EXHIBIT 10.7
COL CHINA ONLINE INTERNATIONAL INC.
2000 STOCK OPTION PLAN
As Adopted As Of April 14, 2000
This 2000 Stock Option (the "Plan") is adopted by COL China Online
International Inc. (the "Company")
effective as of April 14, 2000.
1. Definitions.
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Unless otherwise indicated or required by the particular context, the
terms used in this Plan shall have the following meanings:
Board: The Board Of Directors of the Company.
Change in Control. For purposes of this Plan, a "Change in Control"
shall mean any of the following events:
(a) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act")) immediately
after which such Person has "Beneficial Ownership" (within the meaning of
Rule 13d-3 promulgated under the 1934 Act) of thirty percent or more of the
combined voting power of the Company's then outstanding Voting Securities;
provided, however, that in determining whether a Change in Control has
occurred, Voting Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not constitute an acquisition
which would cause a Change in Control. A "Non-Control Acquisition" shall
mean an acquisition by (1) an employee benefit plan (or a trust forming a
part thereof) maintained by (x) the Company or (y) any corporation or other
Person of which a majority of its voting power or its equity securities or
equity interest is owned directly or indirectly by the Company (a
"Subsidiary"), (2) the Company or any Subsidiary, or (3) any Person in
connection with a "Non-Control Transaction."
(b) The individuals who, as of the date hereof, are members of the
Board (the "Incumbent Board"), cease for any reason to constitute at least
two-thirds of the Board; provided, however, that if the election, or
nomination for election by the Company's stockholders, of any new director
was approved by a vote of at least two-thirds of the then Incumbent Board,
such new director shall, for purposes of this Plan, be considered as a
member of the Incumbent Board; provided, further, however, that no
individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated
under the 1934 Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest; or
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(c) Approval by stockholders of the Company of:
(1) A merger, consolidation or reorganization involving the
Company, unless
(A) the stockholders of the Company, immediately before such
merger, consolidation or reorganization, own, directly or indirectly,
immediately following such merger, consolidation or reorganization, at
least sixty percent of the combined voting power of the outstanding Voting
Securities of the corporation resulting from such merger or consolidation
or reorganization (the "Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities immediately before
such merger, consolidation or reorganization, and
(B) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for such
merger, consolidation or reorganization constitute at least two-thirds of
the members of the board of directors of the Surviving Corporation or a
corporation beneficially owning, directly or indirectly, a majority of the
Voting Securities of the Surviving Corporation, and
(C) no Person (other than the Company, any Subsidiary, any
employee benefit plan (or any trust forming a part thereof) maintained by
the Company, the Surviving Corporation or any Subsidiary, or any Person
who, immediately prior to such merger, consolidation or reorganization had
Beneficial Ownership of thirty percent or more of the then outstanding
Voting Securities) owns, directly or indirectly, thirty percent or more of
the combined voting power of the Surviving Corporation's then outstanding
voting securities, and
(D) a transaction described in clauses (A) through (C) shall
herein be referred to as a "Non-Control Transaction";
(2) A complete liquidation or dissolution of the Company; or
(3) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a
transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than the permitted amount of the outstanding Voting Securities as a
result of the acquisition of Voting Securities by the Company which, by reducing
the number of Voting Securities outstanding, increases the proportional number
of shares Beneficially Owned by the Subject Person, provided that if a Change in
Control would occur (but for the operation of this sentence) as a result of the
acquisition of Voting Securities by the Company, and after such share
acquisition by the Company, the Subject Person becomes the Beneficial Owner of
any additional Voting Securities which increases the percentage of the then
outstanding Voting Securities Beneficially Owned by the Subject Person, then a
Change in Control shall occur.
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(d) Notwithstanding anything contained in this Plan to the
contrary, if the Optionee is an employee of the Company and Optionee's
employment is terminated prior to a Change in Control and the Optionee
reasonably demonstrates that such termination (i) was at the request of a
third party who has indicated an intention or taken steps reasonably
calculated to effect a Change in Control and who effectuates a Change in
Control (a "Third Party") or (ii) otherwise occurred in connection with, or
in anticipation of, a Change in Control which actually occurs, then for all
purposes of this Plan, the date of a Change in Control with respect to the
Optionee shall mean the date immediately prior to the date of such
termination of the Optionee's employment.
Code: The Internal Revenue Code of 1986, as amended.
Common Stock: The $.001 par value common stock of the Company.
Company: COL China Online International Inc., a corporation
incorporated under the laws of Delaware, any current or future wholly owned
subsidiaries of the Company, and any successors in interest by merger, operation
of law, assignment or purchase of all or substantially all of the property,
assets or business of the Company.
Date Of Grant: The date on which an Option, as defined below, is
granted under the Plan.
Fair Market Value: The Fair Market Value of the Option Shares
(defined below). The Fair Market Value as of any date shall be as reasonably
determined by the Option Committee (defined below); provided, however, that if
there is a public market for the Common Stock, the Fair Market Value of the
Option Shares as of any date shall not be less than the last reported sale price
for the Common Stock on that date (or on the preceding stock market business day
if such date is a Saturday, Sunday, or a holiday), on the New York Stock
Exchange ("NYSE"), as reported in The Wall Street Journal, or if not reported in
The Wall Street Journal, as reported in The Denver Post, Denver, Colorado or, if
no last sale price for the NYSE is available, then the last reported sale price
on either another stock exchange or on a national or local over-the-counter
market, as reported by The Wall Street Journal, or if not available there, in
The Denver Post; provided further, that if no such published last sale price is
available and a published bid price is available from one of those sources, then
the Fair Market Value of the shares shall not be less than such last reported
bid price for the Common Stock, and if no such published bid price is available,
the Fair Market Value of such shares shall not be less than the average of the
bid prices quoted as of the close of business on that date by any two
independent persons or entities making a market for the Common Stock, such
persons or entities to be selected by the Option Committee.
Incentive Options: "Incentive stock options" as that term is
defined in Code Section 422 or the successor to that Section.
Key Employee: A person designated by the Option Committee who is
employed by the Company and whose continued employment is considered to be in
the best interests of the Company; provided, however, that Key Employees shall
not include those members of the Board who are not employees of the Company.
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Key Individual: A person, other than an employee of the Company,
who is committed to the interests of the Company; provided, however, that Key
Individuals shall not include those members of the Board who are not employees
of the Company.
Non-Employee Director: A director of the Company who (a) is not
currently an officer of the Company or a parent or subsidiary of the Company, or
otherwise currently employed by the Company or a parent or subsidiary of the
Company, (b) does not receive compensation, either directly or indirectly, from
the Company or a parent or subsidiary of the Company, for services rendered as a
consultant or in any capacity other than as a director, except for an amount
that does not exceed the dollar amount for which disclosure would be required
pursuant to Regulation S-K, Item 404(a), under the Securities Act of 1933, as
amended, (c) does not possess an interest in any other transaction for which
disclosure by the Company would be required pursuant to Regulation S-K, Item
404(a), and (d) is not engaged in a business relationship for which disclosure
by the Company would be required pursuant to Regulation S-K, Item 404(a).
Non-Qualified Options: Options that are not intended to qualify,
or otherwise do not qualify, as Incentive Options. To the extent that Options
that are designated by the Option Committee as Incentive Options do not qualify
as "incentive stock options" under Code Section 422 or the successor to that
Section, those Options shall be treated as Non-Qualified Options and an Outside
Director.
Option: The rights to purchase Common Stock granted pursuant to
the terms and conditions of an Option Agreement (defined below).
Option Agreement: The written agreement (including any amendments
or supplements thereto) between the Company and either a Key Employee or a Key
Individual designating the terms and conditions of an Option.
Option Committee: The Plan shall be administered by an Option
Committee ("Option Committee") composed of the Board or by a committee of at
least two directors selected by the Board; provided, however, that (a) if the
Option Committee consists of less than the entire Board, each member shall be a
Non-Employee Director and (b) to the extent necessary for any Option intended to
qualify as Performance-Based Compensation to so qualify, each member of the
Option Committee, whether or not it consists of the entire Board, shall be an
Outside Director. For purposes of the proviso to the preceding sentence (the
"Proviso"), if one or more members of the Committee is not, in the case of
clause (a) of the Proviso, a Non-Employee Director, or, in the case of clause
(b) of the Proviso, an Outside Director, and, in either case, recuses himself or
herself or abstains from voting with respect to a particular action taken by the
Option Committee, then the Option Committee, with respect to that action, shall
be deemed to consist only of the members of the Option Committee who have not
recused themselves or abstained from voting.
Option Shares: The shares of Common Stock underlying an Option
granted pursuant to this Plan.
Optionee: A Key Employee or Key Individual who has been granted an
Option.
Outside Director: "Outside Director" shall have the meaning set
forth in Section 162 of the Code or the successor to that Section and any
regulations promulgated under that or the successor to that Section.
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Performance-Based Compensation: "Performance-Based Compensation"
means any Option that is intended to constitute "performance-based compensation"
within the meaning of Section 162(m)(4)(C) of the Code and the regulations
promulgated thereunder.
Permitted Transferee: A Permitted Transferee means, with respect
to any person, such person's immediate family, trusts solely for the benefit of
such family members and partnerships in which such family members and/or trusts
are the only partners. For this purpose, immediate family of a person means the
person's spouse, parents, children, stepchildren and grandchildren and the
spouses of such parents, children, stepchildren and grandchildren.
2. Purpose And Scope.
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(a) The purpose of the Plan is to advance the interests of the
Company and its stockholders by affording Key Employees and Key Individuals,
upon whose initiative and efforts, in the aggregate, the Company is largely
dependent for the successful conduct of its business, an opportunity for
investment in the Company and the incentive advantages inherent in stock
ownership in the Company.
(b) This Plan authorizes the Option Committee to grant Incentive
Options to Key Employees and to grant Non-Qualified Options to Key Employees and
Key Individuals, selected by the Option Committee while considering criteria
such as employment position or other relationship with the Company, duties and
responsibilities, ability, productivity, length of service or association,
morale, interest in the Company, recommendations by supervisors, the interests
of the Company, and other matters.
3. Administration Of The Plan.
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(a) The Plan shall be administered by the Option Committee. The
Option Committee shall have the authority granted to it under this Section and
under each other section of the Plan.
(b) In accordance with and subject to the provisions of the Plan,
the Option Committee shall select the Optionees and shall determine (i) the
number of shares of Common Stock to be subject to each Option, (ii) the time at
which each Option is to be granted, (iii) whether an Option shall be granted in
exchange for the cancellation and termination of a previously granted option or
options under the Plan or otherwise, (iv) the purchase price for the Option
Shares, provided that the purchase price shall be a fixed, and cannot be a
fluctuating, price, (v) the option period, including provisions for the
termination of the Option prior to the expiration of the exercise period upon
the occurrence of certain events, (vi) the manner in which the Option becomes
exercisable, including whether portions of the Option become exercisable at
different times and including determining that, at any time, the portion not yet
exercisable shall become exercisable upon the occurrence of certain events, and
(vii) such other terms and conditions as the Option Committee may deem necessary
or desirable. The Option Committee shall determine the form of Option Agreement
to evidence each Option and may amend the terms of any Option (subject to
Section 3(d) below).
(c) The Option Committee from time to time may adopt such rules
and regulations for carrying out the purposes of the Plan as it may deem proper
and in the best interests of the Company. The Option Committee shall keep
minutes of its meetings and those minutes shall be distributed to every member
of the Board.
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(d) The Board from time to time may make such changes in and
additions to the Plan as it may deem proper and in the best interests of the
Company provided, however, that no such change or addition shall impair any
Option previously granted under the Plan, and that no change that under
applicable law requires the approval of stockholders may be made without such
approval.
(e) Each determination, interpretation or other action made or
taken by the Option Committee, unless otherwise determined by the Board, shall
be final, conclusive and binding on all persons, including without limitation,
the Company, the stockholders, directors, officers and employees of the Company,
and the Optionees and their respective successors in interest. No member of the
Option Committee shall be personally liable for any action, determination, or
interpretation made in good faith with respect to the Plan, and all members of
the Option Committee shall be, in addition to rights they may have as directors
of the Company, fully protected by the Company with respect to any such action,
determination or interpretation. If the Board makes a determination contrary to
the Option Committee's determination, interpretation or other action, then the
Board's determination shall be final and conclusive in the same manner.
4. The Common Stock.
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The Board is authorized to appropriate, issue and sell for the
purposes of the Plan, and the Option Committee is authorized to grant Options
with respect to, a total number not in excess of 4,000,000 shares of Common
Stock, either treasury or authorized and unissued, or the number and kind of
shares of stock or other securities which in accordance with Section 9 shall be
substituted for the 4,000,000 shares or into which such 4,000,000 shares shall
be adjusted. All or any unsold shares subject to an Option, that for any reason
expires or otherwise terminates before it has been exercised, again may be made
subject to Options under the Plan. No one person may be granted during any
two-year period Options under the Plan to purchase more than 400,000 shares.
5. Eligibility.
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Incentive Options may be granted only to Key Employees.
Non-Qualified Options may be granted both to Key Employees and to Key
Individuals. Key Employees and Key Individuals may hold more than one Option
under the Plan and may hold Options under the Plan as well as options granted
pursuant to other plans or otherwise.
6. Option Price.
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The Option Committee shall determine the purchase price for the
Option Shares; provided, however, that the purchase price to be paid by
Optionees for the Option Shares shall not be less than 100 percent of the Fair
Market Value of the Option Shares on the Date Of Grant and provided further that
the purchase price shall be a fixed, and cannot be a fluctuating, price.
7. Duration And Exercise Of Options.
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(a) Except as provided in Section 15, the option period shall
commence on the Date Of Grant or other date or dates determined by the Option
Committee and shall continue for the period designated by the Option Committee
up to a maximum of ten years from the Date Of Grant.
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(b) During the lifetime of the Optionee, the Option shall be
exercisable only by the Optionee; provided that, subject to the following
sentence and paragraph (d) of this Section 7, in the event of the legal
disability of an Optionee, the guardian or personal representative of the
Optionee may exercise the Option. If the Option is an Incentive Option, it may
be exercised by the guardian or personal representative of the Optionee only if
the guardian or personal representative obtains a ruling from the Internal
Revenue Service or an opinion of counsel to the effect that neither the grant
nor the exercise of such power is violative of Code Section 422(b)(5) or the
successor to that provision. Any opinion of counsel must be both from counsel
acceptable to the Option Committee and in a form acceptable to the Option
Committee.
(c) If the Optionee's employment or affiliation with the Company
is terminated for any reason except the Optionee's death, then (i) any Incentive
Option then held, to the extent that the Incentive Option was exercisable
according to its terms on the date of termination, may be exercised only to the
extent determined by the Option Committee at the time of grant or thereafter and
set forth in the Option Agreement, but in no case more than three (3) months
after termination of the Optionee's employment, and (ii) any Non-Qualified
Option then held by the Optionee, to the extent that the Non-Qualified Option
was exercisable according to its terms on the date of termination, may be
exercised only to the extent determined by the Option Committee at the time of
grant or thereafter and set forth in the Option Agreement, but in no case more
than three (3) years after termination of the Optionee's employment or
affiliation. If the Optionee's employment or affiliation with the Company is
terminated because of the Optionee's death, any Option then held, to the extent
that the Option was exercisable according to its terms on the date of
termination, may be exercised only to the extent determined by the Option
Committee at the time of grant or thereafter and set forth in the Option
Agreement, but in no case more than one (1) year after termination. Any Option
remaining unexercised shall expire at the later of termination or the end of the
extended exercise period, if any.
(d) Each Option shall be exercised in whole or in part by
delivering to the office of the Treasurer of the Company written notice of the
number of shares with respect to which the Option is to be exercised and by
paying in full the purchase price for the Option Shares purchased as set forth
in Section 8 herein; provided, that an Option may not be exercised in part
unless the purchase price for the Option Shares purchased is at least $1,000.
(e) No Option may be exercised until the Plan is approved by the
stockholders of the Company as provided in Section 15 below.
8. Payment For Option Shares.
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(a) If the purchase price of the Option Shares purchased by any
Optionee at one time exceeds $1,000, all or part of the purchase price for the
Option Shares may be paid by delivery to the Company for cancellation shares of
the Common Stock previously owned by the Optionee ("Previously Owned Shares")
with a Fair Market Value as of the date of the payment equal to the portion of
the purchase price for the Option Shares that the Optionee does not pay in cash.
Notwithstanding the above, an Optionee shall be permitted to exercise his Option
by delivering Previously Owned Shares only if he has held, and provides
appropriate evidence of such, the Previously Owned Shares for more than six
months prior to the date of exercise (or such lesser period as the Option
Committee may permit). This period (the "Holding Period") may be extended by the
Option Committee acting in its sole discretion as is necessary, in the opinion
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of the Option Committee, so that, under generally accepted accounting
principles, no compensation shall be considered to have been or to be paid to
the Optionee as a result of the exercise of the Option in this manner. At the
time the Option is exercised, the Optionee shall provide an affidavit, and such
other evidence and documents as the Option Committee shall request, to establish
the Optionee's Holding Period.
(b) If payment for the exercise of an Option is made other than by
the delivery to the Company for cancellation of shares of the Common Stock, the
purchase price shall be paid in cash, certified funds, or Optionee's check.
Payment shall be considered made when the Treasurer of the Company receives
delivery of the payment at the Company's address, provided that a payment made
by check is honored when first presented to the Optionee's bank.
9. Change In Stock, Adjustments, Etc.
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In the event that each of the outstanding shares of Common Stock
(other than shares held by dissenting stockholders which are not changed or
exchanged) should be changed into, or exchanged for, a different number or kind
of shares of stock or other securities of the Company, or if further changes or
exchanges of any stock or other securities into which the Common Stock shall
have been changed, or for which it shall have been exchanged, shall be made
(whether by reason of merger, consolidation, reorganization, recapitalization,
stock dividends, reclassification, split-up, spin-off, combination of shares or
otherwise), then there shall be substituted for each share of Common Stock that
is subject to the Plan but not subject to an outstanding Option hereunder, the
number and kind of shares of stock or other securities into which each
outstanding share of Common Stock (other than shares held by dissenting
stockholders which are not changed or exchanged) shall be so changed or for
which each outstanding share of Common Stock (other than shares held by
dissenting stockholders) shall be so changed or for which each such share shall
be exchanged. Any securities so substituted shall be subject to similar
successive adjustments.
In the event of any such changes or exchanges, (i) the Option
Committee shall determine whether an adjustment should be made in the number, or
kind, or option price of the shares or other securities that are then subject to
an Option or Options granted pursuant to the Plan, (ii) the Option Committee
shall make any such adjustment, and (iii) such adjustments shall be made and
shall be effective and binding for all purposes of the Plan.
10. Relationship To Employment Or Position.
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Nothing contained in the Plan, or in any Option or Option Share
granted pursuant to the Plan, (i) shall confer upon any Optionee any right with
respect to continuance of his employment by, or position or affiliation with, or
relationship to, the Company, or (ii) shall interfere in any way with the right
of the Company at any time to terminate the Optionee's employment by, position
or affiliation with, or relationship to, the Company.
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11. Nontransferability Of Option.
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No Option shall be transferable by the Optionee otherwise than by
will or by the laws of descent and distribution or, in the case of an Option
other than an Incentive Stock Option, pursuant to a domestic relations order
(within the meaning of Rule 12a-12 promulgated under the Exchange Act), and
Options shall be exercisable during the lifetime of an Optionee only by the
Optionee or his or her guardian or legal representative. Notwithstanding the
foregoing, the Committee may set forth in the Agreement evidencing an Option
(other than an Incentive Stock Option) at the time of grant or thereafter, that
the Option may be transferred to Permitted Transferees of the Optionee, and for
purposes of this Plan, a Permitted Transferee of an Optionee shall be deemed to
be the Optionee. The terms of an Option shall be final, binding and conclusive
upon the beneficiaries, executors, administrators, heirs and successors of the
Optionee.
12. Rights As A Stockholder.
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No person shall have any rights as a stockholder with respect to
any share covered by an Option until that person shall become the holder of
record of such share and, except as provided in Section 9, no adjustments shall
be made for dividends or other distributions or other rights as to which there
is an earlier record date.
13. Securities Laws Requirements.
---------------------------------
No Option Shares shall be issued unless and until, in the opinion
of the Company, any applicable registration requirements of the Securities Act
of 1933, as amended, any applicable listing requirements of any securities
exchange on which stock of the same class is then listed, and any other
requirement of law or of any regulatory bodies having jurisdiction over such
issuance and delivery, have been fully complied with. Each Option Agreement and
each Option Share certificate may be imprinted with legends reflecting federal
and state securities laws restrictions and conditions, and the Company may
comply therewith and issue "stop transfer" instructions to its transfer agent
and registrar in good faith without liability.
14. Disposition Of Shares.
--------------------------
To the extent reasonably requested by the Company, each Optionee,
as a condition of exercise, shall represent, warrant and agree, in a form of
written certificate approved by the Company, as follows: (a) that all Option
Shares are being acquired solely for his own account and not on behalf of any
other person or entity; (b) that no Option Shares will be sold or otherwise
distributed in violation of the Securities Act of 1933, as amended, or any other
applicable federal or state securities laws; (c) that he will report all sales
of Option Shares to the Company in writing on a form prescribed by the Company;
and (d) that if he is subject to reporting requirements under Section 16(a) of
the Exchange Act, (i) he will not violate Section 16(b) of the Exchange Act,
(ii) he will furnish the Company with a copy of each Form 4 and Form 5 filed by
him, and (iii) he will timely file all reports required under the federal
securities laws.
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15. Effective Date Of Plan; Termination Date Of Plan.
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Subject to the approval of the Plan on or before April 14, 2001 by
the affirmative vote of the holders of a majority of the shares of Common Stock
entitled to vote and represented at a meeting duly held in accordance with the
applicable laws of the State of Delaware, the Plan shall be deemed effective as
of April 14, 2000. The Plan shall terminate at midnight on the date that is ten
years from that date, except as to Options previously granted and outstanding
under the Plan at that time. No Options shall be granted after the date on which
the Plan terminates. The Plan may be abandoned or terminated at any earlier time
by the Board, except with respect to any Options then outstanding under the
Plan.
16. Limitation On Amount Of Option.
-----------------------------------
The aggregate Fair Market Value of the Option Shares underlying
all Incentive Options that have been granted to a particular Optionee and that
become exercisable for the first time during the same calendar year shall not
exceed $100,000, provided that this amount shall be increased or decreased, from
time to time, as Code Section 422 or the successor to that Section is amended,
so that this amount at all times shall equal the amount of the limitation set
forth in the Code. For purposes of the preceding sentence, Fair Market Value of
the Shares underlying any particular Option shall be determined as of the Date
of Grant of that Option.
17. Ten Percent Stockholder Rule.
---------------------------------
No Incentive Option may be granted to a Key Employee who, at the
time the Incentive Option is granted, owns stock possessing more than 10 percent
of the total combined voting power of all classes of stock of the Company or of
"parent corporation" or "subsidiary corporation", as those terms are defined in
Section 424, or its successor provision, of the Code, unless at the time the
Incentive Option is granted the purchase price for the Option Shares is at least
110 percent of the Fair Market Value of the Option Shares on the Date Of Grant
and the Incentive Option by its terms is not exercisable after the expiration of
five years from the Date Of Grant. For purposes of the preceding sentence, stock
ownership shall be determined as provided in Section 424, or its successor
provision, of the Code.
18. Withholding Taxes.
----------------------
The Option Agreement shall provide that the Company may take such
steps as it may deem necessary or appropriate for the withholding of any taxes
which the Company is required by any law or regulation or any governmental
authority, whether federal, state or local, domestic or foreign, to withhold in
connection with any Option including, but not limited to, the withholding of all
or any portion of any payment or the withholding of issuance of Option Shares to
be issued upon the exercise of any Option.
19. Effect Of Changes In Control.
---------------------------------
In event of a Change in Control of the Company, then all Options
granted pursuant to the Plan shall become exercisable immediately at the time of
such Change In Control, and, in addition, the Option Committee, in its sole
discretion, shall have the right, but not the obligation, to do any or all of
the following:
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(a) provide for an Optionee to surrender an Option (or portion
thereof) and to receive in exchange a cash payment, for each Option Share
underlying the surrendered Option, equal to the excess of the aggregate Fair
Market Value of the Option Share on the date of surrender over the exercise
price for the Option Share. To the extent any Option is surrendered pursuant to
this Subparagraph 19(a), it shall be deemed to have been exercised for purposes
of Section 4 hereof; and
(b) make any other adjustments, or take any other action, as the
Option Committee, in its discretion, shall deem appropriate provided that any
such adjustments or actions would not result in an Optionee receiving less value
than pursuant to Subparagraph 19(a) above.
20. Other Provisions.
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The following provisions are also in effect under the Plan:
(a) The use of a masculine gender in the Plan shall also include
within its meaning the feminine, and the singular may include the plural, and
the plural may include the singular, unless the context clearly indicates to the
contrary.
(b) Any expenses of administering the Plan shall be borne by the
Company.
(c) This Plan shall be construed to be in addition to any and all
other compensation plans or programs. Neither the adoption of the Plan by the
Board nor the submission of the Plan to the stockholders of the Company for
approval shall be construed as creating any limitations on the power or
authority of the Board to adopt such other additional incentive or other
compensation arrangements as the Board may deem necessary or desirable.
(d) The validity, construction, interpretation, administration and
effect of the Plan and of its rules and regulations, and the rights of any and
all persons having or claiming to have an interest therein or thereunder shall
be governed by and determined exclusively and solely in accordance with the laws
of the State of Colorado, except in those instances where the rules of conflicts
of laws would require application of the laws of the State of Delaware.
* * * * *
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