EMPLOYEE STOCK OPTION
PLAN
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Article
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Number
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Description
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ARTICLE
I
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NAME, PURPOSES,
AND EFFECTIVE DATE
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1
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1.1
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Name of
Plan
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1
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1.2
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Purposes
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1
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1.3
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Effective
Date
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1
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ARTICLE
II
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DEFINITIONS
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1
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2.1
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“Affiliate”
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1
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2.2
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“Award”
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2
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2.3
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“Award
Agreement”
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2
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2.4
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“Board”
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2
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2.5
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“Cause”
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2
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2.6
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“Code”
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2
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2.7
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“Committee”
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2
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2.8
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“Company”
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2
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2.9
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“Consultant”
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2
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2.10
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“Director”
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2
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2.11
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“Disability”
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2
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2.12
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“Early
Retirement”
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2
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2.13
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“Employee”
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2
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2.14
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“Fair
Market Value”
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3
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2.15
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“Incentive Stock Option”
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3
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2.16
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“Nonqualifled Stock
Option”
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3
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2.17
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“Normal
Retirement”
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3
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2.18
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“Optionee”
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3
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2.19
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“Participant”
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3
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2.20
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“Performance Award”
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3
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2.21
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“Plan”
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3
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2.22
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“Restricted Stock Award”
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3
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2.23
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“Retirement”
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3
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2.24
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“Stock” or
“Share”
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3
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2.25
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“Stock
Appreciation Right”
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3
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2.26
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“Stock
Option” or “Option”
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3
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ARTICLE
III
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ELIGIBILITY FOR
AWARDS
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4
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ARTICLE
IV
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CAPITAL
STOCK
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4
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4.1
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The
Shares
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4
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- i -
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Article
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Number
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Description
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4.2
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Stock Subject
to the Plan
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4
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ARTICLE
V
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STOCK
OPTIONS
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4
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5.1
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Grant of
Options
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4
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5.2
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Types of
Options
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5
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5.3
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Conformity with
Code Section 422
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5
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5.4
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Waiver of Other
Amounts
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5
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5.5
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Terms and
Conditions
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5
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a.
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Option
Price
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5
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b.
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10%
Stockholder
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5
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c.
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Option
Term
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5
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d.
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Exercisability
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5
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e.
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Method of
Exercise
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6
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f.
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Rights of
Holders
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6
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g.
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Consideration
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6
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h.
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Cash-Out
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7
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i.
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Replacement
Options
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7
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j.
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Vesting
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7
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k.
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Disability of
Optionee
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7
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1.
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Death of
Optionee
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7
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m.
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Retirement
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8
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n.
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Other
Termination of Employment or Relationship as a Director or
Consultant
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8
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o.
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Securities Law
Compliance
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8
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p.
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Dollar
Limitation on Incentive Stock Options
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9
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q.
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Continuous
Status as an Employee, Director or Consultant
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9
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ARTICLE
VI
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STOCK
APPRECIATION RIGHTS
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9
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6.1
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Grant and
Exercise
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9
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6.2
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Termination
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9
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6.3
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Surrender of
Stock Option
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9
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6.4
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Terms and
Conditions
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10
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a.
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When
Exercisable
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10
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b.
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Effect of
Exercise
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10
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c.
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Relation to
Stock Option
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10
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d.
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Effect on Share
Limitation
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10
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e.
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Exercise Upon
Adjustment
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10
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ARTICLE
VII
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RESTRICTED
STOCK AWARDS
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10
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7.1
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Administration
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10
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7.2
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Criteria for
Award
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11
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7.3
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Varying
Provisions
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11
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- ii -
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Article
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Number
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Description
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7.4
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Awards and
Certificates
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11
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a.
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Purchase
Price
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11
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b.
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Acceptance of
Award
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11
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c.
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Stock
Certificate
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11
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d.
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Custody of
Certificates
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11
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7.5
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Restrictions
and Conditions
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11
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a.
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Restriction
Period
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11
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b.
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Shareholder
Rights
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11
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c.
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Forfeiture of
Shares
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12
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d.
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Waiver of
Restrictions
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12
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e.
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Delivery of
Shares
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12
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ARTICLE
VIII
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PERFORMANCE
AWARDS
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12
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8.1
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Grant of Right
to Earn Award
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12
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8.2
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Participant
Consideration
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12
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8.3
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Award
Agreement
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12
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8.4
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Shares Granted
as Performance Award
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12
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ARTICLE
IX
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ADJUSTMENTS
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13
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9.1
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Recapitalizations, Etc
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13
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9.2
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Acceleration of
Exercise
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13
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9.3
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Right to Call
Options
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13
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9.4
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Committee
Decision Final
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13
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9.5
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Compliance with
Code Section 280G
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13
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ARTICLE
X
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ADMINISTRATION
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14
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10.1
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The
Board
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14
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10.2
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The
Committee
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14
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10.3
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Construction
and Interpretation of the Plan
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14
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10.4
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Delegation of
Operational Responsibilities
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14
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10.5
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Indemnification
of Committee
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15
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ARTICLE
XI
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AMENDMENT,
SUSPENSION OR TERMINATION OF THE PLAN
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15
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11.1
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Plan
Amendment
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15
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11.2
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Amendment of
Awards
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15
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11.3
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Suspension or
Termination
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16
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ARTICLE
XII
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REVIEW
PROCEDURE UPON DENIAL OF A CLAIM
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16
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12.1
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Notice of
Denial of Claim
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16
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12.2
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Review
Procedure
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16
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- iii -
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Article
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Number
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Description
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ARTICLE
XIII
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GENERAL
PROVISIONS
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16
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13.1
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Securities
Restrictions
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16
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13.2
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Restrictions on
Transferability
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17
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13.3
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Other
Arrangements
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17
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13.4
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No Vested
Rights
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17
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13.5
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Federal Tax
Obligations
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17
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13.6
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Right of First
Refusal and Redemption
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17
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13.7
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Written Award
Agreement
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17
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13.8
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Unfunded Status
of Plan
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18
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13.9
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Designation of
Beneficiary
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18
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13.10
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Severability
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18
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13.11
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Construction
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18
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13.12
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Headings
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18
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13.13
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Notices
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18
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13.14
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Governing
Law
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19
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SIGNATURE
PAGE
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19
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- iv -
EMPLOYEE STOCK OPTION
PLAN
NAME, PURPOSES, AND EFFECTIVE
DATE
1.1 Name of
Plan . The Plan created in accordance with the terms hereof
shall be known as the TechniScan, Inc., Employee Stock Option Plan
(hereinafter referred to as the “Plan”).
a.
The purpose of the Plan is to provide a means by which selected
managerial, technical and salaried Employees and Directors of and
Consultants to, the Company, and its Affiliates, may be given an
opportunity to purchase stock of the Company through Stock
Options.
b.
The Company, by means of the Plan, seeks to secure and retain the
services of persons who are now or who may be in the future key
Employees or Directors of or Consultants to the Company or its
Affiliates and to provide incentives for such persons to exert
maximum efforts for the success of the Company and its
Affiliates.
c.
It is intended that eligibility under this Plan for Incentive Stock
Options be restricted to the salaried employees of the Company. All
provisions of this Plan shall be construed to effectuate such
purposes.
1.3 Effective
Date . The Plan shall he effective as of the date of its
adoption by the Board of Directors, subject to approval by the
stockholders of the Company within twelve (12) months after the
date the Plan is adopted by the Board.
The following
terms and phrases shall have the following meanings when used
herein, unless a different meaning is clearly required by the
context:
2.1 “
Affiliate ” means any parent corporation or subsidiary
corporation of the Company, whether now or hereafter existing, as
those terms are defined in Sections 424(e) and
(f) respectively, of the Code, including
without limitation TechniScan Medical, Inc., a Delaware
corporation.
2.2 “
Award ” means a Stock Option, Stock Appreciation
Right, Restricted Stock or any other Award or benefit granted under
this plan.
2.3 “
Award Agreement ” means the written document(s)
executed by the Company and a Participant which sets forth the
terms and conditions of a grant by the Company to such Participant
of an Award.
2.4 “
Board ” means the Board of Directors of the
Company.
2.5 “
Cause ” means any act or failure to act by a
Participant, involving a Participant’s (i) willful
misconduct, dishonesty or malfeasance; (88) conviction of a
felony; (iii) gross negligence; or (iv) aid to a competitor,
which is directly and materially harmful to the business or
reputation of the Company.
2.6 “
Code ” means the Internal Revenue Code of 1986
including its separate and various provisions, as the Code or those
provisions may be amended from time to time, and any successor
thereto.
2.7 “
Committee ” means an administrative committee duly
elected or appointed by the Board pursuant to Article X
hereof, having control over and responsibility to administer the
Plan. If at any time no Committee shall be duly elected and serving
for whatever reason, then the functions of the Committee specified
in the Plan shall be exercised by the Board.
2.8 “
Company ” means TechniScan, Inc., a corporation
organized under the laws of the State of Utah, or any successor
organization.
2.9 “
Consultant ” means an independent contractor hired by
the Company to provide expert advisory, technical or consulting
services to the Company.
2.10 “
Director ” means a member of the Board.
2.11 “
Disability ” shall have the same meaning as under the
Company’s retirement plan, as amended from time to time, and
if none, as the Committee may otherwise provide from time to
time.
2.12 “
Early Retirement ” means retirement with consent of
the Committee from active employment with the Company or an
Affiliate prior to normal retirement age under provisions of the
Company’s retirement plan, if such a plan is in effect at the
time, or retirement prior to age 65, if no retirement plan is then
in place.
2.13 “
Employee ” means a person who is on the payroll
records of the Employer as a common law employee, as determined
solely by the Employer. For purposes of this Plan,
“Employer” means the Company or any of its
Affiliates.
- 2 -
2.14 “
Fair Market Value ” means the fair market value of a
Share for all relevant purposes under the Plan, which shall be
determined by the Committee acting in good faith.
2.15 “
Incentive Stock Option ” means any Stock Option
intended to be and designated as an “Incentive Stock
Option” within the meaning of Section 422 of the
Code.
2.16 “
Nonqualified Stock Option ” means any Stock Option
that is not an Incentive Stock Option.
2.17 “
Normal Retirement ” means retirement from active
employment with the Company or an Affiliate pursuant to the normal
retirement provisions of the Company’s retirement plan, if
such a plan is in effect at the time, or retirement at or after age
65, if no retirement plan is then in place.
2.18 “
Optionee ” means an Employee, Director or Consultant
who holds an outstanding Stock Option, except that only an Employee
can be an Optionee with respect to an Incentive Stock
Option.
2.19 “
Participant ” means an Employee, Director or
Consultant to whom the Committee, in its discretion, grants an
Award pursuant to the Plan.
2.20 “
Performance Award ” means an Award made pursuant to
Article VIII below that is payable in cash and/or Stock
(including Restricted Stock) in accordance with the terms of the
grant, based on Company, business unit and/or individual
performance over a specified period of time.
2.21 “
Plan ” means the TechniScan, Inc., Employee Stock
Option Plan set forth in this document.
2.22 “
Restricted Stock Award ” means an Award of Shares of
Stock that is subject to the provisions of Article VII below.
“Restricted Stock” is stock restricted from sale,
pledge, assignment or other transfer pursuant to applicable
securities laws and/or restrictions placed on the stock by the
Committee.
2.23 “
Retirement” means either Normal or Early
Retirement
2.24 “
Stock ” or “ Share ” means the
voting and nonvoting common stock of the Company.
2.25 “
Stock Appreciation Right ” means the right, pursuant
to an Award granted under Article VI below, to surrender to
the Company all (or a portion) of a Stock Option in exchange for an
amount equal to the difference between (i) the Fair Market
Value, as of the date such Stock Option (or such portion thereof)
is surrendered, of the Shares of Stock covered by such Stock Option
(or such portion thereof), and (ii) the aggregate exercise
price of such Stock Option (or such portion thereof).
2.26 “
Stock Option ” or “ Option ” means
any option to purchase shares of Stock granted pursuant to
Article V.
- 3 -
Awards shall be
granted to such Participants as the Committee shall select from
time to time. A Participant may hold more than one Award, but only
on the terms and subject to the restrictions hereinafter set forth.
Different Participants may be granted Awards with different terms,
in connection with different amounts of Shares.
Notwithstanding
any other provision contained herein, Incentive Stock Options may
be granted only to Employees. All other Awards hereunder may be
granted to Employees, Directors or Consultants.
4.1 The
Shares . Shares of Stock issued to Participants pursuant to
Awards hereunder may constitute an original issue of authorized
Stock or may consist of previously issued Stock reacquired by the
Company, as shall be determined by the Board.
4.2 Stock
Subject to the Plan .
a.
The maximum number of Shares of Stock authorized for issuance under
the Plan with respect to the grant of Awards while the Plan is in
effect, subject to adjustment in accordance with Section 9.1
below, shall be 500,000 Shares, or such other number of Shares as
may be subsequently approved by the Board, and if required pursuant
to Section 422 of the Code, by the Shareholders.
b.
Any unused portion of the Shares available for Award in any award
year shall be carried forward and shall be made available for
Awards in succeeding calendar years. The Shares related to the
unexercised or undistributed portion of any terminated, expired or
forfeited Award with respect to which no material benefit was
received by a Participant (e.g. dividends) also shall be made
available for distribution in connection with future Awards under
the Plan.
5.1 Grant of
Options. Stock Options may be granted alone, in addition to or
in tandem with other Awards granted under the Plan. Any Stock
Option granted under the Plan shall be in such form as the
Committee may from time to time approve.
- 4 -
5.2 Types of
Options . The Committee shall have the authority to grant
Incentive Stock Options, Nonqualified Stock Options, or both types
of Stock Options (in each case with or without Stock Appreciation
Rights), with respect to the voting and/or nonvoting common stock
of the Company. To the extent that any Stock Option does not
qualify as an Incentive Stock Option, it shall constitute a
separate Nonqualified Stock Option.
5.3 Conformity
with Code Section 422 . Anything in the Plan to the
contrary notwithstanding, no term of this Plan relating to
Incentive Stock Options shall be interpreted, amended or altered,
nor shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify the Plan under Section 422 of
the Code, or, without the consent of the Participant(s) affected,
to disqualify any Incentive Stock Option under such
Section 422.
5.4 Waiver of
Other Amounts . In the discretion of the Committee,
Nonqualified Stock Options or Shares of Stock may be issued to an
Employee in consideration of the waiver of a portion of such
Employee’s salary, compensation or fees, with the spread
between the exercise price of such Stock Options and the then Fair
Market Value of the Stock being equal to the salary, compensation
or fees waived, or on such other terms and provisions as the
Committee may in its discretion provide.
5.5 Terms and
Conditions . Stock Options granted under the Plan shall be
subject to the following terms and conditions and shall contain
such additional terms and conditions, not inconsistent with the
terms of the Plan, as the Committee shall deem appropriate, and
with respect to Incentive Stock Options, in conformity with
Section 422 of the Code.
a.
Option Price . The option price per Share of Stock
purchasable under a Stock Option shall be determined by the
Committee at the time of grant but shall not be less than 100% of
the Fair Market Value of the Stock at the time of grant for
Incentive Stock Options and such percentage of the Fair Market
Value of the Stock at the time of grant or such dollar price for
Nonqualified Options as the Committee in its discretion may
determine.
b.
10% Stockholder . Any Incentive Stock Option granted to any
Optionee who, at the time the Option is granted, owns more than 10%
of the voting power of all classes of stock of the Company or of an
Affiliate shall have an exercise price no less than 110% of Fair
Market Value per Share on date of the grant.
c.
Option Term . The term of each Stock Option shall be fixed
by the Committee, but no Stock Option shall be exercisable more
than ten (10) years after the date the Option is granted.
However, any Incentive Stock Option granted to any Optionee who, at
the time the Option is granted owns more than 10% of the voting
power of all classes of Stock of the Company or of an Affiliate may
not have a term of more than five (5) years. No Option may be
exercised by any person after expiration of the term or exercise
period of the Option.
d.
Exercisability . Stock Options shall be exercisable at such
time or times and subject to such terms and conditions as are
contained herein or in an Award Agreement, If the Committee
provides, in its discretion, that any Stock Option is exercisable
only in installments, the Committee may waive such installment
exercise provisions at any time at or after grant in whole or in
part, based on such factors as the Committee shall determine, in
its sole discretion.
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e.
Method of Exercise . Stock Options may be exercised in whole
or in part by giving written notice of exercise to the Company, in
such form as the Committee shall determine, specifying the number
of Shares of Stock to be purchased. Such notice shall be
accompanied by payment in full of the purchase price as specified
below.
f.
Rights of Holder . No Shares shall be issued until full
payment has been made therefore. An Optionee shall generally have
the right to dividends and other rights of a Shareholder with
respect to Shares subject to the Option when the Optionee has given
written notice of exercise, has paid in full for such Shares, and,
if requested, has given appropriate securities law representations
as required by this Plan or an Award Agreement.
g.
Consideration . The purchase price of Stock acquired
pursuant to an Option shall be paid, to the extent permitted by
applicable statutes and regulations, either (i) in cash at the
time the Option is exercised, or (ii) in the discretion of the
Committee, and subject to Section 422 of the Code, the
subparagraphs below and other provisions of this Plan, (A) by
delivery to the Company of other Stock of the Company.
(B) according to a loan or other deferred payment or other
arrangement (which may include, without limiting the generality of
the foregoing, the use of other Stock of the Company) with the
person to whom the Option is granted, or (C) in any other form
of legal consideration that may be acceptable in the sole
discretion of the Committee.
(1)
The Committee may arrange for and offer loans to a Participant
under the Plan to pay for the exercise of any Stock Option or other
Award if applicable, provided that no Participant shall have a
right or entitlement to such a loan, and loans may be determined on
a basis of individual selection in the sole and absolute discretion
of the Committee governed at all times by any applicable provision
of law. Any such loan shall contain such terms and provisions and
require the execution of such documents as the Committee in its
discretion may determine.
(2)
In the case of any loan or other deferred payment arrangement,
interest shall be payable at least annually and shall be charged at
the minimum rate of interest necessary to avoid the imputation of
interest under any applicable provisions of the Code.
(3)
If payment of the exercise price of a Stock Option is made in whole
or in part in the form of Stock, such Stock (and any replacement
Shares relating thereto) shall remain (or be) restricted in
accordance with the original terms of the Award in question, and
any additional Stock received upon such exercise shall be subject
to the same forfeiture restrictions, unless otherwise determined by
the Committee, in its sole discretion, at or after
grant.
(4)
If payment of the exercise price of a Stock Option is made in whole
or in part in the form of unrestricted Stock already owned by the
Optionee, the Company may require that such Stock shall have been
owned by the Optionee for a certain minimum period of time so that
such payment will not result in a charge to the Company’s
earnings as a result of the exercise. Such provision may be used in
the discretion of the Company to prevent a pyramid
exercise.
h.
Cash-Out . On receipt of written notice of exercise, the
Committee may, in its sole discretion, elect to cash out all or
part of the portion of the Option(s) to be exercised by
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paying the
Optionee an amount, in cash or Stock, equal to the excess of the
Fair Market Value of the Stock over the Option price (the
“Spread Value”) on the effective date of such
cash-out.
i.
Replacement Options . If an Option granted pursuant to the
Plan may be exercised by an Optionee by means of a stock-for-stock
swap method of exercise as provided in Section 5.5(g) above,
then the Committee may, subject to Section 422 of the Code, in
its sole discretion, from time to time and from Participant to
Participant, authorize the Optionee to receive a replacement Option
upon exercise of an Option hereunder. This replacement Option shall
cover a number of Shares determined in an equitable manner by the
Committee, but in no event more than the number of Shares equal to
the difference between the number of Shares of the original Option
exercised and the net Shares received by the Optionee from such
exercise. The exercise price of the replacement Option shall equal
the then current Fair Market Value of the Shares, and the term of
the replacement Option shall extend to the expiration date of the
original Option.
j.
Vesting . The total number of Shares of Stock subject to an
Option may, but need not, be allotted in periodic installments
(which may, hut need not, be equal). The Award Agreement may
provide that from time to time during each of such installment
periods, the Option may become exercisable (“vest”)
with respect to some or all of the Shares allotted to that period,
and may be exercised with respect to some or all of the Shares
allotted to such period and/or any prior period as to which the
Option became vested but was not fully exercised. The Option may be
subject to such other terms and conditions as to the time or times
when it may be exercised and as to the minimum number of Shares
with respect to which the Option may be exercised (which may be
based on performance or other criteria) as the Committee may deem
appropriate.
k.
Disability of Optionee . In the event an Optionee’s
Continuous Status as an Employee, Director or Consultant terminates
as a result of the Optionee’s Disability, the Optionee may
exercise his or her Option (to the extent that the Optionee was
entitled to exercise it at the date of termination), but only
within such period of time ending on the earlier of (i) the
date three (3) months following such termination (or such
longer or shorter period specified in the Award Agreement), or
(ii) the expiration of the term of the Option as set forth in
the Award Agreement. If, at the date of termination, the Optionee
is not entitled to exercise his or her entire Option, the Shares
covered by the unexercisable portion of the Option shall revert to
and again become available for issuance under the Plan. If, after
termination, the Optionee does not exercise his or her Option
within the time period specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to
and again become available for issuance under the Plan.
l.
Death of Optionee . In the event of the death of an Optionee
during, or within a period specified in the Award Agreement after
the termination of, the Optionee’s Continuous Status as an
Employee, Director or Consultant, the Option may be exercised (to
the extent the Optionee was entitled to exercise the Option at date
of death) by the Optionee’s estate, by a person who acquired
the right to exercise the Option by bequest or inheritance or by a
person designated to exercise the Option upon the Optionee’s
death, but only within the period ending on the earlier of
(i) the date three (3) months following the date of death
(or such longer or shorter period specified in the Award
Agreement), or (ii) the expiration of the term of
such
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Option as set
forth in the Award Agreement. If, at the time of death, the
Optionee was not entitled to exercise his or her entire Option, the
Shares covered by the unexercisable portion of the Option shall
revert to and again become available for issuance under the Plan.
If, after death, the Option is not exercised within the time period
specified herein, the Option shall terminate, and the Shares
covered by such Option shall revert to and again become available
for issuance under the Plan.
m.
Retirement . In the event an Optionee’s Continuous
Status as an Employee, Director or Consultant terminates as a
result of the Optionee’s Retirement, the Optionee may
exercise his or her Option (to the extent that the Optionee was
entitled to exercise it at the date of termination), but only
within such period of time ending on the earlier of (i) the
date three (3) months following such termination (or such longer or
shorter period specified in the Award Agreement), or (ii) the
expiration of the term of the Option as sat forth in the Award
Agreement. If, at the date of termination, the Optionee is not
entitled to exercise his or her entire Option, the Shares covered
by the unexercisable portion of the Option shall revert to and
again become available for issuance under the Plan. If, after
termination, the Optionee does not exercise his or her Option
within the time period specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to
and again become available for issuance under the Plan.
n.
Other Termination of Employment or Relationship as a Director or
Consultant . Unless otherwise determined by the Committee at or
after grant, if an Optionee’s employment or other
relationship with the Company terminates for any reason other than
Death, Disability or Retirement, or for Cause, the Option shall
thereupon terminate, except that such Option
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