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EXHIBIT 99.3
SECOND AMENDMENT TO
NEOMORPHIC, INC.
1998 STOCK OPTION PLAN
The 1998 Stock Option Plan of Neomorphic, Inc. is amended as follows:
SUBSECTION 5(d) IS AMENDED TO READ AS FOLLOWS:
5. (d) RIGHT TO EXERCISE. Each ISO shall become exercisable
and vest according to the terms and conditions established by the Board and
reflected in the written agreement evidencing the option (the "ISO Option
Agreement").
(i) Notwithstanding the preceding sentence, in the
event of an Ownership Change (as defined below), the surviving,
continuing, successor or purchasing corporation or parent corporation
thereof, as the case may be (the "Acquiring Corporation"), may either
assume the Company's rights and obligations under outstanding ISO
Option Agreements or substitute for outstanding ISO Option Agreements
substantially equivalent agreements with respect to the Acquiring
Corporation's stock.
(ii) Any ISO not so assumed or substituted shall be
immediately exercisable, and all unvested shares acquired upon exercise
of such ISO shall be vested in full as of the date ten (10) days prior
to the date of the Ownership Change. Any exercise or vesting that was
permissible solely by reason of an Ownership Change shall be
conditioned upon consummation of the Ownership Change. Any ISOs which
are neither assumed or substituted for by the Acquiring Corporation nor
exercised as of the date of the Ownership Change shall terminate and
cease to be outstanding effective as of the date of the Ownership
Change. Notwithstanding the foregoing, shares acquired upon exercise of
an ISO prior to the Ownership Change and any consideration received
pursuant to the Ownership Change with respect to such shares shall
continue to be subject to all applicable provisions of the ISO Option
Agreement or any agreement substituted for such ISO Option Agreement by
the Acquiring Corporation except as otherwise provided in such ISO
Option Agreement.
(iii) In the event a Recipient's Service is
terminated for any reason other than for Cause (as defined in
Subsection 5(h)(v)) after such assumption or substitution and within
one year of such Ownership Change, the ISO shall become immediately
exercisable and all unvested shares acquired upon exercise of such ISO
shall be vested in full as of the date on which Recipient's service
ends.
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For the purchases of this Plan, Ownership Change means any of
the following: (A) the direct or indirect sale or exchange in a single
or series of related transactions by the shareholders of the Company of
more than fifty percent (50%) of the voting stock of the Company; (B) a
merger of consolidation in which the Company is a party; (C) the sale,
exchange or transfer of all or substantially all of the assets of the
Company; or (D) a liquidation or dissolution of the Company.
Each ISO shall be subject to termination before its date of
expiration as provided in Subsection 5(h).
SUBSECTION 6(c) IS AMENDED TO READ AS FOLLOWS:
6. (c) RIGHT TO EXERCISE. Each NQSO shall become exercisable
and vest according to the terms and conditions established by the Board
and reflected in the written agreement evidencing the option (the "NQSO
Option Agreement").
(i) Notwithstanding the preceding sentence, in the
event of an Ownership Change (as defined below), the surviving,
continuing, successor or purchasing corporation or parent corporation
thereof, as the case may be (the "Acquiring Corporation"), may either
assume the Company's rights and obligations under outstanding NQSO
Option Agreements or substitute for outstanding NQSO Option Agreements
substantially equivalent agreements with respect to the Acquiring
Corporation's stock.
(ii) Any NQSO not so assumed or substituted shall be
immediately exercisable, and all unvested shares acquired upon exercise
of such NQSO shall be vested in full as of the date ten (10) days prior
to the date of the Ownership Change. Any exercise or vesting that was
permissible solely by reason of an Ownership Change shall be
conditioned upon consummation of the Ownership Change. Any NQSOs which
are neither assumed or substituted for by the Acquiring Corporation nor
exercised as of the date of the Ownership Change shall terminate and
cease to be outstanding effective as of the date of the Ownership
Change. Notwithstanding the foregoing, shares acquired upon exercise of
a NQSO prior to the Ownership Change and any consideration received
pursuant to the Ownership Change with respect to such shares shall
continue to be subject to all applicable provisions of the NQSO Option
Agreement or any agreement substituted for such NQSO Option Agreement
by the Acquiring Corporation except as otherwise provided in such NQSO
Option Agreement.
(iii) In the event a Recipient's Service is
terminated for any reason other than for Cause (as defined in
Subsection 6(g)(v)) after such assumption or substitution and within
one year of such Ownership Change, the NQSO shall become immediately
exercisable and all unvested shares acquired
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upon exercise of such NQSO shall be vested in full as of the date on
which Recipient's service ends.
For the purchases of this Plan, Ownership Change has the same
meaning given that term in Section 5(d). Each NQSO shall be subject to
termination before its date of expiration as provided in Subsection
6(g).
