1995 Stock Option Plan - You Bet! Inc.
YOU BET!, INC.
1995 STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
SECTION 1. GENERAL PURPOSE OF PLAN; DEFINITIONS.
The name of this plan is the You Bet!, Inc. 1995 Stock Option
Plan for Non-Employee Directors (the "Plan"). The purpose of the Plan is to
enable You Bet!, Inc. (the "Company") to compensate non-employee members of the
Board of Directors of the Company and to provide incentives to such members,
which incentives are linked directly to increases in stockholder value and will
therefore inure to the benefit of all stockholders of the Company.
For purposes of the Plan, the following terms shall be defined
as set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor thereto.
(c) "Committee" means the Non-Employee Directors Stock Option
Plan Committee of the Board, or any other committee the Board may subsequently
appoint to administer the Plan. The Committee shall be composed entirely of
directors who meet the qualifications referred to in Section 2 of the Plan. If
at any time no Committee shall be in office, then the functions of the
committee specified in the Plan shall be exercised by the Board.
(d) "Company" means You Bet!, Inc., a corporation organized
under the laws of the State of Delaware, (or any successor corporation).
(e) "Fair Market Value" with respect to the Common Stock as
of any date shall mean (i) in the event the Common Stock is listed on a
national securities exchange, the closing price as reported for composite
transactions on that date, or, if no sales occurred on that date, then the
closing price on the next preceding date on which such sales of Common Stock
occurred; (ii) in the event the Common Stock is not listed on a national
securities exchange, the mean between the high bid and low asked prices
reported for shares of Common Stock traded over-the-counter on that date, or,
if no bid and asked prices were reported on that date, then the mean between
the high bid and low asked prices on the next preceding date on which such
prices were reported; or (iii) in the event there are no over-the-counter
prices for the Common Stock and it is not listed on a national securities
exchange, the fair market value as determined by the Committee in its
discretion.
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(f) "Nonqualified Stock Option" means any Stock Option that
is not an "incentive stock option" within the meaning of Section 422A of the
Code.
(g) "Stock" means the common stock, no par value, of the
Company.
(h) "Stock Option" means any option to purchase shares of
Stock granted pursuant to Section 5.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by a Committee of not less than
two persons, who shall be appointed by the Board and who shall serve at the
pleasure of the Board.
SECTION 3. STOCK SUBJECT TO PLAN.
The total number of shares of Stock reserved and available for
issuance under the Plan shall be 3% of the then outstanding shares of Stock.
In the event of any merger, reorganization, consolidation,
recapitalization, Stock dividend, stock split or other change in corporate
structure affecting the Stock, a substitution or adjustment shall be made in
(i) the aggregate number of shares reserved for issuance under the Plan and
(ii) the number and option price of shares subject to outstanding Stock Options
granted under the Plan as may be determined by the Committee; provided that the
number of shares subject to any award shall always be a whole number.
SECTION 4. ELIGIBILITY.
Each non-employee member of the Board shall receive
Non-Qualified Stock Options in accordance with the provisions of Section 5.
SECTION 5. STOCK OPTIONS.
Recipients of Stock Options shall enter into a stock option
agreement with the Company, which agreement shall set forth, among other
things, the exercise price of the option, the term of the option and provisions
regarding exercisability of the option granted thereunder.
The Stock Options granted under the Plan are Non-Qualified
Stock Options.
Stock Options granted under the Plan shall be subject to the
following terms and conditions:
(a) Subject to shareholder approval of this Plan, and the
effectiveness of a Registration Statement with respect thereto, each of
__________ and __________, the non-
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Employee Directors of the Company at the inception of the Plan, will receive
options in the following amounts and at the exercise price set forth below.
______________ 10,000
______________ 10,000
(b) On the first business day after (i) the 1996 annual
stockholders' meeting of the Company, and on the first business day after each
subsequent annual stockholders' meeting of the Company thereafter during the
term of the Plan or (ii) if there shall be no annual meeting during a year, on
January 30 of succeeding year, each non-employee member of the Board shall be
granted a Non-Qualified Stock Option to purchase 5,000 shares of Stock. The
option price per share of Stock purchasable under such Stock Options shall be
100% of the fair market value on the date of grant. Such options shall be
exercisable immediately grant by payment in full of the purchase price in cash.
(c) Non-transferability of Options. No Stock Options shall
be transferable by the optionee otherwise than by will or by the laws of
descent and distribution, and all Stock Options shall be exercisable, during
the optionee's lifetime, only by the optionee.
SECTION 6. AMENDMENT AND TERMINATION.
The Board may not amend, alter, or discontinue the Plan
without the approval of the stockholders.
SECTION 7. GENERAL PROVISIONS.
(a) Each person purchasing shares pursuant to a Stock Option
must represent to and agree with the Company in writing that such person is
acquiring the shares without a view to distribution thereof. The certificates
for such shares shall include such legends that are appropriate to reflect any
restrictions on transfer.
All certificates for shares of Stock delivered under the Plan
shall be subject to such stop-transfer orders and other restrictions under the
rules, regulations, and other requirements of the Securities and Exchange
Commission, any stock exchange upon which the Stock is then listed, and any
applicable Federal or state securities law, and a legend or legends shall be
put on any such certificates to make appropriate reference to such
restrictions.
(b) Nothing contained in the Plan shall prevent the Board
from adopting other or additional compensation arrangements, subject to
stockholder approval if such approval is required; and such arrangements may be
either generally applicable or applicable only in specific cases. The adoption
of the Plan shall not confer upon any member of the Board any right to
continued membership on such Board.
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(c) Each Participant shall, no later than the date as of
which the value of an award first becomes includible in the gross income of the
Participant for Federal income tax purposes, pay to the Company, or make
arrangements satisfactory to the Committee regarding payment of, any Federal,
state, or local taxes of any kind required by law to be withheld with respect
to the award. The obligations of the Company under the Plan shall be
conditional on such payment or arrangements and the Company shall, to the
extent permitted by law, have the right to deduct any such taxes from any
payment of any kind otherwise due to the Participant.
(d) No member of the Board or the Committee, nor any officer
or employee of the Company acting on behalf of the Board or the Committee,
shall be personally liable for any action, determination, or interpretation
taken or made in good faith with respect to the Plan, and all members of the
Board or the Committee and each and any officer or employee of the Company
acting on their behalf shall, to the extent permitted by law, be fully
indemnified and protected by the Company in respect of any such action,
determination or interpretation.
SECTION 8. EFFECTIVE DATE OF PLAN.
The Plan shall be effective on the date it is adopted by the
Board, subject to the approval by the Company's stockholders.
SECTION 9. TERM OF PLAN.
No Stock Option shall be granted pursuant to the Plan on or
after the tenth anniversary of the Effective Date, but awards theretofore
granted may extend beyond that date.
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YOU BET!, INC.
1995 STOCK OPTION PLAN
Section 1. Purpose
The purpose of the Plan is to promote the interests of You
Bet!, Inc. (the "Company") and its shareholders by providing a means for
selected Employees and Consultants to acquire a proprietary interest in the
Company, thereby strengthening the Company's ability to attract capable
management personnel and providing an inducement for Key Employees to remain in
the employ of the Company or its Subsidiaries and to perform at their maximum
levels. It is intended that Options granted pursuant to this Plan may
constitute Incentive Stock Options or Nonqualified Stock Options, as
hereinafter set forth.
Section 2. Definitions
Unless the context clearly indicates otherwise, the following
terms, when used in this Plan, shall have the meanings set forth below:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
it may be amended from time to time.
(c) "Committee" shall mean the Stock Option Committee of the
Board, appointed by the Board to administer the Plan and perform the
functions set forth in Section 3 of this Plan.
(d) "Common Stock" shall mean the Company's Common Stock, no
par value and any other stock or securities resulting from the
adjustment thereof or substitution therefor as described in Section 14
of this Plan.
(e) "Company" shall mean You Bet!, Inc. a Delaware
corporation.
(f) "Fair Market Value" with respect to the Common Stock as
of any date shall mean (i) in the event the Common Stock is listed on
a national securities exchange, the closing price as reported for
composite transactions on that date, or, if no sales occurred on that
date, then the closing price on the
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next preceding date on which such sales of Common Stock occurred; (ii)
in the event the Common Stock is not listed on a national securities
exchange, the mean between the high bid and low asked prices reported
for shares of Common Stock traded over-the-counter on that date, or,
if no bid and asked prices were reported on that date, then the mean
between the high bid and low asked prices on the next preceding date
on which such prices were reported; or (iii) in the event there are no
over-the-counter prices for the Common Stock and it is not listed on a
national securities exchange, the fair market value as determined by
the Committee in its discretion.
(g) "Incentive Stock Option" shall mean an Option granted
under the Plan and designated as such by the Committee which meets the
requirements of Section 422 of the Code.
(h) "Key Employee" shall mean (i) a regular employee, whether
or not a director, of the Company or a Subsidiary who is an officer or
holds a managerial or other key position and/or (ii) a consultant,
including a business or financial advisor, all as determined by the
Committee, and who, in the judgment of the Committee, has demonstrated
a capacity for making a substantial contribution to the success of the
business of the Company or a Subsidiary. All employee members of the
Board of Directors shall automatically be deemed Key Employees, other
than Marshall and Fine.
(i) "Marshall" shall mean David Marshall, the President and
Chief Executive Officer of the Company.
(j) "Fine" shall mean Russell Fine, the Executive Vice
President of the Company.
(k) "Nonqualified Stock Option" shall mean an Option granted
under the Plan other than an Incentive Stock Option.
(l) "Option" shall mean, unless otherwise specifically
limited under any provision of this Plan, both an Incentive Stock
Option and a Nonqualified Stock Option granted pursuant to this Plan.
(m) "Option Price" shall mean the price at which Common Stock
may be purchased under an Option, as provided in Section 7(d) of this
Plan.
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(n) "Optionee" shall mean a Key Employee granted an Option
under the Plan.
(o) "Parent" shall mean any corporation which qualifies as a
parent corporation of the Company within the meaning of Section 425(e)
of the Code.
(p) "Plan" shall mean the You Bet!, Inc. 1995 Stock Option
Plan.
(q) "Stock Option Agreement" shall mean the written
agreement between an Optionee and the Company evidencing the grant of
an Option and setting forth the terms and conditions of the grant.
(r) "Subsidiary" shall mean any corporation which qualifies
as a subsidiary corporation of the Company within the meaning of
Section 425(f) of the Code.
(s) "Surrender Right" shall mean a right to surrender to the
Company for cancellation all or a portion of an Option granted under
the Plan and to receive in exchange therefor shares of the Company's
Common Stock, as hereinafter provided in Section 9 of this Plan.
(t) "Ten Percent Shareholder" shall mean an Optionee who, at
the time an Incentive Stock Option is to be granted to him, owns stock
possessing more than ten percent (l0%) of the total combined voting
power of all classes of stock of the Company or of its Parent (if any)
or Subsidiaries (as such ownership is defined in Section 425(d) of the
Code).
Section 3. Administration of the Plan
(a) Committee. The Plan shall be administered by the
Committee, which shall consist of at least two directors(1) of the
Company appointed by the Board. The members of the Committee shall
not be eligible to receive Options and shall be "disinterested
persons" as defined in Rule 16b-3(d)(3) promulgated under the
Securities Exchange Act of 1934, as amended (the "l934 Act"). The
members of the Committee shall serve at the pleasure of the Board,
which shall have the power, at any time and from time to time, to
____________________
(1) This will be David Marshall and Russell Fine.
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remove members from the Committee or to add members thereto. Vacancies
on the Committee shall be filled by action of the Board.
(b) Duties and Powers of the Committee. The Committee shall
have the full power and authority, in it sole and absolute discretion,
but subject to and not inconsistent with the express provisions of the
Plan, to administer the Plan and to exercise all the powers and
authorities either specifically granted to it under the Plan or
necessary or advisable in the administration of the Plan, including,
without limitation, the authority (i) to grant Options which have
received any requisite approval of the Board and to determine which
Options shall constitute Incentive Stock Options and which Options
shall constitute Nonqualified Stock Options; (ii) to determine the
employees to whom, and the time or times at which, Options shall be
granted; (iii) to determine the number of shares of Common Stock to be
covered by each Option; (iv) to determine which Options (if any) shall
be accompanied by Surrender Rights; (v) determine the Option Price of
Common Stock subject to an Option; (vi) to determine the duration of
the exercise period of Options and the time or times at which Options
may be exercised and the extent of exercisability of Options; (vii) to
determine the terms and provisions of Stock Option Agreements (which
need not be identical) entered into in connection with Options granted
under the Plan, including such terms and provisions as shall in the
judgment of the Committee be necessary or advisable in order to
conform to any applicable laws or regulations, as the same may be
amended from time to time; and (viii) to make all other determinations
necessary or advisable for the administration of the Plan. Subject to
the express provisions of the Plan, the committee may correct any
defect or supply any omission or reconcile any inconsistency in the
Plan or in any Stock Option Agreement in such manner and to the extent
it shall determine in order to carry out the purposes of the Plan.
The committee shall have full power and authority to construe
and interpret the Plan and the respective Stock Option Agreements and
to establish, amend or rescind such rules, regulations and procedures
as the Committee deems necessary or appropriate for the proper
administration of the Plan.
The determinations of the Committee on the foregoing matters
and any other matters arising in connection with the construction,
administration, interpretation and effect of the Plan and of the
Committee's rules and
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regulations thereunder shall (except as otherwise specifically
provided in the Plan) be final, binding and conclusive.
(c) Committee Meetings and Actions. The Committee may select
one of its members as Chairman. The Committee shall hold its meetings
at such times and places as it shall determine. All decisions and
determinations of the Committee shall be made by not less than the
affirmative vote of a majority of its members. Actions may be taken
by the Committee at a duly convened meeting (including a meeting by
telephone conference call) or by unanimous written consent.
Section 4. Eligibility
Options under the Plan may be granted only to Key Employees of
the Company and its Subsidiaries other than Messrs. David Marshall and
Russell Fine. More than one Option may be granted to the same Optionee and
be outstanding concurrently hereunder.
Section 5. Shares Subject to the Plan
(a) Aggregate Number of Shares Available. Subject to the
adjustments provided for in Section 14 of this Plan, the aggregate
number of shares of Common Stock for which Options may be granted
under the Plan shall be 12% of the shares of the Company's Common
Stock then outstanding. Shares delivered by the Company pursuant to
exercises of Options or Surrender Rights may be authorized but
unissued shares of Common Stock, issued shares of Common Stock which
have been reacquired by the Company, or a combination thereof, as the
Board or the Committee shall from time to time determine.
(b) Effect of Expiration of Options. In the event that any
outstanding Option under the Plan for any reason expires or is
terminated without having been exercised in full or surrendered in
full in connection with the exercise of a related Surrender Right, the
shares of Common stock subject to but not issued under such Option
shall again be available for the granting of Options under the Plan.
(c) Effect of Exercises. If all or any portion of an Option
is exercised or is surrendered pursuant to the exercise of a Surrender
Right, the shares
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with respect to which such Option or such Surrender Right is exercised
shall not thereafter be available for the granting of other Options
under the Plan. Shares of Common Stock delivered by the Company upon
the exercise of a Surrender Right shall not be charged against the
number of shares of Common Stock available for the grant of Options.
Section 6. Stock Option Agreements
Each Option shall be evidenced by a written Stock Option
Agreement which shall be executed by the Company and the Optionee, containing
such terms and conditions, not inconsistent with the Plan, as shall be
determined by the Committee. Stock Option Agreements evidencing Incentive Stock
Options shall contain such terms and conditions, among others, as may be
necessary in the opinion of the Committee to qualify them as incentive stock
options under the Code.
Section 7. Terms and Conditions of Options
Each Option granted under the Plan shall comply with and be
subject to the following terms and conditions, as well as such other terms and
conditions as may be determined by the Committee and specified in the related
Stock Option Agreement:
(a) Number of Shares. The number of shares of Common Stock
to which an Option relates shall be determined by the Committee and
specified in the related Stock Option Agreement.
(b) Type of Option. Each Stock Option Agreement shall
specify the type of Option granted and evidenced thereby, i.e.,
whether the Option is an Incentive Stock Option or a Nonqualified
Stock Option.
(c) Date of Grant; Exercise Period. The date of grant of any
Option shall be the date on which the Committee shall award the Option
(or the earlier date, if applicable, that the Board specifically
approves such grant) if an immediate grant of such Option is
contemplated, or the date contemplated as the date of grant if the
Committee imposes a condition on the granting of such Option. Options
granted under the Plan shall be for such periods as may be determined
by the Committee and set forth in the related Stock Option Agreements,
subject to the provisions of Section 10 hereof regarding early
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termination upon the occurrence of certain events and subject to the
further provisions of this paragraph (c). The exercise period of an
Incentive Stock Option shall not exceed ten (10) years from the date
of grant of such Option; provided, however, that in the case of an
Incentive Stock Option granted to a Ten Percent Shareholder, such
period shall not exceed five (5) years from the date of grant.
Subject to the further provisions of this paragraph (c)
regarding Incentive Stock Options, the Committee shall have authority
to prescribe any Stock Option Agreement that the Option evidenced
thereby may be exercised in full or in part as to any number of shares
subject thereto at any time or from time to time during the term of
the Option, or in such installments at such times during said term as
the Committee may prescribe. The aggregate Fair Market Value
(determined at the time an Incentive Stock Option is granted) of the
Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by an Optionee during any calendar year
(under the Plan and all other plans of the Company and its Parent (if
any) and Subsidiaries) shall not exceed $100,000.
Except as otherwise provided in Section 10 of this Plan, an
Option may not be exercised in whole or in part unless the Optionee
is, at the time or such exercise, an employee of the Company or a
Subsidiary.
(d) Option Price. The Option Price per share of the Common
Stock subject to an Option granted under the Plan shall be determined
by the Committee at the time the Option is granted, and shall be
subject to the following conditions:
(i) Nonqualified Stock Option Price - The Option
Price per share of Common Stock subject to a Nonqualified
Stock Option may be less than the Fair Market Value per share
of the Common Stock on the date of grant, but shall not be
less than the par value per share of Common Stock.
(ii) Incentive Stock Options - The Option Price per
share of Common Stock subject to an Incentive Stock Option
shall not be less than the greater of (a) 100% of the Fair
Market Value per share of the Common Stock on the date of
grant, or (b) the par value per share of the Common Stock;
provided, however, that in the case of an
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Incentive Stock Option granted to a Ten Percent Shareholder,
the Option Price per share shall not be less than the greater
of (x) 110% of the Fair Market Value per share of Common Stock
on the date of grant, or (y) the par value per share of the
Common Stock.
(e) Vesting Provisions. Unless otherwise specified
by the Committee, all Nonqualified Options shall:
(i) vest ratably over a four year period, and
(ii) require that shares of Common Stock received
upon the exercise of options, which vest after the first year,
regardless of whether such Options are registered with the
Securities and Exchange Commission, be held by such holder for
a period equal to the vesting date with respect to the second
set of options; provided however, such shares may be pledged
to a bank or held in a margin account by the Holder.
Section 8. Method of Exercise: Payment of Option Price
(a) Method of Exercise. An Option may be exercised as to any
or all full shares of Common Stock as to which the Option has become
exercisable in accordance with the terms of the related Stock Option
Agreement and the provisions of this Plan by delivering to the Company
written notice of such exercise in the manner hereinafter specified in
Section 19; provided, however, that an Option may not be exercised at
any one time as to less than 1,000 shares (or such number of shares as
to which the Option is then exercisable if such number of shares is
less than 1,000 shares). Such written notice shall specify the number
of shares of Common Stock with respect to which the Option is being
exercised and shall be accompanied by payment in full of the Option
Price for such shares. The date of exercise of an Option or portion
thereof shall be the date of receipt by the Company of such written
notice as determined in accordance with the provisions of Section 19
of the Plan.
(b) Payment of Option Price. Payment for shares purchased
upon exercise of an Option may be made
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(i) in cash (including a certified check, bank draft
or money order), or
(ii) with the approval of the Committee, by
delivering to the Company shares of Common Stock already owned
by the Optionee ("Previously Held Shares") having a Fair
Market Value (determined as of the day preceding the date on
which the option is exercised) equal to the cash Option Price
of the shares of Common Stock as to which the Option is being
exercised, or
(iii) with the approval of the Committee, by a
combination of the methods described in (i) and (ii) above, or
(iv) with the approval of the Committee, by any
other method or in any other form authorized by the Committee
and reflected in the related Stock Option Agreement or in any
written notice relative thereto as may be from time to time
delivered by the Committee to the Optionee.
Section 9. Surrender Rights
(a) Grant of Surrender Rights. The Committee shall have the
authority to grant Surrender Rights to Optionees with respect to all
or any portion of an Option (hereinafter a "Related Option"). If the
Related Option is a Nonqualified Stock Option, a Surrender Right may
be granted either at the time the Related Option is granted or at any
time thereafter prior to the exercise, termination or cancellation of
such Related Option. If the Related Option is an Incentive Stock
Option, a Surrender Right may be granted only at the time the Related
Option is granted. Surrender Rights shall be evidenced either by the
Stock Option Agreement entered into in connection with the grant of
the Related Option or by a separate agreement between the Company and
an Optionee.
(b) Exercises of Surrender Rights. A Surrender Right shall
entitle the Optionee to surrender to the Company for cancellation all
or a portion of the Related Option and to receive in payment therefor
that number of shares of Common Stock (rounded to the nearest whole
number) having an aggregate
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Fair Market Value equal to the excess, if any, of that Fair Market
Value of the shares of Common Stock subject to the Related Option or
portion thereof surrendered over the aggregate Option Price of the
shares of Common Stock subject to the Related Option or portion
thereof surrendered. The Fair Market Value of the shares covered by
the surrendered portion of a Related Option shall be determined as of
the day preceding the date of the exercise of the Surrender Right, and
any shares of Common Stock delivered by the Company in payment
pursuant to this Section 9 shall be valued at their Fair Market Value
on the day preceding the date of such exercise.
A Surrender Right shall be exercisable only at the same time
or times and to the same extent and subject to the same conditions as
the Related Option, except that the Committee may prescribe additional
conditions and limitations on the exercise of a Surrender Right. In
addition, in the case of a Surrender Right granted in respect of an
Incentive Stock Option, such Surrender Right shall be exercisable only
when the Fair Market Value per share of Common Stock exceeds the
Option Price per share. A Surrender Right shall be exercisable only
by delivering written notice to the Company of such exercise in the
manner hereinafter specified in Section 19. The date of exercise of a
Surrender Right or portion thereof shall be the date of receipt by the
Company of such notice as determined in accordance with the provisions
of Section 19 of the Plan.
(c) Effect of Exercise of Surrender Right or Related Option.
Upon the exercise of a Surrender Right, the Related Option shall cease
to be exercisable to the extent of the shares of Common Stock with
respect to which such Surrender Right is exercised, but shall be
considered to have been exercised to that extent for purposes of
determining the number of shares of Common Stock available for the
grant of further Options pursuant to the Plan. Upon the exercise or
termination of a Related Option, the Surrender Right with respect to
such Related Option shall terminate to the extent of the shares of
Common Stock with respect to which the Related Option was exercised or
terminated.
Section 10. Death, Disability or Other Termination of Employment
(a) Death. In the event an Optionee dies (i) while in the
employ of the Company or a Subsidiary or (ii) within three (3) months
of the
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termination of such employment (other than termination for cause or
voluntary termination without the consent of the Company or the
Subsidiary, as the case may be), his Option may be exercised, solely
to the extent that the Optionee was entitled to exercise the Option at
the date of his death or, if earlier, the date of his termination, by
the person or persons to whom Optionee's rights under the Option shall
pass by will or the laws of descent and distribution, at any time or
from time to time within one (l) year after the date of Optionee's
death or prior to the expiration of the period for which the Option
was granted, whichever is the shorter period.
(b) Disability. In the event an Optionee's employment by the
Company or a Subsidiary is terminated because of the Optionee's
permanent disability, the Optionee may exercise his Option, solely to
the extent that he was entitled to do so at the date of termination of
his employment, at any time or from time to time within one (l) year
after the date of such termination of employment or prior to the
expiration of the period for which the Option was granted, whichever
is the shorter period.
(c) Other Termination of Employment. In the event the
Optionee's employment by the Company or a Subsidiary is terminated
other than by death or permanent disability as provided by paragraphs
(a) and (b), respectively, of this Section 10 and other than for cause
or by the voluntary action of the Optionee without the consent of the
Company or Subsidiary employing the Optionee, the Optionee may
exercise his Option, solely to the extent that he was entitled to do
so at the date of termination of his employment, at any time or from
time to time within ninety (90) days after the date of such
termination of employment or prior to the expiration of the period for
which the Option was granted, whichever is the shorter period. In the
event the Optionee's employment by the Company or a Subsidiary is
terminated for cause or by the voluntary action of the Optionee
without the consent of the Company or Subsidiary employing the
Optionee, his Option shall terminate at the date of termination of his
employment. Notwithstanding the foregoing, the Committee may, in its
sole discretion, provide for a later exercise after the employment
relationship is concluded.
(d) Committee Discretion. Notwithstanding the provisions of
paragraphs (a), (b) or (c) of this Section 10, the Committee, in its
sole and absolute discretion, may establish different terms and
conditions pertaining to
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the effect of death, disability or other termination of employment to
the extent permitted by applicable federal and state law.
(e) Failure to Exercise. To the extent an Option or any
portion thereof is not exercised within the limited period provided in
paragraphs (a), (b) Optionee who is an officer of the Company or is
otherwise subject to Section 16 of the 1934 Act, the Committee may, in
its absolute discretion at the time of the granting of an Option or
Surrender Right or the exercise thereof, make such provisions as may
be necessary to assure compliance with Rule 16b-3 under the 1934 Act.
Section 11. Notices
Whenever any notice is required or permitted to be given under the
Plan or any Stock Option Agreement, such notice must be in writing and
personally delivered or sent by courier or by mail. Any such notice shall be
deemed effectively given or delivered upon personal delivery or twenty-four
hours after delivery to a courier service which guarantees overnight delivery
or five (5) days after deposit with the U.S. Post Office, by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
person who is to receive such notice at the address which such person has
theretofore specified by written notice delivered in accordance here with. The
Company or an Optionee may change, at any time and from time to time, by
written notice to the other, the address which it or he had theretofore
specified for receiving notices. Until changed in accordance herewith, the
Company and each Optionee shall specify as its or his address for receiving
notices the address set forth in the Stock Option Agreement pertaining to the
shares of Common Stock to which such notice relates.
Section 12. Amendment, Suspension of Termination of the Plan
The Plan may be wholly or partially amended or otherwise
modified, suspended or terminated at any time or from time to time by the Board
or the Committee; provided, however, that the Board or the Committee shall not,
without the approval of the holders of a majority of the outstanding shares of
the Company's stock entitled to vote thereon, effect any change to the Plan
(other than through adjustment for changes in capitalization as herein before
provided by Section 14) which would
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(i) materially increase the aggregate number of
shares as to which Options may be granted under the Plan;
(ii) materially increase the benefits accruing to
Optionee under the Plan;
(iii) materially modify the requirements as to
eligibility for participation in the Plan.
Further, no such amendment, suspension or termination, other than adjustments
for changes in capitalization as provided in Section 14 hereof, shall adversely
affect or impair any outstanding Option without the written consent of the
Optionee affected thereby.
Section 13. Effective Date: Duration
(a) Effective Date. The Plan shall become effective upon the
date of its adoption by the Board provided that, within twelve months
after the date the Plan is adopted by the Board, the Plan is approved
and adopted by the holders of a majority of the outstanding shares of
stock of the Company entitled to vote thereon. If the Plan shall not
be subsequently approved and adopted by the shareholders of the
Company as specified herein, the Plan and all Options granted
hereunder shall be null and void and any obligation pursuant to the
subsequent exercise (or surrender pursuant to Section 9 hereof) of any
Option previously granted shall not be binding upon the Company. To
the extent an Optionee has ready purchased and paid for any shares
received under the Plan, the Optionee may retain the ownership of said
shares; however, the prior exercise of said Option shall not
constitute the exercise of an Incentive Stock Option.
(b) Duration. Unless earlier terminated by the Board or the
Committee pursuant to the provisions of the Plan, the Plan shall
terminate on the tenth anniversary of its effective date as
hereinbefore specified. No Options shall be granted under the Plan
after such termination date.
Section 14. Governing Law
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This Plan and all rights hereunder shall be construed and
interpreted in accordance with the laws of the State of California, to the
extent not superseded by the laws of the United States.
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