Exhibit 10.2
EXACT CORPORATION
2000 STOCK OPTION AND INCENTIVE
PLAN
1.
PURPOSE AND ELIGIBILITY
The purpose of this 2000 Stock
Option and Incentive Plan (the “PLAN”) of Exact
Corporation (the “COMPANY”) is to provide stock options
and other equity interests in the Company (each an
“AWARD”) to employees, officers, directors, consultants
and advisors of the Company and its Subsidiaries, all of whom are
eligible to receive Awards under the Plan. Any person to whom an
Award has been granted under the Plan is called a
“PARTICIPANT”. Additional definitions are contained in
Section 8.
2.
ADMINISTRATION
a. ADMINISTRATION BY BOARD OF
DIRECTORS. The Plan will be administered by the Board of Directors
of the Company (the “BOARD”). The Board, in its sole
discretion, shall have the authority to grant and amend Awards, to
adopt, amend and repeal rules relating to the Plan and to
interpret and correct the provisions of the Plan and any Award. All
decisions by the Board shall be final and binding on all interested
persons. Neither the Company nor any member of the Board shall be
liable for any action or determination relating to the
Plan.
b. APPOINTMENT OF COMMITTEES. To the
extent permitted by applicable law, the Board may delegate any or
all of its powers under the Plan to one or more committees or
subcommittees of the Board (a “COMMITTEE”). All
references in the Plan to the “BOARD” shall mean such
Committee or the Board.
c. DELEGATION TO EXECUTIVE OFFICERS.
To the extent permitted by applicable law, the Board may delegate
to one or more executive officers of the Company the power to grant
Awards and exercise such other powers under the Plan as the Board
may determine, PROVIDED THAT the Board shall fix the maximum number
of Awards to be granted and the maximum number of shares issuable
to any one Participant pursuant to Awards granted by such executive
officers.
3.
STOCK AVAILABLE FOR AWARDS
a. NUMBER OF SHARES. Subject to
adjustment under Section 3(c), the aggregate number of shares
of Common Stock, par value $.01 per share, of the Company (the
“COMMON STOCK”) that may be issued pursuant to the Plan
is 1,000,000 shares, which number shall automatically increase on
January 1, 2002 and each January 1 thereafter (each, an
“Adjustment Date”) by such number of shares as is equal
to the greater of (i) 5% of the number of shares of Common
Stock outstanding on the immediately preceding December 31,
and (ii) the number of shares of Common Stock that has been
made subject to Awards made under the Plan during the year
immediately prior to such Adjustment Date; PROVIDED, HOWEVER, that
the Board may provide for a lesser number of shares on any
Adjustment Date by designating such lesser number by resolution
adopted on or before such Adjustment Date; and PROVIDED FURTHER,
HOWEVER, that the
cumulative number of additional
shares that may be issued pursuant to the Plan as a result of
increases on all Adjustment Dates taken together may not exceed
20,000,000 shares (such number to be subject to adjustment in
accordance with Section 3(c) below). If any Award
expires, or is terminated, surrendered or forfeited, in whole or in
part, the unissued Common Stock covered by such Award shall again
be available for the grant of Awards under the Plan. If shares of
Common Stock issued pursuant to the Plan are repurchased by, or are
surrendered or forfeited to, the Company at no more than cost, such
shares of Common Stock shall again be available for the grant of
Awards under the Plan; PROVIDED, HOWEVER, that the cumulative
number of such shares that may be so reissued under the Plan will
not exceed the total of 1,000,000 shares plus the number of
additional shares resulting from Adjustment Date increases effected
in accordance with this Section 3(a) (such number to be
subject to adjustment in accordance with
Section 3(c) below). Shares issued under the Plan may
consist in whole or in part of authorized but unissued shares or
treasury shares.
b. RESERVED.
c. ADJUSTMENT TO COMMON STOCK. In
the event of any stock split, stock dividend, extraordinary cash
dividend, recapitalization, reorganization, merger, consolidation,
combination, exchange of shares, liquidation, spin-off, split-up,
or other similar change in capitalization or event, (i) the
number and class of securities available for Awards under the Plan
and the per-Participant share limit, (ii) the number and class
of securities, vesting schedule and exercise price per share
subject to each outstanding Option, (iii) the repurchase price
per security subject to repurchase, and (iv) the terms of each
other outstanding stock-based Award shall be adjusted by the
Company (or substituted Awards may be made) to the extent the Board
shall determine, in good faith, that such an adjustment (or
substitution) is appropriate. If Section 7(e)(i) applies
for any event, this Section 3(c) shall not be
applicable.
4.
STOCK OPTIONS
a. GENERAL. The Board may grant
options to purchase Common Stock (each, an “OPTION”)
and determine the number of shares of Common Stock to be covered by
each Option, the exercise price of each Option and the conditions
and limitations applicable to the exercise of each Option and the
Common Stock issued upon the exercise of each Option, including
vesting provisions, repurchase provisions and restrictions relating
to applicable federal or state securities laws, as it considers
advisable.
b. INCENTIVE STOCK OPTIONS. An
Option that the Board intends to be an “incentive stock
option” as defined in Section 422 of the Code (an
“INCENTIVE STOCK OPTION”) shall be granted only to
employees of the Company and shall be subject to and shall be
construed consistently with the requirements of Section422 of the
Code. The Board and the Company shall have no liability if an
Option or any part thereof that is intended to be an Incentive
Stock Option does not qualify as such. An Option or any part
thereof that does not qualify as an Incentive Stock Option is
referred to herein as a “NONSTATUTORY STOCK
OPTION.”
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c. EXERCISE PRICE. The Board shall
establish the exercise price (or determine the method by which the
exercise price shall be determined) at the time each Option is
granted and specify it in the applicable option
agreement.
d. DURATION OF OPTIONS. Each Option
shall be exercisable at such times and subject to such terms and
conditions as the Board may specify in the applicable option
agreement.
e. EXERCISE OF OPTION. Options may
be exercised only by delivery to the Company of a written notice of
exercise signed by the proper person together with payment in full
as specified in Section 4(f) for the number of shares for
which the Option is exercised.
f. PAYMENT UPON EXERCISE. Common
Stock purchased upon the exercise of an Option shall be paid for by
one or any combination of the following forms of
payment:
(i) by check payable to the
order of the Company;
(ii) except as otherwise
explicitly provided in the applicable option agreement, and only if
the Common Stock is then publicly traded, delivery of an
irrevocable and unconditional undertaking by a creditworthy broker
to deliver promptly to the Company sufficient funds to pay the
exercise price, or delivery by the Participant to the Company of a
copy of irrevocable and unconditional instructions to a
creditworthy broker to deliver promptly to the Company cash or a
check sufficient to pay the exercise price; or
(iii) to the extent explicitly
provided in the applicable option agreement, by (x) delivery
of shares of Common Stock owned by the Participant valued at fair
market value (as determined by the Board or as determined pursuant
to the applicable option agreement), (y) delivery of a
promissory note of the Participant to the Company (and delivery to
the Company by the Participant of a check in an amount equal to the
par value of the shares purchased), or (z) payment of such
other lawful consideration as the Board may determine.
5.
RESTRICTED STOCK
a. GRANTS. The Board may grant
Awards entitling recipients to acquire shares of Common Stock,
subject to (i) delivery to the Company by the Participant of a
check in an amount at least equal to the par value of the shares
purchased, and (ii) the right of the Company to repurchase all
or part of such shares at their issue price or other stated or
formula price from the Participant in the event that conditions
specified by the Board in the applicable Award are not satisfied
prior to the end of the applicable restriction period or periods
established by the Board for such Award (each, a “RESTRICTED
STOCK AWARD”).
b. TERMS AND CONDITIONS. The Board
shall determine the terms and conditions of any such Restricted
Stock Award. Any stock certificates issued in respect of a
Restricted Stock Award shall be registered in the name of the
Participant and, unless otherwise determined by the Board,
deposited by the Participant, together with a stock power endorsed
in blank, with the
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Company (or its designee). After the
expirati
