Exhibit 10.3
1999 STOCK OPTION PLAN
OF
MULTILINK TECHNOLOGY CORPORATION
Section 1.01. Purpose. The purpose of this 1999 Stock Option Plan of
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Multilink Technology Corporation (the "Plan") is to promote the growth and
general prosperity of Multilink Technology Corporation, a California corporation
(the "Company"), by permitting the Company to grant options to purchase shares
of the Company's Class A Common Stock ("Shares"). The Plan is designed to help
attract and retain superior personnel for positions of substantial
responsibility with the Company and to provide directors, officers, employees
and consultants with an additional incentive to contribute to the success of the
Company. Options granted pursuant to the provisions of the Plan may be either
"incentive stock options," within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), or non-statutory stock options,
as determined by the Plan Administrator and set forth in the stock option
agreements. Options granted under this Plan must be labeled either as an
"Incentive Stock Option" or a "Non-Statutory Stock Option." As used in the Plan,
the terms "parent corporation" and "subsidiary corporation" shall have the
meanings set forth in subsections (e) and (f), respectively, of Section 424 of
the Code.
Section 2.01. Administration. The Plan will be administered by the Board of
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Directors of the Company (the "Board of Directors") or, if the Board of
Directors so determines, by a committee appointed by the Board of Directors from
among its members (such committee administering the Plan being hereinafter
referred to as the "Committee"; and the Board of Directors or the Committee
administering the Plan, as the case may be, being hereinafter referred to as the
"Plan Administrator"). If the Board of Directors designates a Committee to
administer the Plan, the Committee (which may include members of the
compensation committee of the Board of Directors, if any) shall be comprised
solely of not less than two members who shall be (i) "disinterested persons"
within the meaning of Rule 16b-3 (or any successor rule) promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and (ii)
unless otherwise determined by the Board of Directors, "outside directors"
within the meaning of Section 162(m) of the Code.
Section 2.02. Authority of Plan Administrator. The Plan Administrator is
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authorized, subject to the provisions of the Plan, to establish such rules and
regulations as it deems necessary for the proper administration of the Plan and
to make such determinations and interpretations and to take such action in
connection with the Plan and any options granted hereunder as it deems necessary
or advisable. All determinations and interpretations made by the Plan
Administrator shall be binding and conclusive on all participants and their
legal representatives. No member of the Board of the Directors, no member of the
Committee and no employee of the Company shall be liable for any act or failure
to act hereunder, except in circumstances involving his or her bad faith, gross
negligence or willful misconduct, or for any act or failure to act hereunder by
any other member or employee or by any agent to whom duties in connection with
the administration of this Plan have been delegated. In addition to any other
rights of indemnification as they may have as members of the Board of Directors
or officers or employees of the Company, the
Company shall indemnify members of the Plan Administrator and any agent of the
Plan Administrator who is an employee of the Company, against any and all
liabilities or expenses, including reasonable attorneys' fees, to which they may
be subjected by reason of any act or failure to act with respect to their duties
on behalf of the Plan, or any right granted hereunder, except in circumstances
involving such person's bad faith, gross negligence or willful misconduct.
The Plan Administrator may delegate to one or more of its members, or to
one or more agents, such administrative duties as it may deem advisable, and the
Plan Administrator, or any person to whom it has delegated duties as aforesaid,
may employ one or more persons to render advice with respect to any
responsibility the Plan Administrator or such person may have under the Plan.
The Plan Administrator may employ such legal or other counsel, consultants and
agents as it may deem desirable for the administration of the Plan and may rely
upon any opinion or computation received from any such counsel, consultant or
agent. Expenses incurred by the Plan Administrator in the engagement of such
counsel, consultant or agent shall be paid by the Company, or the subsidiary
whose employees have benefited from the Plan as determined by the Plan
Administrator.
Section 2.03. Terms, Conditions and Method of Grant. The terms and
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conditions of options granted under the Plan may differ from one another as the
Plan Administrator, in its absolute discretion, shall determine as long as all
options granted under the Plan satisfy the requirements of the Plan. Whenever
the Plan Administrator shall designate an employee or other individual to
receive an option (the "optionee"), any officer of the Company designated by the
Plan Administrator shall forthwith send notice thereof to the optionee, stating
the number of Shares covered by the option and the price per Share. The date of
notice shall be the date of granting the option to the optionee for all purposes
of the Plan. The notice shall be accompanied by an option agreement (with a copy
of the Plan attached) to be signed by the Company and by the optionee, which
option agreement shall be in the form and shall contain such provisions
consistent with the Plan as the Plan Administrator, acting with the benefit of
legal counsel, shall consider advisable.
Section 3.01. Maximum Number of Shares Subject to the Plan. Subject to
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the provisions of Section 13.01(a), the maximum aggregate number of authorized
and unissued Shares that may be optioned and sold under the Plan is Eighteen
Million (18,000,000) Shares. If any of the options granted under the Plan expire
or terminate for any reason before they have been exercised in full, the
unpurchased Shares subject to those expired or terminated options shall again be
available for the purposes of the Plan. Notwithstanding the foregoing, at any
such time as the offer and sale of Shares pursuant to the Plan is subject to
compliance with Section 260.140.45 of Title 10 of the California Code of
Regulations, the total number of Shares issuable upon the exercise of all
outstanding options (together with options outstanding under any other stock
option plan of the Company) and the total number of shares provided for under
any stock bonus or similar plan of the Company shall not exceed thirty percent
(30%) of the then outstanding shares of the Company as calculated in accordance
with the conditions and exclusions of Section 260.140.45, unless a higher
percentage than thirty percent (30%) is approved by at least two-thirds of the
outstanding shares entitled to vote.
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Section 4.01. Eligibility and Participation. Only full-time employees of
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the Company or of any subsidiary corporation or any parent corporation shall be
eligible for selection by the Plan Administrator to receive incentive stock
options and directors, consultants and full-time employees of the Company or of
any subsidiary corporation or any parent corporation shall be eligible to
receive non-statutory stock options.
Section 5.01. Effective Date and Term of Plan. The Plan shall become
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effective upon its adoption by the Board of Directors of the Company subject to
the receipt of the approval of the Plan required by Section 16.01. The Plan
shall remain in effect for a term of 10 years, unless sooner terminated under
Section 14.01.
Section 5.02. Duration of Options. Each option and all rights thereunder
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granted pursuant to the terms of the Plan shall expire on the date determined by
the Plan Administrator, but in no event shall any option granted under the Plan
expire later than the (10) years from the date on which the option is granted.
In addition, each option shall be subject to early termination as provided in
the Plan.
Section 5.03. Purchase Price. The purchase price for Shares acquired
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pursuant to the exercise (in whole or in part) of any incentive stock option
granted under this Plan shall be not less than 100% of the fair market value of
the Shares at the time of the grant. Fair market value shall be determined by
the Plan Administrator on the basis of those factors they deem in good faith to
be appropriate; provided, however, that if at the time the determination is made
the Shares are admitted to trading on a national securities exchange, the fair
market value of the Shares shall be not less than the higher of (a) the mean
between the high bid and asked prices reported for the Shares on that exchange
on the date or most recent trading day preceding the date on which the option is
granted, or (b) the last reported sale price reported for the Shares on that
exchange on the date or most recent trading day preceding the date on which the
option is granted. The phrase "national securities exchange" shall include the
National Association of Securities Dealers Automated Quotation System and the
over-the-counter market, or such other national or regional securities exchange
or market system constituting the primary market for the Shares.
Section 5.04. Term and Purchase Price of Incentive Stock Option Granted to
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More Than 10% Shareholder. Notwithstanding anything to the contrary in Sections
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5.02 and 5.03, (a) if an incentive stock option is to be granted to an employee
of the Company or any subsidiary corporation or parent corporation who at the
time the option is granted owns (or under Section 424(d) of the Code is deemed
to own) more than 10% of the total combined voting power of all classes of stock
of the Company or of any parent corporation or subsidiary corporation, that
option by its terms shall not be exercisable after the expiration of five (5)
years after the date that option is granted, and the purchase price of the
Shares acquired pursuant to the exercise (in whole or in part) of that option
shall be at least 110% of the fair market value (as determined under Section
5.03 by the Plan Administrator) of the Shares subject to the option at the time
the option is granted, and (b) if a non-statutory stock option is to be granted
to an employee, director or consultant of the Company or any subsidiary
corporation or parent corporation who at the time the option is granted owns
more than 10% of the total combined voting power of all classes of stock of the
Company or of any parent corporation or subsidiary corporation, the purchase
price of the Shares acquired pursuant to the exercise (in whole or in part) of
that option shall be
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at least 110% of the fair market value (as determined under Section 5.03 by the
Plan Administrator) of the Shares subject to the option at the time the option
is granted.
Section 5.05. Maximum Amount of Options. The maximum aggregate fair market
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value (determined as of the time the option is granted) of the Shares with
respect to which incentive stock options are exercisable for the first time by
any optionee in any calendar year under all stock option plans of the Company,
or of any parent corporation or subsidiary corporation of the Company, shall not
exceed $100,000. To the extent that the aggregate fair market value (determined
as of the time the option is granted) of the Shares with respect to which
incentive stock options are exercisable for the first time by any optionee in
any calendar year under all stock option plans of the Company or any parent
corporation or subsidiary corporation of the Company exceeds $100,000, such
options shall be treated as non-statutory options.
Section 6.01. Exercise of Options. Subject to Section 6.03, each option
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shall be exercisable in one or more installments prior to its expiration or
termination at such times as determined by the Plan Administrator at the time of
grant; provided, however, that no option may be exercisable by a non-employee
director until six (6) months after the date of the grant and, with the
exception of an option granted to an officer, director or consultant, no option
shall become exercisable at a rate of less than twenty percent (20%) per year
over a period of five (5) years from the effective date of grant of such option,
subject to the optionee's continued employment by the Company. The right to
exercise may be cumulative as determined by the Plan Administrator. No option
may be exercised for a fraction of a Share or other than on a business day of
the Company. The full purchase price of any Shares purchased shall be paid at
the time of the exercise of the option in cash or by certified or cashier's
check payable to the order of the Company. The purchase price may also be paid,
at the sole discretion of the Company and as permitted by applicable law, (i) by
delivering Shares already owned by the optionee having a fair market value (as
determined by the Plan Administrator) equal to an amount not less than the
aggregate purchase price of the Shares being purchased, (ii) by the optionee's
promissory note in a form approved by the Company, (iii) by the assignment of
the proceeds of a sale or a loan with respect to some or all of the Shares being
acquired upon the exercise of the option, and (iv) any combination of the
foregoing as determined by the Plan Administrator with respect to the Option
Shares to be purchased.
Unless otherwise provided by the Plan Administrator, an option may not be
exercised by delivery to the Company of the Company's Shares owned by the
optionee unless such Shares either have been owned by the optionee for more than
six (6) months or were not acquired, directly or indirectly, from the Company.
Any permitted promissory note shall be on such terms as the Plan
Administrator shall determine at the time the option is granted. The Plan
Administrator shall have the authority to permit or require the optionee to
secure any promissory note used to exercise an option with the Shares acquired
upon the exercise of the option or with other collateral acceptable to the
Company and the amount of the promissory note shall not exceed the exercise
price of the Shares with respect to which the option is being exercised plus
applicable local, state, federal and foreign taxes attributable to such
exercise. Unless otherwise provided by the Board, if the Company at any time is
subject to the regulations promulgated by the Board of Governors of the Federal
Reserve System or any other governmental entity affecting the extension of
credit in
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connection with the Company's securities, any promissory note shall comply with
such applicable regulations, and the optionee shall pay the unpaid principal and
accrued interest, if any, to the extent necessary to comply with such applicable
regulations.
Section 6.02. Written Notice Required. Any option granted pursuant to the
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terms of the Plan shall be considered exercised when written notice of that
exercise, together with the investment representation described in Section 7.01,
has been given to the Company at its principal executive office 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.
Section 6.03. Vesting of Non-Statutory Stock Options. Non-statutory stock
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options granted to non-employee directors of the Company or any subsidiary
corporation or parent corporation will become exercisable as follows: 100% three
(3) months after the date of the grant.
Section 7.01. Compliance With State and Federal Laws; Delivery of Shares.
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No Shares shall be issued with respect to any option granted under the Plan
unless the exercise of that option and the issuance and delivery of the Shares
pursuant to that exercise shall comply with all relevant provisions of state and
federal laws, rules, and regulations, and the requirements of any stock exchange
upon which the Shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to that compliance. If any law,
or any regulation of the Securities and Exchange Commission, or of any other
body having jurisdiction, shall require the Company or the optionee to take any
action in connection with the Shares specified in the optionee's notice, then
the date for the delivery of the Shares shall be postponed until the completion
of the necessary action. The Plan Administrator shall require (to the extent
required by or advisable under applicable laws, rules, and regulations) an
optionee to furnish evidence satisfactory to the Company (including a written
and signed representation letter and a consent to be bound by any transfer
restrictions imposed by laws, legend condition, or otherwise) upon exercise of
the option that the Shares to be acquired are being purchased only for
investment and without any present intention to sell or distribute the Shares in
violation of any law, rule, or regulation. Further, each optionee shall consent
to the imposition of a legend on the stock certificate evidencing the Shares
subject to his or her option restricting their transferability as required by or
advisable under applicable laws, rules and regulations.
Section 7.02 Transfer Restrictions. Shares issued under the Plan may be
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subject to a right of first refusal or other conditions and restrictions as
determined by the Plan Administrator in its sole discretion at the time the
option is granted. Upon request by the Company, each optionee shall execute any
agreement evidencing such transfer restrictions prior to the receipt of Shares
hereunder and shall promptly present to the Company any and all certificates
representing Shares acquired hereunder for the placement on such certificates of
appropriate legends evidencing such transfer restrictions.
Section 8.01. Employment of Optionee. Nothing in the Plan or in any option
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granted hereunder shall confer upon any optionee (i) any right to continued
employment by the Company or any parent corporation or subsidiary corporation,
or limit in any way the right of the employer at any time to terminate or alter
the terms of that employment or (ii) any right to sue the Company, or any parent
corporation or subsidiary corporation for any adverse tax consequences
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in connection with the grant or exercise of any option or the disposition of any
Shares acquired pursuant to this Plan.
Section 9.01. Option Rights Upon Termination of Employment. If an optionee
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ceases to be an employee or a director of the Company or any subsidiary
corporation or parent corporation for any reason other than death or permanent
and total disability (within the meaning of Section 22(e)(3) of the Code), the
optionee's option shall immediately terminate; provided, however, that the Plan
Administrator, in its absolute discretion, may provide at the time of the grant
of an option that the option may be exercised (to the extent it remains
unexercised on the date of termination) at any time within a period of up to
three months following the date of termination, unless either the option or the
Plan otherwise provides for earlier termination but only to the extent that the
optionee is entitled to exercise the option at the date of such termination. The
transfer of an employee from the employ of the Company to any subsidiary
corporation or parent corporation, or vice versa, or from any subsidiary
corporation or parent corporation, to any other subsidiary corporation or parent
corporation shall not be deemed to constitute a cessation of employment for
purposes of this Plan.
Section 10.01. Option Rights Upon Death or Disability. Except as otherwise
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limited by the Plan Administrator at the time of the grant of an option, if an
optionee dies or becomes permanently and totally disabled within the meaning of
Section 22(e)(3) of the Code while an employee or a director of the Company or
any subsidiary corporation or parent corporation, or dies within three months
after ceasing to be an employee or director thereof (provided that the optionee
was entitled to exercise the option at the time of ceasing to be an employee or
director), the optionee's option shall expire one year after the date of death
or the date of permanent and total disability, unless either the option or the
Plan otherwise provides for earlier termination. During this one year (or
shorter) period, the option may be exercised, to the extent that it remains
unexercised on the date of death or on the date of permanent and total
disability, by the optionee, if living, or by the person or persons to whom the
optionee's rights under the option shall pass by will or by the laws of descent
and distribution, but only to the extent that the optionee is entitled to
exercise the option at the date of death or date of permanent and total
disability, as the case may be.
Section 11.01. No Privileges of Ownership. Notwithstanding the exercise of
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any option granted pursuant to the Plan, no optionee shall have any of the
rights or privileges of a shareholder of the Company in respect of any Shares
issuable upon the exercise of the option until the optionee becomes a
shareholder of record.
Section 12.01. Options Not Transferable. Options granted pursuant to the
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terms of the Plan, may not be sold, pledged, assigned, or transferred in any
manner, other than by will or the laws of descent and distribution, and may be
exercised during the lifetime of an optionee only by that optionee.
Section 13.01. Adjustment to Number and Purchase Price; Acceleration of
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Right to Exercise Option; Cancellation of Option. All options granted pursuant
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to the Plan shall be adjusted, modified, or canceled in the manner prescribed by
this section.
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(a) If the outstanding Shares of the Company are increased, decreased,
changed into, or exchanged for a different number or kind or Shares or
securities through merger, consolidation, combination, exchange of Shares, or
other reorganization, recapitalization, reclassification, stock dividend, stock
split, or reverse stock split, an appropriate and proportionate adjustment shall
be made in the maximum number and kind of Shares as to which options may be
granted under the Plan. A corresponding adjustment changing the number or kind
of Shares allocated to unexercised options or portions thereof that were granted
prior to any such change shall likewise be made. Any adjustments made pursuant
to this Section 13.01 in outstanding options shall be made without change in the
aggregate purchase price applicable to the unexercised portion of the option,
but with a corresponding adjustment in the price for each Share or other unit of
any security covered by the option. With respect to incentive stock options, the
adjustments described in this section 13.01(a) shall be made in accordance with
Section 424 of the Code. The adjustments determined by the Plan Administrator
pursuant to this Section 13.01(a) shall be final, binding and conclusive.
(b) Notwithstanding any other provision of this Plan, upon a Change of
Control of the Company, the Plan and any option theretofore granted hereunder
shall terminate. For purposes of the Plan, a "Change of Control" shall be deemed
to have occurred upon any of the following events:
(i) following the date hereof, a person or entity or group of
persons or entities, acting in concert, shall become the direct or indirect
beneficial owner (within the meaning of Rule 13d-3 of the Exchange Act) of
securities of the Company representing fifty percent (50%) or more of the
combined voting power of the issued and outstanding capital stock of the
Company (a "Significant Owner"), unless such shares are originally issued to
such Significant Owner by the Company;
(ii) the majority of the Company's Board of Directors is no longer
comprised of (A) the incumbent directors who constitute the Board of Directors
on the date hereof and (B) any other individual(s) who becomes a director
subsequent to the date hereof whose initial election or nomination for election
as a director, as the case may be, was approved by at least a majority of the
directors who comprised the incumbent directors as of the date of such election
or nomination;
(iii) the dissolution or liquidation of the Company;
(iv) the transfer of substantially all of the assets of the Company
to another entity;
(v) the approval by the shareholders of the Company of any
reorganization, merger, or consolidation of the Company with one or more other
entities in which the Company is not the surviving corporation, or which would
result in the occurrence of any event described above in this Section 13.01(b).
In the event of the occurrence of any of the events described in clauses
(i) through (v) above, each optionee (or that person's estate or a person who
acquired the right to exercise the option from the optionee by bequest or
inheritance) shall be entitled, prior to the effective date of
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the consummation of any such transaction, to purchase, in whole or in part, the
full number of Shares under the option or options granted to the optionee that
the optionee would otherwise have been entitled to purchase during the remaining
term of the option and without regard to any otherwise applicable restrictions
set forth in the option delaying the immediate exercise of the option. To the
extent that any such exercise relates to stock that is not otherwise available
for purchase through the exercise of the option by the optionee at that time,
the exercise pursuant to this Section 13.01(b) shall be contingent upon the
consummation of the Change of Control.
(c) Notwithstanding the foregoing, in the event of a complete liquidation
of a subsidiary corporation or parent corporation, or in the event that such
corporation ceases to be a subsidiary corporation or parent corporation, any
unexercised options theretofore granted to an employee of such subsidiary
corporation or parent corporation, respectively, shall be deemed canceled unless
the employee shall become employed by the Company or by any other subsidiary
corporation or parent corporation, respectively, on the occurrence of any such
event
Section 14.01. Termination and Amendment of Plan. The Plan shall terminate
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ten (10) years from the effective date of the Plan (as determined under Section
5.01), and no options shall be granted under the Plan after that date; provided,
however, that termination of the Plan shall not terminate any option granted
prior thereto, and options granted prior to termination of the Plan and existing
at the time of termination of the Plan shall continue to be subject to all the
terms and conditions of the Plan as if the Plan had not terminated. Subject to
the limitation contained in Section 14.02, the Plan Administrator may at any
time amend or revise the terms of the Plan (including the form and substance of
the option agreements to be used hereunder), provided that no amendment or
revision shall (a) increase the maximum aggregate number of Shares provided for
in Section 3.01 that may be sold pursuant to options granted under the Plan
except as required under the provisions of Section 13.01(a), (b) permit the
granting of an option to anyone other than as provided in Section 4.01, (c)
increase the maximum term provided for in Sections 5.02 and 5.04 of any option,
or (d) change the minimum purchase price for the Shares under Sections 5.03 and
5.04, unless approved by the written consent of the shareholders, or by the
affirmative vote, in person or by proxy, of a majority of the outstanding voting
stock of the Company at a duly held shareholders' meeting.
Section 14.02. Prior Rights and Obligations. No amendment, suspension, or
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termination of the Plan shall, without the consent of the optionee, alter or
impair any of that optionee's right or obligations under any option granted
under the Plan prior to that amendment, suspension, or termination.
Section 15.01. Approval of Shareholders. Within 12 months after its
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adoption by the Board of Directors of the Company, the Plan must be approved by
the unanimous written consent of the shareholders, or by the affirmative vote,
in person or by proxy, of a majority of the outstanding voting stock of the
Company at a duly held shareholders' meeting. Options may be granted under the
Plan prior to obtaining shareholder approval, but those options shall be
contingent upon shareholder approval being obtained and may not be exercised
prior to the receipt of shareholder approval.
Section 16.01. Reservation of Shares. During the term of the Plan, the
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Company will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the
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requirements of the Plan. In addition, the Company will from time to time, as is
necessary to accomplish the purposes of the Plan, seek to obtain from any
regulatory agency having jurisdiction any requisite authority in order to grant
options under the Plan and to issue and sell Shares hereunder.
Section 17.01. Tax Withholding. The Company may make such provisions as it
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may deem appropriate for the withholding of any state or federal taxes which the
Company determines is advisable to withhold in connection with any option or any
other right, payment or settlement made under this Plan. The exercise of the
option shall not be effective unless such withholding shall have been effected
or obtained in a manner acceptable to the Company, including, but not limited
to, requiring the optionee to remit to the Company an amount sufficient to
satisfy any federal, state and/or local tax withholding requirements.
Section 18.01. Provision of Information. At least annually, copies of the
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Company's financial statements for the just completed fiscal year shall be made
available to each optionee and purchaser of Shares upon the exercise of an
option. The Company shall not be required to provide such information to persons
whose duties in connection with the Company assure them access to equivalent
information.
Section 19.01. Sections-Headings. The headings of the sections of the Plan
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are for convenience only and shall not be considered or referred to in resolving
questions of interpretation. References to "Section" that are not followed by a
section number and the phrase "of the Code" are references to sections of the
Plan.
Section 19.02. Governing Law. The Plan shall be governed by and construed
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and interpreted in accordance with the internal laws of the State of California,
except to the extent preempted by federal law, which shall govern to such
extent.
Section 19.03. Invalid Provision. In the event that any provision of this
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Plan is found to be invalid or otherwise unenforceable under any applicable law,
such invalidity or unenforceability shall not be construed as rendering any
other provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid or unenforceable provision was not contained herein.
Section 19.04. Adoption. The Plan was adopted by a resolution duly adopted
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by the Board of Directors of the Company on June 2, 1999. I hereby certify that
the foregoing Plan was duly adopted by the Board of Directors of MULTILINK
TECHNOLOGY CORPORATION on June 2, 1999.
Executed this 2nd day of June, 1999.
/s/ Richard N. Nottenburg
___________________________
Richard N. Nottenburg,
Secretary
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AMENDMENT TO 1999 STOCK OPTION PLAN
Section 13.01(b) of the 1999 Plan is hereby deleted in its entirety and
replaced with the following:
(b) For purposes of the Plan, a "Change of Control" shall be deemed to
have occurred upon any of the following events:
(i) following the date hereof, a person or entity or group of
persons or entities, acting in concert, shall become the direct or indirect
beneficial owner (within the meaning of Rule 13d-3 of the Exchange Act) of
securities of the Company representing fifty percent (50%) or more of the
combined voting power of the issued and outstanding capital stock of the Company
(a "Significant Owner"), unless such shares are originally issued to such
Significant Owner by the Company;
(ii) the majority of the Company's Board of Directors is no longer
comprised of (A) the incumbent directors who constitute the Board of Directors
on the date hereof and (B) any other individual(s) who becomes a director
subsequent to the date hereof whose initial election or nomination for election
as a director, as the case may be, was approved by at least a majority of the
directors who comprised the incumbent directors as of the date of such election
or nomination;
(iii) the dissolution or liquidation of the Company;
(iv) the transfer of all or substantially all of the assets of the
Company to another entity;
(v) the approval by the shareholders of the Company of any
reorganization, merger, or consolidation of the Company with or into one or more
other entities in which the Company is not the surviving corporation, or which
would result in the occurrence of any event described above in this Section
13.01(b).
Upon any Change of Control, the Plan and any option theretofore granted
hereunder shall terminate. Upon such Change of Control, each optionee (or that
person's estate or a person who acquired the right to exercise the option from
the optionee by bequest or inheritance) shall be entitled, prior to the
effective date of the consummation of the Change of Control (or in the case of
subsection (v) above, the consummation of the transaction underlying the Change
of Control), to purchase, in whole or in part, the full number of Shares under
the option or options granted to the optionee that the optionee would otherwise
have been entitled to purchase during the remaining term of the option and
without regard to any otherwise applicable restrictions set forth in the option
delaying the immediate exercise of the option. To the extent that any such
exercise relates to stock that is not otherwise available for purchase through
the exercise of the option by the optionee at that time, the exercise pursuant
to this Section 13.01(b) shall be contingent upon the consummation of the Change
of Control. Notwithstanding the foregoing, the Plan and any option theretofore
granted hereunder shall not immediately terminate upon a Change in Control under
subsections (iv) or (v) above in which the acquiring entity agrees to either (A)
assume, and does assume upon the consummation of the transaction underlying the
Change of Control, each
option theretofore granted hereunder which has not otherwise expired by its
terms or been terminated (the "Assumed Options"), or (B) tender, and does tender
upon the consummation of the transaction underlying the Change of Control, an
economically equivalent substitute option, award or arrangement for each option
theretofore granted hereunder which has not otherwise expired by its terms or
been terminated (together with the Assumed Options, the "Acquiror Options") (an
"Assumed Change of Control"). In the event of an Assumed Change of Control, each
optionee (or that person's estate or a person who acquired the right to exercise
the Acquiror Options from the optionee by bequest or inheritance) shall be
entitled after the earlier of (A) the date that is six (6) months following the
date of such Assumed Change of Control, or (B) the date the optionee's
employment is terminated without cause after or as a result of a Change of
Control under subsections (iv) or (v) above, to purchase, in whole or in part,
the full number of shares of capital stock under the Acquiror Options that the
optionee would otherwise have been entitled to purchase during the remaining
term of such Acquiror Options, and without regard to any otherwise applicable
restrictions set forth in the Acquiror Options delaying the immediate exercise
of the Acquiror Options.
-2-
AMENDMENT NO. 2 TO THE 1999 STOCK OPTION PLAN
---------------------------------------------
Section 12.01 of the 1999 Plan is hereby deleted in its entirety and
replaced with the following:
"Limited Transferability of Options. During the lifetime of an
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optionee, incentive stock options shall be exercisable only by the
optionee and shall not be assignable or transferable other than by
will or by the laws of descent and distribution following the
optionee's death. Non-statutory stock options shall be subject to the
same restrictions, except that a non-statutory stock option may, to
the extent permitted by the Plan Administrator, be assigned in whole
or in part during an optionee's lifetime to one or more members of the
optionee's immediate family or to a trust established exclusively for
one or more such family members. The terms applicable to the assigned
portion shall be the same as those in effect for the option
immediately prior to such assignment and shall be set forth in such
documents issued to the assignee as the Plan Administrator may deem
appropriate."
AMENDMENT NO. 3 TO 1999 STOCK OPTION PLAN
-----------------------------------------
The first sentence of Section 3.01 of the 1999 Plan is hereby deleted in
its entirety and replaced with the following:
"Subject to the provisions of Section 13.01(a), the maximum
aggregate number of authorized and unissued Shares that may be
optioned and sold under the Plan is Eighteen Million
(18,000,000) Shares."