EXHIBIT 4.03
ONYX TECHNOLOGIES, INC.
1999 STOCK PLAN
EXHIBIT 4.03
ONYX TECHNOLOGIES, INC.
1999 STOCK PLAN
SECTION 1
BACKGROUND AND PURPOSE
The purpose of this Plan is to promote the interest of Onyx
Technologies, Inc. ("Onyx") through the granting of Options, Restricted Stock
and Stock Appreciation Rights in order (a) to attract and retain Employees, (b)
to provide an additional incentive to each Employee to work to increase the
value of Stock and (3) to provide each Employee with a stake in the future of
Onyx that corresponds to the stake of each of Onyx Technology's stockholders.
SECTION 2
DEFINITIONS
Each term set forth in this Section 2 shall have the meaning
set forth opposite such term and any reference to the plural of a defined term
shall include the singular.
1.01 BOARD -- means the Board of Directors of Onyx.
1.02 CHANGE IN CONTROL -- means
(a) the approval by the shareholders of Onyx of (1) a
reorganization, merger, share exchange or consolidation, in each case, where
persons who were shareholders of Onyx immediately prior to such reorganization,
merger, share exchange or consolidation do not, immediately thereafter, own more
than 50% of the combined voting power entitled to vote generally in the election
of directors of the reorganized, merged, surviving or consolidated company's
then outstanding securities; (2) a liquidation or dissolution of Onyx; or (3)
the sale of all or substantially all of Onyx' assets; or
(b) consummation of a business combination between Onyx and any entity
that has a market capitalization equal to or greater than 80% of the market
capitalization of Onyx.
Notwithstanding the preceding paragraph, any transaction with HNC
Software, Inc. shall not be considered a Change of Control. The Committee shall
have the specific authority to determine whether a Change in Control has
transpired under the guidance of this Section 2.2 and shall be required to give
each holder of Options, Restricted Stock, Restricted Stock Rights, or Stock
Appreciation Rights notice of a Change in Control.
1.03 CODE -- means the Internal Revenue Code of 1986, as amended.
1.04 COMMITTEE -- means a committee of the Board comprised of at least
2 members appointed by the Board; provided if at any time the Board shall have
not appointed a Committee as described in this Section 2.4, any reference in
this Plan to the Committee shall mean a reference to the Board. If Onyx is
subject to Rule 16b-3, each Committee member shall be a "non-employee director"
within the meaning of Rule 16b-3 and, if Onyx is a publicly held corporation
within the meaning of Code Section 162(m), each Committee member must be an
"outside director" within the meaning of Code Section 162(m).
1.05 EFFECTIVE DATE -- means the effective date described in Section 4.
1.06 EMPLOYEE -- means an employee of Onyx or any entity that would be
treated as a single employer with Onyx under Code Section 414(c) if "50 percent"
were substituted for "80 percent" in the regulations under such section;
provided, however, that solely for purposes of granting ISOs, the term
"Employee" means an employee of Onyx or any Subsidiary or Parent.
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1.07 FAIR MARKET VALUE -- means as of any date (a) if the Stock is not
quoted on a national quotation system, the price that the Committee acting in
good faith determines through any reasonable valuation method that a share of
Stock might change hands between a willing buyer and a willing seller, neither
being under any compulsion to buy or to sell and both having reasonable
knowledge of the relevant facts, or (b) if the Stock is quoted on a national
quotation system, (1) the closing price of the Stock on such date on the
national quotation system selected by the Committee, (2) if there was no
quotation of the Stock on such date on such quotation system, the closing price
on the next preceding business day or (3), if there was no quotation on the next
preceding business day, the value determined by the Committee in accordance with
2.7(a).
1.08 ISO -- means an Option that is intended to satisfy the
requirements of Code Section 422.
1.09 ONYX -- means Onyx Technologies, Inc. and any successor to Onyx
Technologies, Inc.
1.10 1933 ACT -- means the Securities Act of 1933, as amended.
1.11 1934 ACT -- means the Securities Exchange Act of 1934, as amended.
1.12 NON-ISO -- means an Option that either expressly or operationally
does not satisfy the requirements of Code Section 422.
1.13 OPTION -- means an option to purchase Stock granted in accordance
with Section 7.
1.14 OPTION AGREEMENT -- means the document that sets forth the terms
and conditions of an Option.
1.15 OPTION PRICE -- means the price to purchase one share of Stock
upon the exercise of an Option.
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1.16 PARENT -- means any corporation that is a parent corporation of
Onyx within the meaning of Code Section 424(e).
1.17 PLAN -- means this Onyx Technologies, Inc. 1999 Stock Plan, as
amended from time to time.
1.18 RESTRICTED STOCK -- means Stock granted in accordance with Section
9.A.
1.19 RESTRICTED STOCK CERTIFICATE -- means the document that sets forth
the terms and conditions of a grant of Restricted Stock or a Restricted Stock
Right.
1.20 RESTRICTED STOCK RIGHT -- means a right granted to an Employee in
accordance with Section 9 to demand the issuance of Restricted Stock upon the
satisfaction of the conditions described in the associated Restricted Stock
Certificate.
1.21 RULE 16b-3 -- means the exemption under Rule 16b-3 to Section
16(b) of the 1934 Act or any successor to such rule.
1.22 STOCK -- means no par value common stock of Onyx.
1.23 SAR VALUE -- means the value assigned by the Committee to a share
of Stock in connection with the grant of a Stock Appreciation Right under
Section 8.
1.24 STOCK APPRECIATION RIGHT -- means a right to receive the
appreciation in a share of Stock that is granted under Section 8 either as part
of an Option or independent of any Option.
1.25 STOCK APPRECIATION RIGHT CERTIFICATE -- means the document that
sets forth the terms and conditions of a Stock Appreciation Right that is
granted to an Employee independent of an Option.
1.26 SUBSIDIARY -- means a corporation that is a subsidiary corporation
of Onyx within the meaning of Code Section 424(f).
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1.27 TEN PERCENT SHAREHOLDER -- means a person who owns (after taking
into account the attribution rules of Code Section 424(d)) more than ten percent
of the total combined voting power of all classes of stock of either Onyx, a
Subsidiary or Parent. No shares of Restricted Stock or Stock Appreciation Rights
will be granted under this Plan unless and until the Purchase Agreement is
terminated as provided therein.
SECTION 3
SHARES RESERVED UNDER PLAN
There shall be 700,000 shares of Stock authorized for issuance
under this Plan. To the extent Onyx deems appropriate, such shares of Stock may
be reserved from authorized but unissued shares of Stock and from shares of
Stock that have been reacquired by Onyx. Any shares of Restricted Stock issued
under this Plan shall not be available for future issuance unless forfeited, in
which event such shares shall be available for use in future grants under this
Plan. Any shares of Stock subject to an Option that remain unissued after the
cancellation, expiration or exchange of the Option and any shares of Restricted
Stock subject to a Restricted Stock Right that is forfeited or canceled shall be
available for use in future grants under this Plan. However, any shares of Stock
used to satisfy a withholding obligation shall not be available for use in
future grants under this Plan.
SECTION 4
EFFECTIVE DATE
The Effective Date of this Plan shall be the date of its
adoption by the Board; provided that no ISO shall be effective unless the
shareholders of Onyx (acting at a duly called meeting of such shareholders)
approve the adoption of the Plan within 12 months of the Effective
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Date. Any ISO granted before the shareholder approval automatically shall be
granted subject to such approval.
SECTION 5
COMMITTEE
This Plan shall be administered by the Committee. The
Committee acting in its absolute discretion shall interpret this Plan and take
such action in the administration and operation of this Plan as the Committee
deems appropriate under the circumstances. Any action of the Committee shall be
binding on Onyx, on each affected Employee and on each other person directly or
indirectly affected by such action.
SECTION 6
ELIGIBILITY AND ANNUAL GRANT CAPS
Only Employees shall be eligible for the grant of Options,
Restricted Stock, Restricted Stock Rights or Stock Appreciation Rights. No
Employee in any calendar year shall be granted an Option to purchase more than
50,000 shares of Stock or a Stock Appreciation Right with respect to more than
50,000 shares of Stock.
SECTION 7
OPTIONS
7.1 COMMITTEE ACTION. The Committee acting in its absolute discretion
may grant Options to Employees from time to time. Each grant of an Option shall
be evidenced by an Option Agreement. The Option Agreement shall describe whether
the Option is an ISO or a Non-
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ISO and shall incorporate such other terms and conditions of the grant as the
Committee acting in its absolute discretion deems appropriate. If the
Committee grants an ISO and a Non-ISO to an Employee on the same date, the
right of the Employee to exercise the ISO shall not be conditioned on his or
her failure to exercise the Non-ISO. However, the Committee shall have the
right to grant a Non-ISO and Restricted Stock to an Employee at the same time
and to condition the exercise of the Non-ISO on the forfeiture of the
Restricted Stock grant.
7.2 $100,000 LIMIT FOR ISOS. To the extent that the aggregate
Fair Market Value of Stock subject to ISOs that first becomes exercisable in any
calendar year (determined as of the date the ISO is granted) exceeds $100,000,
such Options shall be treated as Non-ISOs. The Fair Market Value of Stock
subject to any other option (determined as of the date the option is granted)
that (a) satisfies the requirements of Code Section 422 and (b) is granted to an
Employee under another plan maintained by Onyx, a Subsidiary or Parent shall be
treated (for purposes of this $100,000 limitation) as if granted under this
Plan. The Committee shall interpret and administer the limitation in this
Section 7.2 in accordance with Code Section 422(d) or any successor section.
This Section 7.2 shall be in effect only for so long as the $100,000 limitation
is in effect under Code Section 422 or any successor section.
7.3 OPTION PRICE. The Option Price shall be no less than the Fair
Market Value of a share of Stock on the date the Option is granted; provided,
however, if the Option is an ISO granted to an Employee who is a Ten Percent
Shareholder, the Option shall be no less than 110% of the Fair Market Value of a
share of Stock on the date such ISO is granted. The Option Price shall be
payable in full upon the exercise of any Option. At the discretion of the
Committee, an Option Agreement can provide for the payment of the Option Price
either in cash, by check or in Stock that has been held for at least 6 months,
or in any combination of cash, check and such
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Stock. The Option Price may be paid through any broker facilitated cashless
exercise procedure acceptable to the Committee or its delegate. The value of
any Stock surrendered as payment in the exercise of an Option shall be equal
to the Fair Market Value of such Stock on the date the properly endorsed
certificate for such Stock is delivered to the Committee or its delegate.
7.4 EXERCISE PERIOD. Each Option shall be exercisable in whole or in
part at such time or times as set forth in the related Option Agreement, but no
Option shall be exercisable after the earlier of the fifth anniversary of the
date the Option is granted, if the Option is an ISO and the Employee is a Ten
Percent Shareholder on the date the Option is granted, or the tenth anniversary
of the date the Option is granted, if the Option is (1) a Non-ISO or (2) an ISO
that is granted to an Employee who is not a Ten Percent Shareholder on the date
the Option is granted.
An Option Agreement may provide for the exercise of an Option after the
employment of an Employee has terminated for any reason whatsoever, including
death or disability; provided, however, that an Option Agreement for an ISO must
incorporate the post-employment exercise restrictions of Code Section 422.
SECTION 8
STOCK APPRECIATION RIGHTS
8.1 COMMITTEE ACTION. The Committee acting in its absolute discretion
shall have the right to grant a Stock Appreciation Right to an Employee from
time to time, and each Stock Appreciation Right grant shall be evidenced by a
Stock Appreciation Right Certificate or, if such Stock Appreciation Right is
granted as part of an Option, shall be evidenced by the Option Agreement for the
related Option.
8.2 TERMS AND CONDITIONS.
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(a) STOCK APPRECIATION RIGHT CERTIFICATE. If a Stock
Appreciation Right is evidenced by a Stock Appreciation Right Certificate, such
certificate shall set forth the number of shares of Stock to which the Employee
has the right to appreciation and the SAR Value of each share of Stock. Such SAR
Value shall be no less than the Fair Market Value of a share of Stock on the
date that the Stock Appreciation Right is granted. The Stock Appreciation Right
Certificate shall set forth such other terms and conditions for the exercise of
the Stock Appreciation Right as the Committee deems appropriate under the
circumstances, but no Stock Appreciation Right Certificate shall make a Stock
Appreciation Right exercisable on or after the date that is the tenth
anniversary of the date such Stock Appreciation Right is granted.
(b) OPTION AGREEMENT. If a Stock Appreciation Right is
evidenced by an Option Agreement, the SAR Value for each share of Stock subject
to the Stock Appreciation Right shall be the Option Price for the related
Option. Each such Option Agreement shall provide that the exercise of the Stock
Appreciation Right with respect to any share of Stock shall cancel the
Employee's right to exercise his or her Option with respect to such share and,
conversely, that the exercise of the Option with respect to any share of Stock
shall cancel the Employee's right to exercise his or her Stock Appreciation
Right with respect to such share. A Stock Appreciation Right that is granted as
part of an Option shall be exercisable only while the related Option is
exercisable. The Option Agreement shall set forth such other terms and
conditions for the exercise of the Stock Appreciation Right as the Committee
deems appropriate under the circumstances.
8.3 EXERCISE. A Stock Appreciation Right shall be exercisable only when
the Fair Market Value of a share of Stock subject to such Stock Appreciation
Right exceeds the SAR Value for such share, and the payment due on exercise
shall be based on such excess with respect
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to the number of shares of Stock to which the exercise relates. An Employee
upon the exercise of his or her Stock Appreciation Right shall receive a
payment from Onyx in cash or in Stock, or in a combination of cash and Stock,
and any payment in Stock shall be based on the Fair Market Value of a share
of Stock on the date the Stock Appreciation Right is exercised. The Committee
acting in its absolute discretion shall have the right to determine the form
and time of any payment under this Section 8.3.
SECTION 9
RESTRICTED STOCK
9.1 COMMITTEE ACTION. The Committee acting in its absolute discretion
may grant Restricted Stock or Restricted Stock Rights to Employees from time to
time and may grant a Restricted Stock Right in exchange for the cancellation of
an outstanding Restricted Stock Right. Each grant of Restricted Stock or
Restricted Stock Rights shall be evidenced by a Restricted Stock Certificate,
which shall describe the conditions, if any, under which the grant will be
effective.
9.2 CONDITIONS.
(a) RESTRICTED STOCK RIGHT. The Committee acting in its
absolute discretion may grant Restricted Stock Rights that provide for the
issuance of Restricted Stock to an Employee subject to the satisfaction of any
conditions that the Committee deems appropriate under the circumstances for
Employees generally or for an Employee in particular. The Restricted Stock
Certificate shall describe each such condition and the deadline for satisfying
each such condition. Restricted Stock shall be issued in the name of an Employee
only after each such condition has been timely satisfied, and any Restricted
Stock that is so issued shall be held
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by Onyx pending the satisfaction of any forfeiture conditions applicable to
the related Restricted Stock.
(b) FORFEITURE CONDITIONS. The Committee acting in its
absolute discretion may make (1) each grant of Restricted Stock and (2)
Restricted Stock issued pursuant to satisfaction of the conditions of a
Restricted Stock Right, subject to one, or more than one, objective employment,
performance or other forfeiture condition that the Committee acting in its
absolute discretion deems appropriate under the circumstances for Employees
generally or for an Employee in particular, including a condition that results
in a forfeiture if an Employee exercises a Non-ISO granted in tandem with his or
her Restricted Stock grant. The related Restricted Stock Certificate shall set
forth each forfeiture condition and the deadline for satisfying each such
condition. A Restricted Stock Certificate evidencing the grant of a Restricted
Stock Right may contain both the conditions precedent to the issuance of
Restricted Stock and the forfeiture conditions applicable to the Restricted
Stock or the Committee may issue another Restricted Stock Certificate describing
the forfeiture conditions applicable to the Restricted Stock issued pursuant to
a Restricted Stock Right. An Employee's nonforfeitable interest in Restricted
Stock shall depend on the extent to which he or she timely satisfies each
condition.
9.3 DIVIDENDS AND VOTING RIGHTS. If a cash dividend is declared on
Restricted Stock, Onyx shall pay such cash dividend directly to the Employee
granted such Restricted Stock. If a Stock dividend is declared on Restricted
Stock, such Stock dividend shall be treated as Restricted Stock, and an
Employee's interest in such Stock dividend shall be forfeited or shall become
nonforfeitable at the same time as the Restricted Stock is forfeited or becomes
nonforfeitable. The disposition of each other form of dividend declared on
Restricted Stock shall be made in accordance with such rules as the Committee
shall adopt with respect to each such dividend. An
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Employee shall have the right to vote Restricted Stock. The dividend and
voting rights described in this Section 9.3 shall apply to a grant of
Restricted Stock from the date of issuance as determined by the Committee.
However, the dividend and voting rights shall not apply to Restricted Stock
subject to a Restricted Stock Right prior to the issuance of such Restricted
Stock.
9.4 SATISFACTION OF FORFEITURE CONDITIONS. A share of Stock shall cease
to be Restricted Stock at such time as provided in the Restricted Stock
Certificate and a certificate representing a share of unrestricted Stock shall
be transferred to the Employee as soon as practicable thereafter.
9.5 TAX BONUS PAYMENT. The Committee acting in its absolute discretion
shall have the power to authorize and direct the payment of a cash bonus to an
Employee to pay all, or any portion of, his or her federal, state and local
income and excise tax liability that the Committee deems attributable (a) to his
or her interest in Restricted Stock becoming nonforfeitable and (b) to such cash
bonus.
9.6 SECTION 162(m). If Onyx is a publicly held corporation within the
meaning of Code Section 162(m) and the Committee deems it in the best interests
of Onyx, the Committee shall use its best efforts to grant Restricted Stock in a
manner such that (a) the compensation resulting from the grant is
"performance-based compensation" within the meaning of Code Section 162(m) or
(b) Onyx otherwise gets an income tax deduction for the compensation
attributable to such grant.
SECTION 10
NONTRANSFERABILITY
No Option, Restricted Stock, Restricted Stock Right or Stock
Appreciation Right shall be transferable by an Employee other than by will or by
the laws of descent and
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distribution. During an Employee's lifetime, an Option shall be exercisable
only by the Employee; however, the person or persons to whom an Option,
Restricted Stock, Restricted Stock Right, or Stock Appreciation Right is
transferred by will or by the laws of descent and distribution thereafter
shall be treated as the Employee under this Plan.
SECTION 11
SECURITIES REGISTRATION
Each Option Agreement, Restricted Stock Certificate and Stock
Appreciation Right Certificate shall provide that, upon the receipt of Stock,
the Employee shall, if so requested by Onyx, (a) hold such Stock for investment
and not with a view of resale or distribution to the public and (b) deliver to
Onyx a written statement satisfactory to Onyx to that effect. For Stock issued
pursuant to this Plan, Onyx at its expense shall take such action as it deems
necessary or appropriate to register the original issuance of such Stock to an
Employee under the 1933 Act or under any other applicable securities laws or to
qualify such Stock for an exemption under any such laws prior to the issuance of
such Stock to an Employee; however, Onyx shall have no obligation whatsoever to
take any such action in connection with the transfer, resale or other
disposition of such Stock by an Employee.
SECTION 12
LIFE OF PLAN
No Option, Restricted Stock, Restricted Stock Right, or Stock
Appreciation Right shall be granted under this Plan on or after the earlier of
the tenth anniversary of the Effective Date, in which event this Plan shall
continue in effect until all outstanding Options and Stock Appreciation Rights
have been exercised in full or are no longer exercisable, all Restricted Stock
has been forfeited or the forfeiture conditions on such Restricted Stock have
been satisfied in
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full, and all Restricted Stock Rights have been forfeited, canceled or the
conditions thereof satisfied, or the date on which all of the Stock
authorized for issuance under Section 3 has been issued or no longer is
available for use under this Plan, in which event this Plan also shall
terminate on such date.
SECTION 13
ADJUSTMENT
13.1 CAPITAL STRUCTURE. In the event of any change in the
capitalization of Onyx, including, but not limited to, such changes as stock
dividends or stock splits, the following shall be adjusted by the Committee in
an equitable manner to reflect such change: (a) the number, kind or class (or
any combination thereof) of shares of Stock authorized for issuance under
Section 3, and the annual grant caps described in Section 6; (b) the number,
kind or class (or any combination thereof) of shares of Stock subject to Options
and the Option Price of such Options; (c) the number, kind or class (or any
combination thereof) of shares of Stock underlying outstanding Restricted Stock
and any related forfeiture conditions; (d) the number, kind or class (or any
combination thereof) of shares of Stock underlying outstanding Restricted Stock
Rights and any related conditions; and (e) the number, kind or class (or any
combination thereof) of shares of Stock subject to Stock Appreciation Rights and
the SAR Value of such Stock Appreciation Rights; provided, however, that the
issuance by Onyx of shares of any class or securities convertible into shares of
any class, for cash or property, or for labor or services, either upon direct
sale or upon exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of Onyx convertible into such shares or
other securities, shall not affect, and no adjustment by reason thereof shall be
made with respect to (a) through (e) above.
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13.2 MERGERS. The Committee as part of any corporate transaction
described in Code Section 424(a) shall have the right to adjust (in any manner
that the Committee in its discretion deems consistent with Code Section 424(a)):
(a) the number, kind or class (or any combination thereof) of shares of Stock
authorized for issuance under Section 3; (b) the number, kind or class (or any
combination thereof) of shares of Stock subject to Options and the Option Price
of such Options, (c) the number, kind or class (or any combination thereof) of
shares of Stock underlying outstanding Restricted Stock and any related
forfeiture conditions; (d) the number, kind or class (or any combination
thereof) of shares of Stock underlying outstanding Restricted Stock Rights and
any related conditions; and (e) the number, kind or class (or any combination
thereof) of shares of Stock subject to Stock Appreciation Rights and the SAR
Value of such Stock Appreciation Rights.
The Committee may make (in any manner that the Committee in its
discretion deems consistent with Code Section 424(a)) Option, Restricted Stock
and Stock Appreciation Right grants to effect the assumption of, or the
substitution for, option, restricted stock and stock appreciation right grants
previously made by any other corporation to the extent that a corporate
transaction described in Code Section 424(a) calls for such substitution or
assumption of such options, restricted stock or stock appreciation rights.
13.3 FRACTIONAL SHARES. If any adjustment under this Section 13 would
create a fractional share of Stock or a right to acquire a fractional share of
Stock, such fractional share shall be disregarded and the number of shares of
Stock that otherwise would result from such adjustment shall be the next lower
number of shares of Stock, rounding all fractions downward. An adjustment made
under this Section 13 by the Committee shall be conclusive and binding on all
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affected persons and, further, shall not constitute an increase in "the number
of shares of Stock authorized for issuance under Section 3" within the meaning
of Section 15.
SECTION 14
CHANGE IN CONTROL
Upon a Change in Control, all then outstanding Options and
Stock Appreciation Rights that have not previously vested shall vest in full and
the forfeiture conditions on Restricted Stock and conditions on Restricted Stock
Rights shall expire and have no further force or effect. In addition, in
connection with such Change in Control, the Board shall have the right to take
such additional action, if any, with respect to any or all then outstanding
Options and Stock Appreciation Rights as the Board deems appropriate under the
circumstances to protect the interest of Onyx in maintaining the integrity of
the Option and Stock Appreciation Right grants under this Plan, including, upon
prior notice, canceling the then outstanding Options and Stock Appreciation
Rights in full if the Board provides for a right to exercise such Options and
Stock Appreciation Rights in full before the date of such cancellation, and the
Board shall have the right to take different action under this Section 14 with
respect to different Employees or different groups of Employees as the Board
deems appropriate under the circumstances.
SECTION 15
AMENDMENT OR TERMINATION
This Plan may be amended by the Board from time to time to the
extent that the Board deems necessary or appropriate; provided, however, in the
event any such amendment (a) increases the number of shares of Stock authorized
for issuance under Section 3 or (b) changes the class of employees eligible for
ISOs, no further ISOs may be granted, unless shareholder approval of such
amendment is obtained within 12 months of the date the amendment is adopted. The
Board also may suspend the granting of Options, Restricted Stock, Restricted
Stock Rights, or Stock Appreciation Rights at any time and may terminate this
Plan at any time; provided,
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however, neither the Board nor the Committee shall have the right
unilaterally to modify, amend or cancel any Option, Restricted Stock,
Restricted Stock Right, or Stock Appreciation Right granted before such
suspension or termination unless (a) the Employee consents in writing to such
modification, amendment or cancellation, (b) there is a transaction described
in Section 13 or Section 14 or (c) pursuant to Section 16.6.
SECTION 16
MISCELLANEOUS
16.1 SHAREHOLDER RIGHTS. No Employee shall have any rights as a
shareholder of Onyx as a result of the grant of an Option or Stock Appreciation
Right or his or her exercise of such Option or Stock Appreciation Right pending
the actual delivery of the Stock subject to such Option or Stock Appreciation
Right to such Employee. Subject to Section 9.3, an Employee's rights as a
shareholder of Restricted Stock shall be set forth in the related Restricted
Stock Certificate.
16.2 NO CONTRACT OF EMPLOYMENT. The grant of an Option, Restricted
Stock, Restricted Stock Right, or Stock Appreciation Right shall not constitute
a contract of employment and shall not confer on an Employee any rights upon his
or her termination of employment in addition to those rights, if any, expressly
set forth in the related Option Agreement, Restricted Stock Certificate or Stock
Appreciation Right.
16.3 WITHHOLDING. Each grant of an Option, Restricted Stock, Restricted
Stock Right, or Stock Appreciation Right shall be made subject to the condition
that the Employee consents to whatever action the Committee directs to satisfy
the federal and state tax withholding requirements, if any, that the Committee
in its discretion deems applicable to the exercise of such Option or Stock
Appreciation Right or the satisfaction of any forfeiture conditions with respect
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to Restricted Stock issued in the name of the Employee. The Committee also shall
have the right to provide in an Option Agreement, Restricted Stock Certificate
or Stock Appreciation Right that an Employee may elect to satisfy federal and
state tax withholding requirements through a reduction in the cash or the number
of shares of Stock actually transferred to him or to her under this Plan.
16.4 CONSTRUCTION. All references to sections (Section) are to sections
(Section) of this Plan unless otherwise indicated. This Plan shall be construed
under the laws of the State of Delaware.
16.5 OTHER CONDITIONS. Each Option Agreement, Restricted Stock
Certificate or Stock Appreciation Right Certificate may require that an Employee
(as a condition to the exercise of an Option or Stock Appreciation Right or the
grant of Restricted Stock or Restricted Stock Rights) enter into any agreement
or make such representations prepared by Onyx, including any agreement that
restricts the transfer of Stock acquired pursuant to the exercise of an Option
or a Stock Appreciation Right or the grant of Restricted Stock or provides for
the repurchase of such Stock by Onyx under certain circumstances.
16.6 RULE 16b-3. The Committee shall have the right to amend any grant
of an Option, Restricted Stock, Restricted Stock Right, or Stock Appreciation
Right or to withhold or otherwise restrict the transfer of any Stock or cash
under this Plan to an Employee as the Committee deems appropriate in order to
satisfy any condition or requirement under Rule 16b-3 to the extent Rule 16 of
the 1934 Act might be applicable to such grant or transfer.
16.7 LOANS. If approved by the Committee, Onyx may lend money to, or
guarantee loans made by a third party to, any Employee to finance the exercise
of any Option, and the exercise of an Option with the proceeds of any such loan
shall be treated as an exercise for cash. If approved by the Committee, Onyx
also may, in accordance with an Employee's instructions,
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transfer Stock acquired in the exercise of an Option directly to a third
party in connection with any arrangement made by the Employee for financing
the exercise of such Option.
IN WITNESS WHEREOF, Onyx has caused its duly authorized officer to
execute this Plan to evidence its adoption of this Plan.
ONYX TECHNOLOGIES, INC.
By:______________________________
Date:____________________________
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