Exhibit 10.1
AMICAS, INC.
AMENDED AND RESTATED DIRECTORS STOCK OPTION PLAN
SECTION 1.
PURPOSE
The purpose of this Plan is to promote the interests of the Company and
its stockholders by strengthening the Company's ability to attract and retain
the services of experienced and knowledgeable nonemployee directors and by
encouraging such directors to acquire an increased proprietary interest in the
Company.
SECTION 2.
DEFINITIONS
Each term set forth in this Section shall have the meaning set forth
opposite such term for purposes of this Plan and, for purposes of such
definitions, the singular shall include the plural and the plural shall include
the singular.
2.1 Board means the Board of Directors of the Company.
2.2 Code means the Internal Revenue Code of 1986, as amended.
2.3 Committee means the committee appointed by the Board pursuant
to Section 5.
2.4 Common Stock means the common stock of the Company, $0.001 par
value per share, as defined in the Company's Certificate of Incorporation, as
the same may be amended from time to time, and shall also mean any other stock
or securities (including any other share or securities of an entity other than
the Company) for or into which the outstanding shares of such stock are
hereinafter exchanged or changed.
2.5 Company means AMICAS, Inc., a Delaware corporation, and any
successor to such organization.
2.6 Eligible Director means a director of the Company who is not
an employee of the Company or a Parent or Subsidiary.
2.7 Exchange Act means the Securities Exchange Act of 1934, as
amended.
2.8 Exercise Price means the price which shall be paid to purchase
one Share upon the exercise of an Option granted under this Plan.
2.9 Fair Market Value of each Share of Common Stock means the
closing "bid" price of a Share in the national securities market on which the
Shares are traded, on the trading day immediately preceding the day on which
such value is to be determined or, if such "bid" price is not available, the
last sales price on such day or, if no shares were traded on such day, on the
next preceding day on which the Shares were traded, as reported by the American
Stock Exchange or other reputable national exchange or quotation service. If at
any time the Shares are
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not traded on a national securities exchange, Fair Market Value shall be the
value determined by the Board of Directors or Committee administering the Plan,
taking into consideration those factors affecting or reflecting value which they
deem appropriate.
2.10 Option means an option granted under this Plan to purchase
Shares; all Options granted under this Plan are intended by the Company to be
nonqualified options which are not entitled to special tax treatment under, and
do not satisfy the requirements of, Code Section 422.
2.11 Optionee means grantee of an Option.
2.12 Parent means any corporation which is a parent of the Company
within the meaning of Section 424(e) of the Code.
2.13 Plan means the AMICAS, Inc. Directors Stock Option Plan, as
amended from time to time.
2.14 Share means a share of the Common Stock of the Company.
2.15 Stock Option Grant Certificate means the written agreement or
instrument which sets forth the terms of an Option granted to an Eligible
Director under this Plan.
2.16 Subsidiary means any corporation which is a subsidiary (within
the meaning of Section 424(f) of the Code) of the Company.
2.17 Surrendered Shares means the Shares described in Section 9
which (in lieu of being purchased) are surrendered for cash or Shares, or for a
combination of cash and Shares, in accordance with Section 9.
SECTION 3.
SHARES SUBJECT TO OPTIONS
[ONE HUNDRED THOUSAND (100,000)] [COMMENT: HAS THIS BEEN INCREASED?]
Shares of Common Stock shall be reserved for issue under this Plan. Such Shares
shall be reserved to the extent that the Company deems appropriate from
authorized but unissued Shares and from Shares which have been reacquired by the
Company. Furthermore, any Shares subject to an Option which remain after the
cancellation, expiration or exchange of such Option thereafter shall again
become available for use under this Plan, but any Surrendered Shares which
remain after the surrender of an Option under Section 9 shall not again become
available for use under this Plan.
SECTION 4.
EFFECTIVE DATE
The effective date of this Plan shall be the date it is adopted by the
Board, provided the shareholders of the Company approve this Plan within twelve
(12) months after such effective date. If such effective date comes before such
shareholder approval, any Options granted under this Plan before the date of
such approval automatically shall be granted subject to such approval. The Plan
shall continue in effect until it is terminated by action of the Board or the
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Company's stockholders, but such termination shall not affect the terms of any
Options then outstanding.
SECTION 5.
ADMINISTRATION
Plan shall be administered by the Committee, which shall consist of two
(2) or more directors appointed by the Board. The Committee, acting in its
absolute discretion, shall exercise such powers and take such action as
expressly called for under this Plan. The Committee shall have the power to
interpret this Plan and, subject to Section 14, to take such other action in the
administration and operation of the Plan as it deems equitable under the
circumstances. The Committee's actions shall be binding on the Company, on each
affected Eligible Director, and on each other person directly or indirectly
affected by such action.
SECTION 6.
ELIGIBILITY
Each Eligible Director shall be entitled to participate in the Plan and
shall be eligible to receive those grants of Options which shall be applicable
to such Eligible Director pursuant to the terms and conditions of Section 7.
SECTION 7.
GRANT OF OPTIONS
7.1 REGULAR GRANTS. An Option to purchase Ten Thousand (10,000)
Shares (as adjusted, pursuant to Section 12) shall automatically be granted to
each Eligible Director who is first appointed or elected to the Board of
Directors. Additional Options to purchase Two Thousand Five Hundred (2,500)
Shares each shall be granted to each Eligible Director on each anniversary of
such Director's first day of service as a Director of the Company. Eligible
Directors shall not be entitled to any payment of cash hereunder in lieu of
receiving Options. Each grant of an Option shall be evidenced by a Stock Option
Grant Certificate, and each Stock Option Grant Certificate shall incorporate
such other terms and conditions as the Committee, acting in its absolute
discretion, deems consistent with the terms of this Plan, including (without
limitation) a restriction on the number of Shares subject to the Option which
first become exercisable or subject to surrender during any calendar year. Any
Option granted to an Eligible Director shall, at his request, be issued to, in
the name and for the benefit of the entity through which such Eligible Director
has invested in the Company.
7.2 ADDITIONAL GRANTS. The Compensation Committee may, in its sole
discretion, make additional grants hereunder to Eligible Directors from time to
time.
SECTION 8.
TERMS AND CONDITIONS OF OPTIONS
8.1 EXERCISE PRICE. The Exercise Price for each Option granted
shall be the Fair Market Value of the underlying Common Stock as determined
pursuant to Section 2.9 hereof.
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8.2 VESTING OF OPTIONS. Each Option granted under the Plan shall
vest as to fifty percent (50%) of the underlying shares upon the Optionee's
completion of one (1) year of service as a Director following the Date of Grant,
and fifty percent (50%) upon completion of the Optionee's second year of service
as a Director following the Date of Grant.
8.3 TERM OF OPTION. Each Option granted under the Plan shall
include an expiration date, which shall be set forth in the Stock Option Grant
Certificate. Unless otherwise provided in the Stock Option Grant Certificate,
the termination of service of an Optionee as a member of the Board by death or
otherwise shall not accelerate or otherwise affect the number of Shares with
respect to which an Option may be exercised, and such Option may only be
exercised with respect to that number of Shares which could have been purchased
under the Option had the Option been exercised by the Optionee on the date that
such Optionee ceased to be a member of the Board by reason of such Optionee's
death or for any other reason.
Each Option granted under this Plan shall be exercisable in whole or in
part at such time or times as set forth in the related Stock Option Grant
Certificate, but no Stock Option Grant Certificate shall:
(a) make an Option exercisable before the date such
Option is granted; or
(b) make an Option exercisable after the earlier of the
first to occur of the following (at which time such option shall be deemed to
have terminated):
(i) immediately at the time and on the date such
Option is exercised in full;
(ii) at 5:00 p.m., EST, on the date which is the
tenth (10th) anniversary of the date such Option is granted; or
(iii) at 5:00 p.m., EST, on the ninth (9th) month
following the date that an Optionee ceases to be a member of the Board
of Directors for any reason, including, but not limited to, his death
or disability.
8.4 TIME AND MANNER OF OPTION EXERCISE. Any vested and exercisable
Option is exercisable in whole or in part at any time or from time to time prior
to the expiration of an Option by giving written notice, signed by the person
exercising the Option, to the Company stating the number of Shares with respect
to which the Option is being exercised, accompanied by payment in full of the
Exercise Price for the number of Shares to be purchased. The date and time upon
which the Company's Secretary or Treasurer shall have received both such notice
and payment shall be the date and time of exercise of the Option as to the
number of Shares described by the Optionee. No Option may be exercised at any
time with respect to a fractional share. Any Option of a deceased Optionee may
be exercised, to the extent vested at the time of such Optionee's death, by the
estate of such Optionee or by a person or persons whom the Optionee has
designated in writing filed with the Company, or, if no such designation has
been made, by the person or persons to whom the Optionee's rights have passed by
will or the laws of descent and distribution.
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8.5 PAYMENT OF EXERCISE PRICE. Payment of the Exercise Price may
be in cash, by cashier's check, by personal check, or by promissory note of the
Optionee. The Committee may also provide in an exercise agreement upon exercise
of an Option that, in lieu of cash, all or any portion of the Exercise Price may
be paid by tendering to the Company Shares of Common Stock duly endorsed for
transfer and owned by the Optionee, to be credited against the Option price at
the Fair Market Value of such Shares on the date of exercise. A promissory note
tendered in payment of the Exercise Price shall be in a form designated by the
Committee, shall be signed by the Optionee (which signature shall be notarized
or guaranteed) and shall include substantially the following terms: interest on
the principal amount of the note shall accrue at a per annum rate equal to the
prime rate as announced from time to time by the principal bank of the Company,
or if the Company has no principal bank, that rate announced by the Wall Street
Journal as the prevailing "prime rate" of interest per annum; equal payments of
principal and interest shall be payable in installments for a period determined
by the Committee following exercise, and upon the expiration of such period the
entire unpaid principal amount, together with accrued by unpaid interest, shall
be due and payable; and the Optionee executing the note shall be personally
liable for timely payment of the unpaid principal balance and all accrued by
unpaid interest.
8.6 TRANSFERABILITY. The right of any Optionee to exercise an
Option granted under the Plan shall, during the lifetime of such Optionee, be
exercisable only by such Optionee or by a person who obtained such Option
pursuant to a qualified domestic relations order as defined by the Code or Title
I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
and the rules thereunder (a "QDRO"), and shall not be assignable or transferable
by such Optionee other than by will or by the laws of descent and distribution
or by a QDRO.
8.7 LIMITATION OF RIGHTS.
(a) LIMITATION AS TO SHARES. Neither the recipient of an
Option under the Plan nor an Optionee's successor or successors in interest
shall have any rights as a stockholder of the Company with respect to any Shares
subject to an Option granted to such person until the date of issuance of a
stock certificate for such Shares.
(b) LIMITATION AS TO DIRECTORSHIP. Neither the Plan, nor
the granting of an Option, nor any other action taken pursuant to the Plan shall
constitute or be evidence of any agreement or understanding, express or implied,
that an Eligible Director has a right to continue as a member of the Board for
any period of time or at any particular rate of compensation.
8.8 REGULATORY APPROVAL AND COMPLIANCE. The Company shall not be
required to issue any certificate or certificates for Shares upon the exercise
of an Option granted under the Plan or to record as a holder of record of Shares
the name of the individual exercising an Option under the Plan, without
obtaining to the complete satisfaction of the Board the approval of all
regulatory bodies deemed necessary by the Board and without complying, to the
Board's complete satisfaction, with all rules and regulations under federal,
state, or local law deemed applicable by the Board. In addition, with respect to
persons subject to Section 16 of the Exchange Act, transactions under this Plan
are intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act. To the extent any provision of the Plan or
action by the Board or the Committee fails to comply, it shall be deemed null
and void, to the extent permitted by law and deemed advisable by the Board.
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SECTION 9.
SURRENDER OF OPTIONS
9.1 GENERAL RULE. The Committee, in its absolute discretion may
incorporate a provision in a Stock Option Grant Certificate to allow an Optionee
to surrender his or her Option in whole or in part in lieu of the exercise in
whole or in part of that Option on any date that
(a) the Fair Market Value of the Shares subject to such
Option exceeds the Exercise Price for such Shares, and
(b) the Option to purchase such Shares is otherwise
exercisable.
9.2 PROCEDURE. The surrender of an Option in whole or in part
shall be effected by the delivery of the Stock Option Grant Certificate to the
Committee (or to its delegate) together with a statement signed by the Optionee
which specifies the number of Shares ("Surrendered Shares") as to which the
Optionee surrenders his or her Option and how he or she desires payment be made
for such Surrendered Shares.
9.3 PAYMENT. An Optionee in exchange for his or her Surrendered
Shares shall receive a payment in cash or in Shares, or in a combination of cash
and Shares, equal in amount on the date such surrender is effected to the excess
of the Fair Market Value of the Surrendered Shares on such date over the
Exercise Price for the Surrendered Shares. The Committee acting in its absolute
discretion can approve or disapprove an Optionee's request for payment in whole
or in part in cash and can make that payment in cash or in such combination of
cash and Shares as the Committee deems appropriate. A request for payment only
in Shares shall be approved and made in Shares to the extent payment can be made
in whole shares of Shares and (at the Committee's discretion) in cash in lieu of
any fractional Shares.
9.4 RESTRICTIONS. Any Stock Option Grant Certificate which
incorporates a provision to allow an Optionee to surrender his or her Option in
whole or in part also shall incorporate such additional restrictions on the
exercise or surrender of such Option as the Committee deems necessary to satisfy
the conditions to the exemption under Rule 16b-3 (or any successor exemption) to
Section 16(b) of the Exchange Act.
SECTION 10.
SECURITIES REGISTRATION
Each Stock Option Grant Certificate may provide that, upon the receipt
of Shares as a result of the surrender or exercise of an Option, the Optionee
shall, if so requested by the Company, hold such Shares for investment and not
with a view of resale or distribution to the public and, if so requested by the
Company, shall deliver to the Company a written statement satisfactory to the
Company to that effect. Each Stock Option Grant Certificate also may provide
that, if so requested by the Company, the Optionee shall make a written
representation to the Company that he or she will not sell or offer to sell any
of such Shares unless a registration statement shall be in effect with respect
to such Shares under the Securities Act of 1933, as amended ("1933 Act") and any
applicable state securities law or unless he or she shall have furnished to the
Company an opinion, in form and substance satisfactory to the Company, or legal
counsel acceptable to the Company, that such registration is not required.
Certificates
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representing the Shares transferred upon the exercise or surrender of an Option
granted under this Plan may at the discretion of the Company bear a legend to
the effect that such Shares have not been registered under the 1933 Act or any
applicable state securities law and that such Shares may not be sold or offered
for sale in the absence of an effective registration statement as to such Shares
under the 1933 Act and any applicable state securities law or an opinion, in
form and substance satisfactory to the Company, of legal counsel acceptable to
the Company, that such registration is not required.
SECTION 11.
LIFE OF PLAN
No Option shall be granted under this Plan on or after the earlier of:
(a) The tenth (10th) anniversary of the effective date of
this Plan (as determined under Section 4 of this Plan), in which event this Plan
otherwise thereafter shall continue in effect until all outstanding Options have
been surrendered or exercised in full or no longer are exercisable; or
(b) The date on which all of the Shares reserved under
Section 3 of this Plan have (as a result of the surrender or exercise of Options
granted under this Plan) been issued or no longer are available for use under
this Plan, in which event this Plan also shall terminate on such date.
SECTION 12.
ADJUSTMENT
The number of Shares reserved under Section 3 of this Plan, the number
of Shares subject to Options granted under this Plan and the Exercise Price of
such Options shall be adjusted by the Board in an equitable manner to reflect
any change in the capitalization of the Company, including, but not limited to,
such changes as stock dividends or stock splits. Furthermore, the Board shall
have the right to adjust (in a manner which satisfies the requirements of Code
Section 424(a)) the number of Shares reserved under Section 3 of this Plan and
the number of Shares subject to Options granted under this Plan and the Exercise
Price of such Options in the event of any corporate transaction described in
Code Section 424(a) which provides for the substitution or assumption of such
Options. If any adjustment under this Section creates a fractional Share or a
right to acquire a fractional Share, such fractional Share shall be disregarded
and the number of Shares reserved under this Plan and the number subject to any
Options granted under this Plan shall be the next lower number of Shares,
rounding all fractions downward. An adjustment made under this Section by the
Board shall be conclusive and binding on all affected persons and, further,
shall not constitute an increase in the number of Shares reserved under Section
3 of this Plan.
SECTION 13.
SALE OR MERGER OF THE COMPANY
If the Company: (i) agrees to sell substantially all of its assets for
cash or property or for a combination of cash and property, (ii) agrees to any
merger, consolidation, reorganization, division or other transaction in which
Shares are converted into another security or into the right
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to receive securities or property and such agreement does not provide for the
assumption or substitution of the Options granted under this Plan, or (iii)
agrees to dissolve or liquidate its assets, then immediately following such time
that the Company manifests its agreement in writing to do any of the foregoing,
at the direction and discretion of the Board, or as is otherwise provided in the
Stock Option Grant Certificates, either (a) each Option shall be exercisable for
a period of thirty (30) days following delivery of written notice to each holder
of an Option (after which such Option shall expire), or (b) each Option may be
canceled unilaterally by the Company in exchange for the whole Shares (or,
subject to satisfying the conditions to the exemption under Rule 16b-3 or any
successor exemption to Section 16(b) of the Exchange Act, for the whole Shares
and the cash in lieu of a fractional Share) which each Optionee otherwise would
receive if he or she had the right to surrender his or her outstanding Option in
full under Section 9 of this Plan and he or she exercised that right exclusively
for Shares on a date fixed by the Board which comes before such sale or other
corporate transaction.
SECTION 14.
AMENDMENT OR TERMINATION
This Plan may be amended by the Board from time to time to the extent
that the Board deems necessary or appropriate; provided, however, no such
amendment shall be made absent the approval of the shareholders of the Company:
(i) to increase the number of Shares reserved under Section 3, except as set
forth in Section 12, (ii) to extend the maximum life of the Plan under Section
11 or the maximum exercise period under Section 8, (iii) to decrease the minimum
Exercise Price under Section 8, or (iv) to change the designation of Optionees
eligible for Options under Section 6. The Board also may suspend the granting of
Options under this Plan at any time and may terminate this Plan at any time;
provided, however, the Company shall not have the right to modify, amend or
cancel any Option granted before such suspension or termination unless: (a) the
Optionee consents in writing to such modification, amendment or cancellation, or
(b) there is a dissolution or liquidation of the Company or a transaction
described in Section 12 or Section 13 of this Plan.
SECTION 15.
MISCELLANEOUS
15.1 WITHHOLDING. The exercise or surrender of any Option granted
under this Plan shall constitute an Optionee's full and complete consent to
whatever action the Committee directs to satisfy the federal and state tax
withholding requirements, if any, which the Committee in its discretion deems
applicable to such exercise or surrender. In addition to and at the time of
payment of the Exercise Price, the Optionee shall pay to the Company in cash the
full amount of any federal, state and local income, employment or other taxes
required to be withheld from the income of such Optionee as a result of such
exercise; provided, however, that in the discretion of the Committee any Stock
Option Grant Certificate may provide that all or any portion of such tax
obligations, together with additional taxes not exceeding the actual additional
taxes be owed by the Optionee as a result of such exercise, may, upon the
irrevocable election of the Optionee, be paid by tendering to the Company whole
Shares of Common Stock duly endorsed for transfer and owned by the Optionee, or
by authorizing the Company to withhold Shares of Common Stock otherwise issuable
upon exercise of the Option, in either case in that number of Shares having a
Fair Market Value on the date of exercise equal to the amount of such taxes
thereby
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being paid, in all cases subject to such restrictions as the Committee may from
time to time determine, including any such restrictions as may be necessary or
appropriate to satisfy the conditions of the exemption set forth in Rule 16b-3
under the Exchange Act.
15.2 CONSTRUCTION. This Plan shall be construed under the laws of
the State of Delaware.
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