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EXHIBIT 10.4
LUMINEX LIGHTING, INC.
1997 INCENTIVE AND NONSTATUTORY STOCK OPTION PLAN
DATED MAY 5, 1997
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LUMINEX LIGHTING, INC.
1997 INCENTIVE AND NONSTATUTORY STOCK OPTION PLAN
1. Purpose
This Incentive and Nonstatutory Stock Option Plan (the "Plan") is
intended to further the growth and financial success of LUMINEX LIGHTING, INC.,
a California corporation (the "Corporation") by providing additional incentives
to selected employees of and consultants to the Corporation or parent
corporation or subsidiary corporation of the Corporation as those terms are
defined in Sections 425(3) and 425(f) of the Internal Revenue Code of 1986, as
amended (the "Code") (such parent corporations and subsidiary corporations
hereinafter collectively referred to as "Affiliates") so that such employees and
consultants may acquire or increase their proprietary interest in the
Corporation. Stock options granted under the Plan (hereinafter "Options") may be
either "Incentive Stock Options," as defined in Section 422A of the Code and any
regulations promulgated under said Section, or "Nonstatutory Options" at the
discretion of the Board of Directors of the Corporation (the "Board") and as
reflected in the respective written stock option agreements granted pursuant
hereto.
2. Administration
The Plan shall be administered by the Board of Directors of the
Corporation; provided however, that the Board may delegate such administration
to a committee of not fewer than three (3) members (the "Committee"), at least
two (2) of whom are members of the Board and all of whom are disinterested
administrators, as contemplated by Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended ("Rule 16b-3"); and provided further, that the
foregoing requirement for disinterested administrators shall not apply prior to
the date of the first registration of any of the securities of the Corporation
under the Securities Act of 1933, as amended.
Subject to the provisions of the Plan, the Board and/or the Committee
shall have authority to (a) grant, in its discretion, Incentive Stock Options in
accordance with Section 422A of the Code or Nonstatutory Options; (b) determine
in good faith the fair market value of the stock covered by an Option; (c)
determine which eligible persons shall be granted Options and the number of
shares to be covered thereby and the term thereof; (d) construe and interpret
the Plan; (e) promulgate, amend and rescind rules and regulations relating to
its administration, and correct defects, omissions, and inconsistencies in the
Plan or any Option; (f) consistent with the Plan and with the consent of the
optionee, as appropriate, amend any outstanding Option or amend the exercise
date or dates thereof; (g) determine the duration and purpose of leaves of
absence which may be granted to optionholders without constituting termination
of their employment for the purpose of the Plan; and (h) make all other
determinations necessary or advisable for the Plan's administration. The
interpretation and construction by the Board of any provisions of the Plan or of
any Option it shall be conclusive and final. No member of the Board or the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any Option.
3. Eligibility
The persons who shall be eligible to receive Options shall be key
employees of or consultants to the Corporation or any of its Affiliates
("Optionees"). The term consultant shall mean any person who is engaged by the
Corporation to render services and is compensated for such services, and any
director of the Corporation whether or not compensated for such services;
provided that, if the Corporation registers any of its securities pursuant to
the Securities Exchange Act of 1934, the term consultant shall thereafter not
include directors who are not compensated for their services or are paid only a
director fee by the Corporation.
(a) Incentive Stock Options. Incentive Stock Options may
only be issued to employees of the Corporation or its Affiliates. Incentive
Stock Options may be granted to officers, whether or not they are directors, but
a director shall not be granted an Incentive Stock Option unless such director
is also an employee of the Corporation. Payment of a director fee shall not be
sufficient to constitute employment by the Corporation. Any grant of option to
an officer or director of the Corporation subsequent to the first registration
of any of the securities of the Corporation
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under Securities Act of 1933, as amended, shall comply with the requirements of
Rule 16b-3. An optionee may hold more than one Option.
The Corporation shall not grant an Incentive Stock Option
under the Plan to any employee if such grant would result in such employee
holding the right to exercise for the first time in any one calendar year, under
all options granted to such employee under the Plan or any other stock option
plan maintained by the Corporation or any Affiliate, with respect to shares of
stock having an aggregate fair market value, determined as of the date of the
Option is granted, in excess of $100,000. Should it be determined that an
Incentive Stock Option granted under the Plan exceeds such maximum for any
reason other than a failure in good faith to value the stock subject to such
option, the excess portion of such option shall be considered a Nonstatutory
Option. If, for any reason, an entire option does not qualify as an Incentive
Stock Option by reason of exceeding such maximum, such option shall be
considered a Nonstatutory Option.
(b) Nonstatutory Option. The provisions of the foregoing
Section 3(a) shall not apply to any option designated as a "Non-statutory Stock
Option Agreement" or which sets forth the intention of the parties that the
option be a Nonstatutory Option.
4. Stock
The stock subject to Options shall be the shares of the Corporation's
authorized but unissued or reacquired Common Stock (the "Stock").
(a) Number of Shares. Subject to adjustment as provided in
Paragraph 5(i) of this Plan, the total number of shares of Stock which may be
purchased through exercise of Options granted under this Plan shall not exceed
five hundred thousand (500,000) shares. If any Option shall for any reason
terminate or expire, any shares allocated thereto but remaining unpurchased upon
such expiration or termination shall again be available for the grant of Options
with respect thereto under this Plan as though no Option had been granted with
respect to such shares.
(b) Reservation of Shares. The Corporation shall reserve
and keep available at all times during the term of the Plan such number of
shares as shall be sufficient to satisfy the requirements of the Plan. If, after
reasonable efforts, which efforts shall not include the registration of the Plan
or Options under the Securities Act of 1933, the Corporation is unable to obtain
authority from any applicable regulatory body, which authorization is deemed
necessary by legal counsel for the Corporation for the lawful issuance of shares
hereunder, the Corporation shall be relieved of any liability with respect to
its failure to issue and sell the shares for which such requisite authority was
so deemed necessary unless and until such authority is obtained.
5. Terms and Conditions of Options
Options granted hereunder shall be evidenced by agreements between
the Corporation and the respective Optionees, in such form and substance as the
Board or Committee shall from time to time approve. Such agreements need not be
identical, and in each case may include such provisions as the Board or
Committee may determine, but all such agreements shall be subject to and limited
by the following terms and conditions:
(a) Number of Shares: Each Option shall state the number of
shares to which it pertains.
(b) Option Price: Each Option shall state the Option Price,
which shall be determined as follows:
(i) Any Option granted to a person who at the time the
Option is granted owns (or is deemed to own pursuant to Section
425(d) of the Code) stock possessing more than ten percent (10%) of
the total combined voting power of value of all classes of stock of
the Corporation, or of any Affiliate, ("Ten Percent Holder") shall
have an Option Price of no less than 110% of the fair market value of
the common stock as of the date of grant; and
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(ii) Incentive Stock Options granted to a person who at
the time the Option is granted is not a Ten Percent Holder shall have
an Option price of no less than 100% of the fair market value of the
common stock as of the date of grant.
(iii) Nonstatutory Options granted to a person who at the
time the Option is granted is not a Ten Percent Holder shall have an
Option Price determined by the Board as of the date of grant.
For the purposes of this paragraph 5(b), the fair market
value shall be as determined by the Board, in good faith, which determination
shall be conclusive and binding; provided however, that if there is a public
market for such stock, the fair market value per share shall be the average of
the bid and asked prices (or the closing price if such stock is listed on the
NASDAQ National Market System) on the date of grant of the Option, or if listed
on a stock exchange, the closing price on such exchange on such date of grant.
(c) Medium and Time of Payment: To the extent permissible
by applicable law, the Option price shall be paid, at the discretion of the
Board, at either the time of grant or the time of exercise of the Option (i) in
cash or by check, (ii) by delivery of other common stock of the Corporation,
provided such tendered stock was not acquired directly or indirectly from the
Corporation, or, if acquired from the Corporation, has been held by the Optionee
for more than six (6) months, (iii) by the Optionee's promissory note in a form
satisfactory to the Corporation and bearing interest at a rate determined by the
Board, in its sole discretion, but in no event less than 6% per annum, or (iv)
such other form of legal consideration permitted by the California Corporations
Code as may be acceptable to the Board.
(d) Term and Exercise of Options: Any Option granted to an
Employee of the Corporation shall become exercisable over a period of no longer
than five (5) years, and no less than twenty percent (20%) of the shares covered
thereby shall become exercisable annually. No Option shall be exercisable, in
whole or in part, prior to one (1) year from the date it is granted unless the
Board shall specifically determine otherwise, as provided herein. In no event
shall any Option be exercisable after the expiration of ten (10) years from the
date it is granted, and no Incentive Stock Option granted to a Ten Percent
Holder shall, by its terms, be exercisable after the expiration of five (5)
years from the date of the Option. Unless otherwise specified by the Board or
the Committee in the resolution authorizing such option, the date of grant of an
Option shall be deemed to be the date upon which the Board or the Committee
authorizes the granting of such Option.
Each Option shall be exercisable to the nearest whole
share, in installments or otherwise, as the respective option agreements may
provide. During the lifetime of an Optionee, the Option shall be exercisable
only by the Optionee and shall not be assignable or transferable by the
Optionee, and no other person shall acquire any rights therein. To the extent
not exercised, installments (if more than one) shall accumulate, but shall be
exercisable, in whole or in part, only during the period for exercise as stated
in the option agreement, whether or not other installments are then exercisable.
(e) Termination of Status as Employee or Consultant: If
Optionee's status as an employee or consultant shall terminate for any reason
other than Optionee's disability or death, then the Optionee (or if the Optionee
shall die after such termination, but prior to exercise, Optionee's personal
representative or the person entitled to succeed to the Option) shall have the
right to exercise the portions of any such termination, in whole or in part, at
any time within three (3) months after such termination (or in the event of
"termination for good cause" as that term is defined under California Labor Code
and case law related thereto, such shorter period as the option agreement may
specify, but not less than 30 days) or the remaining term of the Option,
whichever is the lesser; provided, however, that with respect to Nonstatutory
Options, the Board may specify such longer period, not to exceed six (6) months,
for exercise following termination as the Board deems reasonable and
appropriate. The Option may be exercised only with respect to installments that
the Optionee could have exercised at the date of termination of employment.
Nothing contained herein or in any Option granted pursuant hereto shall be
construed to affect or restrict in any way the right of the Corporation to
terminate the employee of an Optionee with or without cause.
(f) Disability of Optionee: If an Optionee dies while
employed or engaged as a consultant by the Corporation or an Affiliate, the
portion of such Optionee's Option or Options which were exercisable at the date
of death may be exercised, in whole or in part, by the estate of the decedent or
by a person succeeding to the right to
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exercise such Option or Options, at any time within (i) a period, as determined
by the Board and set forth in the Option, of not less than six (6) months nor
more than one (1) year after Optionee's death, which period shall not be less,
in the case of a Nonstatutory Option, than the period for exercise following
termination, or (ii) during the remaining term of the Option, whichever is the
lesser. The Option may be so exercised only with respect to installments
exercisable at the time of Optionee's death and not previously exercised by the
Optionee.
(g) Nontransferability of Option: No Option shall be
transferable by the Optionee, except by will or by the laws of descent and
distribution.
(h) Recapitalization: Subject to any required action by the
stockholders, the number of shares of common stock covered by each outstanding
Option, and the price per share thereof set forth in each such Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of common stock of the Corporation resulting from a subdivision or
consolidation of shares or the payment of a stock dividend, or any other
increase or decrease in the number of such shares affected without receipt of
consideration by the Corporation.
Subject to any required action by the stockholders, if the
Corporation shall be the surviving entity in any merger or consolidation, each
outstanding Option thereafter shall pertain to and apply to the securities to
which a holder of shares of common stock equal to the shares subject to the
Option would have been entitled by reason of such merger or consolidation. A
dissolution or liquidation of the Corporation or a merger or consolidation in
which the Corporation is not the surviving entity shall cause each outstanding
Option to terminate on the effective date of such dissolution, liquidation,
merger or consolidation. In such event, if the entity which shall be the
surviving entity does not tender to Optionee an offer, for which it has no
obligation to do so, to substitute for any unexercised Option a stock option or
capital stock of such surviving entity, as applicable, which on an equitable
basis shall provide the Optionee with substantially the same economic benefit as
such unexercised Option, then the Board may grant to such Optionee, but shall
not be obligated to do so, the right for a period commencing thirty (30) days
prior to and ending immediately prior to such dissolution, liquidation, merger
or consolidation or during the remaining term of the Option, whichever is the
lesser, to exercise any unexpired Option or Options, without regard to the
installment provisions of Paragraph 5(d) of this Plan; provided, that any such
right granted shall be granted to all Optionees not receiving an offer to
substitute on a consistent basis, and provided further, that any such exercise
shall be subject to the consummation of such dissolution, liquidation, merger or
consolidation.
In the event of a change in the common stock of the
Corporation as presently constituted, which is limited to a change of all of its
authorized shares without par value into the same number of shares with a par
value, the shares resulting from any such change shall be deemed to be the
common stock within the meaning of this Plan.
To the extent that the foregoing adjustments relate to
stock or securities of the Corporation, such adjustments shall be made by the
Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided in this Paragraph 5(i), the Optionee
shall have no rights by reason of any subdivision or consolidation of shares of
stock or any class or the payment of any stock dividend or any other increase or
decrease in the number of shares of stock of any class, and the number or price
of shares of common stock subject to any Option shall not be affected by, and no
adjustment shall be made by reason of, any dissolution, liquidation, merger or
consolidation, or any issue by the Corporation of shares of stock of any class
or securities convertible into shares of stock of any class.
The grant of an Option pursuant to the Plan shall not
affect in any way the right or power of the Corporation to make any adjustments,
reclassifications, reorganizations or changes in its capital or business
structure or to merge, consolidate, dissolve, or liquidate or to sell or
transfer all or any part of its business or assets.
(i) Rights as a Stockholder: An Optionee shall have no
rights as a stockholder with respect to any shares covered by an Option until
the date of the issuance of a stock certificate to Optionee for such shares. No
adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date is prior to the date such stock certificate is issued, except as
expressly provided in Paragraph 5(i) hereof.
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(j) Modification, Acceleration, Extension, and Renewal of
Options: Subject to the terms and conditions and within the limitations of the
Plan, the Board may modify an Option, or once an Option is exercisable,
accelerate the rate at which it may be exercised, and may extend or renew
outstanding Options granted under the Plan or accept the surrender of
outstanding Options (to the extent not theretofore exercised) and authorize the
granting of new Options in substitution for such Options, provided such action
is permissible under Section 422A of the Code and Section 260.140.41 of the
Corporate Securities Rules of the California Corporations Commissioner.
Notwithstanding the foregoing provisions of this Paragraph
5(k), however, no modification of an Option shall, without the consent of the
Optionee, alter to the Optionee's detriment or impair any rights or obligations
under any Option theretofore granted under the Plan.
(k) Investment Intent: Unless and until the issuance and
sale of the shares subject to the Plan are registered under the Securities Act
of 1933, as amended (the "Act"), each Option under the Plan shall provide that
the purchases of stock thereunder shall be for investment purposes and not with
a view to, or for resale in connection with, any distribution thereof. Further,
unless the issuance and sale of the stock have been registered under the Act,
each Option shall provide that no shares shall be purchased upon the exercise of
such Option unless and until (i) any then applicable requirements of state and
federal laws and regulatory agencies shall have been fully complied with to the
satisfaction of the Corporation and its counsel, and (ii) if requested to do so
by the Corporation, the person exercising the Option shall (i) give written
assurances as to knowledge and experience of such person (or a representative
employed by such person) in financial and business matters and the ability of
such person (or representative) to evaluate the merits and risks of exercising
the Option, and (ii) execute and deliver to the Corporation a letter of
investment intent, all in such form and substance as the Corporation may
require. If shares are issued upon exercise of an Option without registration
under the Act, subsequent registration of such shares shall relieve the
purchaser thereof of any investment restrictions or representations made upon
the exercise of such Options.
(l) Exercise Before Exercise Date: At the discretion of the
Board, the Option may, but need not, include a provision whereby the Optionee
may elect to exercise all or any portion of the Option prior to the stated
exercise date of the Option or any installment thereof. Any shares so purchased
prior to the stated exercise date shall be subject to repurchase by the
Corporation upon termination of Optionee's employment as contemplated by
Paragraphs 5(3), 5(f) and 5(g) hereof prior to the exercise date stated in the
Option and such other restrictions and conditions as the Board or Committee may
deem advisable.
(m) Other Provisions: The Option agreements authorized
under this Plan shall contain such other provisions, including, without
limitation, restrictions upon the exercise of the Options, as the Board or the
Committee shall deem advisable. Shares shall not be issued pursuant to the
exercise of an Option, if the exercise of such Option or the issuance of shares
thereunder would violate, in the opinion of legal counsel for the Corporation,
the provisions of any applicable law or the rules or regulations of any
applicable governmental or administrative agency or body, such as the Act, the
Securities Exchange Act of 1934, the rules promulgated under the foregoing or
the rules and regulations of any exchange upon which the shares of the
Corporation are listed.
6. Availability of Information
During the term of the Plan and any additional period during which an
Option granted pursuant to the Plan shall be exercisable, the Corporation shall
make available, not later than one hundred and twenty (120) days following the
close of each of its fiscal years, such financial and other information
regarding the Corporation as is required by the bylaws of the Corporation and
applicable law to be furnished in an annual report to the stockholders of the
Corporation.
7. Effectiveness of Plan; Expiration
Subject to approval by the stockholders of the Corporation, this Plan
shall be deemed effective as of the date it is adopted by the Board. The Plan
shall expire on December 31, 1997, but such expiration shall not affect the
validity of outstanding Options.
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8. Amendment and Termination of the Plan
The Board may, insofar as permitted by law, from time to time, with
respect to any shares at the time not subject to Options, suspend or terminate
the Plan or revise or amend it in any respect whatsoever, except that without
the approval of the stockholders of the Corporation, no such revision or
amendment shall (i) increase the number of shares subject to the Plan, (ii)
decrease the price at which Options may be granted, (iii) materially increase
the benefits to Optionees, or (iv) change the class of persons eligible to
receive Options under this Plan; provided, however, no such action shall alter
or impair the rights and obligations under any Option outstanding as of the date
thereof without the written consent of the Optionee thereunder. No Option may be
granted while the Plan is suspended or after it is terminated, but the rights
and obligations under any Option granted while the Plan is in effect shall not
be impaired by suspension or termination of the Plan.
9. Indemnification of Board
In addition to such other rights or indemnifications as they may have
as directors or otherwise, and to the extent allowed by applicable law, the
members of the Board and the Committee shall be indemnified by the Corporation
against the reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with the defense of any claim, action, suit
or proceeding, or in connection with any appeal thereof, to which they or any of
them may be a party by reason of any action taken, or failure to act, under or
in connection with the Plan or any Option granted thereunder, and against all
amounts paid by them in settlement thereof (provided such settlement is approved
by independent legal counsel selected by the Corporation) or paid by them in
satisfaction of a judgment in any such claim, action, suit or proceeding, except
in any case in relation to matters as to which it shall be adjudged in such
claim, action, suit or proceeding that such Board member is liable for
negligence or misconduct in the performance of his or her duties; provided that
within sixty (60) days after institution of any such action, suit or Board
proceeding the member involved shall offer the Corporation, in writing, the
opportunity, at its own expense, to handle and defend the same.
10. Application of Funds
The proceeds received by the Corporation from the sale of common
stock pursuant to the exercise of Options will be used for general corporate
purposes.
11. No Obligation to Exercise Option
The granting of an Option shall impose no obligation upon the
Optionee to exercise such Option.
12. Notices
All notice, requests, demand, and other communications pursuant this
Plan shall be in writing and shall be deemed to have been duly given on the date
of service if served personally on the party to whom notice is to be given, or
on the third day following the mailing thereof to the party to whom notice is to
be given, by first class mail, registered or certified, postage prepaid.
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The foregoing Incentive Stock Option Plan was duly adopted and
approved by the Board of Directors on May 5, , 1997, and approved by the
shareholders of the Corporation effective May 5, 1997.
/s/ TASNEEM SIDDIQUI
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Tasneem Siddiqui, Secretary
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