EXHIBIT 99
MICRONETICS WIRELESS, INC.
FIRST AMENDED AND RESTATED 1996 STOCK OPTION PLAN
(As amended through September 7, 2000)
1. General Plan Information. The purpose of this Stock Option
Plan (the "Plan") is to advance the interests of Micronetics
Wireless, Inc. (the "Company") by enhancing the ability of the
Company to attract and retain selected employees, officers,
consultants, advisors to the Board of Directors and qualified
directors (collectively the "Participants") by creating for such
Participants incentives and rewards for their contributions to the
success of the Company, and by encouraging such Participants to
become owners of shares of the Company's common stock, par value
$0.01 per share, as the title or par value may be amended (the
"Shares").
Options granted pursuant to the Plan may be incentive stock
options ("Incentive Options") as defined in the Internal Revenue Code
of 1986, as amended (the "Code") or non-qualified options, or both.
The proceeds received from the sale of Shares pursuant to the Plan
shall be used for general corporate purposes.
2. Effective Date of Plan. The Plan will become effective upon
approval by the Board of Directors (the "Board"), and shall be
subject to the approval by the holders of at least a majority of all
Shares present in person and by proxy and entitled to vote thereon at
a meeting of stockholders of the Company prior thereto or within 12
months thereafter.
3. Administration of the Plan. The Plan will be administered
by the Board of the Company. The Board will have authority, not
inconsistent with the express provisions of the Plan, to take all
action necessary or appropriate thereunder, to interpret its
provisions, and to decide all questions and resolve all disputes
which may arise in connection therewith. Such determinations of the
Board shall be conclusive and shall bind all parties.
The Board may, in its discretion, delegate its powers with
respect to the Plan to an employee benefit plan committee or any
other committee (the "Committee"), in which event all references to
the Board hereunder, including without limitation the references in
Section 10, shall be deemed to refer to the Committee. The Committee
shall consist of not fewer than three members. Each of the members
must be a "disinterested person" as that term is defined in Rule
16b-3 adopted pursuant to the
Securities Exchange Act of 1934 (the
"Exchange Act"). A majority of the members of the Committee shall
constitute a quorum, and all determinations of the Committee shall be
made by the majority of its members present at a meeting. Any
determination of the Committee under the Plan may be made without
notice or meeting of the Committee by a writing signed by all of the
Committee members.
The Board and the Committee, if any, shall have the authority to
determine eligibility, the number of options granted and the exercise
price of options.
4. Eligibility. The Participants in the Plan shall be all
employees, officers, consultants, advisors to the Board of Directors
and qualified directors of the Company or any of its present or
future subsidiaries (as defined in Section 9) whether or not they are
also officers of the Company. Members of the Committee are eligible
only if they do not exercise any discretion in; (i) selecting
Participants who
receive grants of options; (ii) determining the number of Shares to
be granted to any Participant; or (iii) determining the exercise
price of any options, or as counsel to the Company may otherwise
advise the Committee that the taking of any such action does not
impair the status of such eligible Committee members as
"disinterested persons" within the meaning of Exchange Act Rule 16b-3.
5. Grant of Options.
(a) The Board shall grant options to Participants that it,
in its sole discretion, selects. Options shall be granted on such
terms as the Board shall determine except that Incentive Options
shall be granted on terms that comply with the Code and regulations
thereunder.
(b) All directors and advisors to the Board of Directors
of the Company who are not employees of the Company or its
subsidiaries shall automatically receive grants of 10,000
fully-vested non-qualified options (i) at
the time this Plan is approved
by the Shareholders of the Company or (ii) upon election or
appointment to the Board, if not a member of the Board at the time
this Plan is adopted by the Board and the Company has a class of
equity securities registered under the Securities Act of 1933 (the
"Act"). The exercise price shall be 100% of fair market value on the
date of grant as defined by Section 9.
(c) No options shall be granted after January 18, 2006 but
options previously granted may extend beyond that date.
6. Option Agreements.
(a) Each option under the Plan shall be evidenced by an
option agreement, which shall be signed by an officer of the Company
and by the optionee and which shall contain such provisions as may be
approved by the Board.
(b) The option agreements shall constitute binding
contracts between the Company and the optionee. Every optionee, upon
acceptance of such option agreement, shall be bound by the terms and
restrictions of this Plan and of the option agreement.
(c) The terms of the option agreement shall be in
accordance with this Plan, but may include additional provisions and
restrictions, provided that the same are not inconsistent with the
Plan.
7. Terms and Conditions of Options.
(a) Exercise Price. Except as provided in Section 5(b) of
this Plan, the purchase price per share for Shares issuable upon
exercise of options shall be a minimum of 100% of fair market value
on the date of grant and shall be determined by the Board. For this
purpose, "fair market value" will be determined as set forth in
Section 9. Notwithstanding the foregoing, if any person to whom an
option is to be granted owns in excess of ten percent of the
outstanding capital stock of the Company, then no option may be
granted to such person for less than 110% of the fair market value on
the date of grant as determined by the Board.
(b) Annual Limit on Grant and Exercise. Incentive Options
shall not be granted to any individual pursuant to this Plan, the
effect of which would be to permit such person to first exercise
options, in any calendar year, for the purchase of Shares having a
fair market value in excess of $100,000 (determined at the time of
the grant of the options). An optionee hereunder may exercise
options for the purchase of Shares valued in excess of $100,000
(determined at the time of the grant of the options) in a calendar
year, but only if the right to exercise such options shall have first
become available in prior calendar years.
(c) Payment for Delivery of Shares. Shares which are
subject to options shall be issued only upon receipt by the Company
of full payment of the purchase price for the Shares as to which the
option is exercised. The purchase price shall be payable by the
Participant to the Company either (i) in cash, certified check, bank
draft or money order payable to the order of the Company; or (ii)
through the delivery of Shares owned by the Participant for a period
of not less than six months and for which the Participant has good
title (free and clear of any liens and encumbrances) having a fair
market value equal to the purchase price; or (iii) by a combination
of cash and Shares as provided in (i) and (ii) above.
The Company shall not be obligated to deliver any Shares unless
and until, in the opinion of the Company's counsel, all applicable
federal and state laws and regulations have been complied with, nor,
if the outstanding common stock is at the time not listed on any
securities exchange, unless and until the Shares to be delivered have
been listed (or authorized to be added to the list upon official
notice of issuance) upon such exchange, nor unless or until all other
legal matters in connection with the issuance and delivery of Shares
have been approved by the Company's counsel. Without limiting the
generality of the foregoing, the Company may require from the person
exercising an option such investment representation or such
agreement, if any, as counsel for the Company may consider necessary
in order to comply with the Securities Act of 1933, as amended and
applicable state securities laws.
A Participant shall have the rights of a shareholder only as to
Shares actually acquired by him under the Plan.
(d) Vesting. Except for options granted pursuant to
Section 5(b) of this Plan, the Board may impose such vesting
restrictions as it sees fit at the time of grant.
(e) Non-Transferability of Options. Except as permitted
by law options may not be sold, assigned or otherwise transferred or
disposed of in any manner whatsoever except as provided in Section
7(g).
(f) Forfeiture of Options upon Termination of Relationship.
All options which have not vested shall terminate and be forfeited
automatically upon the termination for any reasons whatsoever of a
Participant's status as an employee, consultant or advisor to the
Board. Unexercised options shall terminate and be forfeited upon (i)
the Participants voluntary termination of his employment or (ii) the
expiration of three months after the Participant's employment is
terminated by the Company. Except as provided in Section 7(g) below,
unexercised options granted to directors shall not terminate or be
forfeited in the event such person is no longer a director of the
Company.
(g) Death. If a Participant dies at a time when he is
entitled to exercise an option, then at any time or times within one
year after his death (or such further period as the Board may allow)
such options may be exercised, as to all or any of the Shares which
the Participant was entitled to purchase immediately prior to his
death, by his personal representative or the person or persons to
whom the options are transferred by the will or the applicable laws
of descent and distribution, and except as so exercised such options
will expire at the end of such period.
(h) Loans to Exercise Options. If requested by any
Participant to whom a grant of non-qualified options has been made,
the Company or any subsidiary may loan such person the amount of
money necessary to pay the federal income taxes incurred as a result
of the exercise of any options (or guarantee a bank loan for such
purpose), assuming that the Participant is in the maximum federal
income tax bracket six months from the time of exercise and assuming
that the Participant has no deductions which would reduce the amount
of such tax owed. The loan shall be made on or after April 15th of
the year following the year in which the amount of tax is determined
as may be requested by the Participant and shall be made on such
terms as the Company or lending bank determines.
(i) Withholding Taxes. To the extent that the Company is
required to withhold taxes for federal income tax purposes in
connection with the exercise of any options, the Company shall have
the right to assist the Participant to satisfy such withholding
requirement by (i) the Participant paying the amount of the required
withholding tax to the Company, (ii) the Participant delivering to
the Company Shares of its common stock previously owned by the
Participant or (iii) the Participant having the Company retain a
portion of the Shares covered by the option exercise. The number of
Shares to be delivered to or withheld by the Company times the fair
market value as defined by Section 8 of this Plan shall equal the
cash required to be withheld. To the extent that the Company elects
to allow the Participant either to deliver or have withheld Shares of
the Company's common stock, the Board or the Committee may require
him to make such election only during certain periods of time as may
be necessary to comply with appropriate exemptive procedures
regarding the "short-swing" profit provisions of Section 16(b) of the
Exchange Act or to meet certain Code requirements.
8. Shares Subject to Plan.
(a) Number of Shares and Stock to be Delivered. Shares
delivered pursuant to this Plan shall, in the discretion of the
Board, be authorized but unissued Shares of common stock or
previously issued Shares acquired by the Company. Subject to
adjustments as described below, the aggregate number of Shares which
may be delivered under this Plan shall not exceed 900,000 Shares of
common stock of the Company.
(b) Changes in Stock. In the event of a stock dividend,
stock split or combination of Shares, recapitalization, merger in
which the Company is the surviving corporation or other change in the
Company's capital stock, the number and kind of Shares of stock or
securities of the Company to be subject to the Plan and to options
then outstanding or to be granted thereunder, the maximum number of
Shares or securities which may be delivered under the Plan, the
option price and other relevant provisions, shall be appropriately
adjusted by the Board whose determination shall be binding on all
persons. In the event of a consolidation or merger in which the
Company is not the surviving corporation or which results in the
acquisition of substantially all the Company's outstanding stock by
a single person or entity, or in the event of the sale or transfer of
substantially all the Company's assets, all outstanding options shall
thereupon terminate.
The Board may also adjust the number of Shares subject to
outstanding options, the exercise price of outstanding options and
the terms of outstanding options to take into consideration material
changes in accounting practices or principles, consolidations or
mergers (except those in which the Company is not the surviving
Corporation as described in the immediately preceding paragraph),
acquisitions or dispositions of stock or property or any other event
if it is determined by the Board that such adjustment is appropriate
to avoid distortion in the operation of the Plan.
9. Definitions.
(a) For purposes of the Plan, a subsidiary is any
corporation (i) in which the Company owns, directly or indirectly,
stock possessing 50 percent or more of the total combined voting
power of all classes of stock or (ii) over which the Company has
effective operating control.
(b) The fair market value of the Shares of common stock
shall be deemed to be:
(i) the closing price of the Company's common stock
appearing on a national securities exchange if the Company's common
stock is listed on such an exchange, or if not listed, the average
closing bid price appearing on the National Association of Securities
Dealers Automated Quotation System ("NASDAQ");
(ii) if the Shares of common stock are not listed on
NASDAQ, then the average bid price for the Company's stock as listed
in the National Quotation Bureau's pink sheets;
(iii) if there are no listed bid prices published in the
pink sheets, then the market value shall be based upon the average
closing bid price as determined following a polling of all dealers
making a market in the Company's Shares.
10. Indemnification of Board. In addition to and without
affecting such other rights of indemnification as they may have as
members of the Board or otherwise, each member of the Board shall be
indemnified by the Company to the extent legally possible against
reasonable expenses, including attorney's fees, actually and
reasonably incurred in connection with any appeal therein, to which
he may be a party by reason of any action taken or failure to act
under or in connection with the Plan, or any option granted
thereunder, and against all judgments, fines and amounts paid by him
in settlement thereof; provided that such payment of amounts so
indemnified is first approved by a majority of the members of the
Board who are not parties to such action, suit or proceeding, or by
independent legal counsel selected by the Company, in either case on
the basis of a determination that such member acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Company; and except that no indemnification
shall be made in relation to matters as to which it shall be adjudged
in such action, suit or proceeding that such Board member is liable
for a breach of the duty of loyalty, bad faith or intentional
misconduct in his duties; and provided further, that the Board member
shall, in writing, offer the Company the opportunity, at its own
expense, to handle and defend same.
11. Amendments. The Board may at any time discontinue granting
options under the Plan. The Board may at any time or times amend the
Plan or amend any outstanding option or options for the purpose of
satisfying the requirements of any changes in applicable laws or
regulations or for any other purpose which may at the time be
permitted by law, provided that (except to the extent explicitly
required or permitted herein above) no such amendment will, without
the approval of the stockholders of the Company, (a) increase the
maximum number of Shares available under the Plan, (b) reduce the
option price of outstanding options or reduce the price at which
options may be granted, (c) extend the time within which options may
be granted, (d) amend the provisions of this Section 11 of the Plan,
(e) adversely affect the rights of any Participant (without his
consent) under any options theretofore granted or (f) be effective if
stockholder approval is required by applicable statute, rule or
regulation.
Dates Amendment approved by Board of Directors:
December 15, 1999,
June 22, 2000
Date Amendment approved by Shareholders: September 7, 2000
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