Exhibit 4.1
CALYPTE BIOMEDICAL CORPORATION
2000 EQUITY INCENTIVE PLAN (AS AMENDED)
AS AMENDED MAY 20, 2003
1. PURPOSE. The purpose of this Plan is to provide incentives to attract,
retain and motivate eligible persons whose present and potential contributions
are important to the success of the Company, its Parent and Subsidiaries, by
offering them an opportunity to participate in the Company's future performance
through awards of Options, Restricted Stock and Stock Bonuses. Capitalized terms
not defined in the text are defined in Section 23.
2. SHARES SUBJECT TO THE PLAN.
A. NUMBER OF SHARES AVAILABLE. Subject to Sections 2.2 and 18, the total
number of Shares reserved and available for grant and issuance pursuant to this
Plan will be 10,000,000 Shares. Subject to Sections 2.2 and 18, Shares that: (a)
are subject to issuance upon exercise of an Option but cease to be subject to
such Option for any reason other than exercise of such Option; or (b) are
subject to an Award that otherwise terminates without Shares being issued, will
again be available for grant and issuance in connection with future Awards under
this Plan. Any authorized shares not issued or subject to outstanding grants
under the Prior Plan on the Effective Date and any shares that: (a) are issuable
upon exercise of options granted pursuant to the Prior Plan that expire or
become unexercisable for any reason without having been exercised in full; (b)
are subject to an award granted pursuant to the Prior Plan but such Award has
been exchanged by the holder thereof for awards granted under this Plan; or (c)
are subject to an award granted pursuant to the Prior Plan that otherwise
terminates without shares being issued, will no longer be available for grant
and issuance under the Prior Plan, but will be available for grant and issuance
under this Plan. At all times the Company shall reserve and keep available a
sufficient number of Shares as shall be required to satisfy the requirements of
all outstanding Options granted under this Plan and all other outstanding but
unvested Awards granted under this Plan.
B. ADJUSTMENT OF SHARES. In the event that the number of outstanding Shares
is changed by a stock dividend, recapitalization, stock split, reverse stock
split, subdivision, combination, reclassification or similar change in the
capital structure of the Company without consideration, then (a) the number of
Shares reserved for issuance under this Plan, (b) the Exercise Prices of and
number of Shares subject to outstanding Options, and (c) the number of Shares
subject to other outstanding Awards will be proportionately adjusted, subject to
any required action by the Board or the stockholders of the Company and
compliance with applicable securities laws; provided, however, that fractions of
a Share will not be issued but will either be replaced by a cash payment equal
to the Fair Market Value of such fraction of a Share or will be rounded up to
the nearest whole Share, as determined by the Committee.
3. ELIGIBILITY. ISOs may be granted only to employees (including officers
and directors who are also employees) of the Company or of a Parent or
Subsidiary. All other Awards may be granted to employees, officers, directors,
consultants, independent contractors and advisors of the Company or any Parent
or Subsidiary; provided such consultants, contractors and advisors render bona
fide services not in connection with the offer and sale of securities in a
capital-raising transaction. No person will be eligible to receive more than
2,500,000 Shares in any calendar year under this Plan pursuant to the grant of
Awards hereunder.
4. ADMINISTRATION.
A. COMMITTEE AUTHORITY. This Plan will be administered by the Committee or
by the Board acting as the Committee. Subject to the general purposes, terms and
conditions of this Plan, and to the direction of the Board, the Committee will
have full power to implement and carry out this Plan. Without limitation, the
Committee will have the authority to:
(1) construe and interpret this Plan, any Award Agreement and any other
agreement or document executed pursuant to this Plan;
(2) prescribe, amend and rescind rules and regulations relating to this Plan;
(3) select persons to receive Awards;
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(4) determine the form and terms of Awards;
(5) determine the number of Shares or other consideration subject to Awards;
(6) determine whether Awards will be granted singly, in combination with, in
tandem with, in replacement of, or as alternatives to, other Awards under
this Plan or any other incentive or compensation plan of the Company or any
Parent or Subsidiary;
(7) grant waivers of Plan or Award conditions;
(8) determine the vesting, exercisability and payment of Awards;
(9) correct any defect, supply any omission or reconcile any inconsistency in
this Plan, any Award or any Award Agreement;
(10) determine whether an Award has been earned; and
(11) make all other determinations necessary or advisable for the administration
of this Plan.
B. COMMITTEE DISCRETION. Any determination made by the Committee with
respect to any Award will be made in its sole discretion at the time of grant of
the Award or, unless in contravention of any express term of this Plan or Award,
at any later time, and such determination will be final and binding on the
Company and on all persons having an interest in any Award under this Plan. The
Committee may delegate to one or more officers of the Company the authority to
grant an Award under this Plan to Participants who are not Insiders of the
Company.
C. EXCHANGE ACT REQUIREMENTS. If two or more members of the Board are
Outside Directors, the Committee will be comprised of at least two (2) members
of the Board, all of whom are Outside Directors.
5. OPTIONS. The Committee may grant Options to eligible persons and will
determine whether such Options will be ISOs or NQSOs, the number of Shares
subject to the Option, the Exercise Price of the Option, the period during which
the Option may be exercised, and all other terms and conditions of the Option,
subject to the following:
A. FORM OF OPTION GRANT. Each Option granted under this Plan will be
evidenced by an Award Agreement which will expressly identify the Option as an
ISO or an NQSO and will be in such form and contain such provisions (which need
not be the same for each Participant) as the Committee may from time to time
approve, and which will comply with and be subject to the terms and conditions
of this Plan.
B. DATE OF GRANT. The date of grant of an Option will be the date on which the
Committee makes the determination to grant such Option, unless otherwise
specified by the Committee. The Stock Option Agreement and a copy of this Plan
will be delivered to the Participant within a reasonable time after the granting
of the Option.
C. EXERCISE PERIOD. Options may be exercisable immediately (subject to
repurchase pursuant to Section 12 of this Plan) or may be exercisable within the
times or upon the events determined by the Committee as set forth in the Stock
Option Agreement governing such Option; provided, however, that no Option will
be exercisable after the expiration of ten (10) years from the date the Option
is granted; and provided further that no ISO granted to a Ten Percent
Stockholder will be exercisable after the expiration of five (5) years from the
date the ISO is granted. The Committee also may provide for the exercise of
Options to become exercisable at one time or from time to time, periodically or
otherwise, in such number of Shares or percentage of Shares as the Committee
determines.
D. EXERCISE PRICE. The Exercise Price of an Option will be determined by the
Committee when the Option is granted and may be less than the Fair Market Value
of the Shares on the date of grant; provided that: (i) the Exercise Price of an
ISO will be not less than 100% of the Fair Market Value of the Shares on the
date of grant; and (ii) the Exercise Price of any ISO granted to a Ten Percent
Stockholder will not be less than 110% of the Fair Market Value
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of the Shares on the date of grant. Payment for the Shares purchased may be made
in accordance with Section 8 of this Plan.
E. METHOD OF EXERCISE. Options may be exercised only by delivery to the
Company of a written stock option exercise agreement (the "EXERCISE AGREEMENT")
in a form approved by the Committee (which need not be the same for each
Participant), stating the number of Shares being purchased, the restrictions
imposed on the Shares purchased under such Exercise Agreement, if any, and such
representations and agreements regarding Participant's investment intent and
access to information and other matters, if any, as may be required or desirable
by the Company to comply with applicable securities laws, together with payment
in full of the Exercise Price for the number of Shares being purchased.
F. TERMINATION. Notwithstanding the exercise periods set forth in an Award
Agreement, exercise of an Option will always be subject to the following:
(1) If the Participant is Terminated for any reason except death or Disability,
then the Participant may exercise such Participant's Options only to the extent
that such Options would have been exercisable upon the Termination Date no later
than three (3) months after the Termination Date (or such shorter or longer time
period not exceeding five (5) years as may be determined by the Committee, with
any exercise beyond three (3) months after the Termination Date deemed to be an
NQSO), but in any event, no later than the expiration date of the Options.
(2) If the Participant is Terminated because of Participant's death or
Disability (or the Participant dies within three (3) months after a Termination
other than because of Participant's death or disability), then Participant's
Options may be exercised only to the extent that such Options would have been
exercisable by Participant on the Termination Date and must be exercised by
Participant (or Participant's legal representative or authorized assignee) no
later than twelve (12) months after the Termination Date (or such shorter or
longer time period not exceeding five (5) years as may be determined by the
Committee, with any such exercise beyond (a) three (3) months after the
Termination Date when the Termination is for any reason other than the
Participant's death or Disability, or (b) twelve (12) months after the
Termination Date when the Termination is for Participant's death or Disability,
deemed to be an NQSO), but in any event no later than the expiration date of the
Options.
(3) If a Participant is determined by the Board to have committed on act of
theft, embezzlement, fraud, dishonesty, a breach of fiduciary duty to the
Company or Subsidiary, or deliberate disregard of the rules of the Company or
Subsidiary, or if a Participant makes any unauthorized disclosure of any of the
trade secrets or confidential information of the Company or Subsidiary, engages
in any conduct which constitutes unfair competition with the Company or
Subsidiary, induces any customer of the Company or Subsidiary to break any
contract with the Company or Subsidiary, or induces any principal for whom the
Company or Subsidiary acts as agent to terminate such agency relationship, (each
of which acts by the Participant shall constitute "Misconduct" for purposes of
this Plan) neither the Participant, the Participant's estate nor such other
person who may then hold the Option shall be entitled to exercise any Option
with respect to any Shares whatsoever, after termination of service, whether or
not after termination of service the Participant may receive payment from the
Company or Subsidiary for vacation pay, for services rendered prior to
termination, for services rendered for the day on which termination occurs, for
salary in lieu of notice, or for any other benefits. In making such
determination, the Board shall give the Participant an opportunity to present to
the Board evidence on his behalf. For the purpose of this paragraph, termination
of service shall be deemed to occur on the date when the Company dispatches
notice or advice to the Participant that his service is terminated.
(4) If any Participant's employment is terminated by the Company for any reason
other than for Misconduct or, if applicable, by Constructive Termination, within
one year after a Change of Control has occurred, then all Options held by such
Participant shall become fully vested for exercise upon the date of termination,
irrespective of the vesting provisions of the Participant's Option agreement.
For purposes of this subsection (d), the term "Change of Control" shall have the
meaning assigned by this Plan, unless a different meaning is defined in an
individual Participant's Option.
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G. LIMITATIONS ON EXERCISE. The Committee may specify a reasonable minimum
number of Shares that may be purchased on any exercise of an Option, provided
that such minimum number will not prevent Participant from exercising the Option
for the full number of Shares for which it is then exercisable.
H. LIMITATIONS ON ISOS. The aggregate Fair Market Value (determined as of the
date of grant) of Shares with respect to which ISOs are exercisable for the
first time by a Participant during any calendar year (under this Plan or under
any other incentive stock option plan of the Company or any Parent or
Subsidiary) will not exceed $100,000. If the Fair Market Value of Shares on the
date of grant with respect to which ISOs are exercisable for the first time by a
Participant during any calendar year exceeds $100,000, then the Options for the
first $100,000 worth of Shares to become exercisable in such calendar year will
be ISOs and the Options for the amount in excess of $100,000 that become
exercisable in that calendar year will be NQSOs. In the event that the Code or
the regulations promulgated thereunder are amended after the Effective Date of
this Plan to provide for a different limit on the Fair Market Value of Shares
permitted to be subject to ISOs, such different limit will be automatically
incorporated herein and will apply to any Options granted after the effective
date of such amendment.
I. MODIFICATION, EXTENSION OR RENEWAL. The Committee may modify, extend or
renew outstanding Options and authorize the grant of new Options in substitution
therefor, provided that any such action may not, without the written consent of
a Participant, impair any of such Participant's rights under any Option
previously granted. Any outstanding ISO that is modified, extended, renewed or
otherwise altered will be treated in accordance with Section 424(h) of the Code.
The Committee may reduce the Exercise Price of outstanding Options without the
consent of Participants affected by a written notice to them; provided, however,
that the Exercise Price may not be reduced below the minimum Exercise Price that
would be permitted under Section 5.4 of this Plan for Options granted on the
date the action is taken to reduce the Exercise Price.
J. NO DISQUALIFICATION. Notwithstanding any other provision in this Plan, no
term of this Plan relating to ISOs will be interpreted, amended or altered, nor
will any discretion or authority granted under this Plan be exercised, so as to
disqualify this Plan under Section 422 of the Code or, without the consent of
the Participant affected, to disqualify any ISO under Section 422 of the Code.
6. RESTRICTED STOCK. A Restricted Stock Award is an offer by the Company
to sell to an eligible person Shares that are subject to restrictions. The
Committee will determine to whom an offer will be made, the number of Shares the
person may purchase, the price to be paid (the "PURCHASE PRICE"), the
restrictions to which the Shares will be subject, and all other terms and
conditions of the Restricted Stock Award, subject to the following:
A. FORM OF RESTRICTED STOCK AWARD. All purchases under a Restricted Stock
Award made pursuant to this Plan will be evidenced by an Award Agreement
("RESTRICTED STOCK PURCHASE AGREEMENT") that will be in such form (which need
not be the same for each Participant) as the Committee will from time to time
approve, and will comply with and be subject to the terms and conditions of this
Plan. The offer of Restricted Stock will be accepted by the Participant's
execution and delivery of the Restricted Stock Purchase Agreement and full
payment for the Shares to the Company within thirty (30) days from the date the
Restricted Stock Purchase Agreement is delivered to the person. If such person
does not execute and deliver the Restricted Stock Purchase Agreement along with
full payment for the Shares to the Company within thirty (30) days, then the
offer will terminate, unless otherwise determined by the Committee.
B. PURCHASE PRICE. The Purchase Price of Shares sold pursuant to a Restricted
Stock Award will be determined by the Committee and will be at least 85% of the
Fair Market Value of the Shares on the date the Restricted Stock Award is
granted, except in the case of a sale to a Ten Percent Stockholder, in which
case the Purchase Price will be 100% of the Fair Market Value. Payment of the
Purchase Price may be made in accordance with Section 8 of this Plan.
C. RESTRICTIONS. Restricted Stock Awards will be subject to such restrictions
(if any) as the Committee may impose. The Committee may provide for the lapse of
such restrictions in installments and may accelerate or waive such restrictions,
in whole or part, based on length of service, performance or such other factors
or criteria as the Committee may determine.
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7. STOCK BONUSES.
A. AWARDS OF STOCK BONUSES. A Stock Bonus is an award of Shares (which may
consist of Restricted Stock) for services rendered to the Company or any Parent
or Subsidiary. A Stock Bonus may be awarded for past services already rendered
to the Company, or any Parent or Subsidiary pursuant to an Award Agreement (the
"STOCK BONUS AGREEMENT") that will be in such form (which need not be the same
for each Participant) as the Committee will from time to time approve, and will
comply with and be subject to the terms and conditions of this Plan. A Stock
Bonus may be awarded upon satisfaction of such performance goals as are set out
in advance in the Participant's individual Award Agreement (the "PERFORMANCE
STOCK BONUS AGREEMENT") that will be in such form (which need not be the same
for each Participant) as the Committee will from time to time approve, and will
comply with and be subject to the terms and conditions of this Plan. Stock
Bonuses may vary from Participant to Participant and between groups of
Participants, and may be based upon the achievement of the Company, Parent
and/or Subsidiary individual performance factors or upon such other criteria as
the Committee may determine.
B. TERMS OF STOCK BONUSES. The Committee will determine the number of Shares
to be awarded to the Participant and whether such Shares will be Restricted
Stock. If the Stock Bonus is being earned upon the satisfaction of performance
goals pursuant to a Performance Stock Bonus Agreement, then the Committee will
determine: (a) the nature, length and starting date of any period during which
performance is to be measured (the "PERFORMANCE PERIOD") for each Stock Bonus;
(b) the performance goals and criteria to be used to measure the performance, if
any; (c) the number of Shares that may be awarded to the Participant; and (d)
the extent to which such Stock Bonuses have been earned. Performance Periods may
overlap and Participants may participate simultaneously with respect to Stock
Bonuses that are subject to different Performance Periods and different
performance goals and other criteria. The number of Shares may be fixed or may
vary in accordance with such performance goals and criteria as may be determined
by the Committee. The Committee may adjust the performance goals applicable to
the Stock Bonuses to take into account changes in law and accounting or tax
rules and to make such adjustments as the Committee deems necessary or
appropriate to reflect the impact of extraordinary or unusual items, events or
circumstances to avoid windfalls or hardships.
C. FORM OF PAYMENT. The earned portion of a Stock Bonus may be paid currently
or on a deferred basis with such interest or dividend equivalent, if any, as the
Committee may determine. Payment may be made in the form of cash, whole Shares,
including Restricted Stock, or a combination thereof, either in a lump sum
payment or in installments, all as the Committee will determine.
D. TERMINATION DURING PERFORMANCE PERIOD. If a Participant is Terminated
during a Performance Period for any reason, then such Participant will be
entitled to payment (whether in Shares, cash or otherwise) with respect to the
Stock Bonus only to the extent earned as of the date of Termination in
accordance with the Performance Stock Bonus Agreement, unless the Committee will
determine otherwise.
8. PAYMENT FOR SHARE PURCHASES.
A. PAYMENT. Payment for Shares purchased pursuant to this Plan may be made in
cash (by check) or, where expressly approved for the Participant by the
Committee and where permitted by law:
(1) by cancellation of indebtedness of the Company to the Participant;
(2) by surrender of shares that either: (1) have been owned by Participant for
more than six (6) months and have been paid for within the meaning of SEC Rule
144 (and, if such shares were purchased from the Company by use of a promissory
note, such note has been fully paid with respect to such shares); or (2) were
obtained by Participant in the public market;
(3) by tender of a full recourse promissory note having such terms as may be
approved by the Committee and bearing interest at a rate sufficient to avoid
imputation of income under Sections 483 and 1274 of the Code; provided, however,
that Participants who are not employees or directors of the Company will not be
entitled to purchase Shares with a promissory note unless the note is adequately
secured by collateral other than the Shares;
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(4) by waiver of compensation due or accrued to the Participant for services
rendered;
(5) with respect only to purchases upon exercise of an Option, and provided
that a public market for the Company's stock exists:
(i) through a "same day sale" commitment from the Participant and a
broker-dealer that is a member of the National Association of Securities Dealers
(an "NASD DEALER") whereby the Participant irrevocably elects to exercise the
Option and to sell a portion of the Shares so purchased to pay for the Exercise
Price, and whereby the NASD Dealer irrevocably commits upon receipt of such
Shares to forward the Exercise Price directly to the Company; or
(ii) through a "margin" commitment from the Participant and a NASD Dealer
whereby the Participant irrevocably elects to exercise the Option and to pledge
the Shares so purchased to the NASD Dealer in a margin account as security for a
loan from the NASD Dealer in the amount of the Exercise Price, and whereby the
NASD Dealer irrevocably commits upon receipt of such Shares to forward the
Exercise Price directly to the Company;
(6) by any combination of the foregoing; or
(7) the exchange of any other form of consideration from the Participant to the
Company that is lawful consideration for the issuance of securities sufficient
for such securities to be deemed fully paid and non assessable under the
Delaware General Corporation Law.
B. LOAN GUARANTEES. The Committee may help the Participant pay for Shares
purchased under this Plan by authorizing a guarantee by the Company of a
third-party loan to the Participant.
C. Notwithstanding Sections 8.1(c) and 8.2, any Participant executing rights
and obtaining Shares pursuant to awards granted under this Plan must pay cash or
other valid consideration equal to aggregate par value of such Shares to the
extent required by the Delaware General Corporation Law.
9. WITHHOLDING TAXES.
A. WITHHOLDING GENERALLY. Whenever Shares are to be issued in satisfaction of
Awards granted under this Plan, the Company may require the Participant to remit
to the Company an amount sufficient to satisfy federal, state and local
withholding tax requirements prior to the delivery of any certificate or
certificates for such Shares. Whenever, under this Plan, payments in
satisfaction of Awards are to be made in cash, such payment will be net of an
amount sufficient to satisfy federal, state, and local withholding tax
requirements.
B. STOCK WITHHOLDING. When, under applicable tax laws, a Participant incurs
tax liability in connection with the exercise or vesting of any Award that is
subject to tax withholding and the Participant is obligated to pay the Company
the amount required to be withheld, the Committee may in its sole discretion
allow the Participant to satisfy the minimum withholding tax obligation by
electing to have the Company withhold from the Shares to be issued that number
of Shares having a Fair Market Value equal to the minimum amount required to be
withheld, determined on the date that the amount of tax to be withheld is to be
determined (the "TAX DATE"). All elections by a Participant to have Shares
withheld for this purpose will be made in writing in a form acceptable to the
Committee and will be subject to the following restrictions:
(1) the election must be made on or prior to the applicable Tax Date;
(2) once made, then except as provided below, the election will be irrevocable
as to the particular Shares as to which the election is made;
(3) all elections will be subject to the consent or disapproval of the
Committee;
(4) if the Participant is an Insider and if the Company is subject to Section
16(b) of the Exchange Act: (1) the election may not be made within six (6)
months of the date of grant of the Award, except as otherwise permitted by
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SEC Rule 16b-3(e) under the Exchange Act, and (2) either (A) the election to use
stock withholding must be irrevocably made at least six (6) months prior to the
Tax Date (although such election may be revoked at any time at least six (6)
months prior to the Tax Date) or (B) the exercise of the Option or election to
use stock withholding must be made in the ten (10) day period beginning on the
third day following the release of the Company's quarterly or annual summary
statement of sales or earnings; and
(5) in the event that the Tax Date is deferred until six (6) months after the
delivery of Shares under Section 83(b) of the Code, the Participant will receive
the full number of Shares with respect to which the exercise occurs, but such
Participant will be unconditionally obligated to tender back to the Company the
proper number of Shares on the Tax Date.
10. PRIVILEGES OF STOCK OWNERSHIP.
A. VOTING AND DIVIDENDS. No Participant will have any of the rights of a
stockholder with respect to any Shares until the Shares are issued to the
Participant. After Shares are issued to the Participant, the Participant will be
a stockholder and have all the rights of a stockholder with respect to such
Shares, including the right to vote and receive all dividends or other
distributions made or paid with respect to such Shares; provided, that if such
Shares are Restricted Stock, then any new, additional or different securities
the Participant may become entitled to receive with respect to such Shares by
virtue of a stock dividend, stock split or any other change in the corporate or
capital structure of the Company will be subject to the same restrictions as the
Restricted Stock; provided, further, that the Participant will have no right to
retain such stock dividends or stock distributions with respect to Shares that
are repurchased at the Participant's original Purchase Price pursuant to Section
12.
B. FINANCIAL STATEMENTS. The Company will provide financial statements to
each Participant prior to such Participant's purchase of Shares under this Plan,
and to each Participant annually during the period such Participant has Awards
outstanding; provided, however, the Company will not be required to provide such
financial statements to Participants whose services in connection with the
Company assure them access to equivalent information.
11. TRANSFERABILITY. Awards granted under this Plan, and any interest therein,
will not be transferable or assignable by Participant, and may not be made
subject to execution, attachment or similar process, otherwise than by will or
by the laws of descent and distribution or as consistent with the specific Plan
and Award Agreement provisions relating thereto. During the lifetime of the
Participant an Award will be exercisable only by the Participant, and any
elections with respect to an Award, may be made only by the Participant.
12. RESTRICTIONS ON SHARES. At the discretion of the Committee, the Company
may reserve to itself and/or its assignee(s) in the Award Agreement a right to
repurchase a portion of or all Shares held by a Participant following such
Participant's Termination at any time within ninety (90) days after the later of
Participant's Termination Date and the date Participant purchases Shares under
this Plan, for cash and/or cancellation of purchase money indebtedness, at: (A)
with respect to Shares that are "Vested" (as defined in the Award Agreement),
the higher of: (l) Participant's original Purchase Price, or (2) the Fair Market
Value of such Shares on Participant's Termination Date, provided, that such
right of repurchase (i) must be exercised as to all such "Vested" Shares unless
a Participant consents to the Company's repurchase of only a portion of such
"Vested" Shares and (ii) terminates when the Company's securities become
publicly traded; or (B) with respect to Shares that are not "Vested" (as defined
in the Award Agreement), at the Participant's original Purchase Price, provided,
that the right to repurchase at the original Purchase Price lapses at the rate
of at least 20% per year over five (5) years from the date the Shares were
purchased (or from the date of grant of options in the case of Shares obtained
pursuant to an Award Agreement and Stock Option Exercise Agreement), and if the
right to repurchase is assignable, the assignee must pay the Company, upon
assignment of the right to repurchase, cash equal to the excess of the Fair
Market Value of the Shares over the original Purchase Price.
13. CERTIFICATES. All certificates for Shares or other securities delivered
under this Plan will be subject to such stock transfer orders, legends and other
restrictions as the Committee may deem necessary or advisable, including
restrictions under any applicable federal, state or foreign securities law, or
any rules, regulations and other requirements of the SEC or any stock exchange
or automated quotation system upon which the Shares may be listed or quoted.
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14. ESCROW; PLEDGE OF SHARES. To enforce any restrictions on a Participant's
Shares, the Committee may require the Participant to deposit all certificates
representing Shares, together with stock powers or other instruments of transfer
approved by the Committee, appropriately endorsed in blank, with the Company or
an agent designated by the Company to hold in escrow until such restrictions
have lapsed or terminated, and the Committee may cause a legend or legends
referencing such restrictions to be placed on the certificates. Any Participant
who is permitted to execute a promissory note as partial or full consideration
for the purchase of Shares under this Plan will be required to pledge and
deposit with the Company all or part of the Shares so purchased as collateral to
secure the payment of Participant's obligation to the Company under the
promissory note; provided, however, that the Committee may require or accept
other or additional forms of collateral to secure the payment of such obligation
and, in any event, the Company will have full recourse against the Participant
under the promissory note notwithstanding any pledge of the Participant's Shares
or other collateral. In connection with any pledge of the Shares, Participant
will be required to execute and deliver a written pledge agreement in such form
as the Committee will from time to time approve. The Shares purchased with the
promissory note may be released from the pledge on a pro rata basis as the
promissory note is paid.
15. EXCHANGE AND BUYOUT OF AWARDS. The Committee may, at any time or from time
to time, authorize the Company, with the consent of the respective Participants,
to issue new Awards in exchange for the surrender and cancellation of any or all
outstanding Awards. The Committee may at any time buy from a Participant an
Award previously granted with payment in cash, Shares (including Restricted
Stock) or other consideration, based on such terms and conditions as the
Committee and the Participant may agree.
16. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. An Award will not be
effective unless such Award is in compliance with all applicable federal and
state securities laws, rules and regulations of any governmental body, and the
requirements of any stock exchange or automated quotation system upon which the
Shares may then be listed or quoted, as they are in effect on the date of grant
of the Award and also on the date of exercise or other issuance. Notwithstanding
any other provision in this Plan, the Company will have no obligation to issue
or deliver certificates for Shares under this Plan prior to: (a) obtaining any
approvals from governmental agencies that the Company determines are necessary
or advisable; and/or (b) completion of any registration or other qualification
of such Shares under any state or federal law or ruling of any governmental body
that the Company determines to be necessary or advisable. The Company will be
under no obligation to register the Shares with the SEC or to effect compliance
with the registration, qualification or listing requirements of any state
securities laws, stock exchange or automated quotation system, and the Company
will have no liability for any inability or failure to do so.
17. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any Award granted under
this Plan will confer or be deemed to confer on any Participant any right to
continue in the employ of, or to continue any other relationship with, the
Company or any Parent or Subsidiary or limit in any way the right of the Company
or any Parent or Subsidiary to terminate Participant's employment or other
relationship at any time, with or without cause.
18. CORPORATE TRANSACTIONS.
A. ASSUMPTION OR REPLACEMENT OF AWARDS BY SUCCESSOR. In the event of (a) a
dissolution or liquidation of the Company, (b) a merger or consolidation in
which the Company is not the surviving corporation (other than a merger or
consolidation with a wholly-owned subsidiary, a reincorporation of the Company
in a different jurisdiction, or other transaction in which there is no
substantial change in the stockholders of the Company or their relative stock
holdings and the Awards granted under this Plan are assumed, converted or
replaced by the successor corporation, which assumption will be binding on all
Participants), (c) a merger in which the Company is the surviving corporation
but after which stockholders owning more than 50% of the voting stock of the
Company (other than any stockholder which merges, or which owns or controls
another corporation which merges, with the Company in such merger) cease to own
their shares or other equity interests in the Company, or (d) the sale of all or
substantially all of the assets of the Company, any or all outstanding Awards
may be assumed, converted or replaced by the successor corporation (if any),
which assumption, conversion or replacement will be binding on all Participants.
In the alternative, the successor corporation may substitute equivalent Awards
or provide substantially similar consideration to Participants as was provided
to stockholders (after taking into account the existing provisions of the
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Awards). The successor corporation may also issue, in place of outstanding
Shares of the Company held by the Participant, substantially similar shares or
other property subject to repurchase restrictions no less favorable to the
Participant. Notwithstanding the foregoing, if (a) any Participant whose options
are (i) assumed, converted or replaced by the successor corporation (if any), or
(ii) substituted by the successor corporation with equivalent Awards or
substantially similar consideration; and (b) such Participant is terminated
without cause within six months of the consummation of a transaction of the type
described above by the Company or a successor corporation (if any); then (c) any
Options held by the Participant will immediately accelerate and become fully
vested and exercisable by the Participant. In the event such successor
corporation (if any) refuses to assume or substitute Options, as provided above,
pursuant to a transaction described in this Subsection 18.1, then
notwithstanding any other provision in this Plan to the contrary, such Options
will accelerate at such time and on such conditions as the Board determines.
B. OTHER TREATMENT OF AWARDS. Subject to any greater rights granted to
Participants under the foregoing provisions of this Section 18, in the event of
the occurrence of any transaction described in Section 18.1, any outstanding
Awards will be treated as provided in the applicable agreement or plan of
merger, consolidation, dissolution, liquidation, sale of assets or other
"corporate transaction."
C. ASSUMPTION OF AWARDS BY THE COMPANY. The Company, from time to time,
also may substitute or assume outstanding awards granted by another company,
whether in connection with an acquisition of such other company or otherwise, by
either; (a) granting an Award under this Plan in substitution of such other
company's award; or (b) assuming such award as if it had been granted under this
Plan if the terms of such assumed award could be applied to an Award granted
under this Plan. Such substitution or assumption will be permissible if the
holder of the substituted or assumed award would have been eligible to be
granted an Award under this Plan if the other company had applied the rules of
this Plan to such grant. In the event the Company assumes an award granted by
another company, the terms and conditions of such award will remain unchanged
(except that the exercise price and the number and nature of Shares issuable
upon exercise of any such option will be adjusted appropriately pursuant to
Section 424(a) of the Code). In the event the Company elects to grant a new
Option rather than assuming an existing option, such new Option may be granted
with a similarly adjusted Exercise Price.
19. EFFECTIVE DATE. This Plan will become effective on the date it is approved
by the stockholders of the Company (the "EFFECTIVE DATE").
20. TERM OF PLAN/GOVERNING LAW. Unless earlier terminated as provided herein,
this Plan will terminate ten (10) years from the date it is approved by the
stockholders. This Plan and all agreements thereunder shall be governed by and
construed in accordance with the laws of the State of Delaware.
21. AMENDMENT OR TERMINATION OF PLAN. The Board may at any time terminate or
amend this Plan in any respect, including without limitation amendment of any
form of Award Agreement or instrument to be executed pursuant to this Plan;
provided, however, that the Board will not, without the approval of the
stockholders of the Company, amend this Plan in any manner that requires such
stockholder approval pursuant to the Code or the regulations promulgated
thereunder as such provisions apply to ISO plans or (if the Company is subject
to the Exchange Act or Section 16(b) of the Exchange Act) pursuant to the
Exchange Act or Rule 16b-3 (or its successor), as amended, thereunder,
respectively.
22. NONEXCLUSIVITY OF THE PLAN. Neither the adoption of this Plan by the Board,
the submission of this Plan to the stockholders of the Company for approval, nor
any provision of this Plan will be construed as creating any limitations on the
power of the Board to adopt such additional compensation arrangements as it may
deem desirable, including, without limitation, the granting of stock options and
bonuses otherwise than under this Plan, and such arrangements may be either
generally applicable or applicable only in specific cases.
23. DEFINITIONS. As used in this Plan, the following terms will have the
following meanings:
"AWARD" means any award under this Plan, including any Option, Restricted
Stock or Stock Bonus.
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"AWARD AGREEMENT" means, with respect to each Award, the signed written
agreement between the Company and the Participant setting forth the terms and
conditions of the Award.
"BOARD" means the Board of Directors of the Company.
"CHANGE OF CONTROL" means any of the following events:
(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 under
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 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
(ii) 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 so approved, cease for any reason to constitute a
majority of the Board; or (iii) there is consummated a merger or consolidation
of the Company or 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,
more than 50% 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.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means the committee appointed by the Board to administer
this Plan, or if no such committee is appointed, the Board.
"COMPANY" means Calypte Biomedical Corporation or any successor
corporation.
"CONSTRUCTIVE TERMINATION" means a resignation by a Participant who has
been elected by the Board as a corporate officer of the Company due to
diminution or adverse change in the circumstances of such Participant's
employment with the Company, as determined in good faith by the Participant;
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.
"DISABILITY" means a disability, whether temporary or permanent,
partial or total, within the meaning of Section 22(e)(3) of the Code, as
determined by the Committee.
"EFFECTIVE DATE" shall have the meaning given to it in Section 19.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXERCISE AGREEMENT" shall have the meaning given to it in Section 5.5.
"EXERCISE PRICE" means the price at which a holder of an Option may
purchase the Shares issuable upon exercise of the Option.
"FAIR MARKET VALUE" means, as of any date, the value of a share of the
Company's Common Stock determined as follows:
(1) if such Common Stock is then quoted on the Nasdaq National Market, its
closing price on the Nasdaq National Market on the last trading day prior to the
date of determination as reported in The Wall Street Journal;
(2) if such Common Stock is publicly traded and is then listed on a national
securities exchange, its closing price on the last trading day prior to the date
of determination on the principal national securities exchange on which the
Common Stock is listed or admitted to trading as reported in The Wall Street
Journal;
(3) if such Common Stock is publicly traded but is not quoted on the Nasdaq
National Market nor listed or admitted to trading on a national securities
exchange, the average of the closing bid and asked prices on the last trading
day prior to the date of determination as reported in The Wall Street Journal;
or
(4) if none of the foregoing is applicable, by the Committee in good faith.
"INSIDER" means an officer or director of the Company or any other
person whose transactions in the Company's Common Stock are subject to Section
16 of the Exchange Act.
"ISO" means incentive stock option within the meaning of the Code.
"NQSO" means non-qualified stock option.
"OUTSIDE DIRECTOR" means any director who (a) is not a current officer
or employee of the Company or any Parent or Subsidiary; (b) is not currently
receiving, and since the beginning of the Company's previous fiscal year has not
received, compensation in excess of $60,000 for personal services in any
capacity from the Company or any Parent or Subsidiary; (c) does not possess, and
since the beginning of the Company's previous fiscal year has not possessed, an
interest in any transaction or series of similar transactions with the Company
in which the amount involved exceeds $60,000; or (d) is not engaged in a
business relationship with the Company for which disclosure would be required
pursuant to Item 402(b) of Regulation S-K of the Exchange Act; provided,
however, that if at such time as the term "Outside Director", as used in Section
162(m) of the Code is defined in regulations promulgated under Section 162(m) of
the Code, "Outside Director" will have the meaning set forth in such
regulations, as amended from time to time and as interpreted by the Internal
Revenue Service.
"OPTION" means an award of an option to purchase Shares pursuant to
Section 5.
"PARENT" means any corporation (other than the Company) in an unbroken
chain of corporations ending with the Company, if at the time of the granting of
an Award under this Plan, each of such corporations other than the Company owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
"PARTICIPANT" means a person who receives an Award under this Plan.
"PLAN" means this Calypte Biomedical Corporation 2000 Equity Incentive
Plan, as amended from time to time.
"PRIOR PLAN" means the Calypte Biomedical Corporation 1991 Stock Option
Plan.
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"PURCHASE PRICE" shall have the meaning given to it in Section 6.1.
"RESTRICTED STOCK AWARD" means an award of Shares pursuant to Section 6.
"RESTRICTED STOCK PURCHASE AGREEMENT" shall have the meaning given to
it in Section 6.1.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means shares of the Company's Common Stock reserved for
issuance under this Plan, as adjusted pursuant to Sections 2 and 18, and any
successor security.
"STOCK BONUS" means an award of Shares, or cash in lieu of Shares,
pursuant to Section 7.
"SUBSIDIARY" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
"TEN PERCENT SHAREHOLDER" means any person who directly or by
attribution owns more than 10% of the total combined voting power of all classes
of stock of the Company or of any Parent or Subsidiary.
"TERMINATION" or "TERMINATED" means, for purposes of this Plan with
respect to a Participant, that the Participant has for any reason ceased to
provide services as an employee, director, consultant or advisor to the Company
or a Parent or Subsidiary. An employee will not be deemed to have ceased to
provide services in the case of (i) sick leave, (ii) military leave, or (iii)
any other leave of absence approved by the Committee, provided, that such leave
is for a period of not more than 90 days, unless reemployment upon the
expiration of such leave is guaranteed by contract or statute or unless provided
otherwise pursuant to formal policy adopted from time to time by the Company and
issued and promulgated to employees in writing. In the case of any employee on
an approved leave of absence, the Committee may make such provisions respecting
suspension of vesting of the Option while on leave from the employ of the
Company or a Subsidiary as it may deem appropriate, except that in no event may
an Option be exercised after the expiration of the term set forth in the Option
agreement. The Committee will have sole discretion to determine whether a
Participant has ceased to provide services and the effective date on which the
Participant ceased to provide services (the "Termination Date").
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