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Exhibit 4.6
CHATHAM TECHNOLOGIES, INC.
STOCK OPTION PLAN
I. PURPOSE AND DEFINITIONS
A. PURPOSE OF THE PLAN
The Plan is intended to encourage ownership of Shares by Eligible
Employees and Key Non-Employees in order to attract and retain such
Eligible Employees in the employ of the Company or an Affiliate, or to
attract such Key Non-Employees to provide services to the Company or an
Affiliate, and to provide additional incentive for such persons to
promote the success of the Company or an Affiliate.
B. DEFINITIONS
Unless otherwise specified or unless the context otherwise requires, the
following terms, as used in this Plan, have the following meanings:
1. AFFILIATE means a corporation which, for purposes of Section 424
of the Code, is a parent or subsidiary of the Company, direct or
indirect.
2. BOARD means the Board of Directors of the Company.
3. CODE means the Internal Revenue Code of 1986, as amended.
4. COMMITTEE means the committee to which the Board delegates the
power to act under or pursuant to the provisions of the Plan, or
the Board if no committee is selected. If the Board delegates
powers to a committee, and if the Company is or becomes subject
to Section 16 of the Exchange Act, then, if necessary for
compliance therewith, such committee shall consist initially of
not less than two (2) members of the Board, each member of which
must be a "non-employee director," within the meaning of the
applicable rules promulgated pursuant to the Exchange Act. If the
Company is or becomes subject to Section 16 of the Exchange Act,
no member of the Committee shall receive any Option pursuant to
the Plan or any similar plan of the Company or any Affiliate
while serving on the Committee unless the Board determines that
the grant of such an Option satisfies the then current Rule 16b-3
requirements under the Exchange Act. Notwithstanding anything
herein to the contrary, and insofar as the Board determines that
it is necessary in order for compensation recognized by
Participants pursuant to the Plan to be fully deductible to the
Company for federal income tax purposes, each member of the
Committee also shall be an "outside director" (as defined in
regulations or
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other guidance issued by the Internal Revenue Service under Code
Section 162(m)).
5. COMMON STOCK means the common stock, $.01 par value, of the
Company.
6. COMPANY means Chatham Technologies, Inc., a Delaware corporation,
and includes any successor or assignee corporation or
corporations into which the Company may be merged, changed, or
consolidated; any corporation for whose securities the securities
of the Company shall be exchanged; and any assignee of or
successor to substantially all of the assets of the Company.
7. DISABILITY or DISABLED means permanent and total disability as
defined in Section 22(e)(3) of the Code.
8. ELIGIBLE EMPLOYEE means an employee of the Company or of an
Affiliate (including, without limitation, an employee who also is
serving as an officer or director of the Company or of an
Affiliate), designated by the Board or the Committee as being
eligible to be granted one or more Options under the Plan.
9. EXCHANGE ACT means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute thereto.
10. INCENTIVE OPTION means an Option which, when granted, is intended
to be an "incentive stock option," as defined in Section 422 of
the Code.
11. KEY NON-EMPLOYEE means a non-employee director, consultant, or
independent contractor of the Company or of an Affiliate who is
designated by the Board or the Committee as being eligible to be
granted one or more Options under the Plan.
12. NONSTATUTORY OPTION means an Option which, when granted, is not
intended to be an "incentive stock option," as defined in Section
422 of the Code.
13. OPTION means a right or option granted under the Plan.
14. OPTION AGREEMENT means an agreement between the Company and a
Participant executed and delivered pursuant to the Plan.
15. PARTICIPANT means an Eligible Employee to whom one or more
Incentive Options or Nonstatutory Options are granted under the
Plan, and a Key Non-Employee to whom one or more Nonstatutory
Options are granted under the Plan.
16. PLAN means this Stock Option Plan, as amended from time to time.
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17. SHARES means the authorized but unissued shares of the capital
stock of the Company as to which Options have been or may be
granted under the Plan.
II. SHARES SUBJECT TO THE PLAN
The aggregate number of Shares as to which Options may be granted from
time to time shall be ____________________________________________
(__________) Shares (subject to adjustment for stock splits, stock
dividends, and other adjustments described in Article VI hereof);
provided, however, that if the Company is or becomes a publicly held
corporation, as such term is defined under Section 162(m) of the Code,
the aggregate number of Shares as to which Options may be granted in any
calendar year to any one Eligible Employee shall not exceed
______________ (subject to adjustment for stock splits, stock dividends,
and other adjustments described in Article VI hereof).
Shares subject to Options that are forfeited, terminated, expire
unexercised, canceled by agreement of the Company and the Participant,
settled in cash in lieu of Common Stock or in such manner that all or
some of the Shares covered by such Options are not issued to a
Participant, or are exchanged for Options that do not involve Common
Stock, shall immediately become available for Options.
Subject to the provisions of Article VI, the aggregate number of Shares
as to which Incentive Options may be granted shall be subject to change
only by means of an amendment of the Plan duly adopted by the Company
and approved by the stockholders of the Company within one year before
or after the date of the adoption of any such amendment.
III. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Committee. A majority of the
Committee shall constitute a quorum at any meeting thereof (including by
telephone conference) and the acts of a majority of the members present,
or acts approved in writing by a majority of the entire Committee
without a meeting, shall be the acts of the Committee for purposes of
this Plan. The Committee may authorize one or more of its members or an
officer of the Company to execute and deliver documents on behalf of the
Committee. A member of the Committee shall not exercise any discretion
respecting himself or herself under the Plan. The Board shall have the
authority to remove, replace or fill any vacancy of any member of the
Committee upon notice to the Committee and the affected member. Any
member of the Committee may resign upon notice to the Board. The
Committee may allocate among one or more of its
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members, or may delegate to one or more of its agents, such duties and
responsibilities as it determines.
Subject to the provisions of the Plan, the Committee 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 Eligible Employees and which of the Eligible
Employees shall be granted Options;
C. determine the Key Non-Employees to whom Nonstatutory Options
shall be granted;
D. determine whether the Option to be granted shall be an Incentive
Option or Nonstatutory Option;
E. determine the number of Shares for which an Option or Options
shall be granted;
F. provide for the acceleration of the right to exercise an Option
(or portion thereof); and
G. specify the terms and conditions upon which Options may be
granted;
provided, however, that with respect to Incentive Options, all such
interpretations, rules, determinations, terms, and conditions shall be
made and prescribed in the context of preserving the tax status of the
Incentive Options as incentive stock options within the meaning of
Section 422 of the Code.
The Committee may delegate to the chief executive officer and to other
senior officers of the Company or its Affiliates its duties under the
Plan pursuant to such conditions or limitations as the Committee may
establish, except that only the Committee may select, and grant Options
to, Participants who are subject to Section 16 of the Exchange Act. All
determinations of the Committee shall be made by a majority of its
members. No member of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option.
IV. ELIGIBILITY FOR PARTICIPATION
The Committee may at any time and from time to time grant one or more
Options to one or more Eligible Employees or Key Non-Employees and may
designate the number of Shares to be subject to each Option so granted,
provided, however, that (i) each Participant receiving an Incentive
Option must be an Eligible Employee of the Company or of an Affiliate at
the time an Incentive Option is granted; (ii) no Incentive Options shall
be granted after the expiration of ten (10) years from the earlier of
the date of the adoption of the Plan by the Company or
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the approval of the Plan by the stockholders of the Company; (iii) the
fair market value of the Shares (determined at the time the Option is
granted) as to which Incentive Options are exercisable for the first
time by any Eligible Employee during any single calendar year (under the
Plan and under any other incentive option plan of the Company or an
Affiliate) shall not exceed $100,000 and (iv) in no event, may any Key
Non-Employee participate in the Plan if such participation is (a)
prohibited, or (b) restricted (either absolutely or subject to various
securities requirements, whether, legal or administrative, being
complied with), in the jurisdiction in which such Key Non-Employee is
resident under the relevant securities laws of that jurisdiction.
Provided Always That in the case of (b) above, the relevant Key
Non-Employee's participation in the Plan may be effected at the absolute
discretion of the Committee if compliance with the relevant securities
requirements of the jurisdiction in which such Key Non-Employee is
resident is not impractical (having regard to the nature of those
requirements) and would not involve undue expense.
Notwithstanding the foregoing, if the Company is or becomes subject to
Section 16 of the Exchange Act, then no individual who is a member of
the Committee shall be eligible to receive an Option, unless the Board
determines that the grant of the Option satisfies the then current Rule
16b-3 requirements under the Exchange Act. If the Company is not subject
to Section 16 of the Exchange Act, then no individual who is a member of
the Committee shall be eligible to receive an Option under the Plan
unless the granting of such Option shall be approved by the Committee,
with all of the members voting thereon being disinterested members. For
the purpose of this Article IV, a "disinterested member" shall be any
member who shall not then be, or at any time within the year prior
thereto have been, granted an Option under the Plan or any other plan of
the Company or an Affiliate, other than an Option granted under a
formula plan established by the Company or an Affiliate.
Notwithstanding any of the foregoing provisions, the Committee may
authorize the grant of an Option to a person not then in the employ of
or serving as a director, consultant, or independent contractor of the
Company or of an Affiliate, conditioned upon such person becoming
eligible to become a Participant at or prior to the execution of the
Option Agreement evidencing the actual grant of such option.
V. TERMS AND CONDITIONS OF OPTIONS
Each Option shall be set forth in an Option Agreement, duly executed on
behalf of the Company and by the Participant to whom such Option is
granted. Except for the setting of the Option price under Paragraph A,
no Option shall be granted and no purported grant of any Option shall be
effective until such Option Agreement shall have been duly executed on
behalf of the Company and by the Participant. Each such Option Agreement
shall be subject to at least the following terms and conditions:
A. OPTION PRICE
The exercise price of the Shares covered by each Option granted
under the Plan shall be determined by the Committee. In the case
of an Incentive Option, if the optionee owns directly or by
reason of the applicable attribution rules ten percent (10%) or
less of the total combined voting power of all classes of share
capital of the Company, the Option price (per share) of the
Shares covered by each Incentive Option shall be not less than
the "fair market value" of the Shares on the date of the grant of
the Incentive Option. In all other cases of Incentive Options,
the Option price shall be not less than one hundred ten percent
(110%) of the said fair market value on the date of grant. If the
Shares are listed on any national securities exchange, the fair
market value shall be
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the closing sales price, 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. If the Shares are not then listed on any
such exchange, the fair market value of such Shares shall be the
closing sales price if such is reported or otherwise the mean
average of the closing "Bid" and the closing "Ask" prices, if
any, as reported on the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") for 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 for which such quotations are reported. If the Shares are
not then either listed on any such exchange or quoted on 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. If the fair
market value cannot be determined under the preceding three
sentences, it shall be determined in good faith by the
Committee. In no event may the exercise price be less than the
par value of a share.
B. NUMBER OF SHARES
Each Option shall state the number of Shares to which it
pertains.
C. TERM OF OPTION
Each Incentive Option shall terminate not more than ten (10)
years from the date of the grant thereof, or at such earlier time
as the Option Agreement may provide, and shall be subject to
earlier termination as herein provided, except that if the Option
price is required under Paragraph A of this Article V to be at
least one hundred ten percent (110%) of fair market value, each
such Incentive Option shall terminate not more than five (5)
years from the date of the grant thereof, and shall be subject to
earlier termination as herein provided.
D. DATE OF EXERCISE
Upon the authorization of the grant of an Option, or at any time
thereafter, the Committee may, subject to the provisions of
Paragraph C of this Article V, prescribe the date or dates on
which the Option becomes exercisable, and may provide that the
Option rights become exercisable in installments over a period of
years, or upon the attainment of stated goals.
E. MEDIUM OF PAYMENT
The Option price shall be paid on the date of purchase specified
in the notice of exercise, as set forth in Paragraph I. It shall
be paid in such form (permitted by Section 422 of the Code in the
case of Incentive Options) as the Committee shall,
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either by rules promulgated pursuant to the provisions of Article
III of the Plan, or in the particular Option Agreement, provide.
F. TERMINATION OF EMPLOYMENT
1. A Participant who ceases to be an employee or Key
Non-Employee of the Company or of an Affiliate for any
reason other than death, Disability, or termination for
cause, may exercise any Option granted to such
Participant, to the extent that the right to purchase
Shares thereunder has become exercisable on the date of
such termination, but only within three (3) months after
such date, or, if earlier, within the originally
prescribed term of the Option, and subject to the
condition that no Option shall be exercisable after the
expiration of the term of the Option. A Participant's
employment shall not be deemed terminated by reason of a
transfer to another employer which is the Company or an
Affiliate.
2. A Participant who ceases to be an employee or Key
Non-Employee for cause shall, upon such termination, cease
to have any right to exercise any Option. For purposes of
this Plan, cause shall mean, in the Committee's
discretion, (i) in the case of an employee or Key
Non-Employee, if there is a written employment or
consulting agreement between the Participant and the
Company or any of its Affiliates, cause as defined in such
agreement, and (ii) in all other cases, the wrongful
appropriation of funds of the Company or an Affiliate,
divulging confidential information about the Company or an
Affiliate to the public, the commission of a gross
misdemeanor or felony, or the performance of any other
action that the Board or the Committee, in their sole
discretion, may deem to be sufficiently injurious to the
interests of the Company or an Affiliate to constitute
substantial cause for termination. The determination of
the Board or the Committee as to the existence of cause
shall be conclusive and binding upon the Participant and
the Company.
3. A Participant who is absent from work with the Company or
an Affiliate because of temporary disability (any
disability other than a permanent and total Disability as
defined at Paragraph B(6) of Article I hereof), or who is
on leave of absence for any purpose permitted by any
authoritative interpretation (i.e., regulation, ruling,
case law, etc.) of Section 422 of the Code, shall not,
during the period of any such absence, be deemed, by
virtue of such absence alone, to have terminated his
employment or relationship with the Company or with an
Affiliate, except as the Committee may otherwise expressly
provide or determine.
4. Paragraph F(1) shall control and fix the rights of a
Participant who ceases to be an employee or Key
Non-Employee of the Company or of an Affiliate for any
reason other than death, Disability, or termination for
cause, and who
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subsequently becomes Disabled or dies. Nothing in
Paragraphs G and H of this Article V shall be applicable
in any such case except that, in the event of such a
subsequent Disability or death within the three (3) month
period after the termination of employment or, if earlier,
within the originally prescribed term of the Option, the
Participant or the Participant's estate or personal
representative may exercise the Option permitted by this
Paragraph F, in the event of Disability, within twelve
(12) months after the date that the Participant ceased to
be an employee or Key Non-Employee of the Company or of an
Affiliate or, in the event of death, within twelve (12)
months after the date of death of such Participant.
G. TOTAL AND PERMANENT DISABILITY
A Participant who ceases to be an employee or Key Non-Employee of
the Company or of an Affiliate by reason of Disability may
exercise any Option granted to such Participant to the extent
that the right to purchase Shares thereunder has become
exercisable on or before the date such Participant becomes
Disabled as determined by the Committee.
A Disabled Participant, or his estate or personal representative,
shall exercise such rights, if at all, only within a period of
not more than twelve (12) months after the date that the
Participant became Disabled as determined by the Committee
(notwithstanding that the Participant might have been able to
exercise the Option as to some or all of the Shares on a later
date if the Participant had not become Disabled) or, if earlier,
within the originally prescribed term of the Option.
H. DEATH
In the event that a Participant to whom an Option has been
granted ceases to be an employee or Key Non-Employee of the
Company or of an Affiliate by reason of such Participant's death,
such Option, to the extent that the right is exercisable but not
exercised on the date of death, may be exercised by the
Participant's estate or personal representative within twelve
(12) months after the date of death of such Participant or, if
earlier, within the originally prescribed term of the Option,
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 the Participant were alive and had continued to be an
employee or Key Non-Employee of the Company or of an Affiliate.
I. EXERCISE OF OPTION AND ISSUE OF STOCK
Options shall be exercised by giving written notice to the
Company. Such written notice shall: (l) be signed by the person
exercising the Option, (2) state the number of Shares with
respect to which the Option is being exercised, (3) contain the
warranty required by paragraph M of this Article V, and (4)
specify a date (other than a
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Saturday, Sunday or legal holiday) not less than five (5), as
the date on which the Shares will be purchased. Such tender and
conveyance shall take place at the principal office of the
Company during ordinary business hours, or at such other hour and
place agreed upon by the Company and the person or persons
exercising the Option. On the date specified in such written
notice (which date may be extended by the Company in order to
comply with any law or regulation which requires the Company to
take any action with respect to the Option Shares prior to the
issuance thereof, whether pursuant to the provisions of Article
VI or otherwise), the Company shall accept payment for the Option
Shares in cash, by bank or certified check, by wire transfer, or
by such other means as may be approved by the Committee and shall
deliver to the person or persons exercising the Option in
exchange therefor an appropriate certificate or certificates for
fully paid non-assessable Shares.
If approved in advance by the Committee, payment in full or in
part also may be made (i) by the execution and delivery of a note
or other evidence of indebtedness (and any security agreement
thereunder) satisfactory to the Committee; (ii) by the delivery
of cash or the extension of credit by a broker-dealer to whom the
Participant has submitted a notice of exercise or otherwise
indicated an intent to exercise an Option (in accordance with
part 220, Chapter II, Title 12 of the Code of Federal
Regulations, a so-called "cashless" exercise); or (iii) by any
combination of the foregoing.
J. RIGHTS AS A STOCKHOLDER
No Participant to whom an Option has been granted shall have
rights as a stockholder with respect to any Shares covered by
such Option except as to such Shares as have been issued to or
registered in the Company's share register in the name of such
Participant upon the due exercise of the Option and tender of the
full Option price.
K. ASSIGNABILITY AND TRANSFERABILITY OF OPTION
Unless otherwise permitted by the Code and by Rule 16b-3 of the
Exchange Act, if applicable, and approved in advance by the
Committee, an Option granted to a Participant shall not be
transferable by the Participant and shall be exercisable, during
the Participant's lifetime, only by such Participant or, in the
event of the Participant's incapacity, his guardian or legal
representative. Except as otherwise permitted herein, 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
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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 Paragraph
K, or the levy of any attachment or similar process upon an
Option or such rights, shall be null and void.
L. OTHER PROVISIONS
The Option Agreement for an Incentive Option shall contain such
limitations and restrictions upon the exercise of the Option as
shall be necessary in order that such Option can be an "incentive
stock option" within the meaning of Section 422 of the Code.
Further, the Option Agreements authorized under the Plan shall be
subject to such other terms and conditions including, without
limitation, restrictions upon the exercise of the Option, as the
Committee shall deem advisable and which, in the case of
Incentive Options, are not inconsistent with the requirements of
Section 422 of the Code.
M. PURCHASE FOR INVESTMENT
Unless 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
Company shall be under no obligation to issue the Shares covered
by such exercise unless and until the following conditions have
been fulfilled. In accordance with the direction of the
Committee, the persons who exercise such Option shall warrant to
the Company that, at the time of such exercise, such persons are
acquiring their Option Shares for investment and not with a view
to, or for sale in connection with, the distribution of any such
Shares, and shall make such other representations, warranties,
acknowledgments and affirmations, if any, as the Committee may
require. In such event, the persons acquiring such Shares shall
be bound by the provisions of the following legend (or similar
legend) which shall be endorsed upon the certificate(s)
evidencing their Option Shares issued pursuant to such exercise.
"The shares represented by this certificate have been
acquired 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 for
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."
"The shares of stock represented by this certificate are
subject to the terms and conditions of either a certain
Option Agreement dated as of _________, 19__, among the
Company and certain of its optionees, or a certain
Shareholders' Agreement dated as of _________, 19__, among
the Company and certain shareholders. A copy of the
applicable Agreement is on file in the office of the
Secretary of the Company. The applicable Agreement
provides, among
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other things, for restrictions upon the holder's right to
transfer the shares represented hereby; and for certain
prior rights to purchase and certain obligations to sell
the shares of common stock evidenced by this certificate
at a designated purchase price determined in accordance
with certain procedures. Any attempted transfer of these
shares other than in compliance with the applicable
Agreement shall be void and of no effect. By accepting the
shares of stock evidenced by this certificate, any
permitted transferee agrees to be bound by all of the
terms and conditions of said Agreement."
Without limiting the generality of the foregoing, the Company may
delay issuance of the Shares until completion of any action or
obtaining any consent that the Company deems necessary under any
applicable law (including without limitation state securities or
"blue sky" laws).
VI. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; SALE OF COMPANY
In the event that the outstanding Shares of the Company are 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 any
reorganization, merger, consolidation, recapitalization,
reclassification, change in par value, stock split-up, combination of
shares or dividend payable in capital stock, or the like, the Company
shall make adjustments to such Options (including, by way of example and
not by way of limitation, the grant of substitute options under the Plan
or under the plan of such other corporation) as it may determine to be
appropriate under the circumstances, and, in addition, appropriate
adjustments shall be made in the number and kind of shares and in the
option price per share subject to outstanding options under the Plan or
under the plan of such successor corporation. No such adjustment shall
be made which shall, within the meaning of Section 424 of the Code,
constitute such a modification, extension, or renewal of an option as to
cause the adjustment to be considered as the grant of a new option.
Notwithstanding anything herein to the contrary, the Company may, in its
sole discretion, accelerate the timing of the exercise provisions of any
Option in the event of (i) the adoption of a plan of merger or
consolidation under which all the Shares of the Company would be
eliminated, or (ii) a sale of all or substantially all of the Company's
assets or Shares. Alternatively, the Company may, in its sole
discretion, cancel any or all Options upon any of the foregoing events
and provide for the payment to Participants in cash of an amount equal
to the difference between the Option price and the price of a Share, as
determined in good faith by the Committee, at the close of business on
the date of such event, multiplied by the number of Shares subject to
Option so canceled.
Upon a business combination by the Company or any of its Affiliates with
any corporation or other entity through the adoption of a plan of merger
or consolidation or a share exchange or through the purchase of all or
substantially all of the capital stock or assets of such other
corporation or entity, the Board or the Committee may, in its sole
discretion, grant Options
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pursuant hereto to all or any persons who, on the effective date of such
transaction, hold outstanding options to purchase securities of such
other corporation or entity and who, on and after the effective date of
such transaction, will become employees or directors of, or consultants
to, the Company or its Affiliates. The number of Shares subject to such
substitute Options shall be determined in accordance with the terms of
the transaction by which the business combination is effected.
Notwithstanding the other provisions of this Plan, the other terms of
such substitute Options shall be substantially the same as or
economically equivalent to the terms of the options for which such
Options are substituted, all as determined by the Board or by the
Committee, as the case may be. Upon the grant of substitute Options
pursuant hereto, the options to purchase securities of such other
corporation or entity for which such Options are substituted shall be
canceled immediately.
VII. DISSOLUTION OR LIQUIDATION OF THE COMPANY
Upon the dissolution or liquidation of the Company other than in
connection with a transaction to which the preceding Article VI is
applicable, all Options granted hereunder shall terminate and become
null and void; provided, however, that if the rights of a Participant
under the applicable Options have not otherwise terminated and expired,
the Participant shall have the right immediately prior to such
dissolution or liquidation to exercise any Option granted hereunder to
the extent that the right to purchase shares thereunder has become
exercisable as of the date immediately prior to such dissolution or
liquidation.
VIII. TERMINATION OF THE PLAN
The Plan shall terminate (10) years from the earlier of the date of its
adoption or the date of its approval by the stockholders. The Plan may
be terminated at an earlier date by vote of the stockholders or the
Board; provided, however, that any such earlier termination shall not
affect any Options granted or Option Agreements executed prior to the
effective date of such termination. Except as may otherwise be provided
for under Articles VI and VII, and notwithstanding the termination of
the Plan, any Options granted prior to the effective date of the Plan's
termination may be exercised until the earlier of (i) the date set forth
in the Option Agreement, or (ii) ten (10) years from the date the Option
is granted, and the provisions of the Plan with respect to the full and
final authority of the Committee under the Plan shall continue to
control.
IX. AMENDMENT OF THE PLAN
The Plan may be amended by the Board and such amendment shall become
effective upon adoption by the Board; provided, however, that any
amendment shall be subject to the approval of the stockholders of the
Company at or before the next annual meeting of the stockholders of the
Company if such stockholder approval is required by the Code, any
federal or state law or regulation, the rules of any stock exchange or
automated quotation system on which the Shares may be listed or quoted,
or if the Board, in its discretion, determines to submit such changes to
the Plan to its stockholders for approval.
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X. EMPLOYMENT RELATIONSHIP
Nothing herein contained shall be deemed to prevent the Company or an
Affiliate from terminating the employment of a Participant, nor to
prevent a Participant from terminating the Participant's employment with
the Company or an Affiliate.
XI. INDEMNIFICATION OF COMMITTEE
In addition to such other rights of indemnification as they may have as
directors or as members of the Committee, the members of the Committee
shall, to the extent permitted under Singapore laws, be indemnified by
the Company against all reasonable expenses, including attorneys' fees,
actually and reasonably incurred in connection with the defense of any
action, suit or proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any action taken
by them as members of the Committee and against all amounts paid by them
in settlement thereof (provided such settlement is approved by
independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any such action, suit or proceeding,
except in relation to matters as to which it shall be adjudged in such
action, suit or proceeding that the Committee member is liable for gross
negligence or willful misconduct in the performance of his or her
duties. To receive such indemnification, a Committee member must first
offer in writing to the Company the opportunity, at its own expense, to
defend any such action, suit or proceeding.
XII. MITIGATION OF EXCISE TAX
If any payment or right accruing to a Participant under this Plan
(without the application of this Article XII), either alone or together
with other payments or rights accruing to the Participant from the
Company or an Affiliate ("Total Payments"), would constitute a
"parachute payment" (as defined in Section 280G of the Code and
regulations thereunder), such payment or right shall be reduced, either
under this Plan or under any other agreement providing for such other
payments or rights, to the largest amount or greatest right that will
result in no portion of the amount payable or right accruing under the
Plan being subject to an excise tax under Section 4999 of the Code or
being disallowed as a deduction under Section 280G of the Code. The
determination of whether any reduction in the rights or payments under
this Plan is to apply shall be made by the Company. The Participant
shall cooperate in good faith with the Company in making such
determination and providing any necessary information for this purpose.
XIII. SAVINGS CLAUSE
This Plan is intended to comply in all respects with applicable law and
regulations, including, (i) with respect to those Participants who are
officers or directors for purposes of Section 16 of the Exchange Act,
Rule 16b-3 of the Securities and Exchange Commission, if applicable, and
(ii) with respect to executive officers, Code Section 162(m). In case
any one or more
<PAGE> 14
provisions of this Plan shall be held invalid, illegal, or unenforceable
in any respect under applicable law and regulation (including Rule 16b-3
and Code Section 162(m)), the validity, legality, and enforceability of
the remaining provisions shall not in any way be affected or impaired
thereby and the invalid, illegal, or unenforceable provision shall be
deemed null and void; however, to the extent permitted by law, any
provision that could be deemed null and void shall first be construed,
interpreted, or revised retroactively to permit this Plan to be
construed in compliance with all applicable law (including Rule 16b-3
and Code Section 162(m)) so as to foster the intent of this Plan.
Notwithstanding anything herein to the contrary, with respect to
Participants who are officers and directors for purposes of Section 16
of the Exchange Act, no grant of an Option to purchase Shares shall
permit unrestricted ownership of Shares by the Participant for at least
six (6) months from the date of the grant of such Option, unless the
Board determines that the grant of such Option to purchase Shares
otherwise satisfies the then current Rule 16b-3 requirements.
XIV. WITHHOLDING
Except as otherwise provided by the Committee,
A. The Company shall have the power and right to deduct or withhold,
or require a Participant to remit to the Company, an amount
sufficient to satisfy the minimum federal, state, and local taxes
required by law to be withheld with respect to any grant,
exercise, or payment made under or as a result of this Plan; and
B. In the case of any taxable event hereunder, a Participant may
elect, subject to the approval in advance by the Committee, to
satisfy the withholding requirement, if any, in whole or in part,
by having the Company withhold Shares of Common Stock that would
otherwise be transferred to the Participant having a Fair Market
Value, on the date the tax is to be determined, equal to the
minimum marginal tax that could be imposed on the transaction.
All elections shall be made in writing and signed by the
Participant.
XV. EFFECTIVE DATE
This Plan shall become effective upon adoption by the Board, provided
that within one (1) year before or after such adoption by the Board (or
within such earlier time period as may be required by the Exchange Act,
if applicable) the Plan is approved by the stockholders of the Company.
If such approval is not obtained, then this Plan and all Options granted
hereunder shall be null and void ab initio.
XVI. GOVERNING LAW
This Plan shall be governed by the laws of the State of Delaware and
construed in accordance therewith.
<PAGE> 15
Adopted this 8th day of November, 1999.
<PAGE> 16
CHATHAM TECHNOLOGIES, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is made this ____________ day of _________________
between Chatham Technologies, Inc., a Delaware corporation (the "COMPANY"), and
______________ (the "EMPLOYEE").
WHEREAS, the Company desires to grant to the Employee an option to
purchase shares of its common capital stock (the "SHARES") under the Company's
Stock Option Plan (the "PLAN") which has been (or will, within one year after
its adoption be) approved by its stockholders; and
WHEREAS, the Company and the Employee understand and agree that any
terms used herein have the same meanings as in the Plan (the Employee being
referred to in the Plan as a "PARTICIPANT").
NOW, THEREFORE, in consideration of the following mutual covenants and
for other good and valuable consideration, the parties agree as follows:
1. GRANT OF INCENTIVE OPTION
In consideration of the sum of $1 paid by the option holder to the
Company (the receipt, adequacy and sufficiency of which the Company
hereby acknowledges), the Company hereby grants to the Employee the
right and option to purchase all or any part of an aggregate of
_____________ Shares (the "OPTION") on the terms and conditions and
subject to all the limitations set forth herein and in the Plan; which
is incorporated herein--by reference: The Employee acknowledges receipt
of a copy of the Plan and acknowledges that the definitive records
pertaining to the grant of this Option, and exercises of rights
hereunder, shall be retained by the Company. The Option granted herein
is intended to qualify as an incentive stock option as defined in
Section 422 of the Internal Revenue Code of 1986, as amended.
2. PURCHASE PRICE
The purchase price of the Shares subject to the Option shall be
_____________________ Dollars ($_____________) per Share, the fair
market value of the Shares as of the date of grant.
3. EXERCISE OF OPTION
Subject to the Plan and this Agreement, the Option shall be exercisable
as follows:
<PAGE> 17
EXERCISE PERIOD
<TABLE>
<CAPTION>
Commencement Expiration
Number of Shares Date Date
---------------- ------------ ----------
<S> <C> <C>
</TABLE>
4. EXERCISE OF OPTION AND ISSUANCE OF STOCK
The Option may be exercised in whole or in part (to the extent that it
is exercisable in accordance with its terms) by giving written notice
(or any other approved form of notice) to the Company. 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, shall contain the warranty, if any, required under the Plan
and shall specify a date (other than a Saturday, Sunday or legal
holiday) as the date on which the Shares will be purchased, at the
principal office of the Company during ordinary business hours, or at
such other hour and place agreed upon by the Company and the person or
persons exercising the Option, and shall otherwise comply with the terms
and conditions of this Agreement and the Plan. On the date specified in
such written notice (which date, may be extended by the Company, if any
law or regulation requires the Company to take any action with respect
to the Option Shares prior to the issuance thereof); the Company shall
accept payment for the Option Shares and shall deliver to the Employee
an appropriate certificate or certificates for the Shares as to which
the Option was exercised.
The Option price of any Shares shall be payable at the time of exercise
as determined by the Company in its sole discretion either:
(1) in cash, by certified check or bank check, or by wire
transfer; or
(2) in any other manner permitted under Paragraph I of Article
V of the Plan; or
(3) any combination of (1) or (2) above.
The Company shall pay all original issue taxes with respect to the
issuance of Shares pursuant hereto and all other fees and expenses
necessarily incurred by the Company in connection therewith. The holder
of this Option shall have the rights of a stockholder only with respect
to those Shares covered by the Option, which have been registered in the
holder's name in the share register of the Company upon the due exercise
of the Option.
5. NON-ASSIGNABILTTY
This Option shall not be transferable by the Employee and shall be
exercisable only by the Employee, except as the Plan may otherwise
provide.
<PAGE> 18
6. NOTICES
Any notices required or permitted by the terms of this Agreement or the
Plan shall be given by registered or certified mail, return receipt
requested, addressed as follows:
To the Company: Chatham Technologies, Inc.
12221 Merit Drive, Suite 400
Dallas, Texas 75251
To the Employee:
___________________________
___________________________
___________________________
or to such other address or addresses of which notice in the same manner
has previously been given. Any such notice shall be deemed to have been
given when mailed in accordance with the foregoing provisions.
7. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the
laws of the State of Delaware.
8. BINDING EFFECT
This Agreement shall (subject to the provisions of Section 5 hereof) be
binding upon the heirs, executors, administrators, successors and
assigns of the parties hereto.
IN WITNESS WHEREOF, the Company and Employee have caused this Agreement to be
executed on their behalf, by their duly authorized representatives, all on the
day and year first above written.
CHATHAM TECHNOLOGIES, INC.
By:
___________________________________
Its:
__________________________________
______________________________________
Employee
<PAGE> 19
CHATHAM TECHNOLOGIES, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
THIS AGREEMENT is made this ____ day of ________________ between Chatham
Technologies, Inc., a Delaware corporation (the "COMPANY"), and
__________________ (the "OPTIONEE").
WHEREAS, the Company desires to grant to the Optionee an option to
purchase shares of its common capital stock (the "SHARES") under the Company's
Stock Option Plan (the "PLAN"); and
WHEREAS, the Company and the Optionee understand and agree that any
terms used herein have the same meanings as in the Plan (the Optionee being
referred to in the Plan as a "PARTICIPANT").
NOW, THEREFORE, in consideration of the following mutual covenants and
for other good and valuable consideration, the parties agree as follows:
1. GRANT OF OPTION
In consideration of the sum of $1 paid by the option holder to the
Company (the receipt, adequacy and sufficiency of which the Company
hereby acknowledges), the Company hereby grants to the Optionee the
right and option to purchase all or any part of an aggregate of
____________ Shares (the "OPTION") on the terms and conditions and
subject to all the limitations set forth herein and in the Plan, which
is incorporated herein by reference. The Optionee acknowledges receipt
of a copy of the Plan and acknowledges that the definitive records
pertaining to the grant of this Option, and exercises of rights
hereunder, shall be retained by the Company. The Option granted herein
is intended to be a Nonstatutory Option as defined in the Plan.
2. PURCHASE PRICE
The purchase price of the Shares subject to the Option shall be
_____________ Dollars ($_______) per Share.
3. EXERCISE OF OPTION
Subject to the Plan and this Agreement, the Option shall be exercisable
as follows:
EXERCISE PERIOD
<TABLE>
<CAPTION>
Commencement Expiration
Number of Shares Date Date
---------------- ------------ ----------
<S> <C> <C>
</TABLE>
<PAGE> 20
4. EXERCISE OF OPTION AND ISSUANCE OF STOCK
The Option may be exercised in whole or in part (to the extent that it
is exercisable in accordance with its terms) by giving written notice
(or any other approved form of notice) to the Company. 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, shall contain the warranty, if any, required under the Plan
and shall specify a date (other than a Saturday, Sunday or legal
holiday) as the date on which the Shares will be purchased, at the
principal office of the Company during ordinary business hours, or at
such other hour and place agreed upon by the Company and the person or
persons exercising the Option, and shall otherwise comply with the terms
and conditions of this Agreement and the Plan. On the date specified in
such written notice (which date may be extended by the Company if any
law or regulation requires the Company to take any action with respect
to the Shares prior to the issuance thereof), the Company shall accept
payment for the Shares and shall deliver to the Optionee an appropriate
certificate or certificates for the shares as to which the Option was
exercised.
The Option price of any Shares shall be payable at the time of exercise
as determined by the Company in its sole discretion either:
(1) in cash, by certified check or bank check, or by wire
transfer; or
(2) in any other manner permitted under Paragraph I of Article
V of the Plan; or
(3) any combination of (1) or (2) above.
The Company shall pay all original issue taxes with respect to the
issuance of Shares pursuant hereto and all other fees and expenses
necessarily incurred by the Company in connection therewith. The holder
of this Option shall have the rights of a stockholder only with respect
to those Shares covered by the Option which have been registered in the
holder's name in the share register of the Company upon the due exercise
of the Option.
5. NON-ASSIGNABILITY
This Option shall not be transferable by the Optionee and shall be
exercisable only by the Optionee, except as the Plan may otherwise
provide.
6. NOTICES
Any notices required or permitted by the terms of this Agreement or the
Plan shall be given by registered or certified mail, return receipt
requested, addressed as follows:
<PAGE> 21
To the Company: Chatham Technologies, Inc.
12221 Merit Drive, Suite 400
Dallas, Texas 75251
To the Optionee:
___________________________
___________________________
___________________________
or to such other address or addresses of which notice in the same manner
has previously been given. Any such notice shall be deemed to have been
given when mailed in accordance with the foregoing provisions.
7. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the
laws of the State of Delaware.
8. BINDING EFFECT
This Agreement shall (subject to the provisions of Section 5 hereof) be
binding upon the heirs, executors, administrators, successors and
assigns of the parties hereto.
IN WITNESS WHEREOF, the Company and the Optionee have caused this Agreement to
be executed on their behalf, by their duly authorized representatives, all on
the day and year first above written.
CHATHAM TECHNOLOGIES, INC.
By:
________________________________________
Its:
_______________________________________
___________________________________________
Optionee
