<PAGE> 1
As filed with the Securities and Exchange Commission
On March 9, 1998
Registration No. 33-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
AND POST-EFFECTIVE AMENDMENT NO. 1
TO REGISTRATION STATEMENT NO. 33-73544
AND POST-EFFECTIVE AMENDMENT NO. 2
TO REGISTRATION STATEMENT NO. 33-41534
UNDER
THE SECURITIES ACT OF 1933
IMMUNOGEN, INC.
----------------------------------------------------
(Exact name of registrant as specified in its charter)
Massachusetts 04-2726691
- --------------------------------- --------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
333 Providence Highway, Norwood, Massachusetts 02062
----------------------------------------------------
(Address of principal executive offices)
IMMUNOGEN, INC. RESTATED STOCK OPTION PLAN
------------------------------------------
(Full title of the plan)
Mitchel Sayare
Chairman of the Board and
Chief Executive Officer
ImmunoGen, Inc.
333 Providence Highway
Norwood, Massachusetts 02062
----------------------------------------------------
(Name and address of agent for service)
(781) 769-4242
----------------------------------------------------
(Telephone number, including area code, of agent for service)
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered(1) unit(4) price(4) fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,463,372 (2) $2.643 $3,867,692 $1,141
$.01 par value
Common Stock, 361,628 (3) 1.969 712,046 210
$.01 par value --------- ---------- ------
TOTAL 1,825,000 $4,579,738 $1,351
--------- ---------- ------
- --------------------------------------------------------------------------------
</TABLE>
(1) The number of shares of common stock, par value $.01 per share (the "Common
Stock"), consists of the aggregate number of additional shares not
previously registered which may be sold upon the exercise of options which
have been granted and/or may hereafter be granted under the ImmunoGen, Inc.
Restated Stock Option Plan (the "Plan"). The maximum number of shares which
may be sold upon the exercise of such options granted under the Plan is
subject to adjustment in accordance with certain anti-dilution and other
provisions of the Plan. Accordingly, pursuant to Rule 416 under the
Securities Act of 1933, as amended (the "Securities Act"), this
Registration Statement covers, in addition to the number of shares stated
above, an indeterminable number of shares which may be subject to grant or
otherwise issuable after the operation of any such anti-dilution and other
provisions.
(2) Consists of the aggregate number of shares of Common Stock which may be
sold upon the exercise of options which previously have been granted under
the Plan.
(3) Consists of the aggregate number of shares of Common Stock which may be
sold upon the exercise of options which may hereafter be granted under the
Plan.
(4) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457(h) under the
Securities Act as follows: (i) in the case of shares of Common Stock which
may be purchased upon exercise of outstanding options, the fee is
calculated on the basis of the price at which the options may be exercised;
and (ii) in the case of shares of Common Stock for which options have not
yet been granted and the option price of which is therefore unknown, the
fee is calculated on the basis of the average high and low sales prices per
share of the Common Stock on the National Market System of the National
Association of Securities Dealers Automated Quotation System as of a date
(March 3, 1998) within 5 business days prior to filing this Registration
Statement.
2
<PAGE> 3
EXPLANATORY NOTE
This Post-Effective Amendment and Registration Statement relates, in part,
to the registration of 1,825,000 additional shares of Common Stock authorized
for issuance under the Plan. It also constitutes a Post-Effective Amendment with
respect to 1,000,000 and 700,000 previously registered shares of Common Stock
authorized for issuance under the Plan, registered on Registration Statement No.
33-41534 (filed July 3, 1991) and Registration Statement No. 33-73544 (filed
December 27, 1993), respectively. In accordance with the instructional Note to
Part I of Form S-8 as promulgated by the Securities and Exchange Commission, the
information specified by Part I of Form S-8 has been omitted from this
Registration Statement on Form S-8 for offers of Common Stock pursuant to the
Plan. The Prospectus filed as part of the Company's Registration Statement No.
33-41534 and registration statement No. 33-73544 may no longer be used for
reofferings and resales of Common Stock because the information in such
propectuses is no longer accurate.
3
<PAGE> 4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's annual report on Form 10-K (Commission File No.
0-17999) for the fiscal year ended June 30, 1997.
(b) The Company's quarterly report on Form 10-Q (Commission File No.
0-17999) for the quarter ended September 30, 1997, and Amendment No. 1 to the
Company's quarterly report on Form 10-Q for the quarter ended September 30,
1997, on Form 10-Q/A, filed with the Commission on November 24, 1997. The
Company's quarterly report on Form 10-Q (Commission File No. 0-17999) for the
quarter ended December 31, 1997.
(c) The Company's current report on Form 8-K for the August 1, 1997 event
announcing a collaboration between the Company's 95%-owned subsidiary and
BioChem Pharma Inc., as filed with the Commission on August 1, 1997; and the
Company's current report on Form 8-K for the December 11, 1997 event announcing
a $3.0 million investment in the Company by Biotechnology Value Fund, L.P. and
affiliates, as filed with the Commission on December 11, 1997.
(d) The description of the Common Stock included in the Registrant's
Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), filed with the Commission on September 22, 1989,
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Registrant with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act prior to the filing of a post-effective amendment which indicates that all
securities covered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (Registration No. 33-43725), as amended.
4
<PAGE> 5
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
(4.1) Form of Common Stock Certificate (previously filed as Exhibit 4.2 to
the Registrant's Registration Statement on Form S-1, Registration No.
33-31219, as amended, and incorporated herein by reference)
(4.2) Restated Articles of Organization of the Registrant (previously filed
as Exhibit 3.1 to the Registrant's Registration Statement on Form S-1,
Registration No. 33-38883, as amended, and incorporated herein by
reference)
(4.3) By-Laws, as amended, of the Registrant (previously filed as Exhibit 3.2
to the Registrant's annual report on Form 10-K for the fiscal year
ended June 30, 1990, and incorporated herein by reference)
(5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with
respect to the legality of the shares being registered
(23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5)
(23.2) Consent of Coopers & Lybrand
(24) Power of Attorney to file future amendments (included on the signature
page of this Registration Statement)
(99) ImmunoGen, Inc. Restated Stock Option Plan (as amended)
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of
5
<PAGE> 6
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) of Regulation C
under the Securites Act of 1933, as amended, if, in
the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the Registration Statement is on
Form S-3, Form S-8 or Form F-3, and the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
6
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement and Post-Effective Amendment No. 1 to Registration Statement No.
33-73544 and Post-Effective Amendment No. 2 to Registration Statement No.
33-41534 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Norwood, Commonwealth of Massachusetts, on March 6,
1998.
IMMUNOGEN, INC.
/s/ Mitchel Sayare
--------------------------------
By: Mitchel Sayare
Chairman of the Board
and Chief Executive Officer
Each person whose signature appears below constitutes and appoints
Mitchel Sayare and Kathleen A. Carroll, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
in each of them, for him and in his name, place and stead, and in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them or their or
his substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Mitchel Sayare Chairman of the Board March 6, 1998
- -------------------------- of Directors and
Mitchel Sayare Chief Executive Officer
(Principal Executive Officer)
/s/ Walter A. Blattler Executive Vice President, March 6, 1998
- ------------------------ Science and Technology
Walter A. Blattler and Director
/s/ Kathleen A. Carroll Vice President, Finance March 6, 1998
- -------------------------- and Administration and
Kathleen A. Carroll Treasurer (Principal Financial
Officer and Principal Accounting
Officer)
/s/ David W. Carter Director March 6, 1998
- --------------------------
David W. Carter
Director
- --------------------------
Michael R. Eisenson
/s/ Stuart F. Feiner Director March 6, 1998
- --------------------------
Stuart F. Feiner
/s/ Donald E. O'Neill Director March 6, 1998
- --------------------------
Donald E. O'Neill
</TABLE>
7
<PAGE> 8
IMMUNOGEN, INC.
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
(4.1) Form of Common Stock Certificate (previously filed as Exhibit 4.2 to
the Registrant's Registration Statement on Form S-1, Registration No.
33-31219, as amended, and incorporated herein by reference)
(4.2) Restated Articles of Organization of the Registrant (previously filed
as Exhibit 3.1 to the Registrant's Registration Statement on Form S-1,
Registration No. 33-38883, as amended, and incorporated herein by
reference)
(4.3) By-Laws, as amended, of the Registrant (previously filed as Exhibit 3.2
to the Registrant's annual report on Form 10-K for the fiscal year
ended June 30, 1990, and incorporated herein by reference)
(5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with
respect to the legality of the shares being registered
(23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5)
(23.2) Consent of Coopers & Lybrand
(24) Power of Attorney to file future amendments (included on the signature
page of this Registration Statement)
(99) ImmunoGen, Inc. Restated Stock Option Plan (as amended)
8
<PAGE> 1
Exhibit 5
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
701 Pennsylvania Avenue, N.W. Telephone: 617/542-6000
Washington, D.C. 20004 Fax: 617/542-2241
Telephone: 202/434-7300
Fax: 202/434-7400
March 6, 1998
ImmunoGen, Inc.
333 Providence Highway
Norwood, Massachusetts 02062
Ladies and Gentlemen:
We have acted as counsel to ImmunoGen Inc., a Massachusetts
corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission of a Registration
Statement on Form S-8 (the "Registration Statement"), pursuant to which
the Company is registering the issuance of a total of One Million Eight
Hundred Twenty-Five Thousand (1,825,000) shares (the "Shares") of its
common stock, $.01 par value per share, (the "Common Stock") under the
Securities Act of 1933, as amended. This opinion is being rendered in
connection with the filing of the Registration Statement. All capitalized
terms used herein and not otherwise defined shall have the respective
meanings given to them in the Registration Statement.
In connection with this opinion, we have examined the Company's
Restated Articles of Organization and By-Laws, both as currently in
effect; such other records of the corporate proceedings of the Company
and certificates of the Company's officers as we have deemed relevant;
and the Registration Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies.
Based upon the foregoing, we are of the opinion that (i) the
Shares have been duly and validly authorized by the Company and (ii) the
Shares, when sold, will have been duly and validly issued, fully paid and
non-assessable shares of the Company.
Our opinion is limited to the Business Corporation Laws of the
Commonwealth of Massachusetts, and we express no opinion with respect to
the laws of any other jurisdiction. No opinion is expressed herein with
respect to the qualification of the Shares under the securities or blue
sky laws of any state or any foreign jurisdiction.
<PAGE> 2
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
ImmunoGen, Inc.
March 6, 1998
Page 2
We understand that you wish to file this opinion as an exhibit to
the Registration Statement, and we hereby consent thereto.
Very truly yours,
/S/ Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY AND POPEO, P.C.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-8, to register 1,825,000 common shares, of our report (which includes
an explanatory paragraph concerning uncertainties surrounding the Company's
ability to continue as a going concern) dated July 30, 1997, on our audits of
the consolidated financial statements of ImmunoGen, Inc. as of June 30, 1997 and
1996 and for each of the three years in the period ended June 30, 1997, which
report is included in the 1997 ImmunoGen, Inc. Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
March 5, 1998
<PAGE> 1
Exhibit 99
IMMUNOGEN, INC.
RESTATED STOCK OPTION PLAN
(as amended through November 12, 1997)
<PAGE> 2
IMMUNOGEN, INC.
RESTATED STOCK OPTION PLAN
(AS AMENDED THROUGH November 12, 1997)
1. DEFINITIONS AND PURPOSES.
A. Definitions
Unless otherwise specified or unless the context otherwise requires, the
following terms, as used in this Restated Stock Option Plan, have the following
meanings:
1. Administrator means the Board of Directors, unless it has
delegated power to act on its behalf to a committee. (See
Article 3)
2. Affiliate means a corporation which, for purposes of Section
424 of the Code, is a parent or subsidiary of the Company,
direct or indirect.
3. Board of Directors means the Board of Directors of the
Company.
4. Code means the United States Internal Revenue Code of 1986,
as amended.
5. Committee means the Committee to which the Board of
Directors has delegated power to act under or pursuant to
the provisions of the Plan.
6. Company means ImmunoGen, Inc., a Massachusetts corporation.
7. Disability or Disabled means permanent and total disability
as defined in Section 22(e)(3) of the Code.
8. Fair Market Value of a Share of Common Stock means:
a. If such Shares are then listed on any national
securities exchange, the fair market value shall be the
mean between the high and low sales prices, if any, on
the largest such exchange on the date of the grant of
the Option, or, if none, on the most recent trade date
thirty (30) days or less prior to the date of the grant
of the Option;
1
<PAGE> 3
b. If the Shares are not then listed on any such exchange,
the fair market value of such Shares shall be the last
sale price, if any, as reported in the National
Association of Securities Dealers Automated Quotation
System (NASDAQ) for the date of the grant of the
Options, or if none, for the most recent trade date
thirty (30) days or less prior to the date of the grant
of the Option for which such last sale price is
reported;
c. If the Shares are not then either listed on any such
exchange or quoted in NASDAQ, the fair market value
shall be the mean between the average of the "Bid" and
the average of the "Ask" prices, if any, as reported in
the National Daily Quotation Service for the date of
the grant of the option, or, if none, for the most
recent trade date thirty (30) days or less prior to the
date of the grant of the Option for which such
quotations are reported; and
d. If the market value cannot be determined under the
preceding three paragraphs, it shall be determined in
good faith by the Board of Directors.
9. ISO means an option meant to qualify as an incentive stock
option under Code Section 422.
10. Key Employee means an employee of the Company or of an
Affiliate (including, without limitation, an employee who is
also serving as an officer or director of the Company or of
an Affiliate), designated by the Administrator to be
eligible to be granted one or more Options under the Plan.
11. Non-Qualified Option means an option which is not intended
to qualify as an ISO.
12. Option means an ISO or Non-Qualified Option granted under
the Plan.
13. Option Agreement means an agreement between the Company and
a Participant executed and delivered pursuant to the Plan,
in such form as the Administrator shall approve.
2
<PAGE> 4
14. Participant means a Key Employee, director or consultant to
whom one or more Options are granted under the Plan.
15. Participant's Survivors means a deceased Participant's legal
representatives and/or any person or persons who acquired
the Participant's rights to an Option by will or by the laws
of descent and distribution.
16. Plan means this Restated Stock Option Plan.
17. Shares means shares of the common stock, $.01 par value, of
the Company ("Common Stock") as to which Options have been
or may be granted under the Plan or any shares of capital
stock into which the Shares are changed or for which they
are exchanged within the provisions of Article 2 of the
Plan. The shares issued upon exercise of Options granted
under the Plan may be authorized and unissued shares or
shares held by the Company in its treasury, or both.
B. Purposes of the Plan
The Plan is intended to encourage ownership of Shares by Key
Employees, non-employee directors and certain consultants of the
Company in order to attract such people, to induce them to work for
the benefit of the Company or of an Affiliate and to provide
additional incentive for them to promote the success of the Company or
of an Affiliate. The Plan provides for the issuance of ISOs and
Non-Qualified Options. The Plan shall be treated as an amendment to
and restatement of the Company's 1986 Incentive Stock Option Plan. As
amended and restated the Plan shall apply to ISOs issued by the
Company on or after the date of such amendment of the Plan, but the
Plan as so amended shall apply to any ISO issued prior to such
amendment if and only to the extent that the Incentive Stock Option
Agreement pursuant to which such ISO was granted is amended in writing
to adopt the amended terms of the Plan.
2. SHARES SUBJECT TO THE PLAN.
The number of Shares subject to this Plan as to which Options may be
granted from time to time shall be 3,525,000, or the equivalent of such number
of Shares after the Administrator, in its sole discretion, has interpreted the
effect of any stock split, stock dividend, combination, recapitalization or
similar transaction effected after such date.
3
<PAGE> 5
If an Option ceases to be "outstanding," in whole or in part, the Shares
which were subject to such Option shall be available for the granting of other
Options under the Plan. Any Option shall be treated as "outstanding" until such
Option is exercised in full, or terminates or expires under the provisions of
the Plan, or by agreement of the parties to the pertinent Option Agreement.
3. ADMINISTRATION OF THE PLAN.
The Administrator of the Plan will be the Board of Directors, except to the
extent the Board of Directors delegates its authority to a Committee of the
Board of Directors. The Plan is intended to comply with Rule 16b-3 or its
successors, promulgated pursuant to Section 16 of the Securities Exchange Act of
1934, as amended (the "1934 Act"), with respect to Participants who are subject
to Section 16 of the 1934 Act, and any provision in this Plan with respect to
such persons contrary to Rule 16b-3 shall be deemed null and void to the extent
permissible by law and deemed appropriate by the Administrator. Subject to the
provisions of the Plan, the Administrator is authorized to:
a. interpret the provisions of the Plan or of any Option or Option
Agreement and to make all rules and determinations which it deems
necessary or advisable for the administration of the Plan;
b. determine which employees of the Company or of an Affiliate shall
be designated as Key Employees and which of the Key Employees,
directors and consultants shall be granted Options;
c. determine the number of Shares for which an Option or Options
shall be granted; and
d. specify the terms and conditions upon which an Option or Options
may be granted; provided, however, that all such interpretations,
rules, determinations, terms and conditions shall be made and
prescribed in the context of preserving the tax status under Code
Section 422 of those Options which are designated as ISOs.
Subject to the foregoing, the interpretation and construction by
the Administrator of any provisions of the Plan or of any Option
granted under it shall be final, unless otherwise determined by
the Board of Directors, if the Administrator is other than the
Board of Directors.
4
<PAGE> 6
4. ELIGIBILITY FOR PARTICIPATION.
The Administrator will, in its sole discretion, name the Participants in
the Plan, provided, however, that each Participant must be a Key Employee,
director or consultant of the Company or of an Affiliate at the time an Option
is granted. Notwithstanding any of the foregoing provisions, the Administrator
may authorize the grant of an Option to a person not then an employee, director
or consultant of the Company or of an Affiliate. The actual grant of such
Option, however, shall be conditioned upon such person becoming eligible to
become a Participant at or prior to the time of the execution of the Option
Agreement evidencing such Option. ISOs may be granted only to Key Employees.
Non-Qualified Options may be granted to any Key Employee, director or consultant
of the Company or an Affiliate. Granting of any Option to any individual shall
neither entitle that individual to, nor disqualify him or her from,
participation in any other grant of Options.
5. TERMS AND CONDITIONS OF OPTIONS.
Each Option shall be set forth in an Option Agreement, duly executed by the
Company and by the Participant. The Option Agreements, which may be changed in
the Administrator's discretion for any particular Participant (provided that any
change in the Incentive Stock Option Agreement is not inconsistent with Code
Section 422), shall be subject to the following terms and conditions:
Non-Qualified Options: Each Option intended to be a Non-Qualified Option
shall be subject to the terms and conditions which the Administrator determines
to be appropriate and in the best interest of the Company, subject to the
following minimum standards for any such Non-Qualified Option:
a. The Option Agreement shall be in writing in the form approved by the
Administrator, with such modifications to such form as the
Administrator shall approve;
b. Option Price: The option price (per share) of the Shares covered by
each Option shall be determined by the Administrator but shall not be
less than the par value per share of the Shares on the date of the
grant of the Option.
c. Each Option Agreement shall state the number of Shares to which it
pertains; and
d. Each Option Agreement shall state the date on which it first is
exercisable and the date after which it may no
5
<PAGE> 7
longer be exercised. Except as otherwise determined by the
Administrator, each Option granted hereunder shall become cumulatively
exercisable in four (4) equal annual installments of twenty-five
percent (25%) each, commencing on the first anniversary date of the
Option Agreement executed by the Company and the Participant with
respect to such Option, and continuing on each of the next three (3)
anniversary dates.
e. Each Option shall terminate not more than 10 (ten) years from the date
of grant thereof or at such earlier time as the Option Agreement may
provide.
f. Directors' Options: Each director of the Company who is not an
employee of the Company or any Affiliate, upon first being elected or
appointed to the Board of Directors after July 9, 1992, and upon every
fourth anniversary thereof provided that on such dates such director
has been in the continued and uninterrupted service of the Company as
a director since his or her election or appointment and is a director
and is not an employee of the Company at such times, shall be granted
a Non-Qualified Option to purchase 10,000 Shares. Any non-employee
director serving in office on July 9, 1992, who has been a member of
the Board of Directors prior to such date shall be granted on such
date and upon every fourth anniversary thereof, a Non-Qualified Option
to purchase 10,000 Shares, provided that on such date such director
has been in the continued and uninterrupted service of the Company as
a director since July 9, 1992, and is a director and is not an
employee of the Company at such time. Each such Option shall (i) have
an exercise price equal to the Fair Market Value (per share) of the
Shares on the date of grant of the Option, (ii) have a term of ten
(10) years, and (iii) shall become cumulatively exercisable in four
(4) equal annual installments of twenty-five percent (25%) each, upon
completion of one full year of service on the Board of Directors after
the date of grant, and continuing on each of the next three (3) full
years of service thereafter. Any director entitled to receive an
Option grant under this subparagraph (f) may elect to decline the
Option. Notwithstanding the provisions of Paragraph 23 concerning
amendment of the Plan, the provisions of this subparagraph (f) shall
not be amended more than once every six months, other than to comport
with changes in the Code, the Employee Retirement Income Security Act,
or the rules thereunder. The provisions of Articles 9, 10, 11 and 12
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below shall not apply to Options granted pursuant to this subparagraph
(f).
ISOs: Each Option intended to be an ISO shall be issued only to a Key
Employee and be subject to at least the following terms and conditions, with
such additional restrictions or changes as the Administrator determines are
appropriate but not in conflict with Code Section 422 and relevant regulations
and rulings of the Internal Revenue Service:
a. Minimum standards: The ISO shall meet the minimum standards for
Non-Qualified Options, as described above, except clauses (a), (b) and
(e) thereunder.
b. Option Agreement: The Option Agreement for an ISO shall be in writing
in substantially the form as approved by the Administrator, with such
changes to such form as the Administrator shall approve, provided any
changes are not inconsistent with Code Section 422.
c. Option Price: Immediately before the Option is granted, if the
Participant owns, directly or by reason of the applicable attribution
rules in Code Section 424(d):
i. Ten percent (10%) or less of the total combined voting power of
all classes of share capital of the Company or an Affiliate, the
Option price per share of the Shares covered by each Option shall
not be less than one hundred percent (100%) of the Fair Market
Value per share of the Shares on the date of the grant of the
Option;
ii. More than ten percent (10%) of the total combined voting power of
all classes of share capital of the Company or an Affiliate, the
Option price per share of the Shares covered by each Option shall
be not less than one hundred ten percent (110%) of the said Fair
Market Value on the date of grant.
d. Term of Option: For Participants who own:
i. Ten percent (10%) or less of the total combined voting power of
all classes of share capital of the Company or an Affiliate, each
Option shall terminate not more than ten (10) years from the date
of the grant or at such earlier time as the Option Agreement may
provide;
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ii. More than ten percent (10%) of the total combined voting power of
all classes of share capital of the Company or an Affiliate, each
Option shall terminate not more than five (5) years from the date
of the grant or at such earlier time as the Option Agreement may
provide.
e. Limitation on Yearly Exercise: The Option Agreements shall restrict
the amount of Options which may be exercisable in any calendar year
(under this or any other ISO plan of the Company or an Affiliate) so
that the aggregate Fair Market Value (determined at the time each ISO
is granted) of the stock with respect to which ISOs are exercisable
for the first time by the Participant in any calendar year does not
exceed one hundred thousand dollars ($100,000), provided that this
subparagraph (e) shall have no force or effect if its inclusion in the
Plan is not necessary for Options issued as ISOs to qualify as ISOs
pursuant to Section 422(d) of the Code.
f. Limitation on Grant of ISOs: No ISOs shall be granted after the
expiration of the earlier of ten (10) years from the date of the
adoption of the Plan by the Company or the approval of the Plan by the
shareholders of the Company.
6. EXERCISE OF OPTION AND ISSUANCE OF SHARES.
An Option (or any part or installment thereof) shall be exercised by giving
written notice to the Company at its principal office address, together with
provision for payment of the full purchase price in accordance with this
paragraph for the shares as to which such Option is being exercised, and upon
compliance with any other condition(s) set forth in the Option Agreement. Such
written notice shall be signed by the person exercising the Option, shall state
the number of Shares with respect to which the Option is being exercised and
shall contain any representation required by the Plan or the Option Agreement.
Payment of the purchase price for the shares as to which such Option is being
exercised shall be made (a) in United States dollars in cash or by check, or (b)
at the discretion of the Administrator, through delivery of shares of Common
Stock having a fair market value equal as of the date of the exercise to the
cash exercise price of the Option, determined in good faith by the Board of
Directors of the Company, (c) at the discretion of the Administrator, by
delivery of the grantee's personal recourse note bearing interest payable not
less than annually at no less than 100% of the applicable Federal rate, as
defined in Section 1274(d) of the Code, (d) at the discretion of the
Administrator,
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in accordance with a cashless exercise program established with a securities
brokerage firm, and approved by the Administrator, or (e) at the discretion of
the Administrator, by any combination of (a), (b), (c) and (d) above.
Notwithstanding the foregoing, the Administrator shall accept only such payment
on exercise of an ISO as is permitted by Section 422 of the Code.
The Company shall then reasonably promptly deliver the Shares as to which
such Option was exercised to the Participant (or to the Participant's Survivors,
as the case may be). In determining what constitutes "reasonably promptly," it
is expressly understood that the delivery of the Shares may be delayed by the
Company in order to comply with any law or regulation which requires the Company
to take any action with respect to the Shares prior to their issuance. The
Shares shall, upon delivery, be evidenced by an appropriate certificate or
certificates for paid-up, non-assessable Shares.
The Administrator shall have the right to accelerate the date of exercise
of any installment of any Option, provided that the Administrator shall not
accelerate the exercise date of any installment of any Option granted to any Key
Employee as an ISO (and not previously converted into a Non-Qualified Option
pursuant to Article 18) if such acceleration would violate the annual vesting
limitation contained in Section 422(d) of the Code, as described in paragraph
6(e).
7. RIGHTS AS A SHAREHOLDER.
No Participant to whom an Option has been granted shall have rights as a
shareholder with respect to any Shares covered by such Option, except after due
exercise of the Option and provision for payment of the full purchase price for
the Shares being purchased pursuant to such exercise.
8. ASSIGNABILITY AND TRANSFERABILITY OF OPTIONS.
By its terms, an Option granted to a Participant shall not be transferable
by the Participant other than by will or by 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,
and shall be exercisable, during the Participant's lifetime, only by such
Participant (or by his or her legal representative). Such Option shall not be
assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar process.
Any attempted transfer, assignment, pledge, hypothecation or other disposition
of any Option or of any rights granted thereunder contrary to the provisions of
this Plan, or the levy of any
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attachment or similar process upon an Option, shall be null and void.
9. EFFECT OF TERMINATION OF SERVICE OTHER THAN "FOR CAUSE".
Except as otherwise provided in the pertinent Option Agreement, in the
event of a termination of service (whether as an employee or consultant) before
the Participant has exercised all Options, the following rules apply:
a. A Participant who ceases to be an employee or consultant of the
Company or of an Affiliate (for any reason other than termination "for
cause," Disability, or death for which events there are special rules
in Articles 10, 11, and 12, respectively), may exercise any Option
granted to him or her to the extent that the right to purchase Shares
has accrued on the date of such termination of service, but only
within such term as the Administrator has designated in the pertinent
Option Agreement.
b. In no event may an Option Agreement provide, if the Option is intended
to be an ISO, that the time for exercise be later than three (3)
months after the Participant's termination of employment.
c. The provisions of this paragraph, and not the provisions of Article 11
or 12, shall apply to a Participant who subsequently becomes disabled
or dies after the termination of employment or consultancy, provided,
however, in the case of a Participant's death, the Participant's
survivors may exercise the Option within six (6) months after the date
of the Participant's death, but in no event after the date of
expiration of the term of the Option.
d. Notwithstanding anything herein to the contrary, if subsequent to a
Participant's termination of employment or consultancy, but prior to
the exercise of an Option, the Board of Directors determines that,
either prior or subsequent to the Participant's termination, the
Participant engaged in conduct which would constitute "cause," then
such Participant shall forthwith cease to have any right to exercise
any Option.
e. A Participant to whom an Option has been granted under the Plan who is
absent from work with the Company or with an Affiliate because of
temporary disability (any disability other than a permanent and total
Disability as defined in Article 1 hereof), or who is on leave of
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absence for any purpose, shall not, during the period of any such
absence, be deemed, by virtue of such absence alone, to have
terminated such Participant's employment or consultancy with the
Company or with an Affiliate, except as the Administrator may
otherwise expressly provide.
f. Options granted under the Plan shall not be affected by any change of
employment or other service within or among the Company and any
Affiliates so long as the Participant continues to be an employee or
consultant of the Company or any Affiliate, provided, however, if a
Participant's employment by either the Company or an Affiliate should
cease (other than to become an employee of an Affiliate or the
Company), such termination shall affect the Participant's rights under
any Option granted to such Participant in accordance with the terms of
the Plan and the pertinent Option Agreement.
10. EFFECT OF TERMINATION OF SERVICE "FOR CAUSE".
Except as otherwise provided in the pertinent Option Agreement, the
following rules apply if the Participant's service (whether as an employee or
consultant) is terminated "for cause" prior to the time that all of his or her
outstanding Options have been exercised:
a. All outstanding and unexercised Options as of the date the Participant
is notified his or her service is terminated "for cause" will
immediately be forfeited, unless the Option Agreement provides
otherwise.
b. For purposes of this Article, "cause" shall include (and is not
limited to) dishonesty with respect to the employer, insubordination,
substantial malfeasance or nonfeasance of duty, unauthorized
disclosure of confidential information, and conduct substantially
prejudicial to the business of the Company or any Affiliate. The
determination of the Administrator as to the existence of cause will
be conclusive on the Participant and the Company.
c. "Cause" is not limited to events which have occurred prior to a
Participant's termination of service, nor is it necessary that the
Administrator's finding of "cause" occur prior to termination. If the
Administrator determines, subsequent to a Participant's termination of
service but prior to the exercise of an Option, that either prior or
subsequent to the
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Participant's termination the Participant engaged in conduct which
would constitute "cause," then the right to exercise any Option is
forfeited.
d. Any definition in an agreement between the Participant and the Company
or an Affiliate which contains a conflicting definition of "cause" for
termination and which is in effect at the time of such termination
shall supersede the definition in this Plan with respect to such
Participant.
11. EFFECT OF TERMINATION OF SERVICE FOR DISABILITY.
Except as otherwise provided in the pertinent Option Agreement, a
Participant who ceases to be an employee of or consultant to the Company or of
an Affiliate by reason of Disability may exercise any Option granted to such
Participant:
a. to the extent that the right to purchase Shares has accrued on the
date of his Disability; and
b. in the event rights to exercise the Option accrue periodically, to the
extent of a pro rata portion of any additional rights as would have
accrued had the Participant not become Disabled prior to the end of
the accrual period which next ends following the date of Disability.
The proration shall be based upon the number of days of such accrual
period prior to the date of Disability.
A Disabled Participant may exercise such rights only within a period of not
more than one (1) year after the date that the Participant became Disabled or,
if earlier, within the originally prescribed term of the Option.
The Administrator shall make the determination both of whether Disability
has occurred and the date of its occurrence (unless a procedure for such
determination is set forth in another agreement between the Company and such
Participant, in which case such procedure shall be used for such determination).
If requested, the Participant shall be examined by a physician selected or
approved by the Administrator, the cost of which examination shall be paid for
by the Company.
12. EFFECT OF DEATH WHILE AN EMPLOYEE OR CONSULTANT.
Except as otherwise provided in the pertinent Option Agreement, in the
event of the death of a Participant to whom an Option has been granted while the
Participant is an employee or
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consultant of the Company or of an Affiliate, such Option may be exercised by
the Participant's Survivors:
a. to the extent exercisable but not exercised on the date of death; and
b. in the case of an Option, in the event rights to exercise the Option
accrue periodically, to the extent of a pro rata portion of such
rights based upon the number of days prior to the Participant's death
and during the accrual period which next ends following the date of
death.
If the Participant's Survivors wish to exercise the Option, they must take
all necessary steps to exercise the Option within one (1) year after the date of
death of such Participant, notwithstanding that the decedent might have been
able to exercise the Option as to some or all of the Shares on a later date if
he or she had not died and had continued to be an employee or consultant or, if
earlier, within the originally prescribed term of the Option.
13. TERMINATION OF DIRECTORS' OPTION RIGHTS.
Except as otherwise provided in the pertinent Option Agreement, if a
director who receives Options pursuant to Article 5, subparagraph (f):
a. ceases to be a member of the Board of Directors of the Company for any
reason other than death or Disability, any then unexercised Options
granted to such Director may be exercised by the director within a
period of ninety (90) days after the date the director ceases to be a
member of the Board of Directors, but only to the extent of the number
of shares with respect to which the Options are exercisable on the
date the director ceases to be a member of the Board of Directors, and
in no event later than the expiration date of the Option; or
b. ceases to be a member of the Board of Directors of the Company by
reason of his or her death or Disability, any then unexercised Options
granted to such Director may be exercised by the director (or by the
director's personal representative, heir or legatee, in the event of
death) within a period of one hundred eighty (180) days after the date
the director ceases to be a member of the Board of Directors, but only
to the extent of the number of Shares with respect to which the
Options are exercisable on the date the director ceases to be a
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member of the Board of Directors, and in no event later than the
expiration date of the Option.
14. PURCHASE FOR INVESTMENT.
Unless the offering and sale of the Shares to be issued upon the particular
exercise of an Option shall have been effectively registered under the
Securities Act of 1933, as now in force or hereafter amended (the "Act"), the
Company shall be under no obligation to issue the Shares covered by such
exercise unless and until the following conditions have been fulfilled:
a. The person(s) who exercise such Option shall warrant to the
Company, prior to receipt of the Shares, that such person(s) are
acquiring such Shares for their own respective accounts, for
investment, and not with a view to, or for sale in connection
with, the distribution of any such Shares, in which event the
person(s) acquiring such Shares shall be bound by the provisions
of the following legend which shall be endorsed upon the
certificate(s) evidencing their Shares issued pursuant to such
exercise or such grant:
"The shares represented by this certificate have been taken for
investment and they may not be sold or otherwise transferred by
any person, including a pledgee, in the absence of an effective
registration statement of the shares under the Securities Act of
1933 or an opinion of counsel satisfactory to the Company that an
exemption from registration is then available."
b. The Company shall have received an opinion of its counsel that
the Shares may be issued upon such particular exercise in
compliance with the Act without registration thereunder.
The Company may delay issuance of the Shares until completion of any action
or obtaining of any consent which the Company deems necessary under any
applicable law (including, without limitation, state securities or "blue
sky"laws).
15. DISSOLUTION OR LIQUIDATION OF THE COMPANY.
Upon the dissolution or liquidation of the Company, all Options granted
under this Plan which as of such date shall not have been exercised will
terminate and become null and void; provided, however, that if the rights of a
Participant or a Participant's Survivors have not otherwise terminated and
expired, the Participant or the Participant's Survivors will have
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<PAGE> 16
the right immediately prior to such dissolution or liquidation to exercise any
Option to the extent that the right to purchase Shares has accrued under the
Plan as of the date immediately prior to such dissolution or liquidation.
16. ADJUSTMENTS.
Upon the occurrence of any of the following events, a Participant's rights
with respect to any Option granted to him or her hereunder which have not
previously been exercised in full shall be adjusted as hereinafter provided,
unless otherwise specifically provided in the written agreement between the
optionee and the Company relating to such Option:
a. Stock Dividends and Stock Splits. If the shares of Common Stock shall
be subdivided or combined into a greater or smaller number of shares
or if the Company shall issue any shares of Common Stock as a stock
dividend on its outstanding Common Stock, the number of shares of
Common Stock deliverable upon the exercise of such Option shall be
appropriately increased or decreased proportionately, and appropriate
adjustments shall be made in the purchase price per share to reflect
such subdivision, combination or stock dividend.
b. Consolidations or Mergers. If the Company is to be consolidated with
or acquired by another entity in a merger, sale of all or
substantially all of the Company's assets or any similar transaction
or transaction having the same effect (an "Acquisition"), the
Compensation Committee of the Board of Directors of the Company, prior
to consummation of such Acquisition shall, as to outstanding Options,
either (i) make appropriate provisions, if necessary, for the
continuation of such Options by substituting on an equitable basis for
the shares then subject to such Options (A) the securities of any
successor or acquiring entity, or (B) other consideration payable with
respect to the outstanding shares of Common Stock in connection with
the Acquisition; or (ii) upon written notice to the optionees, provide
that all Options must be exercised (all Options being made fully
exercisable for purposes of this subsection) within one year of the
date of such notice, at the end of which period the Options shall
terminate; or (iii) terminate all Options in exchange for a cash
payment equal to the excess of the fair market value of the shares
subject to such Options (all Options being made fully
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exercisable for purposes of this subsection) over the exercise price
thereof.
c. Recapitalization or Reorganization. In the event of a recapitalization
or reorganization of the Company (other than a transaction described
in subparagraph B above) pursuant to which securities of the Company
or of another corporation are issued with respect to the outstanding
shares of Common Stock, an optionee upon exercising an Option shall be
entitled to receive for the purchase price paid upon such exercise the
securities he or she would have received if he or she had exercised
such Option prior to such recapitalization or reorganization.
d. Modification of ISOs. Notwithstanding the foregoing, any adjustments
made pursuant to subparagraphs A, B or C with respect to ISOs shall be
made only after the Administrator, after consulting with counsel for
the Company, determines whether such adjustment would constitute a
"modification" of such ISOs (as that term is defined in Section 424(h)
of the Code) or would cause any adverse tax consequences for the
holders of such ISOs. If the Administrator determines that such
adjustments made with respect to ISOs would constitute a modification
of such ISOs, it may refrain from making such adjustments, unless the
holder of an ISO specifically requests in writing that such adjustment
be made and such writing indicates that the holder has full knowledge
of the consequences of such "modification" on his or her income tax
treatment with respect to the ISO.
17. ISSUANCES OF SECURITIES.
Except as expressly provided herein, no issuance by the Company of shares
of stock of any class, or securities convertible into shares of stock of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares subject to Options. Except as
expressly provided herein, no adjustments shall be made for dividends paid in
cash or in property (including without limitation, securities) of the Company.
18. FRACTIONAL SHARES.
No fractional share shall be issued under the Plan and the person
exercising such right shall receive from the Company cash in lieu of such
fractional share equal to the Fair Market Value thereof.
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19. CONVERSION OF ISOS INTO NON-QUALIFIED OPTIONS: TERMINATION OF ISOS.
The Administrator, at the written request of any optionee, may in its
discretion take such actions as may be necessary to convert such optionee's ISOs
(or any installments or portions of installments thereof) that have not been
exercised on the date of conversion into Non-Qualified Options at any time prior
to the expiration of such ISOs, regardless of whether the optionee is an
employee of the Company or an Affiliate at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of the appropriate installments of such Options. At
the time of such conversion, the Administrator (with the consent of the
optionee) may impose such conditions on the exercise of the resulting
Non-Qualified Options as the Administrator in its discretion may determine,
provided that such conditions shall not be inconsistent with this Plan. Nothing
in the Plan shall be deemed to give any optionee the right to have such
optionee's ISO's converted into Non-Qualified Options, and no such conversion
shall occur until and unless the Administrator takes appropriate action. The
Administrator, with the consent of the optionee, may also terminate any portion
of any ISO that has not been exercised at the time of such termination.
20. WITHHOLDING.
Upon the exercise of a Non-Qualified Option for less than its fair market
value, the making of a Disqualifying Disposition (as defined in paragraph 21) or
the vesting of restricted Common Stock acquired on the exercise of an Option
hereunder, the Company may withhold from the optionee's wages, if any, or other
remuneration, or may require the optionee to pay additional federal, state, and
local income tax withholding and employee contributions to employment taxes in
respect of the amount that is considered compensation includible in such
person's gross income. The Administrator in its discretion may condition the
exercise of an Option for less than its fair market value or the vesting of
restricted Common Stock acquired by exercising an Option on the grantee's
payment of such additional income tax withholding and employee contributions to
employment taxes.
21. NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION.
Each Key Employee who receives an ISO must agree to notify the Company in
writing immediately after the Key Employee makes a Disqualifying Disposition of
any shares acquired pursuant to the exercise of an ISO. A Disqualifying
Disposition is any disposition (including any sale) of such shares before the
later
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of (a) two years after the date the Key Employee was granted the ISO, or (b) one
year after the date the Key Employee acquired shares by exercising the ISO. If
the Key Employee has died before such stock is sold, these holding period
requirements do not apply and no Disqualifying Disposition can occur thereafter.
22. TERMINATION OF THE PLAN.
Except as provided in the following sentence, the Plan will terminate on
November 12, 2007. The Plan may be terminated at an earlier date by vote of the
stockholders of the Company provided, however, that any such earlier termination
will not affect any Options granted or Option Agreements executed prior to the
effective date of such termination.
23. AMENDMENT OF THE PLAN.
The Plan may be amended by the stockholders of the Company. The Plan may
also be amended by the Administrator, including, without limitation, to the
extent necessary to qualify any or all outstanding ISOs granted under the Plan
or ISOs to be granted under the Plan for favorable federal income tax treatment
(including deferral of taxation upon exercise) as may be afforded incentive
stock options under Section 422 of the Code, to the extent necessary to ensure
the compliance of the Plan with Rule 16b-3 under the 1934 Act, and to the extent
necessary to qualify the shares issuable upon exercise of any outstanding
options granted, or options to be granted, under the Plan for listing on any
national securities exchange or quotation in any national automated quotation
system of securities dealers. Any amendment approved by the Administrator which
is of a scope that requires stockholder approval in order to ensure favorable
federal income tax treatment for any incentive stock options or requires
stockholder approval in order to ensure the qualification of the Plan under Rule
16b-3 shall be subject to obtaining such stockholder approval. Any modification
or amendment of the Plan shall not, without the consent of an optionee,
adversely affect his or her rights under an option previously granted to him or
her. With the consent of the optionee affected, the Administrator may amend
outstanding option agreements in a manner not inconsistent with the Plan.
24. EMPLOYMENT OR OTHER RELATIONSHIP.
Nothing in this plan or any Option Agreement shall be deemed to prevent the
Company or an Affiliate from terminating the employment, consultancy or director
status of a Participant, nor to prevent a Participant from terminating his or
her own employment, consultancy or director status or to give any
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Participant a right to be retained in employment or other service by the Company
or any Affiliate for any period of time.
25. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the laws
of The Commonwealth of Massachusetts.
