Exhibit 10.115
9903.23-1
ac/msoffice/worddocs/spectran/reincentive7fin.323
RESTATED AND AMENDED
1991 INCENTIVE STOCK OPTION PLAN
(Amended effective March 18, 1999)
1. Purpose of the Plan. The purpose of the Plan is to authorize the
grant to directors and key employees of SpecTran Corporation (the "Corporation")
or any present or future subsidiary thereof as hereinafter defined (any
"subsidiary") of options to purchase shares of Common Stock of the Corporation
and thus benefit the Corporation by giving such persons a greater personal
interest in the success of the enterprise and an added incentive to continue and
advance in their employment.
2. Administration. Except as provided in paragraph 4.2 hereof, the Plan
shall be administered by a committee (the "Committee") to be appointed from time
to time by the Corporation's Board of Directors and to consist of not less than
three of the then members of the Board, none of whom shall be an officer or
other employee of the Corporation. The Corporation shall effect the grant of
options under the Plan, in accordance with determinations made by the Committee,
except as provided in paragraph 4.2 hereof, pursuant to the provisions of the
Plan, by execution of instruments in writing in form approved by the Committee.
The Committee shall select one of its members as its Chairman and shall hold its
meetings at such times and places as it shall deem advisable. A majority of its
members shall constitute a quorum and all determinations of the Committee shall
be made by a majority of its members. Any decision or determination reduced to
writing and signed by a majority of the members shall be fully as effective as
if made by a majority vote at a meeting duly called and held. The Committee may
appoint a Secretary, shall keep minutes of its meetings and shall have full
power to make and amend such rules and regulations for the conduct of its
business and for the administration of the Plan as it shall deem appropriate.
The interpretation and construction by the Committee of any provision of the
Plan and of the options granted thereunder shall, unless otherwise determined by
the Board of Directors, be final and conclusive on all persons having any
interest thereunder.
3. Shares Subject to Plan. Subject to adjustment under the provisions
of paragraph 12 hereof, the number of shares of the Corporation's Common Stock
of the par value of $10 per share which may be issued and sold under the Plan
will not exceed 1,200,490 shares, of which no more than 89,000 shares may be
issued pursuant to paragraph 4.2 hereof. Such shares may be either authorized
and unissued shares or shares issued and thereafter acquired by the Corporation,
and such shares will not be offered to the Corporation's stockholders prior to
their issuance under the Plan. If options granted under the Plan shall terminate
or expire without being wholly exercised, new options may be granted under the
Plan covering the number of shares to which such termination, expiration or
surrender relates. The Corporation shall not, upon the exercise of any option,
be required to issue or deliver any shares of stock prior to (a) the admission
of such shares to listing on any stock exchange on which the Corporation's
Common Stock is then listed and (b) the completion of such registration or other
qualification of such shares under any state or federal law, rule or regulation
as the Corporation shall determine to be necessary or advisable.
4. Eligibility.
4.1 Eligible Grantees. Options may be granted only to key employees
of the Corporation or any subsidiary who, in the judgment of the Committee, are
responsible for the management of the enterprise. In addition, non-qualified
options may be granted to members of the Board who are not full-time employees
of the Corporation or any subsidiary ("outside directors") only as provided in
paragraph 4.2 hereof. The terms "parent" and "subsidiary" as used in the Plan
shall mean any corporation which is defined as a "parent corporation" or as a
"subsidiary corporation" in the United States Internal Revenue Code of 1986, as
amended (the "Code"). The term "key employees" as used in the Plan shall mean
officers and other employees of the Corporation or any subsidiary (including
officers who are also directors of the Corporation).
Subject to the foregoing and to paragraph 4.2 hereof, the
Committee shall have full and final authority to determine the persons who are
to be granted options under the Plan and the number of shares subject to each
option; provided, however, that anything contained herein to the contrary
notwithstanding, no employee of the Corporation or any subsidiary shall be
granted an option under this Plan, if such employee at the time the option is
proposed to be granted owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Corporation or of any parent or
subsidiary unless the option price is at least 110% of the fair market value of
the stock subject to the option and the option is not exercisable more than 5
years from the date it is granted.
4.2 Non-Discretionary Option Grants to Outside Directors. (a) Any
other provision of this Plan to the contrary notwithstanding, outside directors
shall not be eligible to receive options under the Plan except pursuant to this
paragraph 4.2. Options shall be granted pursuant to this paragraph only to
persons who are serving as outside directors on the grant date.
(b) Each outside director shall receive an initial grant of a
non-qualified option to purchase 5,000 shares of stock without any action by the
Committee upon the earlier of the effective date of this Plan, or on the last
business day in December in the year in which the outside director was elected a
director by the stockholders for the first time. Subject to subparagraph (d)
below, each initial grant of an option to purchase 5,000 shares shall be
exercisable after the expiration of one year from the date of grant. No outside
director shall receive more than one grant pursuant to this subparagraph.
(c) In addition to the initial grant, on the last business day
of December in each year, each outside director shall without any action of the
Committee be granted a non-qualified option to purchase 1,000 shares. Subject to
subparagraph (d) below, each option to purchase 1,000 shares shall become
exercisable in accordance with subparagraph (a) of paragraph 7 below.
(d) The grants referred to in this paragraph 4.2 shall be
subject to adjustment in accordance with paragraph 12 hereof. The purchase price
per share of the stock under each option granted pursuant to this paragraph 4.2
shall be equal to the fair market value of the stock on the date the option is
granted. All options granted pursuant to this paragraph 4.2 shall expire on the
tenth anniversary of the grant date. All options granted to an outside director
shall, subject to the provisions of paragraph 10, become exercisable when such
director ceases to serve as a director for any reason, as long as such director
has then served as a director of the Company for two consecutive years,
including, for this purpose, time served as a director before the adoption of
this Plan.
5. Types of Option: Incentive and Non-Qualified. An option granted by
the Committee under this Plan shall, as determined by the Committee, be either
an incentive stock option which conforms to the provisions of Section 422 of the
Code (an "incentive stock option") or an option which is not an incentive stock
option (a "non-qualified option"). To the extent that the aggregate fair market
value (determined at the time the option is granted) of the stock with respect
to which incentive stock options that are granted after December 31, 1986 under
the Plan (and all other stock option plans of the Corporation and any subsidiary
or parent) are exercisable for the first time by an optionee during any calendar
year exceeds $100,000, such options shall be treated as options which are not
incentive stock options. The foregoing limitation shall be applied by taking
into account the order in which they were granted.
6. Price. Except as provided in paragraph 4.2, the purchase price under
each option will be determined by the Committee but will not be less than 100%
of the fair market value of the stock at the time of the grant of the option, as
determined by the Committee in accordance with the applicable Code provisions
and regulations. In no event shall the purchase price be less than the par value
of the stock.
7. Period of Option and Rights to Exercise. (a) Except as provided in
paragraphs 4.2, 10 and 11 hereof, the option will be exercisable pursuant to a
schedule that the Committee, in its discretion, may establish.
(a) Each option granted pursuant to this Plan will vest and be
exercisable in any manner that the Committee, in its discretion, may establish,
provided that if no vesting period or other restriction on vesting is specified
in the resolution passed granting any option under this Plan, such option shall
vest as set forth in Section 7(b).
(b) If no vesting schedule is established by the Committee
pursuant to Section 7(a), then the following will apply. The optionee must
remain in the continuous employ of the Corporation and/or its subsidiaries for
one year from the date his option is granted before he can exercise any part
thereof. Thereafter, subject to the provisions of this Section and Sections 10
and 11 below, the option will be exercisable 33-1/3% after one year from grant,
66-2/3% after two years from grant, and 100% after three years from grant.
(c) The right to exercise an option granted to any employee
will expire upon the expiration of ten years from the date the option was
granted.
(d) The right to purchase the shares, including shares
purchased on the exercise of options granted pursuant to paragraph 4.2 hereof,
included in each installment is cumulative, i.e., once such right has become
exercisable it may be exercised in whole at any time or in part from time to
time until the expiration of the option.
(e) All options shall be exercisable in full upon the
occurrence of a Change in Control of the Company. For purposes of this
paragraph, a "Change in Control" shall be deemed to have occurred if (a) any
"person" or "group" (as such terms are used in Section 13 (d)(3) and 14 (d)(2)
of the Securities Exchange Act of 1934, as amended) other than the Company is or
becomes the beneficial owner, directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of the Company's
then outstanding securities; or (b) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Company cease for any reason to constitute at least a majority
thereof unless the election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of at least 75 % of
the directors of the Company then still in office who were directors of the
Company at the beginning of the period.
(f) The shares to be purchased upon each exercise of any
option, including shares purchased on the exercise of options granted pursuant
to paragraph 4.2 hereof, shall be paid for in full at the time of such exercise,
such payment to be made in cash, in Common Stock of the Corporation owned by the
optionee and having a fair market value on the date of exercise equal to the
aggregate purchase price of the shares of Common Stock to be purchased upon such
exercise, or in a combination of Common Stock owned by the optionee and cash.
When payment is made in whole or in part with shares of Common Stock owned by
the optionee, such shares as are surrendered by the optionee shall be exchanged
share for share for an equal number of shares being issued upon the exercise of
the option, but the aggregate fair market value of such surrendered shares shall
be credited against the aggregate purchase price of all of the shares with
respect to which the option is then being exercised.
Except for options granted pursuant to paragraphs 4.2 and 7(a)
hereof, and except as provided in paragraphs 10 and 11 below, no option may be
exercised unless the optionee is then in the employ of the Corporation or any
subsidiary and shall have been continuously employed by one or more of the
Corporation and its subsidiaries since the grant of his option. Absence on leave
approved by an officer of the Corporation or of any subsidiary authorized to
give such approval shall not be considered an interruption of employment for any
purpose of the Plan.
(g) Subsequent to exercise of an option, in the event the
optionee makes a "disqualifying disposition" (i.e., a disposition of shares
received upon exercise of the option held less than two years from the date on
which the option was granted, or less than one year from the date the shares
were transferred to the optionee), the optionee shall so notify the Company, and
shall pay the Company the amount equal to the withholding tax obligation of the
Company with respect to said "disqualifying disposition".
8. Non-Transferability of Option. No option granted under the Plan
shall be transferable by the grantee otherwise than by will or by the laws of
descent and distribution, and such option shall be exercisable, during the
grantee's lifetime, only by the grantee.
9. Registration Under the Securities Act of 1933. The Corporation
contemplates having an effective Registration Statement under the United States
Securities Act of 1933 at such time as options granted under the Plan are
exercised.
10. Termination of Employment. If an optionee shall cease to be
employed by or serve as a director of the Corporation or any subsidiary for any
reason (other than death), he may, but only within the period of three months
next succeeding such cessation of employment or service as a director in no
event after the expiration of ten years from the date the option was granted
exercise his option if and to the extent that he was entitled to exercise it at
the time of such cessation of employment or service as a director unless he was
terminated for cause by the Corporation or any subsidiary. Any optionee whose
employment with or service as a director of the Corporation or any subsidiary is
terminated for cause shall lose the right to exercise any option granted under
this Plan as of the date of notice of his termination.
11. Death of an Optionee. In the event of the death of an optionee,
including an outside director, while in the employ of or serving as an outside
director of the Corporation or any subsidiary or within the period of three
months after cessation of such employment, the option theretofore granted to him
shall be exercisable within, but only within, the period of one year next
succeeding his death, and in no event after the expiration of ten years from the
date of grant, and then only if and to the extent that the optionee would have
been entitled to exercise if he had lived during said one-year period.
12. Adjustment in Shares Subject to Plan. The options granted under the
Plan shall contain such provisions as the Committee may determine with respect
to adjustments to be made in the number and kind of shares covered by such
options and in the option price in the event of a reorganization,
recapitalization, stock split, stock dividend, combination of shares, merger,
consolidation, rights offering or any other change in the corporate structure or
shares of the Corporation; and in the event of any such change, the aggregate
number and kind of shares available under the Plan and the maximum number of
shares as to which options may be granted to any individual shall be
appropriately adjusted.
13. Period, Expiration and Termination of the Plan. Options may be
granted under the Plan at any time prior to the tenth anniversary of the
effective date of the Plan, on which anniversary the Plan will expire except as
to options then outstanding thereunder, which options shall remain in effect
until they have been exercised or have expired. The Plan (or, in accordance with
paragraph 14, only paragraph 4.2) may be abandoned or terminated at any time by
the Corporation's Board of Directors except with respect to any options then
outstanding under the Plan.
14. Amendment of the Plan. The Corporation's Board of Directors from
time to time may make such changes in and additions to the Plan as it may deem
proper and in the best interests of the Corporation or any subsidiary, without
action on the part of the stockholders of the Corporation, provided, however,
that (subject to the provisions of paragraph 12 hereof) no such change or
addition by the Board of Directors shall (a) impair without the consent of the
optionee any option theretofore granted under the Plan or deprive any optionee
of any shares of stock of the Corporation which he may have acquired through or
as a result of the Plan, (b) increase the total number of shares which may be
purchased under the Plan, (c) change the minimum purchase price, (d) extend the
period during which any option may be granted or exercised, (e) withdraw the
administration of the Plan from a Committee of Directors of the Corporation none
of whose members is an officer or other employee of the Corporation or any
subsidiary, or (f) change the provisions of the Plan relating to eligibility,
provided, however, that the Board may terminate paragraph 4.2 without
stockholder approval and, provided further, that Section 4.2 shall not be
amended more than once every six months, other than to comport with changes in
the Internal Revenue Code, or the rules thereunder.
15. Substitution or Assumption of Options. Notwithstanding any other
provision of the Plan to the contrary, by action of the Board of Directors, the
Corporation or any of its subsidiaries may as an incident to or by reason of any
corporate merger, consolidation, acquisition of property or stock, separation,
reorganization or liquidation, substitute new options on stock of the
Corporation for options granted by another employer to its employees on stock of
such employer or may assume options granted by another employer to its
employees, at such purchase prices and under such conditions as may be permitted
by Section 425 (a) of the Code, and the Committee is hereby expressly authorized
to take such action as may be required to effectuate any such issuance or
assumption. Shares of the Corporation subject to any option so issued or assumed
shall be charged against the total number of shares available for issuance under
the Plan.
16. Withholding and Reporting. The Corporation's obligation to deliver
shares of stock or make any payment upon the exercise of any option shall be
subject to applicable federal, state and local tax withholding and reporting
requirements.
17. Effective Date of the Plan. The Plan shall become effective if and
when the Corporation's Board of Directors declares the Plan operative and fixes
an effective date therefor, provided that no option granted under the Plan may
be exercised unless and until the Plan has been approved by the holders of a
majority of the shares of Common Stock of the Corporation outstanding and
entitled to vote at a stockholders' meeting.
Approved by the stockholders of SpecTran Corporation on May 24, 1991,
and adopted and declared effective by the Board of Directors of the Corporation
on May 21, 1991. Amended by the stockholders of SpecTran Corporation on May 15,
1992, May 27, 1994, May 31, 1996 and May 29, 1998. Amended by the Board of
Directors on January 25, 1999 and March 18, 1999.