exv4w1



 



Exhibit 4.1


WAVESET TECHNOLOGIES, INC.



AMENDED AND RESTATED 2000 STOCK PLAN



     1.     Purposes of the Plan. The purposes of this Stock Plan are to attract
and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees, Directors and
Consultants and to promote the success of the Company’s business. Options
granted under the Plan may be Incentive Stock Options or Nonstatutory Stock
Options, as determined by the Administrator at the time of grant. Stock
Purchase Rights may also be granted under the Plan.


     2.     Definitions. As used herein, the following definitions shall apply:


          (a) “Administrator” means the Board or any of its Committees as shall be
administering the Plan in accordance with Section 4 hereof.



          (b) “Applicable Laws” means the requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options or Stock Purchase Rights are
granted under the Plan.



          (c) “Board” means the Board of Directors of the Company.



          (d) “Code” means the Internal Revenue Code of 1986, as amended.



          (e) “Committee” means a committee of Directors appointed by the Board in
accordance with Section 4 hereof.



          (f) “Common Stock” means the Common Stock of the Company.



          (g) “Company” means Waveset Technologies, Inc., a Delaware corporation.



          (h) “Consultant” means any person who is engaged by the Company or any
Parent or Subsidiary to render consulting or advisory services to such entity.



          (i) “Director” means a member of the Board of Directors of the Company.



          (j) “Disability” means total and permanent disability as defined in
Section 22(e)(3) of the Code.



          (k) “Employee” means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. A Service
Provider shall not cease to be an Employee in the case of (i) any leave of
absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any successor.
A leave of absence approved by the Company shall include sick leave, military
leave, or any other leave of absence approved by an authorized representative
of the Company. For purposes



 






 





of Incentive Stock Options, no such leave may exceed ninety days, unless
reemployment upon expiration of such leave is guaranteed by statute or
contract, including Company policies. If reemployment upon expiration of a
leave of absence approved by the Company is not so guaranteed, on the 181st day
of such leave any Incentive Stock Option held by the Optionee shall cease to be
treated as an Incentive Stock Option and shall be treated for tax purposes as a
Nonstatutory Stock Option. Neither service as a Director nor payment of a
director’s fee by the Company shall be sufficient to constitute “employment” by
the Company.


          (l) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



          (m) “Fair Market Value” means, as of any date, the value of Common Stock
determined as follows:



               (i) If the Common Stock is listed on any established stock exchange or a
national market system, including without limitation the Nasdaq National Market
or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value
shall be the closing sales price for such stock (or the closing bid, if no
sales were reported) as quoted on such exchange or system for the last market
trading day prior to the time of determination, as reported in The Wall Street
Journal or such other source as the Administrator deems reliable;



               (ii) If the Common Stock is regularly quoted by a recognized securities
dealer but selling prices are not reported, its Fair Market Value shall be the
mean between the high bid and low asked prices for the Common Stock on the last
market trading day prior to the day of determination; or



               (iii) In the absence of an established market for the Common Stock, the
Fair Market Value thereof shall be determined in good faith by the
Administrator.



          (n) “Incentive Stock Option” means an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code.



          (o) “Nonstatutory Stock Option” means an Option not intended to qualify as
an Incentive Stock Option.



          (p) “Officer” means a person who is an officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.



          (q) “Option” means a stock option granted pursuant to the Plan.



          (r) “Option Agreement” means a written or electronic agreement between the
Company and an Optionee evidencing the terms and conditions of an individual
Option grant. The Option Agreement is subject to the terms and conditions of
the Plan.



          (s) “Option Exchange Program” means a program whereby outstanding Options
are exchanged for Options with a lower exercise price.



          (t) “Optioned Stock” means the Common Stock subject to an Option or a
Stock Purchase Right.



 






 





          (u) “Optionee” means the holder of an outstanding Option or Stock Purchase
Right granted under the Plan.



          (v) “Parent” means a “parent corporation,” whether now or hereafter
existing, as defined in Section 424(e) of the Code.



          (w) “Plan” means this Amended and Restated 2000 Stock Plan.



          (x) “Purchaser” means an individual or entity who purchases Restricted
Stock by exercising a Stock Purchase Right.



          (y) “Restricted Stock” means shares of Common Stock acquired pursuant to a
grant of a Stock Purchase Right under Section 11 below.



          (z) “Service Provider” means an Employee, Director or Consultant.



          (aa) “Share” means a share of the Common Stock, as adjusted in accordance
with Section 12 below.



          (bb) “Stock Purchase Right” means a right to purchase Common Stock
pursuant to Section 11 below.



          (cc) “Subsidiary” means a “subsidiary corporation,” whether now or
hereafter existing, as defined in Section 424(f) of the Code.



     3.     Stock Subject to the Plan. Subject to the provisions of Section 12
below, the maximum aggregate number of Shares which may be subject to option
and sold under the Plan is 4,056,235 shares. The Shares may be authorized but
unissued, or reacquired Common Stock.


               If an Option or Stock Purchase Right expires or becomes unexercisable
without having been exercised in full, or is surrendered pursuant to an Option
Exchange Program, the unpurchased Shares which were subject thereto shall
become available for future grant or sale under the Plan (unless the Plan has
terminated). However, Shares that have actually been issued under the Plan,
upon exercise of either an Option or Stock Purchase Right, shall not be
returned to the Plan and shall not become available for future distribution
under the Plan, except that if Shares of Restricted Stock are repurchased by
the Company at their original purchase price, such Shares shall become
available for future grant under the Plan.



     4.     Administration of the Plan.


          (a) The Plan shall be administered by the Board or a Committee appointed
by the Board, which Committee shall be constituted to comply with Applicable
Laws.



          (b) Powers of the Administrator. Subject to the provisions of the Plan
and, in the case of a Committee, the specific duties delegated by the Board to
such Committee, and subject to the approval of any relevant authorities, the
Administrator shall have the authority in its discretion:



               (i) to determine the Fair Market Value;




 






 





               (ii) to select the Service Providers to whom Options and Stock Purchase
Rights may from time to time be granted hereunder;



               (iii) to determine the number of Shares to be covered by each such award
granted hereunder;



               (iv) to approve forms of agreement for use under the Plan;



               (v) to determine the terms and conditions, of any Option or Stock Purchase
Right granted hereunder. Such terms and conditions include, but are not
limited to, the exercise price, the time or times when Options or Stock
Purchase Rights may be exercised (which may be based on performance criteria),
any vesting acceleration or waiver of forfeiture restrictions, and any
restriction or limitation regarding any Option or Stock Purchase Right or the
Common Stock relating thereto, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;



               (vi) to determine whether and under what circumstances an Option may be
settled in cash under Section 9(e) instead of Common Stock;



               (vii) to reduce the exercise price of any Option to the then current Fair
Market Value if the Fair Market Value of the Common Stock covered by such
Option has declined since the date the Option was granted;



               (viii) to initiate an Option Exchange Program;



               (ix) to prescribe, amend and rescind rules and regulations relating to the
Plan, including rules and regulations relating to sub-plans established for the
purpose of qualifying for preferred tax treatment under foreign tax laws;



               (x) to allow Optionees to satisfy withholding tax obligations by electing
to have the Company withhold from the Shares to be issued upon exercise of an
Option or Stock Purchase Right that number of Shares having a Fair Market Value
equal to the amount required to be withheld. The Fair Market Value of the
Shares to be withheld shall be determined on the date that the amount of tax to
be withheld is to be determined. All elections by Optionees to have Shares
withheld for this purpose shall be made in such form and under such conditions
as the Administrator may deem necessary or advisable; and



               (xi) to construe and interpret the terms of the Plan and awards granted
pursuant to the Plan.



          (c) Effect of Administrator’s Decision. All decisions, determinations and
interpretations of the Administrator shall be final and binding on all
Optionees.



     5.     Eligibility.


          (a) Nonstatutory Stock Options and Stock Purchase Rights may be granted to
Service Providers. Incentive Stock Options may be granted only to Employees.



          (b) Each Option shall be designated in the Option Agreement as either an
Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the



 






 





extent that the aggregate Fair Market Value of the Shares with respect to
which Incentive Stock Options are exercisable for the first time by the
Optionee during any calendar year (under all plans of the Company and any
Parent or Subsidiary) exceeds $100,000, such Options shall be treated as
Nonstatutory Stock Options. For purposes of this Section 5(b), Incentive Stock
Options shall be taken into account in the order in which they were granted.
The Fair Market Value of the Shares shall be determined as of the time the
Option with respect to such Shares is granted.


          (c) Neither the Plan nor any Option or Stock Purchase Right shall confer
upon any Optionee any right with respect to continuing the Optionee’s
relationship as a Service Provider with the Company, nor shall it interfere in
any way with his or her right or the Company’s right to terminate such
relationship at any time, with or without cause.



     6.     Term of Plan. Subject to Section 19, the Plan shall become effective
upon its adoption by the Board. It shall continue in effect for a term of ten
(10) years unless sooner terminated under Section 15.


     7.     Term of Option. The term of each Option shall be stated in the Option
Agreement; provided, however, that the term shall be no more than ten (10)
years from the date of grant thereof. In the case of an Incentive Stock Option
granted to an Optionee who, at the time the Option is granted, owns stock
representing more than ten percent (10%) of the voting power of all classes of
stock of the Company or any Parent or Subsidiary, the term of the Option shall
be five (5) years from the date of grant or such shorter term as may be
provided in the Option Agreement.


     8.     Option Exercise Price and Consideration.


          (a) The per share exercise price for the Shares to be issued upon exercise
of an Option shall be such price as is determined by the Administrator, but
shall be subject to the following:



               (i) In the case of an Incentive Stock Option



                    (A) granted to an Employee who, at the time of grant of such Option, owns
stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the exercise price
shall be no less than 110% of the Fair Market Value per Share on the date of
grant.



                    (B) granted to any other Employee, the per Share exercise price shall be
no less than 100% of the Fair Market Value per Share on the date of grant.



               (ii) In the case of a Nonstatutory Stock Option granted to any Service
Provider, the per Share exercise price shall be no less than 85% of the Fair
Market Value per Share on the date of grant.



               (iii) Notwithstanding the foregoing, Options may be granted with a per
Share exercise price other than as required above pursuant to a merger or other
corporate transaction.



          (b) The consideration to be paid for the Shares to be issued upon exercise
of an Option, including the method of payment, shall be determined by the
Administrator (and, in the case of an Incentive Stock Option, shall be
determined at the time of grant). Such consideration may consist of (1) cash,
(2) check, (3) promissory note, (4) other Shares which (x) in the case of
Shares



 






 





acquired upon exercise of an Option, have been owned by the Optionee for
more than six months on the date of surrender, and (y) have a Fair Market Value
on the date of surrender equal to the aggregate exercise price of the Shares as
to which such Option shall be exercised, (5) consideration received by the
Company under a cashless exercise program implemented by the Company in
connection with the Plan, or (6) any combination of the foregoing methods of
payment. In making its determination as to the type of consideration to
accept, the Administrator shall consider if acceptance of such consideration
may be reasonably expected to benefit the Company.


     9.     Exercise of Option.


          (a) Procedure for Exercise; Rights as a Stockholder. Any Option granted
hereunder shall be exercisable according to the terms hereof at such times and
under such conditions as determined by the Administrator and set forth in the
Option Agreement. Unless the Administrator provides otherwise, vesting of
Options granted hereunder shall be tolled during any unpaid leave of absence.
An Option may not be exercised for a fraction of a Share.



               An Option shall be deemed exercised when the Company receives: (i) written
or electronic notice of exercise (in accordance with the Option Agreement) from
the person entitled to exercise the Option, and (ii) full payment for the
Shares with respect to which the Option is exercised. Full payment may consist
of any consideration and method of payment authorized by the Administrator and
permitted by the Option Agreement and the Plan. Shares issued upon exercise of
an Option shall be issued in the name of the Optionee or, if requested by the
Optionee, in the name of the Optionee and his or her spouse. Until the Shares
are issued (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company), no right to vote or
receive dividends or any other rights as a stockholder shall exist with respect
to the Shares, notwithstanding the exercise of the Option. The Company shall
issue (or cause to be issued) such Shares promptly after the Option is
exercised. No adjustment will be made for a dividend or other right for which
the record date is prior to the date the Shares are issued, except as provided
in Section 12.



               Exercise of an Option in any manner shall result in a decrease in the
number of Shares thereafter available, both for purposes of the Plan and for
sale under the Option, by the number of Shares as to which the Option is
exercised.



          (b) Termination of Relationship as a Service Provider. If an Optionee
ceases to be a Service Provider, such Optionee may exercise his or her Option
within such period of time as is specified in the Option Agreement (of at least
thirty (30) days) to the extent that the Option is vested on the date of
termination (but in no event later than the expiration of the term of the
Option as set forth in the Option Agreement). In the absence of a specified
time in the Option Agreement, the Option shall remain exercisable for three (3)
months following the Optionee’s termination. If, on the date of termination,
the Optionee is not vested as to his or her entire Option, the Shares covered
by the unvested portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option within the time
specified by the Administrator, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.



     In the event an Optionee ceases to be an Employee but otherwise
remains a Service Provider, such Employee’s Incentive Stock Option
shall automatically convert to a Nonstatutory Stock Option on the
date 91 days following such change of status.


 






 


          (c) Disability of Optionee. If an Optionee ceases to be a Service Provider
as a result of the Optionee’s Disability, the Optionee may exercise his or her
Option within such period of time as is specified in the Option Agreement (of
at least 180 days) to the extent the Option is vested on the date of
termination (but in no event later than the expiration of the term of such
Option as set forth in the Option Agreement). In the absence of a specified
time in the Option Agreement, the Option shall remain exercisable for 365 days
following the Optionee’s termination. If, on the date of termination, the
Optionee is not vested as to his or her entire Option, the Shares covered by
the unvested portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option within the time
specified herein, the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan.



          (d) Death of Optionee. If an Optionee dies while a Service Provider, the
Option may be exercised within such period of time as is specified in the
Option Agreement (of at least 180 days) to the extent that the Option is vested
on the date of death (but in no event later than the expiration of the term of
such Option as set forth in the Option Agreement) by the Optionee’s estate or
by a person who acquires the right to exercise the Option by bequest or
inheritance. In the absence of a specified time in the Option Agreement, the
Option shall remain exercisable for 365 days following the Optionee’s
termination. If, at the time of death, the Optionee is not vested as to the
entire Option, the Shares covered by the unvested portion of the Option shall
immediately revert to the Plan. If the Option is not so exercised within the
time specified herein, the Option shall terminate, and the Shares covered by
such Option shall revert to the Plan.



          (e) Buyout Provisions. The Administrator may at any time offer to buy out
for a payment in cash or Shares, an Option previously granted, based on such
terms and conditions as the Administrator shall establish and communicate to
the Optionee at the time that such offer is made.



     10.     Non-Transferability of Options and Stock Purchase Rights. Options and
Stock Purchase Rights may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee.


     11.     Stock Purchase Rights.


          (a) Rights to Purchase. Stock Purchase Rights may be issued either alone,
in addition to, or in tandem with other awards granted under the Plan and/or
cash awards made outside of the Plan. After the Administrator determines that
it will offer Stock Purchase Rights under the Plan, it shall advise the offeree
in writing or electronically of the terms, conditions and restrictions related
to the offer, including the number of Shares that such person shall be entitled
to purchase, the price to be paid, and the time within which such person must
accept such offer. The offer shall be accepted by execution of a Restricted
Stock purchase agreement in the form determined by the Administrator.



          (b) Repurchase Option. Unless the Administrator determines otherwise, the
Restricted Stock purchase agreement shall grant the Company a repurchase option
exercisable upon the voluntary or involuntary termination of the Purchaser’s
service with the Company for any reason (including death or disability). The
purchase price for Shares repurchased pursuant to the Restricted Stock purchase
agreement shall be the original price paid by the Purchaser and may be paid by
cancellation of any indebtedness of the Purchaser to the Company. The
repurchase option shall lapse at such rate as the Administrator may determine.



 






 





          (c) Other Provisions. The Restricted Stock purchase agreement shall
contain such other terms, provisions and conditions not inconsistent with the
Plan as may be determined by the Administrator in its sole discretion.



          (d) Rights as a Stockholder. Once the Stock Purchase Right is exercised,
the Purchaser shall have rights equivalent to those of a stockholder and shall
be a stockholder when his or her purchase is entered upon the records of the
duly authorized transfer agent of the Company. No adjustment shall be made for
a dividend or other right for which the record date is prior to the date the
Stock Purchase Right is exercised, except as provided in Section 12 of the
Plan.



     12.     Adjustments Upon Changes in Capitalization, Merger or Asset Sale.


          (a) Changes in Capitalization. Subject to any required action by the
stockholders of the Company, the number of shares of Common Stock covered by
each outstanding Option or Stock Purchase Right, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options or Stock Purchase Rights have yet been granted or which have
been returned to the Plan upon cancellation or expiration of an Option or Stock
Purchase Right, as well as the price per share of Common Stock covered by each
such outstanding Option or Stock Purchase Right, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without
receipt of consideration by the Company. The conversion of any convertible

securities of the Company shall not be deemed to have been “effected without
receipt of consideration.” Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except
as expressly provided herein, no issuance by the Company of shares of stock of
any class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to an Option or Stock
Purchase Right.



          (b) Dissolution or Liquidation. In the event of the proposed dissolution
or liquidation of the Company, the Administrator shall notify each Optionee as
soon as practicable prior to the effective date of such proposed transaction.
The Administrator in its discretion may provide for an Optionee to have the
right to exercise his or her Option or Stock Purchase Right until fifteen (15)
days prior to such transaction as to all of the Optioned Stock covered thereby,
including Shares as to which the Option or Stock Purchase Right would not
otherwise be exercisable. In addition, the Administrator may provide that any
Company repurchase option applicable to any Shares purchased upon exercise of
an Option or Stock Purchase Right shall lapse as to all such Shares, provided
the proposed dissolution or liquidation takes place at the time and in the
manner contemplated. To the extent it has not been previously exercised, an
Option or Stock Purchase Right will terminate immediately prior to the
consummation of such proposed action.



          (c) Merger or Asset Sale. In the event of a merger of the Company with or
into another corporation, or the sale of substantially all of the assets of the
Company, each outstanding Option and Stock Purchase Right shall be assumed or
an equivalent option or right substituted by the successor corporation or a
Parent or Subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the Option or Stock
Purchase Right, the Optionee shall receive one year of accelerated vesting from
the date immediately preceding such merger or asset sale, and shall have the
right to exercise the Option or Stock Purchase Right as to the



 






 





Optioned Stock, including Shares subject to such accelerated vesting. If
an Option or Stock Purchase Right becomes vested and exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Administrator shall notify the Optionee in writing or electronically that the
Option or Stock Purchase Right shall be exercisable for a period of fifteen
(15) days from the date of such notice, and the Option or Stock Purchase Right
shall terminate upon the expiration of such period. For the purposes of this
paragraph, the Option or Stock Purchase Right shall be considered assumed if,
following the merger or sale of assets, the option or right confers the right
to purchase or receive, for each Share of Optioned Stock subject to the Option
or Stock Purchase Right immediately prior to the merger or sale of assets, the
consideration (whether stock, cash, or other securities or property) received
in the merger or sale of assets by holders of Common Stock for each Share held
on the effective date of the transaction (and if holders were offered a choice
of consideration, the type of consideration chosen by the holders of a majority
of the outstanding Shares); provided, however, that if such consideration
received in the merger or sale of assets is not solely common stock of the
successor corporation or its Parent, the Administrator may, with the consent of
the successor corporation, provide for the consideration to be received upon
the exercise of the Option or Stock Purchase Right, for each Share of Optioned
Stock subject to the Option or Stock Purchase Right, to be solely common stock
of the successor corporation or its Parent equal in fair market value to the
per share consideration received by holders of Common Stock in the merger or
sale of assets.


     13.     Vesting Acceleration on Change of Control.


          (a) Vesting Acceleration. Following an assumption or substitution in
connection with a transaction described in Section 12(c) that constitutes a
“Change of Control” and in the event of an “Involuntary Termination” of an
Optionee or a Purchaser within six (6) months of such Change of Control, (i)
each Optionee shall automatically receive one year of accelerated vesting that
shall be fully exercisable as of the date immediately preceding any such
“Involuntary Termination” and (ii) the Company’s rights to repurchase
Restricted Stock from a Purchaser or Optionee under all Restricted Stock
purchase agreements shall lapse as to the applicable percentage, set forth in
(i) above, of the Optioned Stock still subject to vesting at the time of the
Change of Control on an accelerated basis as of the date immediately preceding
any such “Involuntary Termination.” All quoted terms are defined in Sections
13(b) and (c) below.



          (b) Change of Control. “Change of Control” means (X) the acquisition of
the Company by another entity by means of any transaction or series of related
transactions (including, without limitation, any reorganization, merger or
consolidation, but excluding any merger effected exclusively for the purpose of
changing the domicile of the Company), unless the Company’s stockholders of
record as constituted immediately prior to such transaction or series of
related transactions will, immediately after such transaction or series of
related transactions (by virtue of securities issued as consideration for the
Company’s acquisition) hold at least a majority of the voting power of the
surviving or acquiring entity or (Y) a sale of all or substantially all of the
assets of the Company.



          (c) Involuntary Termination. “Involuntary Termination” shall mean (i) a
termination by the Company of the Optionee’s or Purchaser’s employment with or
services to the Company other than for Cause (as defined in Section 13(d)
below); (ii) without the Optionee’s or Purchaser’s consent, a material
reduction of or variation in the Optionee’s or Purchaser’s duties, authority or
responsibilities, relative to the Optionee’s or Purchaser’s duties, authority
or responsibilities as in effect immediately prior to such reduction or
variation; (iii) without the



 






 





Optionee’s or Purchaser’s consent, a material reduction in the base salary
of the Optionee or Purchaser as in effect immediately prior to such reduction;
(iv) without the Optionee’s or Purchaser’s consent, a material reduction by the
Company in the kind or level of employee benefits to which the Optionee or
Purchaser was entitled immediately prior to such reduction, with the result
that the Optionee’s or Purchaser’s overall benefits package is materially
reduced; or (v) without the Optionee’s or Purchaser’s consent, the relocation
of the Optionee or Purchaser to a facility or a location more than fifty (50)
miles from the Optionee’s or Purchaser’s then present location.


          (d) Cause. “Cause” shall mean (i) the Optionee’s or Purchaser’s continued
failure to substantially perform the principal duties and obligations of his or
her position with the Company (other than any such failure resulting from
Disability), which failure is not remedied in a reasonable period of time after
receipt of written notice from the Company; (ii) any act of personal
dishonesty, fraud or misrepresentation taken by the Optionee or Purchaser which
was intended to result in substantial gain or personal enrichment of the
Optionee or Purchaser at the expense of the Company; (iii) the Optionee’s or
Purchaser’s violation of a federal or state law or regulation applicable to the
Company’s business which violation which was or is reasonably likely to be
materially injurious to the Company; (iv) the Optionee’s or Purchaser’s
conviction of a felony or a plea of nolo contendere under the laws of the
United States or any State; or (v) the Optionee’s or Purchaser’s breach of the
terms of the Optionee’s or Purchaser’s proprietary information and inventions
assignment agreement with the Company, if any.



     14.     Time of Granting Options and Stock Purchase Rights. The date of grant
of an Option or Stock Purchase Right shall, for all purposes, be the date on
which the Administrator makes the determination granting such Option or Stock
Purchase Right, or such other date as is determined by the Administrator.
Notice of the determination shall be given to each Employee or Consultant to
whom an Option or Stock Purchase Right is so granted within a reasonable time
after the date of such grant.


     15.     Amendment and Termination of the Plan.


          (a) Amendment and Termination. The Board may at any time amend, alter,
suspend or terminate the Plan.



          (b) Stockholder Approval. The Board shall obtain stockholder approval of
any Plan amendment to the extent necessary and desirable to comply with
Applicable Laws.



          (c) Effect of Amendment or Termination. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the Company.
Termination of the Plan shall not affect the Administrator’s ability to
exercise the powers granted to it hereunder with respect to Options granted
under the Plan prior to the date of such termination.



     16.     Conditions Upon Issuance of Shares.


          (a) Legal Compliance. Shares shall not be issued pursuant to the exercise
of an Option unless the exercise of such Option and the issuance and delivery
of such Shares shall comply



 






 



with Applicable Laws and shall be further subject to the approval of
counsel for the Company with respect to such compliance.


          (b) Investment Representations. As a condition to the exercise of an
Option, the Administrator may require the person exercising such Option to
represent and warrant at the time of any such exercise that the Shares are
being purchased only for investment and without any present intention to sell
or distribute such Shares if, in the opinion of counsel for the Company, such a
representation is required.



     17.     Inability to Obtain Authority. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company’s counsel to be necessary to the lawful issuance and sale
of any Shares hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.


     18.     Reservation of Shares. The Company, during the term of this Plan,
shall at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.


     19.     Stockholder Approval. The Plan shall be subject to approval by the
stockholders of the Company within twelve (12) months after the date the Plan
is adopted. Such stockholder approval shall be obtained in the degree and
manner required under Applicable Laws.