Stock Option Plan - Hurray! Holding Co. Ltd.
HURRAY! HOLDING CO., LTD.
STOCK OPTION PLAN
2003
As Amended and Restated
1. Purposes of the Plan.
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The purposes of this Stock Option Plan are to attract and retain the
best available personnel, to provide additional incentive to Employees,
Directors and Consultants and to promote the success of the Company's business.
2. Definitions.
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As used herein, the following definitions shall apply:
2.1 "Administrator" means the Board or any of the Committees appointed
to administer the Plan.
2.2 "Applicable Laws" means the legal requirements relating to the
administration of share incentive plans, if any, under applicable provisions of
the U.S. federal securities laws, the U.S. state corporate and securities laws,
the Code, the rules of any applicable stock exchange or national market system,
and the laws and rules of any jurisdiction outside the U.S. applicable to
Options, SARs or Restricted Shares granted to residents therein.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Code" means the U.S. Internal Revenue Code of 1986, as amended.
2.5 "Committee" means any committee appointed by the Board to
administer the Plan, provided that the Committee shall consist of not fewer than
two (2) members of the Board, and shall, following the Registration Date and,
solely to the extent required to comply with Applicable Laws, be composed of
"non-employee" directors within the meaning of Rule 16b-3 as promulgated under
the Exchange Act and "outside directors" within the meaning of the Code. To the
extent the Plan is administered by the Board, the term "Committee" shall refer
to the Board.
2.6 "Common Share" means a share of US$0.001 nominal or par value, of
the Company, or, if applicable, the number or fraction of American Depositary
Receipt representing a Common Share.
2.7 "Company" means Hurray! Holding Co., Ltd., a company incorporated
under the laws of the Cayman Islands.
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2.8 "Consultant" means any person (other than an Employee or a
Director) who is engaged by the Company or any Related Entity to render
consulting or advisory services to the Company or such Related Entity or any
other selective persons the Administrator determines provides, directly or
indirectly, bona fide value to the Company or any Related Entity.
2.9 "Continuous Service" means that the provision of services to the
Company or a Related Entity in any capacity of Employee, Director or Consultant,
is not interrupted or terminated. Continuous Service shall not be considered
interrupted in the case of (i) any approved leave of absence, (ii) transfers
among the Company, any Related Entity, or any successor, in any capacity of
Employee, Director or Consultant, or (iii) any change in status as long as the
individual remains in the service of the Company or a Related Entity in any
capacity of Employee, Director or Consultant (except as otherwise provided in
the Option Agreement). An approved leave of absence shall include sick leave,
maternity leave, or any other authorized personal leave. For purposes of
Incentive Stock Options, no such leave may exceed ninety (90) days, unless
re-employment upon expiration of such leave is guaranteed by statute or
contract.
2.10 "Corporate Transaction" means any of the following transactions
to which the Company is a party:
(i) a merger or consolidation or reorganization in which the
Company is not the surviving entity; or
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (including the share capital of
the Company's Subsidiaries).
2.11 "Director" means a member of the Board or the board of directors
of any Related Entity.
2.12 "Disability" means that an Optionee is permanently unable to
carry out the responsibilities and functions of the position held by the
Optionee by reason of any medically determinable physical or mental impairment
as determined by the Administrator. An Optionee will not be considered to have
incurred a Disability unless he or she furnishes proof of such impairment
sufficient to satisfy the Administrator in its discretion.
2.13 "Effective Date" means the date on which a Grant of Options
and/or SARs and/or Restricted Shares shall take effect in accordance with Option
Agreement.
2.14 "Employee" means any person, including an Officer or Director,
who is an employee of the Company or any Related Entity. The payment of an
independent director's fee by the Company or a Related Entity shall not be
sufficient to constitute "employment" of such person by the Company.
2.15 "Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
2.16 "Fair Market Value" means, as of any date, the value of Common
Shares as follows:
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(a) Where there exists a public market for the Common Shares, the
Fair Market Value shall be (i) the closing price for a Share for the last market
trading day prior to the time of the determination (or, if no closing price was
reported on that date, on the last trading date on which a closing price was
reported) on the stock exchange determined by the Administrator to be the
primary market for the Common Shares or the Nasdaq National Market, whichever is
applicable, or (ii) if the Common Shares are not traded on any such exchange or
national market system, the average of the closing bid and asked prices of a
Share on the Nasdaq Small Cap Market for the day prior to the time of the
determination (or, if no such prices were reported on that date, on the last
date on which such prices were reported), in each case, as reported in The Wall
Street Journal or such other source as the Administrator deems reliable; or
(b) In the absence of an established market for the Common Shares
of the type described in (a), above, the Fair Market Value thereof shall be
determined by the Administrator in good faith by reference to (i) the valuation
price made by an independent appraiser appointed by the Administrator; (ii) the
placing price of the latest private placement of the Shares and (iii) the
development of the Company's business operations since such latest private
placement.
2.17 "Grant" means the number of Options and/or Stock Appreciation
Rights and/or Restricted Shares and/or Restricted Share Units granted to an
Optionee at any time in accordance with Section 6 hereof.
2.18 "Immediate Family" means any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, including adoptive relationships, any person sharing the
Optionee's household (other than a tenant or employee), a trust in which these
persons (or the Optionee) have more than fifty percent (50%) of the beneficial
interest, a foundation in which these persons (or the Optionee) control the
management of assets, and any other entity in which these persons (or the
Optionee) own more than fifty percent (50%) of the voting interests.
2.19 "Incentive Stock Option" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code.
2.20 "Liquidation Event" means a complete dissolution or liquidation
of the Company.
2.21 "Non-Statutory Stock Option" means an Option not intended to
qualify as an Incentive Stock Option within the meaning of Section 422 of the
Code.
2.22 "Officer" means a person who is an officer of the Company or a
Related Entity within the meaning of Section 16 of the Exchange Act and the
rules and regulations promulgated thereunder or, to the extent applicable, other
Applicable Laws.
2.23 "Option" means an option to purchase Shares pursuant to an Option
Agreement granted under the Plan.
2.24 "Optionee" means an Employee, Director or Consultant who receives
a Grant under the Plan.
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2.25 "Option Agreement" means the written agreement evidencing the
grant of an option and/or SARs and/or Restricted Shares executed by the Company
and the Optionee, including any amendments thereto.
2.26 "Option Period" means the period commencing on the Effective Date
of a Grant and ending no later than on the day prior to the tenth anniversary of
such Effective Date.
2.27 "Parent" means a "parent corporation", whether now or hereafter
existing, as defined in Section 424(e) of the Code or, to the extent applicable,
other Applicable Laws.
2.28 "Plan" means this 2003 Stock Option Plan of Hurray Holding Co.,
Ltd., as Amended and Restated as set forth herein and as may be amended from
time to time.
2.29 "Registration Date" means the first to occur of (a) the closing
of the first sale to the general public of (i) the Common Shares or (ii) the
same class of securities of a successor corporation (or its Parent) issued
pursuant to a Corporate Transaction in exchange for or in substitution of the
Common Shares, pursuant to a registration statement filed with and declared
effective by the Securities and Exchange Commission under the Securities Act or
an equivalent thereof in a jurisdiction outside the U.S.; and (b) in the event
of a Corporate Transaction, the date of the consummation of the Corporate
Transaction if the same class of securities of the successor corporation (or its
Parent) issuable in such Corporate Transaction shall have been sold to the
general public pursuant to a registration statement filed with and declared
effective by the Securities and Exchange Commission under the Securities Act or
an equivalent thereof in a jurisdiction outside the U.S., on or prior to the
date of consummation of such Corporate Transaction.
2.30 "Related Entity" means any Parent, Subsidiary and any other
corporation, partnership, limited liability company or other business entity in
which the Company, its Parent or a Subsidiary holds a substantial ownership
interest, directly or indirectly.
2.31 "Securities Act" means the U.S. Securities Act of 1933, as
amended.
2.32 "SAR" means a Stock Appreciation Right granted to an Optionee
under this Plan.
2.33 "Shares" mean Common Shares of the Company.
2.34 "Subsidiary" means a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 424(f) of the Code or, to the extent
applicable, other Applicable Laws.
3. Shares Subject to the Plan.
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3.1 Subject to the provisions of Section 10.1 below, the maximum
aggregate number of Shares with respect to which Grants may be made under the
Plan shall not exceed 9,500,000 shares.
3.2 Any Shares covered by a Grant (or portion of a Grant) which is
forfeited or cancelled, expires or is settled in cash or otherwise, shall be
deemed not to have been issued for purposes of determining the maximum aggregate
number of Shares which may be issued under the Plan. If any unissued Shares are
retained by the Company upon exercise of a Grant in order to satisfy the
exercise
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price for such Grant or any withholding taxes due with respect to such
Grant, such retained Shares subject to such Grant shall become available for
future issuance under the Plan (unless the Plan has terminated). Shares that
actually have been issued under the Plan pursuant to a Grant shall not be
returned to the Plan and shall not become available for future issuance under
the Plan.
4. Administration of the Plan.
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4.1 Plan Administrator. The Committee shall administer the Plan in
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accordance with its terms.
4.2 Powers of the Administrator. Subject to Applicable Laws and the
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provisions of the Plan (including any other powers given to the Administrator
hereunder), and except as otherwise provided by the Board, the Administrator
shall have the authority, in its discretion:
(a) to determine the eligibility of Grants, the classes of bands
and the range of number of Shares covered in each Band, to authorize the Chief
Executive Officer and Executive Management Team to determine number of shares of
each Grant;
(b) to approve forms of Option Agreements for use under the Plan;
(c) to determine to grant Options with or without SARs;
(d) to determine that the Options granted shall be either
Incentive Stock Options or Non-qualified Stock Options or a combination thereof;
(e) to determine the Exercise Price applicable to the Share
covered by each Option;
(f) to determine the Option Period applicable thereto;
(g) to establish additional terms, conditions, rules or
procedures to accommodate the rules or laws of applicable foreign jurisdictions
and to afford Optionees favourable treatment under such rules or laws; provided,
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however, that no Grant shall be granted under any such additional terms,
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conditions, rules or procedures with terms or conditions which are inconsistent
with the provisions of the Plan;
(h) to amend the terms of any outstanding Grant granted under the
Plan, and to reduce the exercise price of any Option or SAR to the then current
Fair Market Value if the Fair Market Value of the Shares covered by such Grant
shall have declined since the date the Grant was granted and to make any other
amendments or adjustments to any Grant that the Administrator determines, in its
discretion and under the authority granted to it under this Plan, to be
necessary or advisable, provided that the exercise price shall never fall below
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the nominal or par value of the Shares, and that any such amendment or
adjustment that would adversely affect the Optionee's rights under an
outstanding Grant shall not be made without the Optionee's written consent;
(i) to construe and interpret the terms of the Plan and Grants,
including without limitation, any notice of Grant or Option Agreement, granted
pursuant to the Plan; and
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(j) to take such other action, not inconsistent with the terms of
the Plan, as the Administrator deems appropriate.
5. Eligibility.
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Incentive Stock Options may be granted only to Employees of the
Company, a Parent or a Subsidiary. Grants other than Incentive Stock Options may
be granted to Employees, Directors and Consultants. An Employee, Director or
Consultant who has been granted a Grant may, if otherwise eligible, be granted
additional Grants. Grants may be granted to such Employees, Directors or
Consultants who are residing in foreign jurisdictions as the Administrator may
determine from time to time.
6. Type of Grants; Terms and Conditions of Grants.
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Grants under the Plan may consist of one or more of the following:
Options, SARs, or Restricted Shares (which may be granted as Restricted Share
units). Awards of Restricted Shares may provide the Optionee with dividends or
dividend equivalents and voting rights prior to vesting. Each Grant shall be
designated in the Option Agreement.
6.1 Options.
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(a) Option Designation. In the case of an Option, the Option
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shall be designated as either an Incentive Stock Option or a Non-Statutory Stock
Option. However, notwithstanding such designation, to the extent that the
aggregate Fair Market Value of Shares subject to Options designated as Incentive
Stock Options which become exercisable for the first time by an Optionee during
any calendar year (under all plans of the Company or any of its Parent or
Subsidiary) exceeds US$100,000, such excess Options, to the extent of the Shares
covered thereby in excess of the foregoing limitation, shall be treated as
Non-Statutory Stock Options. For this purpose, Incentive Stock Options shall be
taken into account in the order in which they were granted, and the Fair Market
Value of the Shares shall be determined as of the grant date of the relevant
Option.
(b) Option Exercise Price. The exercise price of an Option shall
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be as follows:
(i) In the case of an Incentive Stock Option:
(A) granted to an Employee who, at the time of the
grant of such Incentive Stock Option owns shares representing more than ten
percent (10%) of the voting power of all classes of shares of the Company or any
Parent or Subsidiary, the per Share exercise price shall be not less than one
hundred ten percent (110%) of the Fair Market Value per Share on the date of
grant; or
(B) granted to any Employee other than an Employee
described in the preceding paragraph, the per Share exercise price shall be not
less than one hundred percent (100%) of the Fair Market Value per Share on the
date of grant.
(ii) In the case of a Non-Statutory Stock Option:
(A) granted to a person who, at the time of the grant
of such Non-Statutory Stock Option owns shares representing more than ten
percent (10%) of the voting power of
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all classes of shares of the Company or any Parent or Subsidiary, the per Share
exercise price shall be not less than one hundred percent (100%) of the Fair
Market Value per Share on the date of grant; or
(B) granted to a person other than a person described
in the preceding paragraph, the per Share exercise price shall be not less than
eighty five percent (85%) of the Fair Market Value per Share on the date of
grant.
(iii) Notwithstanding the foregoing provisions of this
Section 6.1(b), in the case of an Option issued pursuant to Section 6.4, below,
the exercise or purchase price for the Option shall be determined in accordance
with the principles of Section 424(a) of the Code or other Applicable Law.
(iv) Notwithstanding the foregoing provisions of this
Section 6.1(b) if the exercise price determined pursuant to the forgoing shall
fall below the nominal or par value of the Shares, the exercise price for an
Option shall be the nominal or par value of the Shares.
(c) Consideration. In addition to any other types of
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consideration the Administrator may determine, the Administrator is authorized
to accept as consideration for Shares issued under the Plan the following: (i)
cash or check in U.S. dollars (in connection therewith the Administrator may
require the Optionee to provide evidence that the funds were taken out of any
relevant non-U.S. jurisdiction in accordance with applicable foreign exchange
control laws and regulations); (ii) cancellation of indebtedness owed by the
Company to the Optionee; (iii) promissory note; (iv) Shares previously acquired
by the Optionee valued at the Fair Market Value at the time of the exercise; (v)
withholding from delivery to the Optionee that number of whole Shares having a
Fair Market Value at the time of the exercise equal to the exercise price
payable to the Company upon exercise of the Option; or (vi) any combination of
the foregoing methods of payment.
(d) Easy-Sale Exercise.
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(i) Exercise/Sale. An Option Agreement may, but need not,
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provide that, if Shares are publicly traded, all or part of the exercise price
of an Option and any withholding taxes may be paid 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.
(ii) Exercise/Pledge. An Option Agreement may, but need not,
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provide that, if Shares are publicly traded, all or part of the exercise price
of an Option and any withholding taxes may be paid 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.
6.2 SARs.
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(a) Grant. SARs may be granted in tandem with an Option, in
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addition to an Option, or may be freestanding and unrelated to an Option. SARs
granted in tandem or in addition to an Option may be granted either at the same
time as the Option or at a later time. SARs shall vest and become exercisable at
a rate determined by the Administrator, and shall remain exercisable for such
period as specified by the Administrator. A SAR shall entitle the Optionee to
receive from the Company an amount equal to the excess of the Fair Market Value
of a Share on the exercise of the SAR over the
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Fair Market Value of a Share on the date of grant or, in the case of an SAR
granted in tandem with an Option, the per Share exercise price applicable to
such Option.
(b) Settlement. The Administrator shall determine in its sole
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discretion whether the SAR shall be settled in cash, Shares or a combination of
cash and Shares. In no event may any Optionee receive grants of SARs with
respect to more than 350,000 Shares in any calendar year.
6.3 Restricted Shares.
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(a) Grant. Restricted Shares may be granted in the form of Shares
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or share units having a value equal to an identical number of Shares. The
employment conditions and the length of the period for vesting of Restricted
Shares shall be established by the Administrator at time of grant. In the event
that a share certificate is issued in respect of Restricted Shares, such
certificate shall be registered in the name of the Optionee but shall be held by
the Company until the end of the restricted period. During the restricted
period, Restricted Shares may not be sold, assigned, transferred or otherwise
disposed of, or pledged or hypothecated as collateral for a loan or as security
for the performance of any obligation or for any other purpose as the
Administrator shall determine.
(b) Settlement. The Administrator shall determine in its sole
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discretion whether Restricted Shares granted in the form of share units shall be
paid in cash, Shares, or a combination of cash and Shares.
6.4 Conditions of Grant; Vesting and Repurchase Right. Subject to the
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terms of the Plan, the Administrator shall determine the provisions, terms, and
conditions of each Grant including, but not limited to, the Grant vesting
schedule, repurchase provisions, rights of first refusal, forfeiture provisions,
form of payment (cash, Shares, or other consideration) upon settlement of the
Grant, payment contingencies, and satisfaction of any performance criteria,
provided, however, unless specifically provided otherwise in the relevant Option
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Agreement, one fourth (1/4th) of the Grant shall vest at each of 1st, 2nd, 3rd
and 4th anniversaries following the issuance of such Grant so long as the
Optionee provides Continuous Service to the Company.
6.5 Acquisitions and Other Transactions. The Administrator may issue
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Grants under the Plan in settlement, assumption or substitution for, outstanding
Grants or obligations to grant future Grants in connection with the Company or a
Related Entity acquiring another entity, an interest in another entity or an
additional interest in a Related Entity whether by merger, share purchase, asset
purchase or other form of transaction.
6.6 Deferral of Grant Payment. The Administrator may establish one or
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more programs under the Plan to permit selected Optionees the opportunity to
elect to defer receipt of consideration upon exercise of a Grant, satisfaction
of performance criteria, or other event that absent the election would entitle
the Optionee to payment or receipt of Shares or other consideration under a
Grant. The Administrator may establish the election procedures, the timing of
such elections, the mechanisms for payments of, and accrual of interest or other
earnings, if any, on amounts, Shares or other consideration so deferred, and
such other terms, conditions, rules and procedures that the Administrator deems
advisable for the administration of any such deferral program.
6.7 Award Exchange Programs. The Administrator may establish one or
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more programs under the Plan to permit selected Optionees to exchange a Grant
under the Plan for one or more
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other types of Grants under the Plan on such terms and conditions as determined
by the Administrator from time to time.
6.8 Separate Programs. The Administrator may establish one or more
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separate programs under the Plan for the purpose of issuing particular forms of
Grants to one or more classes of Optionees on such terms and conditions as
determined by the Administrator from time to time.
6.9 Early Exercise. The Option Agreement may, but need not, include a
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provision whereby the Optionee may elect, at any time while being an Employee,
Director or Consultant, to exercise any part or all of the Grant prior to full
vesting of the Grant. Any unvested Shares received pursuant to such exercise may
be subject to a repurchase right in favor of the Company or a Related Entity or
to any other restriction the Administrator determines to be appropriate.
6.10 Option Period. The Option Period shall be the term stated in the
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Option Agreement up to ten (10) years from the Effective Date of Grant thereof,
except that in the case of an Incentive Stock Option granted to an Optionee who,
at the time the Option is granted, owns Shares representing more than ten
percent (10%) of the voting power of all classes of the shares of the Company or
any Parent or Subsidiary, the Option Period of the Incentive Stock Options shall
be five (5) years from the Effective Date of Grant thereof or such shorter term
as may be provided in the Option Agreement.
6.11 Transferability of Grants. No Grant may be sold, pledged,
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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; provided, however, during the
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lifetime of the Optionee, SARs may be transferred by gift to members of the
Optionee's Immediate Family to the extent and manner determined by the
Administrator.
6.12 Time of Grants. The date of grant of a Grant shall for all
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purposes be the date on which the Administrator makes the determination to grant
such Grant, or such other date as is determined by the Administrator. Notice of
the grant determination shall be given to each Employee, Director or Consultant
to whom a Grant is so granted within a reasonable time after the date of such
grant. Unless otherwise determined by the Administrator, Grants will be made
twice a year.
6.13 Buyout Provisions. The Administrator may at any time offer to buy
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out for a payment in cash or Shares or other consideration, any Grant previously
granted based on such terms and conditions as the Administrator shall establish
and communicate to the Optionee at the time such offer is made.
7. Withholding.
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The Company shall have the right to deduct from any payment to be made
pursuant to the Plan the amount of any taxes required by law to be withheld
therefrom, or to require an Optionee to pay to the Company such amount required
to be withheld prior to the issuance or delivery of any Shares or the payment of
cash under the Plan. The Administrator may, in its discretion, permit an
Optionee to elect to satisfy such withholding obligation by having the Company
retain the number of Shares whose Fair Market Value equals the amount required
to be withheld. Any fraction of a Share required to satisfy such obligation
shall be disregarded and the amount due shall instead be paid in cash by the
Optionee.
8. Exercise of Grant.
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8.1 Procedure for Exercise; Rights as a Shareholder.
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(a) Any Grant granted hereunder shall be exercisable at such
times and under such conditions as determined by the Administrator under the
terms of the Plan and specified in the Option Agreement.
(b) A Grant shall be deemed to be exercised when written notice
of such exercise has been given to the Company, as in a form required under the
applicable Option Agreement, in accordance with the terms of the Grant by the
person entitled to exercise the Grant and full payment for the Shares is made
with respect to which the Grant is exercised. Until the issuance (as evidenced
by the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the share certificate evidencing such Shares,
no right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to Shares subject to a Grant, notwithstanding the exercise of
an Option or other Grant. The Company shall issue (or cause to be issued) such
share certificate as soon as practicable following the exercise of the Grant. No
adjustment will be made for a dividend or other right for which the record date
is prior to the date the share certificate is issued, except as provided in the
Option Agreement or Section 10, below.
8.2 Exercise of Option or SAR Following Termination of Continuous
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Service. If the Optionee's Continuous Service is terminated for any reason other
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than death or Disability, such Optionee shall have the right to exercise the
Option or SAR at any time within thirty (30) days (or such other period of time
not exceeding three (3) months as is determined by the Administrator at the time
of granting the Option), following the date such Optionee ceases his or her
Continuous Service to the extent that such Optionee was entitled to exercise the
Option or SAR at the date of such termination; provided, however, that no Option
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or SAR shall be exercisable after the expiration of the term set forth in the
applicable Option Agreement. To the extent that such Optionee was not entitled
to exercise the Option or SAR at the date of such termination, or if such
Optionee does not exercise such Option or SAR (which such Optionee was entitled
to exercise) within the time specified herein, the Option or SAR shall
terminate.
8.3 Death or Disability of Optionee. If an Optionee's Continuous
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Service is terminated due to death or Disability, the Option or SAR may be
exercised at any time within six (6) months following the date of death or
termination of employment due to Disability, in the case of death, by the
Optionee's estate or by a person who acquired the right to exercise the Option
or SAR by bequest or inheritance, or, in the case of Disability, by the
Optionee, but in any case only to the extent the Optionee was entitled to
exercise the Option or SAR at the date of his or her termination of Continuous
Service by death or Disability; provided, however, that no Option or SAR shall
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be exercisable after the expiration of the term set forth in the Option
Agreement. To the extent that such Optionee was not entitled to exercise such
Option or SAR at the date of his or her termination of employment by death or
Disability or if such Option or SAR is not exercised (to the extent it could be
exercised) within the time specified herein, the Option or SAR shall terminate.
8.4 Extension of Time to Exercise. Notwithstanding anything to the
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contrary in this Section 8, the Administrator may at any time and from time to
time prior to the termination of a Non-statutory Stock Option, with the consent
of the Optionee, extend the period of time during which the Optionee may
exercise his or her Non-statutory Stock Option following the date the Optionee's
ceases Continuous Services; provided, however, that (a) the maximum period of
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time during which a Non-statutory Stock Option shall be exercisable following
such termination date shall not exceed an aggregate of six (6) months, (b) the
Non-statutory Stock Option shall not become exercisable after the expiration of
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the term of such Option as set forth in the Option Agreement as a result of such
extension, and (c) notwithstanding any extension of time during which the
Non-statutory Stock Option may be exercised, such Option, unless otherwise
amended by the Administrator, shall only be exercisable to the extent to which
the Optionee was entitled to exercise it on the date the Optionee ceased
Continuous Services. To the extent that such Optionee was not entitled to
exercise the Option at the date of such termination, or if such Optionee does
not exercise an Option which the Optionee was entitled to exercise within the
time specified herein, the Option shall terminate.
9. Conditions Upon Issuance of Shares.
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9.1 No Violation of Law. Shares shall not be issued pursuant to a
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Grant or the exercise of a Grant unless the exercise of such Grant and the
issuance and delivery of such Shares pursuant thereto shall comply with all
Applicable Laws, and the Administrator may further subject any issuance of
Shares to the approval of counsel for the Company with respect to such
compliance.
9.2 Execution of Documents. As a condition to the exercise of a Grant,
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the Administrator may require the person exercising such Grant to execute an
investment representation statement acceptable to the Company or a share
purchase agreement acceptable to the Company, each in forms approved by the
Administrator from time to time, in addition to the any other instrument the
Administrator deems necessary or advisable.
10. Adjustments Upon Changes in Capitalization or Corporate Transaction.
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10.1 Adjustments upon Changes in Capitalization. Subject to any
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required action by the shareholders of the Company, the number of Shares covered
by each outstanding Grant, and the number of Shares which have been authorized
for issuance under the Plan but as to which no Grants have yet been granted or
which have been returned to the Plan, the exercise or purchase price of each
such outstanding Grant, as well as any other terms that the Administrator
determines require adjustment shall be proportionately adjusted for (a) any
increase or decrease in the number of issued Shares resulting from a share
split, reverse share split, share dividend, combination or reclassification of
the Shares, or similar transaction affecting the Shares, (b) any other increase
or decrease in the number of issued Shares effected without receipt of
consideration by the Company, or (c) as the Administrator may determine in its
discretion, any other transaction with respect to Shares to which Section 424(a)
of the Code applies or a similar transaction; provided, however, that conversion
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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 Administrator and its determination shall be final, binding and conclusive.
Except as the Administrator determines, no issuance by the Company of shares of
any class, or securities convertible into shares of any class, shall affect, and
no adjustment by reason hereof shall be made with respect to, the number or
price of Shares subject to a Grant.
10.2 Corporate Transaction. In the event of a proposed Corporate
---------------------
Transaction, subject to the actual consummation of the proposed transaction,
each outstanding Grant shall automatically become fully vested and exercisable,
unless the Grant is assumed or substituted with an equivalent option or right by
the successor corporation or the Parent or Subsidiary thereof. If the successor
corporation refuses to assume or substitute for the Grant, the Administrator
shall notify the Optionee that the Grant shall be fully vested and exercisable
with respect to all of the Shares underlying the Grant (including Shares as to
which it would not otherwise be vested or exercisable) for a period of fifteen
(15) days from the date of such notice. If the Grant thus becomes fully vested
and exercisable but is not exercised during this fifteen (15) day period, it
shall terminate immediately prior to the effective
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time of such Corporate Transaction. For the purposes of this Section 10.2, the
Grant shall be considered assumed or substituted with an equivalent option or
right if, in connection with the Corporate Transaction, the Grant is replaced
with a comparable option or right with respect to shares of the successor
corporation or Parent or Subsidiary thereof or is replaced with a cash incentive
program of the successor corporation or Parent or Subsidiary thereof which
preserves the compensation element of such Grant existing at the time of the
Corporate Transaction and provides for subsequent payout in accordance with the
same vesting schedule applicable to such Grant. The determination of Grant
comparability above shall be made by the Administrator and its determination
shall be final, binding and conclusive.
10.3 Liquidation Event. In the event of a proposed Liquidation Event,
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the Administrator shall notify each Optionee of the proposed event at least
twenty (20) days prior to the proposed effective date of the Liquidation Event.
The Administrator in its discretion may provide for an Optionee to have the
right to exercise his or her Grant until ten (10) days prior to the proposed
effective date for the Liquidation Event with respect to all Shares underlying
the Grant (including Shares as to which it would not otherwise be vested or
exercisable), subject to the actual completion of the Liquidation Event at the
time and in the manner contemplated. In addition, the Administrator may provide
that any Company repurchase option applicable to any Shares issued upon grant or
an exercise of a Grant shall lapse as to all Shares, subject to the actual
completion of the Liquidation Event at the time and in the manner contemplated.
Any unexercised Grant shall terminate immediately prior to effective time of the
Liquidation Event.
11. Effective Date and Term of Plan.
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The Plan, and any amendments to the Plan, shall become effective upon
its adoption by the Board. It shall continue in effect until the end of 2005
unless sooner terminated. Subject to Section 17, below, and Applicable Laws,
Grants may be granted under the Plan upon its becoming effective.
The 2002 Incentive Compensation Plan will terminate with immediate
effect after this 2003 Stock Option Plan is adopted effective by the Board.
12. Amendment, Suspension or Termination of the Plan.
------------------------------------------------
The Board may at any time amend, suspend or terminate the Plan. No
Grant may be granted during any suspension of the Plan or after termination of
the Plan. Any amendment, suspension or termination of the Plan (including
termination of the Plan pursuant to this Section 12) shall not affect Grants
already granted, and such Grants shall remain in full force and effect as if the
Plan had not been amended, suspended or terminated, unless mutually agreed
otherwise between the Optionee and the Administrator, which agreement must be in
writing and signed by the Optionee and the Company.
13. Availability of Shares; No Issuance in Violation of Law.
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13.1 Availability of Shares. The Company, during the term of the Plan,
----------------------
will at all times keep available such number of unissued Shares as shall be
sufficient to satisfy the requirements of the Plan.
13.2 No Issuance in Violation of Law. The inability of the Company to
-------------------------------
obtain authority from any regulatory body having jurisdiction under Applicable
Law, which authority is deemed by the Company's counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, shall
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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.
14. No Effect on Terms of Employment/Consulting Relationship.
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The Plan shall not confer upon any Optionee any right with respect to
the Optionee's Continuous Service, nor shall it interfere in any way with his or
her right or the Company's or a Related Entity's right to terminate the
Optionee's Continuous Service at any time, with or without cause.
15. No Effect on Retirement and Other Benefit Plans.
-----------------------------------------------
Except as specifically required by law or provided in a retirement or
other benefit plan of the Company or a Related Entity, Grants shall not be
deemed compensation for purposes of computing benefits or contributions under
any retirement plan of the Company or a Related Entity, and shall not affect any
benefits under any other benefit plan of any kind or any benefit plan
subsequently instituted under which the availability or amount of benefits is
related to level of compensation. The Plan is not a "Retirement Plan" or
"Welfare Plan" under the U.S. Employee Retirement Income Security Act of 1974,
as amended.
16. Liability of the Company; Consents.
----------------------------------
16.1 Qualification as Incentive Stock Option. Neither the Company nor
---------------------------------------
any Related Entity shall be liable to any Optionee or to any other person if it
is determined that an Option intended to be an Incentive Stock Option granted
hereunder does not qualify as incentive stock options within the meaning of
Section 422 or the Code.
16.2 Consents. Optionee shall be responsible for obtaining any
--------
governmental or other official consent that may be required by any country or
jurisdiction in order to permit the grant or exercise of any Grant. Neither the
Company nor any Related Entity shall be responsible for any failure by an
Optionee to obtain such consent or for any tax or other liability to which an
Optionee may become subject to as a result of his or her participation in the
Plan.
17. Shareholder Approval.
--------------------
The grant of Incentive Stock Options under the Plan shall be subject to approval
of the Plan by the shareholders of the Company within twelve (12) months before
or after the date the Plan is adopted by the Board excluding Incentive Stock
Options issued in substitution for outstanding Incentive Stock Options pursuant
to Section 424(a) of the Code. Such shareholder approval shall be obtained in
the degree and manner required under Applicable Laws. The Administrator may
grant Incentive Stock Options under the Plan prior to approval by the
shareholders, but until such approval is obtained, no such Incentive Stock
Option shall be exercisable. In the event that shareholder approval is not
obtained within the twelve (12) month period provided above, all Incentive Stock
Options previously granted under the Plan shall be exercisable as Non-Statutory
Stock Options.
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