EXHIBIT 10.2
1998 STOCK OPTION PLAN
OF
MULTILINK TECHNOLOGY CORPORATION
Section 1.01. Purpose. The purpose of this 1998 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 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 and key employees 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
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of 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. 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 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, 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, the price per Share and the class of
common stock underlying the option. 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 the
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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 Six Thousand
(6,000) 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.
Section 4.01. Eligibility and Participation. Only full-time, key employees
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of 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 full-time, key employees and directors of the Company or of any
subsidiary corporation or any parent corporation shall be eligible to receive
non-statutory stock options. For purposes of this Plan, the phrase "key
employees" shall include officers, department heads, division managers, other
employees having supervisory responsibilities, and those other employees as the
Plan Administrator may specifically designate from time to time.
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
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Plan required by Section 15.01. 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. However, any non-statutory stock option granted to a non-employee
director of the Company or any subsidiary corporation or parent corporation
shall expire five (5) years after the date of grant of such option.
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.
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, 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.
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.
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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. 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 (i) in
cash or by certified or cashier's check payable to the order of the Company, or
by a combination of cash or certified or cashier's check, at the time of
exercise of the option, or (ii) at the discretion of the Plan Administrator and
as permitted by law, by delivering the Company's Shares already owned by the
optionee or a combination of Shares and cash or certified or cashiers checks.
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 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.
(b) Upon the effective date of the dissolution or liquidation of the
Company, or of a reorganization, merger, or consolidation of the Company with
one or more other corporations in which the Company is not the surviving
corporation, or of the transfer of substantially all of the assets or Shares of
the Company to another corporation, the Plan and any option theretofore granted
hereunder shall terminate. In the event of such dissolution, liquidation,
reorganization, merger, consolidation, transfer of assets, or transfer of stock,
at the discretion of the Plan Administrator, 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 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 that dissolution, liquidation,
reorganization, merger, consolidation, sale, or transfer of assets or stock.
(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
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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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or 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 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 it may
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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. 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 19.01. 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 20.01. 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
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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 21.01. Adoption. The Plan was adopted by a resolution duly adopted
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by the Board of Directors of the Company on June 5, 1998.
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AMENDMENT TO THE 1998 STOCK OPTION PLAN
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1. The first sentence of Section 1.01 of the Plan is hereby deleted in
its entirety and replaced with the following:
"The purpose of this 1998 Stock Option Plan of 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')."
2. The second sentence of Section 2.03 of the Plan is hereby deleted in
its entirety and replaced with the following:
"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."
3. The first sentence of Section 3.01 of the 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 Two Million Four Hundred
Thousand (2,400,000) Shares."
4. The second sentence of Section 13.01(b) of the Plan is hereby deleted
in its entirety and replaced with the following:
"In the event of such dissolution, liquidation, reorganization,
merger, consolidation, transfer of assets, or transfer of stock,
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 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."
AMENDMENT NO. 2 TO THE 1998 STOCK OPTION PLAN
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Section 12.01 of the 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."