EXHIBIT 10.A.5
APPLE COMPUTER, INC.
1990 STOCK OPTION PLAN
(as amended through 9/9/96)
1. Purposes of the Plan. The purposes of this 1990 Stock
Option Plan are to attract and retain high quality personnel for positions of
substantial responsibility, to provide additional incentive to Employees of
the Company, its Subsidiaries and its Affiliated Companies and to promote
the success of the Company's business. This Plan succeeds to and replaces
the Company's 1981 Stock Option Plan. Options granted under the Plan
may be incentive stock options (as defined under Section 422 of the Code)
or non-statutory stock options, as determined by the Administrator at the
time of grant of an option and subject to the applicable provisions of
Section 422 of the Code, and the regulations promulgated thereunder.
Stock appreciation rights ("SARs") may be granted under the Plan in
connection with Options or independently of Options.
2. Definitions. As used herein, the following definitions
shall apply:
(a) "Administrator" means the Board or any of its
Committees, as shall be administering the Plan from time to time
pursuant to Section 4 of the Plan.
(b) "Affiliated Company" means a corporation which is not
a Subsidiary but with respect to which the Company owns, directly or
indirectly through one or more Subsidiaries, at least 20% of the total
voting power, unless the Administrator determines in its discretion that
such corporation is not an Affiliated Company.
(c) "Board" means the Board of Directors of the Company.
(d) "Common Stock" means the Common Stock, no par
value, of the Company.
(e) "Company" means Apple Computer, Inc., a California
corporation, or its successor.
(f) "Committee" means a Committee, if any, appointed by
the Board in accordance with paragraph (a) of Section 4 of the Plan.
(g) "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor thereto.
(h) "Continuous Status as an Employee" means the absence
of any interruption or termination of the employment relationship with the
Company or any Subsidiary or Affiliated Company. Continuous Status as
an Employee shall not be considered interrupted in the case of: (i) medical
leave, provided that such leave is for a period of not more than four
months; (ii) military leave; (iii) family leave, provided that such leave is
for a period of not more than four months; (iv) any other leave of absence
approved by the Administrator, provided that such leave is for a period of
not more than four months, unless reemployment upon the expiration of
such leave is guaranteed by contract or statute, or unless provided otherwise
pursuant to formal policy adopted from time to time by the Company and
issued and promulgated to Employees in writing; or (v) in the case of
transfers between locations of the Company or between the Company, its
Subsidiaries,its successor or its Affiliated Companies.
(i) "Director" means a member of the Board.
(j) "Employee" means any person, including Officers and
Directors, employed by and on the payroll of the Company, any Subsidiary
or any Affiliated Company. The payment of Directors' fees by the
Company shall not be sufficient to constitute "employment" by the
Company.
(k) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(l) "Fair Market Value" means the value of Common Stock
determined as follows:
(i) If the Common Stock is listed on any
established stock exchange or a national market system (including
without limitation the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotation
("NASDAQ") System), its Fair Market Value shall be the closing
sales price for such stock or the closing bid if no sales were
reported, as quoted on such system or exchange (or the exchange
with the greatest volume of trading in Common Stock) for the
last market trading day prior to the time of determination, as
reported in the Wall Street Journal or such other source as the
Administrator deems reliable.
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(ii) If the Common Stock is regularly quoted on the NASDAQ
System (but not on the National Market System) or quoted by a
recognized securities dealer but selling prices are not reported, its
Fair Market Value shall be the mean between the high and low
asked prices for the Common Stock for the last day on which
there are quoted prices prior to the time of determination.
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be
determined in good faith by the Administrator.
(m) "Officer" means an officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(n) "Nonstatutory Stock Option" means an Option that is
not an Incentive Stock Option.
(o) "Incentive Stock Option" means an Option that satisfies
the provisions of Section 422 of the Code and is expressly designated by
the Administrator at the time of grant as an incentive stock option.
(p) "Option" means an Option granted pursuant to the Plan.
(q) "Optioned Stock" means the Common Stock subject to
an Option or SAR.
(r) "Optionee" means an Employee who receives an Option
or SAR.
(s) "Parent" corporation shall have the meaning defined in
Section 424(e) of the Code.
(t) "Plan" means this 1990 Stock Option Plan.
(u) "SAR" means a stock appreciation right granted pursuant
to Section 9 below.
(v) "Share" means a share of the Common Stock, as adjusted
in accordance with Section 12 of the Plan.
(w) "Subsidiary" corporation has the meaning defined in
Section 424(f) of the Code.
In addition, the terms "Rule 16b-3" and "Applicable Laws", the
term "Insiders", the term "Tax Date" and the terms "Change in Control"
and "Change in Control Price", shall have the meanings set forth,
respectively, in Sections 4, 9, 10 and 12 below.
3. Stock Subject to the Plan. Subject to the provisions of
Section 12 of the Plan, the maximum aggregate number of Shares which
may be optioned and sold under the Plan or for which SARs may be
granted and exercised is 51,200,000 Shares (including Shares issued under
the 1981 Stock Option Plan, to which this Plan is a successor).
The Shares may be authorized but unissued or reacquired Common
Stock.
In the discretion of the Administrator, any or all of the Shares
authorized under the Plan may be subject to SARs issued pursuant to the
Plan.
If an Option or SAR issued under this Plan or under the
Company's 1981 Stock Option Plan should expire or become
unexercisable for any reason without having been exercised in full, the
unpurchased Shares which were subject thereto shall, unless this Plan shall
have been terminated, become available for other Options or SARs under
this Plan. However, should the Company reacquire Shares which were
issued pursuant to the exercise of an Option or SAR, such Shares shall not
become available for future grant under the Plan.
4. Administration of the Plan.
(a) Composition of Administrator.
(1) Multiple Administrative
Bodies. If permitted by Rule 16b-3 promulgated under the Exchange Act
or any successor rule thereto, as in effect at the time that discretion is
being exercised with respect to the Plan ("Rule 16b-3"), and by the legal
requirements relating to the administration of stock plans such as the Plan,
if any, of applicable securities laws, California corporate law and the Code
(collectively, "Applicable Laws"), the Plan may (but need not) be
administered by different administrative bodies with respect to (A) Directors
who are not Employees, (B) Directors who are Employees, (C) Officers
who are not Directors and (D) Employees who are neither Directors nor
Officers.
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(2) Administration with respect
to Directors and Officers. With respect to grants and awards to Employees
who are also Officers or Directors of the Company, the Plan may be
administered by (A) the Board, if the Board may administer the Plan in
compliance with Rule 16b-3 as it applies to grants to Officers and
Directors, or (B) a Committee designated by the Board to administer the
Plan, which Committee shall be constituted (I) in such a manner as to
permit the Plan and grants and awards thereunder to comply with Rule 16b-
3 as it applies to grants to Officers and Directors and (II) in such a manner
as to satisfy the Applicable Laws.
(3) Administration with respect
to Other Persons. With respect to grants and awards to Employees who are
neither Directors nor Officers of the Company, the Plan may be
administered by (A) the Board or (B) a Committee designated by the Board,
which Committee shall be constituted in such a manner as to satisfy the
Applicable Laws.
(4) General. Once a Committee
has been appointed pursuant to subsection (2) or (3) of this Section 4(a),
such Committee shall continue to serve in its designated capacity until
otherwise directed by the Board. From time to time the Board may increase
the size of any Committee and appoint additional members thereof, remove
members (with or without cause) and appoint new members in substitution
therefor, fill vacancies (however caused) and remove all members of a
Committee and thereafter directly administer the Plan, all to the extent
permitted by the Applicable Laws and, in the case of a Committee
appointed under subsection (2) to the extent permitted by Rule 16b-3 as it
applies to grants to Officers and Directors.
(b) Powers of the Administrator. Subject to the
provisions of the Plan and, in the case of a Committee, subject to the
specific duties delegated by the Board to such Committee, the
Administrator shall have the authority, in its discretion: (i) to determine
the Fair Market Value of the Common Stock in accordance with Section
2(l) of the Plan; (ii) to determine, in accordance with Section 8(a) of the
Plan, the exercise price per Share of Options and SARs to be granted; (iii)
to determine the Employees to whom, and the time or times at which,
Options and SARs shall be granted and the number of Shares to be
represented by each Option or SAR (including without limitation whether
or not a corporation shall be excluded from the definition of Affiliated
Company under Section 2(b)); (iv) to interpret the Plan; (v) to determine
the terms and conditions, not inconsistent with the terms of the Plan, of
any Option or SAR granted hereunder (including, but not limited to, any
restriction or limitation, or any vesting acceleration or waiver of forfeiture
restrictions regarding any Option or SAR and/or the Shares relating
thereto, based in each case on such factors as the Administrator shall
determine, in its sole discretion); (vi) to approve forms of agreement for
use under the Plan; (vii) to prescribe, amend and rescind rules and
regulations relating to the Plan; (viii) to modify or amend each Option or
SAR (with the consent of the Optionee) or accelerate the exercise date of
any Option or SAR; (ix) to reduce the exercise price of any Option or SAR
to the then current Fair Market Value if the Fair Market Value of the
Common Stock covered by such Option or SAR shall have declined since
the date the Option or SAR was granted; (x) to authorize any person to
execute on behalf of the Company any instrument required to effectuate the
grant of an Option or SAR previously granted by the Administrator; and
(xi) to make all other determinations deemed necessary or advisable for the
administration of the Plan.
(c) Effect of Decisions by the Administrator. All
decisions, determinations and interpretations of the Administrator shall be
final and binding on all Optionees and any other holders of any Options.
5. Eligibility. Options and SARs may be granted only to
Employees. An Employee who has been granted an Option or SAR may,
if he or she is otherwise eligible, be granted an additional Option or
Options, SAR or SARs. Each Option shall be evidenced by a written
Option agreement, which shall expressly identify the Options as Incentive
Stock Options or as Nonstatutory Stock Options, and which shall be in
such form and contain such provisions as the Administrator shall from
time to time deem appropriate. However, notwithstanding such
designation, to the extent that the aggregate Fair Market Value of the
Shares with respect to which Options designated as Incentive Stock
Options and options granted under other plans of the Company or any
Parent or Subsidiary that are designated as incentive stock options are
exercisable for the first time by an Optionee during any calendar year
exceeds $100,000, such excess Options shall be treated as Nonstatutory
Stock Options. For purposes of the preceding sentence, (i) Options shall
be taken into account in the order in which they were granted, and (ii) the
Fair Market Value of the Shares shall be determined as of the time the
Option or other incentive stock option with respect to such Shares is
granted. Without limiting the foregoing, the Administrator may, at any
time, or from time to time, authorize the Company, with the consent of
the respective recipients, to issue new Options or Options in exchange for
the surrender and cancellation of any or all outstanding Options, other
options, SARs or other stock appreciation rights.
Neither the Plan nor any Option or SAR agreement shall confer
upon any Optionee any right with respect to continuation of employment
by the Company (or any Parent, Subsidiary or Affiliated Company), nor
shall it interfere in any way with the Optionee's right or the right of the
Company (or any Parent, Subsidiary or Affiliated Company) to terminate
the Optionee's employment at any time or for any reason.
6. Term of Plan. The Plan shall become effective upon its
adoption by the Board or its approval by vote of the holders of a majority
of the outstanding Shares of the Company entitled to vote on the adoption
of the Plan, whichever is earlier. It shall continue in effect for a term of
ten (10) years unless sooner terminated under Section 14 of the Plan.
7. Term of Option. The term of each Option shall be ten
(10) years from the date of grant thereof or such shorter term as may be
provided in the Option agreement. However, in the case of an Incentive
Stock Option granted to an Optionee who, at the time the Incentive
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Stock Option is granted, owns stock representing more than ten percent
(10%) of the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the term of the Option shall be five (5) years from
the date of grant thereof or such shorter time as may be provided in the
Option agreement.
8. Exercise Price and Consideration.
(a) Exercise Price. The per Share exercise price for
the Shares issuable pursuant to an Option shall be such price as is
determined by the Administrator, but shall in no event be less than 100%
of the Fair Market Value of Common Stock, determined as of the date of
grant of the Option. In the event that the Administrator shall reduce the
exercise price, the exercise price shall be no less than 100% of the Fair
Market Value as of the date of that reduction. In no event shall the per
Share exercise price be less than 110% of the Fair Market Value per Share
as of the date of grant in the case of an Incentive Stock Option granted to
an Optionee who, immediately before the grant of such Option, owns
Shares representing more than 10% of the voting power or value of all
classes of stock of the Company or any Parent or Subsidiary.
(b) Method of Payment. The consideration to be
paid for the Shares to be issued upon exercise of an Option, including the
method of payment, shall be determined by the Administrator (and, in the
case of an Incentive Stock Option, shall be determined at the time of grant)
and may consist of (i) cash, (ii) check, (iii) promissory note, (iv) other
Shares which have a Fair Market Value on the date of surrender equal to the
aggregate exercise price of the Shares as to which said Option shall be
exercised, (v) delivery of a properly executed exercise notice together with
irrevocable instructions to a broker to promptly deliver to the Company
the amount of sale or loan proceeds required to pay the exercise price, or
(vi) any combination of the foregoing methods of payment and/or any
other consideration or method of payment as shall be permitted under
applicable corporate law.
9. Stock Appreciation Rights.
(a) Granted in Connection with Options. At the
sole discretion of the Administrator, SARs may be granted in connection
with all or any part of an Option, either concurrently with the grant of the
Option or at any time thereafter during the term of the Option. The
following provisions apply to SARs that are granted in connection with
Options:
(i) The SAR shall entitle the Optionee to
exercise the SAR by surrendering to the Company unexercised a portion of
the related Option. The Optionee shall receive in exchange from the
Company an amount equal to the excess of (x) the Fair Market Value on
the date of exercise of the SAR of the Common Stock covered by the
surrendered portion of the related Option over (y) the exercise price of the
Common Stock covered by the surrendered portion of the related Option.
Notwithstanding the foregoing, the Administrator may place limits on the
amount that may be paid upon exercise of an SAR; provided, however, that
such limit shall not restrict the exercisability of the related Option.
(ii) When an SAR is exercised, the related
Option, to the extent surrendered, shall no longer be exercisable.
(iii) An SAR shall be exercisable only
when and to the extent that the related Option is exercisable and
shall expire no later than the date on which the related Option
expires.
(iv) An SAR may only be exercised at a
time when the Fair Market Value of the Common Stock covered by the
related Option exceeds the exercise price of the Common Stock covered by
the related Option.
(b) Independent SARs. At the sole discretion of the
Administrator, SARs may be granted without related Options. The
following provisions apply to SARs that are not granted in connection
with Options:
(i) The SAR shall entitle the Optionee,
by exercising the SAR, to receive from the Company an amount
equal to the excess of (x) the Fair Market Value of the Common
Stock covered by exercised portion of the SAR, as of the date of
such exercise, over (y) the Fair Market Value of the Common
Stock covered by the exercised portion of the SAR, as of the date
on which the SAR was granted; provided, however, that the
Administrator may place limits on the amount that may be paid
upon exercise of an SAR.
(ii) SARs shall be exercisable, in whole or
in part, at such times as the Administrator shall specify in the
Optionee's SAR agreement.
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(c) Form of Payment. The Company's obligation
arising upon the exercise of an SAR may be paid in Common Stock or in
cash, or in any combination of Common Stock and cash, as the
Administrator, in its sole discretion, may determine. Shares issued upon
the exercise of an SAR shall be valued at their Fair Market Value as of the
date of exercise.
(d) Rule 16b-3. SARs granted to persons who are
subject to Section 16 of the Exchange Act ("Insiders") shall contain such
additional restrictions as may be required to be contained in the plan or
SAR agreement in order for the SAR to qualify for the maximum
exemption provided by Rule 16b-3.
10. Method of Exercise.
(a) Procedure for Exercise; Rights as a Shareholder.
Any Option or SAR granted hereunder shall be exercisable at such times
and under such conditions as determined by the Administrator and as shall
be permissible under the terms of the Plan.
An Option or SAR shall be deemed to be exercised when
written notice of such exercise has been given to the Company in
accordance with the terms of the Option or SAR by the person entitled to
exercise the Option or SAR and full payment for the Shares with respect to
which the Option is exercised has been received by the Company. Full
payment may, as authorized by the Administrator (and, in the case of an
Incentive Stock Option, determined at the time of grant) and permitted by
the Option agreement, consist of any consideration and method of payment
allowable under Section 8(b) of the Plan. Until the issuance (as evidenced
by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the stock certificate
evidencing such Shares, no right to vote or receive dividends or any other
rights as a shareholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. No adjustment will be made
for a dividend or other right for which the record date is prior to the date
the stock certificate is issued, except as provided in Section 12 of the Plan.
An Option or SAR may not be exercised with respect to a fraction of a
Share.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter shall be available, both
for purposes of the Plan and for sale under the Option, by the number of
Shares as to which the Option is exercised. Exercise of an SAR in any
manner shall, to the extent the SAR is exercised, result in a decrease in the
number of Shares which thereafter shall be available for purposes of the
Plan, and the SAR shall cease to be exercisable to the extent it has been
exercised.
(b) Rule 16b-3. Options and SARs granted to
Insiders must comply with Rule 16b-3 and shall contain such additional
conditions or restrictions as may be required thereunder to be contained in
the Plan or the agreement to qualify for the maximum exemption from
Section 16 of the Exchange Act with respect to Plan transactions.
(c) Termination of Continuous Employment.
Upon termination of an Optionee's Continuous Status as Employee (other
than termination by reason of the Optionee's death), the Optionee may, but
only within ninety (90) days after the date of such termination, exercise his
or her Option or SAR to the extent that it was exercisable at the date of
such termination. Notwithstanding the foregoing, however, an Option or
SAR may not be exercised after the date the Option or SAR would
otherwise expire by its terms due to the passage of time from the date of
grant.
(d) Death of Optionee. In the event of the death of
an Optionee:
(1) Who is at the time of death an
Employee and who shall have been in Continuous Status as an
Employee since the date of grant of the Option, the Option or
SAR may be exercised at any time within six (6) months (or such
other period of time not exceeding twelve (12) months as
determined by the Administrator) following the date of death by
the Optionee's estate or by a person who acquired the right to
exercise the Option by bequest or inheritance, but only to the
extent of the right to exercise that would have accrued had the
Optionee continued living and terminated his or her employment
six (6) months (or such other period of time not exceeding twelve
(12) months as determined by the Administrator) after the date of
death; or
(2) Within ninety (90) days after the
termination of Continuous Status as an Employee, the Option or
SAR may be exercised, at any time within six (6) months (or
such other period of time not exceeding twelve (12) months as
determined by the Administrator) following the date of death by
the Optionee's estate or by a person who acquired the right to
exercise the Option by bequest or inheritance, but only to the
extent of the right to exercise that had accrued at the date of
termination.
Notwithstanding the foregoing, however, an Option or
SAR may not be exercised after the date the Option or SAR would
otherwise expire by its terms due to the passage of time from the date of
grant.
(e) Stock Withholding to Satisfy Withholding Tax
Obligations. When an Optionee incurs tax liability in connection with the
exercise of an Option or SAR, which tax liability is subject to tax
withholding under applicable tax laws, and the Optionee is obligated to pay
the Company an amount required to be withheld under applicable tax laws,
the Optionee may satisfy the withholding tax obligation (including, at the
election of the Optionee, any additional amount which the Optionee desires
to have withheld in order to satisfy in whole or in part the Optionee's full
estimated tax in connection with the exercise) by electing to have the
Company withhold from the Shares to be issued
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upon exercise of the Option, or the Shares to be issued upon exercise of
the SAR, if any, that number of Shares having a Fair Market Value equal
to the amount required to be withheld (and any additional amount desired to
be withheld, as aforesaid). The Fair Market Value of the Shares to be
withheld shall be determined on the date that the amount of tax to be
withheld is to be determined (the "Tax Date").
All elections by an Optionee to have Shares withheld for
this purpose shall be made in writing in a form acceptable to the
Administrator and shall be subject to the following restrictions:
(i) the election must be made on or prior
to the applicable Tax Date; and
(ii) all elections shall be subject to the
consent or disapproval of the Administrator.
In the event the election to have Shares withheld is made
by an Optionee and the Tax Date is deferred under Section 83 of the Code
because no election is filed under Section 83(b) of the Code, the Optionee
shall receive the full number of Shares with respect to which the Option or
SAR is exercised but such Optionee shall be unconditionally obligated to
tender back to the Company the proper number of Shares on the Tax Date.
11. Non-Transferability of Options. Options and SARs may
not be sold, pledged, assigned, hypothecated, transferred or disposed of in
any manner other than by will or by the laws of descent or distribution or
pursuant to a qualified domestic relations order as defined by the Code or
Title I of the Employee Retirement Income Security Act, or the rules
thereunder, provided, however, that the Adminstrator may grant non-
qualified stock options that are freely transferable. The designation of a
beneficiary by an Optionee or holder of an SAR does not constitute a
transfer. An Option or an SAR may be exercised, during the lifetime of
the Optionee or SAR holder, only by the Optionee or SAR holder or by a
transferee permitted by this Section 11.
12. Adjustments Upon Changes in Capitalization or Merger.
(a) Changes in Capitalization. Subject to any
required action by the shareholders of the Company, the number of Shares
covered by each outstanding Option and SAR, and the number of Shares
which have been authorized for issuance under the Plan but as to which no
Options or SARs have yet been granted or which have been returned to the
Plan upon cancellation or expiration of an Option or SAR, as well as the
price per Share covered by each such outstanding Option or SAR, shall be
proportionately adjusted for any increase or decrease in the number of
issued Shares resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any
other increase or decrease in the aggregate number of issued Shares effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be
deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Administrator, whose determination in
that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of Shares subject to an Option or SAR.
(b) Dissolution or Liquidation. In the event of the
proposed dissolution or liquidation of the Company, all outstanding
Options and SARs will terminate immediately prior to the consummation
of such proposed action, unless otherwise provided by the Administrator.
The Administrator may, in the exercise of its sole discretion in such
instances, declare that any Option or SAR shall terminate as of a date fixed
by the Administrator and give each Optionee the right to exercise his or her
Option or SAR as to all or any part of the Optioned Stock or SAR,
including Shares as to which the Option or SAR would not otherwise be
exercisable.
(c) Sale of Assets or Merger. Subject to the
provisions of paragraph (d) hereof, in the event of a proposed sale of all or
substantially all of the assets of the Company, or the merger of the
Company with or into another corporation, each outstanding Option and
SAR shall be assumed or an equivalent option or stock appreciation right
shall be substituted by such successor corporation or a parent or subsidiary
of such successor corporation, unless the Administrator determines, in the
exercise of its sole discretion and in lieu of such assumption or
substitution, that the Optionee shall have the right to exercise the Option
or SAR as to all of the Optioned Stock, including Shares as to which the
Option or SAR would not otherwise be exercisable. If the Administrator
makes an Option or SAR fully exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Company shall
notify the Optionee that the Option or SAR shall be fully exercisable for a
period of thirty (30) days from the date of such notice, and the Option or
SAR will terminate upon the expiration of such period. For purposes of
this paragraph, an Option granted under the Plan shall be deemed to be
assumed if, following the sale of assets or merger, the Option confers the
right to purchase, for each Share of Optioned Stock subject to the Option
immediately prior to the sale of assets or merger, the consideration
(whether stock, cash or other securities or property) received in the sale of
assets or merger by holders of Common Stock for each Share held on the
effective date of the transaction (and if such holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority
of the outstanding Shares); provided, however, that if such consideration
received in the sale of assets or merger was not solely Common Stock of
the successor corporation or its parent, the Administrator may, with the
consent of the successor corporation and the participant, provide for the per
share consideration to be received upon exercise of the Option to be solely
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Common Stock of the successor corporation or its parent equal in Fair
Market Value to the per share consideration received by holders of
Common Stock in the sale of assets or merger.
(d) Change in Control. In the event of a "Change
in Control" of the Company, as defined in paragraph (e) below, unless
otherwise determined by the Administrator prior to the occurrence of such
Change in Control, the following acceleration and valuation provisions
shall apply:
(1) Any Options and SARs outstanding as
of the date such Change in Control is determined to have occurred
that are not yet exercisable and vested on such date shall become
fully exercisable and vested; and
(2) The value of all outstanding Options
and SARs shall, unless otherwise determined by the Administrator
at or after grant, be cashed-out. The amount at which such
Options and SARs shall be cashed out shall be equal to the excess
of (x) the Change in Control Price (as defined below) over (y) the
exercise price of the Common Stock covered by the Option or
SAR. The cash-out proceeds shall be paid to the Optionee or, in
the event of death of an Optionee prior to payment, to the estate
of the Optionee or to a person who acquired the right to exercise
the Option or SAR by bequest or inheritance.
(e) Definition of "Change in Control". For
purposes of this Section 12, a "Change in Control" means the happening
of any 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
the Company, a Subsidiary or a Company employee benefit plan,
including any trustee of such plan acting as trustee) is or becomes
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.
(f) Change in Control Price. For purposes of this
Section 12, "Change in Control Price" shall be, as determined by the
Administrator, (i) the highest Fair Market Value at any time within the 60-
day period immediately preceding the date of determination of the Change
in Control Price by the Administrator (the "60-Day Period"), or (ii) the
highest price paid or offered, as determined by the Administrator, in any
bona fide transaction or bona fide offer related to the Change in Control of
the Company, at any time within the 60-Day Period.
13. Time of Granting Options and SARs. The date of grant
of an Option or SAR shall, for all purposes, be the date on which the
Administrator makes the determination granting such Option or SAR.
Notice of the determination shall be given to each Employee to whom an
Option or SAR is so granted within a reasonable time after the date of such
grant.
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may
at any time amend, alter, suspend or terminate the Plan, as it may deem
advisable; provided that, to the extent necessary and desirable to comply
with Applicable Laws, regulatons or rules, the Company shall obtain
shareholder approval of any Plan amendment in such a manner and to such
a degree as is required.
(b) Effect of Amendment or Termination. Any
such amendment, alteration, suspension or termination of the Plan shall
not impair the rights of any Optionee or SAR holder under any grant
theretofore made without his or her consent. Such Options and SARs
shall remain in full force and effect as if this Plan had not been amended or
terminated.
15. Conditions Upon Issuance of Shares. Shares shall not
be issued with respect to an Option or SAR unless the exercise of such
Option or SAR and the issuance and delivery of such Shares pursuant
thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended, the Exchange
Act, the rules and regulations promulgated thereunder, and the requirements
of any stock exchange or quotation system upon which the Shares may
then be listed or quoted, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option or SAR or
the issuance of Shares upon exercise of an Option or SAR, the Company
may require the person exercising such Option or SAR to represent and
warrant at the time of any such exercise that the Shares are being purchased
only for investment and without any present intention to sell or distribute
such Shares if, in the opinion of counsel for the Company, such a
representation is required by any of the aforementioned relevant provisions
of law.
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Inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the
Company's counsel to be necessary to the lawful issuance and sale of any
Shares hereunder, shall relieve the Company of any liability in respect of
the non-issuance or sale of such Shares as to which such requisite authority
shall not have been obtained.
16. Reservation of Shares. The Company, during the term
of this Plan, will at all times reserve and keep available such number of
Shares as shall be sufficient to satisfy the requirements of the Plan.
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