
same, (ii) the maximum number and/or class of securities available for
issuance over the remaining term of the Plan, (iii) the maximum number
and/or class of securities for which any one person may be granted
stock options and direct stock issuances under the Plan per calendar
year and (iv) the maximum number and/or class of securities which may
be issued pursuant to Incentive Options granted under the Plan
following the consummation of the Corporate Transaction.
E. The Plan Administrator shall have full power and authority to grant
options under the Discretionary Option Grant Program which will
automatically accelerate in the event the Optionee's Service
subsequently terminates by reason of an Involuntary Termination within
a designated period (not to exceed eighteen (18) months) following the
effective date of any Corporate Transaction in which those options are
assumed or replaced and do not otherwise accelerate. Any options so
accelerated shall remain exercisable for fully-vested shares until the
earlier of (i) the expiration of the option term or (ii) the
expiration of the one (1)-year period measured from the effective date
of the Involuntary Termination. In addition, the Plan Administrator
may provide that one or more of the Corporation's outstanding
repurchase rights with respect to shares held by the Optionee at the
time of such Involuntary Termination shall immediately terminate, and
the shares subject to those terminated repurchase rights shall
accordingly vest in full.
F. The Plan Administrator shall have full power and authority to grant
options under the Discretionary Option Grant Program which will
automatically accelerate in the event the Optionee's Service
subsequently terminates by reason of an Involuntary Termination within
a designated period (not to exceed eighteen (18) months) following the
effective date of any Change in Control. Each option so accelerated
shall remain exercisable for fully-vested shares until the earlier of
(i) the expiration of the option term or (ii) the expiration of the
one (1)-year period measured from the effective date of the
Involuntary Termination. In addition, the Plan Administrator may
provide that one or more of the Corporation's outstanding repurchase
rights with respect to shares held by the Optionee at the time of such
Involuntary Termination shall immediately terminate, and the shares
subject to those terminated repurchase rights shall accordingly vest
in full.
G. The portion of any Incentive Option accelerated in connection with a
Corporate Transaction or Change in Control shall remain exercisable as
an Incentive Option only to the extent the applicable One Hundred
Thousand Dollar limitation is not exceeded. To the extent such dollar
limitation is exceeded, the accelerated portion of such option shall
be exercisable as a Non-Qualified Option under the Federal tax laws.
H. The outstanding options shall in no way affect the right of the
Corporation to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its business or
assets.
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ARTICLE Three
SALARY REDUCTION OPTION GRANT PROGRAM
I. OPTION GRANTS
The Primary Committee shall have the sole and exclusive authority to
determine the calendar year or years (if any) for which the Salary Reduction
Option Grant Program is to be in effect and to select the Employees eligible to
participate in the Salary Reduction Option Grant Program for those calendar year
or years. Each selected Employee who elects to participate in the Salary
Reduction Option Grant Program must, prior to the start of each calendar year of
participation, file with the Plan Administrator (or its designate) an
irrevocable authorization directing the Corporation to reduce his or her base
salary for that calendar year by a designated multiple of one percent (1%).
However, the minimum amount of such salary reduction must be not less than the
greater of (i) five percent (5%) of his or her rate of base salary for that
calendar year or (ii) Ten Thousand Dollars ($10,000.00) and must not be more
than the lesser of (i) twenty five percent (25%) of his or her rate of base
salary for the calendar year or (ii) Seventy Five Thousand Dollars ($75,000.00).
Each individual who files a proper salary reduction authorization shall
automatically be granted an option under this Salary Reduction Option Grant
Program on the first trading day in January of the calendar year for which that
salary reduction is to be in effect. Stockholder approval of this March 2000
Restatement at the 2000 Annual Stockholders Meeting shall constitute
pre-approval of each option subsequently granted pursuant to the express terms
of this Salary Reduction Option Grant Program and the subsequent exercise of
that option in accordance with its terms.
II. OPTION TERMS
Each option shall be a Non-Qualified Option evidenced by one or more
documents in the form approved by the Plan Administrator; provided, however,
that each such document shall comply with the terms specified below.
A. Exercise Price.
1. The exercise price per share shall be thirty-three and one-third
percent (33-1/3%) of the Fair Market Value per share of Common
Stock on the option grant date.
2. The exercise price shall become immediately due upon exercise of
the option and shall be payable in one or more of the alternative
forms authorized under the Discretionary Option Grant Program.
Except to the extent the sale and remittance procedure specified
thereunder is utilized, payment of the exercise price for the
purchased shares must be made on the Exercise Date.
B. Number of Option Shares. The number of shares of Common Stock subject
to the option shall be determined pursuant to the following formula
(rounded down to the nearest whole number):
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X = A / (B x 66-2/3%), where
X is the number of option shares,
A is the dollar amount by which the Optionee's base salary
is to be reduced for the calendar year pursuant to the
Salary Reduction Option Grant Program, and
B is the Fair Market Value per share of Common Stock on the
option grant date.
C. Exercise and Term of Options. The option shall become exercisable in a
series of twelve (12) successive equal monthly installments upon the
Optionee's completion of each calendar month of Service in the
calendar year for which the salary reduction is in effect. Each option
shall have a maximum term of ten (10) years measured from the option
grant date.
D. Effect of Termination of Service. Should the Optionee cease Service
for any reason while holding one or more options under this Article
Three, then each such option shall remain exercisable, for any or all
of the shares for which the option is exercisable at the time of such
cessation of Service, until the earlier of (i) the expiration of the
ten (10)-year option term or (ii) the expiration of the three (3)-year
period measured from the date of such cessation of Service. Should the
Optionee die while holding one or more options under this Article
Three, then each such option may be exercised, for any or all of the
shares for which the option is exercisable at the time of the
Optionee's cessation of Service (less any shares subsequently
purchased by Optionee prior to death), by the personal representative
of the Optionee's estate or by the person or persons to whom the
option is transferred pursuant to the Optionee's will or in accordance
with the laws of descent and distribution. Such right of exercise
shall lapse, and the option shall terminate, upon the earlier of (i)
the expiration of the ten (10)-year option term or (ii) the three
(3)-year period measured from the date of the Optionee's cessation of
Service. However, the option shall, immediately upon the Optionee's
cessation of Service for any reason, terminate and cease to remain
outstanding with respect to any and all shares of Common Stock for
which the option is not otherwise at that time exercisable.
III. CORPORATE TRANSACTION/CHANGE IN CONTROL
A. In the event of any Corporate Transaction while the Optionee remains
in Service, each outstanding option held by such Optionee under this
Salary Reduction Option Grant Program shall automatically accelerate
so that each such option shall, immediately prior to the effective
date of the Corporate Transaction, become fully exercisable with
respect to the total number of shares of Common Stock at the time
subject to such option and may be exercised for any or all of those
shares as fully-vested shares of Common Stock. Each such outstanding
option shall be assumed by the successor corporation (or parent
thereof) in the Corporate Transaction and shall remain exercisable for
the fully-vested shares until the earlier of (i) the expiration of the
ten (10)-year option term or (ii) the expiration of the three (3)-year
period measured from the date of the Optionee's cessation of Service.
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B. In the event of a Change in Control while the Optionee remains in
Service, each outstanding option held by such Optionee under this
Salary Reduction Option Grant Program shall automatically accelerate
so that each such option shall immediately become fully exercisable
with respect to the total number of shares of Common Stock at the time
subject to such option and may be exercised for any or all of those
shares as fully-vested shares of Common Stock. The option shall remain
so exercisable until the earlier or (i) the expiration of the ten
(10)-year option term or (ii) the expiration of the three (3)-year
period measured from the date of the Optionee's cessation of Service.
C. The grant of options under the Salary Reduction Option Grant Program
shall in no way affect the right of the Corporation to adjust,
reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
IV. REMAINING TERMS
The remaining terms of each option granted under the Salary Reduction
Option Grant Program shall be the same as the terms in effect for option grants
made under the Discretionary Option Grant Program.
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ARTICLE Four
STOCK ISSUANCE PROGRAM
I. STOCK ISSUANCE TERMS
Shares of Common Stock may be issued under the Stock Issuance Program
directly without any intervening option grants. Each such stock issuance shall
be evidenced by a Stock Issuance Agreement which complies with the terms
specified below.
A. Issue Price. The shares shall be issued for such valid consideration
under the Delaware General Corporation Law as the Plan Administrator
may deem appropriate, but the value of such consideration as
determined by the Plan Administrator shall not be less than one
hundred percent (100%) of the Fair Market Value of the issued shares
of Common Stock on the issuance date.
B. Vesting Provisions.
1. The Primary Committee shall have the sole and exclusive authority
to issue shares of Common Stock under the Stock Issuance Program
as a bonus for past services rendered to the Corporation (or any
Parent or Subsidiary). All such bonus shares shall be fully and
immediately vested upon issuance.
2. All other shares of Common Stock authorized for issuance under
the Stock Issuance Program by the applicable Plan Administrator
shall have a minimum vesting schedule determined in accordance
with the following requirements:
(i) For any shares which are to vest solely by reason of Service
to be performed by the Participant, the Plan Administrator
shall impose a minimum Service period of at least three (3)
years measured from the issue date of such shares.
(ii) For any shares which are to vest upon the Participant's
completion of a designated Service requirement and the
Corporation's attainment of one or more prescribed
performance milestones, the Plan Administrator shall impose
a minimum Service period of at least one (1) year measured
from the issue date of such shares.
3. Any new, substituted or additional securities or other property
(including money paid other than as a regular cash dividend)
which the Participant may have the right to receive with respect
to the Participant's unvested shares of Common Stock by reason of
any stock dividend, stock split, recapitalization, combination of
shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's
receipt of consideration shall be issued subject to (i) the same
vesting requirements applicable to the Participant's unvested
shares of Common Stock and (ii) such escrow arrangements as the
Plan Administrator shall deem appropriate.
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4. The Participant shall have full stockholder rights with respect
to any shares of Common Stock issued to the Participant under the
Stock Issuance Program, whether or not the Participant's interest
in those shares is vested. Accordingly, the Participant shall
have the right to vote such shares and to receive any regular
cash dividends paid on such shares.
5. Should the Participant cease to remain in Service while holding
one or more unvested shares of Common Stock issued under the
Stock Issuance Program or should the performance objectives not
be attained with respect to one or more such unvested shares of
Common Stock, then those shares shall be immediately surrendered
to the Corporation for cancellation, and the Participant shall
have no further stockholder rights with respect to those shares.
To the extent the surrendered shares were previously issued to
the Participant for consideration paid in cash or cash equivalent
(including the Participant's purchase-money promissory note), the
Corporation shall repay to the Participant the cash consideration
paid for the surrendered shares and shall cancel the unpaid
principal balance of any outstanding purchase-money note of the
Participant attributable to such surrendered shares.
6. The Primary Committee shall have the sole and exclusive
authority, exercisable upon a Participant's termination of
Service, to waive the surrender and cancellation of any or all
unvested shares of Common Stock (or other assets attributable
thereto) at the time held by that Participant, if the Primary
Committee determines such waiver to be an appropriate severance
benefit for the Participant.
II. CORPORATE TRANSACTION/CHANGE IN CONTROL
A. All of the Corporation's outstanding repurchase rights under the Stock
Issuance Program shall terminate automatically, and all the shares of
Common Stock subject to those terminated rights shall immediately vest
in full, in the event of any Corporate Transaction, except to the
extent (i) those repurchase rights are to be assigned to the successor
corporation (or parent thereof) in connection with such Corporate
Transaction or (ii) such accelerated vesting is precluded by other
limitations imposed in the Stock Issuance Agreement.
B. The Plan Administrator shall have the discretionary authority to
structure one or more of the Corporation's repurchase rights under the
Stock Issuance Program in such manner that those repurchase rights
shall automatically terminate, and all the shares of Common Stock
subject to those terminated rights shall immediately vest in full, in
the event the Participant's Service should subsequently terminate by
reason of an Involuntary Termination within eighteen (18) months
following the effective date of any Corporate Transaction in which
those repurchase rights are assigned to the successor corporation (or
parent thereof).
C. The Plan Administrator shall have the discretionary authority to
structure one or more of the Corporation's repurchase rights under the
Stock Issuance Program in such manner that those repurchase rights
shall automatically terminate, and all the shares of Common Stock
subject to those terminated rights shall immediately vest in full, in
the event the Participant's Service should subsequently terminate by
reason of an Involuntary Termination within eighteen (18) months
following the effective date of any Change in Control.
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III. SHARE ESCROW/LEGENDS
Unvested shares may, in the Plan Administrator's discretion, be held in
escrow by the Corporation until the Participant's interest in such shares vests
or may be issued directly to the Participant with restrictive legends on the
certificates evidencing those unvested shares.
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ARTICLE Five
AUTOMATIC OPTION GRANT PROGRAM
The provisions of the Automatic Option Grant Program have been revised as
of March 17, 1998 and have been approved by the stockholders at the 1998 Annual
Meeting.
I. OPTION TERMS
A. Grant Dates. Option grants shall be made on the dates specified below:
1. Each individual who is re-elected to the Board as a non-employee
Board member at the 1998 Annual Stockholders Meeting shall
automatically be granted at that time a Non-Qualified Option to
purchase 15,000 shares of Common Stock.
2. Each individual who is first elected or appointed as a
non-employee Board member at the 1998 Annual Stockholders Meeting
or at any time thereafter shall automatically be granted, upon
his or her initial election or appointment (as the case may be),
a Non-Qualified Option to purchase 25,000 shares of Common Stock,
provided that individual has not previously been in the employ of
the Corporation or any Parent or Subsidiary.
3. On the date of each Annual Stockholders Meeting, beginning with
the 1998 Annual Meeting, each individual who is re-elected to
serve as a non-employee Board member at such meeting shall
automatically be granted a Non-Qualified Option to purchase an
additional 7,000 shares of Common Stock, provided such individual
has served as a non-employee Board member for a period of at
least six (6) months. There shall be no limit on the number of
such 7,000-share option grants any one non-employee Board member
may receive over his or her period of Board service, and
non-employee Board members who have previously been in the employ
of the Corporation or any Parent or Subsidiary shall be eligible
to receive such annual option grants upon their re-election as
non-employee Board members at one or more Annual Stockholders
Meetings.
Only the 15,000-share and 7,000-share option grants made at the
1998 Annual Meeting have been adjusted to 30,000 shares and
14,000 shares, respectively, to reflect the June 12, 1998 split
of the Common Stock. All other share numbers in this Article Five
remain in effect after such split.
Stockholder approval of this March 2000 Restatement at the 2000
Annual Stockholders Meeting shall constitute pre-approval of each
option granted at or after that Annual Meeting pursuant to the
express terms of this Automatic Option Grant Program and the
subsequent exercise of that option in accordance with its terms.
B. Exercise Price.
1. The exercise price per share shall be equal to one hundred
percent (100%) of the Fair Market Value per share of Common Stock
on the option grant date.
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2. The exercise price shall be payable in one or more of the
alternative forms authorized under the Discretionary Option Grant
Program. Except to the extent the sale and remittance procedure
specified thereunder is utilized, payment of the exercise price
for the purchased shares must be made on the Exercise Date.
C. Option Term. Each option shall have a term of ten (10) years measured
from the option grant date.
D. Exercise and Vesting of Options. Each option shall be immediately
exercisable for any or all of the option shares. However, any shares
purchased under the option shall be subject to repurchase by the
Corporation, at the exercise price paid per share, upon the Optionee's
cessation of Board service prior to vesting in those shares. Each
option grant shall vest, and the Corporation's repurchase right shall
lapse, in a series of four (4) successive equal annual installments
over the Optionee's period of continued service as a Board member,
with the first such installment to vest upon the Optionee's completion
of one (1) year of Board service measured from the option grant date.
E. Effect of Termination of Board Service. The following provisions shall
govern the exercise of any outstanding options held by the Optionee
under this Automatic Option Grant Program at the time the Optionee
ceases to serve as a Board member:
(i) The Optionee (or, in the event of Optionee's death, the
personal representative of the Optionee's estate or the
person or persons to whom the option is transferred pursuant
to the Optionee's will or in accordance with the laws of
descent and distribution) shall have a twelve (12)-month
period following the date of such cessation of Board service
in which to exercise each such option. However, each option
shall, immediately upon the Optionee's cessation of Board
service, terminate and cease to remain outstanding with
respect to any option shares in which the Optionee is not
otherwise at that time vested.
(ii) During the twelve (12)-month exercise period, the option may
not be exercised in the aggregate for more than the number
of vested shares for which the option is exercisable at the
time of the Optionee's cessation of Board service. However,
should the Optionee cease to serve as a Board member by
reason of death or Permanent Disability, then all shares at
the time subject to the option shall immediately vest so
that such option may, during the twelve (12)-month exercise
period following such cessation of Board service, be
exercised for all or any portion of such shares as
fully-vested shares.
(iii)In no event shall the option remain exercisable after the
expiration of the option term.
II. SPECIAL ACCELERATION EVENTS
A. In the event of any Corporate Transaction while the Optionee remains a
Board member, the shares of Common Stock at the time subject to each
outstanding option held by such Optionee under this Automatic Option
Grant Program but not otherwise vested shall automatically vest in
full so that each such option shall, immediately prior to the
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specified effective date of the Corporate Transaction, become fully
exercisable for all of the shares of Common Stock at the time subject
to that option and may be exercised for all or any portion of such
shares as fully-vested shares of Common Stock.
B. Immediately following the consummation of the Corporate Transaction,
each option grant outstanding under this Automatic Option Grant
Program shall terminate and cease to be outstanding, except to the
extent assumed by the successor corporation or its parent company.
C. In the event of any Change in Control of the Corporation while the
Optionee remains a Board member, the shares of Common Stock at the
time subject to each outstanding option held by such Optionee under
this Automatic Option Grant Program but not otherwise vested shall
automatically vest in full so that each such option shall, immediately
prior to the specified effective date for the Change in Control,
become fully exercisable for all of the shares of Common Stock at the
time subject to that option and may be exercised for all or any
portion of those shares as fully-vested shares of Common Stock. Each
such option shall remain exercisable for such fully-vested option
shares until the expiration or sooner termination of the option term.
D. The automatic option grants outstanding under the Plan shall in no way
affect the right of the Corporation to adjust, reclassify, reorganize
or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part
of its business or assets.
III. REMAINING TERMS
The remaining terms of each option granted under the Automatic Option Grant
Program shall be the same as the terms in effect for option grants made under
the Discretionary Option Grant Program.
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ARTICLE Six
DIRECTOR FEE OPTION GRANT PROGRAM
I. OPTION GRANTS
Each non-employee Board member may elect to apply all or any portion of the
annual retainer fee otherwise payable in cash for his or her service on the
Board to the acquisition of a special option grant under this Director Fee
Option Grant Program. Such election must be filed with the Corporation's Chief
Financial Officer on or before the last day of December in the calendar year
immediately preceding the calendar year for which the annual retainer fee which
is the subject of that election is otherwise payable. Once filed, the election
shall be irrevocable. Each non-employee Board member who files such a timely
election shall automatically be granted an option under this Director Fee Option
Grant Program on the first trading day in January in the calendar year for which
the annual retainer fee which is the subject of that election would otherwise be
payable. Stockholder approval of the March 2000 Restatement at the 2000 Annual
Stockholders Meeting shall constitute pre-approval of each option subsequently
granted pursuant to the express terms of this Director Fee Option Grant Program
and the subsequent exercise of that option in accordance with its terms.
II. OPTION TERMS
Each option shall be a Non-Qualified Option governed by the terms and
conditions specified below.
A. Exercise Price.
1. The exercise price per share shall be thirty-three and one-third
percent (33-1/3%) of the Fair Market Value per share of Common
Stock on the option grant date.
2. The exercise price shall become immediately due upon exercise of
the option and shall be payable in one or more of the alternative
forms authorized under the Discretionary Option Grant Program.
Except to the extent the sale and remittance procedure specified
thereunder is utilized, payment of the exercise price for the
purchased shares must be made on the Exercise Date.
B. Number of Option Shares. The number of shares of Common Stock subject
to the option shall be determined pursuant to the following formula
(rounded down to the nearest whole number):
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X = A / (B x 66-2/3%), where
X is the number of option shares,
A is the portion of the annual retainer fee subject to the
non-employee Board member's election, and
B is the Fair Market Value per share of Common Stock on the
option grant date.
C. Exercise and Term of Options. The option shall become exercisable in a
series of twelve (12) successive equal monthly installments upon the
Optionee's completion of each calendar month of Board service in the
calendar year for which the retainer fee election under this Article
Six is in effect. Each option shall have a maximum term of ten (10)
years measured from the option grant date.
D. Effect of Termination of Service. Should the Optionee cease Board
service for any reason (other than death or Permanent Disability)
while holding one or more options under this Article Six, then each
such option shall remain exercisable, for any or all of the shares for
which the option is exercisable at the time of such cessation of Board
service, until the earlier of (i) the expiration of the ten (10)-year
option term or (ii) the expiration of the three (3)-year period
measured from the date of such cessation of Board service. However,
each option held by the Optionee under this Article Six at the time of
his or her cessation of Board service shall immediately terminate and
cease to remain outstanding with respect to any and all shares of
Common Stock for which the option is not otherwise at that time
exercisable.
E. Death or Permanent Disability. Should the Optionee's service as a
Board member cease by reason of death or Permanent Disability, then
each option held by such Optionee under this Article Six shall
immediately become exercisable for all the shares of Common Stock at
the time subject to that option, and the option may, during the three
(3)-year period following such cessation of Board service, be
exercised for any or all of those shares as fully-vested shares.
Should the Optionee die while holding one or more options under this
Article Six, then each such option may be exercised, for any or all of
the shares for which the option is exercisable at the time of the
Optionee's cessation of Board service (less any shares subsequently
purchased by Optionee prior to death), by the personal representative
of the Optionee's estate or by the person or persons to whom the
option is transferred pursuant to the Optionee's will or in accordance
with the laws of descent and distribution. Such right of exercise
shall lapse, and the option shall terminate, upon the earlier of (i)
the expiration of the ten (10)-year option term or (ii) the three
(3)-year period measured from the date of the Optionee's cessation of
Board service.
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III. CORPORATE TRANSACTION/CHANGE IN CONTROL
A. In the event of any Corporate Transaction while the Optionee remains a
Board member, each outstanding option held by such Optionee under this
Director Fee Option Grant Program shall automatically accelerate so
that each such option shall, immediately prior to the effective date
of the Corporate Transaction, become fully exercisable with respect to
the total number of shares of Common Stock at the time subject to such
option and may be exercised for any or all of those shares as
fully-vested shares of Common Stock. Each such outstanding option
shall be assumed by the successor corporation (or parent thereof) in
the Corporate Transaction and shall remain exercisable for the
fully-vested shares until the earlier of (i) the expiration of the ten
(10)-year option term or (ii) the expiration of the three (3)-year
period measured from the date of the Optionee's cessation of Board
service.
B. In the event of a Change in Control while the Optionee remains in
Service, each outstanding option held by such Optionee under this
Director Fee Option Grant Program shall automatically accelerate so
that each such option shall immediately become fully exercisable with
respect to the total number of shares of Common Stock at the time
subject to such option and may be exercised for any or all of those
shares as fully-vested shares of Common Stock. The option shall remain
so exercisable until the earlier or (i) the expiration of the ten
(10)-year option term or (ii) the expiration of the three (3)-year
period measured from the date of the Optionee's cessation of Service.
C. The grant of options under the Director Fee Option Grant Program shall
in no way affect the right of the Corporation to adjust, reclassify,
reorganize or otherwise change its capital or business structure or to
merge, consolidate, dissolve, liquidate or sell or transfer all or any
part of its business or assets.
IV. REMAINING TERMS
The remaining terms of each option granted under this Director Fee Option
Grant Program shall be the same as the terms in effect for option grants made
under the Discretionary Option Grant Program.
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ARTICLE Seven
MISCELLANEOUS
I. FINANCING
The Plan Administrator may permit any Optionee or Participant to pay the
option exercise price under the Discretionary Option Grant Program or the
purchase price of shares issued under the Stock Issuance Program by delivering a
promissory note payable in one or more installments. The terms of any such
promissory note (including the interest rate and the terms of repayment) shall
be established by the Plan Administrator in its sole discretion. Promissory
notes may be authorized with or without security or collateral. In all events,
the maximum credit available to the Optionee or Participant may not exceed the
sum of (i) the aggregate option exercise price or purchase price payable for the
purchased shares plus (ii) any Federal, state and local income and employment
tax liability incurred by the Optionee or the Participant in connection with the
option exercise or share purchase.
II. TAX WITHHOLDING
The Corporation's obligation to deliver shares of Common Stock upon the
exercise of options or the issuance or vesting of such shares under the Plan
shall be subject to the satisfaction of all applicable Federal, state and local
income and employment tax withholding requirements.
III. EFFECTIVE DATE AND TERM OF PLAN
A. The Plan became effective upon approval by the Corporation's
stockholders at the 1995 Annual Stockholders Meeting.
B. The Plan was amended and restated by the Board in March 1996 (the
"March 1996 Restatement") to effect the following revisions: (i)
increase the maximum number of shares of Common Stock authorized for
issuance over the term of the Plan by an additional 1,300,000 shares
to 6,224,830 shares and (ii) increase the limit on the maximum number
of shares of Common Stock which may be issued under the Plan prior to
the required cessation of further Incentive Option grants by an
additional 1,300,000 shares to a total of 6,100,000 shares of Common
Stock. The March 1996 Restatement became effective immediately upon
adoption by the Board and was approved by the Corporation's
stockholders at the 1996 Annual Meeting.
C. The Plan was again amended and restated on March 20, 1997 (the "1997
Amendment") to effect the following changes: (i) increase the number
of shares of Common Stock authorized for issuance over the term of the
Plan by an additional 1,200,000 shares, (ii) render the non-employee
Board members eligible to receive option grants and direct stock
issuances under the Discretionary Option Grant and Stock Issuance
Programs, (iii) eliminate the plan limitation which precluded the
grant of additional Incentive Options once the number of shares of
Common Stock issued under the Plan, whether as vested or unvested
shares, exceeded 6,100,000 shares, (iv) eliminate certain restrictions
on the eligibility of non-employee Board members to serve as Plan
Administrator and (v) effect a series of technical changes to the
provisions of the Plan (including the stockholder approval
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requirements) in order to take advantage of the recent amendments to
Rule 16b-3 of the Securities and Exchange Commission which exempts
certain officer and director transactions under the Plan from the
short-swing liability provisions of the Federal securities laws. The
1997 Amendment became effective immediately upon adoption by the Board
and was approved by the Corporation's stockholders at the 1997 Annual
Meeting.
D. The Plan was further amended and restated on March 17, 1998 (the "1998
Restatement") to increase the number of shares of Common Stock
authorized for issuance over the term of the Plan by an additional
1,200,000 shares and to effect the following changes to the Automatic
Option Grant Program in effect under Article Five:
(i) Each individual reelected to the Board as a non-employee
Board member at the 1998 Annual Meeting shall receive at
that time an option grant for 15,000 shares of the Company's
Common Stock.
(ii) Each individual who first joins the Board as a non-employee
Board member at the 1998 Annual Meeting or at any time
thereafter shall, upon his or her initial election or
appointment to the Board, receive an option grant for 25,000
shares of the Company's Common Stock, provided such
individual has not previously been in the Company's employ.
(iii)On the date of each Annual Stockholders Meeting, beginning
with the 1998 Annual Meeting, each individual reelected to
the Board as a non-employee Board member will receive an
option grant for 7,000 shares of the Company's Common Stock,
provided such individual has served as a non-employee Board
member for at least six months.
The 1998 Restatement was approved by the stockholders at the
1998 Annual Meeting, and no option grants made on the basis
of the 600,000-share increase under the 1998 Restatement
became exercisable in whole or in part until the 1998
Restatement was so approved. All option grants made prior to
the 1998 Restatement shall remain outstanding in accordance
with the terms and conditions of the respective instruments
evidencing those options or issuances, and nothing in the
1998 Restatement shall be deemed to modify or in any way
affect those outstanding options or issuances.
E. The Plan was further amended and restated on March 31, 1999 (the "1999
Restatement") to increase the number of shares of Common Stock
authorized for issuance over the term of the Plan by an additional
1,200,000 shares, and the 1999 Restatement was approved by the
stockholders at the 1999 Annual Meeting. No option grants or direct
stock issuances were made on the basis of the 1,200,000-share increase
authorized by the 1999 Restatement until the Restatement was approved
by the stockholders at the 1999 Annual Meeting. All option grants made
prior to the 1999 Restatement shall remain outstanding in accordance
with the terms and conditions of the respective instruments evidencing
those options or issuances, and nothing in the 1999 Restatement shall
be deemed to modify or in any way affect those outstanding options or
issuances.
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F. The Plan was further amended and restated on March 20, 2000 (the
"March 2000 Restatement") to increase the number of shares of Common
Stock authorized for issuance over the term of the Plan by an
additional 1,350,000 shares, subject to stockholder approval at the
2000 Annual Meeting. No option grants or direct stock issuances shall
be made on the basis of the 1,350,000-share increase authorized by the
March 2000 Restatement unless and until the Restatement is approved by
the stockholders at the 2000 Annual Meeting. All option grants made
prior to the March 2000 Restatement shall remain outstanding in
accordance with the terms and conditions of the respective instruments
evidencing those options or issuances, and nothing in the March 2000
Restatement shall be deemed to modify or in any way affect those
outstanding options or issuances. Subject to the foregoing
limitations, the Plan Administrator may make option grants under the
Plan at any time before the date fixed herein for the termination of
the Plan.
G. The Plan Administrator shall have full power and authority,
exercisable in its sole discretion, to extend one or more provisions
of the Discretionary Option Grant Program, including (without
limitation) the vesting acceleration provisions of Section III of
Article Two relating to Corporate Transactions and Changes in Control,
to one or more outstanding stock options under the Predecessor Plan
which are incorporated into this Plan on the Effective Date but which
do not otherwise contain such provisions.
H. The Plan shall terminate upon the earliest of (i) May 24, 2005, (ii)
the date on which all shares available for issuance under the Plan
shall have been issued as fully-vested shares or (iii) the termination
of all outstanding options in connection with a Corporate Transaction.
Upon a clause (i) plan termination, all outstanding option grants and
unvested stock issuances shall thereafter continue to have force and
effect in accordance with the provisions of the documents evidencing
such grants or issuances.
IV. AMENDMENT OF THE PLAN
A. The Board shall have complete and exclusive power and authority to
amend or modify the Plan in any or all respects. However, no such
amendment or modification shall adversely affect the rights and
obligations with respect to stock options or unvested stock issuances
at the time outstanding under the Plan unless the Optionee or the
Participant consents to such amendment or modification. In addition,
certain amendments may require stockholder approval pursuant to
applicable laws or regulations.
B. Options to purchase shares of Common Stock may be granted under the
Discretionary Option Grant and Salary Reduction Option Grant Programs
and shares of Common Stock may be issued under the Stock Issuance
Program that are in each instance in excess of the number of shares
then available for issuance under the Plan, provided any excess shares
actually issued under those programs shall be held in escrow until
there is obtained stockholder approval of an amendment sufficiently
increasing the number of shares of Common Stock available for issuance
under the Plan. If such stockholder approval is not obtained within
twelve (12) months after the date the first such excess issuances are
made, then (i) any unexercised options granted on the basis of such
excess shares shall terminate and cease to be outstanding and (ii) the
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Corporation shall promptly refund to the Optionees and the
Participants the exercise or purchase price paid for any excess shares
issued under the Plan and held in escrow, together with interest (at
the applicable Short Term Federal Rate) for the period the shares were
held in escrow, and such shares shall thereupon be automatically
cancelled and cease to be outstanding.
V. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of shares of
Common Stock under the Plan shall be used for general corporate purposes.
VI. REGULATORY APPROVALS
A. The implementation of the Plan, the granting of any stock option under
the Plan and the issuance of any shares of Common Stock (i) upon the
exercise of any granted option or (ii) under the Stock Issuance
Program shall be subject to the Corporation's procurement of all
approvals and permits required by regulatory authorities having
jurisdiction over the Plan, the stock options granted under it and the
shares of Common Stock issued pursuant to it.
B. No shares of Common Stock or other assets shall be issued or delivered
under the Plan unless and until there shall have been compliance with
all applicable requirements of Federal and state securities laws,
including the filing and effectiveness of the Form S-8 registration
statement for the shares of Common Stock issuable under the Plan, and
all applicable listing requirements of any stock exchange (or the
Nasdaq National Market, if applicable) on which Common Stock is then
listed for trading.
VII. NO EMPLOYMENT/SERVICE RIGHTS
Nothing in the Plan shall confer upon the Optionee or the Participant any
right to continue in Service for any period of specific duration or interfere
with or otherwise restrict in any way the rights of the Corporation (or any
Parent or Subsidiary employing or retaining such person) or of the Optionee or
the Participant, which rights are hereby expressly reserved by each, to
terminate such person's Service at any time for any reason, with or without
cause.
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APPENDIX
The following definitions shall be in effect under the Plan:
A. Automatic Option Grant Program shall mean the automatic option grant
program in effect under Article Five of the Plan.
B. Board shall mean the Corporation's Board of Directors.
C. Change in Control shall mean a change in ownership or control of the
Corporation effected through either of the following transactions:
(i) the acquisition, directly or indirectly by any person or related
group of persons (other than the Corporation or a person that
directly or indirectly controls, is controlled by, or is under
common control with, the Corporation), of beneficial ownership
(within the meaning of Rule 13d-3 of the 1934 Act) of securities
possessing more than fifty percent (50%) of the total combined
voting power of the Corporation's outstanding securities pursuant
to a tender or exchange offer made directly to the Corporation's
stockholders, or
(ii) a change in the composition of the Board over a period of
thirty-six (36) consecutive months or less such that a majority
of the Board members ceases, by reason of one or more contested
elections for Board membership, to be comprised of individuals
who either (A) have been Board members continuously since the
beginning of such period or (B) have been elected or nominated
for election as Board members during such period by at least a
majority of the Board members described in clause (A) who were
still in office at the time the Board approved such election or
nomination.
D. Code shall mean the Internal Revenue Code of 1986, as amended.
E. Common Stock shall mean the Corporation's common stock.
F. Corporate Transaction shall mean either of the following
stockholder-approved transactions to which the Corporation is a party:
(i) merger or consolidation in which securities possessing more than
fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person
or persons different from the persons holding those securities
immediately prior to such transaction, or
(ii) the sale, transfer or other disposition of all or substantially
all of the Corporation's assets in complete liquidation or
dissolution of the Corporation.
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G. Corporation shall mean FileNET Corporation, a Delaware corporation.
H. Director Fee Option Grant Program shall mean the special stock option
grant in effect for non-employee Board members under Article Six of
the Plan.
I. Discretionary Option Grant Program shall mean the discretionary option
grant program in effect under Article Two of the Plan.
J. Effective Date shall mean the date of the 1995 Annual Stockholders
Meeting, provided the Plan is approved by the stockholders at that
meeting.
K. Employee shall mean an individual who is in the employ of the
Corporation (or any Parent or Subsidiary), subject to the control and
direction of the employer entity as to both the work to be performed
and the manner and method of performance.
L. Exercise Date shall mean the date on which the Corporation shall have
received written notice of the option exercise.
M. Fair Market Value per share of Common Stock on any relevant date shall
be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq National
Market, then the Fair Market Value shall be the average of the
high and low selling prices per share of Common Stock on the date
in question, as such prices are reported by the National
Association of Securities Dealers on the Nasdaq National Market
and published in The Wall Street Journal. If there are no high or
low selling prices for the Common Stock on the date in question,
then the Fair Market Value shall be the average of the high and
low selling prices on the last preceding date for which such
quotations exist.
(ii) If the Common Stock is at the time listed on any Stock Exchange,
then the Fair Market Value shall be the average of the high and
low selling prices per share of Common Stock on the date in
question on the Stock Exchange determined by the Plan
Administrator to be the primary market for the Common Stock, as
such prices are officially quoted in the composite tape of
transactions on such exchange and published in The Wall Street
Journal. If there are no high and low selling prices for the
Common Stock on the date in question, then the Fair Market Value
shall be the average of the high and low selling prices on the
last preceding date for which such quotations exist.
N. Incentive Option shall mean an option which satisfies the requirements
of Code Section 422.
O. Involuntary Termination shall mean the termination of the Service of
any individual which occurs by reason of:
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(i) such individual's involuntary dismissal or discharge by the
Corporation for reasons other than Misconduct, or
(ii) such individual's voluntary resignation following (A) a change in
his or her position with the Corporation which materially reduces
his or her level of responsibility, (B) a reduction in his or her
level of compensation (including base salary, fringe benefits and
participation in any corporate-performance based bonus or
incentive programs) by more than fifteen percent (15%) or (C) a
relocation of such individual's place of employment by more than
fifty (50) miles, provided and only if such change, reduction or
relocation is effected by the Corporation without the
individual's consent.
P. Misconduct shall mean the commission of any act of fraud, embezzlement
or dishonesty by the Optionee or Participant, any unauthorized use or
disclosure by such person of confidential information or trade secrets
of the Corporation (or any Parent or Subsidiary), or any other
intentional misconduct by such person adversely affecting the business
or affairs of the Corporation (or any Parent or Subsidiary) in a
material manner. The foregoing definition shall not be deemed to be
inclusive of all the acts or omissions which the Corporation (or any
Parent or Subsidiary) may consider as grounds for the dismissal or
discharge of any Optionee, Participant or other person in the Service
of the Corporation (or any Parent or Subsidiary).
Q. 1934 Act shall mean the Securities Exchange Act of 1934, as amended.
R. Non-Qualified Option shall mean an option not intended to satisfy the
requirements of Code Section 422.
S. Optionee shall mean any person to whom an option is granted under the
Discretionary Option Grant, Salary Reduction Option Grant, Automatic
Option Grant or Director Fee Option Grant Program.
T. Parent shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation, provided
each corporation in the unbroken chain (other than the Corporation)
owns, at the time of the determination, 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 such chain.
U. Participant shall mean any person who is issued shares of Common Stock
under the Stock Issuance Program.
V. Permanent Disability or Permanently Disabled shall mean the inability
of the Optionee or the Participant to engage in any substantial
gainful activity by reason of any medically determinable physical or
mental impairment expected to result in death or to be of continuous
duration of twelve (12) months or more. However, solely for purposes
of the Automatic Option Grant and Director Fee Option Grant Programs,
Permanent Disability or Permanently Disabled shall mean the inability
of the non-employee Board member to perform his or her usual duties as
a Board member by reason of any medically determinable physical or
mental impairment expected to result in death or to be of continuous
duration of twelve (12) months or more.
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W. Plan shall mean the Corporation's 1995 Stock Option Plan, as set forth
in this document.
X. Plan Administrator shall mean the particular entity, whether the
Primary Committee, the Board or the Secondary Committee, which is
authorized to administer the Discretionary Option Grant and Stock
Issuance Programs with respect to one or more classes of eligible
persons, to the extent such entity is carrying out its administrative
functions under those programs with respect to the persons under its
jurisdiction.
Y. Predecessor Plan shall mean the Corporation's Second Amended and
Restated Stock Option Plan, pursuant to which 3,250,000 shares of
Common Stock have been authorized for issuance.
Z. Primary Committee shall mean the committee of two (2) or more
non-employee Board members appointed by the Board to administer the
Discretionary Option Grant and Stock Issuance Programs with respect to
Section 16 Insiders.
AA. Salary Reduction Option Grant Program shall mean the salary reduction
grant program in effect under Article Three of the Plan.
BB. Secondary Committee shall mean a committee of one (1) or more Board
members appointed by the Board to administer the Discretionary Option
Grant and Stock Issuance Programs with respect to eligible persons
other than Section 16 Insiders.
CC. Section 16 Insider shall mean an officer or director of the
Corporation subject to the short-swing profit liabilities of Section
16 of the 1934 Act.
DD. Service shall mean the performance of services for the Corporation (or
any Parent or Subsidiary) by a person in the capacity of an Employee,
a non-employee member of the board of directors or a consultant or
independent advisor, except to the extent otherwise specifically
provided in the documents evidencing the option grant or stock
issuance.
EE. Stock Exchange shall mean either the American Stock Exchange or the
New York Stock Exchange.
FF. Stock Issuance Agreement shall mean the agreement entered into by the
Corporation and the Participant at the time of issuance of shares of
Common Stock under the Stock Issuance Program.
GG. Stock Issuance Program shall mean the stock issuance program in effect
under Article Four of the Plan.
HH. Subsidiary shall mean any corporation (other than the Corporation) in
an unbroken chain of corporations beginning with the Corporation,
provided each corporation (other than the last corporation) in the
unbroken chain owns, at the time of the determination, 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 such
chain.
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II. 10% Stockholder shall mean the owner of stock (as determined under
Code Section 424(d)) possessing ten percent (10%) or more of the total
combined voting power of all classes of stock of the Corporation (or
any Parent or Subsidiary).
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