MICROSTRATEGY INCORPORATED
AMENDED AND RESTATED 1996 STOCK PLAN
1. Purpose of the Plan. The purpose of the MicroStrategy Incorporated
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(the "Company") Amended and Restated 1996 Stock Plan is to enable the Company to
provide an incentive to eligible employees, consultants and officers whose
present and potential contributions are important to the continued success of
the Company, to afford these individuals the opportunity to acquire a
proprietary interest in the Company, and to enable the Company to enlist and
retain in its employment the best available talent for the successful conduct of
its business.
2. Definitions. As used herein, the following definitions shall apply:
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(a) "Administrator" means the Board, such of its Committees or such
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other persons to which the Board may delegate its authority as shall be
administering the Plan in accordance with Section 5 of the Plan.
(b) "Applicable Laws" means the legal requirements relating to the
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administration of stock option plans under applicable securities and corporate
laws and the Code.
(c) "Board" means the Board of Directors of the Company.
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(d) "Code" means the Internal Revenue Code of 1986, as amended.
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(e) "Committee" means a Committee of the Board or a Committee of
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Officers, if any, appointed by the Board in accordance with Section 5 of the
Plan.
(f) "Common Stock" means the Class A Common Stock of the Company.
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(g) "Company" means MicroStrategy Incorporated, a Delaware
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corporation.
(h) "Consultant" means (i) any person, including an advisor, engaged
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by the Company or a Parent or Subsidiary to render services and who is
compensated for such services, (ii) any Director who is not an employee of the
Company, but who is paid only a director's fee by the Company or (iii) any
Director who is not compensated by the Company for his/her services as a
Director.
(i) "Continuous Status as an Employee or Consultant" means that the
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employment or consulting relationship of a person with the Company, any Parent
or Subsidiary, or where applicable, any entity affiliated with the Company, is
not interrupted or terminated. Continuous Status as an Employee or Consultant
shall not be considered interrupted in the case of any leave of absence
permitted pursuant to any Company policies or approved by the Board, including
sick leave, military leave, or any other personal leave, or transfers between
locations of the Company or between the Company, its Parent, its Subsidiaries,
or where applicable, affiliated
or successor entities. For purposes of Incentive Stock Options, in the event any
such authorized or permitted leave exceeds ninety (90) days, the Option shall be
deemed a Nonstatutory Stock Option, unless reemployment upon the expiration of
such leave is guaranteed by contract (including certain Company policies),
statute or applicable regulation.
(j) "Director" means a member of the Board.
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(k) "Disability" means total and permanent disability as defined in
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Section 22(e)(3) of the Code.
(l) "Employee" means any person, including Officers and Directors,
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employed by the Company or any Parent, Subsidiary or where applicable, entities
affiliated with the Company. Neither service as a Director nor mere payment of
a director's fee by the Company shall be sufficient to constitute "employment"
by the Company.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
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amended.
(n) "Fair Market Value" means, as of any date, the value of Common
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Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the National
Market System of the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") System, the Fair Market Value of a Share of Common Stock
shall be the closing sales price for such stock (or the closing bid, if no sales
were reported) as quoted on such system or exchange (or the exchange with the
greatest volume of trading in Common Stock) on the last market trading day prior
to the day of determination, as reported in The Wall Street Journal or such
other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the NASDAQ System (but
not on the National Market System thereof) or is regularly quoted by a
recognized securities dealer but selling prices are not reported, the Fair
Market Value of a Share of Common Stock shall be the mean between the high bid
and low asked prices for the Common Stock on the last market trading day prior
to the day of determination, as reported in The Wall Street Journal or such
other source as the Administrator deems reliable;
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by the
Administrator.
(o) "Incentive Stock Option" means an Option intended to qualify as
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an incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
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(p) "Nonstatutory Stock Option" means any Option that is not an
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Incentive Stock Option.
(q) "Notice of Grant" means a written notice evidencing certain terms
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and conditions of an individual Option grant. The Notice of Grant is part of
the Option Agreement.
(r) "Officer" means a person who is an officer of the Company within
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the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(s) "Option" means a stock option granted pursuant to the Plan.
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(t) "Option Agreement" means a written agreement between the Company
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and an Optionee evidencing the terms and conditions of an individual Option
grant. The Option Agreement is subject to the terms and conditions of the Plan.
(u) "Optioned Stock" means the Common Stock subject to an Option.
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(v) "Optionee" means an Employee or Consultant who holds an
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outstanding Option.
(w) "Parent" means a "parent corporation," whether now or hereafter
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existing, as defined in Section 424(e) of the Code.
(x) "Plan" means this 1996 Stock Plan.
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(y) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any
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successor rule thereto, as in effect when discretion (as defined therein) is
being exercised with respect to the Plan.
(z) "Share" means a share of the Common Stock, as adjusted in
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accordance with Section 9 of the Plan.
(aa) "Subsidiary" means a "subsidiary corporation," whether now or
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hereafter existing, as defined in Section 424(f) of the Code.
(bb) "Vested" shall mean that portion of an Option that is
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exercisable.
3. Eligibility. Nonstatutory Stock Options may be granted to either
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Employees or Consultants. Incentive Stock Options may be granted only to
Employees. If otherwise eligible, an Employee or Consultant who has been
granted an Option may be granted additional Options.
4. Stock Subject to the Plan. Subject to the provisions of Section 11 of
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the Plan, the total number of Shares reserved and available for distribution
under the Plan is eight million
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(8,000,000) Shares, subject to subsequent adjustment for any stock split,
reverse stock split, stock dividend combination or reclassification of the
Shares or any other increase or decrease in the number of issued Shares effected
without receipt of additional consideration by the Company. Subject to Section
11 of the Plan, if any Shares that have been optioned under an Option cease to
be subject to such Option (other than through exercise of the Option), or if any
Option granted hereunder is forfeited prior to the issuance of Common Stock to
the participant, the shares that were subject to such Option shall again be
available for distribution in connection with future Option grants under the
Plan; provided, however, that Shares that have actually been issued under the
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Plan shall not in any event be returned to the Plan and shall not become
available for future distribution under the Plan.
5. Administration.
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(a) Composition of Administrator.
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(i) Multiple Administrative Bodies. If permitted by Rule
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16b-3 and Applicable Laws, the Plan may (but need not) be administered by
different administrative bodies with respect to (A) Directors who are employees,
(B) Officers who are not Directors and (C) Employees who are neither Directors
nor Officers.
(ii) Administration with respect to Directors and Officers.
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With respect to grants of Options to eligible participants who are Officers or
Directors of the Company, the Plan shall be administered by (A) the Board, if
the Board may administer the Plan in compliance with Rule 16b-3 as it applies to
a plan intended to qualify thereunder as a discretionary grant, or (B) a
Committee designated by the Board to administer the Plan, which Committee shall
be constituted (1) in such a manner as to permit the Plan to comply with Rule
16b-3 as it applies to a plan intended to qualify thereunder as a discretionary
grant or award plan and (2) in such a manner as to satisfy the Applicable Laws.
(iii) Administration with respect to Other Persons. With
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respect to grants of Options to eligible participants who are neither Directors
nor Officers of the Company, the Plan shall be administered by (A) the Board,
(B) a Committee designated by the Board, which Committee shall be constituted in
such a manner as to satisfy the Applicable Laws or (C) to the extent permitted
by Applicable Laws, one or more Officers or a Committee of Officers of the
Company designated by the Board, to which the Board may delegate the power to
grant Options and exercise such other powers under the Plan as the Board may
determine, provided that the Board shall fix the maximum number of shares
subject to Options that may be granted by such Officer(s) or committee of
Officers and the maximum number of shares for any one Optionee that may be
granted by such Officer(s) or committee of Officers.
(iv) General. Once a Committee or an Officer(s) has been
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appointed pursuant to subsection (ii) or (iii) of this Section 5(a), such
Committee or Officer(s) shall continue to serve in its or their designated
capacity until otherwise directed by the Board. From time to time the Board may
increase the size of any Committee or group or Committee of
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Officers to which the Board has delegated its authority, and appoint additional
members thereof, remove members (with or without cause) and appoint new members
in substitution therefor, fill vacancies (however caused) and remove all members
of a Committee or group or Committee of Officers to which the Board has
delegated its authority and thereafter directly administer the Plan, all to the
extent permitted by the Applicable Laws and, in the case of a Committee of the
Board appointed under subsection (ii), to the extent permitted by Rule 16b-3 as
it applies to a plan intended to qualify thereunder as a discretionary grant
plan.
(b) Powers of the Administrator. Subject to the provisions of the
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Plan, and in the case of a Committee or Officer(s), subject to the specific
duties delegated by the Board to such Committee or Officer(s), the Administrator
shall have the authority, in its discretion:
(i) to determine the Fair Market Value of the Common Stock, in
accordance with Section 2(n) of the Plan;
(ii) to select the Consultants and Employees to whom Options
may be granted hereunder;
(iii) to determine whether and to what extent Options or any
combination thereof, are granted hereunder;
(iv) to determine the number of shares of Common Stock to be
covered by each Option granted hereunder;
(v) to approve forms of agreement for use under the Plan
(which need not be identical);
(vi) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the time or
times when Options may Vest (which may be based on performance criteria), any
Vesting acceleration, or waiver of forfeiture restrictions, and any restriction
or limitation regarding any Option or the shares of Common Stock relating
thereto, based in each case on such factors as the Administrator, in its sole
discretion, shall determine;
(vii) to construe and interpret the terms of the Plan;
(viii) to prescribe, amend and rescind rules and regulations
relating to the Plan;
(ix) to determine whether and under what circumstances an
Option may be settled in cash instead of Common Stock or Common Stock instead of
cash;
(x) to reduce the exercise price of any Option;
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(xi) to modify or amend each Option (subject to Section 11 of
the Plan);
(xii) to authorize any person to execute on behalf of the
Company any instrument required to effect the grant of an Option previously
granted by the Administrator;
(xiii) to institute a program whereby outstanding options are
surrendered in exchange for options with a lower exercise price;
(xiv) to determine the terms and restrictions applicable to
Options; and
(xv) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) Effect of Administrator's Decision. The Administrator's
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decisions, determinations and interpretations shall be final and binding on all
Optionees and any other holders of Options.
6. Duration of the Plan. The Plan shall remain in effect until
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terminated by the Board under the terms of the Plan, provided that in no event
may Incentive Stock Options be granted under the Plan later than 10 years from
the date the Plan was adopted by the Board.
7. Options.
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(a) Options. The Administrator, in its discretion, may grant Options
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to eligible participants and shall determine whether such Options shall be
Incentive Stock Options or Nonstatutory Stock Options. Each Option shall be
evidenced by a Notice of Grant which shall expressly identify the Options as
Incentive Stock Options or as Nonstatutory Stock Options, and be in such form
and contain such provisions as the Administrator shall from time to time deem
appropriate. Without limiting the foregoing, the Administrator may at any time
authorize the Company, with the consent of the respective recipients, to issue
new Options in exchange for the surrender and cancellation of outstanding
Options. Option agreements shall contain the following terms and conditions:
(i) Exercise Price; Number of Shares. The per Share
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exercise price for the Shares issuable pursuant to an Option shall be such price
as is determined by the Administrator; provided, however, that in the case of an
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Incentive Stock Option, the price shall be no less than 100% of the Fair Market
Value of the Common Stock on the date the Option is granted, subject to any
additional conditions set out in Section 7(a)(iv) below.
The Notice of Grant shall specify the number of Shares to which
it pertains.
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(ii) Waiting Period and Exercise Dates. At the time an
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Option is granted, the Administrator will determine the terms and conditions to
be satisfied before Shares shall be Vested. The Administrator may specify that
an Option may not Vest until the completion of one or more service periods
specified at the time of grant or the occurrence of any other triggering event
that the Administrator, in its sole discretion, may impose at the time of grant.
(Any such period is referred to herein as the "waiting period.") At the time an
Option is granted, the Administrator shall fix the period within which the
Option shall be Vested, which shall not be earlier than the end of the waiting
period, if any, nor, in the case of an Incentive Stock Option, later than ten
(10) years from the date of grant.
(iii) Form of Payment. The consideration to be paid for the
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Shares to be issued upon exercise of an Option, including the method of payment,
shall be determined by the Administrator (and, in the case of an Incentive Stock
Option, shall be determined at the time of grant) and may consist entirely of:
(A) cash;
(B) check;
(C) other Shares which (1) in the case of Shares acquired
upon exercise of an option, have been owned by the Optionee for more than six
months on the date of surrender, and (2) have a Fair Market Value on the date of
surrender not greater than the aggregate exercise price of the Shares as to
which said Option shall be exercised;
(D) delivery of a properly executed exercise notice
together with such other documentation as the Administrator and the broker, if
applicable, shall require to effect an exercise of the Option and delivery to
the Company of the sale or loan proceeds required to pay the exercise price;
(E) any combination of the foregoing methods of payment;
or
(F) such other consideration and method of payment for
the issuance of Shares to the extent permitted by Applicable Laws.
(iv) Special Incentive Stock Option Provisions. In addition
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to the foregoing, Options granted under the Plan which are intended to be
Incentive Stock Options under Section 422 of the Code shall be subject to the
following terms and conditions:
(A) Dollar Limitation. To the extent that the aggregate
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Fair Market Value of (I) the Shares with respect to which Options designated as
Incentive Stock Options plus (II) the shares of stock of the Company, Parent and
any Subsidiary with respect to which other incentive stock options are
exercisable for the first time by an Optionee during any calendar year under all
plans of the Company and any Parent and Subsidiary exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options. For purposes of the
preceding
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sentence, (I) Options shall be taken into account in the order in which they
were granted, and (II) the Fair Market Value of the Shares shall be determined
as of the time the Option or other incentive stock option is granted.
(B) 10% Stockholder. If any Optionee to whom an
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Incentive Stock Option is to be granted pursuant to the provisions of the Plan
is, on the date of grant, the owner of Common Stock (as determined under Section
424(d) of the Code) possessing more than 10% of the total combined voting power
of all classes of stock of the Company or any Parent or Subsidiary of the
Company, then the following special provisions shall be applicable to the Option
granted to such individual:
(I) The per Share Option price of Shares subject
to such Incentive Stock Option shall not be less than 110% of the Fair Market
Value of Common Stock on the date of grant; and
(II) The Option shall not have a term in excess of
five (5) years from the date of grant.
Except as modified by the preceding provisions of this subsection 7(a)(iv) and
except as otherwise limited by Section 422 of the Code, all of the provisions of
the Plan shall be applicable to the Incentive Stock Options granted hereunder.
(v) Other Provisions. Each Option granted under the Plan may
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contain such other terms, provisions, and conditions not inconsistent with the
Plan as may be determined by the Administrator.
(vi) Buyout Provisions. The Administrator may at any time
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offer to purchase for a payment in cash, promissory note or Shares, an Option
previously granted, based on such terms and conditions as the Administrator
shall establish and communicate to the Optionee at the time that such offer is
made.
(b) Method of Exercise.
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(i) Procedure for Exercise; Rights as a Stockholder. Any
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Option granted hereunder shall be exercisable only if it is Vested and only at
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such times and under such conditions as determined by the Administrator and as
shall be permissible under the terms of the Plan and the Option Agreement.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the
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Administrator (and, in the case of an Incentive Stock Option, determined at the
time of grant) and permitted by the Option Agreement, consist of any
consideration and method of payment allowable under subsection 7(a)(iii) of the
Plan. Until the issuance (as evidenced by the appropriate entry on the books of
the Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or any
other rights as a stockholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. No adjustment will be made for a
dividend or other similar right for which the record date is after the date when
such written notice of exercise is delivered to the Company but prior to the
date the stock certificate is issued, except as provided in Section 11 of the
Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter shall be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(ii) Rule 16b-3. Options granted to individuals subject to
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Section 16 of the Exchange Act ("Insiders") must comply with the applicable
provisions of Rule 16b-3 and shall contain such additional conditions or
restrictions as may be required thereunder to qualify for the maximum exemption
from Section 16 of the Exchange Act with respect to Plan transactions.
(iii) Termination of Employment or Consulting Relationship.
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If an Optionee's Continuous Status as an Employee or Consultant terminates, then
except as provided in Section 7(b)(iv) or (v) below, the Optionee may exercise
his or her Option, but only within such period of time as is determined by the
Administrator at the time of grant, not to exceed the period set forth in the
applicable Option Agreement and only to the extent that the Option was Vested at
the date of such termination. In no event may an Optionee exercise an Option
later than the expiration of the term of such Option. To the extent that the
Option was not Vested at the date of such termination, and to the extent that
the Optionee does not exercise such Option (to the extent otherwise so entitled)
within the time specified herein, the Option shall terminate.
(iv) Disability of Optionee. If an Optionee's Continuous
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Status as an Employee or Consultant terminates as a result of the Optionee's
Disability, the Optionee may exercise his or her Option, but only within twelve
(12) months from the date of such termination, and only to the extent that the
Option was Vested at the date Optionee was first deemed disabled. In no event
may an Optionee exercise an Option later than the expiration of the term of such
Option. If such disability is not a "disability" as such term is defined in
Section 22(e)(3) of the Code, then, in the case of an Incentive Stock Option,
such Incentive Stock Option shall automatically cease to be treated as an
Incentive Stock Option and shall be treated as a Nonstatutory Stock Option on
the day three months and one day following such termination. To the extent that
the Option was not Vested at the date of such termination, and to the extent
that the Optionee does not exercise such Option (to the extent otherwise so
entitled) within the time specified herein, the Option shall terminate.
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(v) Death of Optionee. In the event of an Optionee's death,
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the Optionee's estate or a person who acquired the right to exercise the
deceased Optionee's Option by bequest or inheritance may exercise the Option,
but only within twelve (12) months following the date of death, and only to the
extent that the Option was Vested at the date of death. In no event may the
Optionee's estate or a person who acquired the right to exercise such Option
exercise an Option later than the expiration of the term of such Option. To the
extent that the Option was not Vested at the date of death, and to the extent
that the Optionee's estate or a person who acquired the right to exercise such
Option does not exercise such Option (to the extent otherwise so entitled)
within the time specified herein, the Option shall terminate.
8. Non-Transferability of Options. Options may not be sold, pledged,
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assigned, hypothecated, transferred or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
9. Adjustments Upon Changes in Capitalization, Dissolution, Merger, Asset
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Sale or Change of Control.
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(a) Changes in Capitalization. Subject to any required action by the
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stockholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock which have
been authorized for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per share of Common Stock covered
by each such outstanding Option, shall be proportionately and automatically
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
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convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
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dissolution or liquidation of the Company, to the extent that an Option has not
been previously exercised, it will terminate immediately prior to the
consummation of such proposed action. The Board may, in the exercise of its
sole discretion in such instances, declare that any Option shall terminate as of
a date fixed by the Board and give each Optionee the right to exercise his or
her Option as to all or any part of the Optioned Stock, including Shares as to
which the Option would not otherwise be exercisable because it is not yet Vested
or for any other reason.
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(c) Merger or Asset Sale. Subject to the following sentence, in the
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event of a merger of the Company with or into another corporation, the sale of
substantially all of the assets of the Company or a Change in Control, each
outstanding Option shall be assumed or an equivalent Option substituted by the
successor corporation or a Parent or Subsidiary of the successor corporation.
In the event that the successor corporation does not agree to assume the
Option or to substitute an equivalent option, then the Option shall be deemed
exercisable to the extent of the greater of (i) 40% of the number of shares
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subject to the Option or (ii) the number of shares then Vested immediately prior
to the occurrence of the Change of Control pursuant to the provisions of Section
A.1 of the Option Agreement between the Company and Optionee. Such Options
shall terminate to the extent such Options are not Vested and exercised
immediately prior to the occurrence of a Change in Control. For the purposes of
this paragraph, the Option shall be considered assumed if, immediately following
the merger, sale of assets or Change in Control, the Option confers the right to
purchase, for each Share of Optioned Stock subject to the Option immediately
prior to the merger or sale of assets, the consideration (whether stock, cash,
or other securities or property) received in the merger or sale of assets by
holders of Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the merger, sale of
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assets or Change in Control was not solely common stock of the successor
corporation or its Parent, the Administrator may, with the consent of the
successor corporation and the Optionee, provide for the consideration to be
received upon the exercise of the Option, for each Share of Optioned Stock
subject to the Option, to be solely common stock of the successor corporation or
its Parent equal in Fair Market Value to the per share consideration received by
holders of Common Stock in the merger, sale of assets or Change in Control.
(d) Definition of "Change in Control". For purposes of this Section
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9, a "Change in Control" means the happening of any of the following:
(i) When any "person," as such term is used in Sections 13(d)
and 14(d) of the Exchange Act (other than the Company, a Subsidiary or a Company
employee benefit plan, including any trustee of such plan acting as trustee),
other than Michael J. Saylor or Alcantara LLC (the "Exempt Persons"), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing more
than fifty percent (50%) of the combined voting power of the Company's then
outstanding securities entitled to vote generally in the election of directors;
or
(ii) A merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least fifty percent (50%) of
the total voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or the stockholders of the Company approve an agreement for the
sale or disposition by the Company of all or substantially all the Company's
assets; or
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(iii) A change in the composition of the Board of Directors of
the Company occurring within any two-year period without the consent of a
majority of the Incumbent Directors or the consent of at least one of the Exempt
Persons, as a result of which fewer than a majority of the directors are
Incumbent Directors. "Incumbent Directors" shall mean directors who either (A)
are directors of the Company as of the date the Plan is approved by the
stockholders, (B) are elected, or nominated for election, to the Board of
Directors of the Company with the affirmative votes of at least a majority of
the Incumbent Directors at the time of such election or nomination (but shall
not include an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of directors to the
Company), or (C) are elected, or nominated for election, to the Board of
Directors of the Company with the affirmative votes of at least a majority of
the votes entitled to be cast by the Exempt Persons.
(e) Change in Control Price. For purposes of this Section 9, "Change
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in Control Price" shall be, as determined by the Board, (i) the highest Fair
Market Value of a Share within the 60-day period immediately preceding the date
of determination of the Change in Control Price by the Board (the "60-Day
Period"), or (ii) the highest price paid or offered per Share, as determined by
the Board, in any bona fide transaction or bona fide offer related to the Change
in Control of the Company, at any time within the 60-Day Period, or (iii) such
lower price as the Board, in its discretion, determines to be a reasonable
estimate of the fair market value of a Share.
10. Date of Grant. The date of grant of an Option shall be, for all
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purposes, the date on which the Administrator makes the determination granting
such Option, or such other later date as is determined by the Administrator.
Notice of the determination shall be provided to each Optionee within a
reasonable time after the date of such grant.
11. Amendment and Termination of the Plan.
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(a) Amendment and Termination. The Board may at any time amend,
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alter, suspend or terminate the Plan.
(b) Stockholder Approval. The Company shall obtain stockholder
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approval of any Plan amendment to the extent necessary and desirable to comply
with Rule 16b-3 or with Section 422 of the Code (or any successor rule or
statute or other applicable law, rule or regulation, including the requirements
of any exchange or quotation system on which the Common Stock is listed or
quoted). Such stockholder approval, if required, shall be obtained in such a
manner and to such a degree as is required by any applicable law, rule or
regulation.
(c) Effect of Amendment or Termination. No amendment, alteration,
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suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the Company.
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12. Conditions Upon Issuance of Shares.
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(a) Legal Compliance. Shares shall not be issued pursuant to the
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exercise of an Option unless the exercise of such Option and the issuance and
delivery of such Shares shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended, the
Exchange Act, the rules and regulations promulgated thereunder, Applicable Laws,
and the requirements of any stock exchange or quotation system upon which the
Shares may then be listed or quoted, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an
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Option, the Company may require the person exercising such Option to represent
and warrant at the time of any such exercise that the Shares are being purchased
only for investment and without any present intention to sell or distribute such
Shares if, in the opinion of counsel for the Company, such a representation is
required.
13. Liability of Company.
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(a) Inability to Obtain Authority. The inability of the Company to
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obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
(b) Grants Exceeding Allotted Shares. If the Optioned Stock covered
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by an Option exceeds, as of the date of grant, the number of Shares which may be
issued under the Plan without additional stockholder approval, such Option shall
be void with respect to such excess Optioned Stock, unless stockholder approval
of an amendment sufficiently increasing the number of Shares subject to the Plan
is timely obtained in accordance with Section 11(b) of the Plan.
14. Reservation of Shares. The Company, during the term of this Plan,
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will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
15. Stockholder Approval. Continuance of the Plan shall be subject to
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approval by the stockholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Such stockholder approval shall be obtained
in the manner and to the degree required under applicable federal and state law.
Amended and Restated 1996 Stock Plan
approved by the Board on October 23, 1998
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