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Exhibit 10.2
PROCOM TECHNOLOGY, INC.
1995 STOCK OPTION PLAN
1. PURPOSE. The purpose of this Plan is to promote the success of the
Corporation by providing an additional means to attract, motivate and retain key
personnel, consultants, advisors and knowledgeable directors through the grant
of Options that provide added long term incentives for high levels of
performance and for significant efforts to improve the financial performance of
the Corporation.
2. DEFINITIONS.
(a) "Board" shall mean the Board of Directors of the Corporation.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean a committee, if any, appointed by the
Board in accordance with Section 4 of this Plan.
(d) "Common Stock" shall mean the Common Stock, par value $0.001
share, of the Corporation.
(e) "Corporation" shall mean Procom Technology, Inc., a California
corporation.
(f) "Disability" shall mean the condition of an Employee who is, in
the judgment of the Board or the Committee, unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than twelve months.
(g) "Effective Date" shall have the meaning given such term in
Section 3 hereof.
(h) "Employee" shall mean an individual who is employed (within the
meaning of Code Section 3401(c) and the regulations thereunder) by the
Corporation or a Subsidiary.
(i) "Event" shall mean any of the following:
(1) approval by the shareholders of the Corporation of an
agreement to merge or consolidate, or otherwise reorganize, with or
into one or more entities other than Subsidiaries, as a result of which
less than 50%
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of the outstanding voting securities of the surviving or resulting
entity are, or are to be, owned by former shareholders of the
Corporation;
(2) approval by the shareholders of the Corporation of the sale
of all or substantially all of the Corporation's business assets to a
person or entity which is not a Subsidiary; or
(3) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act, but excluding (x) any person described in
and satisfying the conditions of Rule 13d-1(b)(1) thereunder and (y)
any person having beneficial ownership of more than 5% of the
outstanding voting power at the time of adoption of this Plan) becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Corporation
representing more than 50% of the combined voting power of the
Corporation's then outstanding securities entitled to then vote
generally in the election of directors of the Corporation.
(j) "Exchange Act" shall mean the Securities and Exchange Act of
1934, as amended.
(k) "Exercise Price" shall mean the price per Share of Common Stock,
determined by the Board or the Committee, at which an Option may be exercised.
(l) "Fair Market value" shall mean the value of one Share of Common
Stock, determined as follows:
(1) If the Shares are traded on an exchange, the price at which
Shares traded at the close of business on the date of valuation;
(2) If the Shares are traded over-the-counter on the NASDAQ
System, the closing price if one is available, or the mean between the
bid and asked prices on said System at the close of business on the
date of valuation; and
(3) If neither (1) nor (2) applies, the fair market value as
determined by the Board or the Committee in good faith. Such
determination shall be conclusive and binding on all persons.
(m) "Incentive Stock Option" shall mean an option described in
Section 422(b) of the Code.
(n) "Nonstatutory Stock Option" shall mean an option not described
in Section 422(b), 423(b) or 424(b) of the Code.
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(o) "Option" shall mean an option to purchase Common Stock under
this Plan. An Option shall be designated by the Committee as a Nonstatutory
Stock Option or an Incentive Stock Option.
(p) "Optionee" shall mean an employee who has received an Option.
(q) "Plan" shall mean the Procom Technology, Inc. 1995 Stock Option
Plan, as it may be amended from time to time.
(r) "Purchase Price" shall mean the Exercise Price multiplied by the
number of Shares with respect to which an Option is exercised.
(s) "Retirement" shall mean the voluntary termination of employment
by an Employee upon the attainment of age sixty-five and the completion of not
less than twenty years of service with the Corporation or a Subsidiary.
(t) "Share" shall mean one share of Common Stock, adjusted in
accordance with Section 10 of this Plan (if applicable).
(u) "Subsidiary" shall mean any corporation at least fifty percent
of the total combined voting power of which is owned by the Corporation or by
another Subsidiary.
3. EFFECTIVE DATE. This Plan was adopted by the Board and approved by
the Corporation's shareholders as of September 15, 1995, which is the effective
date of this Plan (the "Effective Date").
4. ADMINISTRATION. This Plan shall be administered by the Board, or by
a committee appointed by the Board which shall consist of not less than two
members (either entity acting in such capacity being hereafter referred to as
the "Committee"). The Board shall appoint one of the members of the Committee,
if there be one, as Chairman of the Committee. The Committee shall hold meetings
at such times and places as it may determine. Acts of a majority of the
Committee at which a quorum is present, or acts reduced to or approved in
writing by a majority of the members of the Committee, shall be the valid acts
of the Committee. The Committee shall from time to time at its discretion select
the Plan participants, the number of Shares to be granted to each Optionee (no
more than 100,000 options may be granted hereunder to any person during any
twelve month period) and designate such Options as Incentive Stock Options or
Nonstatutory Stock Options, except that no Incentive Stock Option may be granted
to a non-Employee director or a non-Employee consultant. A member of the
Committee shall in no event participate in any determination relating to Options
held by or to be granted to such Committee member. The interpretation and
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construction by the Committee of any provision of this Plan or of any Option
granted hereunder shall be final. No member of the Committee shall be liable for
any action or determination made in good faith with respect to this Plan or any
Option granted hereunder.
5. PARTICIPATION.
(a) Eligibility. The Optionees shall be such persons as the
Committee may select from among the following classes of persons, subject to the
terms and conditions of (b) below:
(1) Employees of the Corporation or of a Subsidiary (who may be
officers, whether or not they are directors);
(2) Directors of the Corporation or of a Subsidiary; and
(3) Consultants, vendors, customers and others expected to
provide significant services to the Corporation or a Subsidiary.
Solely for purposes of this Plan, an Optionee who is a director or a
consultant, vendor, customer or other provider of significant services to the
Corporation or a Subsidiary shall be deemed to be an Employee, and service as a
director, consultant, vendor, customer or other provider of significant services
to the Corporation or a Subsidiary shall, solely for purposes of this Plan, be
deemed to be employment, except that no Incentive Stock Option may be granted to
a non-Employee director or non-Employee consultant, vendor, customer or other
provider of significant services to the Corporation or a Subsidiary.
(b) Ten-Percent Shareholders. An Employee who owns more than ten
percent of the total combined voting power of all classes of outstanding stock
of the Corporation, its parent or any of its Subsidiaries shall not be eligible
to receive an Incentive Stock Option unless (i) the Exercise Price of the Shares
subject to such Option is at least 110% of the Fair Market value of such Shares
on the date of grant and (ii) such Option by its terms is not exercisable after
the expiration of five years from the date of grant.
(c) Stock Ownership. For purposes of (b) above, in determining stock
ownership, an Employee shall be considered as owning the stock owned, directly
or indirectly, by or for his brothers, sisters, spouses, ancestors and lineal
descendants. Stock owned, directly or indirectly, by or for a corporation,
partnership, estate or trust shall be considered as being owned proportionately
by or for its shareholders, partners or
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beneficiaries. Stock with respect to which such Employee holds an Option shall
not be counted.
(d) Outstanding Stock. For purposes of (b) above, "outstanding
stock" shall include all stock actually issued and outstanding immediately after
the grant of the Option to the Optionee. "Outstanding stock" shall not include
shares authorized for issue under outstanding Options held by the Optionee or by
any other person.
6. STOCK. The stock subject to Options granted under this Plan shall be
Shares of the Corporation's authorized but unissued or reacquired Common Stock.
The aggregate number of Shares which may be issued upon exercise of Options
under this Plan shall not exceed 180,000 shares. The number of Shares subject to
Options outstanding at any time shall not exceed the number of Shares remaining
available for issuance under this Plan. If any outstanding Option for any reason
expires or is terminated, the Shares allocable to the unexercised portion of
such Option may again be made subject to any Option. The limitations established
by this Section 6 shall be subject to adjustment in the manner provided in
Section 10 hereof upon the occurrence of an event specified therein.
7. TERMS AND CONDITIONS OF OPTIONS.
(a) Stock Option Agreements. Options shall be evidenced by written
stock option agreements in such form as the Committee shall from time to time
determine. Such agreements shall comply with and be subject to the terms and
conditions set forth below.
(b) Number of Shares. Each Option shall state the number of Shares
to which it pertains and shall provide for the adjustment thereof in accordance
with the provisions of Section 10 hereof.
(c) Exercise Price. Each Option shall state the Exercise Price. The
Exercise Price in the case of any Incentive Stock Option shall not be less than
the Fair Market Value on the date of grant and, in the case of any Incentive
Stock Option granted to an Optionee described in Section 5(b) hereof, shall not
be less than 110% of the Fair Market Value on the date of grant. The Exercise
Price in the case of any Nonstatutory Stock Option shall not be less than 85% of
the Fair Market Value on the date of grant.
(d) Medium and Time of Payment. The Purchase Price shall be payable
in full in United States dollars upon the exercise of the Option; provided,
however, that if the applicable Option Agreement so provides the Purchase Price
may be paid (i) by the surrender of Shares in good form for transfer, owned by
the person exercising the Option and having a Fair Market Value
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on the date of exercise equal to the Purchase Price, or in any combination of
cash and Shares, as long as the sum of the cash so paid and the Fair Market
Value of the Shares so surrendered equal the Purchase Price, (ii) by
cancellation of indebtedness owed by the Corporation to the Optionee, (iii) with
a full recourse promissory note executed by the Optionee or (iv) any combination
of the foregoing. The interest rate and other terms and conditions of such note
shall be determined by the Committee. The Committee may, if it desires, require
that the Optionee pledge his or her Shares to the Corporation for the purpose of
securing the payment of such note and require that the stock certificate(s)
representing such Shares shall not be released to the Optionee until such note
has been paid in full. If the Corporation determines that it is required to
withhold state or federal income tax as a result of the exercise of an Option,
as a condition to the exercise thereof, an Employee may be required to make
arrangements satisfactory to the Corporation to enable it to satisfy such
withholding requirements.
(e) Term and Nontransferability of Options. Each Option shall state
the time or times, and the conditions upon which, all or part thereof becomes
exercisable. No Option shall be exercisable after the expiration of ten years
from the date it was granted, and no Incentive Stock Option granted to an
Optionee described in Section 5(b) hereof shall be exercisable after the
expiration of five years from the date it was granted. During the lifetime of
the Optionee, the Option shall be exercisable only by the Optionee and shall not
be assignable or transferable. In the event of the Optionee's death, the Option
shall not be transferable by the Optionee other than by will or the laws of
descent and distribution.
(f) Termination of Employment, Except by Death, Disability or
Retirement. If an Optionee ceases to be an Employee for any reason other than
his or her death, Disability or Retirement, such Optionee shall have the right,
subject to the restrictions of (e) above, to exercise the Option at any time
within thirty days after termination of employment, but only to the extent that,
at the date of termination of employment, the Optionee's right to exercise such
Option had vested pursuant to the terms of the applicable option agreement and
had not previously been exercised; provided, however, that if the Optionee was
terminated for cause (as defined in the applicable option agreement) any Option
not exercised in full prior to such termination shall be canceled. For this
purpose, the employment relationship shall be treated as continuing intact while
the Optionee is on military leave, sick leave or other bona fide leave of
absence (to be determined in the sole discretion of the Committee). The
foregoing notwithstanding, (i) in the case of an Incentive Stock Option,
employment shall not be deemed to continue beyond ninety days after the
Optionee's reemployment rights are guaranteed by statute or by contract, and
(ii) in the case of a Nonstatutory Stock Option, the Committee may extend or
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otherwise modify the period of time specified herein during which the Option may
be exercised following termination of Optionee's employment.
(g) Death of Optionee. If an Optionee dies while an Employee, or
after ceasing to be an Employee but during the period while he or she could have
exercised the Option under this Section 7, and has not fully exercised the
Option, then the Option may be exercised in full, subject to the restrictions of
(e) above, at any time within three months after the Optionee's death, by the
executors or administrators of his or her estate or by any person or persons who
have acquired the Option directly from the Optionee by bequest or inheritance,
but only to the extent that, at the date of death, the Optionee's right to
exercise such Option had accrued and had not been forfeited pursuant to the
terms of the applicable Option Agreement and had not previously been exercised.
The foregoing notwithstanding, in the case of a Nonstatutory Stock Option, the
Committee may extend or otherwise modify the period of time specified herein
during which the Option may be exercised following termination of Optionee's
employment, or amend an Incentive Stock Option to convert it into a Nonstatutory
Stock Option with an extended term.
(h) Disability of Optionee. If an Optionee ceases to be an Employee
by reason of Disability, such Optionee shall have the right, subject to the
restrictions of (e) above, to exercise the Option at any time within three
months after termination of employment, but only to the extent that, at the date
of termination of employment, the Optionee's right to exercise such Option had
accrued pursuant to the terms of the applicable option agreement and had not
previously been exercised. The foregoing notwithstanding, in the case of a
Nonstatutory Stock Option, the Committee may extend or otherwise modify the
period of time specified herein during which the Option may be exercised
following termination of Optionee's employment, or amend an Incentive Stock
Option to convert it into a Nonstatutory Stock Option with an extended term.
(i) Retirement of Optionee. If an Optionee ceases to be an Employee
by reason of Retirement, such Optionee shall have the right, subject to the
restrictions of (e) above, to exercise the Option at any time within twelve
months after termination of employment, but only to the extent that, at the date
of termination of employment, the Optionee's right to exercise such Option had
accrued pursuant to the terms of the applicable option agreement and had not
previously been exercised. The foregoing notwithstanding, in the case of a
Nonstatutory Stock Option, the Committee may extend or otherwise modify the
period of time specified herein during which the Option may be exercised
following termination of Optionee's employment, or amend an Incentive Stock
Option to convert it into a Nonstatutory Stock Option with an extended term.
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(j) Rights as a Shareholder. An Optionee, or a transferee of an
Optionee, shall have no rights as a shareholder with respect to any Shares
covered by his or her Option until the date of the issuance of a stock
certificate for such Shares. No adjustment shall be made for dividends (ordinary
or extraordinary, whether in cash, securities or other property), distributions
or other rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 10 hereof.
(k) Modification, Extension and Renewal of Option. Within the
limitations of this Plan, the Committee may modify, extend, renew or reprice
outstanding Options or accept the cancellation of outstanding Options (to the
extent not previously exercised) for the granting of new Options with, if
desired, lower exercise prices, in substitution therefor. The foregoing
notwithstanding, no modification of an Option shall, without the consent of the
Optionee, alter or impair any rights or obligations under any Option previously
granted.
(l) Other Provisions. The stock option agreements authorized under
this Plan may contain such other provisions not inconsistent with the terms of
this Plan (including, without limitation, restrictions upon the exercise of the
Option) as the Committee deems advisable.
8. LIMITATION ON VALUE OF EXERCISABLE SHARES. In the case of Incentive
Stock Options granted hereunder, the aggregate Fair Market Value (determined as
of the date of the grant thereof) of the Shares with respect to which Incentive
Stock Options become exercisable by any employee of the Corporation for the
first time during any calendar year (under this Plan and all other plans
maintained by the Corporation, its parent or its Subsidiaries) shall not exceed
$100,000.
9. TERM OF PLAN. Options may be granted pursuant to this Plan until the
expiration of ten years from the effective date of this Plan.
10. RECAPITALIZATIONS. Subject to any required action by shareholders,
the number of Shares covered by this Plan as provided in Section 6 hereof, the
number of Shares covered by each outstanding Option and the Exercise Price
thereof shall be proportionately adjusted for any increase or decrease in the
number of issued Shares resulting from a subdivision or consolidation of Shares
or the payment of a stock dividend (but only of Common Stock) or any other
increase or decrease in the number of issued Shares effected without receipt of
consideration by the Corporation. Subject to any required action by
shareholders, if the Corporation is the surviving corporation in any merger or
consolidation, each outstanding Option shall apply to the securities to which a
holder of the number of Shares subject to the Option would have been entitled in
the merger or
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consolidation. To the extent that the foregoing adjustments relate to securities
of the Corporation, such adjustments shall be made by the Committee, whose
determination shall be conclusive and binding on all persons. Except as
expressly provided in this Section 10, the Optionee shall have no rights by
reason of subdivision or consolidation of shares of stock of any class, the
payment of any stock dividend or any other increase or decrease in the number of
shares of stock of any class or by reason of any dissolution, liquidation,
merger or consolidation or spin-off of assets or stock of another corporation,
and any issue by the Corporation of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Option. The grant of an Option pursuant
to this Plan shall not affect in any way the right or power of the Corporation
to make adjustments, reclassifications, reorganizations or changes to its
capital or business structure, to merge or consolidate or to dissolve,
liquidate, sell or transfer all or any part of its business assets.
11. SECURITIES LAW REQUIREMENTS.
(a) Legality of Issuance. The issuance of any Shares upon the
exercise of any Option and the grant of any Option shall be contingent upon the
following:
(1) the Corporation and the Optionee shall have taken all
actions required to register the Shares under the Securities Act of
1933, as amended (the "Act"), and to qualify the Option and the Shares
under any and all applicable state securities or "blue sky" laws or
regulations, or to perfect an exemption from the respective
registration and qualification requirements thereof;
(2) any applicable listing requirement of any stock exchange on
which the Common Stock is listed shall have been satisfied; and
(3) any other applicable provision of state or federal law shall
have been satisfied.
(b) Restrictions on Transfer. Regardless of whether the offering and
sale of Shares under this Plan has been registered under the Act or has been
registered or qualified under the securities laws of any state, the Corporation
may impose restrictions on the sale, pledge or other transfer of such Shares
(including the placement of appropriate legends on stock certificates) if, in
the judgment of the Corporation and its counsel, such restrictions are necessary
or desirable in order to achieve compliance with the provisions of the Act, the
securities laws of any state or any other law. In the event that the sale of
Shares under this Plan is not registered under the Act but an
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exemption is available which requires an investment representation or other
representation, each Optionee shall be required to represent that such Shares
are being acquired for investment, and not with a view to the sale or
distribution thereof, and to make such other representations as are deemed
necessary or appropriate by the Corporation and its counsel. Any determination
by the Corporation and its counsel in connection with any of the matters set
forth in this Section 11 shall be conclusive and binding on all persons. Stock
certificates evidencing Shares acquired under this Plan pursuant to an
unregistered transaction shall bear the following restrictive legend and such
other restrictive legends as are required or deemed advisable under the
provisions of any applicable law.
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT"). ANY TRANSFER OF SUCH SECURITIES
WILL BE INVALID UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO
SUCH TRANSFER OR IN THE OPINION OF COUNSEL FOR THE ISSUER SUCH REGISTRATION IS
UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE ACT."
(c) Registration or Qualification of Securities. The Corporation
may, but shall not be obligated to register or qualify the issuance of Options
and/or the sale of Shares under the Act or any other applicable law. The
Corporation shall not be obligated to take any affirmative action in order to
cause the issuance of Options or the sale of Shares under this Plan to comply
with any law.
(d) Exchange of Certificates. If, in the opinion of the Corporation
and its counsel, any legend placed on a stock certificate representing shares
sold under this Plan is no longer required, the holder of such certificate shall
be entitled to exchange such certificate for a certificate representing the same
number of Shares but lacking such legend.
12. AMENDMENT OF THIS PLAN. The Board may from time to time, with
respect to any Shares at the time not subject to Options, suspend or discontinue
this Plan or revise or amend it in any respect whatsoever except that, without
the approval of the Corporation's shareholders, no such revision or amendment
shall:
(a) Increase the number of Shares subject to this Plan;
(b) Change the designation in Section 5 hereof with respect to the
classes of persons eligible to receive Options;
(c) Amend this Section 12 to defeat its purpose.
13. ACCELERATION OF OPTIONS. Unless prior to an Event the Board
determines that, upon its occurrence, there shall be no
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acceleration of Options or determines those selected Options which shall be
accelerated and the extent to which they shall be accelerated, upon the
occurrence of an Event each Option shall become immediately exercisable to the
full extent theretofore not exercisable; subject, however, to compliance with
applicable regulatory requirements, including, without limitation, Rule 16b- 3
promulgated by the Commission pursuant to the Exchange Act and Section 422 of
the Code. For purposes of this section only, the Board shall mean the Board as
constituted immediately prior to the Event.
14. EXECUTION. To record the adoption of this Plan in the form set
forth above by the Board as of the Effective Date, the Corporation has caused
this Plan to be executed in the name and on behalf of the Corporation where
provided below by an officer of the Corporation thereunto duly authorized.
PROCOM TECHNOLOGY, INC.,
a California corporation
By: _______________________
Its:_______________________
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