EXHIBIT 10.21
AMGEN INC.
AMENDED AND RESTATED 1988 STOCK OPTION PLAN
1. PURPOSE.
(a) The purpose of the Plan is to provide a means by which
selected employees and directors (if declared eligible under
paragraph 4) of and consultants to Amgen Inc., a Delaware corporation
(the "Company"), and its Affiliates, as defined in subparagraph 1(b),
directly or indirectly through trusts for the benefit of their
families, may be given an opportunity to purchase stock of the
Company.
(b) The word "Affiliate" as used in the Plan means any
parent corporation or subsidiary corporation of the Company, as those
terms are defined in Sections 424(e) and (f), respectively, of the
Internal Revenue Code of 1986, as amended (the "Code").
(c) The Company, by means of the Plan, seeks to retain the
services of persons now holding positions, to secure and retain the
services of persons capable of filling such positions, and to provide
incentives for such persons to exert maximum efforts for the success
of the Company.
(d) The Company intends that the options issued under the
Plan shall, in the discretion of the Board of Directors of the
Company (the "Board") or any committee to which responsibility for
administration of the Plan has been delegated pursuant to subparagraph
2(c), be either incentive stock options as that term is used in Section
422 of the Code ("Incentive Stock Options"), or options which do not
qualify as Incentive Stock Options ("Nonqualified Stock Options"). All
options shall be separately designated Incentive Stock Options or
Nonqualified Stock Options at the time of grant, and in such form as
issued pursuant to paragraph 5, and a separate certificate or
certificates shall be issued for shares purchased on exercise of each
type of option. An option designated as a Nonqualified Stock Option
shall not be treated as an Incentive Stock Option.
The word "Trust" as used in the Plan shall mean a
trust created for the benefit of the employee or consultant, his or
her spouse, or members of their immediate family. The word optionee
shall mean the person to whom the option is granted or the employee
or consultant for whose benefit the option is granted to a Trust, as
the context shall require.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board unless and
until the Board delegates administration to a committee, as provided
in subparagraph 2(c).
(b) The Board shall have the power, subject to, and within
the limitations of, the express provisions of the Plan:
(1) To determine from time to time which of the
persons eligible under the Plan shall be granted options; when and how
the option shall be granted; whether the option will be an Incentive
Stock Option or a Nonqualified Stock Option; the provisions of each
option granted (which need not be identical), including the time or
times during the term of each option within which all or portions of
such option may be exercised; and the number of shares for which an
option shall be granted to each such person.
(2) To construe and interpret the Plan and options
granted under it, and to establish, amend and revoke rules and
regulations for its administration. The Board, in the exercise of
this power, may correct any defect, omission or inconsistency in the
Plan or in any option agreement, in a manner and to the extent it
shall deem necessary or expedient to make the Plan fully effective.
(3) To amend the Plan as provided in paragraph 11.
(4) Generally, to exercise such powers and to perform
such acts as the Board deems necessary or expedient to promote the
best interests of the Company.
(c) The Board may delegate administration of the Plan to a
committee composed of not fewer than three (3) members of the Board
(the "Committee"), all of the members of which Committee shall be
disinterested persons, if required and as defined by the provisions
of subparagraph 2(d). If administration is delegated to a Committee,
the Committee shall have, in connection with the administration of
the Plan, the powers theretofore possessed by the Board, subject,
however, to such resolutions, not inconsistent with the provisions of
the Plan, as may be adopted from time to time by the Board. The
Board may abolish the Committee at any time and revest in the Board
the administration of the Plan.
(d) The term "disinterested person", as used in this Plan,
shall mean an administrator of the Plan, whether a member of the
Board or of any Committee to which responsibility for administration
of the Plan has been delegated pursuant to subparagraph 2(c): (i)
who is not at the time he or she exercises discretion in
administering the Plan eligible and has not at any time within one
(1) year prior thereto been eligible for selection as a person to
whom stock may be allocated or to whom stock options or stock
appreciation rights may be granted pursuant to the Plan or any other
plan of the Company or any of its Affiliates entitling the
participants therein to acquire stock, stock options or stock
appreciation rights of the Company or any of its Affiliates; or (ii)
who is otherwise considered to be a "disinterested person" in
accordance with the rules, regulations or interpretations of the
Securities and Exchange Commission. Any such person shall otherwise
comply with the requirements of Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
from time to time in effect.
(e) Any requirement that an administrator of the Plan be a
"disinterested person" shall not apply if the Board or the Committee
expressly declares that such requirement shall not apply.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 9 relating to
adjustments upon changes in stock, the stock that may be sold
pursuant to options granted under the Plan shall not exceed in the
aggregate Thirty Six Million (36,000,000) shares of the Company's $.0001
par value common stock (the "Common Stock"). If any option granted
under the Plan shall for any reason expire or otherwise terminate without
having been exercised in full, the Common Stock not purchased under
such option shall again become available for the Plan.
(b) The Common Stock subject to the Plan may be unissued
shares or reacquired shares, bought on the market or otherwise.
(c) An Incentive Stock Option may be granted to an
eligible person under the Plan only if the aggregate fair market
value (determined as of the times the respective Incentive Stock
Options are granted) of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by such
optionee during any calendar year under all such plans of the Company
and its Affiliates does not exceed one hundred thousand dollars
($100,000). Should it be determined that any portion of an Incentive
Stock Option granted under the Plan does not qualify for treatment as
an Incentive Stock Option by reason of exceeding such maximum, such
option shall be considered a Nonqualified Stock Option to the extent,
but only to the extent, of such excess. Should it be determined that
an entire option does not qualify for treatment as an Incentive Stock
Option, such option shall, in its entirety, be considered a
Nonqualified Stock Option.
4. ELIGIBILITY.
(a) Incentive Stock Options may be granted only to
employees of the Company or its Affiliates, and a director or officer
of the Company shall not be eligible to receive Incentive Stock
Options unless such director or officer is also an employee of the
Company or any Affiliate. Nonqualified Stock Options may be granted
only to employees of, or consultants to, the Company or its
Affiliates (including directors or officers who so qualify) or to
Trusts of any such employee or consultant.
(b) A director shall in no event be eligible for the
benefits of the Plan unless and until such director is expressly
declared eligible to participate in the Plan by action of the Board
or the Committee, and only if, at any time discretion is exercised by
the Board or the Committee in the selection of a director as a person
to whom options may be granted, or in the determination of the number
of shares which may be covered by options granted to a director: (i)
a majority of the Board and a majority of the directors acting in
such matter are disinterested persons, as defined in subparagraph
2(d); (ii) the Committee consists solely of "disinterested persons"
as defined in subparagraph 2(d); or (iii) the Plan otherwise complies
with the requirements of Rule 16b-3 promulgated under the Exchange
Act, as from time to time in effect. The Board shall otherwise
comply with the requirements of Rule 16b-3 promulgated under the
Exchange Act, as from time to time in effect.
(c) No person shall be eligible for the grant of an
Incentive Stock Option under the Plan if, at the time of grant, such
person owns (or is deemed to own pursuant to Section 424(d) of the
Code) stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of
any of its Affiliates unless the exercise price of such Incentive
Stock Option is at least one hundred and ten percent (110%) of the
fair market value of the Common Stock at the date of grant and the
term of the Incentive Stock Option does not exceed five (5) years
from the date of grant.
5. OPTION PROVISIONS.
Each option shall be in suc h form and shall contain such
terms and conditions as the Board or the Committee shall deem
appropriate. The provisions of separate options need not be
identical, but each option shall include (through incorporation of
provisions hereof by reference in the option or otherwise) the
substance of each of the following provisions:
(a) No option shall be exercisable after the expiration of
ten (10) years from the date it was granted.
(b) The exercise price of each Incentive Stock Option
shall be not less than one hundred percent (100%) of the fair market
value of the Common Stock subject to the option on the date the
option is granted. The exercise price of each Nonqualified Stock
Option shall be not less than eighty-five percent (85%) of the fair
market value of the Common Stock subject to the option on the date
the option is granted.
(c) The purchase price of Common Stock acquired pursuant
to an option shall be paid, to the extent permitted by applicable
statutes and regulations, either: (i) in cash at the time the option
is exercised; or (ii) at the discretion of the Board or the
Committee, either at the time of grant or exercise of the option (A)
by delivery to the Company of other Common Stock of the Company, (B)
according to a deferred payment or other arrangement (which may
include, without limiting the generality of the foregoing, the use of
other Common Stock of the Company) with the person to whom the option
is granted or to whom the option is transferred pursuant to
subparagraph 5(d), or (C) in any other form of legal consideration
that may be acceptable to the Board or the Committee in their
discretion.
In the case of any deferred payment arrangement, interest shall
be payable at least annually and shall be charged at not less than
the minimum rate of interest necessary to avoid the treatment as
interest, under any applicable provisions of the Code, of any amounts
other than amounts stated to be interest under the deferred payment
arrangement.
(d) An option granted to a natural person shall be
exercisable during the lifetime of such person only by such person,
provided that such person during such person's lifetime may designate
a Trust to be such person's beneficiary with respect to any Incentive
Stock Options granted after February 25, 1992 and with respect to any
Nonqualified Stock Options, and such beneficiary shall, after the
death of the person to whom the option was granted, have all the
rights that such person has while living, including the right to
exercise the option. In the absence of such designation, after the
death of the person to whom the option is granted, the option shall
be exercisable by the person or persons to whom the optionee's rights
under such option pass by will or by the laws of descent and
distribution.
(e) The total number of shares of Common Stock subject to
an option may, but need not, be allotted in periodic installments
(which may, but need not, be equal). From time to time during each
of such installment periods, the option may be exercised with respect
to some or all of the shares allotted to that period, and/or with
respect to some or all of the shares allotted to any prior period as
to which the option was not fully exercised. During the remainder of the
term of the option (if its term extends beyond the end of the installment
periods), the option may be exercised from time to time with respect
to any shares then remaining subject to the option. The provisions
of this subparagraph 5(e) are subject to any option provisions
governing the minimum number of shares as to which an option may be
exercised.
(f) The Company may require any optionee, or any person to
whom an option is transferred under subparagraph 5(d), as a condition
of exercising any such option: (1) to give written assurances
satisfactory to the Company as to the optionee's knowledge and
experience in financial and business matters and/or to employ a
purchaser representative who has such knowledge and experience in
financial and business matters, and that he or she is capable of
evaluating, alone or together with the purchaser's representative,
the merits and risks of exercising the option; and (2) to give
written assurances satisfactory to the Company stating that such
person is acquiring the Common Stock subject to the option for such
person's own account and not with any present intention of selling or
otherwise distributing the Common Stock. These requirements, and any
assurances given pursuant to such requirements, shall be inoperative
if: (i) the issuance of the shares upon the exercise of the option
has been registered under a then currently effective registration
statement under the Securities Act of 1933, as amended (the
"Securities Act"); or (ii) as to any particular requirement, a
determination is made by counsel for the Company that such
requirement need not be met in the circumstances under the then
applicable securities law.
(g) An option shall terminate three (3) months after
termination of the optionee's employment or relationship as a
consultant with the Company or an Affiliate, unless: (i) such
termination is due to such person's permanent and total disability,
within the meaning of Section 422(c)(6) of the Code, in which case
the option may, but need not, provide that it may be exercised at any
time within one (1) year following such termination of employment or
relationship as a consultant; (ii) the optionee dies while in the
employ of or while serving as a consultant to the Company or an
Affiliate, or within not more than three (3) months after termination
of such employment or relationship as a consultant, in which case the
option may, but need not, provide that it may be exercised at any
time within eighteen (18) months following the death of the optionee
by the person or persons to whom the optionee's rights under such
option pass by will or by the laws of descent and distribution; or
(iii) the option by its terms specifies either (A) that it shall
terminate sooner than three (3) months after termination of the
optionee's employment or relationship as a consultant, or (B) that it
may be exercised more than three (3) months after termination of the
optionee's employment or relationship as a consultant with the
Company or an Affiliate. This subparagraph 5(g) shall not be
construed to extend the term of any option or to permit anyone to
exercise the option after expiration of its term, nor shall it be
construed to increase the number of shares as to which any option is
exercisable from the amount exercisable on the date of termination of
the optionee's employment or relationship as a consultant.
(h) The option may, but need not, include a provision
whereby the optionee may elect at any time during the term of his or
her employment or relationship as a consultant with the Company or
any Affiliate to exercise the option as to any part or all of the shares
subject to the option prior to the stated vesting date of the option
or of any installment or installments specified in the option. Any
shares so purchased from any unvested installment or option may be
subject to a repurchase right in favor of the Company or to any other
restriction the Board or the Committee determines to be appropriate.
(i) To the extent provided by the terms of an option, the
optionee may satisfy any federal, state or local tax withholding
obligation relating to the exercise of such option by any of the
following means or by a combination of such means: (1) tendering a
cash payment; (2) authorizing the Company to withhold from the shares
of the Common Stock otherwise issuable to the participant as a result
of the exercise of the stock option a number of shares having a fair
market value less than or equal to the amount of the withholding tax
obligation; or (3) delivering to the Company owned and unencumbered
shares of the Common Stock having a fair market value less than or
equal to the amount of the withholding tax obligation.
(j) Without in any way limiting the authority of the Board
or Committee to make or not to make grants of Options hereunder, the
Board or Committee shall have the authority (but not an obligation)
to include as part of any Option agreement, and all outstanding
Nonqualified Stock Options, to the extent there are unvested options
on June 30, 1991, shall be amended to include, a provision entitling
the optionee to a further Option (a "Re-Load Option") in the event
the optionee exercises the Option evidenced by the Option agreement,
in whole or in part, by surrendering other shares of Common Stock in
accordance with this Plan and the terms and conditions of the Option
agreement. Any such Re-Load Option (i) shall be for a number of
shares equal to the number of shares surrendered as part or all of
the exercise price of such Option (or surrendered for shares which
were unvested on June 30, 1991 in the case of an amended Nonqualified
Stock Option); (ii) shall have an expiration date which is the same
as the expiration date of the Option the exercise of which gave rise
to such Re-Load Option; (iii) shall have an exercise price which is
equal to one hundred percent (100%) of the fair market value of the
Common Stock subject to the Re-Load Option on the date of exercise of
the original Option or, in the case of a Re-Load Option which is an
Incentive Stock Option and which is granted to a 10% stockholder (as
defined in subparagraph 4(c)), shall have an exercise price which is
equal to one hundred and ten percent (110%) of the fair market value
of the Common Stock subject to the Re-Load Option on the date of
exercise of the original Option; and (iv) shall be granted under this
Plan, if sufficient shares are available under subparagraph 3(a) of
the Plan, and if sufficient shares of Common Stock are not so
available, shall be granted under the 1991 Equity Incentive Plan to
the extent shares of Common Stock are available under that Plan.
Any such Re-Load Option may be an Incentive Stock Option or a
Nonqualified Stock Option, as the Board or Committee may designate at
the time of the grant of the original Option, except that all Re-Load
Options on unvested shares (as of June 30, 1991) of Non-Qualified
Stock Options shall be Nonqualified Stock Options, provided, however,
that the designation of any Re-Load Option as an Incentive Stock
Option shall be subject to the one hundred thousand dollars
($100,000) annual limitation on exercisability of Incentive Stock
Options described in subparagraph 3(c) of the Plan and in Section 422(d)
of the Code. There shall be no Re-Load Options on a Re-Load Option.
Any such Re-Load Option shall be subject to the availability of
sufficient shares under subparagraph 3(a) of this Plan or under the
1991 Equity Incentive Plan and shall be subject to such other terms
and conditions as the Board or Committee may determine.
6. COVENANTS OF THE COMPANY.
(a) During the terms of the options granted under the
Plan, the Company shall keep available at all times the number of
shares of stock required to satisfy such options.
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority
as may be required to issue and sell shares of stock upon exercise of
the options granted under the Plan; provided, however, that this
undertaking shall not require the Company to register under the
Securities Act either the Plan, any option granted under the Plan or
any Common Stock issued or issuable pursuant to any such option. If,
after reasonable efforts, the Company is unable to obtain from any
such regulatory commission or agency the authority which counsel for
the Company deems necessary for the lawful issuance and sale of stock
under the Plan, the Company shall be relieved from any liability for
failure to issue and sell stock upon exercise of such options unless
and until such authority is obtained.
7. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of Common Stock pursuant to options
granted under the Plan shall constitute general funds of the Company.
8. MISCELLANEOUS.
(a) The Board or the Committee shall have the power to
accelerate the time during which an option may be exercised or the
time during which an option or any part thereof will vest pursuant to
subparagraph 5(e), notwithstanding the provisions in the option
stating the time during which it may be exercised or the time during
which it will vest. Each option providing for vesting pursuant to
subparagraph 5(e) shall also provide that if the employee or
consultant should die during the term of his or her employment with
the Company or his or her affiliation with the Company as a
consultant, the vesting schedule of options granted to such employee
or consultant or to the Trusts of such employee or consultant shall
be accelerated by twelve months for each full year the employee has
been employed by or the consultant has been affiliated with the
Company. Options granted under the Plan that are outstanding on
February 25, 1992, shall be amended to include the accelerated
vesting provided for in the preceding sentence of this Paragraph
8(a).
(b) Neither an optionee nor any person to whom an option
is transferred under subparagraph 5(d) shall be deemed to be the
holder of, or to have any of the rights of a holder with respect to,
any shares subject to such option unless and until such person has
satisfied all requirements for exercise of the option pursuant to its
terms.
(c) Throughout the term of any option granted pursuant to
the Plan, the Company shall make available to the holder of such
option, not later than one hundred twenty (120) days after the close
of each of the Company's fiscal years during the option term, upon
request, such financial and other information regarding the Company
as comprises the annual report to the shareholders of the Company
provided for in the bylaws of the Company.
(d) Nothing in the Plan or any instrument executed or
option granted pursuant thereto shall confer upon any eligible
participant or optionee any right to continue in the employ of the
Company or any Affiliate or to continue acting as a consultant or
shall affect the right of the Company or any Affiliate to terminate
the employment or consulting relationship of any eligible participant
or optionee with or without cause. In the event that an optionee is
permitted or otherwise entitled to take a leave of absence, the
Company shall have the unilateral right to (i) determine whether such
leave of absence will be treated as a termination of employment or
relationship as consultant for purposes of paragraph 5(g) hereof and
corresponding provisions of any outstanding options, and (ii) suspend
or otherwise delay the time or times at which the shares subject to
the option would otherwise vest.
9. CANCELLATION AND RE-GRANT OF OPTIONS.
The Board or the Committee shall have the authority to
effect, at any time and from time to time, with the consent of the
affected option holders, (i) the repricing of any or all outstanding
options under the Plan and/or (ii) the cancellation of any or all
outstanding options under the Plan and the grant in substitution
therefor new options under the Plan covering the same or different
numbers of shares of Common Stock but having an option price per
share not less than eighty-five percent (85%) of the fair market
value in the case of a Nonqualified Stock Option, one hundred percent
(100%) of the fair market value in the case of an Incentive Stock
Option or, in the case of a 10% stockholder (as defined in
subparagraph 4(c)), not less than one hundred and ten percent (110%)
of the fair market value per share of Common Stock on the new grant
date.
10. ADJUSTMENTS UPON CHANGES IN COMMON STOCK.
(a) If any chang e is made in the Common Stock subject to
the Plan, or subject to any option granted under the Plan (through
merger, consolidation, reorganization, recapitalization, stock
dividend, dividend in property other than cash, stock split,
liquidating dividend, combination of shares, exchange of shares,
change in corporate structure or otherwise), the Plan and outstanding
options will be appropriately adjusted in the class(es) and the
maximum number of shares subject to the Plan and the class(es) and
the number of shares and price per share of Common Stock subject to
outstanding options.
(b) Notwithstanding anything to the contrary in this Plan,
in the event of a Change in Control (as hereinafter defined), then,
to the extent permitted by applicable law: (i) the time during which
options become vested shall automatically be accelerated so that the
unvested portions of all options shall be vested prior to the Change
in Control and (ii) the time during which the options may be
exercised shall automatically be accelerated to prior to the Change
of Control. Upon or after the acceleration of the vesting and exercise
periods, at the election of the holders of the options, the options may
be: (x) exercised or, if the surviving or acquiring corporation agrees
to assume the options or substitute similar options, (y) assumed; or (z)
replaced with substitute options. Options not exercised, substituted
or assumed prior to or upon the Change in Control shall be
terminated.
(c) For purposes of the Plan, a "Change of Control" shall
be deemed to have occurred at any of the following times:
(i) Upon the acquisition (other than from the
Company) by any person, entity or "group," within the meaning of
Section 13(d) (3) or 14(d) (2) of the Exchange Act (excluding, for
this purpose, the Company or its affiliates, or any employee benefit
plan of the Company or its affiliates which acquires beneficial
ownership of voting securities of the Company), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of fifty percent (50%) or more of either the then
outstanding shares of Common Stock or the combined voting power of
the Company's then outstanding voting securities entitled to vote
generally in the election of directors; or
(ii) At the time individuals who, as ofOctober 23,
1995, constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board, provided that
any person becoming a director subsequent to October 23, 1995, whose
election, or nomination for election by the Company's stockholders,
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board (other than an election or nomination
of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the
election of the Directors of the Company, as such terms are used in
Rule 14A-11 of Regulation 14A promulgated under the Exchange Act)
shall be, for purposes of the Plan, considered as though such person
were a member of the Incumbent Board; or
(iii) Immediately prior to the consummation by the
Company of a reorganization, merger, consolidation, (in each case,
with respect to which persons who were the stockholders of the
Company immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than fifty
percent (50%) of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities) or a
liquidation or dissolution of the Company or of the sale of all or
substantially all of the assets of the Company; or
(iv) The occurrence of any other event which the
Incumbent Board in its sole discretion determines constitutes a
Change of Control.
11. QUALIFIED DOMESTIC RELATIONS ORDERS
(a) Anything in the Plan to the contrary notwithstanding,
rights under options may be assigned to an Alternate Payee to the
extent that a QDRO so provides. (The terms "Alternate Payee" and
"QDRO" are defined in Subsection (c) below.) The assignment of an
option to an Alternate Payee pursuant to a QDRO shall not be treated
as having caused a new grant. The transfer of an Incentive Stock
Option to an Alternate Payee may, however, cause it to fail to
qualify as an Incentive Stock Option. If an option is assigned to an
Alternate Payee, the Alternate Payee generally has the same rights as
the grantee under the terms of the Plan; provided however, that (1)
the option shall be subject to the same vesting terms and exercise
period as if the option were still held by the grantee, (2) an
Alternate Payee may not transfer an option and (3) an Alternate Payee
is ineligible for Re-Load Options.
(b) In the event of the Plan administrator's receipt of a
domestic relations order or other notice of adverse claim by an
Alternate Payee of a grantee of an option, transfer of the proceeds
of the exercise of such option, whether in the form of cash, stock or
other property, may be suspended. Such proceeds shall thereafter be
transferred pursuant to the terms of a QDRO or other agreement
between the grantee and Alternate Payee. A grantee's ability to
exercise an option may be barred if the Plan administrator receives a
court order directing the Plan administrator not to permit exercise.
(c) The word "QDRO" as used in the Plan shall mean a court
order (1) that creates or recognizes the right of the spouse, former
spouse or child (an "Alternate Payee") of an individual who is
granted an option to an interest in such option relating to marital
property rights or support obligations and (2) that the administrator
of the Plan determines would be a "qualified domestic relations
order," as that term is defined in section 414(p) of the Code and
section 206(d) of the Employee Retirement Income Security Act
("ERISA"), but for the fact that the Plan is not a plan described in
section 3(3) of ERISA.
12. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may
amend the Plan. However, except as provided in paragraph 10 relating
to adjustments upon changes in the Common Stock, no amendment shall
be effective unless approved by the stockholders of the Company
within twelve (12) months before or after the adoption of the
amendment, where the amendment will:
(i) Increase the number of shares reserved for
options under the Plan;
(ii) Modify the requirements as to eligibility for
participation in the Plan (to the extent such modification requires
stockholder approval in order for the Plan to satisfy the
requirements of Section 422(b) of the Code or to comply with the
requirements of Rule 16b-3 promulgated under the Exchange Act); or
(iii) Modify the Plan in any other way if such
modification requires stockholder approval in order for the Plan to
satisfy the requirements of Section 422(b) of the Code or to comply
with the requirements of Rule 16b-3 promulgated under the Exchange
Act.
(b) It is expressly contemplated that the Board may amend
the Plan in any respect the Board deems necessary or advisable to
provide optionees with the maximum benefits provided or to be
provided under the provisions of the Code and the regulations
promulgated thereunder relating to employee incentive stock options
and/or to bring the Plan and/or options granted under it into
compliance therewith.
(c) Rights and obligations under any option granted before
amendment of the Plan shall not be altered or impaired by any
amendment of the Plan, unless: (i) the Company requests the consent
of the person to whom the option was granted; and (ii) such person
consents in writing.
13. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any
time. Unless sooner terminated, the Plan shall terminate on March
14, 1998. No options may be granted under the Plan while the Plan is
suspended or after it is terminated.
(b) Rights and obligations under any option granted while
the Plan is in effect shall not be altered or impaired by suspension
or termination of the Plan, except with the consent of the person to
whom the option was granted.
14. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board.
No option granted as the result of the amendment on April 2, 1991
shall be exercisable unless and until said amendment is approved by
the stockholders of the Company, and to the extent required or
necessary under applicable law, amendments made on April 2, 1991
shall not be effective until approved by the stockholders of the
Company.