EXHIBIT 4.1
SENTICORE, INC.
SECOND AMENDED 2004 NON-QUALIFIED STOCK OPTION PLAN
1. PURPOSE. THIS SECOND AMENDED 2004 NON-QUALIFIED STOCK OPTION PLAN E
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THE "PLAN") IS INTENDED TO PROMOTE THE FINANCIAL SUCCESS AND INTERESTS OF
SENTICORE, INC. (THE "COMPANY") AND MATERIALLY INCREASE SHAREHOLDER VALUE BY
GIVING INCENTIVES TO THE ELIGIBLE OFFICERS AND OTHER EMPLOYEES AND DIRECTORS OF,
AND CONSULTANTS AND ADVISORS TO, THE COMPANY, ITS PARENT (IF ANY) AND ANY
PRESENT OR FUTURE SUBSIDIARIES OF THE COMPANY (COLLECTIVELY, "RELATED
CORPORATIONS") THROUGH PROVIDING OPPORTUNITIES TO ACQUIRE STOCK IN THE COMPANY.
AS USED HEREIN, THE TERMS "PARENT" AND "SUBSIDIARY" MEAN "PARENT CORPORATION"
AND "SUBSIDIARY CORPORATION", RESPECTIVELY, AS THOSE TERMS ARE DEFINED IN
SECTIONS 424(E) AND 424(F) OR SUCCESSOR PROVISIONS OF THE INTERNAL REVENUE CODE
OF 1986 AS AMENDED FROM TIME TO TIME (THE "CODE"). ANY PROCEEDS OF CASH OR
PROPERTY RECEIVED BY THE COMPANY FOR THE SALE OF SENTICORE, INC. COMMON STOCK
PURSUANT TO OPTIONS GRANTED UNDER THIS PLAN WILL BE USED FOR GENERAL CORPORATE
PURPOSES.
2. STRUCTURE OF THE PLAN. THE PLAN PERMITS THE FOLLOWING SEPARATE
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TYPES OF GRANT:
A. OPTIONS MAY BE GRANTED HEREUNDER TO PURCHASE SHARES OF COMMON STOCK OF
THE COMPANY. THESE OPTIONS WILL NOT QUALIFY AS INCENTIVE STOCK OPTIONS. THE
NON-QUALIFIED OPTIONS ARE SOMETIMES REFERRED TO HEREINAFTER AS "OPTIONS".
B. AWARDS OF STOCK IN THE COMPANY ("AWARDS") MAY BE GRANTED.
C. OPPORTUNITIES TO MAKE DIRECT PURCHASES OF STOCK IN THE COMPANY
("PURCHASES") MAY BE AUTHORIZED.
OPTIONS, AWARDS AND AUTHORIZATIONS TO MAKE PURCHASES ARE SOMETIMES REFERRED TO
HEREINAFTER AS "STOCK RIGHTS".
3. ADMINISTRATION OF THE PLAN.
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A. THE PLAN SHALL BE ADMINISTERED BY THE BOARD OF DIRECTORS OF THE COMPANY
(THE "BOARD"). THE BOARD MAY IN ITS SOLE DISCRETION GRANT OPTIONS, AUTHORIZE
PURCHASES AND GRANT AWARDS, AS PROVIDED IN THE PLAN. THE BOARD SHALL HAVE FULL
POWER AND AUTHORITY, SUBJECT TO THE EXPRESS PROVISIONS OF THE PLAN, TO CONSTRUE
AND INTERPRET THE PLAN AND ALL OPTION AGREEMENTS, PURCHASE AUTHORIZATIONS AND
AWARD GRANTS THEREUNDER, TO ESTABLISH, AMEND AND RESCIND SUCH RULES AND
REGULATIONS AS IT MAY DEEM APPROPRIATE FOR THE PROPER ADMINISTRATION OF THE
PLAN, TO DETERMINE IN EACH CASE THE TERMS AND PROVISIONS WHICH SHALL APPLY TO A
PARTICULAR OPTION AGREEMENT, PURCHASE AUTHORIZATION, OR AWARD GRANT, AND TO MAKE
ALL OTHER DETERMINATIONS WHICH ARE, IN THE BOARD'S JUDGMENT, NECESSARY OR
DESIRABLE FOR THE PROPER ADMINISTRATION OF THE PLAN. THE BOARD MAY CORRECT ANY
DEFECT, SUPPLY ANY OMISSION OR RECONCILE ANY INCONSISTENCY IN THE PLAN OR IN ANY
OPTION AGREEMENT, PURCHASE AUTHORIZATION OR AWARD GRANT IN THE MANNER AND TO THE
EXTENT IT SHALL, IN ITS SOLE DISCRETION, CONSIDER EXPEDIENT. DECISIONS OF THE
BOARD SHALL BE FINAL AND BINDING ON ALL PARTIES WHO HAVE AN INTEREST IN THE PLAN
OR ANY OPTION, PURCHASE, AWARD, OR STOCK ISSUANCE THEREUNDER. NO DIRECTOR OR
PERSON ACTING PURSUANT TO AUTHORITY DELEGATED BY THE BOARD SHALL BE LIABLE FOR
ANY ACTION OR DETERMINATION UNDER THE PLAN MADE IN GOOD FAITH.
B. THE BOARD MAY, TO THE FULL EXTENT PERMITTED BY AND CONSISTENT WITH
APPLICABLE LAW AND THE COMPANY'S BY-LAWS, AND SUBJECT TO SUBPARAGRAPH D
HEREINBELOW, DELEGATE ANY OR ALL OF ITS POWERS WITH RESPECT TO THE
ADMINISTRATION OF THE PLAN TO A COMMITTEE (THE "COMMITTEE") APPOINTED BY THE
BOARD. IF A COMMITTEE HAS BEEN APPOINTED, ALL REFERENCES IN THIS PLAN TO THE
BOARD SHALL MEAN AND RELATE TO THAT COMMITTEE.
C. THOSE PROVISIONS OF THIS PLAN WHICH MAKE EXPRESS REFERENCE TO RULE
16B-3 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE
ACT"), OR ANY SUCCESSOR RULE ("RULE 16B-3"), OR WHICH ARE REQUIRED IN ORDER FOR
CERTAIN OPTION TRANSACTIONS TO QUALIFY FOR EXEMPTION UNDER RULE 16B-3, SHALL
APPLY ONLY TO THOSE PERSONS REQUIRED TO FILE REPORTS UNDER SECTION 16(A) OF THE
EXCHANGE ACT (A "REPORTING PERSON").
D. IF THE COMPANY REGISTERS ANY CLASS OF EQUITY SECURITY UNDER SECTION 12
OF THE EXCHANGE ACT, THE SELECTION OF A DIRECTOR OR AN OFFICER (AS THE TERMS
"DIRECTOR" AND "OFFICER" ARE DEFINED FOR PURPOSES OF RULE 16B-3) AS A RECIPIENT
OF AN OPTION, THE TIMING OF THE OPTION GRANT, THE EXERCISE PRICE OF THE OPTION
AND THE NUMBER OF SHARES SUBJECT TO THE OPTION SHALL BE DETERMINED EITHER (I) BY
THE BOARD, IF ALL OF THE BOARD MEMBERS ARE DISINTERESTED PERSONS WITHIN THE
MEANING OF RULE 16(B)(3), OR (II) BY TWO OR MORE DIRECTORS HAVING FULL AUTHORITY
TO ACT IN THE MATTER, EACH OF WHOM SHALL BE SUCH A DISINTERESTED PERSON.
4. ELIGIBLE EMPLOYEES AND OTHERS. NON-QUALIFIED OPTIONS, AWARDS, AND
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AUTHORIZATIONS TO MAKE PURCHASES MAY BE GRANTED TO ANY EMPLOYEE, OFFICER OR
DIRECTOR OF, OR CONSULTANT OR ADVISOR TO THE COMPANY OR ANY RELATED CORPORATION,
EXCEPT FOR INSTANCES WHERE SERVICES ARE IN CONNECTION WITH THE OFFER OR SALE OF
SECURITIES IN A CAPITAL-RAISING TRANSACTION, OR THEY DIRECTLY OR INDIRECTLY
PROMOTE OR MAINTAIN A MARKET FOR THE COMPANY'S SECURITIES. IN MAKING SUCH
DETERMINATIONS, THE BOARD AND/OR THE COMMITTEE MAY TAKE INTO ACCOUNT THE NATURE
OF THE SERVICES RENDERED BY SUCH PERSON, HIS OR HER PRESENT AND POTENTIAL
CONTRIBUTION TO THE COMPANY'S SUCCESS, AND SUCH OTHER FACTORS AS THE BOARD
AND/OR COMMITTEE IN ITS DISCRETION SHALL DEEM RELEVANT. THE GRANTING OF ANY
STOCK RIGHT TO ANY INDIVIDUAL OR ENTITY SHALL NEITHER ENTITLE THAT INDIVIDUAL OR
ENTITY TO, NOR DISQUALIFY HIM FROM, PARTICIPATION IN ANY OTHER GRANT OF STOCK
RIGHTS.
5. STOCK. THE STOCK SUBJECT TO OPTIONS, AWARDS AND PURCHASES SHALL BE
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AUTHORIZED BUT UNISSUED SHARES OF COMMON STOCK OF THE COMPANY ("COMMON STOCK"),
OR SHARES OF COMMON STOCK REACQUIRED BY THE COMPANY IN ANY MANNER. THE
AGGREGATE NUMBER OF SHARES WHICH MAY BE ISSUED UNDER THE PLAN IS SEVENTEEN
MILLION FIVE HUNDRED THOUSAND (17,500,000), SUBJECT TO ADJUSTMENT AS PROVIDED
IN PARAGRAPH 13. IF ANY OPTION GRANTED UNDER THE PLAN SHALL EXPIRE OR
TERMINATE FOR ANY REASON WITHOUT HAVING BEEN EXERCISED IN FULL OR SHALL CEASE
FOR ANY REASON TO BE EXERCISABLE IN WHOLE OR IN PART, OR IF THE COMPANY
SHALL REACQUIRE ANY NONVESTED SHARES ISSUED PURSUANT TO AWARDS OR PURCHASES,
THE UNPURCHASED SHARES SUBJECT TO SUCH OPTION, OR SUCH NONVESTED SHARES SO
REACQUIRED SHALL AGAIN BE AVAILABLE FOR GRANTS OF STOCK RIGHTS UNDER THE
PLAN. NO FRACTIONAL SHARES OF COMMON STOCK SHALL BE ISSUED, AND THE BOARD
AND/OR COMMITTEE SHALL DETERMINE THE MANNER IN WHICH FRACTIONAL SHARE VALUE
SHALL BE TREATED.
6. OPTION AGREEMENTS. AS A CONDITION TO THE GRANT OF AN OPTION, EACH
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RECIPIENT OF AN OPTION SHALL EXECUTE AN OPTION AGREEMENT IN SUCH FORM NOT
INCONSISTENT WITH THE PLAN AS THE BOARD SHALL APPROVE. THESE OPTION AGREEMENTS
MAY DIFFER AMONG RECIPIENTS. THE BOARD MAY, IN ITS SOLE DISCRETION, INCLUDE
ADDITIONAL PROVISIONS IN OPTION AGREEMENTS, INCLUDING WITHOUT LIMITATION
RESTRICTIONS ON TRANSFER, REPURCHASE RIGHTS, COMMITMENTS TO PAY CASH BONUSES, TO
MAKE, ARRANGE FOR OR GUARANTEE LOANS OR TO TRANSFER OTHER PROPERTY TO OPTIONEES
UPON EXERCISE OF OPTIONS, OR SUCH OTHER PROVISIONS AS SHALL BE DETERMINED BY THE
BOARD; PROVIDED, HOWEVER, THAT SUCH ADDITIONAL PROVISIONS SHALL NOT BE
INCONSISTENT WITH ANY PROVISION OF THE PLAN.
7. OPTION EXERCISE PRICE.
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A. SUBJECT TO SUBPARAGRAPH 3D OF THIS PLAN AND SUBPARAGRAPH B OF THIS
PARAGRAPH 7, THE PURCHASE PRICE PER SHARE OF COMMON STOCK DELIVERABLE UPON THE
EXERCISE OF AN OPTION ("EXERCISE PRICE") SHALL BE DETERMINED BY THE BOARD.
B. THE EXERCISE PRICE OF EACH NON-QUALIFIED OPTION GRANTED UNDER THE PLAN
SHALL IN NO EVENT BE LESS THAN THE PAR VALUE PER SHARE OF THE COMPANY'S COMMON
STOCK.
8. CANCELLATION AND NEW GRANT OF OPTIONS, ETC. THE BOARD SHALL HAVE
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THE AUTHORITY TO EFFECT, AT ANY TIME AND FROM TIME TO TIME, WITH THE CONSENT OF
THE AFFECTED OPTIONEES, THE CANCELLATION OF ANY OR ALL OUTSTANDING OPTIONS AND
THE GRANT IN SUBSTITUTION THEREFOR OF NEW OPTIONS COVERING THE SAME OR DIFFERENT
SHARES OF COMMON STOCK AND HAVING AN EXERCISE PRICE PER SHARE WHICH MAY BE LOWER
OR HIGHER THAN THE EXERCISE PRICE PER SHARE OF THE CANCELED OPTIONS.
9. EXERCISE OF OPTIONS.
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A. EACH OPTION GRANTED UNDER THE PLAN SHALL BE EXERCISABLE EITHER IN FULL
OR IN INSTALLMENTS AT SUCH TIME OR TIMES AND DURING SUCH PERIOD AS SHALL BE SET
FORTH IN THE AGREEMENT EVIDENCING THE OPTION, SUBJECT TO THE PROVISIONS OF THE
PLAN. THE PARTIAL EXERCISE OF AN OPTION SHALL NOT CAUSE THE EXPIRATION,
TERMINATION OR CANCELLATION OF THE REMAINING PORTION THEREOF. THE BOARD MAY, IN
ITS SOLE DISCRETION, (I) ACCELERATE THE DATE OR DATES ON WHICH ALL OR ANY
PARTICULAR OPTION OR OPTIONS GRANTED UNDER THE PLAN MAY BE EXERCISED OR (II)
EXTEND THE DATES DURING WHICH ALL, OR ANY PARTICULAR, OPTION OR OPTIONS GRANTED
UNDER THE PLAN MAY BE EXERCISED.
B. OPTIONS GRANTED UNDER THE PLAN MAY PROVIDE FOR PAYMENT OF THE EXERCISE
PRICE PLUS TAXES (AS PROVIDED IN SECTION 22, BELOW) BY ANY OF THE FOLLOWING
METHODS:
(I) IN CASH, BY WIRE TRANSFER, BY CERTIFIED OR CASHIER'S CHECK,
OR BY MONEY ORDER; OR
(II) BY DELIVERY TO THE COMPANY OF AN EXERCISE NOTICE THAT
REQUESTS THE COMPANY TO ISSUE TO THE OPTIONEE THE FULL NUMBER OF SHARES AS
TO WHICH THE OPTION IS THEN EXERCISABLE, LESS THE NUMBER OF SHARES THAT HAVE
AN AGGREGATE FAIR MARKET VALUE, AS DETERMINED BY THE BOARD IN ITS SOLE
DISCRETION AT THE TIME OF EXERCISE, EQUAL TO THE AGGREGATE PURCHASE PRICE OF
THE SHARES TO WHICH SUCH EXERCISE RELATES. (THIS METHOD OF EXERCISE ALLOWS THE
OPTIONEE TO USE A PORTION OF THE SHARES ISSUABLE AT THE TIME OF EXERCISE AS
PAYMENT FOR THE SHARES TO WHICH THE OPTION RELATES AND IS OFTEN REFERRED TO AS A
"CASHLESS EXERCISE." FOR EXAMPLE, IF THE OPTIONEE ELECTS TO EXERCISE 1,000
SHARES AT AN EXERCISE PRICE OF $0.25 AND THE CURRENT FAIR MARKET VALUE OF THE
SHARES ON THE DATE OF EXERCISE IS $1.00, THE OPTIONEE CAN USE 250 OF THE 1,000
SHARES AT $1.00 PER SHARE TO PAY FOR THE EXERCISE OF THE ENTIRE OPTION (250
X $1.00 = $250.00) AND RECEIVE ONLY THE REMAINING 750 SHARES.)
FOR PURPOSES OF THIS SECTION, " FAIR MARKET VALUE" SHALL BE DEFINED AS THE
AVERAGE CLOSING PRICE OF THE COMMON STOCK (IF ACTUAL SALES PRICE INFORMATION ON
ANY TRADING DAY IS NOT AVAILABLE, THE CLOSING BID PRICE SHALL BE USED) FOR THE
FIVE TRADING DAYS PRIOR TO THE DATE OF EXERCISE OF THIS OPTION (THE "AVERAGE
CLOSING BID PRICE"), AS REPORTED BY THE NATIONAL ASSOCIATION OF SECURITIES
DEALERS AUTOMATED QUOTATION SYSTEM ("NASDAQ"), OR IF THE COMMON STOCK IS NOT
TRADED ON NASDAQ, THE AVERAGE CLOSING BID PRICE IN THE OVER-THE-COUNTER MARKET;
PROVIDED, HOWEVER, THAT IF THE COMMON STOCK IS LISTED ON A STOCK EXCHANGE, THE
FAIR MARKET VALUE SHALL BE THE AVERAGE CLOSING BID PRICE ON SUCH EXCHANGE; AND,
PROVIDED FURTHER, THAT IF THE COMMON STOCK IS NOT QUOTED OR LISTED BY ANY
ORGANIZATION, THE FAIR VALUE OF THE COMMON STOCK, AS DETERMINED BY THE BOARD OF
DIRECTORS OF THE COMPANY, WHOSE DETERMINATION SHALL BE CONCLUSIVE, SHALL BE
USED). IN NO EVENT SHALL THE FAIR MARKET VALUE OF ANY SHARE OF COMMON STOCK BE
LESS THAN ITS PAR VALUE.
10. OPTION PERIOD. SUBJECT TO EARLIER TERMINATION UNDER OTHER
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PROVISIONS OF THIS PLAN, EACH OPTION AND ALL RIGHTS THEREUNDER SHALL EXPIRE ON
SUCH DATE AS SHALL BE SET FORTH IN THE APPLICABLE OPTION AGREEMENT.
11. NONTRANSFERABILITY OF OPTIONS. OPTIONS SHALL NOT BE ASSIGNABLE OR
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TRANSFERABLE BY THE OPTIONEE, EITHER VOLUNTARILY OR BY OPERATION OF LAW, EXCEPT
BY WILL OR THE LAWS OF DESCENT AND DISTRIBUTION, AND, DURING THE LIFE OF THE
OPTIONEE, EXCEPT TO THE EXTENT OTHERWISE PROVIDED IN THE AGREEMENT EVIDENCING
THE OPTION, SHALL BE EXERCISABLE ONLY BY THE OPTIONEE.
12. EFFECT OF TERMINATION OF EMPLOYMENT OR OTHER RELATIONSHIP. SUBJECT
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TO ALL OTHER PROVISIONS OF THE PLAN, THE BOARD SHALL DETERMINE THE PERIOD OF
TIME DURING WHICH AN OPTIONEE MAY EXERCISE AN OPTION FOLLOWING (I) THE
TERMINATION OF THE OPTIONEE'S EMPLOYMENT OR OTHER RELATIONSHIP WITH THE COMPANY
OR A RELATED CORPORATION OR (II) THE DEATH OR DISABILITY OF THE OPTIONEE. SUCH
PERIODS SHALL BE SET FORTH IN THE AGREEMENT EVIDENCING THE OPTION.
13. ADJUSTMENTS.
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A. IF, THROUGH OR AS A RESULT OF ANY MERGER, CONSOLIDATION, SALE OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY, REORGANIZATION,
RECAPITALIZATION, RECLASSIFICATION, STOCK DIVIDEND, STOCK SPLIT, REVERSE STOCK
SPLIT OR OTHER SIMILAR TRANSACTION, (I) THE OUTSTANDING SHARES OF COMMON STOCK
ARE INCREASED, DECREASED OR EXCHANGED FOR A DIFFERENT NUMBER OR KIND OF SHARES
OR OTHER SECURITIES OF THE COMPANY, OR (II) ADDITIONAL SHARES OR NEW OR
DIFFERENT SHARES OR OTHER SECURITIES OF THE COMPANY OR OTHER NON-CASH ASSETS ARE
DISTRIBUTED WITH RESPECT TO SUCH SHARES OF COMMON STOCK OR OTHER SECURITIES, AN
APPROPRIATE AND PROPORTIONATE ADJUSTMENT SHALL BE MADE IN (A) THE MAXIMUM NUMBER
AND KIND OF SHARES RESERVED FOR ISSUANCE UNDER THE PLAN, (B) THE NUMBER AND KIND
OF SHARES OR OTHER SECURITIES SUBJECT TO ANY THEN OUTSTANDING OPTIONS UNDER THE
PLAN, AND (C) THE PRICE FOR EACH SHARE SUBJECT TO ANY THEN OUTSTANDING OPTIONS
UNDER THE PLAN, WITHOUT CHANGING THE AGGREGATE PURCHASE PRICE AS TO WHICH SUCH
OPTIONS REMAIN EXERCISABLE. NO FRACTIONAL SHARES SHALL BE ISSUED UNDER THE PLAN
ON ACCOUNT OF ANY SUCH ADJUSTMENTS.
B. ANY ADJUSTMENTS UNDER THIS PARAGRAPH 13 SHALL BE MADE BY THE BOARD OF
DIRECTORS, WHOSE DETERMINATION AS TO WHAT ADJUSTMENTS, IF ANY, WILL BE MADE AND
THE EXTENT THEREOF SHALL BE FINAL, BINDING AND CONCLUSIVE.
14. RIGHTS AS A SHAREHOLDER. THE HOLDER OF AN OPTION SHALL HAVE NO
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RIGHTS AS A SHAREHOLDER WITH RESPECT TO ANY SHARES COVERED BY THE OPTION
(INCLUDING, WITHOUT LIMITATION, ANY VOTING RIGHTS, THE RIGHT TO INSPECT OR
RECEIVE THE COMPANY'S BALANCE SHEETS OR FINANCIAL STATEMENTS OR ANY RIGHTS TO
RECEIVE DIVIDENDS OR NON-CASH DISTRIBUTIONS WITH RESPECT TO SUCH SHARES) UNTIL
THE DATE OF ISSUE OF A STOCK CERTIFICATE FOR SUCH SHARES. NO ADJUSTMENT SHALL
BE MADE FOR DIVIDENDS OR OTHER RIGHTS FOR WHICH THE RECORD DATE IS PRIOR TO THE
DATE SUCH STOCK CERTIFICATE IS ISSUED.
15. MERGER, CONSOLIDATION, ASSET SALE, LIQUIDATION, ETC.
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A. EXCEPT AS MAY OTHERWISE BE PROVIDED IN THE APPLICABLE OPTION AGREEMENT,
IN THE EVENT OF A CONSOLIDATION OR MERGER OR SALE OF ALL OR SUBSTANTIALLY ALL OF
THE ASSETS OF THE COMPANY IN WHICH OUTSTANDING SHARES OF COMMON STOCK ARE
EXCHANGED FOR SECURITIES, CASH OR OTHER PROPERTY OF ANY OTHER CORPORATION OR
BUSINESS ENTITY, OR IN THE EVENT OF THE LIQUIDATION OF THE COMPANY (EACH, A
"CHANGE IN CONTROL"), THE BOARD, OR THE BOARD OF DIRECTORS OF ANY CORPORATION
ASSUMING THE OBLIGATIONS OF THE COMPANY, SHALL, IN ITS DISCRETION, TAKE ANY ONE
OR MORE OF THE FOLLOWING ACTIONS, AS TO OUTSTANDING OPTIONS: (I) PROVIDE THAT
SUCH OPTIONS SHALL BE ASSUMED, OR EQUIVALENT OPTIONS SHALL BE SUBSTITUTED, BY
THE ACQUIRING OR SUCCEEDING CORPORATION (OR AN AFFILIATE THEREOF); (II) UPON
WRITTEN NOTICE TO THE OPTIONEES, PROVIDE THAT ANY AND ALL OUTSTANDING OPTIONS
SHALL BECOME EXERCISABLE IN FULL (TO THE EXTENT NOT OTHERWISE SO EXERCISABLE) AS
OF A SPECIFIED DATE OR TIME ("ACCELERATED VESTING DATE") PRIOR TO THE
CONSUMMATION OF SUCH TRANSACTION, AND THAT ALL UNEXERCISED OPTIONS SHALL
TERMINATE AS OF A SPECIFIED DATE OR TIME ("ACCELERATED EXPIRATION DATE")
FOLLOWING THE ACCELERATED VESTING DATE UNLESS EXERCISED BY THE OPTIONEE PRIOR TO
THE ACCELERATED EXPIRATION DATE; PROVIDED, HOWEVER, THAT OPTIONEES SHALL BE
GIVEN A REASONABLE PERIOD OF TIME WITHIN WHICH TO EXERCISE OR PROVIDE FOR THE
EXERCISE OF OUTSTANDING OPTIONS FOLLOWING SUCH WRITTEN NOTICE AND BEFORE THE
ACCELERATED EXPIRATION DATE; (III) IN THE EVENT OF A MERGER UNDER THE TERMS OF
WHICH HOLDERS OF THE COMMON STOCK OF THE COMPANY WILL RECEIVE UPON CONSUMMATION
THEREOF A CASH PAYMENT FOR EACH SHARE SURRENDERED IN THE MERGER (THE "MERGER
PRICE"), TERMINATE EACH OUTSTANDING OPTION IN EXCHANGE FOR A PAYMENT, MADE OR
PROVIDED FOR BY THE COMPANY, EQUAL IN AMOUNT TO THE EXCESS, IF ANY, OF THE
MERGER PRICE OVER THE PER-SHARE EXERCISE PRICE OF EACH SUCH OPTION, TIMES THE
NUMBER OF SHARES OF COMMON STOCK SUBJECT TO SUCH OPTION; OR (IV) TERMINATE EACH
OUTSTANDING OPTION IN EXCHANGE FOR A CASH PAYMENT EQUAL IN AMOUNT TO THE PRODUCT
OF THE EXCESS, IF ANY, OF THE FAIR MARKET VALUE OF A SHARE OF COMMON STOCK OVER
THE PER-SHARE EXERCISE PRICE OF EACH SUCH OPTION, TIMES THE NUMBER OF SHARES
SUBJECT TO SUCH OPTION. THE BOARD SHALL DETERMINE THE FAIR MARKET VALUE OF A
SHARE OF COMMON STOCK FOR PURPOSES OF THE FOREGOING, AND THE BOARD'S
DETERMINATION OF SUCH FAIR MARKET VALUE SHALL BE FINAL, BINDING AND CONCLUSIVE.
B. IN THE EVENT OF A CHANGE IN CONTROL AND TO THE EXTENT THE RIGHTS
DESCRIBED IN THIS SECTION 15B ARE NOT ALREADY SUBSTANTIALLY PROVIDED TO EACH
QUALIFIED OPTION RECIPIENT (AS DEFINED BELOW) BY THE BOARD (OR THE BOARD OF
DIRECTORS OF ANY CORPORATION ASSUMING THE OBLIGATIONS OF THE COMPANY) PURSUANT
TO SECTION 15A, BEGINNING ON THE DATE WHICH IS 180 DAYS FROM THE DATE OF SUCH
CHANGE IN CONTROL, EACH QUALIFIED OPTION RECIPIENT SHALL HAVE THE RIGHT TO
EXERCISE AND RECEIVE FROM THE COMPANY OR ITS SUCCESSOR THEIR RESPECTIVE
ACCELERATION AMOUNT (AS DEFINED BELOW). A "QUALIFIED OPTION RECIPIENT" IS
DEFINED AS AN OPTION RECIPIENT HEREUNDER WHO BOTH (A) HAS MAINTAINED A
RELATIONSHIP AS AN EMPLOYEE, OFFICER OR DIRECTOR OF, OR CONSULTANT OR ADVISOR
TO, THE COMPANY OR ITS SUCCESSOR FOR THE 180 DAYS IMMEDIATELY PRIOR TO THE
CHANGE IN CONTROL AND (B) ON THE DATE WHICH IS 180 DAYS AFTER THE DATE OF THE
CHANGE IN CONTROL, EITHER (I) MAINTAINS A RELATIONSHIP AS AN EMPLOYEE, OFFICER
OR DIRECTOR OF, OR CONSULTANT OR ADVISOR TO, THE COMPANY OR ITS SUCCESSOR OR
(II) FAILS TO MAINTAIN A RELATIONSHIP AS AN EMPLOYEE, OFFICER OR DIRECTOR OF, OR
CONSULTANT OR ADVISOR TO, THE COMPANY OR ITS SUCCESSOR BY REASON OF HAVING SUCH
RELATIONSHIP TERMINATED BY THE COMPANY OR ITS SUCCESSOR OTHER THAN FOR CAUSE,
WHERE "CAUSE" MEANS WILLFUL MISCONDUCT OR WILLFUL FAILURE OF THE OPTION
RECIPIENT TO PERFORM THE RESPONSIBILITIES OF SUCH OPTION RECIPIENT'S AGREED-UPON
BUSINESS RELATIONSHIP WITH THE COMPANY OR ITS SUCCESSOR, INCLUDING WITHOUT
LIMITATION SUCH OPTION RECIPIENT'S BREACH OF ANY PROVISION OF ANY EMPLOYMENT,
CONSULTING, NONDISCLOSURE, NON-COMPETITION OR SIMILAR AGREEMENT BETWEEN THE
OPTION RECIPIENT AND THE COMPANY. WITH RESPECT TO EACH QUALIFIED OPTION
RECIPIENT, THE "ACCELERATION AMOUNT" SHALL MEAN THE LESSER OF (A) THE NUMBER OF
ADDITIONAL SHARES OF COMMON STOCK (OR THEIR EQUIVALENT) WHICH WOULD HAVE BECOME
VESTED PURSUANT TO THEIR OPTION AGREEMENT OVER THE TWELVE (12) MONTH PERIOD
FOLLOWING THE DATE OF THE CHANGE IN CONTROL OR (B) FIFTY PERCENT (50%) OF THE
SHARES OF COMMON STOCK (OR THEIR EQUIVALENT) WHICH HAD NOT YET VESTED PURSUANT
TO THEIR OPTION AGREEMENT AS OF THE DATE OF THE CHANGE IN CONTROL. THE BOARD
AND, WHERE APPLICABLE, THE BOARD OF DIRECTORS OF ANY CORPORATION ASSUMING THE
OBLIGATIONS OF THE COMPANY, SHALL TAKE ALL NECESSARY ACTION TO ACCOMPLISH THE
PURPOSES OF THIS SECTION 15B, INCLUDING ALL SUCH ACTIONS AS ARE NECESSARY TO
PROVIDE FOR THE ASSUMPTION OF SUCH OBLIGATION UPON THE CHANGE IN CONTROL.
C. THE COMPANY MAY GRANT OPTIONS UNDER THE PLAN IN SUBSTITUTION FOR
OPTIONS HELD BY EMPLOYEES OF ANOTHER CORPORATION WHO BECOME EMPLOYEES OF THE
COMPANY OR A RELATED CORPORATION AS THE RESULT OF A MERGER OR CONSOLIDATION OF
THE EMPLOYING CORPORATION WITH THE COMPANY OR A RELATED CORPORATION, OR AS A
RESULT OF THE ACQUISITION BY THE COMPANY OR A RELATED CORPORATION OF PROPERTY OR
STOCK OF THE EMPLOYING CORPORATION. THE COMPANY MAY DIRECT THAT SUBSTITUTE
OPTIONS BE GRANTED ON SUCH TERMS AND CONDITIONS AS THE BOARD CONSIDERS
APPROPRIATE IN THE CIRCUMSTANCES.
D. IN THE EVENT OF A CHANGE IN CONTROL AND WITH RESPECT THERETO, THE
RIGHTS AND RESPONSIBILITIES OF HOLDERS OF STOCK RIGHTS PURSUANT TO THIS PLAN
SHALL BE GOVERNED FIRST AND FOREMOST BY THE COMPANY'S AGREEMENT WITH THE
RESPECTIVE RECIPIENT OF SUCH STOCK RIGHTS AND THEN, TO THE EXTENT APPLICABLE, BY
THE TERMS OF THIS SECTION 15.
16. STOCK RESTRICTION AGREEMENT. AS A CONDITION TO THE GRANT OF AN
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AWARD OR A PURCHASE AUTHORIZATION UNDER THE PLAN, THE RECIPIENT OF THE AWARD OR
PURCHASE AUTHORIZATION SHALL EXECUTE AN AGREEMENT ("STOCK RESTRICTION
AGREEMENT") IN SUCH FORM NOT INCONSISTENT WITH THE PLAN AS MAY BE APPROVED BY
THE BOARD. STOCK RESTRICTION AGREEMENTS MAY DIFFER AMONG RECIPIENTS. STOCK
RESTRICTION AGREEMENTS MAY INCLUDE ANY PROVISIONS THE BOARD DETERMINES SHOULD BE
INCLUDED AND THAT ARE NOT INCONSISTENT WITH ANY PROVISION OF THE PLAN.
17. NO SPECIAL EMPLOYMENT RIGHTS. NOTHING CONTAINED IN THE PLAN OR IN
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ANY OPTION AGREEMENT OR OTHER AGREEMENT OR INSTRUMENT EXECUTED PURSUANT TO THE
PROVISIONS OF THE PLAN SHALL CONFER UPON ANY OPTIONEE ANY RIGHT WITH RESPECT TO
THE CONTINUATION OF HIS OR HER EMPLOYMENT BY THE COMPANY OR ANY RELATED
CORPORATION OR INTERFERE IN ANY WAY WITH THE RIGHT OF THE COMPANY OR A RELATED
CORPORATION AT ANY TIME TO TERMINATE SUCH EMPLOYMENT OR TO INCREASE OR DECREASE
THE COMPENSATION OF THE OPTIONEE.
18. OTHER EMPLOYEE BENEFITS. EXCEPT AS TO PLANS WHICH BY THEIR TERMS
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INCLUDE SUCH AMOUNTS AS COMPENSATION, NO AMOUNT OF COMPENSATION DEEMED TO BE
RECEIVED BY AN EMPLOYEE AS A RESULT OF THE GRANT OR EXERCISE OF AN OPTION OR THE
SALE OF SHARES RECEIVED UPON SUCH EXERCISE, OR AS A RESULT OF THE GRANT OF AN
AWARD OR THE AUTHORIZATION OR MAKING OF A PURCHASE WILL CONSTITUTE COMPENSATION
WITH RESPECT TO WHICH ANY OTHER EMPLOYEE BENEFITS OF SUCH EMPLOYEE ARE
DETERMINED, INCLUDING, WITHOUT LIMITATION, BENEFITS UNDER ANY BONUS, PENSION,
PROFIT-SHARING, LIFE INSURANCE OR SALARY CONTINUATION PLAN, EXCEPT AS OTHERWISE
SPECIFICALLY DETERMINED BY THE BOARD.
19. AMENDMENT OF THE PLAN.
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A. THE BOARD MAY AT ANY TIME, AND FROM TIME TO TIME, MODIFY OR AMEND THE
PLAN IN ANY RESPECT.
B. THE TERMINATION OR ANY MODIFICATION OR AMENDMENT OF THE PLAN SHALL NOT,
WITHOUT THE CONSENT OF AN OPTIONEE, AFFECT THE OPTIONEE'S RIGHTS UNDER AN OPTION
PREVIOUSLY GRANTED. WITH THE CONSENT OF THE OPTIONEE AFFECTED, THE BOARD MAY
AMEND OUTSTANDING OPTION AGREEMENTS IN A MANNER NOT INCONSISTENT WITH THE PLAN.
THE BOARD SHALL HAVE THE RIGHT TO AMEND OR MODIFY (I) THE TERMS AND PROVISIONS
OF THE PLAN, AND (II) THE TERMS AND PROVISIONS OF THE PLAN AND OF ANY
OUTSTANDING OPTION TO THE EXTENT NECESSARY TO ENSURE THE QUALIFICATION OF THE
PLAN UNDER RULE 16B-3.
20. INVESTMENT REPRESENTATIONS. THE BOARD MAY REQUIRE ANY PERSON TO
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WHOM AN OPTION IS GRANTED, AS A CONDITION OF EXERCISING SUCH OPTION, AND ANY
PERSON TO WHOM AN AWARD IS GRANTED OR A PURCHASE IS AUTHORIZED, AS A CONDITION
THEREOF, TO GIVE WRITTEN ASSURANCES IN SUBSTANCE AND FORM SATISFACTORY TO THE
BOARD TO THE EFFECT THAT SUCH PERSON IS ACQUIRING THE COMMON STOCK SUBJECT TO
THE OPTION, AWARD OR PURCHASE FOR SUCH PERSON'S OWN ACCOUNT FOR INVESTMENT AND
NOT WITH ANY PRESENT INTENTION OF SELLING OR OTHERWISE DISTRIBUTING THE SAME,
AND TO SUCH OTHER EFFECTS AS THE COMPANY DEEMS NECESSARY OR APPROPRIATE IN ORDER
TO COMPLY WITH FEDERAL AND APPLICABLE STATE SECURITIES LAWS, OR WITH COVENANTS
OR REPRESENTATIONS MADE BY THE COMPANY IN CONNECTION WITH ANY PUBLIC OFFERING OF
ITS COMMON STOCK.
21. COMPLIANCE WITH SECURITIES LAWS. EACH OPTION SHALL BE SUBJECT TO
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THE REQUIREMENT THAT IF, AT ANY TIME, COUNSEL TO THE COMPANY SHALL DETERMINE
THAT THE LISTING, REGISTRATION OR QUALIFICATION OF THE SHARES SUBJECT TO SUCH
OPTION UPON ANY SECURITIES EXCHANGE OR UNDER ANY STATE OR FEDERAL LAW, OR THE
CONSENT OR APPROVAL OF ANY GOVERNMENTAL OR REGULATORY BODY, OR THAT THE
DISCLOSURE OF NON-PUBLIC INFORMATION OR THE SATISFACTION OF ANY OTHER CONDITION
IS NECESSARY AS A CONDITION OF, OR IN CONNECTION WITH, THE ISSUANCE OR PURCHASE
OF SHARES THEREUNDER, SUCH OPTION MAY NOT BE EXERCISED, IN WHOLE OR IN PART,
UNLESS SUCH LISTING, REGISTRATION, QUALIFICATION, CONSENT OR APPROVAL, OR
SATISFACTION OF SUCH CONDITION SHALL HAVE BEEN EFFECTED OR OBTAINED ON
CONDITIONS ACCEPTABLE TO THE BOARD. NOTHING HEREIN SHALL BE DEEMED TO REQUIRE
THE COMPANY TO APPLY FOR OR TO OBTAIN SUCH LISTING, REGISTRATION OR
QUALIFICATION, OR TO SATISFY SUCH CONDITION.
22. WITHHOLDING. THE COMPANY SHALL HAVE THE RIGHT TO DEDUCT FROM
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PAYMENTS OF ANY KIND OTHERWISE DUE TO THE OPTIONEE ANY FEDERAL, STATE OR LOCAL
TAXES OF ANY KIND REQUIRED BY LAW TO BE WITHHELD WITH RESPECT TO ANY SHARES
ISSUED UPON EXERCISE OF OPTIONS UNDER THE PLAN OR UPON THE GRANT OF AN AWARD,
THE MAKING OF A PURCHASE OF COMMON STOCK FOR LESS THAN ITS FAIR MARKET VALUE, OR
THE VESTING OF RESTRICTED COMMON STOCK ACQUIRED PURSUANT TO A STOCK RIGHT. THE
BOARD IN ITS SOLE DISCRETION MAY CONDITION THE EXERCISE OF AN OPTION, THE GRANT
OF AN AWARD, THE MAKING OF A PURCHASE, OR THE VESTING OF RESTRICTED SHARES
ACQUIRED BY EXERCISING A STOCK RIGHT ON THE GRANTEE'S PAYMENT OF SUCH ADDITIONAL
WITHHOLDING TAXES BY 1) ADDITIONAL WITHHOLDING IF THE OPTIONEE IS AN EXISTING
EMPLOYEE WITH RESPECT TO WHOM THE COMPANY WITHHOLDS TAXES ON THE DATE OF
EXERCISE (OR SUCH OTHER TIME AS THE COMPANY'S OBLIGATION TO WITHHOLD TAXES MAY
ACCRUE); OR 2) DIRECT PAYMENT OF THE REQUIRED WITHHOLDING TO THE COMPANY. THE
COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS OR THE BOARD OF DIRECTORS, AS
APPLICABLE, IN THEIR SOLE DISCRETION, SHALL DETERMINE THE AMOUNT OF TAXES THAT
ARE REQUIRED TO BE WITHHELD.
23. EFFECTIVE DATE AND DURATION OF THE PLAN.
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A. THE PLAN SHALL BECOME EFFECTIVE WHEN ADOPTED BY THE BOARD AND STOCK
RIGHTS GRANTED UNDER THE PLAN SHALL BECOME EXERCISABLE UPON THE BOARD'S APPROVAL
OF THE PLAN. AMENDMENTS TO THE PLAN NOT REQUIRING SHAREHOLDER APPROVAL SHALL
BECOME EFFECTIVE WHEN ADOPTED BY THE BOARD. STOCK RIGHTS MAY BE GRANTED UNDER
THE PLAN AT ANY TIME AFTER THE EFFECTIVE DATE AND BEFORE THE TERMINATION DATE OF
THE PLAN.
B. UNLESS SOONER TERMINATED AS PROVIDED ELSEWHERE IN THIS PLAN, THIS PLAN
SHALL TERMINATE UPON THE CLOSE OF BUSINESS ON THE DAY NEXT PRECEDING THE TENTH
ANNIVERSARY OF THE DATE OF ITS ADOPTION BY THE BOARD. STOCK RIGHTS OUTSTANDING
ON SUCH DATE SHALL CONTINUE TO HAVE FORCE AND EFFECT IN ACCORDANCE WITH THE
PROVISIONS OF THE INSTRUMENTS EVIDENCING SUCH STOCK RIGHTS.
ADOPTED BY THE BOARD OF DIRECTORS ON SEPTEMBER 30, 2004.