EXHIBIT 10.36
1995 STOCK PLAN OF NEXGEN, INC.
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(As Amended October 2, 1996)
TABLE OF CONTENTS
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Page
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SECTION 1. ESTABLISHMENT AND PURPOSE 1
SECTION 2. DEFINITIONS 1
SECTION 3. ADMINISTRATION 4
(a) Committee Membership 4
(b) Committee Procedures 5
(c) Committee Responsibilities 5
SECTION 4. ELIGIBILITY 6
(a) General Rules 6
(b) Outside Directors 6
(c) Ten-Percent Stockholders 8
(d) Attribution Rules 8
(e) Outstanding Stock 8
SECTION 5. STOCK SUBJECT TO PLAN 8
(a) Basic Limitation 8
(b) Additional Shares 9
SECTION 6. TERMS AND CONDITIONS OF AWARDS OR SALES 9
(a) Stock Purchase Agreement 9
(b) Duration of Offers and Nontransferability of Rights 9
(c) Purchase Price 9
(d) Withholding Taxes 9
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(e) Restrictions on Transfer of Shares 10
SECTION 7. TERMS AND CONDITIONS OF OPTIONS 10
(a) Stock Option Agreement 10
(b) Number of Shares 10
(c) Exercise Price 10
(d) Withholding Taxes 10
(e) Exercisability 11
(f) Term 11
(g) Nontransferability 11
(h) No Rights as a Stockholder 11
(i) Modification, Extension and Renewal of Options 11
(j) Restrictions on Transfer of Shares 12
SECTION 8. PAYMENT FOR SHARES 12
(a) General Rule 12
(b) Surrender of Stock 12
(c) Exercise/Sale 12
(d) Exercise/Pledge 13
(e) Services Rendered 13
(f) Promissory Note 13
SECTION 9. ADJUSTMENT OF SHARES
(a) General 13
(b) Reorganizations 14
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(c) Reservation of Rights 14
SECTION 10. SECURITIES LAWS 14
SECTION 11. NO RETENTION RIGHTS 14
SECTION 12. DURATION AND AMENDMENTS 15
(a) Term of the Plan 15
(b) Right to Amend or Terminate the Plan 15
(c) Effect of Amendment or Termination 15
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1995 STOCK PLAN OF NEXGEN, INC.
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SECTION 1. ESTABLISHMENT AND PURPOSE.
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The Plan was originally adopted by the Board of Directors of NexGen,
Inc. (The "NexGen Board") on March 12, 1995, and thereafter amended by the
NexGen Board on May 10, 1995 and December 8, 1995. Effective upon the merger of
NexGen, Inc. with and into Advanced Micro Devices, Inc. ("AMD") on January 17,
1996, AMD assumed the Plan as the successor to NexGen. The AMD Board of
Directors amended the Plan on February 7, 1996 and April 25, 1996. The purpose
of the Plan is to offer selected employees, consultants and promotional
representatives an opportunity to acquire a proprietary interest in the success
of the Company, or to increase such interest, by purchasing shares of the
Company's Common Stock. The Plan provides both for the direct award or sale of
Shares and for the grant of Options to purchase shares. Options granted under
the Plan may include Nonstatutory Options as well as ISOs intended to qualify
under section 422 of the Code.
The Plan is intended to comply in all respects with Rule 16b-3 (or its
successor) under the Exchange Act and shall be construed accordingly.
SECTION 2. DEFINITIONS.
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(a) "Board of Directors" shall mean the Board of Directors of the
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Company, as constituted from time to time.
(b) "Change of Control" shall mean the occurrence of any of the
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following events or as otherwise defined in an Optionee or Offeree's employment
agreement:
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the beneficial owner (as
defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of
securities of the Company (not including in the securities
beneficially owned by such person any securities acquired directly
from the Company or any of its affiliates) representing more than 20%
of either the then outstanding shares of the Common Stock of the
Company or the combined voting power of the Company's then outstanding
voting securities;
(ii) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors and
any new director (other than a director designated by a person who has
entered into an agreement or arrangement with the Company to effect a
transaction described in clause (i) or (iii) of this sentence) whose
appointment, election, or nomination for election by the Company's
stockholders, was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the
beginning of the period or whose appointment, election, or nomination
for election was previously
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so approved, cease for any reason to constitute a majority of the
Board of Directors;
(iii) there is consummated a merger or consolidation of the
Company or a Subsidiary thereof with or into any other corporation,
other than a merger or consolidation which would result in the holders
of the voting securities of the Company outstanding immediately prior
thereto holding securities which represent immediately after such
merger or consolidation more than 50% of the combined voting power of
the voting securities of either the Company or the other entity which
survives such merger or consolidation or the parent of the entity
which survives such merger or consolidation; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or there is consummated the sale or
disposition by the Company of all or substantially all of the
Company's assets, other than a sale or disposition by the Company of
all or substantially all of the Company's assets to an entity, at
least 80% of the combined voting power of the voting securities of
which are owned by persons in substantially the same proportions as
their ownership of the Company immediately prior to such sale.
Notwithstanding the foregoing (i) no "Change of Control" shall be
deemed to have occurred if there is consummated any transaction or series of
integrated transactions immediately following which the record holders of the
Common Stock of the Company immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity which owns all or substantially all of the assets of the Company
immediately prior to such transaction or series of transactions and (ii) "Change
of Control" shall exclude the acquisition of securities representing more than
20% of either the then outstanding shares of the Common Stock of the Company or
the combined voting power of the Company's then outstanding voting securities by
the Company or any of its wholly owned subsidiaries, or any trustee or other
fiduciary holding securities of the Company under an employee benefit plan now
or hereafter established by the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
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amended.
(d) "Committee" shall mean a committee of the Board of Directors,
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as described in Section 3(a).
(e) "Company" shall mean NexGen, Inc., a Delaware corporation, its
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parent corporation, or its successor.
(f) "Employee" shall mean:
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(i) Any individual who is a common-law employee of the Company or
of a Subsidiary;
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(ii) An Outside Director; and
(iii) An independent contractor who performs services for the
Company or a Subsidiary and who is it not a member of the Board
of Directors.
Service as an Outsider Director or independent contractor shall be considered
employment for all purposes of the Plan, except as provided in Section 4(a).
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934,
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as amended.
(h) "Exercise Price" shall mean the amount for which one Share
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may be purchased upon exercise of an Option, as specified by the Committee in
the applicable Stock Option Agreement.
(i) "Fair Market Value" shall mean the market price of Stock,
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determined by the Committee as follows:
(i) If Stock was traded over-the-counter on the date in question
but was not traded on the Nasdaq system or the Nasdaq National
Market System, then the Fair Market Value shall be equal to the mean
between the last reported representative bid and asked prices quoted
for such date by the principal automated inter-dealer quotation
system on which Stock is quoted or, if Stock is not quoted on any
such system, by the "Pink Sheets" published by the National
Quotation Bureau, Inc.;
(ii) If Stock was traded over-the-counter on the date in question
and was traded on the Nasdaq system or the Nasdaq National Market
System, then the Fair Market Value shall be equal to the last-
transaction price quoted for such date by the Nasdaq system or the
Nasdaq National Market System;
(iii) If Stock was traded on a stock exchange on the date in
question, then the Fair Market Value shall be equal to the closing
price reported by the applicable composite-transactions report for
such date; and
(iv) If none of the foregoing provisions is applicable, then the
Fair Market Value shall be determined by the Committee in good faith
on such basis as it deems appropriate.
In all cases, the determination of Fair Market Value by the Committee shall be
conclusive and binding on all persons.
(j) "IPO" means the initial offering of stock to the public
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pursuant to a registration statement filed with the Securities and Exchange
Commission on Form S-1.
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(k) "ISO" shall mean an employee incentive stock option described
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in section 422(b) of the Code.
(l) "Nonstatutory Option" shall mean a stock option not described
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in sections 422(b) or 423(b) of the Code.
(m) "Offeree" shall mean an individual to whom the Committee has
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offered the right to acquire Shares under the Plan (other than upon exercise of
an Option).
(n) "Option" shall mean an ISO or Nonstatutory Option granted under
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the Plan and entitling the holder to purchase Shares.
(o) "Optionee" shall mean an individual who holds an Option.
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(p) "Outside Director" shall mean a member of the Board of
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Directors who is not a common-law employee of the Company or of a Subsidiary.
(q) "Plan" shall mean this 1995 Stock Plan of NexGen, Inc., as it
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may be amended from time to time.
(r) "Purchase Price" shall mean the consideration for which one
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Share may be acquired under the Plan (other than upon exercise of an Option), as
specified by the Committee.
(s) "Service" shall mean service as an Employee.
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(t) "Share" shall mean one share of Stock, as adjusted in
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accordance with Section 9 (if applicable).
(u) "Stock" shall mean the Common Stock of the Company.
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(v) "Stock Option Agreement" shall mean the agreement between the
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Company and an Optionee which contains the terms, conditions and restrictions
pertaining to his or her Option.
(w) "Stock Purchase Agreement" shall mean the agreement between the
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Company and an offeree who acquires Shares under the Plan which contains the
terms, conditions and restrictions pertaining to the acquisition of such Shares.
(x) "Subsidiary" shall mean any corporation, if the Company and/or
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one or more other Subsidiaries own not less than 50 percent of the total
combined voting power of all classes of outstanding stock of such corporation.
A corporation that attains the status of a Subsidiary on a date after the
adoption of the Plan shall be considered a Subsidiary commencing as of such
date.
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(y) "Total and Permanent Disability" shall mean that the Optionee
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is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted, or can be expected to last, for a
continuous period of not less than one year.
(z) "Vesting Start Date," in the case of an Outside Director, shall
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mean the latest of:
(i) The date of the IPO;
(ii) The earliest date when the Outside Director no longer
holds unexercisable options to purchase more than 10,000 Shares that
were granted to him or her by the Company prior to the IPO: or
(iii) The date when the Outside Director first joins the Board
of Directors.
SECTION 3. ADMINISTRATION.
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(a) Committee Membership. The Plan shall be administered by the
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Committee. The Committee shall consist of two or more members of the Board of
Directors who meet the requirements established from time to time by:
(i) The Securities and Exchange Commission for plans intended
to qualify for exemptions under Rule 16b-3 (or its successor) under
the Exchange Act; and
(ii) The Internal Revenue Service for plans intended to qualify
for an exemption under section 162(m) (4) (C) of the Code.
An Outside Director shall not fail to meet such requirements solely because he
or she receives the Nonstatutory Options described in Section 4(b). The Board
of Directors may appoint a separate committee, consisting of one or more members
of the Board of Directors who need not meet such requirements. Such committee
may administer the Plan with respect to Employees who are not officers or
directors of the Company, may grant Shares and Options under the Plan to such
Employees and may determine the timing, number of Shares and other terms of such
grants.
(b) Committee Procedures. The Board of Directors shall designate one
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of the members of the Committee as chairman. The Committee may hold meetings at
such times and places as it shall determine. The act as of a majority of the
Committee members present at meetings at which a quorum exists, or acts reduced
to or approved in writing by all Committee members, shall be valid acts of the
Committee.
(c) Committee Responsibilities. Subject to the provisions of the
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Plan, the Committee shall have full authority and discretion to take the
following actions:
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(i) To interpret the Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms
relating to the Plan;
(iii) To authorize any person to execute, on behalf of the
Company, any instrument required to carry out the purposes of the
Plan;
(iv) To determine when Shares are to be awarded or offered for
sale and when Options are to be granted under the Plan;
(v) To select the Offerees and Optionees;
(vi) To determine the number of Shares to be offered to each
Offeree or to be made subject to each Option;
(vii) To prescribe the terms and conditions of each award or
sale of Shares, including (without limitation) the Purchase Price, and
to specify the provisions of the Stock Purchase Agreement relating to
such award or sale;
(viii) To prescribe the terms and conditions of each Option,
including (without limitation) the Exercise Price, to determine
whether such Option is to be classified as an ISO or as a Nonstatutory
Option, and to specify the provisions of the Stock Option Agreement
relating to such Option ;
(ix) To amend any outstanding Stock Purchase Agreement or Stock
Option Agreement, subject to applicable legal restrictions and to the
consent of the Offeree or Optionee who entered into such agreement;
(x) To prescribe the consideration for the grant of each Option
or other right under the Plan and to determine the sufficiency of such
consideration; and
(xi) To take any other actions deemed necessary or advisable for
the administration of the Plan.
All decisions, interpretations and other actions of the Committee shall be final
and binding on all Offerees, all Optionees, and all persons deriving their
rights from an Offeree or Optionee. No member of the Committee shall be liable
for any action that he or she has taken or has failed to take in good faith with
respect to the Plan, any Option, or any right to acquire Shares under the Plan.
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SECTION 4. ELIGIBILITY.
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(a) General Rules. Only Employees (including, without limitation,
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independent contractors who are not members of the Board of Directors) shall be
eligible for designation as Optionees or Offerees by the Committee. In
addition, only Employees who are common-law employees of the Company or a
Subsidiary shall be eligible for the grant of ISOs. Employees who are Outside
Directors shall only be eligible for the grant of the Nonstatutory Options
described in Subsection (b) below.
(b) Outside Directors. Any other provision of the Plan
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notwithstanding, Outside Directors shall not participate in the Plan after
February 7, 1996, although Options granted to Outside Directors prior to such
date shall continue to be governed by the Plan as in effect prior to February 7,
1996.
(c) Ten-Percent Stockholders. An Employee who owns more than 10
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percent of the total combined voting power of all classes of outstanding stock
of the Company or any of its Subsidiaries shall not be eligible for the grant of
an ISO unless:
(i) The Exercise Price is at least 110 percent of the Fair Market
Value of a Share on the date of grant; and
(ii) Such ISO by its terms is not exercisable after the
expiration of five years from the date of grant.
(d) Attribution Rules. For purposes of Subsection (c) above, in
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determining stock ownership, an Employee shall be deemed to own the stock owned,
directly or indirectly, by or for such Employee's brothers, sisters, spouse,
ancestors and lineal descendants. Stock owned, directly or indirectly, by or
for a corporation, partnership, estate or trust shall be deemed to be owned
proportionately by or for its stockholders, partners or beneficiaries. Stock
with respect to which such Employee holds an option shall not be counted.
(e) Outstanding Stock. For purposes of Subsection (c) above,
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"outstanding stock" shall include all stock actually issued and outstanding
immediately after the grant. "Outstanding stock" shall not include shares
authorized for issuance under outstanding options held by the Employee or by any
other person.
SECTION 5. STOCK SUBJECT TO PLAN.
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(a) Basic Limitation. Shares offered under the Plan shall be
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authorized but unissued Shares or treasury Shares. The aggregate number of
Shares which is issued under the Plan (upon exercise of Options or other rights
to acquire Shares) shall not exceed 2,250,741 Shares; provided that the number
of Shares which is issued under the Plan upon exercise of ISOs shall in no event
exceed 1,200,000 Shares during the entire term of the Plan. All limitations
under this Subsection (a) shall be subject to adjustment
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pursuant to Section 9. The number of Shares which are subject to Options or
other rights outstanding at any time under the Plan shall not exceed the number
of Shares which then remain available for issuance under the Plan. The Company,
during the term of the Plan, shall at all times reserve and keep available
sufficient Shares to satisfy the requirements of the Plan.
(b) Additional Shares. In the event that any outstanding option
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granted under this Plan or the 1987 Employee Stock Plan of NexGen, Inc. (the
"Prior Plan") for any reason expires or is canceled or otherwise terminated, the
Shares allocable to the unexercised portion of such option shall become
available for the purposes of this Plan. In the event that Shares issued under
this Plan or the Prior Plan are reacquired by the Company pursuant to a
forfeiture provision, a right of repurchase or a right of first refusal, such
Shares shall become available for the purposes of this Plan.
SECTION 6. TERMS AND CONDITIONS OF AWARDS OR SALES.
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(a) Stock Purchase Agreement. Each award or sale of Shares under
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the Plan (other than upon exercise of an Option) shall be evidenced by a Stock
Purchase Agreement between the Offeree and the Company. Such award or sale
shall be subject to all applicable terms and conditions of the Plan and may be
subject to any other terms and conditions which are not inconsistent with the
Plan and which the Committee deems appropriate for inclusion in a Stock Purchase
Agreement. The provisions of the various Stock Purchase Agreements entered into
under the Plan need not be identical.
(b) Duration of Offers and Nontransferability of Rights. Any right
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to acquire Shares under the Plan (other than an Option) shall automatically
expire if not exercised by the Offeree within 30 days after the grant of such
right was communicated to the Offeree by the Committee. Such right shall not be
transferable and shall be exercisable only by the Offeree to whom such right was
granted.
(c) Purchase Price. The Purchase Price of Shares to be offered
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under the Plan shall not be less than the par value of such Shares. Subject to
the preceding sentence, the Purchase Price shall be determined by the Committee
at its sole discretion. The Purchase Price shall be payable in a form described
in Section 8.
(d) Withholding Taxes. As a condition to the award, sale or
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vesting of Shares, the Offeree shall make such arrangements as the Committee may
require for the satisfaction of any federal, state, local or foreign withholding
tax obligations that arise in connection with such Shares. The Committee may
permit the Offeree to satisfy all or part of his or her tax obligations related
to such Shares by having the Company withhold a portion of any Shares that
otherwise would be issued to him or her or by surrendering any Shares that
previously were acquired by him or her. The Shares withheld or surrendered
shall be valued at their Fair Market Value on the date when taxes otherwise
would be withheld in cash. The payment of taxes by assigning Shares to the
Company, if permitted
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by the Committee, shall be subject to such restrictions as the Committee may
impose, including any restrictions required by rules of the Securities and
Exchange Commission.
(e) Restrictions on Transfer of Shares. Any Shares awarded or sold
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under the Plan shall be subject to such special forfeiture conditions, rights of
repurchase, rights of first refusal and other transfer restrictions as of the
Committee may determine. Such restrictions shall be set forth in the applicable
Stock Purchase Agreement and shall apply in addition to any general restrictions
that may apply to all holders of Shares.
SECTION 7. TERMS AND CONDITIONS OF OPTIONS.
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(a) Stock Option Agreement. Each grant of an Option under the Plan
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shall be evidenced by a Stock Option Agreement executed by the Optionee and the
Company. Such Option shall be subject to all applicable terms and conditions of
the Plan and may be subject to any other terms and conditions which are not
inconsistent with the Plan and which the Committee deems appropriate for
inclusion in a Stock Option Agreement. The provisions of the various Stock
Option Agreements entered into under the Plan need not be identical.
(b) Number of Shares. Each Stock Option Agreement shall specify
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the number of Shares that are subject to the Option and shall provide for the
adjustment of such number in accordance with Section 9. Options granted to any
Optionee in a single calendar year shall in no event cover more than 400,000
Shares, subject to adjustment in accordance with Section 9. The Stock Option
Agreement shall also specify whether the Option is an ISO or a Nonstatutory
Option.
(c) Exercise Price. Each Stock Option Agreement shall specify the
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Exercise Price. The Exercise Price of an ISO shall not be less than 100 percent
of the Fair Market Value of a Share on the date of grant, except as otherwise
provided in Section 4(c). The Exercise Price of a Nonstatutory Option shall not
be less than the par value of a Share. Subject to the preceding two sentences,
the Exercise Price under any Option shall be determined by the Committee at its
sole discretion. The Exercise Price shall be payable in a form described in
Section 8.
(d) Withholding Taxes. As a condition to the exercise of an
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Option, the Optionee shall make such arrangements as the Committee may require
for the satisfaction of any federal, state, local or foreign withholding tax
obligations that arise in connection with such exercise. The Optionee shall
also make such arrangements as the Committee may require for the satisfaction of
any federal, state, local or foreign withholding tax obligations that may arise
in connection with the disposition of Shares acquired by exercising an Option.
The Committee may permit the Optionee to satisfy all or part of his or her tax
obligations related to the Option by having the Company withhold a portion of
any Shares that otherwise would be issued to him or her or by her. Such Shares
shall be valued at their Fair Market Value on the date when taxes otherwise
would be withheld in cash. The payment of taxes by assigning Shares to the
Company, if permitted by the
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Committee, shall be subject to such restrictions as the Committee may impose,
including any restrictions required by rules of the Securities and Exchange
Commission.
(e) Exercisability. Each Stock Option Agreement shall specify the
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date when all or any installment of the Option is to become exercisable. The
vesting of any Option shall be determined by the Committee at its sole
discretion.
If the employment of any Optionee who is a common law employee of the
Company is terminated by the Company for any reason other than Misconduct or if
applicable, by Constructive Termination, within one year after a Change of
Control has occurred, then all Options held by such Optionee shall become fully
vested for exercise upon the date of termination, irrespective of the vesting
provisions of the Optionee's Stock Option Agreement unless otherwise provided in
an Optionee's employment agreement. For purposes of this paragraph, the
following definitions apply unless the following term or terms of similar effect
are otherwise defined in an Optionee's employment agreement: (i) "Change of
Control" shall have the meaning assigned by Section 2(b) of the Plan unless a
different meaning is defined in an Optionee's Stock Option Agreement or
employment agreement, (ii) "Misconduct" shall mean the commission of an act of
theft, embezzlement, fraud, dishonesty, breach of fiduciary duty to the Company
or any of its Subsidiaries (as determined by the Board of Directors), the
deliberate disregard of the rules of the Company or any of its Subsidiaries, any
unauthorized disclosure of any of the trade secrets or confidential information
of the Company or any of its Subsidiaries, engaging in any conduct which
constitutes unfair competition with the Company or any of its Subsidiaries, the
inducement of any customer of the company or any of its Subsidiaries, or the
inducement of any principal for whom the Company or any of its Subsidiaries acts
as agent to terminate such agency relationship; and (iii) "Constructive
Termination" shall mean a resignation by an Optionee who has been elected by the
Board of Directors as a corporate officer of the Company due to diminution of or
adverse change in the circumstances of the Optionee's employment with the
Company, as determined in good faith by the Optionee, including, without
limitation, reporting relationships, job description, duties, responsibilities,
compensation, perquisites, office or location of employment. Constructive
Termination shall be communicated by written notice to the Company, and such
termination shall be deemed to occur on the date such notice is delivered to the
Company.
A Stock Option Agreement or employment agreement may also provide for
accelerated exercisability in the event of the Optionee's death, Total and
Permanent Disability, retirement or upon other events.
(f) Term. Each Stock Option Agreement shall specify the term of
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the Option. The term of an ISO shall not exceed 10 years from the date of
grant, except as otherwise provided in Section 4(c). Subject to the preceding
sentence, the Committee at its sole discretion shall determine when an Option is
to expire. A Stock Option Agreement may provide that the Option will expire
before the end of its normal term in the event that the Optionee's Service
terminates.
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(g) Nontransferability. During an Optionee's lifetime, such
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Optionee's Option(s) shall be exercisable only by him or her and shall not be
transferable. In the event of an Optionee's death, such Optionee's Option(s)
shall not be transferable other than by will, by written beneficiary designation
or by the laws of descent and distribution.
(h) No Rights as a Stockholder. An Optionee, or a transferee of an
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Optionee, shall have no rights as a stockholder with respect to any Shares
covered by his or her Option until the date of the issuance of a stock
certificate for such Shares. No adjustments shall be made, except as provided
in Section 9.
(i) Modification, Extension and Renewal of Options. Within the
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limitations of the Plan, the Committee may modify, extend or renew outstanding
Options or may accept the cancellation of the outstanding options (to the extend
not previously exercised) in return for the grant of new Options at the same or
a different price. The foregoing notwithstanding, no modification of an Option
shall, without the consent of the Optionee, impair such Optionee's rights or
increase his or her obligations under such Option.
(j) Restrictions on Transfer of Shares. Any Shares issued upon
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exercise of an Option may be subject to such special forfeiture conditions,
rights of repurchase, rights of first refusal and other transfer restrictions as
the Committee may determine. Such restrictions shall be set forth in the
applicable Stock Option Agreement and shall apply in addition to any general
restrictions that may apply to all holders of Shares.
SECTION 8. PAYMENT FOR SHARES.
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(a) General Rule. The entire Purchase Price or Exercise Price of
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Shares issued under the Plan shall be payable in lawful money of the United
States of America at the time when such Shares are purchased, except as follows:
(i) Stock Purchases. In the case of Shares sold under the
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terms of a Stock Purchase Agreement subject to the Plan, payment shall
be made only pursuant to the express provisions of such Stock Purchase
Agreement. However, the Committee (at its sole discretion) may specify
in the Stock Purchase Agreement that payment may be made in one or
both of the forms described in Subsections (e) and (f) below.
(ii) ISO's. In the case of an ISO granted under the Plan,
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payment shall be made only pursuant to the express provisions of the
applicable Stock Option Agreement. However, the Committee (at its sole
discretion) may specify in the Stock Option Agreement that payment may
be made pursuant to Subsections (b), (c), (d), or (f) below.
(iii) Nonstatutory Options. In the case of a Non-statutory
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Option granted under the Plan, the Committee (at its sole discretion)
may accept payment pursuant to Subsections (b), (c), (d) or (f) below.
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(b) Surrender of Stock. To the extent that this Subsection (b) is
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applicable, payment may be made all or in part with Shares which have already
been owned by the Optionee or his or her representative for more than 12 months
and which are surrendered to the Company in good form for transfer. Such Shares
shall be valued at their Fair Market Value on the date when the new Shares are
purchased under the Plan.
(c) Exercise/Sale. To the extent that this Subsection (c) is
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applicable, payment may be made by the delivery (on a form prescribed by the
Company) of an irrevocable direction to a securities broker approved by the
Company to sell Shares and to deliver all or part of the sales proceeds to the
Company in payment of all or part of the Exercise Price and any withholding
taxes.
(d) Exercise/Pledge. To the extent that this Subsection (d) is
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applicable, payment may be made by the delivery (on a form prescribed by the
Company) of an irrevocable direction to pledge Shares to a securities broker or
lender approved by the Company, as security for a loan, and to deliver all or
part of the loan proceeds to the Company in payment of all or part of the
Exercise Price and any withholding taxes.
(e) Services Rendered. To the extent that this Subsection (e) is
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applicable, Shares may be awarded under the Plan in consideration of services
rendered to the Company or a Subsidiary prior to the award. If Shares are
awarded without the payment of a Purchase Price in cash, the Committee shall
make a determination (at the time of the award) of the value of the services
rendered by the Offeree and the sufficiency of the consideration to meet the
requirements of Section 6(c).
(f) Promissory Note. To the extend that this Subsection (f) is
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applicable, a portion of the Purchase Price or Exercise Price, as the case may
be, of Shares issued under the Plan may be payable by a full-recourse promissory
note, provided that (i) the part value of such Shares must be paid in lawful
money of the United States of America at the time when such Shares are
purchased, (ii) the Shares are security for payment of the principal amount of
the promissory note and interest thereon and (iii) the interest rate payable
under the terms of the promissory note shall be no less than the minimum rate
(if any) required to avoid the imputation of additional interest under the Code.
Subject to the foregoing, the Committee (at its sole discretion) shall specify
the term, interest rate, amortization requirements (if any) and other provisions
of such note.
SECTION 9. ADJUSTMENT OF SHARES.
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(a) General. In the event of a subdivision of the outstanding Stock,
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a declaration of a dividend payable in Shares, a declaration of a dividend
payable in a form other than Shares in an amount that has a material effect on
the value of Shares, a combination or consolidation of the outstanding Stock (by
reclassification or otherwise) into a lesser number of Shares, a
recapitalization, a spin-off or a similar occurrence, the Committee shall make
appropriate adjustments in one or more of:
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(i) The number of Shares available under Section 5 for future
grants;
(ii) The limit set forth in Section 7(b);
(iii) The number of Nonstatutory Options to be granted to
Outside Directors under Section 4(b);
(iv) The number of Shares covered by each outstanding Option; or
(v) The Exercise Price under each outstanding Option.
(b) Reorganizations. Unless otherwise provided in an Optionee's
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employment agreement, in the event that the Company is a party to a merger or
other reorganization, outstanding Options shall be subject to the agreement of
merger or reorganization. Such agreement may provide, without limitation, for
the assumption of outstanding Options by the surviving corporation or its
parent, for their continuation by the Company (if the Company is a surviving
corporation), for payment of a cash settlement equal to the difference between
the amount to be paid for one Share under such agreement and the Exercise Price,
or for the acceleration of their exercisability followed by the cancellation of
Options not exercised, in all cases without the Optionees' consent. Any
cancellation shall not occur until after such acceleration is effective and
Optionees have been notified of such acceleration.
(c) Reservation of Rights. Except as provided in this Section 9,
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an Optionee or Offeree shall have not rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any dividend or
any other increase or decrease in the number of share of stock of any class.
Any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Option. The grant of an Option pursuant
to the Plan shall not affect in any way the right or power of the Company to
make adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to merge or consolidate or to dissolve, liquidate, sell
or transfer all or any part of its business or assets.
SECTION 10. SECURITIES LAWS.
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Shares shall not be issued under the Plan unless the issuance and
delivery of such Shares complies with (or is exempt from) all applicable
requirements of law, including (without limitation) the Securities Act of 1933,
as amended, the rules and regulations promulgated thereunder, state securities
laws and regulations, and the regulations of any stock exchange on which the
Company's securities may then be listed.
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SECTION 11. NO RETENTION RIGHTS.
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Neither the Plan nor any Option shall be deemed to give any individual
a right to remain an employee or consultant of the Company or a Subsidiary. The
Company and its Subsidiaries reserve the right to terminate the service of any
employee or consultant at any time, with or without cause, subject to applicable
laws and a written employment agreement (if any).
SECTION 12. DURATION AND AMENDMENTS.
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(a) Term of the Plan. The Plan, as set forth herein, shall become
----------------
effective as of May 10, 1995. The Plan, if not extended, shall terminate
automatically on March 11, 2005. It may be terminated on any earlier date
pursuant to Subsection (b) below.
(b) Right to Amend or Terminate the Plan. The Board of Directors
------------------------------------
may amend, suspend or terminate the Plan at any time and for any reason, except
that the provisions of Section 4(b) relating to the amount, price and timing of
grants to Outside Directors shall not be amended more than once in any six-month
period. An amendment of the Plan shall be subject to the approval of the
Company's stockholders only to the extent required by applicable laws or
regulations.
(c) Effect of Amendment or Termination. No Shares shall be issued or
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sold under the Plan after the termination thereof, except upon exercise of an
Option granted prior to such termination. The termination of the Plan, or any
amendment thereof, shall not affect any Share previously issued or any Option
previously granted under the Plan.
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