EXHIBIT 10.34
PREMIER LASER SYSTEMS, INC.
1998 STOCK OPTION PLAN
ARTICLE I
GENERAL PROVISIONS
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1.1 Purpose. Premier Laser Systems, Inc. (the "Company") proposes to grant
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to selected "Eligible Employees" and "Eligible Consultants" (as defined below)
options to purchase shares of Class A common stock, no par value, of the Company
("Common Stock") for the purposes of (i) furnishing to such persons incentives
to improve operations and increase profits of the Company, (ii) encouraging such
persons to accept or continue employment with the Company and its "Affiliates"
(as defined below) and (iii) encouraging such persons to begin or continue
providing services to the Company. For purposes hereof, the term "subsidiary"
shall have the meaning set forth in Rule 405 promulgated under the Securities
Act of 1933, as amended. The term "Eligible Employees" shall mean employees
(including officers and directors who are employees) of the Company or its
subsidiaries, and the term "Eligible Consultants" shall mean persons performing
services for the Company or a subsidiary of the Company as independent
contractors and not as employees or members of the Board of Directors.
The Company also proposes to grant to those members of the Board of
Directors of the Company (the "Board of Directors") who are not officers or
employees of the Company at the time of a grant (such persons being hereinafter
referred to as "Non-Employee Directors") options to purchase shares of Common
Stock pursuant to the Plan. The purpose of such grants is to (i) provide
incentives for highly qualified individuals to stand for election to the Board
of Directors and continue service on the Board of Directors, (ii) provide
incentives to promote long-term shareholder value, and (iii) promote a greater
identity of interest between Non-Employee Directors and the Company's
shareholders.
Eligible Employees, Eligible Consultants and Non-Employee Directors who are
granted options pursuant to the Plan are sometimes collectively referred to
herein as "Optionees."
The plan herein set forth shall be known as the 1998 Stock Option Plan of
Premier Laser Systems, Inc. (and is herein referred to as the "Plan").
1.2 Shares Subject to the Plan. Subject to adjustment as provided in
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Section 1.4 and Section 1.11.3 (the "Adjustment Provisions"), the aggregate
number of shares of Common Stock to be delivered upon exercise of all options
granted under the Plan shall not exceed 1,500,000 shares. The shares of Common
Stock issuable upon exercise of options granted under the Plan may be authorized
and unissued shares or reacquired shares. In the event the number of shares to
be delivered upon the exercise in full of any option granted under the Plan is
reduced for any reason whatsoever or in the event any option granted under the
Plan for any reason shall expire or shall terminate unexercised as to all or any
shares covered thereby, the number of shares no longer subject to any such
option shall thereupon be released from such option and shall thereafter be
available to be re-optioned under the Plan, subject to the limitations, if any,
imposed by the Internal Revenue Code of 1986, as amended (the "Code") on the
availability for regrant of options previously granted pursuant to Article III.
The Compensation
Committee of the Board of Directors or such other committee of the Board of
Directors which shall succeed to the functions and responsibilities of the
Compensation Committee, or as shall otherwise be delegated the responsibility of
administering the Plan (the "Committee") shall have the authority to effect, at
any time and from time to time, (i) the repricing of any outstanding options
under the Plan, and/or (ii) with the consent of the affected holders of options,
the cancellation of any outstanding options under the Plan and the grant in
substitution therefor of new options under the Plan pursuant to terms consistent
therewith, covering the same or different numbers of shares of stock, provided,
however, that no option granted pursuant to Article III shall be repriced or
regranted on terms that would constitute a "modification" within the meaning of
Section 424(h)(3) of the Code which would disqualify such option as an incentive
stock option described in Section 422 of the Code unless the Company and the
holder of such option shall so agree. Shares issued pursuant to the exercise of
options granted under the Plan shall be fully paid and nonassessable.
1.3 Administration of the Plan. Subject to the provisions of the Plan, the
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Committee shall have the authority to (a) determine which persons shall be
granted Options under the Plan, (b) determine the provisions of the options to
be granted under the Plan, (c) interpret the Plan and all options granted under
the Plan, (d) adopt, amend or rescind such rules as it deems necessary for the
proper administration of the Plan, (e) make all other determinations necessary
or advisable for the administration of the Plan, and (f) correct any defect or
supply any omission or reconcile any inconsistency in the Plan or in any option
granted under the Plan in the manner and to the extent that the Committee deems
desirable to carry the Plan or any option into effect. The Board of Directors
shall have the power to add or remove members of the Committee from time to
time, to fill vacancies thereon arising by resignation, death, removal, or
otherwise, and shall designate a chairman from among the members of the
Committee, which chairman shall preside at all meetings of the Committee.
Meetings shall be held at such times and places as shall be determined by the
Committee. A majority of the members of the Committee shall constitute a quorum
for the transaction of business, and the vote of a majority of those members
present at any meeting shall decide any question brought before that meeting.
The actions of the Committee in exercising all of the rights, powers and
authorities set out in the Plan, when performed in good faith and in its sole
judgment, shall be final and conclusive. When appropriate, the Plan shall be
administered in order to qualify certain of the options granted hereunder as
"incentive stock options" described in section 422 of the Code.
The Committee shall consist of at least two members of the Board of
Directors.
Notwithstanding any provision of the Plan, the Committee may not exercise
any discretion with respect to any option granted hereunder which would be
inconsistent with the intent that the Plan meet the requirements of Rule 16b-3
("Rule 16b-3") promulgated under the Securities Exchange Act of 1934, as amended
(the "Act"), or any similar or successor rule. If any Plan provision is found
not to be in compliance with Rule 16b-3 or Section 162(m) of the Code ("Section
162(m)"), that provision shall be deemed amended so that the Plan does so
comply, to the extent permitted by law and deemed advisable by the Committee,
and in all events the Plan shall be construed in favor of its meeting the
requirements of Rule 16b-3 and Section 162(m).
1.4 Amendment and Discontinuance of the Plan. The Board of Directors may
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amend, suspend or terminate the Plan; provided, however, that each such
amendment of the Plan (a) extending the period within which options may be
granted under the Plan, (b) increasing the aggregate number of shares of Common
Stock to be optioned under the Plan except as provided in the Adjustment
Provisions, (c) materially modifying the requirements as to eligibility of
employees or consultants receiving options under, or changing the eligibility of
employees or consultants or class of employees or consultants to whom options
may be granted under, Article II or III, as applicable, or (d) materially
increasing the benefits to optionees under the Plan, shall, in each case, be
subject to approval by the shareholders of
the Company (but only if such amendment is required to be approved under the
Code, the Act, the rules promulgated under the Code or the Act, or the rules of
any exchange (including the Nasdaq Stock Market) on which the Company's
securities are listed); and provided further, however, that no amendment,
suspension or termination of the Plan shall be made which may cause the Plan to
fail to meet the requirements of Rule 16b-3 or may, without the consent of the
holder of an option granted under Article II or III, terminate such option or
adversely affect such person's rights in any material respect (except as set
forth in the Plan). Furthermore, the Board of Directors may alter, amend,
suspend, discontinue or terminate the Plan and any option granted hereunder,
without the approval of the shareholders of the Company or any holder of any
option thereby affected, if necessary in order to (a) enable the Plan and any
option granted hereunder intended to be so qualified, to qualify for (i) the
exemption provided by Rule 16b-3, (ii) the benefits provided under section 422
of the Code, or (iii) the exclusion for qualified performance-based compensation
under Section 162(m) and the applicable interpretive authority thereunder, and
(b) comply with changes in the Code, the Employee Retirement Income Security Act
or any other applicable law (including, with respect to any of the foregoing,
changes in any rule, regulation or other interpretive authority).
1.5 Granting of Options to Employees. The Committee shall have authority to
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grant, prior to the expiration date of the Plan, to (i) Eligible Employees,
Eligible Consultants and Non-Employee Directors options to purchase, on the
terms and conditions hereinafter set forth in Article II, and (ii) Eligible
Employees options to purchase, on the terms and conditions hereinafter set forth
in Article III, authorized but unissued, or reacquired, shares of Common Stock,
provided such grants shall be made only to those Optionees, in such amounts and
at such times as determined in the discretion of the Committee, and, for this
purpose, the Committee may consider the Optionee's office or position, degree of
responsibility for, and contribution to, the growth and success of the Company,
length of service, promotions, potential and any other factors which it may deem
relevant. Options granted to Eligible Employees under Section III shall be
"incentive stock options" within the meaning of section 422(b) of the Code, and
are hereinafter referred to as "incentive stock options." All other options
granted to Optionees under the Plan shall be granted pursuant to Article II, and
are hereinafter referred to as "nonqualified options."
1.6 Option Agreements. Each option granted under the Plan shall be
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evidenced by a written agreement ("Stock Option Agreement") between the Company
and the applicable optionee and shall contain such terms and conditions, and may
be exercisable for such periods, as may be approved by the Committee, which
terms and conditions need not be identical but which must be in compliance with
the terms and provisions hereof.
1.7 Effective Date. The Plan shall become effective as of the date the Plan
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is approved by the Board (the "Effective Date"). No options granted prior to
the approval of the Plan by the shareholders of the Company shall be exercisable
until such approval is received. Except with respect to options then
outstanding, if not sooner terminated under Section 1.4, the Plan shall
terminate upon, and no further options shall be granted after, the expiration of
ten years from the Effective Date.
1.8 Rule 16b-3 Compliance. The Company intends:
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(a) that the Plan meet the requirements of Rule 16b-3; and
(b) that transactions of the type specified in the first paragraph
of Rule 16b-3 by officers of the Company (whether or not they are
directors) pursuant to the Plan will be exempt from the operation of
Section 16(b) of the Act. In all cases, the terms, provisions,
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conditions and limitations of the Plan shall be construed and
interpreted consistent with the Company's intent as stated in this
Section 1.8.
1.9 Recapitalization or Reorganization. If at any time or from time to time
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after the grant of any option hereunder there is a capital reorganization of the
Common Stock, then the Optionee shall be entitled to receive upon the exercise
of an option, in lieu of the Common Stock, the number of shares of stock or
other securities or property of the Company to which a holder of the number of
shares of Common Stock deliverable upon exercise of such option would have been
entitled as a result of such capital reorganization. If the Company shall merge
with another corporation and the Company is the surviving corporation in such
merger and under the terms of such merger the Common Stock outstanding
immediately prior to the merger remain outstanding and unchanged, any option
granted hereunder shall continue to apply to the Common Stock thereto and shall
also pertain and apply to any additional securities and other property, if any,
to which a holder of the number of shares of Common Stock deliverable upon
exercise of such option would have been entitled as a result of the merger. If
(i) the Company shall not be the surviving entity in any merger, consolidation
or other reorganization (or survives only as a subsidiary of an entity other
than a previously wholly-owned subsidiary of the Company), (ii) the Company
sells, leases or exchanges all or substantially all of its assets to any other
person or entity (other than a wholly-owned subsidiary of the Company), (iii)
the Company is to be dissolved and liquidated, or (iv) any person or entity,
including a "group" as contemplated by Section 13(d)(3) of the Act, acquires or
gains ownership or control (including, without limitation, power to vote) of
more than 50% of the outstanding shares of the Company's voting stock (based
upon voting power), (each such event is referred to herein as a "Corporate
Change"), then all options granted hereunder, including that portion not then
otherwise vested, shall become exercisable in full effective immediately prior
to the consummation of the Corporate Change, provided that the exercise of any
such option that would not have been vested in the absence of the Corporate
Change shall be conditioned upon the occurrence of the Corporate Change (i.e.,
so that if the Corporate Change does not subsequently occur, the unvested
portion of the option shall vest according to its original terms), and provided
further, however, in no event shall any incentive stock option, without the
consent of the holder thereof, first become exercisable pursuant hereto if the
result would be to cause such option, when granted, not to be treated as an
incentive stock option (whether or not by reason of the possible future
violation of the annual limitation set forth in Section 3.3.3 or otherwise).
1.10 Foreign Options and Rights. The Committee may grant options to
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Eligible Employees, Eligible Consultants and Non-Employee Directors who are
subject to the tax laws of nations other than the United States, which options
may have terms and conditions as determined by the Committee as necessary to
comply with applicable foreign laws. The Committee may take any action which it
deems advisable to obtain approval of any such option by the appropriate foreign
governmental entity; provided, however, that no such option may be granted
pursuant to this Section 1.10 and no action may be taken which would result in a
violation of the Act, the Code or any other applicable law.
1.11 General Terms and Conditions of Options. Options granted under the
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Plan shall be subject to the following terms and conditions and may contain such
additional terms and conditions, not inconsistent with law or the Article
pursuant to which such option was granted, as the Committee shall deem
desirable:
1.11.1 Manner of Exercise. In order to exercise all or a portion of
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any option granted under the Plan, an Optionee shall deliver to the Company
payment in full of the shares then being purchased, together with any
required withholding tax. The payment of such exercise price and any
required withholding tax shall either be in cash or, to the extent permitted
by the applicable Stock Option Agreement, either (i) through delivery to the
Company of shares of Common Stock,
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(ii) by any combination of cash or shares, or (iii) pursuant to a "net
exercise" provision, permitting exchange of the Option for shares subject to
such Option. The value of each share of Common Stock delivered upon
exercise shall be deemed to be equal to the per share price of the last sale
of Common Stock on the trading day immediately preceding the date the option
is exercised (or the closing bid if no sales were reported), based on the
composite transactions in the Common Stock as reported in The Wall Street
Journal (or any successor publication thereto). If the Committee so
requires, such person or persons shall also deliver a written representation
that all shares being purchased are being acquired for investment and not
with a view to, or for resale in connection with, any distribution of such
shares. An option agreement may, in the discretion of the Committee,
provide for other methods to pay for, or otherwise exercise, an option. An
option agreement also may, in the discretion of the Committee, provide for
the withholding of Federal, state or local income tax upon exercise of an
option from any cash or stock remuneration (from the Plan or otherwise) then
or thereafter payable by the Company to the Optionee. To the extent
provided by the terms of the applicable Stock Option Agreement, the Optionee
may, at the discretion of the Committee, satisfy any mandatory federal,
state or local tax withholding obligation relating to the exercise or
acquisition of stock under an option by any of the following means or by a
combination of such means: (1) tendering cash payment; (2) authorizing the
Company to withhold shares from the shares of the Common Stock otherwise
issuable to the Optionee as a result of the exercise or acquisition of stock
under the option provided that such arrangement will not result in a charge
to the Company's reported earnings in excess of that which the Company is
willing to accept; or (3) delivering to the Company owned and unencumbered
shares of the Common Stock of the Company that have been held for the
greater of (i) six months, or (ii) the period required to avoid a charge to
the Company's reported earnings in excess of that which the Company is
willing to accept. The exercise of the option may be conditioned upon the
receipt by the Company of satisfactory evidence of the Optionee's
satisfaction of any withholding obligations.
1.11.2 Options not Transferable. No option granted under the Plan
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shall be transferable otherwise than by will or by the laws of descent and
distribution and, during the lifetime of the Optionee, such option shall be
exercisable only by the Optionee. Any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of, or to subject to execution, attachment
or similar process, any option granted under the Plan, or any right
thereunder, contrary to the provisions hereof, shall be void and
ineffective, shall give no right to the purported transferee, and shall, at
the sole discretion of the Committee, result in forfeiture of the option
with respect to the shares involved in such attempt.
1.11.3 Adjustment of Shares. In the event that at any time after the
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Effective Date the outstanding shares of Common Stock are changed into or
exchanged for a different number or kind of shares of the Company or other
securities of the Company by reason of merger, consolidation,
recapitalization, reclassification, stock split, stock dividend, or
combination of shares, the Committee shall make an appropriate and equitable
adjustment in the number and kind of shares subject to the Plan (including
shares as to which all outstanding options granted under the Plan, or
portions thereof then unexercised, shall be exercisable), to the end that
after such event the shares subject to the Plan and each Optionee's
proportionate interest shall be maintained as if such Optionee had exercised
the option before the occurrence of such event. Such adjustment in an
outstanding option granted under the Plan shall be made without change in
the total price applicable to such option or the unexercised portion of such
option (except for any change in the aggregate price resulting from
rounding-off of share quantities or prices) and with any necessary
corresponding adjustment in exercise price per share. Any such adjustment
made by the Committee shall be final, conclusive and binding upon all
Optionees, the Company, and all other interested persons. Any adjustment of
an incentive stock option pursuant to this Section 1.11.3
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shall be made in such manner as not to constitute a "modification" within
the meaning of Section 424(h)(3) of the Code.
1.11.4 Listing and Registration of Shares. Each option granted under
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the Plan shall be subject to the requirement that if at any time the
Committee determines, in its discretion, that the listing, registration, or
qualification of the shares subject to such option upon any securities
exchange or under any state or Federal law, or the consent or approval of
any governmental regulatory body, is necessary or desirable as a condition
of, or in connection with, the issue or purchase of shares thereunder, such
option may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained and the same shall have been free of any conditions not acceptable
to the Committee.
1.11.5 Amendments. The Committee may, with the consent of the person
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or persons entitled to exercise any outstanding option granted under the
Plan, amend such option; provided, however, that any such amendment shall be
subject to shareholder approval when required in Section 1.4. The Committee
may at any time or from time to time, in its discretion, in the case of any
option previously granted under the Plan which is not then immediately
exercisable in full, accelerate the time or times at which such option may
be exercised to any earlier time or times. Any adjustment of an incentive
stock option pursuant to this Section 1.11.5 shall be made in such manner as
not to constitute a "modification" within the meaning of Section 424(h)(3)
of the Code.
1.11.6 Fair Market Value. The "fair market value" of the Company's
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Common Stock (as referred to in Sections 2.2, 3.2 and 3.3.3 below),
shall be determined by the Committee using any one of the following
methods (as selected by the Committee in its discretion):
(a) The fair market value shall be the last sale price, as reported
on the Nasdaq National Market System, of the Company's Common Stock on
the business day immediately preceding the date of grant.
(b) For grants of options to persons who will first become Eligible
Employees, Eligible Consultants or Non-Employee Directors at a date
after the date the Committee or Board of Directors authorizes the grant
of the Option, the fair market value shall be the last sale price, as
reported on the Nasdaq National Market System, of the Company's Common
Stock on the business day immediately preceding the date of hire (for
Eligible Employees), date of engagement (for Eligible Consultants) or
date of appointment to the Board of Directors (for Non Employee
Directors).
(c) The fair market value shall be average of the last sale prices,
as reported on the Nasdaq National Market System, of the Company's
Common Stock on the fifteen consecutive business days immediately
preceding the date of grant.
1.11.7 Miscellaneous.
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(a) The person or persons entitled to exercise, or who have
exercised, any option granted under the Plan shall not be entitled to
any rights as a shareholder of the Company with respect to any shares
subject to such option until such person shall have become the
beneficial owner of such shares.
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(b) No option granted under the Plan shall be construed as limiting
any right which the Company or any subsidiary of the Company may have to
terminate at any time, with or without cause, the employment of any
person to whom such option has been granted.
(c) Notwithstanding any provision of the Plan or the terms of any
option granted under the Plan, the Company shall not be required to
issue any shares hereunder or thereunder if such issuance would, in the
judgment of the Committee, constitute a violation of any state or
Federal law or of the rules or regulations of any governmental
regulatory body, and the failure or refusal to issue shares under such
circumstances shall not constitute a breach of contract or otherwise be
actionable by the Optionee.
(d) The Committee may require any person who exercises an incentive
stock option to give prompt notice to the Company of any disposition of
shares of Common Stock acquired upon exercise of an incentive stock
option within one year after the transfer of shares to such person.
1.12 Maximum Grant. The maximum number of shares issuable under options
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granted in any single calendar year to any single Optionee shall be 1,000,000
shares.
ARTICLE II
NONQUALIFIED OPTIONS
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2.1 Eligible Employees. All Eligible Employees and Eligible Consultants
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shall be eligible to receive nonqualified options under this Article II.
2.2 Calculation of Exercise Price. The exercise price to be paid for each
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share of Common Stock deliverable upon exercise of each nonqualified option
granted under Article II shall be determined by the Committee and may be more or
less than, or equal to, the fair market value per share of Common Stock at the
time of grant as determined by the Committee. The exercise price for each
nonqualified option shall be subject to adjustment as provided in the Adjustment
Provisions.
2.3 Terms and Conditions of Options. Nonqualified options granted under
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this Article II shall be in such form as the Committee may from time to time
approve, shall be subject to the following terms and conditions and may contain
such additional terms and conditions, not inconsistent with this Article II, as
the Committee shall deem desirable:
2.3.1 Option Period and Conditions and Limitations on Exercise.
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Subject to Section 1.11.5, no nonqualified option shall be exercisable by an
Eligible Employee or Eligible Consultant later than the date which is the
date determined by the Committee upon the grant thereof (the "Nonqualified
Option Expiration Date") which shall be no later than ten years after the
date of grant. To the extent not prohibited by other provisions of the
Plan, each nonqualified option granted to an Eligible Employee or Eligible
Consultant shall be exercisable at such time or times as the Committee in
its discretion may determine at or prior to the time such option is granted.
In the event the Committee makes no such determination, each nonqualified
option granted to an Eligible Employee or Eligible Consultant shall be
exercisable from time to time, in whole or in part, at any time prior to the
Nonqualified Option Expiration Date.
2.3.2 Termination of Employment or Relationship as Eligible Consultant;
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Death. For purposes of this Article II and each nonqualified option granted
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under this Article II, an Eligible
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Employee's employment and a Eligible Consultant's relationship with the
Company shall be deemed to have terminated at the close of business on the
day preceding the first date on which such Eligible Employee or Eligible
Consultant no longer for any reason whatsoever (including the death of such
Eligible Employee or Eligible Consultant) is employed by, or has a
relationship with, the Company or a subsidiary of the Company. An Eligible
Employee shall be considered to be in the employment of the Company or a
subsidiary of the Company as long as such Eligible Employee remains an
employee of the Company or a subsidiary of the Company, whether active or on
any authorized leave of absence. An Eligible Consultant shall be considered
to have a relationship with the Company as long as such Eligible Consultant
has an executory assignment from Company personnel authorized to make such
an assignment. Any question as to whether and when there has been a
termination of such employment or relationship, and the cause of such
termination, shall be determined by the Committee and its determination
shall be final and conclusive. If an Eligible Employee's employment or a
Eligible Consultant's relationship is terminated for any reason whatsoever
(including the death of such Eligible Employee or Eligible Consultant), each
nonqualified option thereunto granted under this Article II and all rights
thereunder shall wholly and completely terminate as follows:
(a) With respect to nonqualified options not then exercisable, at
the time the Eligible Employee's employment or a Eligible Consultant's
relationship is terminated; and
(b) With respect to nonqualified options then exercisable:
(i) At the time the Eligible Employee's employment or a
Eligible Consultant's relationship is terminated if the Eligible
Employee's employment or the Consultant's relationship is
terminated because such person has committed fraud, theft or
embezzlement against the Company or a subsidiary, affiliated entity
or customer of the Company, or for conflict of interest (other than
legitimate competition); or
(ii) At the expiration of a period of one year after the
Eligible Employee's or Eligible Consultant's death (but in no event
later than the Nonqualified Option Expiration Date) if the Eligible
Employee's employment or Eligible Consultant's relationship is
terminated by reason of such person's death. Any such nonqualified
option may be exercised by the Eligible Employee's or Eligible
Consultant's estate or by the person or persons who acquire the
right to exercise such nonqualified option by bequest or
inheritance; or
(iii) At the expiration of a period of three years (but in
no event later than the Nonqualified Option Expiration Date) after
the Eligible Employee's employment is terminated because of
retirement or the Eligible Employee's employment or the Eligible
Consultant's relationship is terminated because of disability, if
the Eligible Employee's employment has terminated because of
retirement or disability or the Eligible Consultant's relationship
has terminated because of disability; or
(iv) At the expiration of a period of three months after the
Eligible Employee's or Eligible Consultant's employment or
relationship is terminated (but in no event later than the
Nonqualified Option Expiration Date) if the Eligible Employee's
employment or Eligible Consultant's relationship is terminated for
any reason other than the reasons specified in Section 2.3.2(b)(i)-
(iii).
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ARTICLE III
INCENTIVE STOCK OPTIONS
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3.1 Eligible Employees. All Eligible Employees shall be eligible to receive
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incentive stock options under this Article III.
3.2 Calculation of Exercise Price. The exercise price to be paid for each
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share of Common Stock deliverable upon exercise of each incentive stock option
granted hereunder shall be equal to the fair market value per share of Common
Stock at the time of grant, as determined by the Committee pursuant to Section
1.11.6; provided, however, that in the case of an Eligible Employee who, at the
time such incentive stock option is granted, owns more than 10% of the total
combined voting power of all classes of stock of the Company or any subsidiary
corporation, within the meaning of section 422(b)(6) of the Code (a "10%
Eligible Employee"), the exercise price per share shall be at least 110% of the
fair market value per share of Common Stock at the time of grant. The exercise
price for each incentive stock option shall be subject to adjustment as provided
in Section 1.11.5.
3.3 Term and Conditions of Options. Incentive stock options shall be in
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such form as the Committee may from time to time approve, shall be subject to
the following terms and conditions and may contain such additional terms and
conditions, not inconsistent with this Article III, as the Committee shall deem
desirable:
3.3.1 Option Period and Conditions and Limitations on Exercise.
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Subject to Section 3.4, no incentive stock option shall be exercisable with
respect to any of the shares subject to such incentive stock option later
than the date which is the date determined by the Committee upon the grant
thereof (the "ISO Expiration Date"), which shall be no later than ten years
after the date of grant; provided, however, that in the case of any 10%
Eligible Employee, the ISO Expiration Date of any incentive stock option
granted thereto shall not be later than five years after the date of such
grant. To the extent not prohibited by other provisions of the Plan, each
incentive stock option shall be exercisable at such time or times as the
Committee in its discretion may determine at or prior to the time such
incentive stock option is granted. In the event the Committee makes no such
determination, each incentive stock option shall be exercisable from time to
time, in whole or in part, subject to the monetary limitations set forth in
Section 3.3.3, at any time prior to the ISO Expiration Date.
3.3.2 Termination of Employment; Death. For purposes of this Article
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III and each incentive stock option granted hereunder, an Eligible
Employee's employment shall be deemed to have terminated at the close of
business on the day preceding the first date on which such Eligible Employee
is no longer for any reason whatsoever (including the death of such Eligible
Employee) employed by the Company or a subsidiary of the Company. An
Eligible Employee shall be considered to be in the employment of the Company
or a subsidiary of the Company as long as such Eligible Employee remains an
employee of the Company or a subsidiary of the Company, whether active or on
any authorized leave of absence. Any question as to whether and when there
has been a termination of such employment, and the cause of such
termination, shall be determined by the Committee and its determination
shall be final and conclusive. If an Eligible Employee's employment is
terminated for any reason whatsoever (including the death of such Eligible
Employee), each incentive stock option thereunto granted hereunder and all
rights thereunder shall wholly and completely terminate as follows:
(a) With respect to incentive stock options not then exercisable,
at the time the Eligible Employee's employment is terminated; and
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(b) With respect to incentive stock options then exercisable:
(i) At the time the Eligible Employee's employment is
terminated if his employment is terminated because he is discharged
for fraud, theft or embezzlement committed against the Company or a
subsidiary, affiliated entity or customer of the Company, or for
conflict of interest (other than legitimate competition); or
(ii) At the expiration of a period of one year after the
Eligible Employee's death (but in no event later than the ISO
Expiration Date) if the Eligible Employee's employment is
terminated by reason of his death. An incentive stock option
granted under this Article III may be exercised by the Eligible
Employee's estate or by the person or persons who acquire the right
to exercise such incentive stock option by bequest or inheritance;
or
(iii) At the expiration of a period of three years (but in
no event later than the ISO Expiration Date) after the Eligible
Employee's employment is terminated if the Eligible Employee's
employment has terminated because of retirement or disability ; or
(iv) At the expiration of a period of three months after the
Eligible Employee's employment is terminated (but in no event later
than the ISO Expiration Date) if the Eligible Employee's employment
is terminated for any reason other than the reasons specified in
Section 3.3.2(b)(i)-(iii); provided, however, that the Committee.
In the event and to the extent that an incentive stock option granted
under this Article III is not exercised (i) within three months after
the Eligible Employee's employment is terminated because of retirement
or disability not within the meaning of section 22(e)(3) of the Code, or
(ii) within one year after the Eligible Employee's employment is
terminated because of disability within the meaning of section 22(e)(3)
of the Code, such option shall be taxed as a nonqualified option.
3.3.3 Limitation on Amount. Notwithstanding any other provision of the
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Plan, the aggregate fair market value (determined as of the time an
incentive stock option is granted, based upon the calculation of the
exercise price as provided in Sections 3.2 and 1.11.6) of the Common Stock
with respect to which incentive stock options are exercisable for the first
time by an Eligible Employee, under all incentive stock option plans of the
Company and its subsidiaries, during any calendar year cannot exceed
$100,000 or such other maximum amount permitted under Section 422(d) of the
Code. If the date on which one or more of such incentive stock options
could first be exercised would be accelerated pursuant to any provision of
the Plan or any option agreement, and the acceleration of such exercise date
would result in a violation of the monetary restriction set forth in the
preceding sentence, then, notwithstanding any such provision, but subject to
the provisions of the next succeeding sentence, the exercise dates of such
incentive stock options shall be accelerated only to the date or dates, if
any, that do not result in a violation of such restriction and, in such
event the exercise date of the incentive stock options with the lowest
option prices shall be accelerated to the earliest such dates. The
Committee may, in its discretion, authorize the acceleration of the exercise
date of one or more incentive stock options even if such acceleration would
violate the monetary restriction set forth in the first sentence of this
Section 3.3.3 and even if such incentive stock options were thereby
converted in whole or in part to nonqualified options.
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