Exhibit 10.2
CONTROL DELIVERY SYSTEMS, INC.
1997 STOCK OPTION PLAN
1. PURPOSE
The purpose of this 1997 Stock Option Plan (the "Plan") is to advance the
interests of Control Delivery Systems, Inc. (the "Company") by enhancing the
ability of the Company and its subsidiaries to attract and retain directors,
employees, consultants or advisers who are in a position to make significant
contributions to the success of the Company, to reward them for their
contributions and to encourage them to take into account the long-term interests
of the Company.
The Plan provides for the award of options to purchase shares of the
Company's common stock ("Stock") and for the award of stock appreciation rights
("SARs") based on Stock. Options granted pursuant to the Plan may be incentive
stock options as defined in section 422 of the Internal Revenue Code of 1986 (as
from time to time amended, the "Code") (any option that is intended to qualify
as an incentive stock option being referred to herein as an "incentive option"),
or options that are not incentive options, or both. Options granted pursuant to
the Plan shall be presumed to be non-incentive options unless expressly
designated as incentive options.
2. ELIGIBILITY FOR AWARDS
Persons eligible to receive awards under the Plan shall be all directors,
including directors who are not employees, of the Company and all executive
officers of the Company and its subsidiaries and other employees, consultants
and advisers who, in the opinion of the Board, are in a position to make a
significant contribution to the success of the Company and its subsidiaries.
Incentive options shall be granted only to "employees" as defined in the
provisions of the Code or regulations thereunder applicable to incentive stock
options. A subsidiary for purposes of the Plan shall be a corporation in which
the Company owns, directly or indirectly, stock possessing 50% or more of the
total combined voting power of all classes of stock. Persons selected for
awards under the Plan are referred to herein as "participants."
3. ADMINISTRATION
The Plan shall be administered by the Board of Directors (the "Board") of
the Company. The Board shall have authority, not inconsistent with the express
provisions of the Plan, (a) to grant awards consisting of options or SARs, or
both, to such participants as the Board may select; (b) to determine the time or
times when awards shall be granted and the number of shares of Stock subject to
each award; (c) to determine which options are, and which options are not,
incentive options; (d) to determine the terms and conditions of each award; (e)
to prescribe the form or forms of any instruments evidencing awards and any
other instruments required under the Plan and to change such forms from time to
time; (f) to adopt, amend and rescind rules and
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regulations for the administration of the Plan; and (g) to interpret the Plan
and to decide any questions and settle all controversies and disputes that may
arise in connection with the Plan. Such determinations of the Board shall be
conclusive and shall bind all parties. Subject to Section 8 the Board shall also
have the authority, both generally and in particular instances, to waive
compliance by a participant with any obligation to be performed by the
participant under an award, to waive any condition or provision of an award, and
to amend or cancel any award (and if an award is canceled, to grant a new award
on such terms as the Board shall specify) except that the Board may not take any
action with respect to an outstanding award that would adversely affect the
rights of the participant under such award without such participant's consent.
Nothing in the preceding sentence shall be construed as limiting the power of
the Board to make adjustments required by Section 5(c) and Section 6(j).
The Board may, in its discretion, delegate some or all of its powers with
respect to the Plan to a committee (the "Committee"), in which event all
references in this Plan (as appropriate) to the Board shall be deemed to refer
to the Committee. The Committee, if one is appointed, shall consist of at least
two directors. A majority of the members of the Committee shall constitute a
quorum, and all determinations of the Committee shall be made by a majority of
its members. Any determination of the Committee under the Plan may be made
without notice or meeting of the Committee by a writing signed by a majority of
the Committee members.
4. EFFECTIVE DATE AND TERM OF PLAN
The Plan shall become effective on the date on which it is approved by the
shareholders of the Company. Grants of awards under the Plan may be made prior
to that date (but contemporaneous with or after Board adoption of the Plan),
subject to approval of the Plan by such shareholders.
No awards shall be granted under the Plan after the completion of ten years
from the date on which the Plan was adopted by the Board, but awards previously
granted may extend beyond that date.
5. SHARES SUBJECT TO THE PLAN
(a) Number of Shares. Subject to adjustment as provided in Section 5(c),
the aggregate number of shares of Stock that may be delivered upon the exercise
of awards granted under the Plan shall be 15,000. If any award granted under the
Plan terminates without having been exercised in full, or upon exercise is
satisfied other than by delivery of Stock, the number of shares of Stock as to
which such award was not exercised shall be available for future grants within
the limits set forth in this Section 5(a).
The maximum number of shares for which options may be granted to any
individual over the life of the Plan shall be 7,500. The maximum number of
shares subject to SARs granted to any individual over the life of the Plan shall
likewise be 7,500. The per-individual limitations described in this paragraph
shall be construed and applied consistent with the rules and regulations under
Section 162(m) of the Code.
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(b) Shares to be Delivered. Shares delivered under the Plan shall be
authorized but unissued Stock or, if the Board so decides in its sole
discretion, previously issued Stock acquired by the Company and held in its
treasury. No fractional shares of Stock shall be delivered under the Plan.
(c) Changes in Stock. In the event of a stock dividend, stock split or
combination of shares, recapitalization or other change in the Company's capital
stock, the number and kind of shares of Stock subject to awards then outstanding
or subsequently granted under the Plan, the exercise price of such awards, the
maximum number of shares of Stock that may be delivered under the Plan, and
other relevant provisions shall be appropriately adjusted by the Board, whose
determination shall be binding on all persons.
The Board 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, consolidations or mergers (except those described in
Section 6(j)), acquisitions or dispositions of stock or property or any other
event if it is determined by the Board 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 option, without the consent of the
participant, if it would constitute a modification, extension or renewal of the
option within the meaning of section 424(h) of the Code.
6. TERMS AND CONDITIONS OF OPTIONS AND SARS
(a) Exercise Price of Options and SARs. The exercise price of each option
or SAR shall be determined by the Board but in the case of an incentive option
shall not be less than 100% (110%, in the case of an incentive option granted to
a ten-percent shareholder) of the fair market value of the Stock at the time the
option is granted; nor shall the exercise price be less, in the case of an
original issue of authorized stock, than par value. For this purpose, "fair
market value" in the case of incentive options shall have the same meaning as it
does in the provisions of the Code and the regulations thereunder applicable to
incentive options; and "ten-percent shareholder" shall mean any participant who
at the time of grant owns directly, or by reason of the attribution rules set
forth in section 424(d) of the Code, is deemed to own stock possessing more than
10% of the total combined voting power of all classes of stock of the Company or
of any of its parent or subsidiary corporations.
(b) Duration of Options and SARs. Options and SARs shall be exercisable
during such period or periods as the Board may specify. The latest date on which
an option or SAR may be exercised (the "Final Exercise Date") shall be the date
that is ten years (five years, in the case of an incentive option granted to a
"ten-percent shareholder" as defined in (a) above) from the date the option or
SAR was granted or such earlier date as the Board may specify at the time the
option or SAR is granted.
(c) Exercise of Options and SARs.
(1) Options and SARs shall become exercisable at such time or times and
upon such conditions as the Board shall specify. In the case of an
option or an SAR not immediately exercisable in full, the Board may at
any time accelerate the time at which all or any part of the option or
SAR may be exercised.
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(2) Options and SARs may be exercised only in writing. Written notice of
exercise must be signed by the proper person and furnished to the
Company, together with (i) such documents as the Board may require and
(ii) in the case of options, payment in full as specified below in
Section 6(d) for the number of shares for which the option is
exercised.
(3) The delivery of Stock upon the exercise of an option or an SAR shall
be subject to compliance with (i) applicable federal and state laws
and regulations, (ii) if the outstanding Stock is at the time listed
on any stock exchange, the listing requirements of such exchange, and
(iii) Company counsel's approval of all other legal matters in
connection with the issuance and delivery of such Stock. If the sale
of Stock has not been registered under the Securities Act of 1933, as
amended, the Company may require, as a condition to exercise of the
option or SAR, such representations or agreements as counsel for the
Company may consider appropriate to avoid violation of such Act and
may require that the certificates evidencing such Stock bear an
appropriate legend restricting transfer.
(4) In the case of an option that is not an incentive option or an SAR,
the Board shall have the right to require that the participant
exercising the option remit to the Company an amount sufficient to
satisfy any federal, state, or local withholding tax requirements (or
make other arrangements satisfactory to the Company with regard to
such taxes) prior to the delivery of any Stock pursuant to the
exercise of the option. If permitted by the Board, either at the time
of the grant of the option or SAR or the time of exercise, the
participant may elect, at such time and in such manner as the Board
may prescribe, to satisfy such withholding obligation by (i)
delivering to the Company Stock (which in the case of Stock acquired
from the Company shall have been owned by the participant for at least
six months prior to the delivery date) having a fair market value
equal to such withholding obligation, or (ii) requesting that the
Company withhold from the shares of Stock to be delivered upon the
exercise a number of shares of Stock having a fair market value equal
to such withholding obligation.
In the case of an incentive option, if at the time the option is
exercised the Board determines that under applicable law and
regulations the Company could be liable for the withholding of any
federal or state tax with respect to a disposition of the Stock
received upon exercise, the Board may require as a condition of
exercise that the participant exercising the option agree (i) to
inform the Company promptly of any disposition (within the meaning of
section 424(c) of the Code and the regulations thereunder) of Stock
received upon exercise, and (ii) to give such security as the Board
deems adequate to meet the potential liability of the Company for the
withholding of tax, and to augment such security from time to time in
any amount reasonably deemed necessary by the Board to preserve the
adequacy of such security.
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(5) If an option or an SAR is exercised by the executor or administrator
of a deceased participant, or by the person or persons to whom the
option has been transferred by the participant's will or the
applicable laws of descent and distribution, the Company shall be
under no obligation to deliver Stock pursuant to such exercise until
the Company is satisfied as to the authority of the person or persons
exercising the option or SAR.
(d) Payment for and Delivery of Stock. Stock purchased upon exercise of an
option under the Plan shall be paid for as follows:
(i) in cash or by personal check, certified check, bank draft or money
order payable to the order of the Company; or
(ii) if so permitted by the Board (which, in the case of an incentive
option, shall specify the method of payment at the time of grant), (A)
through the delivery of shares of Stock (which, in the case of Stock
acquired from the Company, shall have been held for at least six
months prior to delivery) having a fair market value on the last
business day preceding the date of exercise equal to the purchase
price or (B) by delivery of a promissory note of the participant to
the Company, such note to be payable on such terms as are specified by
the Board or (C) by delivery of an unconditional and irrevocable
undertaking by a broker to deliver promptly to the Company sufficient
funds to pay the exercise price or (D) by any combination of the
permissible forms of payment; provided, that if the Stock delivered
upon exercise of the option is an original issue of authorized Stock,
at least so much of the exercise price as represents the par value of
such Stock shall be paid other than by a personal check or promissory
note of the person exercising the option.
(e) Stock Appreciation Rights. The Board in its discretion may grant SARs
either in tandem with or independent of options awarded under the Plan. Except
as hereinafter provided, each SAR shall entitle the participant to receive upon
exercise, with respect to each share of Stock to which the SAR relates, the
excess of (i) the share's value on the date of exercise over (ii) the share's
fair market value on the date the SAR was granted. For purposes of clause (i),
"value" shall mean fair market value; provided, that the Board may adjust such
value to take into account dividends on the Stock and may also grant SARs that
provide, in such limited circumstances following a change in control of the
Company (as determined by the Board) as the Board may specify, that "value" for
purposes of clause (i) is to be determined by reference to an average value for
the Stock during a period immediately preceding the change in control, all as
determined by the Board. The amount payable to a participant upon exercise of an
SAR shall be paid either in cash or in shares of Stock, as the Board determines.
Each SAR shall be exercisable during such period or periods and on such terms as
the Board may specify. In no event, however, shall an SAR be exercisable after
the date that is ten years from the date of grant.
(f) Rights as Shareholder. A participant shall not have the rights of a
shareholder with regard to awards under the Plan except as to Stock actually
received by the participant under the Plan.
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(g) Nontransferability of Awards. Except as the Board may otherwise
determine, no award may be transferred other than by will or by the laws of
descent and distribution, and during a participant's lifetime an award may be
exercised only by the participant.
(h) Death. If a participant dies, each option and SAR held by the
participant immediately prior to death may be exercised, to the extent it was
exercisable immediately prior to death, by the participant's executor or
administrator or by the person or persons to whom the option or SAR is
transferred by will or the applicable laws of descent and distribution, at any
time within the one-year period (or such longer or shorter period as the Board
may determine) beginning with the date of the participant's death but in no
event beyond the Final Exercise Date. All options and SARs held by a participant
immediately prior to death that are not then exercisable shall terminate on the
date of death.
(i) Termination of Service Other Than By Death. If an employee's
employment with the Company and its subsidiaries terminates for any reason other
than by death, all options and SARs held by the employee that are not then
exercisable shall terminate. Options and SARs that are exercisable on the date
employment terminates shall continue to be exercisable for a period of three
months (or such longer period as the Board may determine, but in no event beyond
the Final Exercise Date) unless the employee was discharged for cause that in
the opinion of the Board casts such discredit on the employee as to justify
termination of the employee's options and SARs. After completion of the post-
termination exercise period, such options and SARs shall terminate to the extent
not previously exercised, expired or terminated. For purposes of this Section
6(i), employment shall not be considered terminated (i) in the case of sick
leave or other bona fide leave of absence approved for purposes of the Plan by
the Board, so long as the employee's right to reemployment is guaranteed either
by statute or by contract, or (ii) in the case of a transfer of employment
between the Company and a subsidiary or between subsidiaries, or to the
employment of a corporation (or a parent or subsidiary corporation of such
corporation) issuing or assuming an option or SAR in a transaction to which
section 424(a) of the Code applies, or (iii) if the Board of Directors shall
consent to the continuation of such award and such award shall not be an
incentive stock option, in the case of the employee's continued service to the
Company as a consultant, adviser or director.
In the case of a participant who is not an employee, provisions relating to
the exercisability of options and SARs following termination of service shall be
specified in the award. If not so specified, all options and SARs held by such
participant that are not then exercisable shall terminate upon termination of
service. Options and SARs that are exercisable on the date the participant's
service as a director, consultant or adviser terminates shall continue to be
exercisable for a period of three months (or such longer period as the Board may
determine, but in no event beyond the Final Exercise Date) unless the director,
consultant or adviser was terminated for cause that in the opinion of the Board
casts such discredit on him or her as to justify termination of his or her
options and SARs. After completion of the post-termination exercise period,
such options and SARs shall terminate to the extent not previously exercised,
expired or terminated.
(j) Mergers, etc. In the event of a consolidation or merger in which the
Company is not the surviving corporation or which results in the acquisition of
substantially all the
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Company's outstanding Stock by a single person or entity or by a group of
persons and/or entities acting in concert, or in the event of the sale or
transfer of substantially all the Company's assets, all outstanding awards shall
thereupon terminate, provided that all outstanding awards shall become
exercisable immediately prior to consummation of such merger, consolidation or
sale of assets unless, if there is a surviving or acquiring corporation, the
Board has arranged, subject to consummation of the merger, consolidation or sale
of assets, for the assumption of the awards or the grant to participants of
replacement awards by that corporation or an affiliate of that corporation,
which awards in the case of incentive options shall satisfy the requirements of
section 424(a) of the Code.
The Board may grant awards under the Plan in substitution for awards held
by directors, employees, consultants or advisers of another corporation who
concurrently become directors, employees, consultants or advisers of the Company
or a subsidiary of the Company as the result of a merger or consolidation of
that corporation with the Company or a subsidiary of the Company, or as the
result of the acquisition by the Company or a subsidiary of the Company of
property or stock of that corporation. The Company may direct that substitute
awards be granted on such terms and conditions as the Board considers
appropriate in the circumstances.
Notwithstanding any provision of this Plan to the contrary, except as
otherwise specifically provided by the Board at the time of grant all of a
participant's outstanding awards shall vest and become exercisable if (i) such
participant is an employee, director, consultant or advisor immediately prior to
a Change in Control, and (ii) within the twelve-month period immediately
following the Change of Control either (a) such participant's employment,
directorship, or provision of services is terminated by the Company without
Cause, or (b) if participant is an employee, participant's principal place of
work is relocated to a location more than 50 miles from its current location
without participant's consent. For purposes of this Section 6.a., "Cause" means
(i) failure of the recipient to perform (other than by reason of disability), or
material negligence in the performance of, his or her duties and
responsibilities to the Company or any of its subsidiaries or affiliates;
(ii) fraud, embezzlement or other dishonesty by the recipient with respect to
the Company or any of its subsidiaries or affiliates; (iii) commission by the
recipient of a felony or a crime involving moral turpitude; or (iv) other
conduct by the recipient that is harmful in any material respect to the
business, interests or reputation of the Company or any of its subsidiaries or
affiliates.
7. NO EMPLOYMENT OR OTHER RIGHTS
Neither the adoption of the Plan nor the grant of awards shall confer upon
any participant any right to continue as an employee or director of, or
consultant or adviser to, the Company or any parent or subsidiary or affect in
any way the right of the Company or parent or subsidiary to terminate them at
any time. Except as specifically provided by the Board in any particular case,
the loss of existing or potential profit in awards granted under this Plan shall
not constitute an element of damages in the event of termination of the
relationship of a participant even if the termination is in violation of an
obligation of the Company to the participant by contract or otherwise.
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8. EFFECT, DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION
Neither adoption of the Plan nor the grant of awards to a participant shall
affect the Company's right to make awards to such participant that are not
subject to the Plan, to issue to such participant Stock as a bonus or otherwise,
or to adopt other plans or arrangements under which Stock may be issued.
The Board may at any time discontinue granting awards under the Plan. With
the consent of the participant, the Board may at any time cancel an existing
award in whole or in part and grant another award for such number of shares as
the Board specifies. The Board may at any time or times amend the Plan or any
outstanding award for the purpose of satisfying the requirements of section 422
of the Code or of any changes in applicable laws or regulations or for any other
purpose that may at the time be permitted by law, or may at any time terminate
the Plan as to further grants of awards, but no such amendment shall adversely
affect the rights of any participant (without the participant's consent) under
any award previously granted.
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