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 expiration of the applicable restriction periods,
the Company (or such designee) shall deliver the certificates no longer subject
to such restrictions to the Participant or, if the Participant has died, to the
beneficiary designated by a Participant, in a manner determined by the Board,
to receive amounts due or exercise rights of the Participant in the event of
the Participant’s death (the “DESIGNATED BENEFICIARY”). In the absence of an effective
designation by a Participant, Designated Beneficiary shall mean the Participant’s
estate.


 


6.            OTHER STOCK-BASED AWARDS


 


The
Board shall have the right to grant other Awards based upon the Common Stock
having such terms and conditions as the Board may determine, including, without
limitation, the grant of shares based upon certain conditions, the grant of
securities convertible into Common Stock and the grant of stock appreciation
rights, phantom stock awards or stock units.


 


7.            GENERAL PROVISIONS APPLICABLE TO AWARDS


 


a.
TRANSFERABILITY OF AWARDS. Except as the Board may otherwise  determine or provide in an Award, Awards
shall not be sold, assigned, transferred, pledged or otherwise encumbered by
the person to whom they are granted, either voluntarily or by operation of law,
except by will or the laws of descent and distribution, and, during the life of
the Participant, shall be exercisable only by the Participant. References to a
Participant, to the extent relevant in the context, shall include references to
authorized transferees.


 


b.
DOCUMENTATION. Each Award under the Plan shall be evidenced by a written
instrument in such form as the Board shall determine or as executed by an
officer of the Company pursuant to authority delegated by the Board. Each
Award may contain terms and
conditions in addition to those set forth in the Plan PROVIDED THAT such terms
and conditions do not contravene the provisions of the Plan.


 


c.
BOARD DISCRETION. The terms of each type of Award need not be identical, and
the Board need not treat Participants uniformly.


 


d.
TERMINATION OF STATUS. The Board shall determine the effect on an Award of the
disability, death, retirement, authorized leave of absence or other change in
the employment or other status of a Participant and the extent to which, and
the period during which, the Participant, or the Participant’s legal representative,
conservator, guardian or Designated Beneficiary, may exercise rights under the
Award.


 


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e.
ACQUISITION OF THE COMPANY


 


(i) CONSEQUENCES
OF AN ACQUISITION.


 


(A) ACQUISITION.
Except as otherwise specifically provided in the applicable award agreement, upon
the consummation of an Acquisition: (x) all outstanding Awards shall
remain the obligation of the Company or be assumed by the surviving or
acquiring entity, and there shall be automatically substituted for the shares
of Common Stock then subject to such Awards the consideration payable with
respect to the outstanding shares of Common Stock in connection with the
Acquisition and (y) all outstanding Awards shall vest as if the vesting
start date with respect to such Award was one year prior to the vesting start
date set forth in the agreement relating to such Award. In addition to the
foregoing, with respect to Awards granted prior to the consummation of the
Acquisition, in the event that any such Participant who remains an employee of
the Company or the acquiring or surviving entity immediately following the
consummation of the Acquisition is terminated without “CAUSE” (as defined in
the applicable option agreement) or terminates his or her own employment “FOR
GOOD REASON” (as defined below) prior to the first anniversary of the
consummation of the Acquisition: (1) all Options outstanding on the date
such Participant’s employment is terminated, shall become immediately
exercisable in full and will terminate, to the extent unexercised, on their
scheduled expiration date, and if the shares of Common Stock subject to such
Options are subject to repurchase provisions then such repurchase restrictions
shall immediately lapse; (2) all Restricted Stock Awards outstanding on
the date such Participant’s employment is terminated, shall become free of all
repurchase provisions; and (3) all other stock-based Awards shall become
exercisable, realizable or vested in full, or shall be free of all repurchase
provisions, as the case may be.


 


“GOOD
REASON” means, with respect to any Employee, any of the following actions taken
without the employee’s consent: (i) a reduction by the Company in the employee’s
annual base salary as in effect on the date of the consummation of the
Acquisition or as the same may be increased from time to time; or (ii) the
failure by the Company to pay to the employee any portion of the employee’s current
compensation within seven (7) days of the date such compensation is due; or
(iii) a substantial reduction in the value of the employee’s benefit
package from the value of the employee’s benefit package on the date of the
consummation of the Acquisition.


 


(B) ACQUISITION
DEFINED. An “ACQUISITION” shall mean:(x) any merger, consolidation or
purchase of outstanding capital stock of the Company after which the voting
securities of the Company outstanding immediately prior thereto represent
(either by remaining outstanding or by being converted into voting securities
of the surviving or acquiring entity) less than 50% of the combined voting
power of the voting securities of the Company or such  surviving or acquiring entity outstanding
immediately after such event (other than as a result of a financing
transaction); (y) any sale of all or substantially all of the assets or
capital stock of the Company (other than in a spin-off or similar transaction)
or (z) any other acquisition of the business of the Company, as determined
by the Board.


 


(ii) ASSUMPTION
OF OPTIONS UPON CERTAIN EVENTS. In connection with a merger or consolidation of
an entity with the Company or the acquisition by the Company of property or


 


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stock
of an entity, the Board may grant Awards under the Plan in substitution for
stock and stock-based awards issued by such entity or an affiliate thereof. The
substitute Awards shall be granted on such terms and conditions as the Board considers
appropriate in the circumstances.


 


(iii) POOLING-OF
INTERESTS-ACCOUNTING. If the Company proposes to engage in an Acquisition
intended to be accounted for as a pooling-of-interests, and in the event that
the provisions of this Plan or of any Award hereunder, or any actions of the
Board taken in connection with such Acquisition, are determined by the Company’s
or the acquiring company’s independent public accountants to cause such Acquisition
to fail to be accounted for as a pooling-of-interests, then such provisions or
actions shall be amended or rescinded by the Board, without the consent of any
Participant, to be consistent with pooling-of-interests accounting treatment
for such Acquisition.


 


(iv) PARACHUTE
AWARDS. Except as otherwise specifically provided in the applicable award
agreement, notwithstanding the provisions of Section 7(e)(i)(A), if, in
connection with an Acquisition described therein, a tax under Section 4999
of the Code would be imposed on the Participant (after taking into account the
exceptions set forth in Sections 280G(b)(4) and  280G(b)(5) of the Code), then the number
of Awards which shall become exercisable, realizable or vested as provided in
such section shall be reduced(or delayed), to the minimum extent necessary, so
that no such tax would be imposed on the Participant (the Awards not becoming
so accelerated, realizable or vested, the “PARACHUTE AWARDS”); PROVIDED,
HOWEVER, that if the “aggregate present value” of the Parachute Awards would
exceed the tax that, but for this sentence, would be imposed on the Participant
under Section 4999 of the Code in connection with the Acquisition, then
the Awards shall become immediately exercisable, realizable and vested without
regard to the provisions of this sentence. For purposes of the preceding
sentence, the “AGGREGATE PRESENT VALUE” of an Award shall be calculated on an
after-tax basis (other than taxes imposed by Section 4999 of the Code) and
shall be based on economic principles rather than the principles set forth
under Section 280G of the Code and the regulations promulgated thereunder.
All determinations required to be made under this Section 7(e)(iv) shall
be made by the Company.


 


f.
WITHHOLDING. Each Participant shall pay to the Company, or make provisions
satisfactory to the Company for payment of, any taxes required by law to be
withheld in connection with Awards to such Participant no later than the date
of the event creating the tax liability. The Board may allow Participants to
satisfy such tax obligations in whole or in part by transferring shares of Common
Stock, including shares retained from the Award creating the tax obligation,
valued at their fair market value (as determined by the Board or as determined
pursuant to the applicable option agreement). The Company may, to the extent
permitted by law, deduct any such tax obligations from any payment of any kind
otherwise due to a Participant.


 


g.
AMENDMENT OF AWARDS. The Board may amend, modify or terminate any outstanding
Award including, but not limited to, substituting therefor another Award of the
same or a different type, changing the date of exercise or realization, and
converting an Incentive Stock Option to a Nonstatutory Stock Option, PROVIDED
THAT, except as otherwise provided in Section 7(e)(iii), the Participant’s
consent to such action shall be required unless the Board determines


 


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that
the action, taking into account any related action, would not materially and
adversely affect the Participant.


 


h.
CONDITIONS ON DELIVERY OF STOCK. The Company will not be obligated to deliver
any shares of Common Stock pursuant to the Plan or to remove restrictions from
shares previously delivered under the Plan until (i) all conditions of the
Award have been met or removed to the satisfaction of the Company, (ii) in
the opinion of the Company’s counsel, all other legal matters in connection
with the issuance and delivery of such shares have been satisfied, including
any applicable securities laws and any applicable stock exchange or stock
market rules and regulations, and (iii) the Participant has executed
and delivered to the Company such representations or agreements as the Company
may consider appropriate to satisfy the requirements of any applicable laws,
rules or regulations.


 


i.
ACCELERATION. The Board may at any time provide that any Options shall become
immediately exercisable in full or in part, that any Restricted Stock Awards
shall be free of some or all restrictions, or that any other stock-based Awards
may become exercisable in full or in part or free of some or all restrictions
or conditions, or otherwise realizable in full or in part, as the case may be,
despite the fact that the foregoing actions may (i) cause the application
of Sections 280G and 4999 of the Code if a change in control of the Company
occurs, or (ii) disqualify all or part of the Option as an Incentive
Stock Option.


 


8.            MISCELLANEOUS


 


a.
DEFINITIONS.


 


(i) “COMPANY,”
for purposes of eligibility under the Plan, shall include any present or future
subsidiary corporations of Exact Corporation, as defined in Section 424(f) of
the Code (a “SUBSIDIARY”), and any present or future parent corporation of
Exact Corporation, as defined in Section424(e) of the Code. For purposes
of Awards other than Incentive Stock Options, the term “COMPANY” shall include
any other business venture in which the Company has a direct or indirect
significant interest, as determined by the Board in its sole discretion.


 


(ii) “CODE”
means the Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder.


 


(iii) “EMPLOYEE”
for purposes of eligibility under the Plan(but not for purposes of Section 4(b))
shall include a person to whom an offer of employment has been extended by the
Company.


 


b.
NO RIGHT TO EMPLOYMENT OR OTHER STATUS. No person shall have any claim or right
to be granted an Award, and the grant of an Award shall not be construed as
giving a Participant the right to continued employment or any other relationship
with the Company. The Company expressly reserves the right at any time to
dismiss or otherwise terminate its relationship with a Participant free from
any liability or claim under the Plan.


 


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c.
NO RIGHTS AS STOCKHOLDER. Subject to the provisions of the applicable Award, no
Participant or Designated Beneficiary shall have any rights  as a stockholder with respect to any shares
of Common Stock to be distributed with respect to an Award until becoming the
record holder thereof.


 


d.
EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective on the date on
which it is adopted by the Board. No Awards shall be granted under the Plan
after the completion of ten years from the date on which the Plan was adopted
by the Board, but Awards previously granted may extend beyond that date.


 


e.
AMENDMENT OF PLAN. The Board may amend, suspend or terminate the Plan or any
portion thereof at any time.     


 


f.
GOVERNING LAW. The provisions of the Plan and all Awards made hereunder shall
be governed by and interpreted in accordance with the laws of Delaware, without
regard to any applicable conflicts of law.


 


	
   

  	
  Adopted by the Board of
  Directors on

  
	
   

  	
   

  
	
   

  	
  October 17, 2000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Approved by the stockholders
  on

  
	
   

  	
   

  
	
   

  	
  October 20, 2000

  
	
   

  	
   

  



 


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