{"id":38257,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/1996-stock-option-plan-intraware-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"1996-stock-option-plan-intraware-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/1996-stock-option-plan-intraware-inc.html","title":{"rendered":"1996 Stock Option Plan &#8211; Intraware Inc."},"content":{"rendered":"<pre>                                   INTRAWARE, INC.\n\n                                1996 STOCK OPTION PLAN\n\n\n     1.   PURPOSES OF THE PLAN.  The purposes of this Stock Option Plan are to\nattract and retain the best available personnel for positions of substantial\nresponsibility, to provide additional incentive to Employees and Consultants of\nthe Company and its Subsidiaries and to promote the success of the Company's\nbusiness.  Options granted under the Plan may be incentive stock options (as\ndefined under Section 422 of the Code) or nonstatutory stock options, as\ndetermined by the Administrator at the time of grant of an option and subject to\nthe applicable provisions of Section 422 of the Code, as amended, and the\nregulations promulgated thereunder.  \n\n     2.   DEFINITIONS.  As used herein, the following definitions shall apply:\n\n          (a)  'ADMINISTRATOR' means the Board or any of its Committees\nappointed pursuant to Section 4 of the Plan.\n\n          (b)  'BOARD' means the Board of Directors of the Company.\n\n          (c)  'CODE' means the Internal Revenue Code of 1986, as amended.\n\n          (d)  'COMMITTEE'  means a Committee appointed by the Board of\nDirectors in accordance with Section 4 of the Plan.\n\n          (e)  'COMMON STOCK' means the Common Stock of the Company.\n\n          (f)  'COMPANY' means Intraware, Inc., a Delaware corporation.\n\n          (g)  'CONSULTANT' means any person who is engaged by the Company or\nany Parent or Subsidiary to render consulting or advisory services and is\ncompensated for such services, and any director of the Company whether\ncompensated for such services or not.  If and in the event the Company registers\nany class of any equity security pursuant to the Exchange Act, the term\nConsultant shall thereafter not include directors who are not compensated for\ntheir services or are paid only a director's fee by the Company.\n\n          (h)  'CONTINUOUS STATUS AS AN EMPLOYEE OR CONSULTANT' means that the\nemployment or consulting relationship with the Company, any Parent or Subsidiary\nis not interrupted or terminated.  Continuous Status as an Employee or\nConsultant shall not be considered interrupted in the case of (i) any leave of\nabsence approved by the Company or (ii) transfers between locations of the\nCompany or between the Company, its Parent, any Subsidiary, or any successor.  A\nleave of absence approved by the Company shall include sick leave, military\nleave, or any other personal leave.  For purposes of Incentive Stock Options, no\nsuch leave may exceed 90 days, unless reemployment upon expiration of \nsuch leave is guaranteed by statute or contract, including Company policies.  If\nreemployment upon expiration of a leave of absence approved by the Company is\nnot so guaranteed, \n\n\n\n\non the 91st day of such leave any Incentive Stock Option held by the Optionee\nshall cease to be treated as an Incentive Stock Option and shall be treated for\ntax purposes as a Nonstatutory Stock Option.\n\n          (i)  'EMPLOYEE' means any person, including officers and directors,\nemployed by the Company or any Parent or Subsidiary of the Company.  The payment\nof a director's fee by the Company shall not be sufficient to constitute\n'employment' by the Company.\n\n          (j)  'EXCHANGE ACT' means the Securities Exchange Act of 1934, as\namended.\n\n          (k)  'FAIR MARKET VALUE' means, as of any date, the value of Common\nStock determined as follows:\n\n               (i)   If the Common Stock is listed on any established stock\nexchange or a national market system, including without limitation the Nasdaq\nNational Market of the National Association of Securities Dealers, Inc.\nAutomated Quotation ('NASDAQ') System, its Fair Market Value shall be the\nclosing sales price for such stock (or the closing bid, if no sales were\nreported) as quoted on such exchange or system for the last market trading day\nprior to the time of determination, as reported in THE WALL STREET JOURNAL or\nsuch other source as the Administrator deems reliable;\n\n               (ii)  If the Common Stock is quoted on the NASDAQ System (but\nnot on the Nasdaq National Market thereof) or regularly quoted by a recognized\nsecurities dealer but selling prices are not reported, its Fair Market Value\nshall be the mean between the high bid and low asked prices for the Common Stock\non the last market trading day prior to the day of determination, or;\n\n               (iii) In the absence of an established market for the Common\nStock, the Fair Market Value thereof shall be determined in good faith by the\nAdministrator.\n\n          (l)  'INCENTIVE STOCK OPTION' means an Option intended to qualify as\nan incentive stock option within the meaning of Section 422 of the Code.\n\n          (m)  'NONSTATUTORY STOCK OPTION' means an Option not intended to\nqualify as an Incentive Stock Option.\n\n          (n)  'OFFICER' means a person who is an officer of the Company\nwithin the meaning of Section 16 of the Exchange Act and the rules and\nregulations promulgated thereunder.\n\n          (o)  'OPTION' means a stock option granted pursuant to the Plan.\n\n          (p)  'OPTIONED STOCK' means the Common Stock subject to an Option.\n\n          (q)  'OPTIONEE' means an Employee or Consultant who receives an\nOption.\n\n\n                                         -2-\n\n\n          (r)  'PARENT' means a 'parent corporation', whether now or hereafter\nexisting, as defined in Section 424(e) of the Code.\n\n          (s)  'PLAN' means this 1996 Stock Option Plan.\n\n          (t)  'SHARE' means a share of the Common Stock, as adjusted in\naccordance with Section 11 below.\n\n          (u)  'SUBSIDIARY' means a 'subsidiary corporation', whether now or\nhereafter existing, as defined in Section 424(f) of the Code.\n\n     3.   STOCK SUBJECT TO THE PLAN.  Subject to the provisions of Section 11 \nof the Plan, the maximum aggregate number of shares which may be optioned and \nsold under the Plan is 3,100,000 shares of Common Stock.  The shares may be \nauthorized, but unissued, or reacquired Common Stock.\n\n          If an Option should expire or become unexercisable for any reason\nwithout having been exercised in full, the unpurchased Shares which were subject\nthereto shall, unless the Plan shall have been terminated, become available for\nfuture grant under the Plan.\n\n     4.   ADMINISTRATION OF THE PLAN.\n\n          (a)  INITIAL PLAN PROCEDURE.  Prior to the date, if any, upon which\nthe Company becomes subject to the Exchange Act, the Plan shall be administered\nby the Board or a committee appointed by the Board.\n\n          (b)  PLAN PROCEDURE AFTER THE DATE, IF ANY, UPON WHICH THE COMPANY\nBECOMES SUBJECT TO THE EXCHANGE ACT.\n\n               (i)   ADMINISTRATION WITH RESPECT TO DIRECTORS AND OFFICERS. \nWith respect to grants of Options to Employees who are also officers or\ndirectors of the Company, the Plan shall be administered by (A) the Board if the\nBoard may administer the Plan in compliance with Rule 16b-3 promulgated under\nthe Exchange Act or any successor thereto ('Rule 16b-3') with respect to a plan\nintended to qualify thereunder as a discretionary plan, or (B) a committee\ndesignated by the Board to administer the Plan, which committee shall be\nconstituted in such a manner as to permit the Plan to comply with Rule 16b-3\nwith respect to a plan intended to qualify thereunder as a discretionary plan. \nOnce appointed, such Committee shall continue to serve in its designated\ncapacity until otherwise directed by the Board.  From time to time the Board may\nincrease the size of the Committee and appoint additional members thereof,\nremove members (with or without cause) and appoint new members in substitution\ntherefor, fill vacancies, however caused, and remove all members of the\nCommittee and thereafter directly administer the Plan, all to the extent\npermitted by Rule 16b-3 with respect to a plan intended to qualify thereunder as\na discretionary plan.\n\n\n                                         -3-\n\n\n               (ii)  MULTIPLE ADMINISTRATIVE BODIES.  If permitted by Rule\n16b-3, the Plan may be administered by different bodies with respect to\ndirectors, non-director officers and Employees who are neither directors nor\nofficers.\n\n               (iii) ADMINISTRATION WITH RESPECT TO CONSULTANTS AND OTHER\nEMPLOYEES.  With respect to grants of Options to Employees or Consultants who\nare neither directors nor officers of the Company, the Plan shall be\nadministered by (A) the Board or (B) a committee designated by the Board, which\ncommittee shall be constituted in such a manner as to satisfy the legal\nrequirements relating to the administration of incentive stock option plans, if\nany, of California corporate and securities laws, of the Code, and of any\napplicable stock exchange (the 'Applicable Laws').  Once appointed, such\nCommittee shall continue to serve in its designated capacity until otherwise\ndirected by the Board.  From time to time the Board may increase the size of the\nCommittee and appoint additional members thereof, remove members (with or\nwithout cause) and appoint new members in substitution therefor, fill vacancies,\nhowever caused, and remove all members of the Committee and thereafter directly\nadminister the Plan, all to the extent permitted by the Applicable Laws.\n\n          (c)  POWERS OF THE ADMINISTRATOR.  Subject to the provisions of the\nPlan and, in the case of a Committee, the specific duties delegated by the Board\nto such Committee, and subject to the approval of any relevant authorities,\nincluding the approval, if required, of any stock exchange upon which the Common\nStock is listed, the Administrator shall have the authority, in its discretion:\n\n               (i)    to determine the Fair Market Value of the Common Stock, in\naccordance with Section 2(k) of the Plan;\n\n               (ii)   to select the Consultants and Employees to whom Options\nmay from time to time be granted hereunder;\n\n               (iii)  to determine whether and to what extent Options are\ngranted hereunder;\n\n               (iv)   to determine the number of shares of Common Stock to be\ncovered by each such award granted hereunder;\n\n               (v)    to approve forms of agreement for use under the Plan;\n\n               (vi)   to determine the terms and conditions of any award granted\nhereunder;\n\n               (vii)  to determine whether and under what circumstances an\nOption may be settled in cash under subsection 9(f) instead of Common Stock;\n\n               (viii) to amend the terms of any Option previously granted\nunder the Plan; and\n\n                                         -4-\n\n\n\n               (ix)  to construe and interpret the terms of the Plan and awards\ngranted pursuant to the Plan.\n\n          (d)  EFFECT OF ADMINISTRATOR'S DECISION.  All decisions,\ndeterminations and interpretations of the Administrator shall be final and\nbinding on all Optionees and any other holders of any Options.\n\n     5.   ELIGIBILITY.\n\n          (a)  Nonstatutory Stock Options may be granted to Employees and\nConsultants.  Incentive Stock Options may be granted only to Employees.  An\nEmployee or Consultant who has been granted an Option may, if otherwise\neligible, be granted additional Options. \n\n          (b)  Each Option shall be designated in the written option agreement\nas either an Incentive Stock Option or a Nonstatutory Stock Option.  However,\nnotwithstanding such designations, to the extent that the aggregate Fair Market\nValue:\n\n               (i)   of Shares subject to an Optionee's Incentive Stock Options\ngranted by the Company, any Parent or Subsidiary, which\n\n               (ii)  become exercisable for the first time during any calendar\nyear (under all plans of the Company or any Parent or Subsidiary) \n\nexceeds $100,000, such excess Options shall be treated as Nonstatutory Stock\nOptions.  For purposes of this Section 5(b), Incentive Stock Options shall be\ntaken into account in the order in which they were granted, and the Fair Market\nValue of the Shares shall be determined as of the time the Option with respect\nto such Shares is granted.\n\n          (c)  The Plan shall not confer upon any Optionee any right with\nrespect to continuation of employment or consulting relationship with the\nCompany, nor shall it interfere in any way with his or her right or the\nCompany's right to terminate his or her employment or consulting relationship at\nany time, with or without cause.\n\n          (d)  Upon the Company or a successor corporation issuing any class of\ncommon equity securities required to be registered under Section 12 of the\nExchange Act or upon the Plan being assumed by a corporation having a class of\ncommon equity securities required to be registered under Section 12 of the\nExchange Act, the following limitations shall apply to grants of Options to\nEmployees:\n\n               (i)   No Employee shall be granted, in any fiscal year of the\nCompany, Options to purchase more than 1,000,000 Shares.\n\n               (ii)  The foregoing limitations shall be adjusted\nproportionately in connection with any change in the Company's capitalization as\ndescribed in Section 11. \n\n\n                                         -5-\n\n\n\n               (iii) If an Option is canceled in the same fiscal year of the\nCompany in which it was granted (other than in connection with a transaction\ndescribed in Section 11), the canceled Option will be counted against the limit\nset forth in Section 5(d)(i).  For this purpose, if the exercise price of an\nOption is reduced, the transaction will be treated as a cancellation of the\nOption and the grant of a new Option.\n\n     6.   TERM OF PLAN.  The Plan shall become effective upon the earlier to\noccur of its adoption by the Board of Directors or its approval by the\nshareholders of the Company, as described in Section 17 of the Plan.  It shall\ncontinue in effect for a term of ten (10) years unless sooner terminated under\nSection 13 of the Plan.\n\n     7.   TERM OF OPTION.  The term of each Option shall be the term stated in\nthe Option Agreement; provided, however, that the term shall be no more than\nten (10) years from the date of grant thereof.  However, in the case of an\nIncentive Stock Option granted to an Optionee who, at the time the Option is\ngranted, owns stock representing more than ten percent (10%) of the voting power\nof all classes of stock of the Company or any Parent or Subsidiary, the term of\nthe Option shall be five (5) years from the date of grant thereof or such\nshorter term as may be provided in the Option Agreement.\n\n     8.   OPTION EXERCISE PRICE AND CONSIDERATION.\n\n          (a)  The per share exercise price for the Shares to be issued pursuant\nto exercise of an Option shall be such price as is determined by the Board, but\nshall be subject to the following:\n\n               (i)   In the case of an Incentive Stock Option\n\n                     (A)  granted to an Employee who, at the time of the grant\nof such Incentive Stock Option, owns stock representing more than ten percent\n(10%) of the voting power of all classes of stock of the Company or any Parent\nor Subsidiary, the per Share exercise price shall be no less than 110% of the\nFair Market Value per Share on the date of grant.\n\n                     (B)  granted to any Employee other than an Employee\ndescribed in the preceding paragraph, the per Share exercise price shall be no\nless than 100% of the Fair Market Value per Share on the date of grant.\n\n               (ii)  In the case of a Nonstatutory Stock Option\n\n                     (A) granted to a person who, at the time of the grant of\nsuch Option, owns stock representing more than ten percent (10%) of the voting\npower of all classes of stock of the Company or any Parent or Subsidiary, the\nper Share exercise price shall be no less than 110% of the Fair Market Value per\nShare on the date of the grant.\n\n\n                                         -6-\n\n\n\n                     (B)  granted to any person, the per Share exercise price\nshall be no less than 85% of the Fair Market Value per Share on the date of\ngrant.\n\n          (b)  The consideration to be paid for the Shares to be issued upon\nexercise of an Option, including the method of payment, shall be determined by\nthe Administrator (and, in the case of an Incentive Stock Option, shall be\ndetermined at the time of grant) and may consist entirely of (1) cash,\n(2) check, (3) promissory note, (4) other Shares which (x) in the case of Shares\nacquired upon exercise of an Option have been owned by the Optionee for more\nthan six months on the date of surrender and (y) have a Fair Market Value on the\ndate of surrender equal to the aggregate exercise price of the Shares as to\nwhich said Option shall be exercised, (5) delivery of a properly executed\nexercise notice together with such other documentation as the Administrator and\nthe broker, if applicable, shall require to effect an exercise of the Option and\ndelivery to the Company of the sale or loan proceeds required to pay the\nexercise price, or (6) any combination of the foregoing methods of payment.  In\nmaking its determination as to the type of consideration to accept, the Board\nshall consider if acceptance of such consideration may be reasonably expected to\nbenefit the Company.\n\n     9.   EXERCISE OF OPTION.\n\n          (a)  PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option\ngranted hereunder shall be exercisable at such times and under such conditions\nas determined by the Board, including performance criteria with respect to the\nCompany and\/or the Optionee, and as shall be permissible under the terms of the\nPlan.\n\n               An Option may not be exercised for a fraction of a Share.\n\n               An Option shall be deemed to be exercised when written notice of\nsuch exercise has been given to the Company in accordance with the terms of the\nOption by the person entitled to exercise the Option and full payment for the\nShares with respect to which the Option is exercised has been received by the\nCompany.  Full payment may, as authorized by the Board, consist of any\nconsideration and method of payment allowable under Section 8(b) of the Plan. \nUntil the issuance (as evidenced by the appropriate entry on the books of the\nCompany or of a duly authorized transfer agent of the Company) of the stock\ncertificate evidencing such Shares, no right to vote or receive dividends or any\nother rights as a shareholder shall exist with respect to the Optioned Stock,\nnotwithstanding the exercise of the Option.  The Company shall issue (or cause\nto be issued) such stock certificate promptly upon exercise of the Option.  No\nadjustment will be made for a dividend or other right for which the record date\nis prior to the date the stock certificate is issued, except as provided in\nSection 11 of the Plan.\n\n               Exercise of an Option in any manner shall result in a decrease in\nthe number of Shares which thereafter may be available, both for purposes of the\nPlan and for sale under the Option, by the number of Shares as to which the\nOption is exercised.\n\n                                         -7-\n\n\n\n          (b)  TERMINATION OF EMPLOYMENT OR CONSULTING RELATIONSHIP.  In the\nevent that an Optionee's Continuous Status as an Employee or Consultant\nterminates (but not in the event of a change of status from Employee to\nConsultant (in which case an Employee's Incentive Stock Option shall\nautomatically convert to a Nonstatutory Stock Option on the ninety-first (91st)\nday following such change of status) or from Consultant to Employee), other than\nupon the Optionee's death or disability, the Optionee may exercise his or her\nOption, but only within such period of time as is determined by the\nAdministrator (but in no event less than thirty (30) days after the date of\ntermination), and only to the extent that the Optionee was entitled to exercise\nit at the date of termination (but in no event later than the expiration of the\nterm of such Option as set forth in the Notice of Grant).  If, at the date of\ntermination, the Optionee is not entitled to exercise his or her entire Option,\nthe Shares covered by the unexercisable portion of the Option shall revert to\nthe Plan.  If, after termination, the Optionee does not exercise his or her\nOption within the time specified by the Administrator, the Option shall\nterminate, and the Shares covered by such Option shall revert to the Plan.\n\n          (c)  DISABILITY OF OPTIONEE.  In the event of termination of an\nOptionee's consulting relationship or Continuous Status as an Employee as a\nresult of his or her disability, Optionee may, but only within six (6) months\nfrom the date of such termination (and in no event later than the expiration\ndate of the term of such Option as set forth in the Option Agreement), exercise\nthe Option to the extent otherwise entitled to exercise it at the date of such\ntermination; provided, however, that if such disability is not a 'disability' as\nsuch term is defined in Section 22(e)(3) of the Code, in the case of an\nIncentive Stock Option such Incentive Stock Option shall automatically convert\nto a Nonstatutory Stock Option on the day three months and one day following\nsuch termination.  To the extent that Optionee is not entitled to exercise the\nOption at the date of termination, or if Optionee does not exercise such Option\nto the extent so entitled within the time specified herein, the Option shall\nterminate, and the Shares covered by such Option shall revert to the Plan.\n\n          (d)  DEATH OF OPTIONEE.  In the event of the death of an Optionee, the\nOption may be exercised at any time within twelve (12) months following the date\nof death (but in no event later than the expiration of the term of such Option\nas set forth in the Notice of Grant), by the Optionee's estate or by a person\nwho acquired the right to exercise the Option by bequest or inheritance, but\nonly to the extent that the Optionee was entitled to exercise the Option at the\ndate of death.  If, at the time of death, the Optionee was not entitled to\nexercise his or her entire Option, the Shares covered by the unexercisable\nportion of the Option shall immediately revert to the Plan.  If, after death,\nthe Optionee's estate or a person who acquired the right to exercise the Option\nby bequest or inheritance does not exercise the Option within the time specified\nherein, the Option shall terminate, and the Shares covered by such Option shall\nrevert to the Plan.\n\n          (e)  RULE 16b-3.  Options granted to persons subject to Section 16(b)\nof the Exchange Act must comply with Rule 16b-3 and shall contain such\nadditional conditions or restrictions as may be required thereunder to qualify\nfor the maximum exemption from Section 16 of the Exchange Act with respect to\nPlan transactions.\n\n                                         -8-\n\n\n          (f)  BUYOUT PROVISIONS.  The Administrator may at any time offer to\nbuy out for a payment in cash or Shares, an Option previously granted, based on\nsuch terms and conditions as the Administrator shall establish and communicate\nto the Optionee at the time that such offer is made.\n\n     10.  NON-TRANSFERABILITY OF OPTIONS.  Options may not be sold, pledged,\nassigned, hypothecated, transferred, or disposed of in any manner other than by\nwill or by the laws of descent or distribution and may be exercised, during the\nlifetime of the Optionee, only by the Optionee.\n\n     11.  ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.\n\n          (a)  CHANGES IN CAPITALIZATION.  Subject to any required action by the\nshareholders of the Company, the number of shares of Common Stock covered by\neach outstanding Option, and the number of shares of Common Stock which have\nbeen authorized for issuance under the Plan but as to which no Options have yet\nbeen granted or which have been returned to the Plan upon cancellation or\nexpiration of an Option, as well as the price per share of Common Stock covered\nby each such outstanding Option, shall be proportionately adjusted for any\nincrease or decrease in the number of issued shares of Common Stock resulting\nfrom a stock split, reverse stock split, stock dividend, combination or\nreclassification of the Common Stock, or any other increase or decrease in the\nnumber of issued shares of Common Stock effected without receipt of\nconsideration by the Company; provided, however, that conversion of any\nconvertible securities of the Company shall not be deemed to have been 'effected\nwithout receipt of consideration.'  Such adjustment shall be made by the Board,\nwhose determination in that respect shall be final, binding and conclusive. \nExcept as expressly provided herein, no issuance by the Company of shares of\nstock of any class, or securities convertible into shares of stock of any class,\nshall affect, and no adjustment by reason thereof shall be made with respect to,\nthe number or price of shares of Common Stock subject to an Option.\n\n          (b)  DISSOLUTION OR LIQUIDATION.  In the event of the proposed\ndissolution or liquidation of the Company, the Board shall notify the Optionee\nat least fifteen (15) days prior to such proposed action.  To the extent it has\nnot been previously exercised, the Option will terminate immediately prior to\nthe consummation of such proposed action.\n\n          (c)  MERGER OR ASSET SALE.  In the event of a merger of the Company\n(other than a merger or consolidation which would result in the voting\nsecurities of the Company outstanding immediately prior thereto continuing to\nrepresent (either by remaining outstanding or by being converted into voting\nsecurities of the surviving entity) at least fifty percent (50%) of the total\nvoting power represented by the voting securities of the Company or such\nsurviving entity outstanding immediately after such merger or consolidation)\nwith or into another corporation, or the sale of substantially all of the assets\nof the Company, each outstanding Option may be assumed or an equivalent option\nor right may be substituted by the successor corporation or a Parent or\nSubsidiary of the successor corporation; provided that, whether or not such\nOptions are so assumed or substituted, each outstanding Option shall become\nvested and exercisable to the extent of the Shares that would have become vested\nand exercisable upon December 31 of the year in which the merger or sale of\nassets is consummated.  If an \n\n\n                                         -9-\n\n\n\nOption becomes vested and exercisable in the event of a merger or sale of assets\nfor that remaining period between the date of the merger or sale of assets and\nDecember 31 of the same year, the Administrator shall notify the Optionee that\nthe Option shall be exercisable for a period of fifteen (15) days from the date\nof such notice, and the Option will terminate upon the expiration of such\nperiod.  For the purposes of this paragraph, the Option shall be considered\nassumed if, following the merger or sale of assets, the option or right confers\nthe right to purchase, for each Share of Optioned Stock subject to the Option\nimmediately prior to the merger or sale of assets, the consideration (whether\nstock, cash, or other securities or property) received in the merger or sale of\nassets by holders of Common Stock for each Share held on the effective date of\nthe transaction (and if holders were offered a choice of consideration, the type\nof consideration chosen by the holders of a majority of the outstanding Shares);\nprovided, however, that if such consideration received in the merger or sale of\nassets was not solely common stock of the successor or its Parent, the\nAdministrator may, with the consent of the successor corporation, provide for\nthe consideration to be received upon the exercise of the Option, for each Share\nof Optioned Stock subject to the Option, to be solely common stock of the\nsuccessor corporation or its Parent equal in fair market value to the per share\nconsideration received by holders of Common Stock in the merger or sale of\nassets.\n\n     12.  TIME OF GRANTING OPTIONS.  The date of grant of an Option shall, for\nall purposes, be the date on which the Administrator makes the determination\ngranting such Option, or such other date as is determined by the Board.  Notice\nof the determination shall be given to each Employee or Consultant to whom an\nOption is so granted within a reasonable time after the date of such grant.\n\n     13.  AMENDMENT AND TERMINATION OF THE PLAN.\n\n          (a)  AMENDMENT AND TERMINATION.  The Board may at any time amend,\nalter, suspend or discontinue the Plan, but no amendment, alteration, suspension\nor discontinuation shall be made which would impair the rights of any Optionee\nunder any grant theretofore made, without his or her consent.  In addition, to\nthe extent necessary and desirable to comply with Rule 16b-3 under the Exchange\nAct or with Section 422 of the Code (or any other applicable law or regulation,\nincluding the requirements of the NASD or an established stock exchange), the\nCompany shall obtain shareholder approval of any Plan amendment in such a manner\nand to such a degree as required.\n\n          (b)  EFFECT OF AMENDMENT OR TERMINATION.  Any such amendment or\ntermination of the Plan shall not affect Options already granted, and such\nOptions shall remain in full force and effect as if this Plan had not been\namended or terminated, unless mutually agreed otherwise between the Optionee and\nthe Board, which agreement must be in writing and signed by the Optionee and the\nCompany.\n\n     14.  CONDITIONS UPON ISSUANCE OF SHARES.  Shares shall not be issued\npursuant to the exercise of an Option unless the exercise of such Option and the\nissuance and delivery of such Shares pursuant thereto shall comply with all\nrelevant provisions of law, including, without limitation, the Securities Act of\n1933, as amended, the Exchange Act, the rules and regulations promulgated\nthereunder, and the \n\n                                         -10-\n\n\nrequirements of any stock exchange upon which the Shares may then be listed, and\nshall be further subject to the approval of counsel for the Company with respect\nto such compliance.\n\n          As a condition to the exercise of an Option, the Company may require\nthe person exercising such Option to represent and warrant at the time of any\nsuch exercise that the Shares are being purchased only for investment and\nwithout any present intention to sell or distribute such Shares if, in the\nopinion of counsel for the Company, such a representation is required by any of\nthe aforementioned relevant provisions of law.\n\n     15.  RESERVATION OF SHARES.  The Company, during the term of this Plan,\nwill at all times reserve and keep available such number of Shares as shall be\nsufficient to satisfy the requirements of the Plan.\n\n          The inability of the Company to obtain authority from any regulatory\nbody having jurisdiction, which authority is deemed by the Company's counsel to\nbe necessary to the lawful issuance and sale of any Shares hereunder, shall\nrelieve the Company of any liability in respect of the failure to issue or sell\nsuch Shares as to which such requisite authority shall not have been obtained.\n\n     16.  AGREEMENTS.  Options shall be evidenced by written agreements in such\nform as the Board shall approve from time to time.\n\n     17.  SHAREHOLDER APPROVAL.  Continuance of the Plan shall be subject to\napproval by the shareholders of the Company within twelve (12) months before or\nafter the date the Plan is adopted.  Such shareholder approval shall be obtained\nin the degree and manner required under applicable state and federal law and the\nrules of any stock exchange upon which the Common Stock is listed.\n\n     18.  INFORMATION TO OPTIONEES AND PURCHASERS.  The Company shall provide to\neach Optionee, not less frequently than annually, copies of annual financial\nstatements.  The Company shall also provide such statements to each individual\nwho acquires Shares pursuant to the Plan while such individual owns such Shares.\nThe Company shall not be required to provide such statements to key employees\nwhose duties in connection with the Company assure their access to equivalent\ninformation.\n\n                                         -11-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7907],"corporate_contracts_industries":[],"corporate_contracts_types":[9539,9545],"class_list":["post-38257","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-intraware-inc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__esp"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38257","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38257"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38257"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38257"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38257"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}