Exhibit 99.1
SYNCHROLOGIC, INC.
AMENDED AND RESTATED
1995 STOCK OPTION PLAN
SYNCHROLOGIC, INC.
AMENDED AND RESTATED 1995 STOCK
OPTION PLAN
ARTICLE 1.
Purpose
1.1. General Purpose . The
purpose of this Plan is to further the growth and development of
the Company by encouraging Directors, employees, consultants and
contractors of the Company or of a parent or subsidiary corporation
of the Company to obtain a proprietary interest in the Company by
owning its stock. The Company intends that the Plan will provide
such persons with an added incentive to continue to serve as
Directors, employees, consultants and contractors, and will
stimulate their efforts in promoting the growth, efficiency and
profitability of the Company. The Company also intends that the
Plan will afford the Company a means of attracting persons of
outstanding quality to service as Directors, employees, consultants
and contractors of the Company or a parent or subsidiary
corporation of the Company.
1.2. Intended Tax Effects of
Options . It is intended that the tax effects of any Option
granted hereunder should be determined under Code
§83.
ARTICLE 2.
Definitions
The following words and phrases as
used in this Plan shall have the meanings set forth in this Article
unless a different meaning is clearly required by the
context:
2.1. 1933 Act shall mean the
Securities Act of 1933, as amended.
2.2. 1934 Act shall mean the
Securities Exchange Act of 1934, as amended.
2.3. Beneficiary shall mean,
with respect to an Optionee, the Person to whom the
Optionee’s Option shall be transferred upon the
Optionee’s death ( i.e. , the Optionee’s
Beneficiary).
2.3.1. Designation of
Beneficiary. An Optionee’s Beneficiary shall be the
Person who is last designated in writing by the Optionee as such
Optionee’s Beneficiary hereunder. An Optionee shall designate
his original Beneficiary in writing on his Option Agreement. Any
subsequent modification of the Optionee’s Beneficiary shall
be in a written executed and notarized letter addressed to the
Company and shall be effective when it is received and
accepted by the Board, determined in the Board’s sole
discretion.
2.3.2. No Designated
Beneficiary. If, at any time, no Beneficiary has been validly
designated by an Optionee, or the Beneficiary designated by the
Optionee is no longer living or no longer exists (whichever is
applicable) at the time of the Optionee’s death, then the
Optionee’s Beneficiary shall be deemed to be the Person or
Persons in the first of the following classes of individuals with
one or members of such class surviving or in existence as of the
Optionee’s death, and in the absence thereof, the
Optionee’s estate: the Optionee’s surviving spouse; or
the Optionee’s then living lineal descendants, per
stirpes .
2
2.3.3. Designation of Multiple
Beneficiaries . An Optionee may not designate more than
one Person as a Beneficiary. To the extent that a designation
purports to designate more than one Person as a Beneficiary, the
designation shall be null and void.
2.3.4. Contingent
Beneficiaries. An Optionee may designate a contingent
Beneficiary to receive a Beneficiary’s Option in the event
that such Beneficiary should predecease the Optionee; otherwise, in
the event a Beneficiary predeceases the Optionee, then the Person
or Persons specified in subsection 2.3.2 above shall be the
Optionee’s Beneficiary.
2.4. Board shall mean the
Board of Directors of the Company. In the event the Board delegates
its powers and responsibilities with respect to the Plan to a
Compensation Committee of the Board pursuant to Article III, all
references to the Board herein shall be interpreted to mean such
Compensation Committee to the extent such powers and
responsibilities have been delegated.
2.5. Cause shall mean an act
or acts involving dishonesty, incompetence, willful misconduct,
breach of fiduciary duty, breach of contract or any other
obligation to the Company, intentional failure to perform stated
duties or violation of any law, rule or regulation (other than
traffic violations or similar offenses).
2.6. Code shall mean the
Internal Revenue Code of 1986, as amended.
2.7. Common Stock shall mean
the common stock of the Company.
2.8. Company shall mean
Synchrologic, Inc.
2.9. Director shall mean an
individual who is serving as a member of the Board ( i.e. ,
a director of the Company) or who is serving as a member of the
board of directors of a parent or subsidiary corporation of the
Company.
2.10. Disability shall mean,
with respect to an individual, the total and permanent disability
of such individual as determined by the Board in its sole
discretion.
2.11. Effective Date shall
mean February 11, 2003.
2.12. Fair Market Value of
the Common Stock as of a date of determination shall mean the
following:
2.12.1. Stock Listed and Shares
Traded. If the Common Stock is listed and traded on a national
securities exchange (as such term is defined by the 1934 Act) or on
the NASDAQ National Market System or Small Cap Market on the date
of determination, the Fair Market Value per share shall be the
closing price of a share of the Common Stock on said national
securities exchange or National Market System or Small Cap Market
on the date of determination. If the Common Stock is traded in the
over-the-counter market, the Fair Market Value per share shall be
the average of the closing bid and asked prices on the date of
determination.
3
2.12.2. Stock Listed But No
Shares Traded. If the Common Stock is listed on a national
securities exchange or on the National Market System or Small Cap
Market but no shares of the Common Stock are traded on the date of
determination but there were shares traded on dates within a
reasonable period before the date of determination, the Fair Market
Value shall be the closing price of the Common Stock on the most
recent date before the date of determination. If the Common Stock
is regularly traded in the over-the-counter market but no shares of
the Common Stock are traded on the date of determination (or if
records of such trades are unavailable or burdensome to obtain) but
there were shares traded on dates within a reasonable period before
the date of determination, the Fair Market Value shall be the
average of the closing bid and asked prices of the Common Stock on
the most recent date before the date of determination.
2.12.3. Stock Not Listed. If
the Common Stock is not listed on a national securities exchange or
on the National Market System or Small Cap Market and is not
regularly traded in the over-the-counter market, then the Board
shall determine the Fair Market Value of the Common Stock from all
relevant available facts.
The Board’s determination of Fair Market
Value, which shall be made pursuant to the foregoing provisions,
shall be final and binding for all purposes of this
Plan.
2.13. Option shall mean an
option to which Code §421 (relating generally to incentive
stock options and other options) does not apply that is
granted to Persons pursuant to the terms and provisions of this
Plan.
2.14. Option Agreement shall
mean a written agreement, executed and dated by the Company and an
Optionee, evidencing an Option granted under the terms and
provisions of this Plan, setting forth the terms and conditions of
such Option, and specifying the name of the Optionee and the number
of shares of stock subject to such Option.
2.15. Option Price shall mean
the purchase price of the shares of Common Stock underlying an
Option.
2.16. Optionee shall mean a
Person who is granted an Option pursuant to the terms and
provisions of this Plan.
2.17. Optionee Restriction
Agreement shall mean a written agreement, executed and dated by
the Company and an Optionee, evidencing certain restrictions,
limitations, and rights of the Company and certain third parties
with respect to any shares of Common Stock acquired by the Optionee
pursuant to an Option. Such Agreement may take the form of an
Exercise and Shareholder Agreement.
2.18. Person shall mean any
individual, organization, corporation, partnership or other
entity.
2.19. Plan shall mean this
Synchrologic, Inc. Amended and Restated 1995 Stock Option
Plan.
4
ARTICLE 3.
Administration
The Plan shall be administered and
interpreted by the Board; provided, however, the Board may delegate
its powers and responsibilities with respect to the administration
and interpretation of the Plan, in whole or in part, to a
Compensation Committee of the Board. Subject to the express
provisions of the Plan, the Board shall have authority to interpret
the Plan, to prescribe, amend and rescind rules and regulations
relating to the Plan, to determine the terms and provisions of the
Option Agreements by which Options shall be evidenced (which shall
not be inconsistent with the terms of the Plan), and to make all
other determinations necessary or advisable for the administration
of the Plan, all of which determinations shall be final, binding
and conclusive.
No member of the Board (or a
sub-committee thereof) shall be liable for any action taken or
determination made hereunder in good faith. Service on the Board
(or a sub-committee thereof) shall constitute service as a director
of the Company so that the members of the Board (or a sub-committee
thereof) shall be entitled to indemnification and reimbursement as
directors of the Company pursuant to its bylaws and applicable law.
In addition, the members of the Board (or a sub-committee thereof)
shall be indemnified by the Company against (a) the reasonable
expenses, including attorneys’ fees actually and necessarily
incurred in connection with the defense of any action, suit or
proceeding, 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, any Option granted hereunder, and (b) 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 individual
is liable for gross negligence or misconduct in the performance of
his duties, provided that within 60 days after institution of any
such action, suit or proceeding a Board member or delegatee shall
in writing offer the Company the opportunity, at its own expense,
to handle and defend the same.
ARTICLE 4.
Stock
The stock subject to the Options and
other provisions of the Plan shall be authorized but unissued or
reacquired shares of Common Stock. Subject to adjustment in
accordance with the provisions of Article 7, the total number of
shares of Common Stock for which Options may be granted to Persons
participating in the Plan shall not exceed in the aggregate
2,040,000 shares of Common Stock. Notwithstanding the foregoing,
shares of Common Stock allocable to the unexercised portion of any
expired or terminated Option again may become subject to Options
under the Plan.
5
ARTICLE 5.
Eligibility to Receive and Grant
of Options
5.1. Persons Eligible for Grants
of Options . The Persons eligible to receive Options hereunder
shall be solely those Persons who are Directors, employees,
consultants or contractors of the Company or a parent or subsidiary
corporation of the Company.
5.2. Grants of Options .
Subject to the provisions of the Plan, the Board shall have the
authority and sole discretion to determine and designate, from time
to time, those Persons (from among the Persons eligible for a grant
of Options under the Plan pursuant to Section 5.1 above) to whom
Options will actually be granted, the Option Price of the shares
covered by any Options granted, the manner in and conditions under
which Options are exercisable (including, without limitation, any
limitations or restrictions thereon), and the time or times at
which Options shall be granted. In making such determinations, the
Board may take into account the nature of the services rendered by
the respective Persons to whom Options may be granted, their
present and potential contributions to the Company’s success
and such other factors as the Board, in its sole discretion, shall
deem relevant. In its authorization of the granting of an Option
hereunder, the Board shall specify the name of the Optionee and the
number of shares of stock subject to such Option. The Board may
grant, at any time, new Options to an Optionee who previously has
received Options, whether such Options include prior Options that
still are outstanding, previously have been exercised in whole or
in part, have expired or are canceled in connection with the
issuance of new Options. No Person shall have any claim or right to
be granted Options under the Plan.
ARTICLE 6.
Terms and Conditions of
Options
Options granted hereunder and Option
Agreements shall comply with and be subject to the following terms
and conditions:
6.1. Requirement of Option
Agreement and Optionee Restriction Agreement . Upon the grant
of an Option hereunder, the Board shall prepare (or cause to be
prepared) an Option Agreement and an Optionee Restriction
Agreement. The Board shall present such Option Agreement and
Optionee Restriction Agreement to the Optionee. Upon execution of
such Option Agreement and Optionee Restriction Agreement by the
Optionee, such Option shall be deemed to have been granted
effective as of the date of grant. The failure of the Optionee to
execute the Option Agreement and Optionee Restriction Agreement
within 30 days after the date of the receipt of same shall render
the Option Agreement and the underlying Option null and void ab
initio .
6.2. Optionee and Number of
Shares . Each Option Agreement shall state the name of the
Optionee and the total number of shares of the Common Stock to
which it pertains, the Option Price, the Beneficiary of the
Optionee and the date as of which the Option was granted under this
Plan.
6
6.2.1. Vesting . Each Option
shall first become exercisable ( i.e. , vested) with respect
to such portions of the shares subject to such Option (rounded to
the nearest whole number) as determined by the Board and specified
in the applicable Option Agreement.
Unless otherwise provided in the applicable
Option Agreement, if an Optionee ceases to perform services for the
Company for any reason (including Disability or death), his rights
with regard to all non-vested Options shall cease
immediately.
6.3. Option Price . The
Option Price of the shares of Common Stock underlying each Option
shall be the Fair Market Value of the Common Stock on the date the
Option is granted, unless otherwise determined by the Board;
provided, however, in no e
