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EXHIBIT 99.1
OSTEX INTERNATIONAL, INC.
AMENDED AND RESTATED 1994 STOCK OPTION PLAN
This 1994 Stock Option Plan (the "Plan") provides for the grant of options
to acquire shares of Common Stock, $.01 par value (the "Common Stock"), of Ostex
International, Inc., a Washington corporation (the "Company"). Stock options
granted under this Plan that qualify under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), are referred to in this Plan as
"Incentive Stock Options." Incentive Stock Options and stock options that do not
qualify under Section 422 of the Code ("Nonqualified Stock Options") granted
under this Plan are referred to as "Options."
1. PURPOSES
The purposes of this Plan are to retain the services of valued key
employees and consultants of the Company, and such other persons as the Plan
Administrator shall select in accordance with Section 3 below, to encourage such
persons to acquire a greater proprietary interest in the Company, thereby
strengthening their incentive to achieve the objectives of the shareholders of
the Company, and to serve as an aid and inducement in the hiring of new
employees, consultants and other persons selected by the Plan Administrator.
2. ADMINISTRATION
This Plan shall be administered by the Board of Directors of the Company
(the "Board"), except that the Board may, in its discretion, establish a
committee composed of members of the Board or other persons to administer this
Plan, which committee (the "Committee") may be an executive, compensation or
other committee, including a separate committee especially created for this
purpose. The Committee shall have such of the powers and authority vested in the
Board hereunder as the Board may delegate to it (including the power and
authority to interpret any provision of this Plan or of any Option). The members
of any such Committee shall serve at the discretion of the Board. The Board, or
the Committee if one has been established by the Board, are referred to in this
Plan as the "Plan Administrator." Following registration of any of the Company's
securities under Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), no person shall serve as a member of the Plan
Administrator if his or her service would disqualify this Plan from eligibility
under Securities and Exchange Commission Rule 16b-3, as amended from time to
time, or any successor rule or regulatory requirement; PROVIDED, that the Plan
Administrator shall consist of at least the minimum number of persons required
by Securities and Exchange Commission Rule 16b-3, as amended, or any successor
rule or regulatory requirement. If, and so long as, the Company has a class of
equity securities registered under Section 12 of the Exchange Act, the Board of
Directors in determining the membership of any such committee shall, with
respect to option grants to any persons subject to or likely to become subject
to Section 16 of the Exchange Act, give due consideration to the provisions
regarding (a) "outside directors" as contemplated by Section 162(m) of the Code
and (b) "nonemployee directors" as contemplated by Rule 16b-3 under the Exchange
Act.
Subject to the provisions of this Plan, and with a view to effecting its
purpose, the Plan Administrator shall have sole authority, in its absolute
discretion, to: (a) construe and interpret this Plan; (b) define the terms used
in this Plan; (c) prescribe, amend and rescind rules and regulations relating to
this Plan; (d) correct any defect, supply any omission or reconcile any
inconsistency in this Plan; (e) determine the individuals to whom Options shall
be granted under this Plan and whether the Option is an Incentive Stock Option
or a Nonqualified Stock Option; (f) determine the time or times at which Options
shall be granted under this Plan; (g) determine the number of shares of Common
Stock subject to each Option, the exercise price of each Option, the duration of
each Option and the times at which each Option shall become exercisable; (h)
determine all other terms and conditions of Options; and (i) make all other
determinations necessary or advisable for the administration of this
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Plan. All decisions, determinations and interpretations made by the Plan
Administrator shall be binding and conclusive on all participants in this Plan
and on their legal representatives, heirs and beneficiaries.
3. ELIGIBILITY
Incentive Stock Options may be granted to any individual who, at the time
the Option is granted, is an employee of the Company or any Related Corporation
(as defined below), including employees who are directors of the Company
("Employees"). Nonqualified Stock Options may be granted to Employees and to
such other persons other than directors who are not Employees as the Plan
Administrator shall select. Options may be granted in substitution for
outstanding Options of another corporation in connection with the merger,
consolidation, acquisition of property or stock or other reorganization between
such other corporation and the Company or any subsidiary of the Company. Options
also may be granted in exchange for outstanding Options. Any person to whom an
Option is granted under this Plan is referred to as an "Optionee."
As used in this Plan, the term "Related Corporation," when referring to a
subsidiary corporation, shall mean any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company if, at the time of
the granting of the Option, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock of one of the
other corporations in such chain. When referring to a parent corporation, the
term "Related Corporation" shall mean any corporation (other than the Company)
in an unbroken chain of corporations ending with the Company if, at the time of
granting of the Option, each of the corporations other than the Company owns
stock possessing fifty percent (50%) or more of the total combined voting power
of all classes of stock of one of the other corporations in such chain.
4. STOCK
Options to purchase a maximum of 2,500,000 shares of the Company's Common
Stock may be issued pursuant to the Plan, subject to adjustment as provided in
Section 5.13.1 below; PROVIDED, that any shares of Common Stock received or
withheld by the Company as payment for shares of Common Stock purchased upon
exercise of Options pursuant to Section 5.9 below shall be added to the number
of such shares as to which Options may be granted. The number of shares with
respect to which Options may be granted hereunder is subject to adjustment as
set forth in Section 5.13 below. In the event that any outstanding Option
expires or is terminated for any reason, the shares of Common Stock allocable to
the unexercised portion of such Option may again be subject to an Option to the
same Optionee or to a different person eligible under Section 3 above.
Notwithstanding the foregoing, the aggregate number of shares that may be issued
under Incentive Stock Options shall not exceed 2,500,000.
5. TERMS AND CONDITIONS OF OPTIONS
Each Option granted under this Plan shall be evidenced by a written
agreement approved by the Plan Administrator (the "Agreement"). Agreements may
contain such additional provisions, not inconsistent with this Plan, as the Plan
Administrator in its discretion may deem advisable. All Options also shall
comply with the following requirements:
5.1 NUMBER OF SHARES AND TYPE OF OPTION
Each Agreement shall state the number of shares of Common Stock to which it
pertains and whether the Option is intended to be an Incentive Stock Option or a
Nonqualified Stock Option. In the absence of action to the contrary by the Plan
Administrator in connection with the grant of an Option, all Options shall be
Nonqualified Stock Options. The aggregate fair market value (determined at the
Date of Grant, as defined below) of the stock with respect to which Incentive
Stock Options are exercisable for the first time by the Optionee during any
calendar year (granted under this Plan and all other Incentive Stock Option
plans of the Company, a Related Corporation or a predecessor corporation) shall
not exceed such limit as may be prescribed by the Code as it may
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be amended from time to time. Any Option which exceeds the annual limit shall
not be void but rather shall be a Nonqualified Stock Option.
(a) LIMITATION ON NUMBER OF SHARES UNDERLYING OPTIONS. Subject to
adjustment from time to time as provided in Section 5.13 below, the Plan
Administrator shall not grant options to any person in any one fiscal year of
the Company in an amount that exceeds, in the aggregate, 300,000 shares of
Common Stock, except that the amount may be up to, but not exceed, in the
aggregate, 800,000 shares of Common Stock for any newly hired person in any one
fiscal year of the Company. This limitation shall be applied in a manner
consistent with the requirements of, and only to the extent required for
compliance with, the exclusion from the limitation on deductibility of
compensation under Section 162(m) of the Code.
5.2 DATE OF GRANT
Each Agreement shall state the date the Plan Administrator has deemed to be
the effective date of the Option for purposes of this Plan (the "Date of
Grant").
5.3 OPTION PRICE
Each Agreement shall state the price per share of Common Stock at which it
is exercisable. The exercise price shall be fixed by the Plan Administrator at
whatever price the Plan Administrator may determine in the exercise of its sole
discretion; PROVIDED, that the per share exercise price for any Option granted
following the effective date of registration of any of the Company's securities
under Section 12 of the Securities Exchange Act of 1934 shall not be less than
the fair market value per share of the Common Stock at the Date of Grant as
determined by the Plan Administrator in good faith; PROVIDED FURTHER, that the
per share exercise price for an Incentive Stock Option shall not be less than
the fair market value per share of the Common Stock at the Date of Grant as
determined by the Plan Administrator in good faith; PROVIDED FURTHER, that with
respect to Incentive Stock Options granted to greater-than-ten percent (>10%)
shareholders of the Company (as determined with reference to Section 424(d) of
the Code), the exercise price per share shall not be less than one hundred ten
percent (110%) of the fair market value per share of the Common Stock at the
Date of Grant; and, PROVIDED FURTHER, that Incentive Stock Options granted in
substitution for outstanding Options of another corporation in connection with
the merger, consolidation, acquisition of property or stock or other
reorganization involving such other corporation and the Company or any
subsidiary of the Company may be granted with an exercise price equal to the
exercise price for the substituted Option of the other corporation, subject to
any adjustment consistent with the terms of the transaction pursuant to which
the substitution is to occur.
5.4 DURATION OF OPTIONS
At the time of the grant of the Option, the Plan Administrator shall
designate, subject to Section 5.7 below, the expiration date of the Option,
which date shall not be later than ten (10) years from the Date of Grant in the
case of Incentive Stock Options; PROVIDED, that the expiration date of any
Incentive Stock Option granted to a greater-than-ten percent (>10%) shareholder
of the Company (as determined with reference to Section 424(d) of the Code)
shall not be later than five (5) years from the Date of Grant. In the absence of
action to the contrary by the Plan Administrator in connection with the grant of
a particular Option, and except in the case of Incentive Stock Options as
described above, all Options granted under this Plan shall expire ten (10) years
from the Date of Grant.
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5.5 VESTING SCHEDULE
No Option shall be exercisable until it has vested. The vesting schedule
for each Option shall be specified by the Plan Administrator at the time of
grant of the Option; PROVIDED, that if no vesting schedule is specified at the
time of grant, the Option shall vest according to the following schedule:
<TABLE>
<CAPTION>
PERCENTAGE OF
NUMBER OF YEARS TOTAL OPTION TO
FOLLOWING DATE OF GRANT BE EXERCISABLE
----------------------- ---------------
<S> <C>
1 20%
2 40%
3 60%
4 80%
5 100%
</TABLE>
5.6 ACCELERATION OF VESTING
The vesting of one or more outstanding Options may be accelerated by the
Plan Administrator at such times and in such amounts as it shall determine in
its sole discretion. If an Employee Optionee's employment terminates by reason
of death or Disability (as defined in Section 5.7 below), any Option held by
such Employee Optionee who has been Continuously Employed by the Company or
Related Corporation for a minimum of two (2) years shall become fully vested and
exercisable and may thereafter be exercised during the term of the Option set
forth in Section 5.7 below. "Continuously Employed" shall mean the absence of
any interruption or termination of service. Continuous Employment with the
Company or Related Corporation shall not be considered interrupted in the case
of sick leave, military leave or any other leave of absence approved by the
Company or Related Corporation or in the case of transfers between locations of
the Company or between the Company, Related Corporations or their successors,
provided that the Optionee continues to be an employee of the Company or any
Related Corporation. The vesting of Options also shall be accelerated under the
circumstances described in Sections 5.13 and 5.14 below.
5.7 TERM OF OPTION
Vested Options shall terminate, to the extent not previously exercised,
upon the occurrence of the first of the following events: (i) the expiration of
the Option, as designated by the Plan Administrator in accordance with Section
5.4 above; (ii) the expiration of ninety (90) days from the date of an
Optionee's termination of employment or contractual relationship with the
Company or any Related Corporation for any reason whatsoever other than death or
Disability (as defined below) unless, in the case of a Nonqualified Stock
Option, the exercise period is extended by the Plan Administrator until a date
not later than the expiration date of the Option; or (iii) the expiration of one
(1) year from (A) the date of death of the Optionee or (B) cessation of an
Optionee's employment or contractual relationship by reason of Disability (as
defined below) unless, in the case of a Nonqualified Stock Option, the exercise
period is extended by the Plan Administrator until a date not later than the
expiration date of the Option. If an Optionee's employment or contractual
relationship is terminated by death, any Option held by the Optionee shall be
exercisable only by the person or persons to whom such Optionee's rights under
such Option shall pass by the Optionee's will or by the laws of descent and
distribution of the state or county of the Optionee's domicile at the time of
death. "Disability" shall mean that a person is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or that has lasted or
can be expected to last for a continuous period of not less than twelve (12)
months. The Plan Administrator shall determine whether an Optionee has incurred
a Disability on the
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basis of medical evidence acceptable to the Plan Administrator. Upon making a
determination of Disability, the Committee shall, for purposes of the Plan,
determine the date of an Optionee's termination of employment or contractual
relationship.
Unless accelerated in accordance with Section 5.6 above, unvested Options
shall terminate immediately upon termination of employment of the Optionee by
the Company for any reason whatsoever, including death or Disability.
If, in the case of an Incentive Stock Option, an Optionee's relationship
with the Company changes (e.g., from an Employee to a non-Employee, such as a
consultant), such change shall not constitute a termination of an Optionee's
employment with the Company but rather the Optionee's Incentive Stock Option.
For purposes of this Section 5.7, transfer of employment between or among the
Company and/or any Related Corporation shall not be deemed to constitute a
termination of employment with the Company or any Related Corporation. For
purposes of this Section 5.7, employment shall be deemed to continue while the
Optionee is on military leave, sick leave or other bona fide leave of absence
(as determined by the Plan Administrator). The foregoing notwithstanding, with
respect to Incentive Stock Options, employment shall not be deemed to continue
beyond the first ninety (90) days of such leave, unless the Optionee's
reemployment rights are guaranteed by statute or by contract.
5.8 EXERCISE OF OPTIONS
Options shall be exercisable, either all or in part, at any time after
vesting, until termination; PROVIDED, that after registration of any of the
Company's securities under Section 12 of the Exchange Act, Optionee must comply
with the six (6) month holding period requirements of Section 16(b) of the
Exchange Act and Rule 16b-3 thereunder. If less than all of the shares included
in the vested portion of any Option are purchased, the remainder may be
purchased at any subsequent time prior to the expiration of the Option term. No
portion of any Option for less than fifty (50) shares (as adjusted pursuant to
Section 5.13 below) may be exercised; PROVIDED, that if the vested portion of
any Option is less than fifty (50) shares, it may be exercised with respect to
all shares for which it is vested. Only whole shares may be issued pursuant to
an Option, and to the extent that an Option covers less than one (1) share, it
is unexercisable. Options or portions thereof may be exercised by giving to the
Company an executed notice of election to exercise, which notice shall specify
the number of shares to be purchased, and be accompanied by payment in the
amount of the aggregate exercise price for the Common Stock so purchased, which
payment shall be in the form specified in Section 5.9 below. The Company shall
not be obligated to issue, transfer or deliver a certificate of Common Stock to
any Optionee, or to his personal representative, until the aggregate exercise
price has been paid for all shares for which the Option shall have been
exercised and adequate provision has been made by the Optionee for satisfaction
of any tax withholding obligations associated with such exercise. During the
lifetime of an Optionee, Options are exercisable only by the Optionee.
5.9 PAYMENT UPON EXERCISE OF OPTION
Upon the exercise of any Option, the aggregate exercise price shall be paid
to the Company in cash or by certified or cashier's check. In addition, unless
the Plan Administrator determines otherwise, in its sole discretion, an Optionee
may pay for all or any portion of the aggregate exercise price by delivering to
the Company shares of Common Stock previously held by such Optionee for at least
six (6) months (or any shorter period necessary to avoid a charge to the
Company's earnings for financial reporting purposes). Upon approval of the Plan
Administrator, an Optionee may also pay for all or any portion of the aggregate
exercise price by (i) delivering an irrevocable subscription agreement
obligating the Optionee to take and pay for the shares of Common Stock to be
purchased within one (1) year of the date of such exercise or (ii) complying
with any other payment mechanisms the Plan Administrator may approve from time
to time. The shares of Common Stock received by the Company as payment for
shares of Common Stock purchased upon the exercise of Options shall have a fair
market value at the date of exercise (as determined by the Plan Administrator)
equal to the aggregate exercise price (or portion thereof) to be paid by the
Optionee upon such exercise
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5.10 RIGHTS AS A SHAREHOLDER
An Optionee shall have no rights as a shareholder with respect to any
shares covered by an Option until such Optionee becomes a record holder of such
shares, irrespective of whether such Optionee has given notice of exercise.
Subject to the provisions of Sections 5.13 and 5.14 below, no rights shall
accrue to an Optionee and no adjustments shall be made on account of dividends
(ordinary or extraordinary, whether in cash, securities or other property) or
distributions or other rights declared on, or created in, the Common Stock for
which the record date is prior to the date the Optionee becomes a record holder
of the shares of Common Stock covered by the Option, irrespective of whether
such Optionee has given notice of exercise.
5.11 TRANSFER OF OPTION
Options granted under this Plan and the rights and privileges conferred by
this Plan may not be transferred, assigned, pledged or hypothecated in any
manner (whether by operation of law or otherwise) other than by will or by
applicable laws of descent and distribution, as defined by the Code, or the
Employee Retirement Income Security Act, or the rules and regulations
thereunder, and shall not be subject to execution, attachment or similar
process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise
dispose of any Option or of any right or privilege conferred by this Plan
contrary to the provisions hereof, or upon the sale, levy or any attachment or
similar process upon the rights and privileges conferred by this Plan, such
Option shall thereupon terminate and become null and void.
5.12 SECURITIES REGULATION AND TAX WITHHOLDING
5.12.1 Shares shall not be issued with respect to an Option unless the
exercise of such Option and the issuance and delivery of such shares shall
comply with all relevant provisions of law, including, without limitation, any
applicable state securities laws, the Securities Act of 1933, as amended, the
Exchange Act, as amended, the rules and regulations thereunder and the
requirements of any stock exchange upon which such shares may then be listed,
and such issuance shall be further subject to the approval of counsel for the
Company with respect to such compliance, including the availability of an
exemption from registration for the issuance and sale of such shares. The
inability of the Company to obtain from any regulatory body the authority deemed
by the Company to be necessary for the lawful issuance and sale of any shares
under this Plan, or the unavailability of an exemption from registration for the
issuance and sale of any shares under this Plan, shall relieve the Company of
any liability with respect to the nonissuance or sale of such shares.
As a condition to the exercise of an Option, the Plan Administrator may
require the Optionee to represent and warrant in writing at the time of such
exercise that the shares are being purchased only for investment and without any
then-present intention to sell or distribute such shares. At the option of the
Plan Administrator, a stop-transfer order against such shares may be placed on
the stock books and records of the Company, and a legend indicating that the
stock may not be pledged, sold or otherwise transferred unless an opinion of
counsel is provided stating that such transfer is not in violation of any
applicable law or regulation, may be stamped on the certificates representing
such shares in order to assure an exemption from registration. The Plan
Administrator also may require such other documentation as may from time to time
be necessary to comply with federal and state securities laws. THE COMPANY HAS
NO OBLIGATION TO UNDERTAKE REGISTRATION OF OPTIONS OR THE SHARES OF STOCK
ISSUABLE UPON THE EXERCISE OF OPTIONS.
5.12.2 As a condition to the exercise of any Option granted under this
Plan, the Optionee shall make such arrangements as the Plan Administrator may
require for the satisfaction of any federal, state or local withholding tax
obligations that may arise in connection with such exercise.
5.12.3 The issuance, transfer or delivery of certificates of Common
Stock pursuant to the exercise of Options may be delayed, at the discretion of
the Plan Administrator, until the Plan Administrator is satisfied that the
applicable requirements of the federal and state securities laws and the
withholding provisions of the Code have been met.
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5.13 STOCK DIVIDEND, REORGANIZATION OR LIQUIDATION
5.13.1 If (i) the Company shall at any time be involved in a
transaction described in Section 424(a) of the Code (or any successor provision)
or any "corporate transaction" described in the regulations thereunder, (ii) the
Company shall declare a dividend payable in, or shall subdivide or combine, its
Common Stock or (iii) any other event with substantially the same effect shall
occur, then the Plan Administrator shall proportionately adjust the number of
shares of Common Stock authorized for issuance under this Plan pursuant to
Section 4 above, and shall further proportionately adjust the number of shares
of Common Stock and/or the exercise price per share with respect to each Option
then outstanding so as to preserve the rights of the Optionee substantially
proportionate to the rights of the Optionee prior to such event, all without
further action on the part of the Plan Administrator, the Company or the
Company's shareholders.
5.13.2 If the Company is liquidated or dissolved, the Plan
Administrator shall allow the holders of any outstanding Options to exercise all
or any part of the unvested portion of the Options held by them; PROVIDED, that
such Options must be exercised prior to the effective date of such liquidation
or dissolution. If the Option holders do not exercise their Options prior to
such effective date, each outstanding Option shall terminate as of the effective
date of the liquidation or dissolution.
5.13.3 The foregoing adjustments in the shares subject to Options
shall be made by the Plan Administrator, or by any successor administrator of
this Plan, or by the applicable terms of any assumption or substitution
document.
5.13.4 The grant of an Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications, reorganizations or
changes of its capital or business structure, to merge, consolidate or dissolve,
to liquidate or to sell or transfer all or any part of its business or assets.
5.14 CHANGE IN CONTROL; DECLARATION OF EXTRAORDINARY DIVIDEND
5.14.1 CHANGE IN CONTROL
Except as otherwise provided in any Agreement for an Option granted prior
to July 31, 1997, if at any time there is a Change in Control (as defined below)
of the Company, all Options shall accelerate and become fully vested and
immediately exercisable for the duration of the Option term. All such Options
shall terminate and cease to remain outstanding immediately following the
consummation of the Change in Control, except to the extent such Options are
assumed by a successor corporation incident to the Change in Control or in the
event of a Change in Control as defined in clause (i) of the following sentence.
For purposes of this Subsection 5.14.1, "Change in Control" shall mean either
one of the following: (i) when any "person," as such term is used in sections
13(d) and 14(d) of the Exchange Act (other than a shareholder of the Company on
the date of this Plan, the Company, a Subsidiary or an employee benefit plan of
the Company, including any trustee of such plan acting as trustee) becomes,
after the date of this Plan, the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting power of the
Company's then outstanding securities; or (ii) the occurrence of a transaction
requiring shareholder approval, and involving the sale of all or substantially
all of the assets of the Company or the merger of the Company with or into
another corporation.
5.14.2 DECLARATION OF EXTRAORDINARY DIVIDEND
If at any time the Company declares an Extraordinary Dividend (as defined
below), all Options shall accelerate and thereupon become fully vested and
immediately exercisable for the duration of the Option term. For purposes of
this Subsection 5.14.2, "Extraordinary Dividend" shall mean a cash dividend
payable to holders of record of the Common Stock in an amount in excess of ten
percent (10%) of the then fair market value of the Company's Common Stock. The
fair market value of the Company's Common Stock shall be determined in good
faith by the Board.
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6. EFFECTIVE DATE; TERM
This Plan shall be effective as of the closing of the initial public
offering of securities of the Company under the Securities Act of 1933.
Incentive Stock Options may be granted by the Plan Administrator from time to
time thereafter until ten (10) years after such approval. Nonqualified Stock
Options may be granted until this Plan is terminated by the Board in its sole
discretion. Termination of this Plan shall not terminate any Option granted
prior to such termination.
7. NO OBLIGATIONS TO EXERCISE OPTION
The grant of an Option shall impose no obligation upon the Optionee to
exercise such Option.
8. NO RIGHT TO OPTIONS OR TO EMPLOYMENT
The grant of any Options under this Plan shall be exclusively within the
discretion of the Plan Administrator, and nothing contained in this Plan shall
be construed as giving any person any right to participate under this Plan. The
Plan shall not confer on any Optionee any right with respect to continuation of
any employment or contractual relationship with the Company or any Related
Corporation, nor shall it interfere in any way with the Company's or, where
applicable, a Related Corporation's right to terminate any Optionee's employment
or contractual relationship at any time, which right is hereby reserved.
9. APPLICATION OF FUNDS
The proceeds received by the Company from the sale of Common Stock issued
upon the exercise of Options shall be used for general corporate purposes,
unless otherwise directed by the Board.
10. INDEMNIFICATION OF PLAN ADMINISTRATOR
In addition to all other rights of indemnification they may have as members
of the Board, members of the Plan Administrator shall be indemnified by the
Company for all reasonable expenses and liabilities of any type or nature,
including reasonable attorneys' fees, incurred in connection with any action,
suit or proceeding to which they or any of them are a party by reason of, or in
connection with, this Plan or any Option granted under this Plan, and against
all amounts paid by them in settlement thereof (provided that such settlement is
approved by independent legal counsel selected by the Company), except to the
extent that such expenses relate to matters for which it is adjudged that such
Plan Administrator member is liable for willful misconduct; PROVIDED, that
within fifteen (15) days after the institution of any such action, suit or
proceeding, the Plan Administrator member involved therein shall, in writing,
notify the Company of such action, suit or proceeding, so that the Company may
have the opportunity to make appropriate arrangements to prosecute or defend the
same.
11. AMENDMENT OF PLAN
The Plan Administrator may, at any time, modify, amend or terminate this
Plan and Options granted under this Plan, including, without limitation, such
modifications or amendments as are necessary to maintain compliance with
applicable statutes, rules or regulations; PROVIDED, that no amendment with
respect to an outstanding Option shall be made over the objection of the
Optionee thereof; and PROVIDED FURTHER, that, following registration of any of
the Company's securities under Section 12 of the Exchange Act, the approval of
the holders of a majority of the Company's outstanding shares of voting capital
stock represented at a meeting at which a quorum is present is required within
twelve (12) months before or after the adoption by the Plan Administrator of any
amendment that will permit the granting of Options to a class of persons other
than those currently eligible to receive Options under this Plan or that would
cause this Plan to no longer comply with Securities and Exchange Commission Rule
16b-3, as amended, or any successor rule or other regulatory requirements.
Without limiting the generality of the foregoing, the Plan Administrator may
modify grants to persons who are eligible to receive
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Options under this Plan who are foreign nationals or employed outside the United
States to recognize differences in local law, tax policy or custom.
Approved by the Company's Board of Directors, as Amended and Restated, as
of April 10, 1997:
Approved by the Company's shareholders, as Amended and Restated, on June 2,
1997:
Approved by the Company's Board of Directors, as Amended and Restated, as
of July 16, 1997.
Approved by the Company's shareholders, as Amended and Restated, as of May
24, 2000.
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