ASPAC COMMUNICATIONS, INC.
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2000
Exhibit 10.22
ASPAC COMMUNICATIONS, INC.
2000 STOCK OPTION PLAN
1. PURPOSE OF THE PLAN.
--------------------
The purpose of this 2000 Stock Option Plan ("Plan") of ASPAC
COMMUNICATONS, INC., a Delaware corporation (" Company"), is to provide the
Company with a means of attracting and retaining the services of highly
motivated and qualified directors and key personnel. The Plan is intended to
advance the interests of the Company by affording to key employees and
directors, upon whose skill, judgment, initiative and efforts the Company is
largely dependent for the successful conduct of its business, an opportunity for
investment in the Company and the incentives inherent in stock ownership in the
Company. In addition, the Plan contemplates the opportunity for investment in
the Company by employees of companies that do business with the Company. For
purposes of this Plan, the term Company shall include subsidiaries, if any, of
the Company.
2. LEGAL COMPLIANCE.
-----------------
It is the intent of the Plan that all options granted under it
("Options") shall be either "Incentive Stock Options" ("ISOs"), as such term is
defined in Section 422 of the Internal Revenue Code of 1986, as amended
("Code"), or non-qualified stock options ("NQOs"); provided, however, that ISOs
shall be granted only to employees of the Company. An Option shall be identified
as an ISO or an NQO in writing in the document or documents evidencing the grant
of the Option. All Options that are not so identified as ISOs are intended to be
NQOs. In addition, the Plan provides for the grants of NQOs to employees of
companies that do business with the Company and for the automatic grant of NQOs
to directors of the Company ("Director NQOs"). It is the further intent of the
Plan that it conform in all respects with the requirements of Rule 16b-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended ("Rule 16b-3"). To the extent that any aspect of the Plan or its
administration shall at any time be viewed as inconsistent with the requirements
of Rule 16b-3 or, in connection with ISOs, the Code, such aspect shall be deemed
to be modified, deleted or otherwise changed as necessary to ensure continued
compliance with such provisions.
3. COMPLIANCE WITH RULE 701.
-------------------------
Until the Company is eligible to register securities issuable under the
Plan by means of Form S-8 or a similar successor form, in addition to complying
with the provisions of Section 2 of the Plan, the Company also shall comply with
the requirements of Rule 701 under the Securities Act of 1933, as amended,
relating to an exemption from registration for employee stock option plans.
These requirements include, but are not limited to, the following:
3.1. COPY OF THE PLAN.
-----------------
The Company shall provide each participant with a copy of the Plan.
24
<PAGE>
ASPAC COMMUNICATIONS, INC.
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2000
3.2. LIMITATIONS ON AMOUNT.
----------------------
The amount of securities of the Company subject to outstanding
offers in reliance on Rule 701 shall not exceed the greater of $1,000,000 or
either of the following amounts:
(a) The aggregate offering price of securities of the
Company subject to outstanding offers in reliance on Rule 701 plus securities of
the Company sold in the preceding 12 months in reliance on Rule 701 shall not
exceed 15% of the Company's total assets (measured at the end of the Company's
fiscal year).
(b) The number of the Company's securities subject to
outstanding offers in reliance on Rule 701 plus the Company's securities sold in
the preceding 12 months in reliance on Rule 701 shall not exceed 15% of the
outstanding securities of that class.
3.3 GENERAL LIMITATION.
-------------------
In no event shall the aggregate offering price of the
Company's securities subject to outstanding offers made in reliance on Rule 701
plus the Company's securities sold in the preceding 12 months in reliance on
Rule 701 exceed $5,000,000.
3.4 RESTRICTIVE LEGEND.
-------------------
All stock certificates issued by the Company shall contain
appropriate legends setting forth restrictions on resale or transfer of the
securities.
4. ADMINISTRATION OF THE PLAN.
---------------------------
4.1 PLAN COMMITTEE.
-------------------
The Plan shall be administered by a committee ("Committee").
The members of the Committee shall be appointed from time to time by the Board
of Directors of the Company ("Board") and shall consist of not less than two (2)
nor more than five (5) persons who are not eligible to receive Options under the
Plan and who are not, and have not at any time within one year (except as
provided in Section 4.6 of the Plan), been eligible to receive stock options
pursuant to the Plan or the terms of any other plan of the Company or its
affiliates. Such persons shall be directors of the Company.
4.2 GRANTS OF OPTIONS BY THE COMMITTEE.
-----------------------------------
In accordance with the provisions of the Plan, the Committee,
by resolution, shall select those eligible persons to whom Options shall be
granted ("Optionees"); shall determine the time or times at which each Option
shall be granted, whether an Option is an ISO or an NQO and the number of shares
to be subject to each Option; and shall fix the time and manner in which the
Option may be exercised, the Option exercise price, and the Option period. The
Committee shall determine the form of option agreement to evidence the foregoing
terms and conditions of each Option, which need not be identical, in the form
provided for in Section 8 of the Plan. Such option agreement may include such
other provisions as the Committee may deem necessary or desirable consistent
with the Plan, the Code and Rule 16b-3.
25
<PAGE>
ASPAC COMMUNICATIONS, INC.
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2000
4.3 COMMITTEE PROCEDURES.
-------------------------
The Committee from time to time may adapt such rules and
regulations for carrying out the purposes of the Plan as it may deem proper and
in the best interests of the Company. The Committee shall keep minutes of its
meetings and records of its actions. A majority of the members of the Committee
shall constitute a quorum for the transaction of any business by the Committee.
The Committee may act at any time by an affirmative vote of a majority of those
members voting. Such vote may be taken at a meeting (which may be conducted in
person or by any telecommunication medium) or by written consent of Committee
members without a meeting.
4.4 FINALITY OF COMMITTEE ACTION.
-----------------------------
The Committee shall resolve all questions arising under the
Plan and option agreements entered into pursuant to the Plan. Each
determination, interpretation, or other action made or taken by the Committee
shall be final and conclusive and binding on all persons, including, without
limitation, the Company, its stockholders, the Committee and each of the members
of the Committee, and the directors, officers and employees of the Company,
including Optionees and their respective successors in interest.
4.5 NON-LIABILITY OF COMMITTEE MEMBERS.
-----------------------------------
No Committee member shall be liable for any action or
determination made by him or her in good faith with respect to the Plan or any
Option granted under it.
4.6 DIRECTOR NQOS.
--------------
(a) Except as expressly authorized by this Section 4.6,
directors of the Company who are members of the Committee are not otherwise
eligible to participate in the Plan.
(b) Upon the grant of a Director NQO to a director, the
director shall receive a written option agreement substantially in the form
provided for in Section 8 of the Plan. Such director shall not be an "Optionee"
as defined in Section 4.2 of the Plan.
(c) The exercise price for each Director NQO granted
under this Section 4.6 shall be one hundred percent (100%) of the Fair Market
Value (as defined in Section 9 of the Plan) of the Company's Common Stock (as
defined in Section 6 of the Plan) on the date of grant. Each Director NQO
granted under this Section 4.6 shall be for a term of five years and shall be
subject to earlier termination as hereinafter provided.
(d) A Director NQO granted under this Section 4.6 may be
exercised in whole or consecutive installments, cumulative or otherwise, during
its term; provided, however, that the "stock swap feature" provided for in
Section 12 of the Plan shall be available with respect to all Director NQOs
granted under this Section 4.6.
(e) Director NQOs granted under this Section 4.6 shall
be subject to the exercise and non-transferability terms of Section 15 of the
Plan. In the event of the termination of service on the Board by the holder of
any Director NQO granted under this Section 4.6, then the outstanding Director
NQOs of such holder shall expire one year after such termination, or their
stated expiration date, whichever occurs first.
26
<PAGE>
ASPAC COMMUNICATIONS, INC.
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2000
(f) Notwithstanding Sections 4.1 and 7 of the Plan, the
grant of a Director NQO under this Section shall not disqualify such director as
a disinterested person for purposes of serving on the Committee. The Committee
shall have no power under Sections 4.2 and 8 of the Plan to determine the grant
or terms of Director NQOs under this Section, but shall retain its general
authority under Section 4.4 of the Plan to interpret and administer the Plan;
provided, however, that, to the extent practicable, an individual member of the
Committee should disqualify himself or herself from participating on any
question which is unique to his or her Director NQOs.
5. BOARD POWER TO AMEND, SUSPEND, OR TERMINATE THE PLAN.
-----------------------------------------------------
The Board may, from time to time, make such changes in or additions to
the Plan as it may deem proper and in the best interests of the Company and its
stockholders. The Board may also suspend or terminate the Plan at any time,
without notice, and in its sole discretion. Notwithstanding the foregoing, no
such change, addition, suspension, or termination by the Board shall (i)
materially impair any option previously granted under the Plan without the
express written consent of the optionee; or (ii) materially increase the number
of shares subject to the Plan, materially increase the benefits accruing to
optionees under the Plan, materially modify the requirements as to eligibility
to participate in the Plan or alter the method of determining the option
exercise price described in Section 9, without stockholder approval.
6. SHARES SUBJECT TO THE PLAN.
---------------------------
For purposes of the Plan, the Committee is authorized to grant Options
and Director NQOs for up to One Million (1,000,000) shares of the Company's
common stock, $0.0001 par value per share ("Common Stock"), or the number and
kind of shares of stock or other securities which, in accordance with Section 14
of the Plan, shall be substituted for such shares of Common Stock or to which
such shares shall be adjusted. The Committee is authorized to grant Options
(including replacement Options as contemplated in Section 4.2 of the Plan) and
Director NQOs under the Plan with respect to such shares. Any or all unsold
shares subject to an Option which for any reason expires or otherwise terminates
(excluding shares returned to the Company in payment of the exercise price for
additional shares) may again be made subject to grant under the Plan.
7. OPTIONEES.
----------
Options shall be granted only to members of the Board and to full-time
elected or appointed officers or other full-time key employees of the Company or
employees of companies that do business with the Company designated by the
Committee from time to time as Optionees, including, without limitation, embers
of the Board who are also full-time officers of key employees at the time of
grant. In no event, however, may a member of the Committee be granted an Option
under the Plan other than a Director NQO pursuant to Section 4.6 of the Plan.
Any Optionee may hold more than one option to purchase Common Stock, whether
such option is an Option held pursuant to the Plan or otherwise. An Optionee who
is an employee of the Company ("Employee Optionee") and who holds an Option must
remain a continuous full or part-time employee of the Company from the time of
grant of the Option to him until the time of its exercise, except as provided in
Section 11.3 of the Plan.
27
<PAGE>
ASPAC COMMUNICATIONS, INC.
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2000
8. GRANTS OF OPTIONS.
------------------
The Committee shall have the sole discretion to grant Options under the
Plan and to determine whether any Option shall be an ISO or an NQO. The terms
and conditions of Options granted under the Plan may differ from one another as
the Committee, in its absolute discretion, shall determine as long as all
Options granted under the Plan satisfy the requirements of the Plan. Upon
determination by the Committee that an Option is to be granted to an Optionee, a
written option agreement evidencing such Option shall be given to the Optionee,
specifying the number of shares subject to the Option, the Option exercise
price, whether the Option is an ISO or an NQO, and the other individual terms
and conditions of such Option. Such option agreement may incorporate generally
applicable provisions from the Plan. The Option shall be provided to all
Optionees at the time of their initial grants under the Plan. The Option shall
be deemed granted as of the date specified in the grant resolution of the
Committee, and the option agreement shall be dated as of the date of such
resolution.
9. OPTION EXERCISE PRICE.
----------------------
The price per share to be paid by the Optionee at the time an ISO is
exercised shall not be less than one hundred percent (100%) of the Fair Market
Value (as hereinafter defined) of one share of the optioned Common Stock on the
date on which the Option is granted. No ISO may be granted under the Plan to any
person who, at the time of such grant, owns (within the meaning of Section
424(d) of the Code) stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of any parent
thereof, unless the exercise price of such ISO is at least equal to one hundred
and ten percent (110%) of Fair Market Value on the date of grant. The price per
share to be paid by the Optionee at the time an NQO is exercised shall not be
less than eighty-five percent (85%) of the Fair Market Value on the date on
which the NQO is granted, as determined by the Committee. For purposes of the
Plan, the "Fair Market Value" of a share of the Company's Common Stock as of a
given date shall be: (i) the closing price of a share of the Company's Common
Stock on the principal exchange on which shares of the Company's Common Stock
are then trading, if any, on the day immediately preceding such date, or, if
shares were not traded on such date, then on the next preceding trading day
during which a sale occurred; or (ii) if the Company's Common Stock is not
traded on an exchange but is quoted on NASDAQ or a successor quotation system,
(1) the last sales price (if the Common Stock is then listed as a National
Market Issue under the NASD National Market System) or (2) the closing
representative bid price (in all other cases) for the Common Stock on the day
immediately preceding such date as reported by NASDAQ or such successor
quotation system; or (iii) if the Company's Common Stock is not publicly traded
on an exchange and not quoted on NASDAQ or a successor quotation system, the
closing bid price for the Common Stock on such date as determined in good faith
by the Committee; or (iv) if the Company's Common Stock is not publicly traded,
the fair market value established by the Committee acting in good faith. In
addition, with respect to any ISO, the Fair Market Value on any given date shall
be determined in a manner consistent with any regulations issued by the
Secretary of the Treasury for the purpose of determining fair market value of
securities subject to an ISO plan under the Code.
10. CEILING OF ISO GRANTS.
----------------------
The aggregate Fair Market Value (determined at the time any ISO is
granted) of the Common Stock with respect to which an Optionee's ISOs, together
with incentive stock options granted under any other plan of the Company and any
parent, are exercisable for the first time by such Optionee during any calendar
year shall not exceed $100,000. In the event that an Optionee holds such
incentive stock options that become first exercisable (including as a result of
acceleration of exercisability under the Plan)in any one year for shares having
a Fair Market Value at the date of grant in excess of $100,000, then the most
recently granted of such ISOs, to the extent that they are exercisable for
shares having an aggregate Fair Market Value in excess of such limit, shall be
deemed to be NQOs.
28
<PAGE>
ASPAC COMMUNICATIONS, INC.
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2000
11. DURATION, EXERCISABILITY, AND TERMINATION OF OPTIONS.
-----------------------------------------------------
11.1 OPTION PERIOD.
--------------
The option period shall be determined by the Committee with
respect to each Option granted. In no event, however, may the option period
exceed ten (10) years from the date on which the Option is granted, or five (5)
years in the case of a grant of an ISO to an Optionee who is a ten percent (10%)
stockholder at the date on which the Option is granted as described in Section 9
of the Plan.
11.2 EXERCISABILITY OF OPTIONS.
--------------------------
Each Option shall be exercisable in whole or in consecutive
installments, cumulative or otherwise, during its term as determined in the
discretion of the Committee.
11.3 TERMINATION OF OPTIONS DUE TO TERMINATION OF EMPLOYMENT,
--------------------------------------------------------
DISABILITY, OR DEATH OF OPTIONEE; TERMINATION FOR (CAUSE), OR RESIGNATION IN
----------------------------------------------------------------------------
VIOLATION OF AN EMPLOYMENT AGREEMENT.
-------------------------------------
All Options granted under the Plan to any Employee Optionee shall
terminate and may no longer be exercised if the Employee Optionee ceases, at any
time during the period between the grant of the Option and its exercise, to be
an employee of the Company; provided, however, that the Committee may alter the
termination date of the Option if the Optionee transfers to an affiliate of the
Company. Notwithstanding the foregoing, (i) if the Employee Optionee's
employment with the Company shall have terminated for any reason (other than
involuntary dismissal for "cause" or voluntary resignation in violation of any
agreement to remain in the employ of the Company, including, without limitation,
any such agreement pursuant to Section 16 of the Plan), he may, at any time
before the expiration of three (3) months after such termination or before
expiration of the Option, whichever shall first occur, exercise the Option (to
the extent that the Option was exercisable by him on the date of the termination
of his employment); (ii) if the Employee Optionee's employment shall have
terminated due to disability (as defined in Section 22(e) (3) of the Code and
subject to such proof of disability as the Committee may require), such Option
may be exercised by the Employee Optionee (or by his guardian(s), or
conservator(s), or other legal representatives(s)) before the expiration of
twelve (12) months after such termination or before expiration of the Option,
whichever shall first occur (to the extent that the Option was exercisable by
him on the date of the termination of his employment); (iii) in the event of the
death of the Employee Optionee, an Option exercisable by his legal
representative(s), legatee(s), or heir(s), or by his beneficiary or
beneficiaries so designated by him as permitted by Section 15 of the Plan, as
the case may be, within twelve (12) months after his death or before the
expiration of the Option, whichever shall first occur (to the extent that the
Option was exercisable by him on the date of his death); and (iv) if the
Employee Optionee's employment is terminated for "cause" or in violation of any
agreement to remain in the employ of the Company, including, without limitation,
any such agreement pursuant to Section 16 of the Plan, he may, at any time
before the expiration of thirty (30) days after such termination or before the
expiration of the Option, whichever shall first occur, exercise the Option (to
the extent that the Option was exercisable by him on the date of termination of
his employment). For purposes of the Plan, "cause" may include, without
limitation, any illegal or improper conduct (1) which injures or impairs the
reputation, goodwill, or business of the Company; (2) which involves the
misappropriation of funds of the Company, or the misuse of data, information, or
documents acquired in connection with employment by the Company; or (3) which
violates any other directive or policy promulgated by the Company. A termination
for "cause" may also include any resignation in anticipation of discharge for
"cause" or resignation accepted by the Company in lieu of a formal discharge for
"cause".
29
<PAGE>
ASPAC COMMUNICATIONS, INC.
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2000
12. MANNER OF OPTION EXERCISE; RIGHTS AND OBLIGATIONS OF OPTIONEES.
---------------------------------------------------------------
12.1 WRITTEN NOTICE OF EXERCISE.
---------------------------
An Optionee may elect to exercise an Option in whole or in
part, from time to time, subject to the terms and conditions contained in the
Plan and in the agreement evidencing such Option, by giving written notice of
exercise to the Company at its principal executive office.
12.2 CASH PAYMENT FOR OPTIONED SHARES.
---------------------------------
If an Option is exercised for cash, such notice shall be
accompanied by a cashier's or personal check, or money order, made payable to
the Company for the full exercise price of the shares purchased.
12.3 STOCK SWAP FEATURE.
-------------------
At the time of the Option exercise, and subject to the
discretion of the Committee to accept payment in cash only, the Optionee may
determine whether the total purchase price of the shares to be purchased shall
be paid solely in cash or by transfer from the Optionee to the Company of
previously acquired shares of Common Stock, or by a combination thereof. In the
event that the Optionee elects to pay the total purchase price in whole or in
part with previously acquired shares of Common Stock, the value of such shares
shall be equal to their Fair Market Value on the date of exercise, determined by
the Committee in the same manner used for determining Fair Market Value at the
time of grant for purposes of Section 9 of the Plan.
12.4 INVESTMENT REPRESENTATION FOR NON-REGISTERED SHARES AND
-------------------------------------------------------
LEGALITY OF ISSUANCE.
---------------------
The receipt of shares of Common Stock upon the exercise of an
Option shall be conditioned upon the Optionee (or any other person who exercises
the Option on his or her behalf as permitted by Section 11.3 of the Plan)
providing to the Committee a written representation that, at the time of such
exercise, it is the intent of such person(s) to acquire the shares for
investment only and not with a view toward distribution. The certificate for
unregistered shares issued for investment shall be restricted by the Company as
to transfer unless the Company receives an opinion of counsel satisfactory to
the Company to the effect that such restriction is not necessary under then
pertaining law. The providing of such representation and such restrictions on
transfer shall not, however, be required upon any person's receipt of shares of
Common Stock under the Plan in the event that, at the time of grant of the
Option relating to such receipt or upon such receipt, whichever is the
appropriate measure under applicable federal or state securities laws, the
shares subject to the Option shall be (i) covered by an effective and current
registration statement under the Securities Act of 1933, as amended, and (ii)
either qualified or exempt from qualification under applicable state securities
laws. The Company shall, however, under no circumstances be required to sell or
issue any shares under the Plan if, in the opinion of the Committee, (i) the
issuance of such shares would constitute a violation by the Optionee or the
Company of any applicable law or regulation of any governmental authority, or
(ii) the consent or approval of any governmental body is necessary or desirable
as a condition of, or in connection with, the issuance of such shares.
30
<PAGE>
ASPAC COMMUNICATIONS, INC.
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2000
12.5 STOCKHOLDER RIGHTS OF OPTIONEE.
-------------------------------
Upon exercise, the Optionee (or any other person who exercises
the Option on his behalf as permitted by Section 11.3 of the Plan) shall be
recorded on the books of the Company as the owner of the shares, and the Company
shall deliver to such record owner one or more duly issued stock certificates
evidencing such ownership. No person shall have any rights as a stockholder with
respect to any shares of Common Stock covered by an Option granted pursuant to
the Plan until such person shall have become the holder of record of such
shares. Except as provided in Section 14, no adjustments shall be made for cash
dividends or other distributions or other rights as to which there is a record
date preceding the date such person becomes the holder of record of such shares.
12.6 HOLDING PERIODS FOR TAX PURPOSES.
---------------------------------
The Plan does not provide that an Optionee must hold shares of
Common Stock acquired under the Plan for any minimum period of time. Optionees
are urged to consult with their own tax advisors with respect to the tax
consequences to them of their individual participation in the Plan.
13. SUCCESSIVE GRANTS.
------------------
Successive grants of Options may be made to any Optionee under the
Plan.
14. ADJUSTMENTS.
------------
(a) If the outstanding Common Stock shall be hereafter
increased or decreased, or changed into or exchanged for a different number or
kind of shares or other securities of the Company or of another corporation, by
reason of a recapitalization, reclassification, reorganization, merger,
consolidation, share exchange, or other business combination in which the
Company is the surviving parent corporation, stock split-up, combination of
shares, or dividend or other distribution payable in capital stock or rights to
acquire capital stock, appropriate adjustment shall be made by the Committee in
the number and kind of shares for which options may be granted under the Plan.
In addition, the Committee shall make appropriate adjustment in the number and
kind of shares as to which outstanding and unexercised options shall be
exercisable, to the end that the proportionate interest of the holder of the
option shall, to the extent practicable, be maintained as before the occurrence
of such event. Such adjustment in outstanding options shall be made without
change in the total price applicable to the unexercised portion of the option
but with a corresponding adjustment in the exercise price per share.
(b) In the event of the dissolution or liquidation of the
Company, any outstanding and unexercised options shall terminate as of a future
date to be fixed by the Committee.
(c) In the event of a Reorganization (as hereinafter
defined), then
(i) If there is no plan or agreement with respect to
the Reorganization ("Reorganization Agreement"), or if the Reorganization
Agreement does not specifically provide for the adjustment, change, conversion,
or exchange of the outstanding and unexercised options shall terminate as of a
future date to be fixed by the Committee; or
31
<PAGE>
ASPAC COMMUNICATIONS, INC.
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2000
(ii) If there is a Reorganization Agreement, and the
Reorganization Agreement specifically provides for the adjustment, change,
conversion, or exchange of the outstanding and unexercised options for cash or
other property or securities of another corporation, then the Committee shall
adjust the shares under such outstanding and unexercised options, and shall
adjust the shares remaining under the Plan which are then available for the
issuance of options under the Plan if the Reorganization Agreement makes
specific provisions therefor, in a manner not inconsistent with the provisions
of the Reorganization Agreement for the adjustment, change, conversion, or
exchange of such options and shares.
(d) The term "Reorganization" as used in this Section 14 shall
mean any reorganization, merger, consolidation, share exchange, or other
business combination pursuant to which the Company is not the surviving parent
corporation after the effective date of the Reorganization, or any sale or lease
of all or substantially all of the assets of the Company. Nothing herein shall
require the Company to adopt a Reorganization Agreement, or to make a provision
for the adjustment, change, conversion, or exchange of any options, or the
shares subject thereto, in any Reorganization Agreement which it does adopt.
(e) The Committee shall provide to each optionee then holding
an outstanding and unexercised option not less than thirty (30) calendar days'
advanced written notice of any date fixed by the Committee pursuant to this
Section 14 and of the terms of any Reorganization Agreement providing for the
adjustment, change, conversion, or exchange of outstanding and unexercised
options. Except as the Committee may otherwise provide, each optionee shall have
the right during such period to exercise his option only to the extent that the
option was exercisable on the date such notice was provided to the optionee.
Any adjustment to any outstanding ISO pursuant to this Section
14, if made by reason of a transaction described in Section 424(a) of the Code,
shall be made so as to conform to the requirements of that Section and the
regulation thereunder. If any other transaction described in Section 424(a) of
the Code affects the Common Stock subject to any unexercised ISO theretofore
granted under the Plan (hereinafter for purposes of this Section 14 referred to
as the "old option"), the Board of Directors of the Company or of any surviving
or acquiring corporation may take such action as it deems appropriate, in
conformity with the requirements of that Code Section and the regulations
thereunder, to substitute a new option for the old option, in order to make the
new option, as nearly as may be practicable, equivalent to the old option, or to
assume the old option.
(f) No modification, extension, renewal, or other change in
any option granted under the Plan may be made, after the grant of such option,
without the optionee's consent, unless the same is permitted by the provisions
of the Plan and the option agreement. In the case of an ISO, optionees are
hereby advised that certain changes may disqualify the ISO from being considered
as such under Section 422 of the Code, or constitute a modification, extension,
or renewal of the ISO under Section 424(h) of the Code.
(g) All adjustments and determinations under this Section 14
shall be made by the Committee in good faith in its sole discretion.
32
<PAGE>
ASPAC COMMUNICATIONS, INC.
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2000
15. NON-TRANSFERABILITY OF OPTIONS.
-------------------------------
An Option shall be exercisable only by the Optionee, or in the event of
his disability, by his guardian(s), conservator(s), or other legal
representative(s), during the Optionee's lifetime. In the event of the death of
the Optionee, an Option shall be exercisable by his legal representative(s),
legatee(s), or heir(s), as the case may be, or by such person(s) as he may
designate as his beneficiary or beneficiaries in a signed statement included as
a part of the option agreement. No Option shall be transferable by the Optionee,
either voluntarily or involuntarily, except by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined by
the Code or Title I of the Employee Retirement Income Security Act, or the rules
thereunder. Any attempt to exercise, transfer or otherwise dispose of an
interest in an Option in contravention of the terms and conditions of the Plan,
or of the option agreement for the Option, shall immediately void the Option.
16. CONTINUED EMPLOYMENT.
-------------------------
As determined in the sole discretion of the Committee at the time of
the grant and if so stated in a writing signed by the Company, each Option may
have as a condition the requirement of an Employee Optionee to remain in the
employ of the Company, or of its affiliates, and to render it his or her
exclusive service, at such compensation as may be determined from time to time
by it, for a period not to exceed the term of the Option, except for earlier
termination of employment by or with the express written consent of the Company
or on account of disability or death. The failure of any Employee Optionee to
abide by such agreement as to any Option under the Plan may result in the
termination of all of his or her then outstanding Option granted pursuant to the
Plan. Neither the creation of the Plan nor the granting of Option(s) under it
shall be deemed to create a right in an Employee Optionee to continued
employment with the Company, and each such Employee Optionee shall be and shall
remain subject to discharge by the Company as though the Plan had never come
into existence. Except as specifically provided by the Committee in any
particular case, the loss of existing or potential profit in options granted
under this Plan shall not constitute an element of damages in the even of
termination of the employment of an employee even if the termination is in
violation of an obligation of the Company to the employee by contract or
otherwise.
17. TAX WITHHOLDING.
----------------
The exercise of any option granted under the Plan is subject to the
condition that if at any time the Company shall determine, in is discretion,
that the satisfaction of withholding tax or other withholding liabilities under
any federal, state or local law is necessary or desirable as a condition of, or
in connection with, such exercise or a later lapsing of time or restrictions on
or disposition of the shares of Common Stock received upon such exercise, then
in such event, the exercise of the option shall not be effective unless such
withholding shall have been effected or obtained in a manner acceptable to the
Company. When an optionee is required to pay to the Company an amount required
to be withheld under applicable income tax laws in connection with the exercise
of any option, the optionee may, subject to the approval of the Committee, which
approval shall not have been disapproved at any time after the election is made,
satisfy the obligation, in whole or in part, by electing to have the Company
withhold shares of Common Stock having a value equal to the amount required to
be withheld. The value of the Common Stock withheld pursuant to the election
shall be determined by the Committee, in accordance with the criteria set forth
in Section 9 of the Plan, with reference to the date the amount of tax to be
withheld is determined. The optionee shall pay to the Company in cash any amount
required to be withheld that would otherwise result in the withholding of a
fractional share. The election by an optionee who is a director or officer of
the Company within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended ("Section 16 of the 1934 Act"), to be effective, must meet all
of the requirements of Section 16 of the 1934 Act.
33
<PAGE>
ASPAC COMMUNICATIONS, INC.
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2000
18. TERM OF PLAN.
-------------
18.1 EFFECTIVE DATE.
---------------
Subject to stockholder approval, the Plan shall become
effective as of January 31, 2000.
18.2 TERMINATION DATE.
-----------------
Except as to options previously granted and outstanding under
the Plan, the Plan shall terminate at midnight on January 31, 2005, and no
Option shall be granted after that time. Options then outstanding may continue
to be exercised in accordance with heir terms. The Plan may be suspended or
terminated at any earlier time by the Board within the limitations set forth in
Section 5 of the Plan.
19. RESERVATION OF SHARES.
----------------------
The Company, during the term of this Plan, will at all times reserve
and keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
20. AGREEMENTS.
-----------
Options and Stock Purchase Rights shall be evidenced by written
agreements in such form as the Board shall approve from time to time.
21. NON-EXCLUSIVITY OF THE PLAN.
----------------------------
Nothing contained in the Plan is intended to amend, modify, or rescind
any previously approved compensation plans, programs or options entered into by
the Company. This Plan shall be construed to be in addition to and independent
of any and all such other arrangements. Neither the adoption of the Plan by the
Board nor the submission of the Plan to the stockholders of the Company for
approval shall be construed as creating any limitations on the power or
authority of the Board to adopt, with or without stockholder approval, such
additional or other compensation arrangements as the Board may from time to time
deem desirable.
22. GOVERNING LAW.
--------------
The Plan and all rights and obligations under it shall be construed and
enforced in accordance with the laws of the State of Delaware.
23. INFORMATION TO OPTIONEES.
-------------------------
The Company shall provide to each Optionee, during the period for which
such Optionee has one or more Options outstanding and to each shareholder who
has purchased shares of the Company's stock under the Plan, copies of all annual
reports and other information which are provided to all shareholders of the
Company, a balance sheet and an income statement at least annually. The Company
shall not be required to provide such information to key employees whose duties
in connection with the Company assure their access to equivalent information.
FOR: ASPAC COMMUNICATIONS, INC.
BY: /S/ JEFFREY G. SUN__
------------------
JEFFREY G. SUN, CEO
34
