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EXHIBIT 10.2
UTEK CORPORATION
STOCK OPTION PLAN
July 12, 1999
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UTEK CORPORATION
EMPLOYEE STOCK OPTION PLAN
TABLE OF CONTENTS
PAGE
1. PURPOSE OF PLAN....................................................2
2. DEFINITIONS........................................................2
3. LIMITS ON OPTIONS..................................................3
4. GRANTING OF OPTIONS................................................4
5. TERMS OF STOCK OPTIONS.............................................4
6. EFFECT OF CHANGES IN CAPITALIZATION................................6
7. DELIVERY AND PAYMENT FOR SHARES; REPLACEMENT OPTIONS...............7
8. NO CONTINUATION OF EMPLOYMENT AND DISCLAIMER OF RIGHTS.............8
9. ADMINISTRATION.....................................................9
10. NO OBLIGATION TO RESERVE OR RETAIN SHARES..........................9
11. AMENDMENT OF PLAN..................................................10
12. TERMINATION OF PLAN................................................10
13. EFFECTIVE DATE.....................................................10
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UTEK CORPORATION
EMPLOYEE STOCK OPTION PLAN
1. PURPOSE OF PLAN
The purpose of this Plan is to enable UTEK CORPORATION (the "Company")
and its Subsidiaries to compete successfully in attracting, motivating and
retaining Employees with outstanding abilities by making it possible for them to
purchase Shares on terms that will give them a direct and continuing interest in
the future success of the businesses of the Company and its Subsidiaries and
encourage them to remain in the employ of the Company or one or more of its
Subsidiaries. Each Option is intended to be an Incentive Stock Option, except to
the extent that (a) any such Option would exceed the limitations set forth in
Section 3.(c) hereof and (b) for Options specifically designated at the time of
grant as not being Incentive Stock Options.
2. DEFINITIONS
For purposes of the Plan, except where the context clearly indicates
otherwise, the following terms shall have the meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the United States Internal Revenue Code of 1986, as
amended.
(c) "Committee" means the Committee described in Section 9 hereof.
(d) "Effective Date" means the later of (i) the effective date of any
registration statement with respect to the Shares under the Securities Exchange
Act of 1934, as amended, and (ii) the time the underwriting agreement has been
executed and delivered by all parties thereto, where the "underwriting
agreement" is that underwriting agreement referred to in the prospectus included
in such registration statement when it first became effective. Such execution
and delivery shall be definitively evidenced by any certificate to such effect
by any officer of the Company.
(e) "Employee" means a person who is regularly employed on a salary
basis by the Company or any Subsidiary, including an officer or director of the
Company or any Subsidiary who is also an employee of the Company or a
Subsidiary.
(f) "Fair Market Value" means with respect to a Share either:
(i) the closing price of such stock on the date of issuance of
such Option on the principal recognized securities exchange or
recognized securities market on which such stock is reported,
but if selling prices are not reported, its fair market value
shall be the mean between the high bid and low asked prices
for such stock on the date of issuance of such Option (or if
there are no quoted prices for such date, then for the last
preceding business day on which there were quoted prices), or
(ii) in the absence of an established market for the stock,
the fair market value
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thereof shall be the current net asset value of the common
stock underlying the Option or such other valuation as may
hereafter be permitted pursuant to the Investment Company Act
of 1940, as amended (the "1940 Act").
(g) "Incentive Stock Option" means an option granted under this Plan
and which is an incentive stock option within the meaning of section 422 of the
Code, or the corresponding provision of any subsequently enacted tax statute.
(h) "Option" means an option granted under this Plan, whether or not
such option is an Incentive Stock Option.
(i) "Optionee" means any person who has been granted an Option which
Option has not expired or been fully exercised or surrendered.
(j) "Plan" means the Company's Employee Stock Option Plan.
(k) "Rule 16b-3" means Rule 16b-3 promulgated pursuant to Section 16(b)
of the Securities Exchange Act of 1934, as amended, or any successor rule.
(l) "Share" means one share of voting common stock, par value $.01 per
share, of the Company, and such other stock or securities that may be
substituted therefore pursuant to Section 6 hereof.
(m) "Subsidiary" means any corporation, limited liability company,
partnership or other entity of which a majority of the outstanding voting stock
or voting power is beneficially owned directly or indirectly by the Corporation.
For Incentive Stock Options, the term shall have the meaning set forth in
Section 424(f) of the Code.
3. LIMITS ON OPTIONS
(a) The total number of Shares with respect to which Options may be
granted under the Plan shall not exceed in the aggregate 500,000 Shares, subject
to adjustment as provided in Section 6 hereof. If any Option expires, terminates
or is terminated for any reason prior to its exercise in full, the Shares that
were subject to the unexercised portion of such Option shall be available for
future grants under the Plan.
(b) No Incentive Stock Option shall be granted to any Employee who at
the time such option is granted, owns capital stock of the Company possessing
more than 10% of the total combined voting power or value of all classes of
capital stock of the Company or any Subsidiary, determined in accordance with
the provisions of Section 422(b)(6) and 424(d) of the Code, unless the option
price at the time such Incentive Stock Option is granted is at least 110 percent
(110%) of the Fair Market Value of the Shares subject to the Incentive Stock
Option and such Incentive Stock Option is not exercisable by its terms after the
expiration of five (5) years from the date of grant.
(c) An Incentive Stock Option shall be granted hereunder only to the
extent that the aggregate Fair Market Value (determined at the time the
Incentive Stock Option is granted) of the Shares with respect to which such
Incentive Stock Option and any other "incentive stock option" (within the
meaning of Section 422 of the Code) are exercisable
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for the first time by any Optionee during any calendar year (under the Plan and
all other plans of the Optionee's employer corporation and its parent and
subsidiary corporations within the meaning of Section 422(d) of the Code) does
not exceed $100,000. This limitation shall be applied by taking Incentive Stock
Options and any such other "incentive stock options" into account in the order
in which such Incentive Stock Options and any such other "incentive stock
options" were granted.
(d) No Optionee shall, in any calendar year, be granted Options to
purchase more than 100,000 Shares. Options granted to the Optionee and cancelled
during the same calendar year shall be counted against such maximum number of
Shares. In the event that the number of Options which may be granted is adjusted
as provided in the Plan, the above limit shall automatically be adjusted in the
same ratio.
4. GRANTING OF OPTIONS
The Committee is authorized to grant Options to selected Employees pursuant to
the Plan beginning on the Effective Date. Subject to the provisions of the Plan,
the Committee shall have exclusive authority to select the Employees to whom
Options will be awarded under the Plan, to determine the number of Shares to be
included in such Options, and to determine such other terms and conditions of
Options, including terms and conditions which may be necessary to qualify
Incentive Stock Options as "incentive stock options" under Section 422 of the
Code. The date on which the Committee approves the grant of an Option shall be
considered the date on which such Option is granted, unless the Committee
provides for a specific date of grant which is subsequent to the date of such
approval.
5. TERMS OF STOCK OPTIONS
Subject to Section 3 hereof, the terms of Options granted under this Plan shall
be as follows:
(a) The exercise price of each Share subject to an Option shall be
fixed by the Committee. Notwithstanding the prior sentence, the option exercise
price of an Incentive Stock Option shall be fixed by the Committee but shall in
no event be less than 100% of the Fair Market Value of the Shares subject to
such Option.
(b) Options shall not be assignable or transferable by the Optionee
other than by will or by the laws of descent and distribution except that the
Optionee may, with the consent of the Committee, transfer without consideration
Options that do not constitute Incentive Stock Options to the Optionee's spouse,
children or grandchildren (or to one or more trusts for the benefit of any such
family members or to one or more partnerships in which any such family members
are the only partners).
(c) Each Option shall expire and all rights thereunder shall end at the
expiration of such period (which shall not be more than ten (10) years) after
the date on which it was granted as shall be fixed by the Committee, subject in
all cases to earlier expiration as provided in subsections (d) and (e) of this
Section 5.
(d) During the life of an Optionee, an Option shall be exercisable only
by such Optionee (or Optionee's permitted assignee in the case of Options that
do not constitute Incentive Stock Options) and only prior to the end of one (1)
month after the termination of the Optionee's employment with the Company or a
Subsidiary, other than by
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reason of the Optionee's death, permanent disability or retirement with the
consent of the Company or a Subsidiary as provided in subsection (e) of this
Section 5, but only if and to the extent the Option was exercisable immediately
prior to such termination, and subject to the provisions of subsection (c) of
this Section 5. If the Optionee's employment is terminated for cause, or the
Optionee terminates his employment with the Company, all Options granted to date
by the Company to the Optionee (including any Options that have become
exercisable) shall terminate immediately on the date of termination of
employment. Cause shall have the meaning set forth in any employment agreement
then in effect between the Optionee and the Company or any of its Subsidiaries,
or if the Optionee does not have any employment agreement, cause shall mean (i)
if the Optionee engages in conduct which has caused, or is reasonably likely to
cause, demonstrable and serious injury to the Company, or (ii) if the Optionee
is convicted of a felony, as evidenced by a binding and final judgment, order or
decree of a court of competent jurisdiction, which, in the opinion of the Board,
substantially impairs the Optionee's ability to perform his or her duties to the
Company.
(e) If an Optionee: (i) dies while employed by the Company or a
Subsidiary or within the period when an Option could have otherwise been
exercised by the Optionee; (ii) terminates employment with, or has his
employment terminated by, the Company or a Subsidiary by reason of the
"permanent and total disability" (within the meaning of Section 22(e)(3) of the
Code) of such Optionee; or (iii) terminates employment with the Company or a
Subsidiary as a result of such Optionee's retirement, provided that the Company
or such Subsidiary has consented in writing to such Optionee's retirement, then,
in each such case, such Optionee, or the duly authorized representatives of such
Optionee (or Optionee's permitted assignee in the case of Options that do not
constitute Incentive Stock Options), shall have the right, at any time within
three (3) months after the death, disability or retirement of the Optionee, as
the case may be, and prior to the termination of the Option pursuant to
subsection (c) of this Section 5, to exercise any Option to the extent such
Option was exercisable by the Optionee immediately prior to such Optionee's
death, disability or retirement. In the discretion of the Committee, the
three-month period referenced in the immediately preceding sentence may be
extended for a period of up to one year.
(f) Subject to the foregoing terms and to such additional terms
regarding the exercise of an Option as the Committee may fix at the time of
grant, an Option may be exercised in whole at one time or in part from time to
time.
(g) Options granted pursuant to the Plan shall be evidenced by an
agreement in writing setting forth the material terms and conditions of the
grant, including, but not limited to, the number of Shares subject to options.
Option agreements covering Options need not contain similar provisions;
provided, however, that all such option agreements shall comply with the terms
of the Plan.
(h) The Committee is authorized to modify, amend or waive any
conditions or other restrictions with respect to Options, including conditions
regarding the exercise of Options.
6. EFFECT OF CHANGES IN CAPITALIZATION
(a) If the number of outstanding Shares is increased or
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decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company by reason of any recapitalization,
reclassification, stock split, combination of shares, exchange of shares, stock
dividend or other distribution payable in capital stock, or other increase or
decrease in such shares effected, in each case without receipt of consideration
by the Company, a proportionate and appropriate adjustment shall be made by the
Committee in (i) the aggregate number of Shares subject to the Plan, (ii) the
maximum number of Shares for which Options may be granted to any Employee during
any calendar year, and (iii) the number and kind of shares for which Options are
outstanding, so that the proportionate interest of the Optionee immediately
following such event shall, to the extent practicable, be the same as
immediately prior to such event. Any such adjustment in outstanding Options
shall not change the aggregate option price payable with respect to Shares
subject to the unexercised portion of the Options outstanding but shall include
a corresponding proportionate adjustment in the option price per Share.
(b) Subject to Section 6.(c) hereof, if the Company shall be the
surviving corporation in any reorganization, merger, share exchange or
consolidation of the Company with one or more other corporations or other
entities, any Option theretofore granted shall pertain to and apply to the
securities to which a holder of the number of Shares subject to such Option
would have been entitled immediately following such reorganization, merger,
share exchange or consolidation, with a corresponding proportionate adjustment
of the option price per Share so that the aggregate option price thereafter
shall be the same as the aggregate option price of the Shares remaining subject
to the Option immediately prior to such reorganization, merger, share exchange
or consolidation.
(c) In the event of: (i) the adoption of a plan of reorganization,
merger, share exchange or consolidation of the Company with one or more other
corporations or other entities as a result of which the holders of the Shares as
a group would receive less than fifty percent (50%) of the voting power of the
capital stock or other interests of the surviving or resulting corporation or
entity; (ii) the adoption of a plan of liquidation or the approval of the
dissolution of the Company; (iii) the approval by the Board of an agreement
providing for the sale or transfer (other than as a security for obligations of
the Company or any Subsidiary) of substantially all of the assets of the
Company; or (iv) the acquisition of more than twenty percent (20%) of the
outstanding Shares by any person within the meaning of Rule 13(d)(3) under the
Securities Exchange Act of 1934, as amended, if such acquisition is not preceded
by a prior expression of approval by the Board, then, in each such case, any
Option granted hereunder shall become immediately exercisable in full, subject
to any appropriate adjustments in the number of Shares subject to such Option
and the option price, regardless of any provision contained in the Plan or any
stock option agreement with respect thereto limiting the exercisability of the
Option for any length of time. Notwithstanding the foregoing, if a successor
corporation or other entity as contemplated in clause (i) or (iii) of the
preceding sentence agrees to assume the outstanding Options or to substitute
substantially equivalent options, then the outstanding Options issued hereunder
shall not be immediately exercisable, but shall remain exercisable in accordance
with the terms of the Plan and the applicable stock option agreements.
(d) Adjustments under this Section 6 relating to Shares or securities
of the Company shall be made by the Committee, whose determination in that
respect shall be final and conclusive. Options
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subject to grant or previously granted under the Plan at the time of any event
described in this Section 6 shall be subject to only such adjustments as shall
be necessary to maintain the proportionate interest of the options and preserve,
without exceeding, the value of such options. No fractional Shares or units of
other securities shall be issued pursuant to any such adjustment, and any
fractions resulting from any such adjustment shall be eliminated in each case by
rounding upward to the nearest whole Share or unit.
(e) The grant of an Option pursuant to the Plan shall not affect or
limit in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge, consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
7. DELIVERY AND PAYMENT FOR SHARES; REPLACEMENT OPTIONS
(a) No Shares shall be delivered upon the exercise of an Option until
the option price for the Shares acquired has been paid in full. No Shares shall
be issued or transferred under the Plan unless and until all legal requirements
applicable to the issuance or transfer of such Shares have been complied with to
the satisfaction of the Committee and adequate provision has been made by the
Optionee for satisfying any applicable federal, state or local income or other
taxes incurred by reason of the exercise of the Option. Any Shares issued by the
Company to an Optionee upon exercise of an Option may be made only in strict
compliance with and in accordance with applicable state and federal securities
laws.
(b) Payment of the option price for the Shares purchased pursuant to
the exercise of an Option and of any applicable withholding taxes shall be made,
as determined by the Committee and set forth in the option agreement pertaining
to such Option: (i) in cash or by check payable to the order of the Company;
(ii) through the tender to the Company of Shares, which Shares shall be valued,
for purposes of determining the extent to which the option price has been paid
thereby, at their Fair Market Value on the date of exercise; or (iii) by a
combination of the methods described in (a) and (b) hereof; provided, however,
that the Committee may in its discretion impose and set forth in the option
agreement pertaining to an Option such limitations or prohibitions on the use of
Shares to exercise Options as it deems appropriate. The Committee also may
authorize payment in accordance with a cashless exercise program under which, if
so instructed by the Optionee, Shares may be issued directly to the Optionee's
broker upon receipt of the option price in cash from the broker.
(c) To the extent that the payment of the exercise price for the Shares
purchased pursuant to the exercise of an Option is made with Shares as provided
in Section 7.(b) hereof, then, at the discretion of the Committee, the Optionee
may be granted a replacement Option under the Plan to purchase a number of
Shares equal to the number of Shares tendered as permitted in Section 7.(b)
hereof, with an exercise price per Share equal to the Fair Market Value on the
date of grant of such replacement Option and with a term extending to the
expiration date of the original Option.
8. NO CONTINUATION OF EMPLOYMENT AND DISCLAIMER OF RIGHTS
No provision in the Plan or in any Option granted or option agreement
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entered into pursuant to the Plan shall be construed to confer upon any
individual the right to remain a director or in the employ of either the Company
or any Subsidiary, or to interfere in any way with the right and authority of
the Company or any Subsidiary either to increase or decrease the compensation of
any individual at any time, or to terminate any employment or other relationship
between any individual and the Company or any Subsidiary. The Plan shall in no
way be interpreted to require the Company to transfer any amounts to a third
party trustee or otherwise hold any amounts in trust or escrow for payment to
any Optionee or beneficiary under the terms of the Plan. An Optionee shall have
none of the rights of a shareholder of the Company until and to the extent all
or some of the Shares covered by an Option are fully paid and issued to such
Optionee.
9. ADMINISTRATION
(a) Subject to the provisions of subsection (b) of this Section 9, the
Plan shall be administered by the Committee which shall interpret the Plan and
make all other determinations necessary or advisable for its administration,
including such rules and regulations and procedures as it deems appropriate. The
Committee shall consist of not fewer than two members of the Board each of whom
shall qualify (at the time of appointment to the Committee and during all
periods of service on the Committee) in all respects as a "non-employee
director" as defined in Rule 16b-3 and as an "outside director" as defined in
Section 162(m) of the Code and regulations thereunder. The deduction limits of
Section 162(m) of the Code and the regulations thereunder do not apply to the
Company until such time, if any, as any class of the Company's common equity
securities is registered under Section 12 of the Securities and Exchange Act of
1934, as amended, or the Company otherwise meets the definition of a "publicly
held corporation" under Treasury Regulation 1.162-27(c) or any successor
provision. Upon becoming a publicly held corporation, the deduction limits of
Section 162(m) of the Code and the regulations thereunder shall not apply to
compensation payable under this Plan until the expiration of the reliance period
described in Treasury Regulation 1.162-27(f) or any successor regulation.
Subject to the provisions of subsection (b) of this Section 9, in the event of a
disagreement as to the interpretation of the Plan or any amendment hereto or any
rule, regulation or procedure hereunder or as to any right or obligation arising
from or related to the Plan, the decision of the Committee shall be final and
binding upon all persons in interest, including the Company, the Optionee and
the Company's shareholders.
(b) Notwithstanding any provision of the Plan to the contrary, any
determination or interpretation to be made by the Committee with regard to any
question arising under the Plan or any option agreement entered into hereunder
may be made by the Board (excluding any Optionee whose Options or the grant to
whom is at issue) and shall be final and binding upon all persons in interest,
including the Company, the Optionee and the Company's shareholders.
(c) No member of the Committee or the Board shall be liable for any
action taken or decision made, or any failure to take any action, in good faith
with respect to the Plan or any Option granted or option agreement entered into
hereunder.
10. NO OBLIGATION TO RESERVE OR RETAIN SHARES
The Board adopted, as of the Effective Date, a resolution initially reserving
authorized but unissued Shares for the Plan. The Company will be under no
further obligation to reserve, or to retain in its treasury, any particular
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number of Shares in connection with its obligations hereunder.
11. AMENDMENT OF PLAN
The Board, without further action by the shareholders, may amend this Plan from
time to time as it deems desirable and shall make any amendments which may be
required so that Options intended to be Incentive Stock Options shall at all
times continue to be Incentive Stock Options for purpose of the Code; provided,
however, that the Board or Committee may condition any amendment or modification
on the approval of stockholders of the Company if such approval is necessary or
deemed advisable with respect to tax, securities or other applicable laws,
policies or regulations.
12. TERMINATION OF PLAN
This Plan shall terminate ten (10) years from the Effective Date. The Board may,
in its discretion, suspend or terminate the Plan at any time prior to such date,
but such termination or suspension shall not adversely affect any right or
obligation with respect to any outstanding Option.
13. EFFECTIVE DATE
The Plan shall become effective on the Effective Date and Options hereunder may
be granted at any time on or after that date. If the shareholders of the Company
fail to approve the Plan prior to, or within one year after, the Effective Date,
any Incentive Stock Option granted hereunder shall be automatically converted to
non-qualified stock options without any further act.
14. COMPLIANCE WITH LAW
Notwithstading the foregoing, for so long as the Company is a regulated business
development company under the 1940 Act: (i) the Plan shall be implemented in
accordance with the provisions of the 1940 Act and no grants may be made in
violation of the provisions of the 1940 Act, (ii) the Plan shall not be
effective as to any grant that is prohibited under the 1940 Act without
Securities and Exchange Commission (the "Commission") relief unless or until the
Commission, upon application by the Company, shall issue an order granting
relief to allow the Company to make such grant pursuant to the Plan, and (iii)
any grant made in violation of the 1940 Act will be null and void.
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