EXHIBIT 10.19
PHOTOMEDEX, INC.
2000 STOCK OPTION PLAN
AMENDED AND RESTATED AS OF SEPTEMBER 24, 2002
1. PURPOSE. The purpose of the PhotoMedex, Inc. Amended and
Restated 2000 Stock Option Plan (the "Plan") is to provide an incentive to
officers, directors, employees, independent contractors, and consultants of
PhotoMedex, Inc., a Delaware corporation (the "Company"), and any parent
companies and subsidiaries (together with the Company herein collectively
referred to as "PHMD") to remain in the employ of PHMD or provide services to
PHMD and contribute to its success. This Plan was adopted by the Board of
Directors as of October 16, 2000, and amends and restates the Company's 2000
Stock Option Plan, which was originally adopted by the Board of Directors as of
May 15, 2000 and approved by the stockholders of the Company as of July 18,
2000, and amended by the Board of Directors on May 3, 2002 and approved by the
stockholders of the Company on June 10, 2002.
As used in the Plan, the term "Code" shall mean the Internal Revenue Code
of 1986, as amended, and any successor statute, and the terms "Parent" and
"Subsidiary" shall have the meanings set forth in Section 424(e) and (f) of the
Code.
2. ADMINISTRATION. The Plan shall be administered by a committee
(the "Plan Committee") which shall be established by the Board of Directors of
the Company (the "Board"). The Plan Committee shall be comprised of at least two
individuals, each of whom shall be a "nonemployee director," as defined in Rule
16b-3, as promulgated by the Securities and Exchange Commission ("Rule 16b-3")
under the Securities Exchange Act of 1934, as amended and shall, at such times
as the Company is subject to Section 162(m) of the Code (to the extent relief
from the limitation of Section 162(m) of the Code is sought with respect to
Options), qualify as "outside directors" for purposes of Section 162(m) of the
Code. Members of the Plan Committee shall be appointed, both initially and as
vacancies occur, by the Board. The Board may serve as the Plan Committee if by
the terms of the Plan all members of the Board are otherwise eligible to serve
on the Plan Committee. The Board, at any time it so desires, may increase or
decrease, but not below two, the number of members of the Plan Committee, may
remove from membership on the Plan Committee all or any portion of its members,
and may appoint such person or persons as it desires to fill any vacancy
existing on the Plan Committee, whether by removal, resignation or otherwise.
The provisions of the Plan and all option and ("SAR") agreements executed
pursuant thereto, and its decisions shall be conclusive and binding upon all
interested persons. Subject to the provisions of the Plan, the Plan Committee
shall have the sole authority to:
(a) Determine the persons (hereinafter, "optionees") to whom
options to purchase shares of Common Stock of the Company ("Stock") and SARs
shall be granted;
(b) Determine the number of options and SARs to be granted
to each optionee;
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(c) Determine the price to be paid for each share of Stock
issued (or otherwise sold) upon the exercise of each option and the manner and
condition in which each option may be exercised;
(d) Determine the period within which each option and SAR
may be exercised, any extensions of such period (provided, however, that the
original period and all extensions shall not exceed the maximum period
permissible under the Plan); and
(e) Determine whether to grant incentive stock options, or
non-qualified stock options, or both (to the extent that any option does not
qualify as an incentive stock option, it shall constitute a separate
non-qualified stock option); provided, however, that incentive stock options may
only be granted to employees;
(f) Interpret the Plan and the Award Agreements hereunder,
with such interpretations to be conclusive and binding on all persons and
otherwise accorded the maximum deference permitted by law;
(g) Determine the terms and conditions of each stock option
and/or SAR agreement entered into between the Company and persons to whom the
Company has granted an option or SAR and of any amendments thereto (provided
that the optionee consents to each such amendment).
The Plan Committee may require that each optionee enter into a written
agreement with the Company, which will set forth all the terms and conditions of
the grant of options or SARs. The award agreement shall contain such other
terms, provisions and conditions not inconsistent herewith, as shall be
determined by the Plan Committee.
The optionee shall take whatever additional actions and execute whatever
additional documents the Plan Committee may, in its reasonable judgment, deem
necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on the optionee pursuant to the express
provisions of the Plan and the applicable award agreement. The Plan Committee
shall cause each option to be designated as an incentive stock option or a
non-qualified stock option.
The Plan Committee shall meet at such times and places as it determines,
including by means of a telephone conference call. A majority of the members
shall constitute a quorum, and a decision of a majority of those present at any
meeting at which a quorum is present shall constitute the decision of the Plan
Committee. A memorandum signed by all of the members of the Plan Committee shall
constitute the decision of the Plan Committee without the necessity, in such
event, for holding an actual meeting.
If no Committee is designated by the Board to act for these purposes, the
Board shall have the rights and responsibilities of the Committee hereunder and
under the award agreements.
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3. ELIGIBILITY. Officers, directors and employees of PHMD
independent contractors, consultants and other persons providing significant
services to PHMD shall be eligible to receive grants of options under the Plan.
4. STOCK SUBJECT TO PLAN. There shall be reserved for issue, upon
the exercise of options granted under the Plan, 2,000,000 shares of Stock or the
number of shares of Stock, which, in accordance with the provisions of Section 9
hereof, shall be substituted therefor. Such shares may be treasury shares. If an
option granted under the Plan shall expire or terminate for any reason without
having been exercised in full, unpurchased shares subject thereto shall again be
available for the purposes of the Plan. The maximum number of shares with
respect to which options or SARs may be granted to an optionee who is an
employee of PHMD shall not exceed 250,000 shares in any fiscal year during the
term of the Plan.
The certificates for Stock issued hereunder may include any legend, which
the Plan Committee deems appropriate to reflect any rights of first refusal or
other restrictions on transfer hereunder or under the award agreement, or as the
Plan Committee may otherwise deem appropriate.
5. TERMS OF OPTIONS AND SARS.
(a) INCENTIVE STOCK OPTIONS. It is intended that options
granted pursuant to this Section 5(a) qualify as incentive stock options as
defined in Section 422 of the Code. Incentive stock options shall be granted
only to employees of PHMD. Each stock option agreement evidencing an incentive
stock option shall provide that the option is subject to the following terms and
conditions and to such other terms and conditions not inconsistent therewith as
the Plan Committee may deem appropriate in each case:
(1) OPTION PRICE. The price to be paid for each share of
Stock upon the exercise of each incentive stock option shall be determined by
the Plan Committee at the time the option is granted, but shall in no event be
less than 100% of the Fair Market Value (as defined below) of the shares on the
date the option is granted, or not less than 110% of the Fair Market Value of
such shares on the date such option is granted in the case of an individual then
owning (for purposes of Sections 422(b)(6) and 424(d) of the Code) 10% or more
of the total combined voting power of all classes of stock of the Company or of
its Parent or Subsidiaries. As used in this Plan, the term "date the option is
granted" means the date on which the Plan Committee authorizes the grant of an
option hereunder or any later date specified by the Plan Committee. For the
purposes of the Plan, "Fair Market Value" of the shares shall be the closing
sales price reported for the Stock on the applicable date, (i) as reported by
the principal national securities exchange in the United States on which it is
then traded, (ii) if not traded on any such national securities exchange, as
quoted on an automated quotation system sponsored by the National Association of
Securities Dealers, or if the sale of the Common Stock shall not have been
reported or quoted on such date, on the first day prior thereto on which the
Common Stock was reported or quoted, or (iii) if the Stock is not traded in any
market, such value as may be determined by the Committee in its discretion or as
may be determined in accordance with such methodologies, procedures or other
rules, (which may provide, without limitation, that determinations of Fair
Market Value shall be made by an independent third party), as may be established
by the Committee in its discretion; provided, however, that, where the shares
are so
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listed or traded, the Committee may make discretionary determinations, or
implement such methodologies, procedures or other rules, where the shares have
not been traded for 10 trading days.
(2) PERIOD OF OPTION AND EXERCISE. The period or periods
within which an option may be exercised shall be determined by the Plan
Committee at the time the option is granted, but in no event shall any option
granted hereunder be exercised more than ten (10) years from the date the option
was granted nor more than five years from the date the option was granted in the
case of an individual then owning (for purposes of Sections 422 (b)(6) and
424(d) of the Code) more than 10% of the total combined voting power of all
classes of stock of the Company or of its Parent or Subsidiaries.
(3) PAYMENT FOR STOCK. The option exercise price for each
share of Stock purchased under an option shall be paid in full at the time of
purchase. The Plan Committee may provide that the option price be payable, at
the election of the holder of the option and with the consent of the Plan
Committee, in whole or in part either in cash or by delivery of Stock in
transferable form, such Stock to be valued for such purpose at its Fair Market
Value on the date on which the option is exercised. No share of Stock shall be
issued upon exercise until full payment therefor has been made, and no optionee
shall have any rights as an owner of Stock until the date of issuance to him of
the stock certificate evidencing such Stock.
(4) LIMITATION ON AMOUNT BECOMING EXERCISABLE IN ANY ONE
CALENDAR YEAR. Subject to the overall limitations of Section 4 hereof (relating
to the aggregate shares subject to the Plan), the aggregate Fair Market Value
(determined as of the time the option is granted) of Stock with respect to which
incentive stock options are exercisable for the first time by the optionee
during any calendar year (under the Plan and all other incentive stock option
plans of the Company, the Parent, and Subsidiaries) shall not exceed $100,000.
(5) DISQUALIFYING DISPOSITIONS OF INCENTIVE STOCK OPTIONS.
If Shares acquired upon exercise of an incentive stock option are disposed of in
a disqualifying disposition, within the meaning of Section 422 of the Code, by
an optionee prior to the expiration of either two years from the date of grant
of such option or one year from the transfer of Shares to the optionee pursuant
to the exercise of such option, or in any other disqualifying disposition within
the meaning of Section 422 of the Code, such optionee shall notify the Company
in writing as soon as practicable thereafter of the date and terms of such
disposition and, if the Company (or any affiliate thereof) thereupon has a
tax-withholding obligation, shall pay to the Company (or such affiliate) an
amount equal to any withholding tax the Company (or affiliate) is required to
pay as a result of the disqualifying disposition.
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(b) NONQUALIFIED STOCK OPTIONS. Nonqualified stock options
may be granted not only to employees but also to directors who are not employees
of PHMD and to consultants, independent contractors and other persons who
provide substantial services to PHMD. Each nonqualified stock option granted
under the Plan shall be evidenced by a stock option agreement between the person
to whom such option is granted and the Company. Such stock option agreement
shall provide that the option is subject to the following terms and conditions
and to such other terms and conditions not inconsistent therewith as the Plan
Committee may deem appropriate in each case:
(1) OPTION PRICE. The price to be paid for each share of
stock upon the exercise of an option shall be determined by the Plan Committee
at the time the option is granted, but in no event shall be less than 85% of the
Fair Market Value of the shares on the date the option is granted. As used in
this Plan, the term "date the option is granted" means the date on which the
Plan Committee authorized the grant of an option hereunder or any later date
specified by the Plan Committee. To the extent that the Fair Market Value of
Stock is relevant to the pricing of the option by the Plan Committee, Fair
Market Value of the Stock shall be determined as set forth in Section 5(a)(1)
hereof.
(2) PERIOD OF OPTION AND EXERCISE. The periods, installments
or intervals during which an option may be exercised shall be determined by the
Plan Committee at the time the option is granted, but in no event shall such
period exceed 10 years from the date the option is granted.
(3) PAYMENT FOR STOCK. The option exercise price for each
share of Stock purchased under an option shall be paid in full at the time of
purchase. The Plan Committee may provide that the option exercise price be
payable at the election of the holder of the option, with the consent of the
Plan Committee, in whole or in part either in cash or by delivery of Stock in
transferable form, such Stock to be valued for such purpose at its Fair Market
Value on the date on which the option is exercised. The Plan Committee may also
provide, in the case of any nonqualified option, that such option may be
exercised on a cashless basis, by Optionee's submitting the original Option
Agreement, together with a statement to such effect on Optionee's election form.
No share of Stock shall be issued until full payment therefor has been made, and
no optionee shall have any rights as an owner of shares of Stock until the date
of issuance to him of the stock certificate evidencing such Stock.
(c) STOCK APPRECIATION RIGHTS. SARs may be granted in
writing under the Plan by the Plan Committee subject to the following terms and
conditions and such other terms and conditions as the Plan Committee may
prescribe.
(1) RIGHT OF OPTIONEE. Each SAR shall entitle the holder
thereof, upon the exercise of the SAR, to receive from the Company in exchange
therefor an amount equal in value to the excess of the Fair Market Value on the
date of exercise of one share of Stock over its Fair Market Value on the date of
grant (or, in the case of an SAR granted in connection with an option, the
excess of the Fair Market Value of one share of Stock at the time of exercise
over the option exercise price per share under the option to which the SAR
relates), multiplied by the number of shares covered by the SAR or the option,
or portion thereof, that is
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surrendered. No SAR shall be exercisable at a time that the amount determined
under this subparagraph is negative. Payment by the Company upon exercise of an
SAR shall be made in Stock valued at the Fair Market Value of the Stock on the
date of exercise.
(2) EXERCISE. An SAR shall be exercisable only at the time
or times established by the Plan Committee. If an SAR is granted in connection
with an option, the following rules shall apply: (i) the SAR shall be
exercisable only to the extent and on the same conditions that the related
option could be exercised; (ii) upon exercise of the SAR, the option or portion
thereof to which the SAR relates terminates; and (iii) upon exercise of the
option, the related SAR or portion thereof terminates.
(3) RULES. The Plan Committee may withdraw any SAR granted
under the Plan at any time and may impose any conditions upon the exercise of an
SAR or adopt rules and regulations from time to time affecting the rights of
holders of SARs granted prior to adoption or amendment of such rules and
regulations as well as SARs granted thereafter.
(4) FRACTIONAL SHARES. No fractional shares shall be issued
upon exercise of an SAR. In lieu thereof, cash may be paid in an amount equal to
the value of the fraction or, if the Plan Committee shall determine, the number
of shares may be rounded downward to the next whole share.
(5) SHARES SUBJECT TO PLAN. Upon the exercise of an SAR for
shares, the number of shares of Stock reserved for issuance under the Plan shall
be reduced by the number of shares issued.
6. NONTRANSFERABILITY. The options and SARs granted pursuant to
the Plan shall be nontransferable, except by will or the laws of descent and
distribution of the state or country of the optionee's domicile at the time of
death or for options other than incentive stock options, pursuant to a qualified
domestic relations order as defined in the Code or Title I of the Employee
Retirement Income Security Act of 1974, as amended, and shall be exercisable
during the optionee's lifetime only by him (or, in the case of a transfer
pursuant to a qualified domestic relations order, by the transferee under such
qualified domestic relations order) and after his death, by his personal
representative or by the person entitled thereto under his will or the laws of
intestate succession; provided, that the Plan Committee may permit additional
transfers, on a general or specific basis, and may impose conditions and
limitations on any such transfer.
7. TERMINATION OF EMPLOYMENT OR OTHER RELATIONSHIP. Unless
otherwise specified in the applicable option and/or SAR agreement, or unless
otherwise specified by the Plan Committee, upon termination of the optionee's
employment or other relationship with PHMD, his rights to exercise options and
SARs then held by him shall be only as follows (in no case do the time periods
referred to below extend the term specified in any option):
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(a) DEATH OR DISABILITY. Upon the death or disability
(within the meaning of Section 22(e)(3) of the Code) of an optionee, any option
or SAR which he holds may be exercised (to the extent exercisable at his death
or disability), unless it otherwise expires, within such period after the date
of his death (not less than six months nor more than twelve months) as the Plan
Committee shall prescribe in his option agreement or SAR, by the optionee or, in
the event of death, by the optionee's representative or by the person entitled
thereto under his will or the laws of intestate succession.
(b) RETIREMENT. Upon the retirement (either pursuant to an
PHMD retirement plan, if any, or pursuant to the approval of the Board) of an
officer, director or employee, an outstanding option or SAR may be exercised (to
the extent exercisable at the date of such retirement) by him within such period
after the date of his retirement (provided that such period is no less than 30
days and no more than three months) as the Plan Committee shall prescribe in his
option agreement or SAR.
(c) OTHER TERMINATION. In the event an officer, director or
employee ceases to serve as an officer or director or leaves the employ of PHMD
for any reasons other than as set forth in (a) and (b), above, or a nonemployee
ceases to provide services to the Company (each an "Other Termination"), any
option or SAR which he holds shall remain exercisable (to the extent exercisable
as of the date of such Other Termination) within such period after the date of
such Other Termination (provided that such period is no less than 30 days and no
more than three months) as the Plan Committee shall prescribe in his option
agreement or SAR.
(d) PLAN COMMITTEE DISCRETION. The Plan Committee may in its
sole discretion accelerate the exercisability of any or all options or SARs.
8. TRANSFER TO RELATED CORPORATION. In the event an employee
leaves the employ of the Company to become an employee of a Parent or a
Subsidiary or any employee leaves the employ of a Parent or a Subsidiary to
become an employee of the Company or another Parent or Subsidiary, such employee
shall be deemed to continue as an employee for purposes of this Plan.
9. ADJUSTMENT OF SHARES; TERMINATION OF OPTIONS AND SARS.
(a) ADJUSTMENT OF SHARES. In the event of changes in the
outstanding Stock by reason of stock dividends, split-ups, consolidations,
recapitalization, reorganizations or like events (as determined by the Plan
Committee), an appropriate adjustment may be made by the Plan Committee in the
number of shares reserved under the Plan, in the number of shares set forth in
Section 4 hereof, in the number of shares and the option price per share
specified in any stock option agreement, in the number of SARs with respect to
any unexercised shares, and in any other appropriate terms of options or SARs.
The determination of the Plan Committee as to what adjustments shall be made
shall be conclusive. Adjustments for any options to purchase fractional shares
shall also be determined by the Plan Committee. The Plan Committee shall give
prompt notice to all optionees of any adjustment pursuant to this Section.
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(b) TERMINATION OF OPTIONS AND SARS ON MERGER,
REORGANIZATION OR LIQUIDATION OF THE COMPANY. Notwithstanding anything to the
contrary in this Plan, unless otherwise provided by the Plan Committee, in the
event of any merger, consolidation or other reorganization of the Company in
which the Company is not the surviving or continuing corporation (as determined
by the Plan Committee) or in the event of the liquidation or dissolution of the
Company, all options and SARs granted hereunder shall terminate on the effective
date of the merger, consolidation, reorganization, liquidation or dissolution
unless there is an agreement with respect thereto which expressly provides for
the assumption of such options and SARs by the continuing or surviving
corporation.
10. SECURITIES LAW REQUIREMENTS. The Company's obligation to issue
shares of its Stock upon exercise of an option or SAR is expressly conditioned
upon the completion by the Company of any registration or other qualification of
such shares under any state and/or federal law or rulings and regulations of any
government regulatory body or the making of such investment representations or
other representations and undertakings by the optionee (or his legal
representative, heir or legatee, as the case may be) in order to comply with the
requirements of any exemption from any such registration or other qualification
of such shares which the Company in its sole discretion shall deem necessary or
advisable. The Company may refuse to permit the sale or other disposition of any
shares acquired pursuant to any such representation until it is satisfied that
such sale or other disposition would not be in contravention of applicable state
or federal securities law.
11. TAX WITHHOLDING. As a condition to the exercise of an option
or SAR or otherwise, the Company may require an optionee to pay over to the
Company all applicable federal, state and local taxes which the Company is
required, as determined in the discretion of the Plan Committee, to withhold
with respect to the exercise of an option or SAR granted hereunder. At the
discretion of the Plan Committee and upon the request of an optionee, the
minimum statutory withholding tax requirements may be satisfied by the
withholding of shares of Stock otherwise issuable to the optionee upon the
exercise of an option or SAR.
12. AMENDMENT. The Board may amend the Plan at any time, except
that without shareholder approval:
(a) The number of shares of Stock which may be reserved for
issuance under the Plan shall not be increased except as provided in Section
9(a) hereof;
(b) The option price per share of Stock subject to incentive
stock options may not be fixed at less than 100% of the Fair Market Value of a
share of Stock on the date the option is granted;
(c) The maximum period of ten (10) years during which the
options or SARs may be exercised may not be extended;
(d) The class of persons eligible to receive options or SARs
under the Plan as set forth in Section 3 shall not be changed; and
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(e) This Section 12 may not be amended in a manner that
limits or reduces the amendments, which require shareholder approval.
13. EFFECTIVE DATE. The Plan shall be effective upon the date of
its adoption by the Board, and subject to the approval of the stockholders of
the Company within the 12 month period following such adoption date.
14. TERMINATION. The Plan shall terminate automatically as of the
close of business on the day preceding the 10th anniversary date of its
effectiveness or earlier by resolution of the Board, or upon consummation of any
merger, consolidation or other reorganization in which the options granted
hereunder terminate, all as described in Section 9(b) hereof. Unless otherwise
provided herein, the termination of the Plan shall not affect the validity of
any option agreement outstanding at the date of such termination.
15. NO RIGHTS AS STOCKHOLDER. Neither the optionee nor any person
entitled to exercise the optionee's rights in the event of death shall have any
rights of a stockholder with respect to the Shares subject to an option, except
to the extent that a certificate for such Shares shall have been issued upon the
exercise of the option as provided for herein.
16. STOCK OPTION AND SAR AGREEMENT. Each option and SAR granted
under the Plan shall be evidenced by a written agreement executed by the Company
and accepted by the optionee, which (i) shall contain each of the provisions and
agreements herein specifically required to be contained therein, (ii) shall
indicate whether an option is to be an incentive stock option or a nonqualified
stock option, and if it is to be an incentive stock option, the stock option
agreement shall contain terms and conditions permitting such option to qualify
for treatment as an incentive stock option under Section 422 of the Code, (iii)
may contain the agreement of the optionee to remain in the employ of, and/or to
render services to, the Company or any Parent or Subsidiary for a period of time
to be determined by the Plan Committee, and (iv) may contain such other terms
and conditions as the Plan Committee deems desirable and which are not
inconsistent with the Plan.
17. NO RIGHT TO EMPLOYMENT. Nothing in this Plan or in any option
or SAR granted hereunder shall confer upon any optionee any right to continue in
the employ of PHMD or to continue to perform services for PHMD, or shall
interfere with or restrict in any way the rights of PHMD to discharge or
terminate any officer, director, employee, independent contractor or consultant
at any time for any reason whatsoever, with or without good cause.
18. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
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Executed and dated as of the date first written above at Radnor,
Pennsylvania.
PHOTOMEDEX, INC.
By: Jeffrey F. O'Donnell
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Jeffrey F. O'Donnell
Chief Executive Officer
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