Unassociated Document




Atomica
Corporation

 

2000
Stock Plan

 

Adopted
on June 29, 2000

Amended
and Restated on August 24, 2000

 

 

 

 

 

 

 

 




















 


TABLE
OF CONTENTS





	 	 	 	Page
    No. 
	 	 	 	 
	SECTION 1. ESTABLISHMENT AND
      PURPOSE. 	 	1 
	 	 	 	 
	SECTION 2.
    ADMINISTRATION 	 	1 
	 	 	 	 
	 	(a) Committees of the Board of
      Directors. 	 	1 
	 	(b) Authority of the Board of
      Directors. 	 	1 
	 	 	 	 
	SECTION 3.
    ELIGIBILITY. 	 	1
	 	 	 	 
	 	(a) General Rule.  	 	1 
	 	(b) Ten-Percent Stockholders. 	 	1 
	 	 	 	 
	
      SECTION
      4. STOCK SUBJECT TO PLAN.
	 	2 
	 	 	 	 
	 	(a) Basic Limitation. 	 	2 
	 	(b) Additional Shares.  	 	2 
	 	 	 	 
	SECTION 5. TERMS AND CONDITIONS OF
      AWARDS OR SALES. 	 	2 
	 	 	 	 
	 	(a) Stock Purchase Agreement. 	 	2 
	 	(b) Duration of Offers and Nontransferability
      of Rights. 	 	2 
	 	(c) Purchase Price.  	 	2 
	 	(d) Withholding Taxes. 	 	2 
	 	(e) Restrictions on Transfer of Shares and
      Minimum Vesting. 	 	3 
	 	(f) Accelerated Vesting 	 	3 
	 	 	 	 
	SECTION 6. TERMS AND CONDITIONS OF
      OPTIONS. 	 	3 
	 	 	 	 
	 	(a) Stock Option Agreement. 	 	3 
	 	(b) Number of Shares.  	 	3 
	 	(c) Exercise Price.  	 	3 
	 	(d) Withholding Taxes.  	 	3 
	 	(e) Exercisability. 	 	4 
	 	(f) Accelerated Exercisability  	 	4 
	 	(g) Basic Term. 	 	4 
	 	(h) Transferability. 	 	4 
	 	(i) Termination of Service (Except by
      Death). 	 	4 
	 	(j) Leaves of Absence. 	 	5 
	 	(k) Death of Optionee. 	 	5 
	 	(l) No Rights as a
    Stockholder. 	 	5 
	 	(m) Modification, Extension and Assumption of
      Options.  	 	5 
	 	(n) Restrictions on Transfer of Shares and
      Minimum Vesting. 	 	6 
	 	(o) Accelerated Vesting 	 	6 


 

 







i












 


	 	 	 	 
	SECTION 7. PAYMENT FOR
      SHARES. 	 	6 
	 	 	 	 
	 	(a) General Rule. 	 	6 
	 	(b) Surrender of Stock.  	 	6 
	 	(c) Services Rendered. 	 	6 
	 	(d) Promissory Note. 	 	6 
	 	(e) Exercise/Sale.  	 	7 
	 	(f) Exercise/Pledge. 	 	7 
	 	 	 	 
	SECTION 8. ADJUSTMENT OF
      SHARES. 	 	7 
	 	 	 	 
	 	(a) General. 	 	7 
	 	(b) Mergers and
    Consolidations. 	 	7 
	 	(c) Reservation of Rights. 	 	8 
	 	 	 	 
	SECTION 9. SECURITIES LAW
      REQUIREMENTS. 	 	8 
	 	 	 	 
	 	(a) General  	 	8 
	 	(b) Financial Reports. 	 	8 
	 	 	 	 
	SECTION 10. NO RETENTION
      RIGHTS. 	 	8 
	 	 	 	 
	SECTION 11. DURATION AND
      AMENDMENTS. 	 	9 
	 	 	 	 
	 	(a)
      Term of the Plan. 	 	9 
	 	(b) Right to Amend or Terminate the
      Plan. 	 	9 
	 	(c) Effect of Amendment or
      Termination. 	 	9 
	 	 	 	 
	Section 12. SPECIAL PROVISIONS FOR
      ISRAELI RESIDENTS. 	 	9 
	 	 	 	 
	 	(a) Scope.  	 	9 
	 	(b) Grants Under Israeli Law.  	 	9 
	 	(c) Trust Under
    Section 102. 	 	9 
	 	(d) Trust Under
    Section 3(i). 	 	10 
	 	(e) Exercise.  	 	10 
	 	(f) Sale of Shares. 	 	10 
	 	(g) Applicable Law.  	 	10 
	 	(h) Tax Consequences.  	 	10 
	 	 	 	 
	SECTION 13.
    DEFINITIONS. 	 	10 




 

 







ii












 

Atomica
Corporation 2000 Stock Plan

 

SECTION
1.  ESTABLISHMENT
AND PURPOSE.

 

The
purpose of the Plan is to offer selected persons an opportunity to acquire a
proprietary interest in the success of the Company, or to increase such
interest, by purchasing Shares of the Company’s Stock. The Plan provides both
for the direct award or sale of Shares and for the grant of Options to purchase
Shares. Options granted under the Plan may be Nonstatutory Options (including
the Options described in Section 12) or ISOs intended to qualify under
Section 422 of the Code.

 

Capitalized
terms are defined in Section 13.

 

SECTION
2.  ADMINISTRATION.

 

(a)  Committees
of the Board of Directors. The
Plan may be administered by one or more Committees. Each Committee shall consist
of one or more members of the Board of Directors who have been appointed by the
Board of Directors. Each Committee shall have such authority and be responsible
for such functions as the Board of Directors has assigned to it. If no Committee
has been appointed, the entire Board of Directors shall administer the Plan. Any
reference to the Board of Directors in the Plan shall be construed as a
reference to the Committee (if any) to whom the Board of Directors has assigned
a particular function.

 

(b)  Authority
of the Board of Directors. Subject
to the provisions of the Plan, the Board of Directors shall have full authority
and discretion to take any actions it deems necessary or advisable for the
administration of the Plan. All decisions, interpretations and other actions of
the Board of Directors shall be final and binding on all Purchasers, all
Optionees and all persons deriving their rights from a Purchaser or
Optionee.

 

SECTION
3.  ELIGIBILITY.

 

(a)  General
Rule. Only
Employees, Outside Directors and Consultants
shall be
eligible for the grant of Options or the direct award or sale of Shares. Only
Employees shall be eligible for the grant of ISOs.

 

(b)  Ten-Percent
Stockholders. A
person who owns more than 10% of the total combined voting power of all classes
of outstanding stock of the Company, its Parent or any of its Subsidiaries shall
not be eligible for designation as an Optionee or Purchaser unless (i) the
Exercise Price is at least 110% of the Fair Market Value of a Share on the date
of grant, (ii) the Purchase Price (if any) is at least 100% of the Fair
Market Value of a Share and (iii) in the case of an ISO, such ISO by its
terms is not exercisable after the expiration of five years from the date of
grant. For purposes of this Subsection (b), in determining stock ownership,
the attribution rules of Section 424(d) of the Code shall be
applied.

 




















 

SECTION
4.  STOCK
SUBJECT TO PLAN.

 

(a)  Basic
Limitation. Shares
offered under the Plan may be authorized but unissued Shares or treasury Shares.
The aggregate number of Shares that may be issued under the Plan (upon exercise
of Options or other rights to acquire Shares) shall not exceed 9,615,350
Shares,1 subject
to adjustment pursuant to Section 8. The number of Shares that are subject
to Options or other rights outstanding at any time under the Plan shall not
exceed the number of Shares that then remain available for issuance under the
Plan. The Company, during the term of the Plan, shall at all times reserve and
keep available sufficient Shares to satisfy the requirements of the
Plan.

 

(b)  Additional
Shares. In the
event that any outstanding Option or other right for any reason expires or is
canceled or otherwise terminated, the Shares allocable to the unexercised
portion of such Option or other right shall again be available for the purposes
of the Plan. In the event that Shares issued under the Plan are reacquired by
the Company pursuant to any forfeiture provision, right of repurchase or right
of first refusal, such Shares shall again be available for the purposes of the
Plan, except that the aggregate number of Shares which may be issued upon the
exercise of ISOs shall in no event exceed 9,615,350 Shares (subject to
adjustment pursuant to Section 8).

 

SECTION
5.  TERMS
AND CONDITIONS OF AWARDS OR SALES.

 

(a)  Stock
Purchase Agreement. Each
award or sale of Shares under the Plan (other than upon exercise of an Option)
shall be evidenced by a Stock Purchase Agreement between the Purchaser and the
Company. Such award or sale shall be subject to all applicable terms and
conditions of the Plan and may be subject to any other terms and conditions
which are not inconsistent with the Plan and which the Board of Directors deems
appropriate for inclusion in a Stock Purchase Agreement. The provisions of the
various Stock Purchase Agreements entered into under the Plan need not be
identical.

 

(b)  Duration
of Offers and Nontransferability of Rights. Any
right to acquire Shares under the Plan (other than an Option) shall
automatically expire if not exercised by the Purchaser within 30 days after the
grant of such right was communicated to the Purchaser by the Company. Such right
shall not be transferable and shall be exercisable only by the Purchaser to whom
such right was granted.

 

(c)  Purchase
Price. The
Purchase Price of Shares to be offered under the Plan shall not be less than 85%
of the Fair Market Value of such Shares, and a higher percentage may be required
by Section 3(b). Subject to the preceding sentence, the Board of Directors
shall determine the Purchase Price at its sole discretion. The Purchase Price
shall be payable in a form described in Section 7.

 

(d)  Withholding
Taxes. As a
condition to the purchase of Shares, the Purchaser shall make such arrangements
as the Board of Directors may require for the satisfaction of any federal,
state, local or foreign withholding tax obligations that may arise in connection
with such purchase.

 









1 Reflects
increase from 1,615,350 to 9,615,350 Shares approved by the Board of Directors
on August 24, 2000.

 








2












 

(e)  Restrictions
on Transfer of Shares and Minimum Vesting. Any
Shares awarded or sold under the Plan shall be subject to such special
forfeiture conditions, rights of repurchase, rights of first refusal and other
transfer restrictions as the Board of Directors may determine. Such restrictions
shall be set forth in the applicable Stock Purchase Agreement and shall apply in
addition to any restrictions that may apply to holders of Shares generally. In
the case of a Purchaser who is not an officer of the Company, an Outside
Director or a Consultant, any right to repurchase the Purchaser’s Shares at the
original Purchase Price (if any) upon termination of the Purchaser’s Service
shall lapse at least as rapidly as 20% per year over the five-year period
commencing on the date of the award or sale of the Shares. Any such right may be
exercised only within 90 days after the termination of the Purchaser’s Service
for cash or for cancellation of indebtedness incurred in purchasing the
Shares.

 

(f)  Accelerated
Vesting. Unless
the applicable Stock Purchase Agreement provides otherwise, any right to
repurchase a Purchaser’s Shares at the original Purchase Price (if any) upon
termination of the Purchaser’s Service shall lapse and all of such Shares shall
become vested if (i) the Company is subject to a Change in Control before
the Purchaser’s Service terminates and (ii) the repurchase right is not
assigned to the entity that employs the Purchaser immediately after the Change
in Control or to its parent or subsidiary.

 

SECTION
6.  TERMS
AND CONDITIONS OF OPTIONS.

 

(a)  Stock
Option Agreement. Each
grant of an Option under the Plan shall be evidenced by a Stock Option Agreement
between the Optionee and the Company. Such Option shall be subject to all
applicable terms and conditions of the Plan and may be subject to any other
terms and conditions which are not inconsistent with the Plan and which the
Board of Directors deems appropriate for inclusion in a Stock Option Agreement.
The provisions of the various Stock Option Agreements entered into under the
Plan need not be identical.

 

(b)  Number
of Shares. Each
Stock Option Agreement shall specify the number of Shares that are subject to
the Option and shall provide for the adjustment of such number in accordance
with Section 8. The Stock Option Agreement shall also specify whether the
Option is an ISO, a Nonstatutory Option, or a Nonstatutory Option described in
Section 12.

 

(c)  Exercise
Price. Each
Stock Option Agreement shall specify the Exercise Price. The Exercise Price of
an ISO shall not be less than 100% of the Fair Market Value of a Share on the
date of grant, and a higher percentage may be required by Section 3(b). The
Exercise Price of a Nonstatutory Option shall not be less than 85% of the Fair
Market Value of a Share on the date of grant, and a higher percentage may be
required by Section 3(b). Subject to the preceding two sentences, the
Exercise Price under any Option shall be determined by the Board of Directors at
its sole discretion. The Exercise Price shall be payable in a form described in
Section 7.

 

(d)  Withholding
Taxes. As a
condition to the exercise of an Option, the Optionee shall make such
arrangements as the Board of Directors may require for the satisfaction of any
federal, state, local or foreign withholding tax obligations that may arise in
connection with such exercise. The Optionee shall also make such arrangements as
the Board of Directors may require for the satisfaction of any federal, state,
local or foreign withholding tax obligations that may arise in connection with
the disposition of Shares acquired by exercising an Option.

 







3












 

(e)  Exercisability. Each
Stock Option Agreement shall specify the date when all or any installment of the
Option is to become exercisable. In the case of an Optionee who is not an
officer of the Company, an Outside Director or a Consultant, an Option shall
become exercisable at least as rapidly as 20% per year over the five-year period
commencing on the date of grant. Subject to the preceding sentence, the Board of
Directors shall determine the exercisability provisions of any Stock Option
Agreement at its sole discretion.

 

(f)  Accelerated
Exercisability. Unless
the applicable Stock Option Agreement provides otherwise, all of an Optionee’s
Options shall become exercisable in full if (i) the Company is subject to a
Change in Control before the Optionee’s Service terminates, (ii) such
Options do not remain outstanding, (iii) such Options are not assumed by
the surviving corporation or its parent and (iv) the surviving corporation
or its parent does not substitute options with substantially the same terms for
such Options.

 

(g)  Basic
Term. The
Stock Option Agreement shall specify the term of the Option. The term shall not
exceed 10 years from the date of grant, and a shorter term may be required by
Section 3(b). Subject to the preceding sentence, the Board of Directors at
its sole discretion shall determine when an Option is to expire.

 

(h)  Transferability. An
Option shall be transferable by the Optionee only by (i) a beneficiary
designation, (ii) a will or (iii) the laws of descent and
distribution, except as provided in the next sentence. If the applicable Stock
Option Agreement so provides, an NSO shall also be transferable by the Optionee
by (i) a gift to a member of the Optionee’s Immediate Family or (ii) a
gift to an inter
vivos or
testamentary trust in which members of the Optionee’s Immediate Family have a
beneficial interest of more than 50% and which provides that such NSO is to be
transferred to the beneficiaries upon the Optionee’s death. An ISO may be
exercised during the lifetime of the Optionee only by the Optionee or by the
Optionee’s guardian or legal representative.

 

(i)  Termination
of Service (Except by Death). If an
Optionee’s Service terminates for any reason other than the Optionee’s death,
then the Optionee’s Options shall expire on the earliest of the following
occasions:

 

(i)  The
expiration date determined pursuant to Subsection (g) above;

 

(ii)  The date
three months after the termination of the Optionee’s Service for any reason
other than Disability, or such later date as the Board of Directors may
determine; or

 

(iii)  The date
six months after the termination of the Optionee’s Service by reason of
Disability, or such later date as the Board of Directors may
determine.

 







4












 

The
Optionee may exercise all or part of the Optionee’s Options at any time before
the expiration of such Options under the preceding sentence, but only to the
extent that such Options had become exercisable before the Optionee’s Service
terminated (or became exercisable as a result of the termination) and the
underlying Shares had vested before the Optionee’s Service terminated (or vested
as a result of the termination). The balance of such Options shall lapse when
the Optionee’s Service terminates. In the event that the Optionee dies after the
termination of the Optionee’s Service but before the expiration of the
Optionee’s Options, all or part of such Options may be exercised (prior to
expiration) by the executors or administrators of the Optionee’s estate or by
any person who has acquired such Options directly from the Optionee by
beneficiary designation, bequest or inheritance, but only to the extent that
such Options had become exercisable before the Optionee’s Service terminated (or
became exercisable as a result of the termination) and the underlying Shares had
vested before the Optionee’s Service terminated (or vested as a result of the
termination).

 

(j)  Leaves
of Absence. For
purposes of Subsection (i) above, Service shall be deemed to continue while
the Optionee is on a bona fide leave of absence, if such leave was approved by
the Company in writing and if continued crediting of Service for this purpose is
expressly required by the terms of such leave or by applicable law (as
determined by the Company).

 

(k)  Death
of Optionee. If an
Optionee dies while the Optionee is in Service, then the Optionee’s Options
shall expire on the earlier of the following dates:

 

(i)  The
expiration date determined pursuant to Subsection (g) above;
or

 

(ii)  The date
12 months after the Optionee’s death.

 

All or
part of the Optionee’s Options may be exercised at any time before the
expiration of such Options under the preceding sentence by the executors or
administrators of the Optionee’s estate or by any person who has acquired such
Options directly from the Optionee by beneficiary designation, bequest or
inheritance, but only to the extent that such Options had become exercisable
before the Optionee’s death or became exercisable as a result of the death. The
balance of such Options shall lapse when the Optionee dies.

 

(l)  No
Rights as a Stockholder. An
Optionee, or a transferee of an Optionee, shall have no rights as a stockholder
with respect to any Shares covered by the Optionee’s Option until such person
becomes entitled to receive such Shares by filing a notice of exercise and
paying the Exercise Price pursuant to the terms of such Option.

 

(m)  Modification,
Extension and Assumption of Options. Within
the limitations of the Plan, the Board of Directors may modify, extend or assume
outstanding Options or may accept the cancellation of outstanding Options
(whether granted by the Company or another issuer) in return for the grant of
new Options for the same or a different number of Shares and at the same or a
different Exercise Price. The foregoing notwithstanding, no modification of an
Option shall, without the consent of the Optionee, impair the Optionee’s rights
or increase the Optionee’s obligations under such Option.

 







5












 

(n)  Restrictions
on Transfer of Shares and Minimum Vesting. Any
Shares issued upon exercise of an Option shall be subject to such special
forfeiture conditions, rights of repurchase, rights of first refusal and other
transfer restrictions as the Board of Directors may determine. Such restrictions
shall be set forth in the applicable Stock Option Agreement and shall apply in
addition to any restrictions that may apply to holders of Shares generally. In
the case of an Optionee who is not an officer of the Company, an Outside
Director or a Consultant:

 

(i)  Any right
to repurchase the Optionee’s Shares at the original Exercise Price upon
termination of the Optionee’s Service shall lapse at least as rapidly as 20% per
year over the five-year period commencing on the date of the option
grant;

 

(ii)  Any such
right may be exercised only for cash or for cancellation of indebtedness
incurred in purchasing the Shares; and

 

(iii)  Any such
right may be exercised only within 90 days after the later of (A) the
termination of the Optionee’s Service or (B) the date of the option
exercise.

 

(o)  Accelerated
Vesting. Unless
the applicable Stock Option Agreement provides otherwise, any right to
repurchase an Optionee’s Shares at the original Exercise Price upon termination
of the Optionee’s Service shall lapse and all of such Shares shall become vested
if (i) the Company is subject to a Change in Control before the Optionee’s
Service terminates and (ii) the repurchase right is not assigned to the
entity that employs the Optionee immediately after the Change in Control or to
its parent or subsidiary.

 

SECTION
7.  PAYMENT
FOR SHARES.

 

(a)  General
Rule. The
entire Purchase Price or Exercise Price of Shares issued under the Plan shall be
payable in cash or cash equivalents at the time when such Shares are purchased,
except as otherwise provided in this Section 7.

 

(b)  Surrender
of Stock. To the
extent that a Stock Option Agreement so provides, all or any part of the
Exercise Price may be paid by surrendering, or attesting to the ownership of,
Shares that are already owned by the Optionee. Such Shares shall be surrendered
to the Company in good form for transfer and shall be valued at their Fair
Market Value on the date when the Option is exercised. The Optionee shall not
surrender, or attest to the ownership of, Shares in payment of the Exercise
Price if such action would cause the Company to recognize compensation expense
(or additional compensation expense) with respect to the Option for financial
reporting purposes.

 

(c)  Services
Rendered. At the
discretion of the Board of Directors, Shares may be awarded under the Plan in
consideration of services rendered to the Company, a Parent or a Subsidiary
prior to the award.

 

(d)  Promissory
Note. To the
extent that a Stock Option Agreement or Stock Purchase Agreement so provides,
all or a portion of the Exercise Price or Purchase Price (as the case may be) of
Shares issued under the Plan may be paid with a full-recourse promissory note.
However, the par value of the Shares, if newly issued, shall be paid in cash or
cash equivalents. The Shares shall be pledged as security for payment of the
principal amount of the promissory note and interest thereon. The interest rate
payable under the terms of the promissory note shall not be less than the
minimum rate (if any) required to avoid the imputation of additional interest
under the Code. Subject to the foregoing, the Board of Directors (at its sole
discretion) shall specify the term, interest rate, amortization requirements (if
any) and other provisions of such note.

 







6












 

(e)  Exercise/Sale. To the
extent that a Stock Option Agreement so provides, and if Stock is publicly
traded, payment may be made all or in part by the delivery (on a form prescribed
by the Company) of an irrevocable direction to a securities broker approved by
the Company to sell Shares and to deliver all or part of the sales proceeds to
the Company in payment of all or part of the Exercise Price and any withholding
taxes.

 

(f)  Exercise/Pledge. To the
extent that a Stock Option Agreement so provides, and if Stock is publicly
traded, payment may be made all or in part by the delivery (on a form prescribed
by the Company) of an irrevocable direction to pledge Shares to a securities
broker or lender approved by the Company, as security for a loan, and to deliver
all or part of the loan proceeds to the Company in payment of all or part of the
Exercise Price and any withholding taxes.

 

SECTION
8.  ADJUSTMENT
OF SHARES.

 

(a)  General. In the
event of a subdivision of the outstanding Stock, a declaration of a dividend
payable in Shares, a declaration of an extraordinary dividend payable in a form
other than Shares in an amount that has a material effect on the Fair Market
Value of the Stock, a combination or consolidation of the outstanding Stock into
a lesser number of Shares, a recapitalization, a spin-off, a reclassification or
a similar occurrence, the Board of Directors shall make appropriate adjustments
in one or more of (i) the number of Shares available for future grants
under Section 4, (ii) the number of Shares covered by each outstanding
Option or (iii) the Exercise Price under each outstanding
Option.

 

(b)  Mergers
and Consolidations. In the
event that the Company is a party to a merger or consolidation, outstanding
Options shall be subject to the agreement of merger or consolidation. Such
agreement shall provide for:

 

(i)  The
continuation of such outstanding Options by the Company (if the Company is the
surviving corporation);

 

(ii)  The
assumption of the Plan and such outstanding Options by the surviving corporation
or its parent;

 

(iii)  The
substitution by the surviving corporation or its parent of options with
substantially the same terms for such outstanding Options;

 







7












 

(iv)  The full
exercisability of such outstanding Options and full vesting of the Shares
subject to such Options, followed by the cancellation of such Options;
or

 

(v)  The
settlement of the full value of such outstanding Options (whether or not then
exercisable) in cash or cash equivalents, followed by the cancellation of such
Options.

 

(c)  Reservation
of Rights. Except
as provided in this Section 8, an Optionee or Purchaser shall have no
rights by reason of (i) any subdivision or consolidation of shares of stock of
any class, (ii) the payment of any dividend or (iii) any other increase or
decrease in the number of shares of stock of any class. Any issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number or Exercise Price of Shares subject to
an Option. The grant of an Option pursuant to the Plan shall not affect in any
way the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure, to merge or
consolidate or to dissolve, liquidate, sell or transfer all or any part of its
business or assets.

 

SECTION
9.  SECURITIES
LAW REQUIREMENTS.

 

(a)  General. Shares
shall not be issued under the Plan unless the issuance and delivery of such
Shares comply with (or are exempt from) all applicable requirements of law,
including (without limitation) the Securities Act of 1933, as amended, the rules
and regulations promulgated thereunder, state securities laws and regulations,
and the regulations of any stock exchange or other securities market on which
the Company’s securities may then be traded.

 

(b)  Financial
Reports. The
Company each year shall furnish to Optionees, Purchasers and stockholders who
have received Stock under the Plan its balance sheet and income statement,
unless such Optionees, Purchasers or stockholders are key Employees whose duties
with the Company assure them access to equivalent information. Such balance
sheet and income statement need not be audited.

 

SECTION
10.  
NO RETENTION RIGHTS.

 

Nothing
in the Plan or in any right or Option granted under the Plan shall confer upon
the Purchaser or Optionee any right to continue in Service for any period of
specific duration or interfere with or otherwise restrict in any way the rights
of the Company (or any Parent or Subsidiary employing or retaining the Purchaser
or Optionee) or of the Purchaser or Optionee, which rights are hereby expressly
reserved by each, to terminate his or her Service at any time and for any
reason, with or without cause.

 







8












 

SECTION
11.  
DURATION AND AMENDMENTS.

 

(a)  Term
of the Plan. The
Plan, as set forth herein, shall become effective on the date of its adoption by
the Board of Directors, subject to the approval of the Company’s stockholders.
If the stockholders fail to approve the Plan (or the most recent increase in the
number of Shares reserved under Section 4) within 12 months after its
adoption by the Board of Directors, then any grants of Options or sales or
awards of Shares that have already occurred under the Plan (or in reliance on
such increase) shall be rescinded, and no additional grants, sales or awards
shall be made thereafter under the Plan. The Plan shall terminate automatically
10 years after the later of (i) its adoption by the Board of Directors or
(ii) the most recent increase in the number of Shares reserved under
Section 4 that was approved by the Company’s stockholders. The Plan may be
terminated on any earlier date pursuant to Subsection (b)
below.

 

(b)  Right
to Amend or Terminate the Plan. The
Board of Directors may amend, suspend or terminate the Plan at any time and for
any reason; provided, however, that any amendment of the Plan which increases
the number of Shares available for issuance under the Plan (except as provided
in Section 8), or which materially changes the class of persons who are
eligible for the grant of ISOs, shall be subject to the approval of the
Company’s stockholders. Stockholder approval shall not be required for any other
amendment of the Plan.

 

(c)  Effect
of Amendment or Termination. No
Shares shall be issued or sold under the Plan after the termination thereof,
except upon exercise of an Option granted prior to such termination. The
termination of the Plan, or any amendment thereof, shall not affect any Share
previously issued or any Option previously granted under the Plan.

 

SECTION
12.      SPECIAL
PROVISIONS FOR ISRAELI RESIDENTS.

 

(a)  Scope. This
Section 12 shall apply only to Optionees who are residents of the State of
Israel.

 

(b)  Grants
Under Israeli Law. Any
other provision of the Plan notwithstanding, the Plan may also be administered
pursuant to the provisions of Section 102 (“Section 102”) or
Section 3(i) (“Section 3(i)”) of the Israeli Income Tax Ordinance (New
Version), 1961, the rules promulgated thereunder and the Israeli Companies Law
5759-1999 with respect to Employees who are Israeli residents. Details regarding
the terms and conditions of Options granted pursuant to the provisions of
Section 102 shall be delivered to the Optionees who are Israeli residents
and whose grants are made pursuant to Section 102, along with the remaining
terms and conditions.

 

(c)  Trust
Under Section 102. Any
other provision of the Plan notwithstanding, in the event that the Plan is
administered pursuant to the provisions of Section 102, each Option and
each Share with respect to which an Option has been exercised by an Optionee who
is an Israeli resident shall be issued by the Company to, and held in trust for
the benefit of, such Optionee by a trustee designated by the Board of Directors
or the board of directors of a Subsidiary, as appropriate, pursuant to
Section 102 and a trust agreement to be entered into between the Company or
such Subsidiary and such trustee.

 







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(d)  Trust
Under Section 3(i). In the
event that the Plan is administered pursuant to the provisions of
Section 3(i), the Company may elect to enter into an agreement with a
trustee concerning the administration of the exercise of Options, the purchase
and sale of Shares, and the arrangements for payment of or withholding of taxes
due in connection with such exercise, purchase and sale. The trust agreement may
provide that the Company will issue the Shares to such trustee for the benefit
of the Optionees.

 

(e)  Exercise. At the
discretion of the Board of Directors, for purposes of simplicity and in order to
ensure compliance with Israel’s tax regulations, the exercise of the Options
granted under the Plan may be executed by the Company or a Subsidiary, as
appropriate.

 

(f)  Sale
of Shares. Upon
sale by an Optionee of any securities held in trust, the Company shall withhold
(or, if applicable, shall cause the trustee to withhold) from the proceeds of
such sale all applicable taxes, shall remit the amount withheld to the
appropriate Israeli tax authorities, shall pay the balance thereof directly to
such Optionee, and shall report to such Optionee the amount so withheld and paid
to such tax authorities.

 

(g)  Applicable
Law. With
respect to Optionees who are Israeli residents, the Plan and all instruments
issued thereunder or in connection therewith shall be governed by, and
interpreted in accordance with, the laws of the State of Israel.

 

(h)  Tax
Consequences. Any tax
consequences arising from the grant or exercise of an Option, from the payment
for Shares covered thereby or from any other event or act under the Plan
(whether of an Optionee or of the Company or a Subsidiary) shall be borne solely
by the Optionee. Furthermore, the Optionee shall agree to indemnify the Company
or the Subsidiary that employs the Optionee and the trustee, if applicable, and
hold them harmless against and from any and all liability for any tax or
interest or penalty thereon, including (without limitation) liabilities relating
to the necessity to withhold, or to have withheld, any tax from any payment made
to the Optionee.

 

SECTION
13.  
DEFINITIONS.

 

(a)  “Board
of Directors” shall
mean the Board of Directors of the Company, as constituted from time to
time.

 

(b)  “Change
in Control” shall
mean:

 

(i)  The
consummation of a merger or consolidation of the Company with or into another
entity or any other corporate reorganization, if persons who were not
stockholders of the Company immediately prior to such merger, consolidation or
other reorganization own immediately after such merger, consolidation or other
reorganization 50% or more of the voting power of the outstanding securities of
each of (A) the continuing or surviving entity and (B) any direct or
indirect parent corporation of such continuing or surviving entity;
or

 







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(ii)  The sale,
transfer or other disposition of all or substantially all of the Company’s
assets.

 

A
transaction shall not constitute a Change in Control if its sole purpose is to
change the state of the Company’s incorporation or to create a holding company
that will be owned in substantially the same proportions by the persons who held
the Company’s securities immediately before such transaction.

 

(c)  “Code” shall
mean the Internal Revenue Code of 1986, as amended.

 

(d)  “Committee” shall
mean a committee of the Board of Directors, as described in
Section 2(a).

 

(e)  “Company” shall
mean Atomica Corporation, a Delaware corporation.

 

(f)  “Consultant” shall
mean a person who performs bona fide services for the Company, a Parent or a
Subsidiary as a consultant or advisor, excluding Employees and Outside
Directors.

 

(g)  “Disability” shall
mean that the Optionee is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment.

 

(h)  “Employee” shall
mean any individual who is a common-law employee of the Company, a Parent or a
Subsidiary.

 

(i)  “Exercise
Price” shall
mean the amount for which one Share may be purchased upon exercise of an Option,
as specified by the Board of Directors in the applicable Stock Option
Agreement.

 

(j)  “Fair
Market Value” shall
mean the fair market value of a Share, as determined by the Board of Directors
in good faith. Such determination shall be conclusive and binding on all
persons.

 

(k)  “Immediate
Family” shall
mean any child, stepchild, grandchild, parent, stepparent, grandparent, spouse,
sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law or sister-in-law and shall include adoptive
relationships.

 

(l)  “ISO” shall
mean an employee incentive stock option described in Section 422(b) of the
Code.

 

(m)  “Nonstatutory
Option” shall
mean a stock option not described in Sections 422(b) or 423(b) of the Code
(including a stock option described in Section 12).

 

(n)  “Option” shall
mean an ISO or Nonstatutory Option granted under the Plan and entitling the
holder to purchase Shares.

 

(o)  “Optionee” shall
mean a person who holds an Option.

 







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(p)  “Outside
Director” shall
mean a member of the Board of Directors who is not an Employee.

 

(q)  “Parent” shall
mean any corporation (other than the Company) in an unbroken chain of
corporations ending with the Company, if each of the corporations other than the
Company owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain. A
corporation that attains the status of a Parent on a date after the adoption of
the Plan shall be considered a Parent commencing as of such date.

 

(r)  “Plan” shall
mean this Atomica Corporation 2000 Stock Plan.

 

(s)  “Purchase
Price” shall
mean the consideration for which one Share may be acquired under the Plan (other
than upon exercise of an Option), as specified by the Board of
Directors.

 

(t)  “Purchaser” shall
mean a person to whom the Board of Directors has offered the right to acquire
Shares under the Plan (other than upon exercise of an Option).

 

(u)  “Service” shall
mean service as an Employee, Outside Director or Consultant.

 

(v)  “Share” shall
mean one share of Stock, as adjusted in accordance with Section 8 (if
applicable).

 

(w)  “Stock” shall
mean the Common Stock of the Company, with a par value of $0.001 per
Share.

 

(x)  “Stock
Option Agreement” shall
mean the agreement between the Company and an Optionee that contains the terms,
conditions and restrictions pertaining to the Optionee’s Option.

 

(y)  “Stock
Purchase Agreement” shall
mean the agreement between the Company and a Purchaser who acquires Shares under
the Plan that contains the terms, conditions and restrictions pertaining to the
acquisition of such Shares.

 

(z)  “Subsidiary” means
any corporation (other than the Company) in an unbroken chain of corporations
beginning with the Company, if each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corpora-tions
in such chain. A corpo-ration that attains the status of a Subsidiary on a date
after the adoption of the Plan shall be considered a Subsidiary commencing as of
such date.


 







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