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EXHIBIT 4.3
INTELLIGENT INFORMATION INCORPORATED
1995 STOCK INCENTIVE PLAN
As Established Effective as of January 20, 1995
ARTICLE I
Purpose
This 1995 Stock Incentive Plan (the "Plan") is intended as an
incentive and to encourage stock ownership by officers and certain other
employees of and consultants to Intelligent Information Incorporated or its
subsidiaries (the "Company") in order to increase their proprietary interest in
the Company's continued growth and success and to encourage such employees to
remain in the employ of and such consultants to continue to render services to
the Company. Persons eligible to receive stock options ("Options"), stock
appreciation rights ("Rights") and stock bonus awards ("Stock Bonus Awards")
under the Plan ("Participants") are those officers, directors, employees and
consultants who hold positions of responsibility and whose performance, in the
judgment of the Board of Directors of the Company, can have a significant effect
upon the Company's success.
It is intended that certain Options granted under this Plan
will qualify as "incentive stock options" under Section 422 of the United States
Internal Revenue Code of 1986, as amended (the "Code") (hereinafter referred to
as "Incentive Stock Options"). The Company makes no warranty as to the
qualification of any Options as Incentive Stock Options. Those Options granted
under the Plan which do not qualify as Incentive Stock Options are hereinafter
referred to as "Non-Qualified Stock Options."
ARTICLE II
Administration
The Plan shall be administered by a committee consisting of
two or more directors (the "Committee") selected by the Board of Directors of
the Company (the "Board"). No person shall be appointed to or shall serve as a
member of such committee unless at the time of such appointment and service he
shall be a "disinterested person," as defined in Rule 16b-3 promulgated under
the United States Securities Exchange Act of 1934, as amended (the "Exchange
Act"). Notwithstanding the foregoing, the Board may, in its discretion, reserve
to itself any or all of the authority and responsibility of the Committee with
respect to awards to
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employees who are not subject to liability under Section 16(b) of the Exchange
Act at the time any such responsibility is exercised.
Subject to the provisions of the Plan, the Board or the
Committee shall have sole authority, in its absolute discretion: (a) to
determine which of the eligible employees of the Company shall be granted
Options, Rights or Stock Bonus Awards; (b) to authorize the granting of
Incentive Stock Options, Non-Qualified Stock Options, Rights and Stock Bonus
Awards; (c) to determine the times when Options, Rights or Stock Bonus Awards
shall be granted and the number of shares to be optioned or subject to such
grant; (d) to determine the option price of the shares subject to each Option or
Right, which price shall be not less than the minimum specified in ARTICLE IV
hereof; (e) to determine the time or times when each Option, Right or Stock
Bonus Award becomes exercisable (whether in whole or in part), the duration of
the exercise period and any other restrictions on the exercise of Options or
Rights issued hereunder; (f) to prescribe the form or forms of the agreements
under the Plan (which forms shall be consistent with the terms of the Plan but
need not be identical); (g) to adopt, amend and rescind such rules and
regulations as, in its opinion, may be advisable in the administration of the
Plan; and (h) to construe and interpret the Plan, the rules and regulations and
the agreements under the Plan and to make all other determinations deemed
necessary or advisable for the administration of the Plan. All decisions,
determinations and interpretations of the Board or the Committee, as the case
may be, shall be final and binding on all Participants and their respective
successors and assigns and all persons claiming under or through them.
ARTICLE III
Stock
The stock to be issued under the Plan shall be shares of authorized but
unissued shares of the Company's Common Stock, previously issued shares of the
Company's Common Stock reacquired by the Company or both (the "Stock"). Under
the Plan, the total number of shares of Stock which may be purchased pursuant to
options or available for Stock Bonus Awards granted under the Plan or acquired
pursuant to the exercise of Rights granted under the Plan shall not exceed, in
the aggregate, One Million and Fourteen Thousand (1,014,000) shares, except as
such number of shares shall be adjusted in accordance with the provisions of
ARTICLE XI hereof.
The number of shares of Stock available for grant of Options,
Rights or Stock Bonus Awards under the Plan shall be decreased by the sum of the
number of shares with respect to which Options, Rights or Stock Bonus Awards
have been issued and are then outstanding and the number of shares issued upon
exercise of Options. Shares of Stock which are subject to Rights linked with
related Options shall be counted only once in determining whether the maximum
number of shares of Stock which may be purchased or acquired under the Plan has
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been exceeded. If any shares of Stock subject to an Option, Right or Stock Bonus
Award shall not be issued or transferred and shall cease to be issuable or
transferable because of the termination, in whole or in part, of such Option,
Right or Stock Bonus Award or for any other reason, or if any such shares shall,
after issuance or transfer, be reacquired by the Company because of a
Participant's failure to comply with the terms and conditions of a Stock Bonus
Award, or if the Company shall pay cash in lieu of issuing shares of Stock upon
settlement of an Option, Right or Stock Bonus Award, the shares not so issued or
transferred, or the shares so reacquired by the Company, as the case may be,
shall no longer be charged against the number of shares of Stock subject to the
Plan and may again be made subject to Options, Rights or Stock Bonus Awards;
provided, however, that the number of shares not so issued or transferred and
any such reacquired shares may again be made subject to Options, Rights or Stock
Bonus Awards for persons subject to liability under Section 16(b) of the
Exchange Act only if the forfeiting Participant received no benefits of
ownership such as dividends (but excluding voting rights) from the shares or if
Rule 16b-3 under the Exchange Act would, in the opinion of the Board or the
Committee, otherwise be satisfied.
ARTICLE IV
Option Price
In the case of each Non-Qualified Stock Option granted under
the Plan, the Option price shall be determined by the Board or the Committee, as
the case may be. In the case of each Incentive Stock Option granted under the
Plan, the Option price shall be not less than the fair market value of the Stock
at the time the Option was granted. The fair market value shall be deemed for
all purposes of the Plan to be the mean between the highest and lowest sale
prices reported as having occurred on any Exchange on which the Company's Common
Stock may be listed and traded on the date the Option is granted, or, if there
is no such sale on that date, then on the last preceding date on which such a
sale was reported. If the Company's Stock is not listed on any Exchange but the
Stock is quoted in the National Market System of the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") on a last sale basis,
then the fair market value of the Stock shall be deemed to be the mean between
the high and low sale price reported on the date the Option is granted, or, if
there is no such sale on that date, then on the last preceding date on which a
sale was reported. If the Stock is not quoted on NASDAQ on a last sale basis,
then the fair market value of the Stock shall be deemed to be the mean between
the highest asked and lowest bid prices for such Stock for the day on which the
Option is granted, or, if there are no transactions in the Stock on that day,
then on the last preceding date on which such transactions occurred. In all
other cases, the fair market value of the Stock shall mean the amount determined
by the Board or the Committee to be the fair market value based upon a good
faith attempt to value the Stock accurately and computed in accordance with
applicable regulations of the United States Internal Revenue Service. In no
event shall the
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Option price be less than the par value per share of Common Stock.
ARTICLE V
Exercise and Terms of Options, Rights and Stock Bonus Awards
The Board or the Committee, as the case may be, shall
determine the date or dates after which Options or Rights may be exercised or
Stock Bonus Awards become vested, in whole or in part. If an Option or Right is
exercisable or a Stock Bonus Award becomes vested in installments, installments
or portions thereof which are exercisable and not exercised shall remain
exercisable.
Any other provision of the Plan notwithstanding, no Option or
Right shall be exercisable after the date ten (10) years from the date of grant
of such Option (the "Termination Date"). If, prior to the Termination Date, a
Participant shall cease to be employed by the Company (other than by reason of
death or permanent and total disability within the meaning of Section 22(e)(3)
of the Code), the Option or Right will remain exercisable for a period not
extending beyond three (3) months after the date of cessation of employment to
the extent it was exercisable at the time of cessation of employment. If, prior
to the Termination Date, a Participant shall cease to be employed by the Company
by reason of a permanent and total disability within the meaning of Section
22(e)(3) of the Code, the Option or Right granted hereunder will remain
exercisable for a period not extending beyond one (1) year after the date of
cessation of employment to the extent it was exercisable at the time of
cessation of employment. In the event of the death of a Participant prior to the
Termination Date and while employed by the Company or while entitled to exercise
an Option or Right pursuant to the preceding sentences of this paragraph, the
Option or Right granted hereunder may provide that it will remain exercisable at
any time prior to the Termination Date, but in no event later than one (1) year
from the date of death, by the person or persons to whom the Participant's
rights under the Option or Right pass by applicable laws of descent and
distribution to the extent that the Participant was entitled to exercise it on
the date of death.
ARTICLE VI
Special Provisions Applicable to
Incentive Stock Options Only
Except as hereafter permitted by the Code, the aggregate fair
market value (determined as of the time the Option is granted) of the Stock with
respect to which any Incentive Stock Option may be exercisable for the first
time by the grantee in any calendar year (under this Plan or any other stock
option plan of the Company or any parent or subsidiary
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corporation thereof (within the meaning of Sections 424(e) and (f) of the Code))
shall not exceed One Hundred Thousand Dollars ($100,000).
No Incentive Stock Option may be granted to an individual who,
at the time the Option is granted, owns, directly or indirectly (within the
meaning of Section 424(d) of the Code), stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or of any parent or subsidiary corporation thereof (within the meaning of
Sections 424(e) and (f) of the Code), unless such Option (i) has an Option price
of at least one hundred ten percent (110%) of the fair market value of the Stock
on the date of the grant of such Option and (ii) such Option cannot be exercised
more than five (5) years after the date it is granted.
ARTICLE VII
Payment for Shares
Payment for shares of Stock purchased under an Option granted
hereunder shall be made in full upon exercise of the Option by certified or bank
cashier's check or, to the extent permitted by law or the applicable agreement,
(i) by the surrender or delivery to the Company of shares of its stock having a
fair market value equal to the purchase price for the Stock as to which the
Option is being exercised or (ii) by delivery of a promissory note secured by a
pledge of the Stock, provided that any such note shall mature in ten (10) years
or such lesser period as may be specified by the Board or the Committee and, in
the case of an Incentive Stock Option, any such note shall bear interest at the
minimum rate required to avoid imputation of interest under United States
federal income tax laws applicable at the time of exercise. The Stock purchased
shall thereupon be promptly delivered; provided, however, that the Company may,
in its discretion, require that a Participant pay to the Company, at the time of
exercise, such amount as the Company deems necessary to satisfy its obligation
to withhold federal, state or local income or other taxes incurred by reason of
the exercise or the transfer of shares thereupon.
ARTICLE VIII
Stock Appreciation Rights
In the discretion of the Board or the Committee, as the case
may be, a Right may be granted (i) alone, (ii) simultaneously with the grant of
an Option (either Incentive or Non-Qualified) and in conjunction therewith or in
the alternative thereto or (iii) subsequent to the grant of a Non-Qualified
Option and in conjunction therewith or in the alternative thereto.
The exercise price of a Right granted alone shall be
determined by the Board or the Committee, but shall not be less than one hundred
percent (100%) of the fair market value of
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one share of the Company's Common Stock on the date of grant of such Right.
Except as otherwise provided by the Board or the Committee and subject to
applicable law, a Right granted simultaneously with or subsequent to the grant
of an Option and in conjunction therewith or in the alternative thereto shall
have the same exercise price as the related Option, shall be transferable only
upon the same terms and conditions as the related Option and shall be
exercisable only to the same extent as the related Option; provided, however,
that, a Right, by its terms, shall be exercisable only when the fair market
value per share of Common Stock subject to the Right and related Option exceeds
the exercise price per share thereof.
Upon any exercise of a Right, the number of shares of Stock
for which any related Option shall be exercisable shall be reduced by the number
of shares of Stock for which the Right shall have been exercised. The number of
shares of Stock for which a Right shall be exercisable shall be reduced upon any
exercise of any related Option by the number of shares of Stock for which such
Option shall have been exercised.
A Right shall entitle the Participant upon exercise thereof to
receive from the Company a number of shares of Common Stock (with or without
restrictions as to substantial risk of forfeiture and transferability, as
determined by the Board or the Committee in its sole discretion), an amount of
cash or any combination of shares and cash, as determined by the Board or the
Committee in its sole discretion, having an aggregate fair market value equal to
the product of (i) the excess of the fair market value, on the date of such
exercise, of one (1) share over the exercise price per share specified in such
Right or its related Option and (ii) the number of shares for which such Right
shall be exercised; provided, however, that no fractional shares of Stock shall
be issued upon exercise of a Right.
Participants shall not be entitled to request or receive cash
in full or partial payment of a Right, if such Right or any related Option shall
have been exercised during the first six (6) months of its respective term;
provided, however, that such prohibition shall not apply if the Participant dies
or becomes disabled (within the meaning of Section 22(e)(3) of the Code) prior
to the expiration of such six-month period or if such Participant is not a
director, officer or beneficial owner of the Company who is described in Section
16(a) of the Exchange Act.
A Right shall be deemed exercised on the last day of its term,
if not otherwise exercised by the holder thereof, provided that the fair market
value of the shares subject to the Right exceeds the exercise price thereof on
such date.
For all purposes of this Article VIII, the fair market value
of shares shall be determined in accordance with Article IV.
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ARTICLE IX
Stock Bonus Awards
Stock Bonus Awards shall consist of an amount of cash or
shares of Stock, or a combination of each, distributed to a Participant or which
the Board or the Committee agrees to distribute in the future in lieu of, or as
a supplement to, any other compensation that may have been earned by services
rendered prior to the date the Stock Bonus Award is made. Stock Bonus Awards
may, but need not, be issued in the form of a (i) Performance Unit Award, which
consists of cash and/or shares of Stock that will be distributed to a
Participant in the future if continued employment or other performance
objectives specified by the Board or the Committee are attained or (ii)
Restricted Stock Award, which consists of shares of Stock issued or transferred
to a Participant and which will become free of restrictions specified by the
Board or the Committee if continued employment and/or other performance
objectives specified by the Board or the Committee are attained. The amount of a
Stock Bonus Award may, but need not, be determined by reference to the market
value of the Stock.
A Participant may be granted a Stock Bonus Award whether or
not the Participant is eligible to receive similar or dissimilar incentive
compensation under any other plan or arrangement of the Company.
Stock subject to a Stock Bonus Award may be issued or
transferred to a Participant at the time such Stock Bonus Award is granted, or
at any time subsequent thereto, or in installments from time to time, as the
Board or the Committee shall determine.
Any Stock Bonus Award may, in the discretion of the Board or
the Committee, be settled in cash, on each date on which shares would otherwise
have been delivered or become unrestricted, in an amount equal to the fair
market value on such date of the shares which would otherwise have been
delivered or become unrestricted.
Stock Bonus Awards shall be subject to such terms and
conditions, including, without limitation, restrictions on the sale or other
disposition of the shares of Stock issued or transferred pursuant to such Stock
Bonus Award, and conditions calling for forfeiture of the Stock Bonus Award or
the shares of Stock issued or transferred pursuant thereto in designated
circumstances, as the Board or the Committee shall determine; provided, however,
that upon the issuance or transfer of shares of Stock pursuant to any such Stock
Bonus Award, the recipient shall, with respect to such shares, be and become a
stockholder of the Company fully entitled to receive dividends, to vote and to
exercise all other rights of a shareholder except to the extent otherwise
provided in the Stock Bonus Award.
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ARTICLE X
Non-Transferability
No Option, Right or Stock Bonus Award shall be transferable
except by will or the laws of descent and distribution. During the lifetime of
the Participant, an Option or Right shall be exercisable only by the
Participant.
ARTICLE XI
Adjustment for Recapitalization, Merger, Etc.
The aggregate number of shares of Stock which may be purchased
pursuant to Options granted hereunder, the number of shares of Stock covered by
each outstanding Option or Right, the price per share thereof of each such
Option or Right and the number of shares subject to a Stock Bonus Award shall be
appropriately adjusted, if necessary, for any increase or decrease in the number
of outstanding shares of Common Stock resulting from a stock split or other
subdivision or consolidation of shares of Common Stock or for other capital
adjustments or payments of stock dividends or distributions or other increases
or decreases in the outstanding shares of Common Stock effected without receipt
of consideration by the Company.
Subject to any required action by the shareholders, (i) if the
Company shall be the surviving corporation in any merger or consolidation or
(ii) if the Company shall not be the surviving corporation in any merger or
consolidation but the shareholders of the Company shall hold fifty percent (50%)
or more of the surviving corporation, any Option, Right or Stock Bonus Award
granted hereunder shall cover the securities to which a holder of the number of
shares of Stock covered by the unexercised or invested portion of the Option,
Right or Stock Bonus Award would have been entitled pursuant to the terms of the
merger or consolidation.
Unless otherwise provided in the Option, Right or Stock Bonus
Award or in the foregoing paragraph, upon any merger or consolidation in which
the Company shall not be the surviving corporation, a dissolution or liquidation
of the Company or a sale of all or substantially all of its assets, all Options,
Rights and Stock Bonus Awards outstanding hereunder shall terminate; provided,
however, that the surviving corporation may grant an option or options to
purchase its shares on such terms and conditions, both as to the number of
shares and otherwise, which shall substantially preserve the rights and benefits
of any Option, Right and Stock Bonus Awards then outstanding hereunder.
The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined by the Board or the Committee in its
sole discretion. Any such adjustment may provide for the elimination of any
fractional share which might otherwise become subject to an Option.
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ARTICLE XII
No Obligation to Exercise Option
Granting of an Option shall impose no obligation on the
recipient to exercise such Option.
ARTICLE XIII
Use of Proceeds
The proceeds received from the sale of Stock pursuant to the
Plan shall be used for general corporate purposes.
ARTICLE XIV
Rights as a Shareholder
A Participant or a transferee of an Option, Right or Stock
Bonus Award shall have no rights as a shareholder with respect to any share
covered by a Participant's Option, Right or Stock Bonus Award until such
Participant shall have become the holder of record of such share, and such
Participant shall not be entitled to any dividends or distributions or other
rights in respect of such share for which the record date is prior to the date
on which such Participant shall have become the holder of record thereof.
ARTICLE XV
Employment Rights
Nothing in the Plan or in any Option, Right or Stock Bonus
Award granted hereunder shall confer on any Participant who is an employee any
right to continue in the employ of the Company or to interfere in any way with
the right of the Company to terminate the Participant's employment at any time.
ARTICLE XVI
Compliance with the Law
The Company is relieved from any liability for the
non-issuance or non-transfer or any delay in issuance or transfer of any shares
of Stock subject to Options, Rights or Stock
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Bonus Awards under the Plan which results from the inability of the Company to
obtain or in any delay in obtaining from any regulatory body having jurisdiction
all requisite authority to issue or transfer shares of Stock of the Company
either upon exercise of the Options under the Plan or shares of Stock issued as
a result of such exercise or granted pursuant to a Stock Bonus Award if counsel
for the Company deems such authority necessary for lawful issuance or transfer
of any such shares. Appropriate legends may be placed on the stock certificates
evidencing shares issued upon exercise of Options, Rights or Stock Bonus Awards
to reflect such transfer restrictions.
ARTICLE XVII
Cancellation of Options or Rights
The Board or the Committee, as the case may be, in its
discretion, may, with the consent of any Participant, cancel any outstanding
Option or Right hereunder and/or reissue such Option or Right at a lower price.
ARTICLE XVIII
Adoption of Plan
This Plan shall become effective upon the date of its adoption
by the Board, subject, however, to approval by the Company's shareholders within
twelve (12) months from the date of adoption of the Plan by the Board.
ARTICLE XIX
Expiration Date of Plan
The Plan shall remain in effect until all shares authorized to
be issued or transferred hereunder have been exhausted or until the Plan is
sooner terminated by the Board of Directors, and shall continue in effect
thereafter with respect to any Options, Rights or Stock Bonus Awards outstanding
at the time of such termination. In no event shall an Incentive Stock Option be
granted under the Plan after January 19, 2005.
ARTICLE XX
Amendment or Discontinuance of Plan
The Board or the Committee may, without the consent of the
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Company's shareholders or Participants under the Plan, at any time terminate
the Plan entirely and at any time or from time to time amend or modify the Plan,
provided that no such action shall adversely affect Options or Rights
theretofore granted hereunder without the Participant's consent, and provided
further that no such action by the Board, without approval of the shareholders,
may (a) increase the total number of shares of Stock which may be purchased
pursuant to Options granted under the Plan, except as contemplated in ARTICLE
XI; (b) expand the class of employees or consultants eligible to receive
Options, Rights or Stock Bonus Awards under the Plan; (c) decrease the minimum
Option or Rights price; (d) extend the maximum term of Options or Rights granted
hereunder; (e) extend the term of the Plan; or (f) materially increase the
benefits accruing to participants under the Plan who are subject to liability
under Section 16(b) of the Exchange Act.
ARTICLE XXI
Governing Law
The Plan, such Options, Rights and Stock Bonus Awards as may
be granted thereunder and all related matters shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware
from time to time obtaining.
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