EXHIBIT 4.1
THE CALYPTE BIOMEDICAL CORPORATION
2004 INCENTIVE PLAN
AMENDED AND RESTATED AS OF MARCH 7, 2005
ARTICLE I
GENERAL
1.1 Purpose.
The purpose of the Calypte Biomedical Corporation 2004 Incentive Plan
is to attract, retain and motivate officers, employees (including prospective
employees), consultants and others who may perform services for the Company
or an Affiliate, to compensate them for their contributions to the long-term
growth and profits of the Company or an Affiliate, and to encourage them to
acquire a proprietary interest in the success of the Company or an Affiliate.
1.2 Definitions of Certain Terms.
1.2.1 "Affiliate" means a corporation which, for purposes of Section
424 of the Code, is a Parent or Subsidiary of the Company, director or
indirect.
1.2.2 "Award" means an award made pursuant to the Plan.
1.2.3 "Award Agreement" means the written document by which each Award
is evidenced.
1.2.4 "Board" means the Board of Directors of Calypte.
1.2.5 "Calypte" means Calypte Biomedical Corporation, a Delaware
corporation, and any successor thereto.
1.2.6 "Cause" means the causes set forth in any written employment or
services agreement between the Company and the grantee or an Affiliate and
the grantee, if any, or, in the absence of such an agreement, means any of
the following acts or circumstances: (i) willful destruction by the grantee
of Company or Affiliate property having a material value to the Company or an
Affiliate; (ii) fraud, embezzlement, theft, or comparable dishonest activity
committed by the grantee against the Company or an Affiliate; (iii) the
Participant's conviction of or entering a plea of guilty or nolo contendere
to any crime constituting a felony or any misdemeanor involving fraud,
dishonesty or moral turpitude; (iv) the grantee's breach, neglect, refusal or
failure to discharge, in each case in any material respect, his or her duties
(other than due to Disability) commensurate with his or her title and
function or failure to comply with the lawful directions of the Board; or (v)
a willful and knowing material misrepresentation by the grantee to the Board.
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1.2.7 "Certificate" means a stock certificate (or other appropriate
document or evidence of ownership) representing shares of Common Stock of
Calypte.
1.2.8 "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and the applicable rulings and regulations thereunder.
1.2.9 "Committee" means the Compensation Committee of the Board or any
successor thereto or such other committee or subcommittee designated by the
Board to administer the Plan in accordance with Section 1.3.
1.2.10 "Common Stock" means common stock of Calypte, par value $0.03
per share.
1.2.11 "Company" means Calypte.
1.2.12 "Disability" means, unless otherwise defined in an Award
Agreement, or as otherwise determined under procedures established by the
Committee for purposes of the Plan, a disability within the meaning of
Section 22(e)(3) of the Code.
1.2.13 "Employment" means a grantee's performance of services for the
Company or an Affiliate, as determined by the Committee. The terms "employ"
and "employed" shall have their correlative meanings.
1.2.14 "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the applicable rules and regulations
thereunder.
1.2.15 "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
1.2.15.1 If the Common Stock is listed on any established stock
exchange, the NASDAQ System or a national market system, including without
limitation, the National Market System of NASDAQ, the Fair Market Value of
a share of Common Stock will be the closing sales price for such stock (or
the closing bid, if no sales are reported) as quoted on that system or
exchange (or the system or exchange with the greatest volume of trading in
Common Stock) on the day of determination, as reported in the Wall Street
Journal or any other source the Committee considers reliable.
1.2.15.2 If the Common Stock is not traded as set forth above, the
Fair Market Value will be determined in good faith by the Committee, such
determination by the Committee to be final, conclusive and binding.
1.2.16 "Grant Notice" means the written notice evidencing certain terms
and conditions of an Award. The Grant Notice is part of the Award Agreement.
1.2.17 "Incentive Award" means any Award granted contingently on the
achievement of Performance Goals during Performance Periods, expressed in
U.S. currency or Common Stock or any combination thereof, intended to qualify
as performance-based compensation pursuant to Section 162(m) of the Code, as
now constituted or subsequently amended, or pursuant to a successor provision
of the Code, and which is so designated in the applicable Award Agreement.
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1.2.18 "Incentive Stock Option" means an Option that is intended to
qualify for special federal income tax treatment pursuant to Sections 421 and
422 of the Code, as now constituted or subsequently amended, or pursuant to a
successor provision of the Code, and which is so designated in the applicable
Award Agreement.
1.2.19 "Nonqualified Stock Option" means an Option that is not an
Incentive Stock Option.
1.2.20 "Option" means an Incentive Stock Option or a Nonqualified Stock
Option or both, as the context requires.
1.2.21 "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
1.2.22 "Performance Goals" means objectives for the Company, an
Affiliate or any individual grantee established by the Committee with respect
to Incentive Awards contingently granted under the Plan. The Performance
Goals shall be based on one or more of the following criteria: earnings
(either in the aggregate or on a per-share basis), total shareholder return,
return on equity, return on capital, net income, cash flow, operating income
or profit, gross revenues, economic value added, or strategic business
criteria. The levels of performance required with respect to Performance
Goals may be expressed in absolute or relative levels.
1.2.23 "Performance Period" means a set time period during which
Performance Goals must be met.
1.2.24 "Plan" means the Calypte Biomedical Corporation 2004 Incentive
Plan, as described herein and as hereafter amended from time to time.
1.2.25 "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Internal Revenue Code
of 1986.
1.2.26 "Termination of Employment" occurs on the first day on which a
grantee is for any reason no longer providing services to the Company or an
Affiliate in the capacity of an employee, officer or consultant.
1.3 Administration.
1.3.1 Subject to Section 1.3.4, the Plan shall be administered by the
Board or the Committee, whose members shall serve at the pleasure of the
Board. To the extent required for transactions under the Plan to qualify for
the exemptions available under Rule 16b-3 promulgated under the Exchange Act,
all actions relating to Awards to persons subject to Section 16 of the
Exchange Act may be taken by the Board or the Committee composed of two or
more members, each of whom is a "non-employee director" within the meaning of
Exchange Act Rule 16b-3. To the extent required for compensation realized
from Awards under the Plan to be deductible by Calypte pursuant to Section
162(m) of the Code, such Awards may be granted by the Committee composed of
two or more members, each of whom is an "outside director" within the meaning
of Code Section 162(m).
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1.3.2 Subject to Section 3.2, the Committee shall have complete control
over the administration of the Plan and shall have the authority in its
discretion to (a) exercise all of the powers granted to it under the Plan,
(b) construe, interpret and implement the Plan and any Award Agreements, (c)
prescribe, amend and rescind rules and regulations relating to the Plan,
including rules governing its own operations, (d) make all determinations
necessary or advisable in administering the Plan, (e) correct any defect,
supply any omission and reconcile any inconsistency in the Plan, (f) amend
the Plan to reflect changes in applicable law, (g) amend any outstanding
Award Agreement in any respect, including, without limitation, to accelerate
the time or times at which the Award becomes vested, unrestricted or may be
exercised, waive or amend any goals, restrictions or conditions set forth in
such Award Agreement, or impose new goals, restrictions and conditions, or
reflect a change in the grantee's circumstances (e.g., a change to part-time
employment status), and (h) determine whether, to what extent and under what
circumstances and method or methods (1) Awards may be (A) settled in cash,
shares of Common Stock, other securities, other Awards or other property, (B)
exercised or (C) canceled, forfeited or suspended, (2) shares of Common
Stock, other securities, other Awards or other property, and other amounts
payable with respect to an Award may be deferred either automatically or at
the election of the grantee thereof or of the Committee, (3) loans (whether
or not secured by Common Stock) may be extended by the Company or an
Affiliate with respect to any Awards and (4) Awards may be settled by
Calypte, any of its Affiliates or any of its or their designees.
1.3.3 Actions of the Committee may be taken by the vote of a majority
of its members. Any action may be taken by a written instrument signed by a
majority of the Committee members, and action so taken shall be fully as
effective as if it had been taken by a vote at a meeting. The determination
of the Committee on all matters relating to the Plan or any Award Agreement
shall be final, binding and conclusive. The Committee may allocate among its
members and delegate to any person who is not a member of the Committee any
of its administrative responsibilities.
1.3.4 No member of the Board or the Committee or any employee of the
Company or of an Affiliate shall be liable for any action or determination
made in good faith with respect to the Plan or any Award thereunder. Each
such person shall be indemnified and held harmless by Calypte against and
from any loss, cost, liability, or expense that may be imposed upon or
incurred by such person in connection with or resulting from any action, suit
or proceeding to which such person may be a party or in which such person may
be involved by reason of any action taken or failure act under the Plan or
any Award Agreement and against and from any and all amounts paid by such
person, with Calypte's approval, in settlement thereof, or paid by such
person in satisfaction of any judgment in any such action, suit or proceeding
against such person, provided that Calypte shall have the right, at its own
expense, to assume and defend the same. The foregoing right of
indemnification shall not be available to a person to the extent that a final
judgment or other final adjudication binding upon such person establishes
that the acts or omissions of such person giving rise to the indemnification
claim resulted from such person's bad faith, fraud or willful criminal act or
omission. The foregoing right of indemnification shall not be exclusive of
any other rights of indemnification to which such persons may be entitled
under Calypte's Certificate of Incorporation or Bylaws, as a matter of law,
or otherwise, or any other power that Calypte may have to indemnify such
persons or hold them harmless.
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1.4 Persons Eligible for Awards.
Awards under the Plan may be made to such officers, employees
(including prospective employees), consultants and other individuals who may
perform services for the Company or for an Affiliate, as the Committee may
select.
1.5 Termination of Employment.
1.5.1 The Committee may impose on any Award or the exercise or
settlement thereof, at the date of grant or, subject to the provisions of
Section 3.1, thereafter, such additional terms and conditions not
inconsistent with the provisions of the Plan as the Committee shall
determine, including terms requiring forfeiture, acceleration or pro-rata
acceleration of Awards in the event of a Termination of Employment. Except as
otherwise determined by the Committee, all Options that have not been
exercised, or any other Awards that remain subject to a risk of forfeiture or
which are not otherwise vested, or which have outstanding Performance
Periods, at the time of a Termination of Employment shall be forfeited.
1.5.2 Awards granted under the Plan shall not be affected by any change
of employment or other service within or among the Company and any Affiliates
so long as the grantee continues to be an employee or consultant of the
Company or any Affiliate, provided, however, if a grantee's employment by
either the Company or an Affiliate should cease (other than to become an
employee of an Affiliate or the Company), such termination shall affect the
grantee's rights under any Award granted to such grantee in accordance with
the terms of the Plan and the applicable Award Agreement.
1.5.3 Termination for Cause. If a grantee's Employment is terminated
for Cause, then all Options and other Awards that remain subject to a risk of
forfeiture or which are not otherwise vested held by such grantee shall
immediately be terminated and cancelled upon Termination of Employment.
1.5.4 Death, Disability, Termination without Cause. Except as otherwise
provided in the applicable Award Agreement, upon the grantee's death,
Disability or Termination of Employment for any reason other than for Cause,
the grantee:
1.5.4.1 shall forfeit all Awards that have not previously vested or
remain subject to a risk of forfeiture;
1.5.4.2 shall have thirty (30) days to exercise the grantee's Awards
that are vested on the Termination of Employment if such termination is
for any reason other than the grantee's Disability or death; and
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1.5.4.3 shall have one (1) year to exercise the grantee's Awards
that are vested on the date of Disability or death if the grantee's
Termination of Employment is due to the grantee's Disability or death.
1.5.5 Termination after Change in Control. Except as otherwise provided
by the Committee or in the applicable Award Agreement, if any grantee's
Employment is terminated by the Company or an Affiliate for any reason other
than for Cause within six (6) months after a "change in control" as defined
in Section 3.8, then all unvested Awards and other Awards remaining subject
to a risk of forfeiture held by such grantee shall become fully vested for
exercise upon the Termination of Employment.
1.5.6 Any Awards not exercised within the permissible period of time
shall be forfeited by the grantee. Notwithstanding any of the foregoing, the
grantee shall not be permitted to exercise any Option at a time beyond the
initial option term.
1.6 Types of Awards Under Plan.
Awards may be made under the Plan in the form of (a) Options, (b) stock
appreciation rights, (c) dividend equivalent rights, (d) restricted stock,
(e) restricted stock units, (f) other equity-based or equity-related Awards
which the Committee determines to be consistent with the purpose of the Plan
and the interests of the Company or an Affiliate, and (g) Incentive Awards.
No Incentive Stock Option (other than an Incentive Stock Option that may be
assumed or issued by Calypte in connection with a transaction to which
Section 424(a) of the Code applies) may be granted to a person who is not
eligible to receive an Incentive Stock Option under the Code.
1.7 Shares Available for Awards.
1.7.1 Total shares available. Subject to adjustment pursuant to Section
1.7.2, the total number of shares of Common Stock which may be delivered
pursuant to Awards granted under the Plan shall be 47,000,000. If, after the
effective date of the Plan, any Award is forfeited or otherwise terminates or
is canceled without the delivery of shares of Common Stock, shares of Common
Stock are surrendered or withheld from any Award to satisfy a grantee's
income tax or other withholding obligations, or shares of Common Stock owned
by a grantee are tendered to pay the exercise price of any Award granted
under the Plan, then the shares covered by such forfeited, terminated or
canceled Award or which are equal to the number of shares surrendered,
withheld or tendered shall again become available for transfer pursuant to
Awards granted or to be granted under this Plan.
1.7.2 Any shares of Common Stock (a) delivered by Calypte, (b) with
respect to which Awards are made by Calypte and (c) with respect to which
Calypte becomes obligated to make Awards, in each case through the assumption
of, or in substitution for, outstanding awards previously granted by an
acquired entity, shall not be counted against the shares of Common Stock
available for Awards under this Plan. Shares of Common Stock which may be
delivered pursuant to Awards may be authorized but unissued Common Stock or
authorized and issued Common Stock held in Calypte's treasury or otherwise
acquired for the purposes of the Plan.
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1.7.3 Adjustments. The Committee shall have the authority (but shall
not be required) to adjust the number of shares of Common Stock authorized
pursuant to Section 1.7.1 and to adjust equitably (including, without
limitation, by payment of cash) the terms of any outstanding Awards
(including, without limitation, the number of shares of Common Stock covered
by each outstanding Award, the type of property to which the Award is subject
and the exercise or strike price of any Award), in such manner as it deems
appropriate to preserve the benefits or potential benefits intended to be
made available to grantees of Awards, for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split, reverse
stock split, stock dividend, spinoff, splitup, combination or
reclassification of the Common Stock, or any other event the Committee
determines in its sole discretion affects the capitalization of Calypte.,
including any extraordinary dividend or distribution. After any adjustment
made pursuant to this Section 1.7, the number of shares of Common Stock
subject to each outstanding Award shall be rounded to the nearest whole
number.
1.7.4 Except as provided under the terms of any applicable Award
Agreement, there shall be no limit on the number or the value of shares of
Common Stock that may be subject to Awards to any individual under the Plan.
1.7.5 There shall be no limit on the amount of cash, securities or
other property that may be delivered pursuant to any Award.
ARTICLE II
AWARDS UNDER THE PLAN
2.1 Agreements Evidencing Awards.
Each Award granted under the Plan shall be evidenced by a written
document which shall contain such provisions and conditions as the Committee
deems appropriate. The Committee may grant Awards in tandem with or in
substitution for any other Award or Awards granted under this Plan or any
award granted under any other plan of the Company or an Affiliate. By
accepting an Award pursuant to the Plan, a grantee thereby agrees that the
Award shall be subject to all of the terms and provisions of the Plan and the
applicable Award Agreement.
2.2 No Rights as a Stockholder.
No grantee of an Award shall have any of the rights of a stockholder of
Calypte with respect to shares subject to such Award until the delivery of
such shares. Except as otherwise provided in Section 1.7.2, no adjustments
shall be made for dividends, distributions or other rights (whether ordinary
or extraordinary, and whether in cash, Common Stock, other securities or
other property) for which the record date is prior to the date such shares
are delivered.
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2.3 Grant of Options.
The Committee may grant Options to purchase shares of Common Stock from
Calypte, in such amounts and subject to such terms and conditions as the
Committee may determine. The price of an Option under this Plan shall be
determined in the sole discretion of the Committee; provided, however, if the
Committee designates an Option as an Incentive Stock Option, then such Option
shall be granted only to an employee of the Company or an Affiliate, shall
have a per share price not less than 100% of the Fair Market Value of a share
of Common Stock on the date of grant of the Option, and, if granted to a
person who owns capital stock (including stock treated as owned under Section
424(d) of the Code) possessing more than 10% of the total combined voting
power of all classes of capital stock of the Company or an Affiliate (a "10%
Owner"), have a per share price not less than 110% of the Fair Market Value
of a share of Common Stock on the date of grant, and shall be for a period of
not more than 10 years (five years if the Grantee is a 10% Owner) from the
date of grant. Notwithstanding designation as an Incentive Stock Option, if
the shares of Common Stock subject to a grantee's Incentive Stock Options
(granted under all plans of the Company or an Affiliate), which become
exercisable for the first time during any calendar year, have a Fair Market
Value in excess of $100,000, the Options accounting for the excess will be
treated as Nonqualified Stock Options. Incentive Stock Options will be taken
into account in the order in which they were granted, and the Fair Market
Value of the shares of Common Stock will be determined as of the date of
grant.
2.4 Stock Appreciation Rights.
The Committee may grant Stock Appreciation Rights in conjunction with
all or part of an Option granted under the Plan. In the case of a
Nonqualified Stock Option, such rights may be granted either at or after the
date of grant of such Option. In the case of an Incentive Stock Option, such
rights may be granted only at the date of grant of such Option. A Stock
Appreciation Right shall terminate and no longer be exercisable upon the
termination or exercise of the related Option. In either case, the terms and
conditions of a Stock Appreciation Right shall be set forth in the Award
Agreement for the related Option or an amendment thereto. Stock Appreciation
Rights shall be exercisable only at such time or times and to the extent that
the Options to which they relate. Upon exercise of a Stock Appreciation
Right, a grantee shall be entitled to receive an amount equal to the product
of (a) the excess of the Fair Market Value of one share of Common Stock over
the exercise price per share specified in the related Option times (b) the
number of shares in respect of which the Stock Appreciation Right shall have
been exercised, in cash, shares of Common Stock or both, with the Committee
having the right to determine the form of payment.
2.5 Exercise of Options and Stock Appreciation Rights.
2.5.1 Any acceptance by the Committee of a grantee's written notice of
exercise of an Option shall be conditioned upon payment for the shares being
purchased. Such payment may be made in cash or by such other method as the
Committee may from time to time prescribe.
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2.5.2 After receiving payment from the grantee of the full Option
exercise price, or after receiving notice from the grantee of the exercise of
a stock appreciation right for which payment will be made by Calypte partly
or entirely in shares of Common Stock, Calypte shall, subject to the
provisions of the Plan or any Award Agreement, deliver the shares of Common
Stock.
2.6 Grant of Dividend Equivalent Rights.
The Committee may include in the Award Agreement with respect to any
Award a dividend equivalent right entitling the grantee to receive amounts
equal to all or any portion of the dividends that would be paid on the shares
of Common Stock covered by such Award if such shares had been delivered
pursuant to such Award. The grantee of a dividend equivalent right will have
only the rights of a general unsecured creditor of Calypte until payment of
such amounts is made as specified in the applicable Award Agreement. In the
event such a provision is included in an Award Agreement, the Committee shall
determine whether such payments shall be made in cash, in shares of Common
Stock or in another form, whether they shall be conditioned upon the exercise
of the Award to which they relate, the time or times at which they shall be
made, and such other terms and conditions as the Committee shall deem
appropriate.
2.7 Grant of Restricted Stock.
The Committee may grant or offer for sale restricted shares of Common
Stock in such amounts and subject to such terms and conditions as the
Committee shall determine, including restrictions based upon the achievement
of Performance Goals, time-based restrictions on vesting following the
attainment of the Performance Goals; provided, that such restrictions may
lapse, if so determined by the Committee, in the event of the Grantee's
Termination of Employment due to death, Disability or Termination of
Employment by the Company or an Affiliate without Cause. Upon the delivery of
restricted shares of Common Stock, the grantee shall have the rights of a
stockholder with respect to the restricted stock, subject to any restrictions
and conditions as the Committee may include in the applicable Award
Agreement. In the event that a Certificate is issued in respect of restricted
shares of Common Stock, such Certificate may be registered in the name of the
grantee but shall be held by Calypte or its designated agent until the time
the restrictions lapse.
2.8 Grant of Restricted Stock Units.
The Committee may grant Awards of restricted stock units in such
amounts and subject to such terms and conditions as the Committee shall
determine. A grantee of a restricted stock unit will have only the rights of
a general unsecured creditor of Calypte until delivery of shares of Common
Stock or cash is made as specified in the applicable Award Agreement. On the
delivery date, the grantee of each restricted stock unit not previously
forfeited shall receive one share of Common Stock or cash equal in value to a
share of Common Stock or a combination thereof, as specified by the
Committee.
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2.9 Grant of Other Stock-Based Awards.
The Committee may grant other types of equity-based or equity-related
Awards (including the grant or offer for sale of unrestricted shares of
Common Stock) in such amounts and subject to such terms and conditions as the
Committee shall determine. Such Awards may entail the transfer of actual
shares of Common Stock to Plan participants, or payment in cash or otherwise
of amounts based on the value of shares of Common Stock.
2.10 Grant of Incentive Awards.
The Committee may grant Incentive Awards in such amounts and subject to
the achievement of Performance Goals during Performance Periods and other
terms and conditions as the Committee shall determine. Incentive Awards shall
be granted and administered to comply with the requirements of Section 162(m)
of the Code. After the applicable Performance Period has ended, the grantee
shall be entitled to payment based on the level of achievement of the
Performance Goals set by the Committee. The Committee shall certify the
achievement of the Performance Goals in writing before the Incentive Award is
settled. At the discretion of the Committee, the settlement of Incentive
Awards may be in cash, shares of Common Stock, or in some combination
thereof, as set forth in the Award Agreement. If a grantee is promoted or
demoted during a Performance Period, then, to the extent the Committee
determines that the Award, the Performance Goals or the Performance Period
are no longer appropriate, the Committee may adjust, change, eliminate or
cancel the Award, the Performance Goals or the applicable Performance Period,
as it deems appropriate in order to make them appropriate and comparable to
the initial Award, the Performance Goals or the Performance Period.
2.11 Tax Offset Bonuses.
At the time an Award is made hereunder or at any time thereafter, the
Committee may grant to the grantee receiving such Award the right to receive
a cash payment in an amount specified by the Committee, to be paid at such
time or times (if ever) as the Award results in compensation income to the
grantee, for the purpose of assisting the grantee to pay the resulting taxes,
all as determined by the Committee, and on such other terms and conditions as
the Committee shall determine.
ARTICLE III
MISCELLANEOUS
3.1 Date of Adoption and Term of Plan.
The Plan was originally adopted by the Board on March 2, 2004, and made
effective as of June 22, 2004. Unless sooner terminated by the Board, the
Plan shall terminate on the day before the tenth anniversary of the effective
date of the Plan. The Board reserves the right to terminate the Plan at any
time; provided, however, that all Awards made under the Plan prior to its
termination shall remain in effect until such Awards have been satisfied or
terminated in accordance with the terms and provisions of the Plan and the
applicable Award Agreements.
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3.2 Amendment of the Plan.
3.2.1 The Board may from time to time alter, suspend, discontinue,
revise, amend or terminate the Plan in any respect whatsoever, provided, that
no termination, amendment, or modification of the Plan shall adversely affect
in any material way any Award previously granted under the Plan, without the
written consent of the grantee of such Award, except as otherwise
specifically permitted in the Plan or such Award Agreement.
3.2.2 Unless otherwise determined by the Board, stockholder approval of
any suspension, discontinuance, revision or amendment shall be obtained only
to the extent necessary to comply with any applicable law, rule or regulation
or stock exchange requirement.
3.3 Tax Withholding.
3.3.1 As a condition to the delivery of any shares of Common Stock
pursuant to any Award or the lifting or lapse of restrictions on any Award,
or in connection with any other event that gives rise to a federal or other
governmental tax withholding obligation on the part of Calypte or any of its
subsidiaries or affiliates relating to an Award (including, without
limitation, FICA tax), (a) Calypte may deduct or withhold (or cause to be
deducted or withheld) from any payment or distribution to a grantee whether
or not pursuant to the Plan or (b) the Committee shall be entitled to require
that the grantee remit cash to Calypte or any of its subsidiaries or
affiliates (through payroll deduction or otherwise), in each case in an
amount sufficient in the opinion of Calypte to satisfy such withholding
obligation.
3.3.2 If the event giving rise to the withholding obligation involves a
transfer of shares of Common Stock, then, unless the applicable Award
Agreement provides otherwise, at the discretion of the Committee, the grantee
may satisfy the withholding obligation described under Section 3.3.1 by
electing to have Calypte withhold shares of Common Stock (which withholding
will be at a rate not in excess of the statutory minimum rate) or by
tendering previously owned shares of Common Stock, in each case having a Fair
Market Value equal to the amount of tax to be withheld (or by any other
mechanism as may be required or appropriate to conform with local tax and
other rules). For this purpose, Fair Market Value shall be determined as of
the date on which the amount of tax to be withheld is determined (and Calypte
may cause any fractional share amount to be settled in cash).
3.4 Required Consents and Legends.
3.4.1 If the Committee shall at any time determine that any consent (as
hereinafter defined) is necessary or desirable as a condition of, or in
connection with, the granting of any Award, the delivery of shares of Common
Stock or the delivery of any cash, securities or other property under the
Plan, or the taking of any other action thereunder (each such action being
hereinafter referred to as a "plan action"), then such plan action shall not
be taken, in whole or in part, unless and until such consent shall have been
effected or obtained to the full satisfaction of the Committee. The Committee
may direct that any Certificate evidencing shares delivered pursuant to the
Plan shall bear a legend setting forth such restrictions on transferability
as the Committee may determine to be necessary or desirable, and may advise
the transfer agent to place a stop order against any legended shares.
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3.4.2 The term "consent" as used herein with respect to any plan action
includes (a) any and all listings, registrations or qualifications in respect
thereof upon any securities exchange or under any federal, state, or local
law, or law, rule or regulation of a jurisdiction outside the United States,
(b) any and all written agreements and representations by the grantee with
respect to the disposition of shares, or with respect to any other matter,
which the Committee may deem necessary or desirable to comply with the terms
of any such listing, registration or qualification or to obtain an exemption
from the requirement that any such listing, qualification or registration be
made, (c) any and all other consents, clearances and approvals in respect of
a plan action by any governmental or other regulatory body or any stock
exchange or self-regulatory agency and (d) any and all consents or
authorizations required to comply with, or required to be obtained under,
applicable local law or otherwise required by the Committee. Nothing herein
shall require Calypte to list, register or qualify the shares of Common Stock
on any securities exchange.
3.5 Nonassignability.
Except to the extent otherwise expressly provided in the applicable
Award Agreement, no Award (or any rights and obligations thereunder) granted
to any person under the Plan may be sold, exchanged, transferred, assigned,
pledged, hypothecated or otherwise disposed of (including through the use of
any cash-settled instrument) (each such action being hereinafter referred to
as an "assignment"), whether voluntarily or involuntarily, other than by will
or by the laws of descent and distribution, and all such Awards (and any
rights thereunder) shall be exercisable during the life of the grantee only
by the grantee or the grantee's legal representative. Notwithstanding the
immediately preceding sentence, the Committee may permit, under such terms
and conditions that it deems appropriate in its sole discretion, a grantee to
transfer any Award to any person or entity that the Committee so determines.
Any assignment in violation of the provisions of this Section 3.5 shall be
void. All of the terms and conditions of this Plan and the Award Agreements
shall be binding upon any such permitted successors and assigns.
3.6 Requirement of Consent and Notification of Election Under Section 83(b)
of the Code or Similar Provision.
No election under Section 83(b) of the Code (to include in gross income
in the year of transfer the amounts specified in Code Section 83(b)) or under
a similar provision of the law of a jurisdiction outside the United States
may be made unless expressly permitted by the terms of the Award Agreement or
by action of the Committee in writing prior to the making of such election.
If a grantee of an Award, in connection with the acquisition of shares of
Common Stock under the Plan or otherwise, is expressly permitted under the
terms of the Award Agreement or by such Committee action to make any such
election and the grantee makes the election, the grantee shall notify the
Committee of such election within ten (10) days of filing notice of the
election with the Internal Revenue Service or other governmental authority,
in addition to any filing and notification required pursuant to regulations
issued under Code Section 83(b) or other applicable provision.
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3.7 Requirement of Notification Upon Disqualifying Disposition Under
Section 421(b) of the Code.
If any grantee shall make any disposition of shares of Common Stock
delivered pursuant to the exercise of an Incentive Stock Option under the
circumstances described in Section 421(b) of the Code (relating to certain
disqualifying dispositions), such grantee shall notify Calypte of such
disposition within 10 days thereof.
3.8 Change in Control.
3.8.1 The Committee may provide in any Award Agreement for provisions
relating to a "change in control" of Calypte (as such term is defined by the
Committee in any such Award Agreement), including, without limitation, the
acceleration or extension of the exercisability of, or the lapse of
restrictions or deemed satisfaction of goals with respect to, any outstanding
Awards.
3.8.2 Unless otherwise provided in the applicable Award Agreement, in
the event of a merger, consolidation, mandatory share exchange or other
similar business combination of Calypte with or into any other entity
("successor entity") or any transaction in which another person or entity
acquires all of the issued and outstanding Common Stock of Calypte, or all or
substantially all of the assets of Calypte, outstanding Awards may be assumed
or an equivalent Award may be substituted by such successor entity or a
Parent or Subsidiary of such successor entity.
3.9 Right of Discharge Reserved.
Nothing in the Plan or in any Award Agreement shall confer upon any
grantee the right to continued Employment by the Company or an Affiliate or
affect any right which the Company or an Affiliate may have to terminate such
Employment.
3.10 Nature of Payments.
3.10.1 Any and all grants of Awards and deliveries of Common Stock,
cash, securities or other property under the Plan shall be in consideration
of services performed or to be performed for the Company or an Affiliate by
the grantee. Awards under the Plan may, in the discretion of the Committee,
be made in substitution in whole or in part for cash or other compensation
otherwise payable to an Employee.
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3.10.2 All such grants and deliveries shall constitute a special
discretionary incentive payment to the grantee and shall not be required to
be taken into account in computing the amount of salary or compensation of
the grantee for the purpose of determining any contributions to or any
benefits under any pension, retirement, profit-sharing, bonus, life
insurance, severance or other benefit plan of the Company or an Affiliate or
under any agreement with the grantee, unless the Company or an Affiliate
specifically provides otherwise.
3.11 Non-Uniform Determinations.
The Committee's determinations under the Plan and Award Agreements need
not be uniform and may be made by it selectively among persons who receive,
or are eligible to receive, Awards under the Plan (whether or not such
persons are similarly situated). Without limiting the generality of the
foregoing, the Committee shall be entitled, among other things, to make
non-uniform and selective determinations under Award Agreements, and to enter
into non-uniform and selective Award Agreements, as to (a) the persons to
receive Awards, (b) the terms and provisions of Awards and (c) whether a
grantee's Employment has been terminated for purposes of the Plan.
3.12 Other Payments or Awards.
Nothing contained in the Plan shall be deemed in any way to limit or
restrict Calypte from making any award or payment to any person under any
other plan, arrangement or understanding, whether now existing or hereafter
in effect.
3.13 Plan Headings.
The headings in this Plan are for the purpose of convenience only and
are not intended to define or limit the construction of the provisions
hereof.
3.14 Governing Law.
ALL RIGHTS AND OBLIGATIONS UNDER THE PLAN AND EACH AWARD AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
3.15 Severability; Entire Agreement.
If any of the provisions of this Plan or any Award Agreement is finally
held to be invalid, illegal or unenforceable (whether in whole or in part),
such provision shall be deemed modified to the extent, but only to the
extent, of such invalidity, illegality or unenforceability and the remaining
provisions shall not be affected thereby; provided, that if any of such
provisions is finally held to be invalid, illegal, or unenforceable because
it exceeds the maximum scope determined to be acceptable to permit such
provision to be enforceable, such provision shall be deemed to be modified to
the minimum extent necessary to modify such scope in order to make such
provision enforceable hereunder. The Plan and any Award Agreements contain
the entire agreement of the parties with respect to the subject matter
thereof and supersede all prior agreements, promises, covenants,
arrangements, communications, representations and warranties between them,
whether written or oral with respect to the subject matter thereof.
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3.16 Waiver of Claims.
Each grantee of an Award recognizes and agrees that prior to being
selected by the Committee to receive an Award he or she has no right to any
benefits hereunder. Accordingly, in consideration of the grantee's receipt of
any Award hereunder, he or she expressly waives any right to contest the
amount of any Award, the terms of any Award Agreement, any determination,
action or omission hereunder or under any Award Agreement by the Committee,
Calypte, or the Board, or any amendment to the Plan or any Award Agreement
(other than an amendment to this Plan or an Award Agreement to which his or
her consent is expressly required by the express terms of an Award
Agreement).
3.17 No Third Party Beneficiaries.
Except as expressly provided therein, neither the Plan nor any Award
Agreement shall confer on any person other than the Company and the grantee
of any Award any rights or remedies thereunder.
3.18 Successors and Assigns of Calypte.
The terms of this Plan shall be binding upon and inure to the benefit
of Calypte and its successors and assigns.
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