Filed by Automated Filing Services Inc. (604) 609-0244 - Lincoln Gold Corp. -
Exhibit 10.5
LINCOLN GOLD CORPORATION
2004 STOCK OPTION PLAN
ARTICLE 1. THE PLAN
1.1 Title
This plan is entitled the "2004 Stock Option Plan" (the "Plan") of Lincoln Gold
Corporation, a Nevada corporation (the "Company").
1.2 Purpose
The purpose of the Plan is to enhance the long-term stockholder value of the
Company by offering opportunities to directors, officers, employees and eligible
consultants of the Company and any Related Company, as defined below, to acquire
and maintain stock ownership in the Company in order to give these persons the
opportunity to participate in the Company's growth and success, and to encourage
them to remain in the service of the Company or a Related Company.
ARTICLE 2. DEFINITIONS
The following terms will have the following meanings in the Plan:
"Board" means the Board of Directors of the Company.
"Cause," unless otherwise defined in the instrument evidencing the award or in
an employment or services agreement between the Company or a Related Company and
a Participant, means a material breach of the employment or services agreement,
dishonesty, fraud, misconduct, unauthorized use or disclosure of confidential
information or trade secrets, or conviction or confession of a crime punishable
by law (except minor violations), in each case as determined by the Plan
Administrator, and its determination shall be conclusive and binding.
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
"Common Stock" means the common stock, par value $0.001 per share, of the
Company.
"Consultant Participant" means a Participant who is defined as a Consultant
Participant in Article 5.
"Corporate Transaction," unless otherwise defined in the instrument evidencing
the Option or in a written employment or services agreement between the Company
or a Related Company and a Participant, means consummation of either.
(a) a merger or consolidation of the Company with or into any other
corporation, entity or person or
(b) a sale, lease, exchange or other transfer in one transaction or a
series of related transactions of all or substantially all the
Company's outstanding securities or all or substantially all the
Company's assets; provided, however, that a Corporate Transaction
shall not include a Related Party Transaction.
"Disability," unless otherwise defined by the Plan Administrator, means a mental
or physical impairment of the Participant that is expected to result in death or
that has lasted or is expected to last for a continuous period of 12 months or
more and that causes the Participant to be unable, in the opinion of the
Company, to perform his or her duties for the Company or a Related Company and
to be engaged in any substantial gainful activity.
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"Employment Termination Date" means, with respect to a Participant, the first
day upon which the Participant no longer has an employment or service
relationship with the Company or any Related Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means the per share value of the Common Stock determined as
follows (a) if the Common Stock is listed on an established stock exchange or
exchanges or the NASDAQ National Market, the closing price per share on the last
trading day immediately preceding such date on the principal exchange on which
it is traded or as reported by NASDAQ; (b) if the Common Stock is not then
listed on an exchange or the NASDAQ National Market, but is quoted on the NASDAQ
Small Cap Market, the NASDAQ electronic bulletin board or the National Quotation
Bureau pink sheets, the average of the closing bid and asked prices per share
for the Common Stock as quoted by NASDAQ or the National Quotation Bureau, as
the case may be, on the last trading day immediately preceding such date; or (c)
if there is no such reported market for the Common Stock for the date in
question, then an amount determined in good faith by the Plan Administrator.
"Grant Date" means the date on which the Plan Administrator completes the
corporate action relating to the grant of an Option or such later date specified
by the Plan Administrator, and on which all conditions precedent to the grant
have been satisfied, provided that conditions to the exercisability or vesting
of Options shall not defer the Grant Date.
"Incentive Stock Option" means an Option granted with the intention, as
reflected in the instrument evidencing the Option, that it qualify as an
"incentive stock option" as that term is defined in Section 422 of the Code.
"Nonqualified Stock Option" means an Option other than an Incentive Stock
Option.
"Option" means the right to purchase Common Stock granted under Article 7.
"Option Expiration Date" has the meaning set forth in Article 7.6.
"Option Term" has the meaning set forth in Article 7.3.
"Participant" means the person to whom an Option is granted and who meets the
eligibility requirements imposed by Article 5, including Consultant
Participants, as defined in Article 5.
"Plan Administrator" has the meaning set forth in Article 3.1.
"Related Company" means any entity that, directly or indirectly, is in control
of or is controlled by the Company.
"Related Party Transaction" means (a) a merger or consolidation of the Company
in which the holders of shares of Common Stock immediately prior to the merger
hold at least a majority of the shares of Common Stock in the Successor
Corporation immediately after the merger; (b) a sale, lease, exchange or other
transaction in one transaction or a series of related transactions of all or
substantially all the Company's assets to a wholly-owned subsidiary corporation;
(c) a mere reincorporation of the Company; or (d) a transaction undertaken for
the sole purpose of creating a holding company that will be owned in
substantially the same proportion by the persons who held the Company's
securities immediately before such transaction.
"Retirement," unless otherwise defined by the Plan Administrator from time to
time for purposes of the Plan, means retirement on or after the individual's
normal retirement date under the Company's 401(k) plan or other similar
successor plan applicable to salaried employees.
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"Securities Act" means the Securities Act of 1933, as amended.
"Successor Corporation" has the meaning set forth in Article 11.3.1.
"Vesting Commencement Date" means the Grant Date or such other date selected by
the Plan Administrator as the date from which the Option begins to vest for
purposes of Article 7.4.
ARTICLE 3. ADMINISTRATION
3.1 Plan Administrator
The Plan shall be administered by the Board or a committee appointed by, and
consisting of two or more members of, the Board (the "Plan Administrator"). If
and so long as the Common Stock is registered under Section 12(b) or 12(g) of
the Exchange Act, the Board shall consider in selecting the members of any
committee acting as Plan Administrator, with respect to any persons subject or
likely to become subject to Section 16 of the Exchange Act, the provisions
regarding (a) "outside directors" as contemplated by Section 162(m) of the Code
and (b) "nonemployee directors" as contemplated by Rule 16b-3 under the Exchange
Act. Committee members shall serve for such term as the Board may determine,
subject to removal by the Board at any time. At any time when no committee has
been appointed to administer the Plan, then the Board will be the Plan
Administrator.
3.2 Administration and Interpretation by Plan Administrator
Except for the terms and conditions explicitly set forth in the Plan, the Plan
Administrator shall have exclusive authority, in its discretion, to determine
all matters relating to Options under the Plan, including the selection of
individuals to be granted Options, the type of Options, the number of shares of
Common Stock subject to an Option, all terms, conditions, restrictions and
limitations, if any, of an Option and the terms of any instrument that evidences
the Option. The Plan Administrator shall also have exclusive authority to
interpret the Plan and the terms of any instrument evidencing the Option and may
from time to time adopt and change rules and regulations of general application
for the Plan's administration. The Plan Administrator's interpretation of the
Plan and its rules and regulations, and all actions taken and determinations
made by the Plan Administrator pursuant to the Plan, shall be conclusive and
binding on all parties involved or affected. The Plan Administrator may delegate
administrative duties to such of the Company's officers as it so determines.
ARTICLE 4. STOCK SUBJECT TO THE PLAN
4.1 Authorized Number of Shares
Subject to adjustment from time to time as provided in Article 11.1, the number
of shares of Common Stock available for issuance under the Plan shall be
2,500,000 shares.
4.2 Reuse of Shares
Any shares of Common Stock that have been made subject to an Option that cease
to be subject to the Option (other than by reason of exercise or settlement of
the Option to the extent it is exercised for or settled in shares) shall again
be available for issuance in connection with future grants of Options under the
Plan. In the event shares issued under the Plan are reacquired by the Company
pursuant to any forfeiture provision or right of repurchase, such shares shall
again be available for the purposes of the Plan; provided, however, that the
maximum number of shares that may be issued upon the exercise of Incentive Stock
Options shall equal the share number stated in Article 4.1, subject to
adjustment from time to time as provided in Article 11.1; and
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provided, further, that for purposes of Article 4.3, any such shares shall be
counted in accordance with the requirements of Section 162(m) of the Code.
4.3 Limitations
Subject to adjustment from time to time as provided in Article 11.1, not more
than an aggregate of 2,500,000 shares shall be available for issuance pursuant
to grants of Stock Options under the Plan.
ARTICLE 5. ELIGIBILITY
An Option may be granted to any officer, director or employee of the Company or
a Related Company that the Plan Administrator from time to time selects. An
Option may also be granted to any consultant, agent, advisor or independent
contractor who provides services to the Company or any Related Company (a
"Consultant Participant"), so long as such Consultant Participant (a) is a
natural person or an alter ego entity of the natural person providing the
services; (b) renders bona fide services that are not in connection with the
offer and sale of the Company's securities in a capital-raising transaction; and
(c) does not directly or indirectly promote or maintain a market for the
Company's securities.
ARTICLE 6. OPTIONS
6.1 Form and Grant of Options
The Plan Administrator shall have the authority, in its sole discretion, to
determine the type or types of Options to be granted under the Plan. Options may
be granted singly or in combination.
6.2 Settlement of Options
The Company may settle Options through the delivery of shares of Common Stock,
the granting of replacement Options or any combination thereof as the Plan
Administrator shall determine. Any Option settlement, including payment
deferrals, may be subject to such conditions, restrictions and contingencies as
the Plan Administrator shall determine. The Plan Administrator may permit or
require the deferral of any Option payment, subject to such rules and procedures
as it may establish, which may include provisions for the payment or crediting
of interest, or dividend equivalents, including converting such credits into
deferred stock equivalents.
ARTICLE 7. GRANTS OF OPTIONS
7.1 Grant of Options
The Plan Administrator shall have the authority, in its sole discretion, to
grant Options as Incentive Stock Options or as Nonqualified Stock Options, which
shall be appropriately designated.
7.2 Option Exercise Price
The exercise price for shares purchased under an Option shall be as determined
by the Plan Administrator, provided that:
(a) the exercise price for Options granted to Participants other than
Consultant Participants but shall not be less than the minimum exercise price
required by Article 8.3 with respect to Incentive Stock Options and shall not be
less than 85% of Fair Market Value of the Common Stock on the Grant Date with
respect to Nonqualified Stock Options;
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(b) the exercise price for Options granted to Consultant Participants
shall not be less than the lesser of 85% of Fair Market Value of the Common
Stock on the Grant Date.
7.3 Term of Options
Subject to earlier termination in accordance with the terms of the Plan and the
instrument evidencing the Option, the maximum term of an Option (the "Option
Term") shall be as established for that Option by the Plan Administrator or, if
not so established, shall be ten years from the Grant Date.
7.4 Exercise of Options
The Plan Administrator shall establish and set forth in each instrument that
evidences an Option the time at which, or the installments in which, the Option
shall vest and become exercisable, any of which provisions may be waived or
modified by the Plan Administrator at any time.
The Plan Administrator, in its sole discretion, may adjust the vesting schedule
of an Option held by a Participant who works less than "full-time" as that term
is defined by the Plan Administrator or who takes a Company-approved leave of
absence.
To the extent an Option has vested and become exercisable, the Option may be
exercised in whole or from time to time in part by delivery to the Company of a
written stock option exercise agreement or notice, in a form and in accordance
with procedures established by the Plan Administrator, setting forth the number
of shares with respect to which the Option is being exercised, the restrictions
imposed on the shares purchased under such exercise agreement, if any, and such
representations and agreements as may be required by the Plan Administrator,
accompanied by payment in full as described in Article 7.5. An Option may be
exercised only for whole shares and may not be exercised for less than a
reasonable number of shares at any one time, as determined by the Plan
Administrator.
7.5 Payment of Exercise Price
The exercise price for shares purchased under an Option shall be paid in full to
the Company by delivery of consideration equal to the product of the Option
exercise price and the number of shares purchased. Such consideration must be
paid before the Company will issue the shares being purchased and must be in a
form or a combination of forms acceptable to the Plan Administrator for that
purchase, which forms may include:
(a) cash;
(b) check;
(c) tendering (either actually or, if the Common Stock is registered
under Section 12(b) or 12(g) of the Exchange Act, by
attestation) shares of Common Stock already owned by the
Participant for at least six months (or any shorter period
necessary to avoid a charge to the Company's earnings for
financial reporting purposes) that on the day prior to the
exercise date have a Fair Market Value equal to the aggregate
exercise price of the shares being purchased under the Option;
or
(d) if the Common Stock is registered under Section 12(b) or 12(g)
of the Exchange Act, delivery of a properly executed exercise
notice, together with irrevocable instructions to a brokerage
firm designated by the Company to deliver promptly to the
Company the aggregate amount of sale or loan proceeds to pay the
Option exercise price and any withholding tax obligations that
may arise in connection with the exercise, all in accordance
with the regulations of the Federal Reserve Board.
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7.6 Post-Termination Exercises
The Plan Administrator shall establish and set forth in each instrument that
evidences an Option whether the Option shall continue to be exercisable, and the
terms and conditions of such exercise, if the Participant ceases to be employed
by, or to provide services to, the Company or a Related Company, which
provisions may be waived or modified by the Plan Administrator at any time. If
not so established in the instrument evidencing the Option, the Option shall be
exercisable according to the following terms and conditions, which may be waived
or modified by the Plan Administrator at any time:
(a) Except as otherwise set forth in this Article 7.6, any portion of an
Option that is not vested and exercisable on the Employment
Termination Date shall expire on such date.
(b) Any portion of an Option that is vested and exercisable on the
Employment Termination Date shall expire on the earliest to occur of
(i) if the Participant's Employment Termination Date
occurs for reasons other than Cause, Retirement,
Disability or death, the day which is three
months after such Employment Termination Date;
(ii) if the Participant's Employment Termination Date
occurs by reason of Retirement, Disability or
death, the one-year anniversary of such
Employment Termination Date; and
(iii) the last day of the Option Term (the "Option
Expiration Date").
Notwithstanding the foregoing, if the Participant dies after his or
her Employment Termination Date but while an Option is otherwise
exercisable, the portion of the Option that is vested and exercisable
on such Employment Termination Date shall expire upon the earlier to
occur of (y) the Option Expiration Date and (z) the one-year
anniversary of the date of death, unless the Plan Administrator
determines otherwise.
Also notwithstanding the foregoing, in case of termination of the
Participant's employment or service relationship for Cause, all
Options granted to that Participant shall automatically expire upon
first notification to the Participant of such termination, unless the
Plan Administrator determines otherwise. If a Participant's
employment or service relationship with the Company is suspended
pending an investigation of whether the Participant shall be
terminated for Cause, all the Participant's rights under any Option
shall likewise be suspended during the period of investigation. If
any facts that would constitute termination for Cause are discovered
after the Participant's relationship with the Company or a Related
Company has ended, any Option then held by the Participant may be
immediately terminated by the Plan Administrator, in its sole
discretion.
(c) A Participant's transfer of employment or service relationship
between or among the Company and any Related Company, or a change in
status from an employee to a consultant, agent, advisor or
independent contractor or a change in status from a consultant,
agent, advisor or independent contractor to an employee, shall not be
considered a termination of employment or service relationship for
purposes of this Article 7. Unless the Plan Administrator determines
otherwise, a termination of employment or service relationship shall
be deemed to occur if a Participant's employment or service
relationship is with an entity that has ceased to be a Related
Company.
(d) The effect of a Company-approved leave of absence on the application
of this Article 7 shall be determined by the Plan Administrator, in
its sole discretion.
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(e) If a Participant's employment or service relationship with the
Company or a Related Company terminates by reason of Disability
or death, the Option shall become fully vested and exercisable
for all the shares subject to the Option. Such Option shall
remain exercisable for the time period set forth in this Article
7.6.
ARTICLE 8. INCENTIVE STOCK OPTION LIMITATIONS
Notwithstanding any other provisions of the Plan, and to the extent required by
Section 422 of the Code, Incentive Stock Options shall be subject to the
following additional terms and conditions:
8.1 Dollar Limitation
To the extent the aggregate Fair Market Value (determined as of the Grant Date)
of Common Stock with respect to which Incentive Stock Options are exercisable
for the first time during any calendar year (under the Plan and all other stock
option plans of the Company) exceeds $100,000, such portion in excess of
$100,000 shall be treated as a Nonqualified Stock Option. In the event the
Participant holds two or more such Options that become exercisable for the first
time in the same calendar year, such limitation shall be applied on the basis of
the order in which such Options are granted.
8.2 Eligible Employees
Individuals who are not employees of the Company or one of its parent
corporations or subsidiary corporations may not be granted Incentive Stock
Options.
8.3 Exercise Price
The exercise price of an Incentive Stock Option shall be at least 100% of the
Fair Market Value of the Common Stock on the Grant Date, and in the case of an
Incentive Stock Option granted to a Participant who owns more than 10% of the
total combined voting power of all classes of the stock of the Company or of its
parent or subsidiary corporations (a "Ten Percent Stockholder"), shall not be
less than 110% of the Fair Market Value of the Common Stock on the Grant Date.
The determination of more than 10% ownership shall be made in accordance with
Section 422 of the Code.
8.4 Exercisability
An Option designated as an Incentive Stock Option shall cease to qualify for
favorable tax treatment as an Incentive Stock Option to the extent it is
exercised (if permitted by the terms of the Option) (a) more than three months
after the Employment Termination Date if termination was for reasons other than
death or disability, (b) more than one year after the Employment Termination
Date if termination was by reason of disability, or (c) after the Participant
has been on leave of absence for more than 90 days, unless the Participant's
reemployment rights are guaranteed by statute or contract.
8.5 Taxation of Incentive Stock Options
In order to obtain certain tax benefits afforded to Incentive Stock Options
under Section 422 of the Code, the Participant must hold the shares acquired
upon the exercise of an Incentive Stock Option for two years after the Grant
Date and one year after the date of exercise.
A Participant may be subject to the alternative minimum tax at the time of
exercise of an Incentive Stock Option. The Participant shall give the Company
prompt notice of any disposition of shares acquired on the exercise of an
Incentive Stock Option prior to the expiration of such holding periods.
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8.6 Code Definitions
For the purposes of this Article 8, "parent corporation," "subsidiary
corporation" and "disability" shall have the meanings attributed to those terms
for purposes of Section 422 of the Code.
ARTICLE 9. WITHHOLDING
9.1 General
The Company may require the Participant to pay to the Company the amount of any
taxes that the Company is required by applicable federal, state, local or
foreign law to withhold with respect to the grant, vesting or exercise of an
Option. The Company shall not be required to issue any shares Common Stock under
the Plan until such obligations are satisfied.
9.2 Payment of Withholding Obligations in Cash or Shares
The Plan Administrator may permit or require a Participant to satisfy all or
part of his or her tax withholding obligations by (a) paying cash to the
Company, (b) having the Company withhold from any cash amounts otherwise due or
to become due from the Company to the Participant, (c) having the Company
withhold a portion of any shares of Common Stock that would otherwise be issued
to the Participant having a value equal to the tax withholding obligations (up
to the employer's minimum required tax withholding rate), or (d) surrendering
any shares of Common Stock that the Participant previously acquired having a
value equal to the tax withholding obligations (up to the employer's minimum
required tax withholding rate to the extent the Participant has held the
surrendered shares for less than six months).
ARTICLE 10. ASSIGNABILITY
Neither an Option nor any interest therein may be assigned, pledged or
transferred by the Participant or made subject to attachment or similar
proceedings other than by will or by the applicable laws of descent and
distribution, and, during the Participant's lifetime, such Options may be
exercised only by the Participant. Notwithstanding the foregoing, and to the
extent permitted by Section 422 of the Code, the Plan Administrator, in its sole
discretion, may permit a Participant to assign or transfer an Option or may
permit a Participant to designate a beneficiary who may exercise the Option or
receive payment under the Option after the Participant's death; provided,
however, that any Option so assigned or transferred shall be subject to all the
terms and conditions of the Plan and those contained in the instrument
evidencing the Option.
ARTICLE 11. ADJUSTMENTS
11.1 Adjustment of Shares
In the event, at any time or from time to time, a stock dividend, stock split,
spin-off, combination or exchange of shares, recapitalization, merger,
consolidation, distribution to stockholders other than a normal cash dividend,
or other change in the Company's corporate or capital structure, including,
without limitation, a Related Party Transaction, results in (a) the outstanding
shares of Common Stock, or any securities exchanged therefor or received in
their place, being exchanged for a different number or kind of securities of the
Company or of any other corporation or (b) new, different or additional
securities of the Company or of any other corporation being received by the
holders of shares of Common Stock of the Company, then the Plan Administrator
shall make proportional adjustments in (i) the maximum number and kind of
securities subject to the Plan and issuable as Incentive Stock Options as set
forth in Article 4 and the maximum number and
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kind of securities that may be made subject to Options and to Options to any
individual as set forth in Article 4.3, and (ii) the number and kind of
securities that are subject to any outstanding Award and the per share price of
such securities, without any change in the aggregate price to be paid therefor.
The determination by the Plan Administrator as to the terms of any of the
foregoing adjustments shall be conclusive and binding. Notwithstanding the
foregoing, a dissolution or liquidation of the Company or a Corporate
Transaction shall not be governed by this Article 11.1 but shall be governed by
Articles 11.2 and 11.3, respectively.
11.2 Dissolution or Liquidation
To the extent not previously exercised or settled, and unless otherwise
determined by the Plan Administrator in its sole discretion, Options shall
terminate immediately prior to the dissolution or liquidation of the Company. To
the extent a forfeiture provision or repurchase right applicable to an Option
has not been waived by the Plan Administrator, the Option shall be forfeited
immediately prior to the consummation of the dissolution or liquidation.
11.3 Corporate Transaction
Options
(a) In the event of a Corporate Transaction, except as otherwise
provided in the instrument evidencing an Option (or in a written
employment or services agreement between a Participant and the
Company or Related Company) and except as provided in subsection
(b) below, each outstanding Option shall be assumed or an
equivalent option or right substituted by the surviving
corporation, the successor corporation or its parent corporation,
as applicable (the "Successor Corporation").
(b) If, in connection with a Corporate Transaction, the Successor
Corporation refuses to assume or substitute for an Option, then
each such outstanding Option shall become fully vested and
exercisable with respect to 100% of the unvested portion of the
Option. In such case, the Plan Administrator shall notify the
Participant in writing or electronically that the unvested
portion of the Option specified above shall be fully vested and
exercisable for a specified time period. At the expiration of the
time period, the Option shall terminate, provided that the
Corporate Transaction has occurred.
(c) For the purposes of this Article 11.3, the Option shall be
considered assumed or substituted for if following the Corporate
Transaction the option or right confers the right to purchase or
receive, for each share of Common Stock subject to the Option
immediately prior to the Corporate Transaction, the consideration
(whether stock, cash, or other securities or property) received
in the Corporate Transaction 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 Corporate Transaction is not solely
common stock of the Successor Corporation, the Plan Administrator
may, with the consent of the Successor Corporation, provide for
the consideration to be received upon the exercise of the Option,
for each share of Common Stock subject thereto, to be solely
common stock of the Successor Corporation substantially equal in
fair market value to the per share consideration received by
holders of Common Stock in the Corporate Transaction. The
determination of such substantial equality of value of
consideration shall be made by the Plan Administrator and its
determination shall be conclusive and binding.
(d) All Options shall terminate and cease to remain outstanding
immediately following the Corporate Transaction, except to the
extent assumed by the Successor Corporation.
11.4 Further Adjustment of Options
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Subject to Articles 11.2 and 11.3, the Plan Administrator shall have the
discretion, exercisable at any time before a sale, merger, consolidation,
reorganization, liquidation or change of control of the Company, as defined by
the Plan Administrator, to take such further action as it determines to be
necessary or advisable, and fair and equitable to the Participants, with respect
to Options. Such authorized action may include (but shall not be limited to)
establishing, amending or waiving the type, terms, conditions or duration of, or
restrictions on, Options so as to provide for earlier, later, extended or
additional time for exercise, lifting restrictions and other modifications, and
the Plan Administrator may take such actions with respect to all Participants,
to certain categories of Participants or only to individual Participants. The
Plan Administrator may take such action before or after granting Options to
which the action relates and before or after any public announcement with
respect to such sale, merger, consolidation, reorganization, liquidation or
change of control that is the reason for such action.
11.5 Limitations
The grant of Options shall in no way affect the Company's right to adjust,
reclassify, reorganize or otherwise change its capital or business structure or
to merge, consolidate, dissolve, liquidate or sell or transfer all or any part
of its business or assets.
11.6 Fractional Shares
In the event of any adjustment in the number of shares covered by any Option,
each such Option shall cover only the number of full shares resulting from such
adjustment.
ARTICLE 12. AMENDMENT AND TERMINATION
12.1 Amendment or Termination of Plan
The Board may suspend, amend or terminate the Plan or any portion of the Plan at
any time and in such respects as it shall deem advisable; provided, however,
that to the extent required for compliance with Section 422 of the Code or any
applicable law or regulation, stockholder approval shall be required for any
amendment that would (a) increase the total number of shares available for
issuance under the Plan, (b) modify the class of employees eligible to receive
Options, or (c) otherwise require stockholder approval under any applicable law
or regulation. Any amendment made to the Plan that would constitute a
"modification" to Incentive Stock Options outstanding on the date of such
amendment shall not, without the consent of the Participant, be applicable to
such outstanding Incentive Stock Options but shall have prospective effect only.
12.2 Term of Plan
Unless sooner terminated as provided herein, the Plan shall terminate ten years
after the earlier of the Plan's adoption by the Board and approval by the
stockholders.
12.3 Consent of Participant
The suspension, amendment or termination of the Plan or a portion thereof or the
amendment of an outstanding Option shall not, without the Participant's consent,
materially adversely affect any rights under any Option theretofore granted to
the Participant under the Plan. Any change or adjustment to an outstanding
Incentive Stock Option shall not, without the consent of the Participant, be
made in a manner so as to constitute a "modification" that would cause such
Incentive Stock Option to fail to continue to qualify as an Incentive Stock
Option. Notwithstanding the foregoing, any adjustments made pursuant to Article
12 shall not be subject to these restrictions.
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ARTICLE 13. GENERAL
13.1 Evidence of Options
Options granted under the Plan shall be evidenced by a written instrument that
shall contain such terms, conditions, limitations and restrictions as the Plan
Administrator shall deem advisable and that are not inconsistent with the Plan.
13.2 No Individual Rights
Nothing in the Plan or any Option granted under the Plan shall be deemed to
constitute an employment contract or confer or be deemed to confer on any
Participant any right to continue in the employ of, or to continue any other
relationship with, the Company or any Related Company or limit in any way the
right of the Company or any Related Company to terminate a Participant's
employment or other relationship at any time, with or without Cause.
13.3 Issuance of Shares
Notwithstanding any other provision of the Plan, the Company shall have no
obligation to issue or deliver any shares of Common Stock under the Plan or make
any other distribution of benefits under the Plan unless, in the opinion of the
Company's counsel, such issuance, delivery or distribution would comply with all
applicable laws (including, without limitation, the requirements of the
Securities Act), and the applicable requirements of any securities exchange or
similar entity.
The Company shall be under no obligation to any Participant to register for
offering or resale or to qualify for exemption under the Securities Act, or to
register or qualify under state securities laws, any shares of Common Stock,
security or interest in a security paid or issued under, or created by, the
Plan, or to continue in effect any such registrations or qualifications if made.
The Company may issue certificates for shares with such legends and subject to
such restrictions on transfer and stop-transfer instructions as counsel for the
Company deems necessary or desirable for compliance by the Company with federal
and state securities laws.
To the extent the Plan or any instrument evidencing an Option provides for
issuance of stock certificates to reflect the issuance of shares of Common
Stock, the issuance may be effected on a noncertificated basis, to the extent
not prohibited by applicable law or the applicable rules of any stock exchange.
13.4 No Rights as a Stockholder
No Option or Stock Option denominated in units shall entitle the Participant to
any cash dividend, voting or other right of a stockholder unless and until the
date of issuance under the Plan of the shares that are the subject of such
Option.
13.5 Compliance With Laws and Regulations
Notwithstanding anything in the Plan to the contrary, the Plan Administrator, in
its sole discretion, may bifurcate the Plan so as to restrict, limit or
condition the use of any provision of the Plan to Participants who are officers
or directors subject to Section 16 of the Exchange Act without so restricting,
limiting or conditioning the Plan with respect to other Participants.
Additionally, in interpreting and applying the provisions of the Plan, any
Option granted as an Incentive Stock Option pursuant to the Plan shall, to the
extent permitted by law, be construed as an "incentive stock option" within the
meaning of Section 422 of the Code.
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13.6 Participants in Other Countries
The Plan Administrator shall have the authority to adopt such modifications,
procedures and subplans as may be necessary or desirable to comply with
provisions of the laws of other countries in which the Company or any Related
Company may operate to assure the viability of the benefits from Options granted
to Participants employed in such countries and to meet the objectives of the
Plan.
13.7 No Trust or Fund
The Plan is intended to constitute an "unfunded" plan. Nothing contained herein
shall require the Company to segregate any monies or other property, or shares
of Common Stock, or to create any trusts, or to make any special deposits for
any immediate or deferred amounts payable to any Participant, and no Participant
shall have any rights that are greater than those of a general unsecured
creditor of the Company.
13.8 Severability
If any provision of the Plan or any Option is determined to be invalid, illegal
or unenforceable in any jurisdiction, or as to any person, or would disqualify
the Plan or any Option under any law deemed applicable by the Plan
Administrator, such provision shall be construed or deemed amended to conform to
applicable laws, or, if it cannot be so construed or deemed amended without, in
the Plan Administrator's determination, materially altering the intent of the
Plan or the Option, such provision shall be stricken as to such jurisdiction,
person or Option, and the remainder of the Plan and any such Option shall remain
in full force and effect.
13.9 Choice of Law
The Plan and all determinations made and actions taken pursuant hereto, to the
extent not otherwise governed by the laws of the United States, shall be
governed by the laws of the State of Nevada without giving effect to principles
of conflicts of law.
ARTICLE 14. EFFECTIVE DATE
The effective date is the date on which the Plan is adopted by the Board. If the
stockholders of the Company do not approve the Plan within 12 months after the
Board's adoption of the Plan, any Incentive Stock Options granted under the Plan
will be treated as Nonqualified Stock Options.
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