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Exhibit 10.22
DOV PHARMACEUTICAL, INC.
2000 STOCK OPTION AND GRANT PLAN
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
The name of the plan is the DOV Pharmaceutical, Inc. 2000 Stock Option and
Grant Plan (the "Plan"). The purpose of the Plan is to encourage and enable the
officers, employees, directors, consultants and other key persons of DOV
Pharmaceutical, Inc., a Delaware corporation (the "Company"), and its
Subsidiaries, upon whose judgment, initiative and efforts the Company depends
for the successful conduct of its business to acquire a proprietary interest in
the Company. It is anticipated that providing such persons with a direct stake
in the Company's welfare will assure a closer identification of their interests
with those of the Company, thereby stimulating their efforts on the Company's
behalf and strengthening their desire to remain with the Company.
The following terms shall be defined as set forth below:
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations thereunder.
"AWARD" or "AWARDS," except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock
Options, Stock Appreciation Rights, Restricted Stock Awards, Unrestricted Stock
Awards, or any combination of the foregoing.
"BOARD" means the Board of Directors of the Company or its successor
entity.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"COMMITTEE" has the meaning specified in Section 2.
"EFFECTIVE DATE" means the date on which the Plan is approved by
stockholders as set forth at the end of this Plan.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"FAIR MARKET VALUE" of the Stock on any given date means the fair market
value of the Stock determined in good faith by the Committee; provided that (i)
if the Stock trades on a national securities exchange, the Fair Market Value on
any given date is the closing sale price on
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such date; (ii) if the Stock does not trade on any national securities exchange
but is admitted to trading on the National Association of Securities Dealers,
Inc. Automated Quotation System ("NASDAQ"), the Fair Market Value on any given
date is the closing sale price as reported by NASDAQ on such date or, if no such
closing sale price information is available, the average of the highest bid and
lowest asked prices for the Stock reported on such date. For any date that is
not a trading day, the Fair Market Value of the Stock for such date will be
determined by using the closing sale price or the average of the highest bid and
lowest asked prices, as appropriate, for the immediately preceding trading day.
The Committee can substitute a particular time of day or other measure of
closing sale price if appropriate because of changes in exchange or market
procedures. Notwithstanding the foregoing, if the date for which Fair Market
Value is determined is the first day when trading prices for the Stock are
reported on NASDAQ or trading on a national securities exchange, the Fair Market
Value shall be the "Price to the Public" (or equivalent) set forth on the cover
page for the final prospectus relating to the Company's Initial Public Offering.
"INCENTIVE STOCK OPTION" means any Stock Option designated and qualified
as an "incentive stock option" as defined in Section 422 of the Code.
"INITIAL PUBLIC OFFERING" means the consummation of the first fully
underwritten, firm commitment public offering pursuant to an effective
registration statement under the Exchange Act, other than on Forms S-4 or S-8 or
their then equivalents, covering the offer and sale by the Company of its equity
securities, as a result of or following which the Stock is publicly held.
"NON-QUALIFIED STOCK OPTION" means any Stock Option that is not an
Incentive Stock Option.
"OPTION" or "STOCK OPTION" means any option to purchase shares of Stock
granted pursuant to Section 5.
"RESTRICTED STOCK AWARD" means Awards granted pursuant to Section 6.
"STOCK" means the Common Stock, par value $0.0001 per share, of the
Company, subject to adjustments pursuant to Section 3.
"STOCK APPRECIATION RIGHT" means any Award granted pursuant to Section 8.
"SUBSIDIARY" means any corporation or other entity (other than the
Company) in any unbroken chain of corporations or other entities beginning with
the Company if each of the corporations or entities (other than the last
corporation or entity in the unbroken chain) owns stock or other interests
possessing 50 percent or more of the economic interest or the total combined
voting power of all classes of stock or other interests in one of the other
corporations or entities in the chain.
"UNRESTRICTED STOCK AWARD" means any Award granted pursuant to Section 7.
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SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT GRANTEES AND
DETERMINE AWARDS
(a) ADMINISTRATION OF PLAN. The Plan shall be administered by the Board
or, at the discretion of the Board, by a committee of the Board ("the
Committee"), comprised, except as contemplated by Section 2(c), of not less than
two Directors. All references herein to the Committee shall be deemed to refer
to the Board or, as the case may be, to the Committee.
(b) POWERS OF COMMITTEE. The Committee shall have the authority to grant
Awards consistent with the terms of the Plan including the authority:
(i) to select the individuals to whom Awards may from time to time
be granted;
(ii) to determine the time or times of grant, and the extent, if
any, of Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation
Rights, Restricted Stock Awards, Unrestricted Stock Awards, or any combination
of the foregoing, granted to any one or more grantees;
(iii) to determine the number of shares of Stock to be covered by
any Award;
(iv) to determine and modify from time to time the terms and
conditions, including restrictions, not inconsistent with the terms of the Plan,
of any Award, which terms and conditions may differ among individual Awards and
grantees, and to approve the form of written instruments evidencing the Awards;
(v) to accelerate at any time the exercisability or vesting of all
or any portion of any Award;
(vi) to impose any limitations on Awards granted under the Plan,
including limitations on transfers, repurchase provisions and the like and to
exercise repurchase rights or obligations;
(vii) subject to the provisions of Section 5(b)(ii), to extend at
any time the period in which Stock Options may be exercised;
(viii) to determine at any time whether, to what extent, and under
what circumstances distribution or the receipt of Stock and other amounts
payable with respect to an Award shall be deferred either automatically or at
the election of the grantee and whether and to what extent the Company shall pay
or credit amounts constituting interest (at rates determined by the Committee)
or dividends or deemed dividends on such deferrals; and
(ix) at any time to adopt, alter and repeal such rules, guidelines
and practices for administration of the Plan and for its own acts and
proceedings as it shall deem advisable; to
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interpret the terms and provisions of the Plan and any Award (including related
written instruments); to make all determinations it deems advisable for the
administration of the Plan; to decide all disputes arising in connection with
the Plan; and to otherwise supervise the administration of the Plan.
All decisions and interpretations of the Committee shall be binding on all
persons, including the Company and Plan grantees.
(c) INDEMNIFICATION. Neither the Board nor the Committee, nor any member
of either or any delegatee thereof, shall be liable for any act, omission,
interpretation, construction or determination made in good faith in connection
with the Plan, and the members of the Board and the Committee (and any delegatee
thereof) shall be entitled in all cases to indemnification and reimbursement by
the Company in respect of any claim, loss, damage or expense (including, without
limitation, reasonable attorneys' fees) arising or resulting therefrom to the
fullest extent permitted by law and/or under any directors' and officers'
liability insurance coverage that may be in effect from time to time.
SECTION 3. STOCK ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION
(a) STOCK ISSUABLE. The maximum number of shares of Stock reserved and
available for issuance under the Plan shall equal the sum of the following,
subject to adjustment as provided in Section 3(b): (i) 290,000 plus (ii) the
number of shares of Common Stock underlying any awards under the Company's 1998
Stock Option and Grant Plan that are forfeited, canceled, reacquired by the
Company, satisfied without the issuance of Common Stock or otherwise terminated
other than by exercise (collectively, "terminated") plus (iii) the number, if
any, of shares of Common Stock underlying the award covered by the present non
plan award of 250,000 options that are terminated. For purposes of this
limitation, the shares of Stock underlying any Awards forfeited, canceled,
reacquired by the Company, satisfied without the issuance of Stock or otherwise
terminated (other than by exercise) shall be added back to the shares of Stock
available for issuance under the Plan. Subject to such overall limitation,
shares of Stock may be issued up to such maximum number pursuant to any type or
types of Award. The shares available for issuance under the Plan may be
authorized but unissued shares of Stock or shares of Stock reacquired by the
Company and held in its treasury.
(b) CHANGES IN STOCK. Subject to Section 3(c) hereof, if, as a result of
any reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split or other similar change in the Company's capital
stock, the outstanding shares of Stock are increased or decreased or are
exchanged for a different number or kind of shares or other securities of the
Company, or additional shares or new or different shares or other securities of
the Company or other non-cash assets are distributed with respect to such shares
of Stock or other securities, or, if, as a result of any merger, consolidation
or sale of all or substantially all the assets of the Company, the outstanding
shares of Stock are converted into or exchanged for different number or kind of
securities of the Company or any successor entity (or a parent or subsidiary
thereof), the Committee shall make an appropriate or proportionate adjustment in
(i) the maximum number of shares reserved for issuance under the Plan, (ii) the
number of Stock
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Options that can be granted to any one individual grantee, (iii) the number and
kind of shares or other securities subject to any outstanding Awards under the
Plan, (iv) the repurchase price per share subject to each outstanding Restricted
Stock Award, and (v) the exercise price and exchange price for each share
subject to any outstanding Stock Options or Stock Appreciation Rights under the
Plan, without changing the aggregate exercise price in respect of such Stock
Options or Stock Appreciation Rights. No fractional shares of Stock shall be
issued under the Plan resulting from any such adjustment, but the Committee in
its discretion may make a cash payment in lieu of fractional shares.
The Committee may also adjust the number of shares subject to outstanding
Awards and the exercise price and the terms of outstanding Awards to take into
consideration material changes in accounting practices or principles,
extraordinary dividends, acquisitions or dispositions of stock or property or
any other event if it is determined by the Committee that such adjustment is
appropriate to avoid distortion in the operation of the Plan provided that no
such adjustment shall be made in the case of an Incentive Stock Option, without
the consent of the grantee, if it would constitute a modification, extension or
renewal of the Option within the meaning of Section 424(h) of the Code.
(c) MERGERS AND OTHER SALE EVENTS. In the case of and subject to the
consummation of (i) the dissolution or liquidation of the Company, (ii) the sale
of all or substantially all the assets of the Company on a consolidated basis to
an unrelated person or entity, (iii) a merger, reorganization or consolidation
in which the outstanding shares of Stock are converted into or exchanged for a
different kind of securities of the successor entity and the holders of the
Company's outstanding voting power immediately prior to such transaction do not
own a majority of the outstanding voting power of the successor entity
immediately upon completion of such transaction, (iv) the sale of all or a
majority of the outstanding capital stock of the Company to an unrelated person
or entity or (v) any other transaction in which the owners of the Company's
outstanding voting power prior to such transaction do not own at least a
majority of the outstanding voting power of the successor entity immediately
upon completion of the transaction (in each case, regardless of the form
thereof, a 'sale Event"), unless otherwise provided in the Award agreement, the
Plan and all outstanding Options issued hereunder shall terminate upon the
effective time of any such Sale Event, unless provision is made in connection
with such transaction in the sole discretion of the parties thereto for the
assumption or continuation of Options theretofore granted (after taking into
account any acceleration hereunder) by the successor entity, or the substitution
of such Options with new Options of the successor entity or a parent or
subsidiary thereof, with such adjustment as to the number and kind of shares and
the per share exercise prices as such parties shall agree (after taking into
account any acceleration if any, hereunder). In the event of such termination,
each grantee shall be permitted, within a specified period of time prior to the
consummation of the Sale Event as determined by the Committee, to exercise all
outstanding Options held by such grantee then exercisable or that will become
exercisable as of the effective time of the Sale Event provided that the
exercise of Options not exercisable prior to the Sale Event shall be subject to
the consummation of the Sale Event. (The treatment of Restricted Stock Award in
connection with any such transaction shall be as specified in the relevant Award
Agreement.)
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(d) SUBSTITUTE AWARDS. The Committee may grant Awards under the Plan in
substitution for stock and stock based awards held by employees, directors or
other key persons of another corporation in connection with a merger or
consolidation of the employing corporation with the Company or a Subsidiary or
the acquisition by the Company or a Subsidiary of property or stock of the
employing corporation. The Committee may direct that the substitute awards be
granted on such terms and conditions as the Committee considers appropriate in
the circumstances..
SECTION 4. ELIGIBILITY
Grantees in the Plan shall be such full or part-time officers, directors,
employees, consultants and other key persons (including prospective employees)
of the Company and its Subsidiaries responsible for, or who contribute to, the
management of, or to the growth or profitability of the Company and its
Subsidiaries as are selected from time to time by the Committee.
SECTION 5. STOCK OPTIONS
(a) Each Stock Option grant under the Plan shall be made pursuant to a
Stock Option agreement in such form as the Committee may from time to time
approve. Option agreements need not be identical. Stock Options granted under
the Plan may be either Incentive Stock Options or Non-Qualified Stock Options.
Incentive Stock Options may be granted only to employees of the Company or any
Subsidiary that is a "subsidiary corporation" within the meaning of Section
424(f) of the Code.
(b) TERMS OF STOCK OPTIONS. Stock Options granted under the Plan shall be
subject to the following terms and conditions and shall contain such additional
terms and conditions, not inconsistent with the terms of the Plan, as the
Committee shall deem desirable. If the Committee so determines, Stock Options
may be granted in lieu of cash compensation at the grantee's election, subject
to such terms and conditions as the Committee may establish, as well as in
addition to other compensation.
(i) EXERCISE PRICE. The exercise price per share for the Stock
covered by a Stock Option shall be determined by the Committee at the time of
grant but shall not be less than 100 percent of the Fair Market Value on the
date of grant in the case of Incentive Stock Options. If an employee owns or is
deemed to own (by reason of the attribution rules of Section 424(d) of the Code)
more than 10 percent of the combined voting power of all classes of stock of the
Company or any parent or subsidiary corporation and an Incentive Stock Option is
granted to such employee, the option price of such Incentive Stock Option shall
be not less than 110 percent of the Fair Market Value on the grant date.
(ii) OPTION TERM. The term of each Stock Option shall be fixed by
the Committee, but no Stock Option shall be exercisable more than ten years
after the date the Stock Option is granted. If an employee owns or is deemed to
own (by reason of the attribution rules of Section 424(d) of the Code) more than
ten percent of the combined voting power of all classes
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of stock of the Company or any parent or subsidiary corporation and an Incentive
Stock Option is granted to such employee, the term of such Stock Option shall be
no more than five years from the date of grant.
(iii) EXERCISABILITY; RIGHTS OF A STOCKHOLDER. Stock Options shall
become exercisable at such time or times, whether or not in installments, as
shall be determined by the Committee at or after the grant date. The Committee
may at any time accelerate the exercisability of all or any portion of any Stock
Option. An optionee shall have the rights of a stockholder only as to shares
acquired upon the exercise of a Stock Option and not as to unexercised Stock
Options.
(iv) METHOD OF EXERCISE. Stock Options may be exercised in whole or
in part, by giving written notice of exercise to the Company, specifying the
number of shares to be purchased. Payment of the purchase price may be made by
one or more of the following methods to the extent provided in the Stock Option
agreement:
(A) In cash;
(B) If permitted by the Committee, delivery of a
promissory note;
(C) If permitted by the Committee, through the delivery
(or attestation to the ownership) of shares of Stock that have been purchased by
the optionee on the open market or have been beneficially owned by the optionee
for at least six months and are not then subject to restrictions under any
Company plan, such surrendered shares to be valued at Fair Market Value on the
exercise date;
(D) If permitted by the Committee, by the optionee
delivering to the Company a properly executed exercise notice together with
irrevocable instructions to a broker to promptly deliver to the Company cash or
a check payable and acceptable to the Company to pay the purchase price provided
that the optionee and the broker shall comply with such procedures and enter
into such agreements of indemnity and other agreements as the Committee shall
prescribe as a condition of such payment procedure.
Payment instruments shall be received subject to collection. No certificates for
shares of Stock so purchased shall be issued to optionee until the Company has
completed all steps required by law to be taken in connection with the issuance
and sale of the shares, including without limitation (i) receipt of a
representation from the optionee at the time of exercise of the Option that the
optionee is purchasing the shares for the optionee's own account and not with a
view to any sale or distribution thereof, (ii) the legending of any certificate
representing the shares to evidence the foregoing representations and
restrictions and (iii) obtaining from optionee payment or provision for all
withholding taxes due as a result of the exercise of the Option. The delivery of
certificates representing the shares of Stock to be purchased pursuant to the
exercise of a Stock Option shall be contingent upon receipt from or on behalf of
the optionee of the full purchase price for such shares and the fulfillment of
any other requirements contained in the Stock Option agreement or applicable
provisions of laws.
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(c) ANNUAL LIMIT ON INCENTIVE STOCK OPTIONS. To the extent the aggregate
Fair Market Value (determined as of the time of grant) of the shares of Stock
with respect to which Incentive Stock Options granted under this Plan and any
other plan of the Company or its parent and subsidiary corporations become
exercisable for the first time by an optionee during any calendar year exceed
$100,000, such excess shall constitute a Non-Qualified Stock Option.
(d) NON-TRANSFERABILITY OF OPTIONS. No Stock Option shall be transferable
by the optionee otherwise than by will or by the laws of descent and
distribution and all Stock Options shall be exercisable, during the optionee's
lifetime, only by the optionee, or by the optionee's legal representative or
guardian in the event of the optionee's incapacity provided that the Committee
may provide in the Option agreement that the optionee may transfer, without
consideration for the transfer, Non-Qualified Stock Options to members of the
optionee's immediate family, to trusts for the benefit of such family members,
or to partnerships in which such family members are the only partners, provided
further that the transferee agrees in writing with the Company to be bound by
all the terms and conditions of this Plan and the applicable Option.
SECTION 6. RESTRICTED STOCK AWARDS
(a) NATURE OF RESTRICTED STOCK AWARDS. The Committee may grant or sell, at
such purchase price as determined by the Committee, shares of Stock subject to
such restrictions and conditions as the Committee may determine at the time of
grant ("Restricted Stock"), which purchase price shall be payable in cash or
other form of consideration acceptable to the Committee. Conditions may be based
on continuing employment (or other service relationship) or achievement of
pre-established performance goals and objectives. The terms and conditions of
each such agreement shall be determined by the Committee, and such terms and
conditions may differ among individual Awards and grantees.
(b) RIGHTS AS A STOCKHOLDER. Upon execution of a written instrument
setting forth the Restricted Stock Award and payment of any applicable purchase
price, a grantee shall have the rights of a stockholder with respect to the
voting of the Restricted Stock, subject to such conditions contained in the
written instrument evidencing the Restricted Stock Award. Unless the Committee
shall otherwise determine, certificates evidencing the Restricted Stock shall
remain in the possession of the Company until such Restricted Stock is vested as
provided in subsection (d) of this Section, and the grantee shall be required,
as a condition of the grant, to deliver to the Company a stock power endorsed in
blank.
(c) RESTRICTIONS. Restricted Stock may not be sold, assigned, transferred,
pledged or otherwise encumbered or disposed of except as provided herein or in
the Restricted Stock Award agreement. The Restricted Stock Award agreement may
give the Company the option, or impose upon it the obligation, to repurchase
some of or all of the shares of Stock subject to the Award at such purchase
price set forth therein if the grantee's employment or their relationship with
the Company or a Subsidiary terminates or changes in manner set forth therein.
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(d) VESTING OF RESTRICTED STOCK. The Committee at the time of grant shall
specify the date or dates and/or the attainment of pre-established performance
goals, objectives and other conditions on which Restricted Stock shall become
vested, subject to such further rights of the Company or its assigns as may be
specified in the Restricted Stock Award agreement.
(e) WAIVER, DEFERRAL AND REINVESTMENT OF DIVIDENDS. The Restricted Stock
Award agreement may require or permit the immediate payment, waiver, deferral or
investment of dividends paid on the Restricted Stock.
SECTION 7. UNRESTRICTED STOCK AWARDS
(a) GRANT OR SALE OF UNRESTRICTED STOCK. The Committee may grant (or sell
at par value or such higher purchase price determined by the Committee) an
Unrestricted Stock Award to any grantee, pursuant to which such grantee may
receive shares of Stock free of any vesting restrictions ("Unrestricted Stock")
under the Plan. Unrestricted Stock Awards may be granted in respect of past
services or other valid consideration.
(b) ELECTIONS TO RECEIVE UNRESTRICTED STOCK IN LIEU OF COMPENSATION. Upon
the request of a grantee and with the consent of the Committee, each such
grantee may, pursuant to an advance written election delivered to the Company no
later than the date specified by the Committee, receive a portion of the cash
compensation otherwise due to such grantee in the form of shares of Unrestricted
Stock either currently or on a deferred basis.
(c) RESTRICTIONS ON TRANSFERS. The right to receive shares of Unrestricted
Stock on a deferred basis may not be sold, assigned, transferred, pledged or
otherwise encumbered, other than by will or the laws of descent and
distribution.
SECTION 8. STOCK APPRECIATION RIGHTS
(a) NATURE OF STOCK APPRECIATION RIGHTS. A Stock Appreciation Right is an
Award entitling the optionee to elect to receive an amount in cash or shares of
Stock or a combination thereof having a value equal to up to the excess of the
Fair Market Value of the Stock on the date of exercise over the exercise price
of the optionee's Stock Options. A Stock Appreciation Right may be included by
the Committee at the time of or subsequent to the grant of the Stock Options as
set forth in Subsection (b) hereof.
(b) GRANT AND EXERCISE OF STOCK APPRECIATION RIGHTS. Stock Appreciation
Rights may be granted by the Committee in tandem with, or independently of, any
Stock Option granted pursuant to Section 5 of the Plan. In the case of a Stock
Appreciation Right granted in tandem with a Non-Qualified Stock Option, such
Stock Appreciation Right may be granted either at or after the time of the grant
of such Option. In the case of a Stock Appreciation Right granted in tandem with
an Incentive Stock Option, such Stock Appreciation Right may be granted only at
the time of the grant of the Option.
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(c) TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS. Stock Appreciation
Rights shall be subject to such terms and conditions as shall be determined from
time to time by the Committee including the following: (i) Stock Appreciation
Rights granted in tandem with Options shall be exercisable at such time or times
and to the extent that the related Stock Options shall be exercisable; (ii) upon
exercise of a Stock Appreciation Right, the applicable portion of any related
Option shall be surrendered; and (iii) all Stock Appreciation Rights shall be
exercisable during the grantee's lifetime only by the grantee or the grantee's
legal representative.
(d) TERMINATION. Except as may otherwise be provided by the Committee
either in the Award agreement or in writing after the Award agreement is issued,
a grantee's rights in all Stock Appreciation Rights shall automatically
terminate upon the grantee's termination of employment (or cessation of business
relationship) with the Company and its Subsidiaries for any reason.
SECTION 9. TAX WITHHOLDING
(a) PAYMENT BY GRANTEE. Each grantee shall, no later than the date as of
which the value of an Award or of any Stock or other amounts received thereunder
first becomes subject to inclusion in the gross income of the grantee for
Federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Committee regarding payment of, any federal, state, or local
taxes of any kind required by law to be withheld with respect to such income.
The Company and its Subsidiaries shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
grantee.
(b) PAYMENT IN STOCK. Subject to approval by the Committee, a grantee may
elect to have the minimum required tax withholding obligation satisfied, in
whole or in part, by (i) authorizing the Company to withhold from shares of
Stock to be issued pursuant to any Award a number of shares with an aggregate
Fair Market Value (as of the date the withholding is effected) that would
satisfy the withholding amount due, or (ii) transferring to the Company shares
of Stock owned by the grantee with an aggregate Fair Market Value (as of the
date the withholding is effected) that would satisfy the minimum withholding
amount due.
SECTION 10. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer to the employment of the Company from a Subsidiary or from
the Company to a Subsidiary, or from one Subsidiary to another; or
(b) an approved leave of absence for military service or sickness, or for
any other purpose approved by the Company, if the employee's right to
re-employment is guaranteed
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either by a statute or by contract or under the policy pursuant to which the
leave of absence was granted or if the Committee otherwise so provides in
writing.
SECTION 11. AMENDMENTS AND TERMINATION
The Board may, at any time, amend or discontinue the Plan and the
Committee may, at any time, amend or cancel any outstanding Award (or provide
substitute Awards at the same or reduced exercise or purchase price or with no
exercise or purchase price in a manner not inconsistent with the terms of the
Plan), but such price, if any, must satisfy the requirements which would apply
to the substitute or amended Award if it were then initially granted under this
Plan for the purpose of satisfying changes in law or for any other lawful
purpose, but no such action shall adversely affect rights under any outstanding
Award without the holder's consent. If and to the extent determined by the
Committee to be required by the Code to ensure that Incentive Stock Options
granted under the Plan are qualified under Section 422 of the Code, Plan
amendments shall be subject to approval by the Company's stockholders who are
eligible to vote at a meeting of stockholders. Nothing in this Section 10 shall
limit the Board's or Committee's authority to take any action permitted pursuant
to Section 3(c).
SECTION 12. STATUS OF PLAN
With respect to the portion of any Award that has not been exercised and
any payments in cash, Stock or other consideration not received by a grantee, a
grantee shall have no rights greater than those of a general creditor of the
Company unless the Committee shall otherwise expressly determine in connection
with any Award or Awards. In its sole discretion, the Committee may authorize
the creation of trusts or other arrangements to meet the Company's obligations
to deliver Stock or make payments with respect to Awards hereunder, PROVIDED
that the existence of such trusts or other arrangements is consistent with the
foregoing sentence.
SECTION 13 GENERAL PROVISIONS
(a) NO DISTRIBUTION; COMPLIANCE WITH LEGAL REQUIREMENTS. The Committee may
require each person acquiring Stock pursuant to an Award to represent to and
agree with the Company in writing that such person is acquiring the shares
without a view to distribution thereof. No shares of Stock shall be issued
pursuant to an Award until all applicable securities law and other legal and
stock exchange or similar requirements have been satisfied. The Committee may
require the placing of such stop-orders and restrictive legends on certificates
for Stock and Awards as it deems appropriate.
(b) DELIVERY OF STOCK CERTIFICATES. Stock certificates to grantees under
this Plan shall be deemed delivered for all purposes when the Company or a stock
transfer agent of the Company shall have mailed such certificates in the United
States mail, addressed to the grantee, at the grantee's last known address on
file with the Company.
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(c) OTHER COMPENSATION ARRANGEMENTS; NO EMPLOYMENT RIGHTS. Nothing
contained in this Plan shall prevent the Board from adopting other or additional
compensation arrangements, including trusts, and such arrangements may be either
generally applicable or applicable only in specific cases. The adoption of this
Plan and the grant of Awards do not confer upon any employee any right to
continued employment with the Company or any Subsidiary.
(d) TRADING POLICY RESTRICTIONS. Option exercises and other Awards under
the Plan shall be subject to such Company's insider-trading-policy-related
restrictions, terms and conditions as may be established by the Committee, or in
accordance with policies set by the Committee, from time to time.
(e) LOANS TO AWARD RECIPIENTS. The Company shall have the authority to
make loans to recipients of Awards hereunder (including to facilitate the
purchase of shares) and shall further have the authority to issue shares for
promissory notes hereunder.
(f) DESIGNATION OF BENEFICIARY. Each grantee to whom an Award has been
made under the Plan may designate a beneficiary or beneficiaries to exercise any
Award or receive any payment under any Award payable on or after the grantee's
death. Any such designation shall be on a form provided for that purpose by the
Administrator and shall not be effective until received by the Administrator. If
no beneficiary has been designated by a deceased grantee, or if the designated
beneficiaries have predeceased the grantee, the beneficiary shall be the
grantee's estate.
SECTION 14. EFFECTIVE DATE OF PLAN
This Plan shall become effective upon approval by the holders of a
majority of the votes cast at a meeting of stockholders at which a quorum is
present or by written consent in accordance with applicable law. Subject to such
approval by the stockholders and to the requirement that no Stock may be issued
hereunder prior to such approval, Stock Options and other Awards may be granted
hereunder on and after adoption of this Plan by the Board.
SECTION 15. GOVERNING LAW
This Plan and all Awards and actions taken thereunder shall be governed by
Delaware law, applied without regard to conflict of law principles.
ADOPTED BY BOARD OF DIRECTORS: November ___, 2000
APPROVED BY STOCKHOLDERS: November ___, 2000
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