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EXHIBIT 10.32
ANCHOR GAMING
2000 STOCK INCENTIVE PLAN
1. ESTABLISHMENT, PURPOSE AND TERM OF PLAN.
1.1 ESTABLISHMENT. This Anchor Gaming 2000 Stock Incentive Plan (the
"Plan") is hereby established effective as of September 24, 2000, 2000. The
Company previously established the Anchor Gaming 1995 Employee Stock Option Plan
("1995 Plan"); the 1995 Plan shall remain in effect solely with respect to any
options outstanding hereunder as of the effective date of this Plan.
1.2 PURPOSE. The purpose of the Plan is to advance the interests of the
Company and its stockholders by providing an incentive to attract, retain and
reward persons performing services for the Company and by motivating such
persons to contribute to the growth and profitability of the Company.
1.3 TERM OF PLAN. The Plan will continue in effect until the earlier of
its termination by the Board or the date on which all of the shares of Stock
available for issuance under the Plan have been issued and all restrictions on
such shares under the terms of the Plan and the agreements evidencing Options
and Restricted Stock granted under the Plan have lapsed. However, any Incentive
Stock Options must be granted within ten years after the earlier of the date the
Plan is adopted by the Board or the date the Plan is duly approved by the
stockholders of the Company.
2. DEFINITIONS AND CONSTRUCTION.
2.1 DEFINITIONS. Whenever used herein, the following terms will have their
respective meanings set forth below:
(a) "Board" means the Board of Directors of the Company. If one or more
Committees have been appointed by the Board to administer the Plan, "Board"
also means such Committee(s).
(b) "Cause" means that the Board reasonably finds that any one or
more of the following events has occurred: (i) performance by Participant
of illegal or fraudulent acts, criminal conduct, or willful misconduct
relating to the activities of the Company, including, without limit,
violation by Participant of any material gaming laws or regulations,
which violation materially and adversely affects the ability of
Participant to perform his duties to the Company or may subject the
Company to liability; (ii) conviction of, or nolo contendere plea by
Participant to, any criminal acts involving moral turpitude having a
material adverse effect upon the Company, including, without limitation,
upon its profitability, reputation, or goodwill; (iii) willful and
material disregard of any reasonable directive(s) from the Board that are
not inconsistent with the terms of any contract with the Company to which
Participant is party, PROVIDED that the Board will provide Participant
with written notice that such event has occurred ("NOTICE OF DISREGARD")
and will further allow Participant 30 days in which to cure such
disregard, and PROVIDED FURTHER that the Board will provide an
opportunity for Participant to be heard if there is no cure within 30 days
of the Notice of Disregard; (iv) breach of fiduciary duty, PROVIDED
that the Board will provide Participant with written notice that such
event has occurred ("NOTICE OF BREACH OF FIDUCIARY DUTY") and will
further allow Participant 30 days in which to cure such breach of
fiduciary duty, and PROVIDED FURTHER that the Board will allow an
opportunity for Participant to be heard if there is no cure within 30 days
of the Notice of Breach of Fiduciary Duty; (v) material violation, not
cured in a reasonable time after notice from the Company, by Participant
of any of the covenants and agreements contained in any agreement with
the Company to which Participant is party; (vi) failure or inability of
Participant to obtain or maintain required gaming licenses or approvals.
(c) "Change of Control" means the occurrence of any of the following
events, as a result of one transaction or a series of transactions: (i) any
"person" (as that term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended, (the "Exchange Act"), but excluding the
Company, its affiliates, and any qualified or non-qualified plan maintained
by the Company or its affiliates) becomes the "beneficial owner" (as defined
in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly,
of securities of the Anchor Gaming representing more than 50% of the
combined voting power of the Anchor Gaming's then outstanding securities;
(ii) individuals who constitute a majority of the Board of Directors of the
Company immediately prior to a contested election for positions on the Board
cease to constitute a majority as a result of such contested election;
(iii) Anchor Gaming is combined (by merger, share exchange, consolidation,
or otherwise) with another entity and as a result of such combination, less
than 50% of the outstanding securities of the surviving or resulting entity
are owned in the aggregate by the former shareholders of Anchor Gaming;
(iv) the Company sells, leases, or otherwise transfers all or a majority of
all of its properties,
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assets or income or revenue generating capacity to another person or entity;
(v) a dissolution or liquidation of Anchor Gaming or; (vi) any other
transaction or series of transactions is consummated that results in a
required disclosure under Item 1 of Form 8-K or successor form.
(d) "Code" means the Internal Revenue Code of 1986, as amended, and any
applicable regulations promulgated thereunder.
(e) "Committee" means the Compensation Committee or other committee of
the Board duly appointed to administer the Plan and having such powers as
may be specified by the Board. Unless the powers of the Committee have been
specifically limited, the Committee will have all of the powers of the Board
granted herein, including, without limitation, the power to amend or
terminate the Plan at any time, subject to the terms of the Plan and any
applicable limitations imposed by law. The Committee may appoint a
subcommittee of two or more outside directors as defined for purposes of
Section 162(m)(4)(C) of the Code (the "Outside Directors Committee"). The
Outside Directors Committee, if appointed, will have the exclusive authority
to approve grants under the Plan to the chief executive officer of the
Company and to other executive officers whose compensation may otherwise
exceed the deduction limit of Section 162(m) of the Code. Grants approved by
the Outside Directors Committee will be subject to ratification by the
Committee as a whole or by the Board if the appointment of the Committee so
provides.
(f) "Company" means Anchor Gaming, a Nevada corporation, or any
successor corporation thereto.
(g) "Consultant" means any person, including an advisor, engaged by a
Participating Company to render services other than as an Employee or a
Director.
(h) "Director" means a member of the Board or of the board of directors
of any other Participating Company.
(i) "Disability" means any medically determinable physical or mental
impairment that, in the opinion of the Board, based upon medical reports and
other evidence satisfactory to the Board, can reasonably be expected to
prevent a Participant from performing substantially all of the Participant's
customary duties of employment for a continuous period of not less than
12 months so as to be disabled within the meaning of Section 22(e)(3) of the
Code.
(j) "Employee" means any person treated as an employee (including an
officer or a Director who is also treated as an employee) in the records of
a Participating Company and, with respect to any Incentive Stock Option
granted to such person, who is an employee for purposes of Section 422 of
the Code; PROVIDED, HOWEVER, that neither service as a Director nor payment
of a director's fee will be sufficient to constitute employment for purposes
of the Plan.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(l) "Fair Market Value" means, as of any date, the value of a share of
Stock or other property as determined by the Board, in its discretion, or by
the Company, in its discretion, if such determination is expressly allocated
to the Company herein, subject to the following:
(i) If, on such date, the Stock is listed on a national or regional
securities exchange or market system, the Fair Market Value of a share of
Stock will be the closing price of a share of Stock (or the mean of the
closing bid and asked prices of a share of Stock if the Stock is so
quoted instead) as quoted on the Nasdaq National Market, The Nasdaq
SmallCap Market or such other national or regional securities exchange or
market system constituting the primary market for the Stock, as reported
in THE WALL STREET JOURNAL or such other source as the Company deems
reliable. If the relevant date does not fall on a day on which the Stock
has traded on such securities exchange or market system, the date on
which the Fair Market Value will be established will be the last day on
which the Stock was so traded prior to the relevant date, or such other
appropriate day as may be determined by the Board, in its discretion.
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(ii) If, on such date, there is no public market for the Stock, the
Fair Market Value of a share of Stock will be as determined by the Board
in good faith without regard to any restriction other than a restriction
that, by its terms, will never lapse.
(m) "Incentive Stock Option" means an Option designated in the Option
Agreement as an incentive stock option within the meaning of Section 422(b)
of the Code.
(n) "Insider" means an officer or a Director of the Company or any other
person whose transactions in Stock are subject to Section 16 of the Exchange
Act.
(o) "Nonstatutory Stock Option" means an Option designated in the Option
Agreement as not an Incentive Stock Option.
(p) "Non-Exempt Employee" means an Employee who is not exempt from the
overtime pay provisions of the Fair Labor Standards Act of 1938, as amended.
(q) "Option" means a right to purchase Stock (subject to adjustment as
provided in Section 4.2) pursuant to the terms and conditions of the Plan.
An Option may be either an Incentive Stock Option or a Nonstatutory Stock
Option.
(r) "Option Agreement" means a written agreement between the Company and
a Participant setting forth the terms, conditions and restrictions of the
Option granted to the Participant and any shares of Stock acquired upon the
exercise thereof.
(s) "Parent Corporation" means any present or future "parent
corporation" of the Company, as defined in Section 424(e) of the Code.
(t) "Participant" means any person who receives an Option or Restricted
Stock pursuant to the Plan.
(u) "Participating Company" means the Company or any Parent Corporation
or Subsidiary Corporation.
(v) "Participating Company Group" means, at any point in time, all
corporations collectively that are then Participating Companies.
(w) "Restricted Stock" means Stock awarded to a Participant pursuant to
Section 8 of the Plan.
(x) "Restricted Stock Agreement" means a written agreement between the
Company and a Participant setting forth the terms, conditions and
restrictions of the Restricted Stock granted to the Participant.
(y) "Rule 16b-3" means Rule 16b-3 under the Exchange Act, as amended
from time to time, or any successor rule or regulation.
(z) "Securities Act" means the Securities Act of 1933, as amended.
(aa) "Service" means a Participant's employment or service with the
Participating Company Group, whether in the capacity of an Employee, a
Director or a Consultant. The Participant's Service may not be deemed to
have terminated merely because of a change in the capacity in which the
Participant renders Service to the Participating Company Group or a change
in the Participating Company for which the Participant renders such Service,
provided that there is no interruption or termination of the Participant's
Service. Furthermore, a Participant's Service with the Participating Company
Group may not be deemed to have terminated if the Participant takes any
military leave, sick leave, or other bona fide leave of absence approved by
the Company; PROVIDED, HOWEVER, that if any such leave exceeds 90 days, on
the 91st day of such leave the Participant's Service will be deemed to have
terminated unless the Participant's right to return to Service with the
Participating Company Group is guaranteed by statute or contract.
Notwithstanding the foregoing, unless otherwise designated by the Company or
required by law, a leave of absence may not be treated as Service for
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purposes of determining vesting under the Participant's Option Agreement.
The Participant's Service will be deemed to have terminated either upon an
actual termination of Service or upon the corporation for which the
Participant performs Service ceasing to be a Participating Company. Subject
to the foregoing, the Company, in its discretion, will determine whether the
Participant's Service has terminated and the effective date of such
termination.
(bb) "Stock" means the common stock of the Company, $.01 par value per
share, as adjusted from time to time in accordance with Section 4.2.
(cc) "Stock Appreciation Right" means a right granted to the holder of a
Nonstatutory Stock Option pursuant to Section 7 of the Plan.
(dd) "Subsidiary Corporation" means any present or future "subsidiary
corporation" of the Company, as defined in Section 424(f) of the Code.
(ee) "Ten Percent Owner Optionee" means a Participant who, at the time an
Option is granted to the Participant, owns stock possessing more than 10% of
the total combined voting power of all classes of stock of a Participating
Company within the meaning of Section 422(b)(6) of the Code.
2.2 CONSTRUCTION. Captions and titles contained herein are for convenience
only and do not affect the meaning or interpretation of any provision of the
Plan. Except when otherwise indicated by the context, the singular includes the
plural and the plural includes the singular. Use of the term "or" is not
intended to be exclusive, unless the context clearly requires otherwise.
3. ADMINISTRATION.
3.1 ADMINISTRATION BY THE BOARD. The Plan will be administered by the
Board. All questions of interpretation of the Plan or of any Option or
Restricted Stock will be determined by the Board, and such determinations will
be final and binding upon all persons having an interest in such Option or
Restricted Stock under the Plan.
3.2 AUTHORITY OF OFFICERS. Any officer of a Participating Company has the
authority to act on behalf of the Company with respect to any matter, right,
obligation, determination or election that is the responsibility of or that is
allocated to the Company herein, provided the officer has apparent authority
with respect to such matter, right, obligation, determination or election.
3.3 ADMINISTRATION WITH RESPECT TO INSIDERS. With respect to participation
by Insiders in the Plan, at any time that any class of equity security of the
Company is registered pursuant to Section 12 of the Exchange Act, the Plan must
be administered in compliance with the requirements, if any, of Rule 16b-3.
3.4 POWERS OF THE BOARD. In addition to any other powers set forth in the
Plan and subject to the provisions of the Plan, the Board will have the full and
final power and authority, in its discretion:
(a) to determine the persons to whom, and the time or times when,
Options or Restricted Stock will be granted and the number of shares of
Stock to be subject to each Option and each Restricted Stock grant;
(b) to designate Options as Incentive Stock Options or Nonstatutory
Stock Options;
(c) to determine the Fair Market Value of shares of Stock or other
property;
(d) to determine the terms, conditions and restrictions applicable to
each grant of Restricted Stock, each Option (which need not be identical)
and any shares acquired upon the exercise of the Option, including, without
limitation, (i) the exercise price of the Option, (ii) whether Stock
Appreciation Rights are granted to a holder of a Nonstatutory Stock Option,
(iii) the method of payment for shares purchased upon the exercise of the
Option, (iv) the method for satisfaction of any tax withholding obligation
arising in connection with the grant of the Restricted Stock, the grant of
the Option or upon exercise of the Option, including by the withholding or
delivery of shares of Stock,
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(v) the timing, terms and conditions of the exercisability of the Option or
the vesting of any shares acquired upon exercise thereof, (vi) the time of
the expiration of the Option, (vii) the vesting of the Restricted Stock,
(viii) the effect of the Participant's termination of Service with the
Participating Company Group on any of the foregoing, and (ix) all other
terms, conditions and restrictions applicable to the Option, shares
purchased upon exercise of the Option, or the Restricted Stock, not
inconsistent with the terms of the Plan;
(e) to approve one or more forms of Option Agreement and Restricted
Stock Agreement;
(f) to amend, modify, extend, cancel, renew, reprice or otherwise adjust
the exercise price of, or grant a new Option in substitution for, any Option
or to waive any restrictions or conditions applicable to any Option, any
shares acquired upon the exercise thereof, or any Restricted Stock;
(g) to accelerate, continue, extend or defer the exercisability of any
Option, the vesting of any shares acquired upon the exercise thereof or the
vesting of any Restricted Stock, including with respect to the period
following a Participant's termination of Service with the Participating
Company Group;
(h) to prescribe, amend or rescind rules, guidelines and policies
relating to the Plan, or to adopt supplements to, or alternative versions
of, the Plan; and
(i) to correct any defect, supply any omission or reconcile any
inconsistency in the Plan, any Option Agreement or any Restricted Stock
Agreement and to make all other determinations and take such other actions
with respect to the Plan, any Option Agreement or any Restricted Stock
Agreement as the Board may deem advisable to the extent consistent with the
Plan and applicable law.
Notwithstanding the forgoing, the Board may take no action to impair the
rights of any Participant under outstanding Option Agreements or Restricted
Stock Agreements without the consent of the Participant affected thereby.
4. SHARES SUBJECT TO PLAN.
4.1 MAXIMUM NUMBER OF SHARES ISSUABLE. Subject to adjustment as
provided in Section 4.2, the maximum aggregate number of shares of Stock that
may be issued under the Plan is 650,000 shares, consisting of authorized but
unissued or reacquired shares of Stock or any combination thereof. All of
such shares of Stock may, but need not, be issued pursuant to the exercise of
Incentive Stock Options. If an outstanding Option for any reason expires or
is terminated or canceled, or if shares of Stock are issued and thereafter
are reacquired by the Company pursuant to rights reserved upon issuance
thereof, such shares of Stock will again be available for issuance under the
Plan. Notwithstanding the foregoing, subject to adjustment pursuant to
Section 4.2 no additional shares may be subject to Options or Stock
Appreciation Rights that are intended to be "performance-based compensation,"
as that term is used in Section 162(m)(4)(C) of the Code, granted to any one
Participant in any fiscal year; solely for purposes of this limitation,
Options or Stock Appreciation Rights that are cancelled continue to count
against the limit, and Options or Stock Appreciation Rights that are repriced
are treated as if they had been cancelled and new grants made.
4.2 ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. In the event of any
stock dividend, stock split, reverse stock split, recapitalization, combination,
reclassification or similar change in the capital structure of the Company,
appropriate adjustments will be made in the number and class of shares subject
to the Plan and to any outstanding Options or Stock Appreciation Rights and in
the exercise price per share of any outstanding Options or Stock Appreciation
Rights. If a majority of the shares that are of the same class as the shares
that are subject to outstanding Options are exchanged for, converted into, or
otherwise become (whether or not pursuant to an Ownership Change Event) shares
of another corporation (the "New Shares"), the Board may unilaterally amend the
outstanding Options or Stock Appreciation Rights to provide that such Options or
Stock Appreciation Rights are exercisable for or with respect to New
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Shares. In the event of any such amendment, the number of shares subject to, and
the exercise price per share of, the outstanding Options will be adjusted in a
fair and equitable manner as determined by the Board, in its discretion.
Notwithstanding the foregoing, any fractional share resulting from an adjustment
pursuant to this Section 4.2 will be rounded down to the nearest whole number,
and in no event may the exercise price of any Option be decreased to an amount
less than the par value, if any, of the stock subject to the Option. The
adjustments determined by the Board pursuant to this Section 4.2 will be final,
binding and conclusive.
5. ELIGIBILITY AND LIMITATIONS.
5.1 PERSONS ELIGIBLE FOR OPTIONS AND RESTRICTED STOCK. Options and
Restricted Stock may be granted to Employees, Consultants and Directors selected
by the Board, in its discretion. For purposes of the foregoing sentence,
"Employees," "Consultants" and "Directors" includes prospective Employees,
prospective Consultants and prospective Directors to whom Options are granted in
connection with written offers of an employment or other service relationships
with the Participating Company Group. Eligible persons may be granted more than
one Option and may receive more than one grant of Restricted Stock.
5.2 GRANT RESTRICTIONS. Any person who is not an Employee on the effective
date of the grant of an Option to such person may be granted only a Nonstatutory
Stock Option. An Incentive Stock Option granted to a prospective Employee upon
the condition that such person become an Employee will be deemed granted
effective on the date such person commences Service with a Participating
Company, with an exercise price determined as of such date in accordance with
Section 6.1.
Options or Stock Appreciation Rights (but not Restricted Stock) may be
granted under this Plan to Employees who are Non-Exempt Employees. Options or
Stock Appreciation Rights granted to a Non-Exempt Employee must comply with the
exercise price and exercise period restrictions set forth in Sections 6.1 and
6.2 below, and other provisions of the "Worker Economic Opportunity Act" of
2000, P.L. 106-202, or other provisions of law, sufficiently to insure that such
Options, and any profits, gains or income resulting from such Options, are
excluded from such Non-Exempt Employee's overtime pay calculations.
5.3 FAIR MARKET VALUE LIMITATION. To the extent that options designated as
Incentive Stock Options (granted under all stock option plans of the
Participating Company Group, including the Plan) become exercisable by a
Participant for the first time during any calendar year for Stock having a Fair
Market Value greater than $100,000, the portions of such options that exceed
such amount will be treated as Nonstatutory Stock Options. For purposes of this
Section 5.3, options designated as Incentive Stock Options will be taken into
account in the order in which they were granted, and the Fair Market Value of
stock will be determined as of the time the option with respect to such stock is
granted. If the Code is amended to provide for a different limitation from that
set forth in this Section 5.3, such different limitation will be deemed
incorporated herein effective as of the date and with respect to such Options as
required or permitted by such amendment to the Code. If an Option is treated as
an Incentive Stock Option in part and as a Nonstatutory Stock Option in part by
reason of the limitation set forth in this Section 5.3, the Participant may
designate which portion of such Option the Participant is exercising. In the
absence of such designation, the Participant will be deemed to have exercised
the Incentive Stock Option portion of the Option first. Separate certificates
representing each such portion will be issued upon the exercise of the Option.
6. TERMS AND CONDITIONS OF OPTIONS.
Options will be evidenced by Option Agreements specifying the number of
shares of Stock covered thereby, in such form as the Board may from time to time
establish. No Option or purported Option will be a valid and binding obligation
of the Company unless evidenced by a fully executed Option Agreement.
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Option Agreements may incorporate all or any of the terms of the Plan by
reference and will comply with and be subject to the following terms and
conditions:
6.1 EXERCISE PRICE. The exercise price for each Option will be established
in the discretion of the Board; PROVIDED, HOWEVER, that (a) the exercise price
per share for an Incentive Stock Option must be not less than the Fair Market
Value of a share of Stock on the effective date of grant of the Option, (b) the
exercise price per share for a Nonstatutory Stock Option granted to a Non-Exempt
Employee must be not less than 85% of the Fair Market Value of a share of Stock
on the effective date of grant of the Option, (c) no Incentive Stock Option
granted to a Ten Percent Owner Optionee may have an exercise price per share
less than 110% of the Fair Market Value of a share of Stock on the effective
date of grant of the Incentive Stock Option, and (d) the exercise price per
share for any Option that is intended to be performance-based compensation under
Section 162(m)(4)(C) of the Code must be not less than the Fair Market Value of
a share of stock as of the effective date of grant of the Option.
Notwithstanding the foregoing, an Option (whether an Incentive Stock Option or a
Nonstatutory Stock Option) may be granted with an exercise price lower than the
minimum exercise price set forth above if such Option is granted pursuant to an
assumption or substitution for another option in a manner qualifying under the
provisions of Section 424(a) of the Code.
6.2 EXERCISE PERIOD. Options may be exercisable at such time or times, or
upon such event or events, and subject to such terms, conditions, performance
criteria, and restrictions as may be determined by the Board and set forth in
the Option Agreement evidencing such Option; PROVIDED, HOWEVER, that (a) no
Incentive Stock Option may be exercisable after the expiration of 10 years after
the effective date of grant of such Option, (b) no Incentive Stock Option
granted to a Ten Percent Owner Optionee may be exercisable after the expiration
of five years after the effective date of grant of such Option, (c) no Option
granted to a Non-Exempt Employee may be exercisable less than six months after
the effective date of the grant of such Option, except in the case of death,
Disability, retirement or Change of Control, and (d) no Option granted to a
prospective Employee, prospective Consultant or prospective Director may become
exercisable prior to the date on which such person commences Service with a
Participating Company. Subject to the foregoing, unless otherwise specified by
the Board in the grant of an Option, any Option granted hereunder will have a
term of 10 years from the effective date of grant of the Option.
6.3 PAYMENT OF EXERCISE PRICE.
(a) FORMS OF CONSIDERATION AUTHORIZED. Except as otherwise provided
below, payment of the exercise price for the number of shares of Stock being
purchased pursuant to any Option may be made (i) in cash, by check or cash
equivalent, (ii) by tender to the Company, or attestation to the ownership,
of shares of Stock owned by the Participant having a Fair Market Value (as
determined by the Company without regard to any restrictions on
transferability applicable to such stock by reason of federal or state
securities laws or agreements with an underwriter for the Company) not less
than the exercise price, (iii) by the assignment of the proceeds of a sale
or loan with respect to some or all of the shares being acquired upon the
exercise of the Option (including, without limitation, through an exercise
complying with the provisions of Regulation T as promulgated from time to
time by the Board of Governors of the Federal Reserve System) (a "Cashless
Exercise"), (iv) with the Board's consent, by the Participant's promissory
note in a form approved by the Company, (v) by such other consideration as
may be approved by the Board from time to time to the extent permitted by
applicable law, or (vi) by any combination thereof. The Board may at any
time or from time to time, by adoption of or by amendment to the standard
forms of Option Agreement described in Section 7, or by other means, grant
Options that do not permit all of the foregoing forms of consideration to be
used in payment of the exercise price or that otherwise restrict one or more
forms of consideration.
(b) LIMITATIONS ON FORMS OF CONSIDERATION.
(i) TENDER OF STOCK. Notwithstanding the foregoing, an Option may
not be exercised by tender to the Company, or attestation to the
ownership, of shares of Stock to the extent such
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tender or attestation would constitute a violation of the provisions of
any law, regulation or agreement restricting the redemption of the
Company's stock. Unless otherwise provided by the Board, an Option may
not be exercised by tender to the Company, or attestation to the
ownership, of shares of Stock unless such shares either have been owned
by the Participant for more than six months or were not acquired,
directly or indirectly, from the Company.
(ii) CASHLESS EXERCISE. The Company reserves, at any and all times,
the right, in the Company's sole and absolute discretion, to establish,
decline to approve or terminate any program or procedures for the
exercise of Options by means of a Cashless Exercise.
(iii) PAYMENT BY PROMISSORY NOTE. No promissory note will be
permitted if the exercise of an Option using a promissory note would be a
violation of any law. Any permitted promissory note will be on such terms
as the Board may determine at the time the Option is granted. The Board
will have the authority to permit or require the Participant to secure
any promissory note used to exercise an Option with the shares of Stock
acquired upon the exercise of the Option or with other collateral
acceptable to the Company. Unless otherwise provided by the Board, if the
Company at any time is subject to the regulations promulgated by the
Board of Governors of the Federal Reserve System or any other
governmental entity affecting the extension of credit in connection with
the Company's securities, any promissory note must comply with such
applicable regulations, and the Participant must pay the unpaid principal
and accrued interest, if any, to the extent necessary to comply with such
applicable regulations.
6.4 TAX WITHHOLDING. The Company has the right, but not the obligation, to
deduct from the shares of Stock issuable upon the exercise of an Option, or to
accept from the Participant the tender of, a number of whole shares of Stock
having a Fair Market Value, as determined by the Company, equal to all or any
part of the federal, state, local and foreign taxes, if any, required by law to
be withheld by the Participating Company Group with respect to such Option or
the shares acquired upon the exercise thereof. Alternatively or in addition, in
its discretion, the Company has the right to require the Participant, through
payroll withholding, cash payment or otherwise, including by means of a Cashless
Exercise, to make adequate provision for any such tax withholding obligations of
the Participating Company Group arising in connection with the Option or the
shares acquired upon the exercise thereof. The Company has no obligation to
deliver shares of Stock or to release shares of Stock from an escrow established
pursuant to the Option Agreement until the Participating Company Group's tax
withholding obligations have been satisfied by the Participant.
6.5 EARLY EXERCISE. Any Option may, but need not, include a provision
whereby the Participant may elect, at any time while an Employee, Director or
Consultant, to exercise such Option as to any part or all of the shares of Stock
subject to such Option prior to the time the Option would otherwise be
exercisable. Any shares of Stock so purchased will be subject to a repurchase
right in favor of the Company described in Section 6.6, upon refund of the
exercise price paid by the Participant, and may be subject to further
restrictions set forth in the pertinent Option Agreement or an agreement with
respect to early exercise.
6.6 REPURCHASE RIGHTS. Shares issued under the Plan may be subject to a
right of first refusal, one or more repurchase options, or other conditions and
restrictions as determined by the Board in its discretion at the time the Option
is granted. The Company has the right to assign at any time any repurchase right
it may have, whether or not such right is then exercisable, to one or more
persons as may be selected by the Company. Upon request by the Company, each
Participant must execute any agreement evidencing such transfer restrictions
prior to the receipt of shares of Stock hereunder and must promptly present to
the Company any and all certificates representing shares of Stock acquired
hereunder for the placement on such certificates of appropriate legends
evidencing any such transfer restrictions.
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7. STOCK APPRECIATION RIGHTS.
Stock Appreciation Rights may be granted in conjunction with the grant of
any Nonstatutory Stock Option and will be subject to such terms and conditions
consistent with the Plan as the Board may impose from time to time, including
the following:
(a) A Stock Appreciation Right may be granted with respect to an Option
at the time of its grant or at any time thereafter up to six months prior to
its expiration.
(b) Stock Appreciation Rights will permit the holder to surrender any
related Option or portion thereof that is then exercisable and elect to
receive in exchange therefor cash in an amount equal to:
(i) The excess of the Fair Market Value of one share of Stock on the
date of such election over the exercise price, multiplied by
(ii) The number of shares issuable upon exercise of such Option or
portion thereof that is so surrendered.
(c) The Board may satisfy a Participant's right to receive the amount of
cash determined under paragraph (b) above in whole or in part by delivering
shares of Stock equal in value to such amount as of the date of the
Participant's election.
(d) In the event of the exercise of a Stock Appreciation Right, the
number of shares reserved for issuance under the Plan will be reduced by the
number of shares covered by the Option or portion thereof surrendered.
8. RESTRICTED STOCK.
The Board shall determine the number of shares of Stock to be granted to
particular Employees, Consultants and Directors as Restricted Stock from time to
time under the Plan. The Board in its discretion may award shares of Restricted
Stock under the Plan without requiring the payment of cash consideration for
such shares by the Participant. Restricted Stock shall be non-transferable and
subject to forfeiture under such terms and conditions as the Board prescribes in
the pertinent Restricted Stock Agreement, and may, without limitation, be
subject to repurchase rights pursuant to Section 6.6 above. Share certificates
issued for Restricted Stock shall be legended appropriately.
9. STANDARD FORMS OF AGREEMENTS.
9.1 GENERAL. Unless otherwise provided by the Board at the time an Option
or Restricted Stock is granted, the Option or Restricted Stock must comply with
and be subject to the terms and conditions set forth in the appropriate standard
form of Option Agreement or Restricted Stock Agreement, as the case may be,
adopted by the Board concurrently with its adoption of the Plan and as amended
from time to time.
9.2 AUTHORITY TO VARY TERMS. The Board has the authority from time to time
to vary the terms of any of the standard forms of Option Agreement and
Restricted Stock Agreement described in this Section 9 either in connection with
the grant or amendment of an individual Option or the grant of Restricted Stock
or in connection with the authorization of a new standard form or forms;
PROVIDED, HOWEVER, that the terms and conditions of any such new, revised or
amended standard form or forms of Option Agreement and Restricted Stock
Agreement are not inconsistent with the terms of the Plan.
10. EFFECT OF TERMINATION OF SERVICE.
10.1 DISABILITY. Subject to earlier termination of an Option as otherwise
provided herein, after a Participant's Service with the Participating Company
Group is terminated because of the Disability of the Participant, the Option, to
the extent unexercised and exercisable on the date on which the Participant's
Service terminated, may be exercised by the Participant (or the Participant's
guardian or legal
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representative) at any time prior to the expiration of one year (or such longer
period of time as determined by the Board, in its discretion) after the date on
which the Participant's Service terminated, but in any event no later than the
date of expiration of the Option's term as set forth in the Option Agreement
evidencing such Option (the "Option Expiration Date"). Restricted Stock issued
to a Participant will continue to vest for six months after the date of the
Participant's Disability. The date of Disability of a Participant will be
determined by the Board.
10.2 DEATH. Subject to earlier termination of an Option as otherwise
provided herein, after a Participant's Service with the Participating Company
Group is terminated because of the death of the Participant, the Option, to the
extent unexercised and exercisable on the date on which the Participant's
Service terminated, may be exercised by the Participant's legal representative
or other person who acquires the right to exercise the Option by reason of the
Participant's death at any time prior to the expiration of one year (or such
longer period of time as determined by the Board, in its discretion) after the
date on which the Participant's Service terminated, but in any event no later
than the Option Expiration Date. Restricted Stock issued to a Participant will
continue to vest for six months after the date of the Participant's death. The
Participant's Service will be deemed to have terminated on account of death if
the Participant dies within 30 days (or such longer period of time as determined
by the Board, in its discretion) after the Participant's termination of Service.
10.3 CAUSE. Subject to earlier termination of an Option as otherwise
provided herein, if a Participant's Service with the Participating Company Group
is terminated for Cause, or grounds for termination for Cause existed as of the
date the Participant's Service terminated, his Options will expire, and will
immediately cease to be exercisable with respect to any unexercised and
exercisable portion; and any Restricted Stock held by such Participant with
respect to which all restrictions have not lapsed will be forfeited immediately.
A Participant's Option Agreement or Restricted Stock Agreement may prescribe
additional consequences of termination for cause.
10.4 CHANGE OF CONTROL. Subject to earlier termination of an Option as
otherwise provided herein, and subject to Section 17 below, upon a Change of
Control, each outstanding Option will automatically become fully exercisable and
each outstanding share of Restricted Stock will automatically become fully
vested. Notwithstanding the foregoing, (i) shares acquired upon exercise of an
Option prior to the Change of Control and any consideration received pursuant to
the Change of Control with respect to such shares will continue to be subject to
all applicable provisions of the Option Agreement evidencing such Option except
as otherwise provided in such Option Agreement, and (ii) shares of Restricted
Stock granted prior to the Change of Control and any consideration received
pursuant to the Change of Control with respect to such shares will continue to
be subject to all applicable provisions of the Restricted Stock Agreement except
as otherwise provided in such Restricted Stock Agreement. The Participant's
Option Agreement may, in the Board's discretion, contain additional provisions
applicable in the event of a Change of Control.
10.5 OTHER TERMINATION OF SERVICE. If the Participant's Service with the
Participating Company Group terminates for any reason, except Disability, death
or Cause, an Option, to the extent unexercised and exercisable by the
Participant on the date on which the Participant's Service terminated, may be
exercised by the Participant within one year (or such longer period of time as
determined by the Board, in its discretion) after the date on which the
Participant's Service terminated, but in any event no later than the Option
Expiration Date. An Incentive Stock Option, if the pertinent Option Agreement so
provides, may permit exercise more than three months after the Participant
ceases to be an Employee for reasons other than death, Disability, or Cause, but
in such event the Option shall be treated as a Nonstatutory Stock Option. Any
Restricted Stock held by such Participant with respect to which all restrictions
have not lapsed will be forfeited immediately.
10.6 EXTENSION IF EXERCISE PREVENTED BY LAW. Notwithstanding the
foregoing, if the exercise of an Option within the applicable time periods set
forth in this Section 10 is prevented by the provisions of Section 13 below, the
Option will remain exercisable until 30 days (or such longer period of time as
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determined by the Board, in its discretion) after the date the Participant is
notified by the Company that the Option is exercisable, but in any event no
later than the Option Expiration Date.
10.7 EXTENSION IF PARTICIPANT SUBJECT TO SECTION 16(B). Notwithstanding
the foregoing, if a sale within the applicable time periods set forth in this
Section 10 of shares acquired upon the exercise of the Option would subject the
Participant to liability under Section 16(b) of the Exchange Act, the Option
will remain exercisable until the earliest to occur of (i) the 10th day
following the date on which a sale of such shares by the Participant would no
longer be subject to such liability, (ii) the 190th day after the Participant's
termination of Service, or (iii) the Option Expiration Date.
11. PROVISION OF INFORMATION.
[RESERVED]
12. TRANSFERABILITY.
During the lifetime of the Participant, an Incentive Stock Option will be
exercisable only by the Participant or the Participant's guardian or legal
representative. No Incentive Stock Option may be assignable or transferable by
the Participant, except by will or by the laws of descent and distribution.
Participants may transfer Nonstatutory Stock Options only as provided by the
Board. Unless the Company otherwise agrees in writing, shares of Stock acquired
hereunder may not be sold, or otherwise transferred, other than by will or under
the laws of descent and distribution upon the Participant's death, until and
unless (i) any holding period or other restriction on such a sale or other
transfer has expired, and (ii) the Company has waived in writing any right to
buy back such shares that it may have under the applicable Option Agreement or
Restricted Stock Agreement. As a condition to the transfer of the shares of
Stock issued under the Plan, the Company may require an opinion of counsel,
satisfactory to the Company, to the effect that such transfer will not be in
violation of the Securities Act or any other applicable securities laws or that
such transfer has been registered under federal and all applicable state
securities laws. The Board may impose such additional restrictions on the
ownership and transfer of shares of Stock issued pursuant to the Plan as it
deems desirable; any such restrictions must be set forth in any Option Agreement
or Restricted Stock Agreement entered into hereunder. Further, the Company is
authorized to refrain from delivering or transferring shares of Stock issued
under the Plan until the Board has determined that the Participant has tendered
to the Company any federal, state or local tax owed by the Participant as a
result of exercising the Option, receiving a grant of Restricted Stock or
disposing of any Stock, when the Company has a legal liability to satisfy such
tax. The Company will not be liable to any party for damages due to a delay in
the delivery or issuance of any stock certificate for any reason whatsoever.
13. COMPLIANCE WITH SECURITIES LAW.
The grant of Options, the issuance of shares of Stock upon exercise of
Options and the grant of Restricted Stock will be subject to compliance with all
applicable requirements of federal and state law with respect to such
securities. Options may not be exercised if the issuance of shares of Stock upon
exercise would constitute a violation of any applicable federal or state
securities laws or other law or regulations or the requirements of any stock
exchange or market system upon which the Stock may then be listed. In addition,
no Option may be exercised unless (a) a registration statement under the
Securities Act will at the time of exercise of the Option be in effect with
respect to the shares issuable upon exercise of the Option or (b) in the opinion
of legal counsel to the Company, the shares issuable upon exercise of the Option
may be issued in accordance with the terms of an applicable exemption from the
registration requirements of the Securities Act. The inability of the Company to
obtain from any regulatory body having jurisdiction the authority, if any,
deemed by the Company's legal counsel to be necessary to the lawful issuance and
sale of any shares hereunder will relieve the Company of any liability in
respect of the failure to issue or sell such shares as to which such requisite
authority will not have been obtained. As a condition to the exercise of any
Option, the Company may require the Participant to satisfy any qualifications
that may be necessary or appropriate to evidence compliance with any applicable
law or
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regulation and to make any representation or warranty with respect thereto as
may be requested by the Company.
14. LIABILITY OF COMPANY.
No Participating Company nor any of the directors, officers or employees of
any Participating Company will be liable to any Participant or other person
(a) if it is determined for any reason by the Internal Revenue Service or any
court having jurisdiction that any Incentive Stock Option granted hereunder does
not qualify for tax treatment as an Incentive Stock Option under Section 422 of
the Code, or (b) for refusing to sell or issue any shares covered by any Option
or for refusing to issue Restricted Stock if the Company cannot obtain authority
from the appropriate regulatory bodies deemed by the Company to be necessary to
sell or issue such shares in compliance with all applicable federal and state
securities laws and the requirements of any national exchange or trading system
on which the Stock is then listed or traded; provided that an Option Agreement
or Restricted Stock Agreement may require the Company to register Stock under
applicable securities laws. In addition, the Company will have no obligation to
any Participant, express or implied, to list, register or otherwise qualify the
shares of Stock covered by any Option or Restricted Stock.
15. INDEMNIFICATION.
In addition to such other rights of indemnification as they may have as
members of the Board or officers or employees of the Participating Company
Group, members of the Board and any officers or employees of the Participating
Company Group to whom authority to act for the Board or the Company is delegated
will be indemnified by the Company against all reasonable expenses, including
attorneys' fees, actually and necessarily 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 or failure to act under or in connection with the Plan, or any right
granted hereunder, 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. Such indemnification shall apply regardless of whether the
indemnified person has been solely or contributorily negligent or otherwise at
fault, except in relation to matters as to which it is adjudged in such action,
suit or proceeding that such person is liable for gross negligence, bad faith or
intentional misconduct in duties. Within 60 days after the institution of such
action, suit or proceeding, such person must offer to the Company, in writing,
the opportunity at its own expense to handle and defend the same.
16. TERMINATION OR AMENDMENT OF PLAN.
The Board may terminate or amend the Plan at any time. However, subject to
changes in applicable law, regulations or rules that would permit otherwise,
without the approval of the Company's stockholders, there may be (a) no increase
in the maximum aggregate number of shares of Stock that may be issued pursuant
to Incentive Stock Options under the Plan (except by operation of the provisions
of Section 4.2), (b) no change in the class of persons eligible to receive
Incentive Stock Options, (c) no change in the material provisions regarding
performance-based compensation pursuant to Section 162(m)(4)(C) of the Code, and
(d) no other amendment of the Plan that would require approval of the Company's
stockholders under any applicable law, regulation or rule, including applicable
stock exchange listing requirements. In any event, no termination or amendment
of the Plan may adversely affect any then outstanding Option, or any unexercised
portion thereof, or Restricted Stock without the consent of the Participant,
unless such termination or amendment is required to enable an Option designated
as an Incentive Stock Option to qualify as an Incentive Stock Option or is
necessary to comply with any applicable law, regulation or rule.
17. EXCESS PARACHUTE PAYMENTS.
(a) For purposes of the Plan, the term "Excess Parachute Payment" means
any payment or any portion thereof that would be an "excess parachute
payment" within the meaning of
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Section 280G(b)(1) of the Code, and would result in the imposition of an
excise tax under Section 4999 of the Code, on the advice of tax counsel
selected by the Company ("Tax Counsel").
(b) In no event will any Participant be entitled to any right or any
amount that would be an Excess Parachute Payment except as the Board
specifically provides in individual Stock Option Agreements or Restricted
Stock Agreements. In the event the Board determines that an Excess Parachute
Payment would result, then, at the option of the Board as set forth in the
pertinent individual agreement, payments to the Participant may be reduced,
a "Gross Up" payment (as defined below) may be made to the Participant, or
such other action as the Board may consider equitable and in the best
interests of the Company may be taken. If (i) it is established pursuant to
a final determination of a court or an Internal Revenue Service
administrative appeals proceeding that, notwithstanding the good faith of
the Participant and the Company in reducing the amount of the payment to
avoid excise tax under Section 4999 of the Code, a payment (or portion
thereof) made is an Excess Parachute Payment or (ii) the Participant's
agreement permits Excess Parachute Payments to be made, then, the Company
will pay to the Participant an additional amount in cash (a "Gross-Up
Payment") equal to the amount necessary to cause the amount of the aggregate
after-tax compensation and benefits received by the Participant hereunder
(after payment of the excise tax under Section 4999 of the Code with respect
to any Excess Parachute Payment, and any state and federal income taxes with
respect to the Gross-Up Payment) to be equal to the aggregate after-tax
compensation and benefits such Participant would have received as if
Sections 280G and 4999 of the Code had not been enacted.
(c) Subject to the provisions of Section 17(a) of the Plan, the amount
of any Gross-Up Payment and the assumptions to be utilized in arriving at
such amount, will be determined by a nationally recognized certified public
accounting firm designated by the Company (the "Accounting Firm"). All fees
and expenses of the Accounting Firm shall be borne solely by the Company.
Any Gross-Up Payment, as determined pursuant to this Section 17(c), will be
paid by the Company to the Participant within five days after the receipt of
the Accounting Firm's determination. Any determination by the Accounting
Firm will be binding upon the Company and the Participant.
(d) The Participant must notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment
by Company of a Gross-Up Payment. Such notification must be given no later
than ten business days after the Participant is informed in writing of such
claim and must apprise the Company of the nature of the claim and the date
of requested payment. The Participant will not pay the claim prior to the
expiration of the thirty day period following the date on which it gives
notice to the Company. If the Company notifies the Participant in writing
prior to the expiration of the period that it desires to contest such claim,
the Participant must:
(i) give the Company any information reasonably requested by the
Company relating to such claim;
(ii) take such action in connection with contesting such claim as the
Company may reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney selected by the Company and reasonably acceptable to
the Participant;
(iii) cooperate with the Company in good faith in order to effectively
contest such claim; and
(iv) permit the Company to participate in any proceedings relating to
such claim.
Without limitation on the foregoing provisions of this Section, the Company
will control all proceedings taken in connection with such contest and, at its
sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct the Participant to pay the
tax claimed and sue for a refund or contest the claim in any permissible manner,
and the Participant agrees to prosecute such contest to a determination before
any administration tribunal, in a court of initial jurisdiction and in one or
more
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appellate courts, as the Company may determine; PROVIDED, HOWEVER, that the
Company will bear and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest and will
indemnify and hold the Participant harmless, on an after-tax basis, for any
Excise Tax or income tax (including interest and penalties with respect thereto)
imposed as a result of the contest; PROVIDED, FURTHER, that if the Company
directs the Participant to pay any claim and sue for a refund, the Company will
advance the amount of the payment to the Participant, on an interest-free basis,
and will indemnify and hold Participant harmless, on an after-tax basis, from
any Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to the advance or with respect to any imputed
income with respect to the advance.
(e) In the event that the Company exhausts its remedies pursuant to
Section 17(d) and the Participant thereafter is required to make a payment
of any Excaise Tax, the Accounting Firm will determine the amount of the
Gross-Up Payment required and the Company will promptly pay such payment to
or for the benefit of the Participant.
(f) If, after the receipt of the Participant of an amount advanced by
the Company pursuant to Section 17(d), the Participant becomes entitled to
receive any refund with respect to such claim, the Participant will promptly
after receiving such refund pay to the Company the amount of such refund
(together with any interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by the Participant of an amount advanced by
the Company pursuant to Section 17(d), a determination is made that the
Participant is not entitled to any refund with respect to such claim and the
Company does not notify the Participant in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance will be forgiven and will not be required
to be repaid and the amount of such advance will offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
18. SEVERABILITY OF PROVISIONS.
If any provision of the Plan is determined to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability will not affect
the remaining provisions of the Plan, but such invalid, illegal or unenforceable
provision will be fully severable, and the Plan will be construed and enforced
as if an enforceable provision, accomplishing the intent of the severed
provision as nearly as practicable, had been inserted herein in lieu of the
severed provision.
19. STOCKHOLDER APPROVAL.
The Plan or any increase in the maximum aggregate number of shares of Stock
issuable thereunder as provided in Section 4.1 (the "Authorized Shares") must be
approved by the stockholders of the Company within 12 months after the date of
adoption thereof by the Board. Options granted prior to stockholder approval of
the Plan or in excess of the Authorized Shares previously approved by the
stockholders may become exercisable no earlier than the date of stockholder
approval of the Plan or such increase in the Authorized Shares, as the case may
be. Options granted to executive officers that are designated as performance
based under Section 162(m) of the Code must be contingent on stockholder
approval of the material terms of the Plan to the extent required under
Section 162(m) of the Code.
IN WITNESS WHEREOF, the undersigned Secretary of the Company certifies that
the foregoing 2000 Stock Incentive Plan was duly adopted by the Board on
September 24, 2000.
/s/
--------------------------------------
Secretary
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PLAN HISTORY
<TABLE>
<S> <C>
September 24, 2000 Board adopts Plan, with an initial reserve of 650,000 shares.
, 20 Stockholders approve Plan.
</TABLE>
15
