Exhibit 10.28
PEPPERBALL TECHNOLOGIES,
INC.
2000 STOCK OPTION
PLAN
|
|
1.
|
E STABLISHMENT , P URPOSE AND T ERM OF P LAN .
|
1.1 Establishment. The
PepperBall Technologies, Inc. 2000 Stock Option Plan (the
“ Plan ” ) as established effective as of
October 27, 2000, is hereby amended as of May 21,
2002.
1.2 Purpose. The purpose of
the Plan is to advance the interests of the Participating Company
Group and its stockholders by providing an incentive to attract,
retain and reward persons performing services for the Participating
Company Group and by motivating such persons to contribute to the
growth and profitability of the Participating Company
Group.
1.3 Term of Plan. The Plan
shall continue in effect until the earlier of its termination by
the Board or the date on which all of the shares of Stock available
for issuance under the Plan have been issued and all restrictions
on such shares under the terms of the Plan and the agreements
evidencing Options granted under the Plan have lapsed. However, all
Options shall be granted, if at all, within ten (10) years
from the earlier of the date the Plan is adopted by the Board or
the date the Plan is duly approved by the stockholders of the
Company.
|
|
2.
|
D EFINITIONS AND C ONSTRUCTION .
|
2.1 Definitions. Whenever
used herein, the following terms shall have their respective
meanings set forth below:
(a) “ Board
” means the Board of Directors of the Company. If one or
more Committees have been appointed by the Board to administer the
Plan, “ Board ” also means such
Committee(s).
(b) “ Code
” means the Internal Revenue Code of 1986, as amended,
and any applicable regulations promulgated thereunder.
(c) “ Committee
” means the Compensation Committee or other committee of
the Board duly appointed to administer the Plan and having such
powers as shall be specified by the Board. Unless the powers of the
Committee have been specifically limited, the Committee shall have
all of the powers of the Board granted herein, including, without
limitation, the power to amend or terminate the Plan at any time,
subject to the terms of the Plan and any applicable limitations
imposed by law.
(d) “ Company
” means PepperBall Technologies, Inc., a Delaware
corporation, or any successor corporation thereto.
(e) “ Consultant
” means a person engaged to provide consulting or
advisory services (other than as an Employee or a Director) to a
Participating Company, provided that the identity of such person,
the nature of such services or the entity to which such services
are provided would not preclude the Company from offering or
selling securities to such
person pursuant to the Plan in reliance on
either the exemption from registration provided by Rule 701 under
the Securities Act or, if the Company is required to file reports
pursuant to Section 13 or 15(d) of the Exchange Act,
registration on a Form S-8 Registration Statement under the
Securities Act.
(f) “ Director
” means a member of the Board or of the board of
directors of any other Participating Company.
(g) “ Disability
” means the inability of the Optionee, in the opinion of
a qualified physician acceptable to the Company, to perform the
major duties of the Optionee’s position with the
Participating Company Group because of the sickness or injury of
the Optionee.
(h) “
Distribution ” means the distribution by
Jaycor, Inc. to the holders of its common stock, by means of a pro
rata distribution of all of the shares of the Company’s
common stock owned by Jaycor pursuant to the terms of the
Distribution Matters Agreement between Jaycor and the Company dated
October 27, 2000.
(i) “ Distribution
Date ” means the date on which Jaycor first ceases to
be a member of the Participating Company Group.
(j) “ Distribution
Option ” means an Option granted by the Company as
part of the adjustment of stock options granted by Jaycor to
reflect the separation of the Company from Jaycor effectuated by
the Distribution.
(k) “ Employee
” means any person treated as an employee (including an
officer or a Director who is also treated as an employee) in the
records of a Participating Company and, with respect to any
Incentive Stock Option granted to such person, who is an employee
for purposes of Section 422 of the Code; provided, however,
that neither service as a Director nor payment of a
director’s fee shall be sufficient to constitute employment
for purposes of the Plan. The Company shall determine in good faith
and in exercise of its discretion whether an individual has become
or ceased to be an Employee and the effective date of such
individual’s employment or termination of employment, as the
case may be. For purposes of an individual’s rights, if any,
under the Plan as of the time of the Company’s determination,
all such determinations by the Company shall be final, binding and
conclusive, notwithstanding that the Company or any court of law or
governmental agency makes a contrary determination.
(l) “ Exchange Act
” means the Securities Exchange Act of 1934, as
amended.
(m) “ Fair Market
Value ” means, as of any date, the value of a share
of Stock or other property as determined by the Board, in its
discretion, or by the Company, in its discretion, if such
determination is expressly allocated to the Company herein, subject
to the following:
(i) If, on such date, the Stock is
listed on a national or regional securities exchange or market
system, the Fair Market Value of a share of Stock shall be the
closing price of a share of Stock (or the mean of the closing bid
and asked prices of a share of
Stock if the Stock is so quoted instead) as
quoted on the Nasdaq National Market, The Nasdaq SmallCap Market or
such other national or regional securities exchange or market
system constituting the primary market for the Stock, as reported
in The Wall Street Journal or such other source as the
Company deems reliable. If the relevant date does not fall on a day
on which the Stock has traded on such securities exchange or market
system, the date on which the Fair Market Value shall be
established shall be the last day on which the Stock was so traded
prior to the relevant date, or such other appropriate day as shall
be determined by the Board, in its discretion.
(ii) If, on such date, the Stock is
not listed on a national or regional securities exchange or market
system, the Fair Market Value of a share of Stock shall be as
determined by the Board in good faith without regard to any
restriction other than a restriction which, by its terms, will
never lapse.
(n) “ Incentive Stock
Option ” means an Option intended to be (as set forth
in the Option Agreement) and which qualifies as an incentive stock
option within the meaning of Section 422(b) of the
Code.
(o) “ Insider
” means an officer (including any person designated by
the Board as an officer) or a Director of the Company or any other
person whose transactions in Stock are subject to Section 16
of the Exchange Act.
(p) “ Jaycor
” means Jaycor, Inc., a California corporation or any
successor corporation thereto.
(q) “ Jaycor
Participating Group ” means at any point in time, all
corporations which are, at that time, a parent corporation as
defined by Section 424(e) of the Code or a subsidiary
corporation as defined by Section 424(f) of the Code of
Jaycor.
(r) “ Jaycor
Service ” means employment or service performed for
any member of the Jaycor Participating Group, whether in the
capacity as an employee, consultant or director. An
Optionee’s Jaycor Service shall not be deemed to have
terminated merely because of a change in the capacity in which such
Optionee renders service to the Jaycor Participating Group or a
change in the member of the Jaycor Participating Group for which
the Optionee renders service. Jaycor Service shall be determined in
accordance with the applicable stock option plan under which the
stock option giving rise to Distribution Option was
granted.
(s) “ Nonstatutory Stock
Option ” means an Option not intended to be (as set
forth in the Option Agreement) or which does not qualify as an
Incentive Stock Option.
(t) “ Option
” means a right to purchase Stock (subject to adjustment
as provided in Section 4.2) pursuant to the terms and
conditions of the Plan. An Option may be either an Incentive Stock
Option or a Nonstatutory Stock Option.
(u) “ Option
Agreement ” means a written agreement between the
Company and an Optionee setting forth the terms, conditions and
restrictions of the Option granted to the Optionee and any shares
acquired upon the exercise thereof. An Option Agreement may consist
of a form of “Notice of Grant of Stock Option” and a
form of “Stock Option Agreement” incorporated therein
by reference, or such other form or forms as the Board may approve
from time to time.
(v) “ Optionee
” means a person who has been granted one or more
Options.
(w) “ Parent
Corporation ” means any present or future
“parent corporation” of the Company, as defined in
Section 424(e) of the Code.
(x) “ Participating
Company ” means the Company or any Parent Corporation
or Subsidiary Corporation.
(y) “ Participating
Company Group ” means, at any point in time, all
corporations collectively which are then Participating
Companies.
(z) “ Rule 16b-3
” means Rule 16b-3 under the Exchange Act, as
amended from time to time, or any successor rule or
regulation.
(aa) “ Securities
Act ” means the Securities Act of 1933, as
amended.
(bb) “ Service
” means: (i) an Optionee’s employment or
service with the Participating Company Group, whether in the
capacity of an Employee, a Director or a Consultant. An
Optionee’s Service shall not be deemed to have terminated
merely because of a change in the capacity in which the Optionee
renders Service to the Participating Company Group or a change in
the Participating Company for which the Optionee renders such
Service, provided that there is no interruption or termination of
the Optionee’s Service. Furthermore, an Optionee’s
Service with the Participating Company Group shall not be deemed to
have terminated if the Optionee takes any military leave, sick
leave, or other bona fide leave of absence approved by the Company;
provided, however, that if any such leave exceeds ninety
(90) days, on the ninety-first (91st) day of such leave
the Optionee’s Service shall be deemed to have terminated
unless the Optionee’s right to return to Service with the
Participating Company Group is guaranteed by statute or contract.
Notwithstanding the foregoing, unless otherwise designated by the
Company or required by law, a leave of absence shall not be treated
as Service for purposes of determining vesting under the
Optionee’s Option Agreement. The Optionee’s Service
shall be deemed to have terminated either upon an actual
termination of Service or upon the corporation for which the
Optionee performs Service ceasing to be a Participating Company.
Subject to the foregoing, the Company, in its discretion, shall
determine whether the Optionee’s Service has terminated and
the effective date of such termination, and
(ii) notwithstanding any other provision of this Section, as
to a Distribution Option, Service shall also include the
Optionee’s Jaycor Service.
(cc) “ Stock
” means the common stock of the Company, as adjusted from
time to time in accordance with Section 4.2.
(dd) “ Subsidiary
Corporation ” means any present or future
“subsidiary corporation” of the Company, as defined in
Section 424(f) of the Code.
(ee) “ Ten Percent Owner
Optionee ” means an Optionee who, at the time an
Option is granted to the Optionee, owns stock possessing more than
ten percent (10%) of the total combined voting power of all
classes of stock of a Participating Company within the meaning of
Section 422(b)(6) of the Code.
2.2 Construction. Captions
and titles contained herein are for convenience only and shall not
affect the meaning or interpretation of any provision of the Plan.
Except when otherwise indicated by the context, the singular shall
include the plural and the plural shall include the singular. Use
of the term “or” is not intended to be exclusive,
unless the context clearly requires otherwise.
3.1 Administration by the
Board. The Plan shall be administered by the Board. All
questions of interpretation of the Plan or of any Option shall be
determined by the Board, and such determinations shall be final and
binding upon all persons having an interest in the Plan or such
Option.
3.2 Authority of Officers.
Any officer of a Participating Company shall have the authority to
act on behalf of the Company with respect to any matter, right,
obligation, determination or election which is the responsibility
of or which is allocated to the Company herein, provided the
officer has apparent authority with respect to such matter, right,
obligation, determination or election.
3.3 Powers of the Board. In
addition to any other powers set forth in the Plan and subject to
the provisions of the Plan, the Board shall have the full and final
power and authority, in its discretion:
(a) to determine the persons to
whom, and the time or times at which, Options shall be granted and
the number of shares of Stock to be subject to each
Option;
(b) to designate Options as
Incentive Stock Options or Nonstatutory Stock Options;
(c) to determine the Fair Market
Value of shares of Stock or other property;
(d) to determine the terms,
conditions and restrictions applicable to each Option (which need
not be identical) and any shares acquired upon the exercise
thereof, including, without limitation, (i) the exercise price
of the Option, (ii) the method of payment for shares purchased
upon the exercise of the Option, (iii) the method for
satisfaction of any tax withholding obligation arising in
connection with the Option or such shares, including by the
withholding or delivery of shares of stock, (iv) the timing,
terms and conditions of the exercisability of the Option or the
vesting of any shares acquired upon the exercise thereof,
(v) the time of the expiration of the Option, (vi) the
effect of the Optionee’s termination of Service on any of the
foregoing, and (vii) all other terms, conditions and
restrictions applicable to the Option or such shares not
inconsistent with the terms of the Plan;
(e) to approve one or more forms of
Option Agreement;
(f) to amend, modify, extend, cancel
or renew any Option or to waive any restrictions or conditions
applicable to any Option or any shares acquired upon the exercise
thereof;
(g) to accelerate, continue, extend
or defer the exercisability of any Option or the vesting of any
shares acquired upon the exercise thereof, including with respect
to the period following an Optionee’s termination of
Service;
(h) to prescribe, amend or rescind
rules, guidelines and policies relating to the Plan, or to adopt
supplements to, or alternative versions of, the Plan, including,
without limitation, as the Board deems necessary or desirable to
comply with the laws of, or to accommodate the tax policy or custom
of, foreign jurisdictions whose citizens may be granted Options;
and
(i) to correct any defect, supply
any omission or reconcile any inconsistency in the Plan or any
Option Agreement and to make all other determinations and take such
other actions with respect to the Plan or any Option as the Board
may deem advisable to the extent not inconsistent with the
provisions of the Plan or applicable law.
3.4 Administration with Respect
to Insiders. With respect to participation by Insiders in the
Plan, at any time that any class of equity security of the Company
is registered pursuant to Section 12 of the Exchange Act, the
Plan shall be administered in compliance with the requirements, if
any, of Rule 16b-3.
3.5 Indemnification. In
addition to such other rights of indemnification as they may have
as members of the Board or officers or employees of the
Participating Company Group, members of the Board and any officers
or employees of the Participating Company Group to whom authority
to act for the Board or the Company is delegated shall be
indemnified by the Company against all reasonable expenses,
including attorneys’ fees, actually and necessarily incurred
in connection with the defense of any action, suit or proceeding,
or in connection with any appeal therein, to which they or any of
them may be a party by reason of any action taken or failure to act
under or in connection with the Plan, or any right granted
hereunder, and against all amounts paid by them in settlement
thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of
a judgment in any such action, suit or proceeding, except in
relation to matters as to which it shall be adjudged in such
action, suit or proceeding that such person is liable for gross
negligence, bad faith or intentional misconduct in duties;
provided, however, that within sixty (60) days after the
institution of such action, suit or proceeding, such person shall
offer to the Company, in writing, the opportunity at its own
expense to handle and defend the same.
|
|
4.
|
S HARES S UBJECT TO P LAN .
|
4.1 Maximum Number of Shares
Issuable. Subject to adjustment as provided in
Section 4.2, the maximum aggregate number of shares of Stock
that may be issued under the Plan shall be Five Million Eight
Hundred Sixty-One Thousand Two Hundred Ninety (5,861,290) and
shall consist of authorized but unissued or reacquired shares of
Stock or
any combination thereof; provided, however, in
no event shall more than Nine Hundred Eighty-Six Thousand Two
Hundred Ninety (986,290) shares of Stock be available for
issuance pursuant to Distribution Options. If an outstanding
Option, other than a Distribution Option, for any reason expires or
is terminated or canceled or if shares of Stock are acquired upon
the exercise of an Option subject to a Company repurchase option
and are repurchased by the Company at the Optionee’s exercise
price, the shares of Stock allocable to the unexercised portion of
such Option or such repurchased shares of Stock shall again be
available for issuance under the Plan. Shares of Stock that are
subject to a Distribution Option shall not again be available for
issuance under the Plan if an outstanding Distribution Option
expires or is terminated or canceled. Notwithstanding the
foregoing, at any such time as the offer and sale of securities
pursuant to the Plan is subject to compliance with
Section 260.140.45 of Title 10 of the California Code of
Regulations ( “ Section 260.140.45 ”
), the to