EXHIBIT 10.6
LUMINEX CORPORATION
2001 BROAD-BASED STOCK OPTION PLAN
ARTICLE 1. ESTABLISHMENT AND PURPOSE
1.1 ESTABLISHMENT. Luminex Corporation, a Delaware corporation, hereby
establishes the Luminex Corporation 2001 Broad-Based Stock Option Plan, as set
forth in this document.
1.2 PURPOSE. The purposes of the Plan are to attract able persons who
are neither Directors nor Officers to enter the employ of the Company, to
encourage Employees who are neither Directors nor Officers to remain in the
employ of the Company and to provide motivation to such Employees to put forth
maximum efforts toward the continued growth, profitability and success of the
Company, by providing incentives to such persons through the ownership and
performance of the Common Stock of the Company. A further purpose of the Plan is
to provide a means through which the Company may attract able persons to become
consultants and independent contractors of the Company, provided such persons
are neither Directors nor Officers, and to provide such individuals with
incentive and reward opportunities. Toward these objectives, Options may be
granted under the Plan to Employees and Consultants on the terms and subject to
the conditions set forth in the Plan.
1.3 EFFECTIVENESS. The Plan shall become effective as of February 22,
2001, the date of its adoption by the Board.
ARTICLE 2. DEFINITIONS
2.1 AFFILIATE. "Affiliate" means a "parent corporation" or a "subsidiary
corporation" of the Company, as those terms are defined in Section 424(e) and
(f) of the Code.
2.2 BOARD. "Board" means the Board of Directors of the Company.
2.3 CODE. "Code" means the Internal Revenue Code of 1986, as amended
from time to time, including regulations thereunder and successor provisions and
regulations thereto.
2.4 COMMITTEE. "Committee" means such Committee, if any, as may be
designated by the Board to administer the Plan. The members of the Committee
shall be appointed from time to time by, and shall serve at the discretion of,
the Board and shall be comprised of any combination of Directors and Officers at
the level of executive vice president or higher as the Board, in its sole
discretion, shall designate.
2.5 COMMON STOCK. "Common Stock" means the Common Stock, par value $.001
per share, of the Company, or any stock or other securities of the Company
hereafter issued or issuable in substitution or exchange for the Common Stock.
2.6 "COMMON STOCK EQUIVALENTS" means, without duplication vis-a-vis the
outstanding Common Stock or other Common Stock Equivalents, any rights,
warrants, options, convertible securities or indebtedness, exchangeable
securities or indebtedness, or other rights, exercisable for or convertible or
exchangeable into, directly or indirectly, Common Stock or securities
convertible or exchangeable into Common Stock, whether at the time of issuance
or after the passage of time or upon the occurrence of a future event.
2.7 COMPANY. "Company" means Luminex Corporation, a Delaware
corporation, any successor thereto, and their respective Affiliates.
2.8 CONSULTANT. "Consultant" means any individual who performs services
for and is treated by the Company or an Affiliate in their sole discretion as an
independent contractor for employment tax purposes.
2.9 DIRECTOR. "Director" means a duly elected or appointed member of
the Board.
2.10 EFFECTIVE DATE. "Effective Date" means the date an Option is
determined to be effective by the Board upon the grant of such Option.
2.11 EMPLOYEE. "Employee" means any person that the Company (or any
Affiliate), in its sole and absolute discretion, treats as a common law
employee, and shall not include independent contractors, consultants or anyone
else the Company (or any Affiliate) does not deem to be a bona fide common law
employee. "Employee" also means any person to whom the Company (or any
Affiliate) has extended or intends to extend an offer of employment, even though
such employment has not actually commenced.
2.12 FAIR MARKET VALUE. "Fair Market Value" means the closing sale
price per share on the date in question (or if no reported sale on such date, on
the last preceding date on which any reported sale occurred) of the Common Stock
on the Nasdaq National Market or any national stock exchange on which the Common
Stock may be listed or, if the Common Stock is not traded publicly, the fair
market value per share as determined in good faith by the Board.
2.13 FULLY DILUTED COMMON SHARES OUTSTANDING. "Fully Diluted Common
Shares Outstanding" means all issued and outstanding shares of Common Stock plus
(without duplication) all shares of Common Stock which may be directly or
indirectly issuable, whether at the time of determination of the number of Fully
Diluted Common Shares Outstanding, or after the passage of time or upon the
occurrence of a future event, upon the exercise, exchange or conversion of any
outstanding Common Stock Equivalents.
2.14 NONQUALIFIED STOCK OPTION. "Nonqualified Stock Option" means a
stock option that is not intended to meet the requirements of Section 422(b) of
the Code.
2.15 OFFICER. "Officer" means the Company's president, principal
financial officer, principal accounting officer (or, if there is no such
accounting officer, the controller), any vice-president in charge of a principal
business unit, division or function (such as sales, administration or finance),
any other officer who performs a policy-making function, or any other person who
performs similar policy-making functions for the Company. For purposes of this
definition, "policy-making function" is not intended to include policy-making
functions that are not significant.
2.16 OPTION. "Option" means an option to purchase shares of Common
Stock granted to a Participant pursuant to the Plan.
2.17 OPTION AGREEMENT. "Option Agreement" means a written agreement
between the Company and a Participant that sets forth the terms, conditions,
restrictions and/or limitations applicable to an Option grant. An Option
Agreement may, in addition to being in the form of a bilateral agreement signed
by both the Company and a Participant, also be in the form of a certificate
approved by the Board and executed (by manual or facsimile signature) only by
the Company.
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2.18 PARTICIPANT. "Participant" means any Employee or Consultant to
whom an Option has been granted under the Plan.
2.19 PLAN. "Plan" means this Luminex Corporation 2001 Broad-Based Stock
Option Plan.
ARTICLE 3. PLAN ADMINISTRATION
3.1 PLAN ADMINISTRATION. The Plan shall be administered by the Board.
The Board may delegate responsibility for administration of the Plan to any
Committee appointed by and serving at the pleasure of the Board, under such
terms and conditions as the Board shall determine. Any reference to the Board in
the Plan (other than references to the Board in Section 5.3(d) and Article 9)
shall be construed as a reference to the Committee if the Board shall have
delegated responsibility for administration of the Plan to a Committee.
3.2 AUTHORITY OF ADMINISTRATOR. The Board shall have total and
exclusive responsibility to control, operate, manage and administer the Plan in
accordance with its terms. The Board shall have all the authority that may be
necessary or helpful to enable it to discharge its responsibilities with respect
to the Plan. Without limiting the generality of the preceding sentences, the
Board shall have the exclusive right to: (i) interpret the Plan and the Option
Agreements executed hereunder; (ii) determine eligibility for participation in
the Plan by specific individuals or classes of individuals; (iii) decide all
questions concerning eligibility for, and the amount of, Options granted under
the Plan; (iv) construe any ambiguous provision of the Plan or any Option
Agreement; (v) prescribe the form of the Option Agreements embodying Options
granted under the Plan; (vi) correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Option Agreement; (vii) issue
administrative guidelines as an aid to administering the Plan and make changes
in such guidelines as it from time to time deems proper; (viii) make regulations
for carrying out the Plan and make changes in such regulations as it from time
to time deems proper; (ix) to the extent permitted under or not inconsistent
with the Plan, grant waivers of Plan terms, conditions, restrictions and
limitations; (x) accelerate the exercise or vesting of an Option when such
action or actions would be in the best interests of the Company; (xi) grant
Options in replacement of Options previously granted under the Plan or any other
employee benefit plan of the Company; and (xii) take any and all other actions
it deems necessary or advisable for the proper operation or administration of
the Plan.
3.3 DISCRETIONARY AUTHORITY. The Board shall have full discretionary
authority in all matters related to the discharge of its responsibilities and
the exercise of its authority under the Plan, including, without limitation, its
construction of the terms of the Plan and its determination of eligibility for
participation in, and receipt of Option grants under, the Plan. The decisions of
the Board and its actions with respect to the Plan shall be final, conclusive
and binding on all persons having or claiming to have any right or interest in
or under the Plan, including Participants and their respective estates,
beneficiaries and legal representatives.
3.4 LIABILITY; INDEMNIFICATION. No member of the Board nor any person
to whom authority has been delegated, shall be personally liable for any action,
interpretation or determination made in good faith with respect to the Plan or
Options granted hereunder, and each member of the Board (or delegatee of the
Board) shall be fully indemnified and protected by the Company with respect to
any liability he or she may incur with respect to any such action,
interpretation or determination, to the fullest extent permitted by applicable
law.
ARTICLE 4. ELIGIBILITY
Employees and Consultants are eligible to participate in the Plan.
Notwithstanding anything to the contrary herein, Directors and Officers of the
Company shall not be eligible to participate in the Plan or to receive Option
grants hereunder. The Company's Chief Executive Officer shall recommend, from
time to time,
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Participants from those Employees and Consultants who, in the opinion of such
officer, can further the Plan purposes. Once a Participant is recommended for an
Option grant by the Chief Executive Officer, the Board shall determine the type
and size of Option grant to be made to the Participant and shall establish in
the related Option Agreement the terms, conditions, restrictions and/or
limitations applicable to the Option grant, in addition to those set forth in
the Plan and the administrative rules and regulations, if any, established by
the Board.
ARTICLE 5. SHARES SUBJECT TO THE PLAN
5.1 AVAILABLE SHARES. The maximum aggregate number of shares of Common
Stock that shall be available for grant of Options under the Plan shall be five
percent (5%) of the maximum number of Fully-Diluted Common Shares Outstanding
from time to time after the effectiveness of the Plan, subject to adjustment as
provided in Sections 5.2 and 5.3. Shares of Common Stock issued pursuant to
Options granted under the Plan may be shares of original issuance or treasury
shares or a combination of the foregoing, as the Board, in its discretion, shall
from time to time determine.
5.2 ADJUSTMENTS FOR RECAPITALIZATIONS AND REORGANIZATIONS.
(a) The shares with respect to which Options may be granted
under the Plan are shares of Common Stock as presently constituted, but
if, and whenever, prior to the expiration or exercise of an Option
theretofore granted, the Company shall effect a subdivision or
consolidation of shares of Common Stock or the payment of a stock
dividend on Common Stock without receipt of consideration by the
Company, the number of shares of Common Stock with respect to which
such Option may thereafter be exercised or satisfied, as applicable,
(i) in the event of an increase in the number of outstanding shares,
shall be proportionately increased, and the exercise price per share
shall be proportionately reduced, and (ii) in the event of a reduction
in the number of outstanding shares, shall be proportionately reduced,
and the exercise price per share shall be proportionately increased.
(b) If the Company recapitalizes or otherwise changes its
capital structure, thereafter upon any exercise of an Option
theretofore granted the Participant shall be entitled to purchase under
such Option, in lieu of the number of shares of Common Stock then
covered by such Option, the number and class of shares of stock or
other securities to which the Participant would have been entitled
pursuant to the terms of the recapitalization if, immediately prior to
such recapitalization, the Participant had been the holder of record of
the number of shares of Common Stock then covered by such Option.
(c) In the event of changes in the outstanding Common Stock by
reason of a Corporate Transaction (as hereinafter defined),
recapitalizations, reorganizations, mergers, consolidations,
combinations, separations (including a spin-off or other distribution
of stock or property), exchanges, or other relevant changes in
capitalization occurring after the date of grant of any Option and not
otherwise provided for by this Section 5.2, any outstanding Options and
any Option Agreements evidencing such Options shall be subject to
adjustment by the Board at its discretion as to the number, price and
kind of shares or other consideration subject to, and other terms of,
such Options to reflect such changes in the outstanding Common Stock.
(d) In the event of any changes in the outstanding Common
Stock provided for in this Section 5.2, the aggregate number of shares
available for grant of Options under the Plan may be equitably adjusted
by the Board, whose determination shall be conclusive.
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5.3 ADJUSTMENTS. The Board shall have full discretion to determine the
manner in which shares of Common Stock available for grant of Options under the
Plan are counted. Without limiting the discretion of the Board under this
Section 5.3, unless otherwise determined by the Board, the following rules shall
apply for the purpose of determining the number of shares of Common Stock
available for grant of Options under the Plan:
(a) OPTION GRANTS. The grant of Options shall reduce the
number of shares available for grant of Options under the Plan by the
number of shares subject to such Options.
(b) TERMINATION. If any Option referred to in paragraph (a)
above is canceled or forfeited, or terminates, expires or lapses, for
any reason, the shares then subject to such Option shall again be
available for grant of Options under the Plan.
(c) PAYMENT OF EXERCISE PRICE AND WITHHOLDING TAXES. If
previously acquired shares of Common Stock are used to pay the exercise
price of an Option, or shares of Common Stock that would be acquired
upon exercise of an Option are withheld to pay the exercise price of
such Option, the number of shares available for grant of Options under
the Plan shall be increased by the number of shares delivered or
withheld as payment of such exercise price. If previously acquired
shares of Common Stock are used to pay withholding taxes payable upon
exercise of an Option, or shares of Common Stock that would be acquired
upon exercise of an Option are withheld to pay withholding taxes
payable upon exercise of such Option, the number of shares available
for grant of Options under the Plan shall be increased by the number of
shares delivered or withheld as payment of such withholding taxes.
(d) SHARE REPURCHASES. To the extent authorized by the Board,
the number of shares available for grant of Options under the Plan
shall be increased by the number of shares of Common Stock that are
reacquired by the Company in the open market or in private transactions
any time after the effectiveness of the Plan; provided, however, that
the aggregate number of shares that may be added to the Plan under this
Section 5.3(d) shall not exceed two percent (2%) of the Fully Diluted
Common Shares Outstanding measured at the time of each such repurchase.
ARTICLE 6. TERMS AND CONDITIONS OF OPTIONS
6.1 GENERAL. All Options shall be subject to the terms, conditions,
restrictions and limitations of the Plan. The Board may, in its sole judgment,
subject any Option to such other terms, conditions, restrictions and/or
limitations (including, but not limited to, the time and conditions of exercise
or vesting of an Option and restrictions on transferability of any shares of
Common Stock issued or delivered pursuant to an Option), provided they are not
inconsistent with the terms of the Plan. Options need not be uniform and
multiple Option grants to the same Participant may be combined into one Option
Agreement. Any combination of Options may be granted at one time and on more
than one occasion to the same Participant.
6.2 NQSO'S ONLY. All Options granted under the Plan shall be
Nonqualified Stock Options.
6.3 TERMS AND CONDITIONS OF OPTIONS. An Option shall be exercisable in
whole or in such installments and at such times as may be determined by the
Board. The price at which a share of Common Stock may be purchased upon exercise
of an Option shall be determined by the Board, but such exercise price shall not
be less than 100% of the Fair Market Value per share of Common Stock on the
Effective Date of the Option's grant. Except as otherwise provided in Section
6.4, the term of each Option shall be as specified by the Board; provided,
however, that unless otherwise designated by the Board, no Options shall be
exercisable later than 10 years from the Effective Date of the Option's grant.
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6.4 EXERCISE OF OPTIONS. Subject to the terms and conditions of the
Plan, Options shall be exercised by the delivery of a written or electronic
notice of exercise to the Company, setting forth the number of shares of Common
Stock with respect to which the Option is to be exercised, accompanied by full
payment for such shares. The exercise price of an Option shall become
immediately due upon exercise of the Option and shall, subject to the provisions
of the documents evidencing the Option, be payable in cash or check made payable
to the Company, or as follows:
(i) in shares of Common Stock held for the requisite period of
time necessary to avoid a charge to the Company's earnings for
financial reporting purposes and valued at Fair Market Value on the
date of exercise at the discretion of the Board; or
(ii) to the extent the Option is exercised for shares of
Common Stock that are not subject to restrictions (other than
restrictions imposed under applicable federal and state securities
laws), through a special sale and remittance procedure pursuant to
which the optionee shall concurrently provide irrevocable instructions
(A) to a brokerage firm designated by the Company to effect the
immediate sale of the purchased shares and remit to the Company, out of
the sale proceeds available on the settlement date, sufficient funds to
cover the aggregate exercise price payable for the purchased shares
plus all applicable federal, state and local income and employment
taxes required to be withheld by the Company by reason of such exercise
and (B) to the Company to deliver the certificates for the purchased
shares directly to such brokerage firm in order to complete the sale.
In addition, any grant of an Option under the Plan may, at the
discretion of the Board, provide that payment of the exercise price of the
Option may also be made in whole or in part in the form of shares of Common
Stock that are subject to risk of forfeiture or restrictions on transfer. Unless
otherwise determined by the Board at the time of grant of such Option, whenever
the exercise price of such Option is paid in whole or in part by means of the
form of consideration specified in the immediately preceding sentence, the
shares of Common Stock received by the Participant upon the exercise of such
Option shall be subject to the same risk of forfeiture and restrictions on
transfer as those that applied to the consideration surrendered by the
Participant. However, the risk of forfeiture and restrictions on transfer shall
apply only to the same number of shares of Common Stock received by the
Participant upon exercise as applied to the forfeitable or restricted Common
Stock surrendered by the Participant in payment of the exercise price.
As soon as reasonably practicable after receipt of written or
electronic notification of exercise of an Option and full payment of the
exercise price and any required withholding taxes, the Company shall deliver to
the Participant, in the Participant's name, a stock certificate or certificates
in an appropriate amount based upon the number of shares of Common Stock
purchased under the Option.
6.5 TERMINATION OF SERVICE. Each Option Agreement embodying the grant
of an Option shall set forth the extent to which the Participant shall have the
right to exercise the Option following termination of the Participant's
employment or service with the Company. Such provisions shall be determined in
the sole discretion of the Board, need not be uniform among all Options granted
under the Plan and may reflect distinctions based on the reasons for termination
of employment or service. Subject to Section 5.2 and Article 7, in the event
that a Participant's Option Agreement embodying the grant of an Option does not
set forth such termination provisions, the following termination provisions
shall apply with respect to such Option.
(a) DEATH OR DISABILITY. If the employment or service of a
Participant shall terminate by reason of death or disability (with any
Participant's "disability" to be determined by the Board in its sole
discretion), outstanding Options held by the Participant may be
exercised, to the extent then
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vested, no more than one year from the date of such termination, unless
the Options, by their terms, expire earlier.
(b) OTHER TERMINATION. If the employment or service of a
Participant shall terminate for any reason other than the reasons set
forth in paragraph (a) above, whether on a voluntary or involuntary
basis, outstanding Options held by the Participant may be exercised, to
the extent then vested, no more than 60 days from the date of such
termination, unless the Options, by their terms, expire earlier. The
Board shall have the sole and absolute discretion to determine the
precise point in time when a Participant's employment or service with
the Company shall have terminated or deemed to have been terminated.
(c) TERMINATION FOR CAUSE. Notwithstanding paragraphs (a) and
(b) above, if the employment or service of a Participant shall be
terminated by reason of such Participant's fraud, dishonesty or
performance of other acts detrimental to the Company, all outstanding
Options held by the Participant shall immediately be forfeited to the
Company and no additional exercise period shall be allowed, regardless
of the vested status of the Options.
ARTICLE 7. CORPORATE TRANSACTIONS
7.1 DEFINITION OF CORPORATE TRANSACTION. A "Corporate Transaction"
shall mean any of the following transactions with respect to which the Company
is a party:
(a) a merger or consolidation in which (i) the Company is not
the surviving entity or (ii) the Company survives only as a subsidiary
of an entity other than a previously wholly-owned subsidiary of the
Company;
(b) a tender offer or share exchange resulting in the transfer
of ownership of more than fifty percent (50%) of the total outstanding
voting power of the Company immediately after such transaction; or
(c) the sale, lease, transfer or other disposition of all or
substantially all of the assets of the Company (other than to a
wholly-owned subsidiary of the Company).
7.2 EFFECT ON OUTSTANDING OPTIONS. Notwithstanding anything to the
contrary contained herein, no later than 30 days after (i) the approval by the
stockholders of the Company of a Corporate Transaction of the type described in
Section 7.1(a) or (c) or (ii) the public announcement of a Corporate Transaction
of the type described in Section 7.1(b), the Board, acting in its sole
discretion without the consent or approval of any Participant, may act to effect
one or more of the following alternatives, which may vary among individual
Participants and which may vary among Options held by any individual
Participant:
(a) accelerate the vesting of and the time at which Options
then outstanding may be exercised so that such Options may be exercised
in full (irrespective of whether such Options are fully exercisable
prior to the date of such Corporate Transaction) for a limited period
of time on or before a specified date fixed by the Board (which date
may be before or after the date of such Corporate Transaction), after
which specified date all unexercised Options and all rights of
Participants thereunder shall terminate;
(b) require the mandatory surrender to the Company by all or
selected Participants of some or all of the outstanding Options held by
such Participants (irrespective of whether such Options are fully
exercisable prior to the date of such Corporate Transaction) as of a
date specified by the
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Board (which date may be before or after the date of such Corporate
Transaction), in which event the Board shall thereupon cancel such
Options and the Company shall pay to the relevant Participants an
amount of cash per share equal to the excess, if any, of the following
amount, whichever is applicable:
(i) the per share price offered to stockholders of
the Company in a merger or consolidation transaction described
in Section 7.1(a), less the applicable exercise price payable
by such Participants pursuant to such Options;
(ii) the price per share offered to stockholders of
the Company in a tender offer or share exchange described in
Section 7.1(b), less the applicable exercise price payable by
such Participants pursuant to such Options;
(iii) if such Corporate Transaction occurs pursuant
to a type of transaction described in Section 7.1(c), the Fair
Market Value per share of Common Stock subject to such
Options, as determined by the Board as of the date determined
by the Board to be the date of such transaction, less the
applicable exercise price, if any, payable by such
Participants pursuant to such Options.
In the event that the consideration offered to stockholders of the
Company in any Corporate Transaction consists of anything other than
cash, the Board shall determine the fair cash equivalent of that
portion of the consideration offered which is other than cash.
(c) make such adjustments to Options then outstanding so that
such Options thereafter cover the number and class of shares of stock
or other securities or property (including, without limitation, cash)
to which the Participant would have been entitled pursuant to the terms
of the Corporate Transaction had the Participant been the holder of
record of the number of shares of Common Stock covered by such Option;
or
(d) in the event of a Corporate Transaction in which the
holders of the Company's Common Stock receive shares of stock in the
acquiring entity ("Acquiror Stock"), convert Options into options to
acquire shares of Acquiror Stock ("Substitute Options"). Each
Substitute Option shall be exercisable on substantially the same terms
and conditions contained in the applicable Option, and shall cover such
number of shares of Acquiror Stock and have such exercise price and
other terms as the Board shall, in its discretion, deem appropriate in
order to approximate with the Substitute Option an economic equivalent
to the applicable Option.
In the event of Corporate Transaction, the Board may, but shall not be required
to, take any such action set forth in Sections 7.3(a) through (d) above or shall
be permitted to allow any or all outstanding Options to remain so outstanding in
accordance with the terms and conditions of the related Option Agreement.
ARTICLE 8. AMENDMENT AND TERMINATION
The Board may at any time suspend, terminate, amend or modify the Plan,
in whole or in part. Upon termination of the Plan, the terms and provisions of
the Plan shall, notwithstanding such termination, continue to apply to Options
granted prior to such termination. No suspension, termination, amendment or
modification of the Plan shall adversely affect in any material way any Option
previously granted under the Plan, without the consent of the Participant
holding such Option.
Except as otherwise provided in Article 7, the Board may amend the
terms of any outstanding Option granted pursuant to this Plan, but any amendment
that would adversely affect the Participant's rights under
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an outstanding Option shall not be made without the written consent of the
Participant. The Board may, with a Participant's written consent, cancel any
outstanding Option or accept any outstanding Option in exchange for a new
Option.
ARTICLE 9. MISCELLANEOUS
9.1 OPTION AGREEMENTS. After the Board grants an Option under the Plan
to a Participant, the Company and the Participant shall enter into an Option
Agreement setting forth the terms, conditions, restrictions and/or limitations
applicable to the Option and such other matters as the Board may determine to be
appropriate. The terms and provisions of the respective Option Agreements need
not be identical. An Option Agreement may, in addition to being in the form of a
bilateral agreement signed by both the Company and a Participant, also be in the
form of a certificate approved by the Board and executed (by manual or facsimile
signature) only by the Company. All Option Agreements shall be subject to the
provisions of the Plan. In the event of any conflict between an Option Agreement
and the Plan, the terms of the Plan shall govern.
9.2 ADDITIONAL CONDITIONS. Notwithstanding anything in the Plan to the
contrary: (i) the Company may, if it shall determine it necessary or desirable
for any reason, at the time of grant of any Option or the issuance of any shares
of Common Stock pursuant to any Option, require the recipient of the Option or
such shares of Common Stock, as a condition to the receipt thereof, to deliver
to the Company a written representation of present intention to acquire the
Option or such shares of Common Stock for his or her own account for investment
and not for distribution; and (ii) if at any time the Company further
determines, in its sole discretion, that the listing, registration or
qualification (or any updating of any such document) of any Option or shares of
Common Stock issuable pursuant thereto is necessary on any securities exchange
or market or under any federal or state securities or blue sky laws, or that the
consent or approval of any governmental or regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of any Option, the
issuance of shares of Common Stock pursuant thereto or the removal of any
restrictions imposed on such shares, such Option shall not be awarded or such
shares of Common Stock shall not be issued or such restrictions shall not be
removed, as the case may be, in whole or in part, unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Company.
9.3 LEGENDS ON STOCK CERTIFICATES. Unless the shares of Common Stock
issued pursuant to an Option shall have been registered under the Securities Act
of 1933, as amended, each certificate representing such shares shall have
conspicuously stamped, printed or typed on the face or back thereof the
following legend:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS AND
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS SUCH SHARES
ARE FIRST REGISTERED THEREUNDER OR UNLESS THE COMPANY RECEIVES
A WRITTEN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL ARE
ACCEPTABLE TO THE COMPANY, TO THE EFFECT THAT REGISTRATION
THEREUNDER IS NOT REQUIRED.
9.4 NONASSIGNABILITY. Except as otherwise provided in the Option
Agreement, no Option granted under the Plan may be sold, transferred, pledged,
exchanged, hypothecated or otherwise disposed of, other than by will or pursuant
to the applicable laws of descent and distribution. Further, no such Option
shall be subject
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to execution, attachment or similar process. Any attempted sale, transfer,
pledge, exchange, hypothecation or other disposition of an Option not
specifically permitted by the Plan or the Option Agreement shall be null and
void and without effect. All Options granted to a Participant under the Plan
shall be exercisable (i) during his or her lifetime only by such Participant or,
in the event of the Participant's legal incapacity, by his or her guardian or
legal representative, and (ii) after his or her lifetime only by such
Participant's duly appointed and acting executor or other legal representative.
9.5 WITHHOLDING TAXES. The Company shall be entitled to deduct from any
payment made under the Plan, regardless of the form of such payment, the amount
of all applicable income and employment taxes required by law to be withheld
with respect to such payment, may require the Participant to pay to the Company
such withholding taxes prior to and as a condition of the issuance or delivery
of any shares of Common Stock pursuant to Options granted under the Plan and
shall be entitled to deduct from any other compensation payable to the
Participant any withholding obligations with respect to Options granted under
the Plan. In accordance with any applicable administrative guidelines it
establishes, the Board may allow a Participant to pay the amount of taxes
required by law to be withheld from or with respect to an Option by (i)
withholding shares of Common Stock from any shares of Common Stock issuable upon
exercise of such Option or (ii) permitting the Participant to deliver to the
Company previously acquired shares of Common Stock held for the requisite period
of time necessary to avoid a charge to the Company's earnings for financial
reporting purposes, in each case having a Fair Market Value equal to the amount
of such required withholding taxes. No shares of Common Stock shall be issued
pursuant to any Option unless and until the applicable tax withholding
obligations have been satisfied.
9.6 NO FRACTIONAL SHARES. No fractional shares of Common Stock shall be
issued or delivered pursuant to the Plan or any Option granted hereunder, and no
payment or other adjustment shall be made in respect of any such fractional
share.
9.7 NOTICES. All notices required or permitted to be given or made
under the Plan or any Option Agreement shall be in writing and shall be deemed
to have been duly given or made if (i) delivered personally, (ii) transmitted by
first class registered or certified United States mail, postage prepaid, return
receipt requested, (iii) sent by prepaid overnight courier service or (iv) sent
by telecopy or facsimile transmission, answer back requested, to the person who
is to receive it at the address that such person has theretofore specified by
written notice delivered in accordance herewith. Such notices shall be effective
(i) if delivered personally or sent by courier service, upon actual receipt by
the intended recipient, (ii) if mailed, upon the earlier of five days after
deposit in the mail or the date of delivery as shown by the return receipt
therefor or (iii) if sent by telecopy or facsimile transmission, when the answer
back is received. The Company or a Participant may change, at any time and from
time to time, by written notice to the other, the address that it or such
Participant had theretofore specified for receiving notices. Until such address
is changed in accordance herewith, notices hereunder or under an Option
Agreement shall be delivered or sent (i) to a Participant at his or her address
as set forth in the records of the Company or (ii) to the Company at the
principal executive offices of the Company clearly marked "Attention: Option
Administrator".
9.8 BINDING EFFECT. The obligations of the Company under the Plan shall
be binding upon any successor corporation or organization resulting from the
merger, consolidation or other reorganization of the Company, or upon any
successor corporation or organization succeeding to all or substantially all of
the assets and business of the Company. The terms and conditions of the Plan
shall be binding upon each Participant and his or her heirs, legatees,
distributees and legal representatives.
9.9 SEVERABILITY. If any provision of the Plan or any Option Agreement
is held to be illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining provisions of the Plan or such agreement, as the
case may be, but such provision shall be fully severable and the Plan or such
agreement, as
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the case may be, shall be construed and enforced as if the illegal or invalid
provision had never been included herein or therein.
9.10 NO RESTRICTION OF CORPORATE ACTION. Nothing contained in the Plan
shall be construed to prevent the Company or any Affiliate from taking any
corporate action (including any corporate action to suspend, terminate, amend or
modify the Plan) that is deemed by the Company or such Affiliate to be
appropriate or in its best interest, whether or not such action would have an
adverse effect on the Plan or any Options granted or to be granted under the
Plan. No Participant or other person shall have any claim against the Company or
any Affiliate as a result of such action.
9.11 GOVERNING LAW. The Plan shall be governed by and construed in
accordance with the internal laws (and not the principles relating to conflicts
of laws) of the State of Delaware, except as superseded by applicable federal
law.
9.12 NO RIGHT, TITLE OR INTEREST IN COMPANY ASSETS. No Participant
shall have any rights as a stockholder of the Company as a result of
participation in the Plan until the date of issuance of a stock certificate
representing shares of Common Stock in his or her name. To the extent any person
acquires a right to receive payments from the Company under the Plan, such
rights shall be no greater than the rights of an unsecured creditor of the
Company, and such person shall not have any rights in or against any specific
assets of the Company.
9.13 RISK OF PARTICIPATION. Nothing contained in the Plan shall be
construed either as a guarantee by the Company or its Affiliates, or their
respective stockholders, directors, officers or employees, of the value of any
assets of the Plan or as an agreement by the Company or its Affiliates, or their
respective stockholders, directors, officers or employees, to indemnify anyone
for any losses, damages, costs or expenses resulting from participation in the
Plan.
9.14 NO GUARANTEE OF TAX CONSEQUENCES. No person connected with the
Plan in any capacity, including, but not limited to, the Company and its
Affiliates and their respective directors, officers, agents and employees, makes
any representation, commitment or guarantee that any tax treatment, including,
but not limited to, federal, state and local income, estate and gift tax
treatment, will be applicable with respect to any Options granted under the Plan
or that such tax treatment will apply to or be available to a Participant on
account of participation in the Plan.
9.15 OTHER BENEFITS. No Option granted under the Plan shall be
considered compensation for purposes of computing benefits or contributions
under any retirement plan of the Company or any Affiliate, nor affect any
benefits or compensation under any other benefit or compensation plan of the
Company or any Affiliate now or subsequently in effect.
9.16 CONTINUED EMPLOYMENT OR SERVICE. Nothing contained in the Plan or
in any Option Agreement shall confer upon any Participant the right to continue
in the employ or service of the Company, or interfere in any way with the rights
of the Company to terminate his or her employment or service at any time, with
or without cause.
9.17 MISCELLANEOUS. Headings are given to the articles and sections of
the Plan solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction of the Plan or
any provisions hereof. The use of the masculine gender shall also include within
its meaning the feminine. Wherever the context of the Plan dictates, the use of
the singular shall also include within its meaning the plural, and vice versa.
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IN WITNESS WHEREOF, this Plan has been executed as of February 22,
2001.
LUMINEX CORPORATION
By: /s/ Mark Chandler
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Mark Chandler, Chief Executive Officer
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