-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OSkOIOUMIOvkU0zz1/6Px3dX3GhV2YRErkrMXGKjF+SvszhRFdAGsd53hIzqhAaJ iW8n+fMqQf6XxmIylSv/AQ== 0000950149-02-001050.txt : 20020516 0000950149-02-001050.hdr.sgml : 20020516 20020516165058 ACCESSION NUMBER: 0000950149-02-001050 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020516 EFFECTIVENESS DATE: 20020516 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OCULAR SCIENCES INC /DE/ CENTRAL INDEX KEY: 0000882484 STANDARD INDUSTRIAL CLASSIFICATION: OPHTHALMIC GOODS [3851] IRS NUMBER: 942985696 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-88468 FILM NUMBER: 02655259 BUSINESS ADDRESS: STREET 1: 1855 GATEWAY BLVD STREET 2: SUITE 700 CITY: CONCORD STATE: CA ZIP: 94520 BUSINESS PHONE: 1-925-969-7000 MAIL ADDRESS: STREET 1: 1855 GATEWAY BLVD STREET 2: SUITE 700 CITY: CONCORD STATE: CA ZIP: 94520 FORMER COMPANY: FORMER CONFORMED NAME: O S I CORP DATE OF NAME CHANGE: 19970506 S-8 1 f81331s-8.txt OCULAR SCIENCES FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 16, 2002 REGISTRATION NO. 333- ________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- OCULAR SCIENCES, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 94-2985696 (STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.) ---------- 1855 GATEWAY BOULEVARD, SUITE 700 CONCORD, CALIFORNIA 94520 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES INCLUDING ZIP CODE) ---------- OCULAR SCIENCES, INC. AMENDED AND RESTATED 1997 DIRECTORS STOCK OPTION PLAN (FULL TITLE OF THE PLAN) ---------- SIDNEY B. LANDMAN COPY TO: VICE PRESIDENT, FINANCE, CHIEF JEFFREY T. PERO, ESQ. FINANCIAL OFFICER, SECRETARY AND LATHAM & WATKINS TREASURER 505 MONTGOMERY STREET OCULAR SCIENCES, INC. SUITE 1900 1855 GATEWAY BOULEVARD, SUITE 700 SAN FRANCISCO, CALIFORNIA 94111 CONCORD, CALIFORNIA 94520 (415) 391-0600 (925) 969-7000 ---------- (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE FOR AGENT FOR SERVICE) ---------- - -------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE - --------------------------------------------------------------------------------
PROPOSED MAXIMUM MAXIMUM AMOUNT OF AMOUNT OFFERING AGGREGATE AMOUNT OF TITLE OF SECURITIES TO BE REGISTERED TO BE PRICE OFFERING REGISTRATION REGISTERED(1) PER SHARE(2) PRICE(2) FEE(2) - ------------------------------------------------------------------------------------------------------ Common Stock, $0.001 par value, reserved for issuance upon exercise of options granted under the Plan..................... 300,000 $25.24 $7,572,000.00 $696.62 - ------------------------------------------------------------------------------------------------------
(1) This registration statement shall also cover any additional shares of Common Stock which become issuable under the Ocular Sciences, Inc. Amended and Restated 1997 Directors Option Plan, by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock of Ocular Sciences, Inc. (2) Estimated in accordance with Rule 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee. The computation with respect to these unissued shares is based upon the average of the high and low sale prices of the Common Stock as reported on the Nasdaq National Market on May 14, 2002. ================================================================================ PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The information called for in Part I of Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT By a Registration Statement on Form S-8 filed with the Securities and Exchange Commission on August 6, 1997, Registration No. 333-32999, we previously registered 300,000 shares of our common stock, par value $0.001 per share, reserved for issuance from time to time in connection with our 1997 Directors Stock Option Plan. By a Registration Statement on Form S-8 filed with the Securities and Exchange Commission on June 7, 2001, Registration No. 333-62480, we registered an additional 100,000 shares of our common stock, reserved for issuance from time to time in connection with the 1997 Directors Stock Option Plan, as amended. At our Annual Meeting of Shareholders on April 25, 2002, our shareholders approved a further amendment to our Amended and Restated 1997 Directors Stock Option Plan, increasing the number of shares of common stock that are authorized and reserved for issuance under the plan by 300,000 shares. By this Registration Statement, we are registering the additional 300,000 shares of common stock issuable under our Amended and Restated 1997 Directors Stock Option Plan, as further amended. We have filed the following documents with the Securities and Exchange Commission which are hereby incorporated by reference in this Registration Statement: 1. Our Registration Statement on Form S-8 (File No. 333-32999) filed on August 6, 1997; 2. Our Registration Statement on Form S-8 (File No. 333-62480), filed on June 7, 2001; 3. Our Annual Report on Form 10-K for the year ended December 31, 2001 filed pursuant to Section 13(a) of the Securities and Exchange Act of 1934, as amended (the "Exchange Act") (including items incorporated by reference from our Proxy Statement pursuant to Section 14(a) of the Exchange Act for our 2002 Annual Meeting of Stockholders); 4. Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2002; 5. The description of our common stock contained in our Registration Statement on Form 8-A filed on May 30, 1997, including any amendment or report filed for the purpose of updating such description; and 6. All documents filed by us with the Securities and Exchange Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be part of this Registration Statement from the date of the filing of such documents. ITEM 8. EXHIBITS.
Exhibit Number Description - ------ ----------- 5.1 Opinion of Latham & Watkins. 23.1 Consent of Latham & Watkins (included in Exhibit 5.1).
2 23.2 Consent of KPMG LLP. 24.1 Power of Attorney (included on the signature page of this Registration Statement). 99.1 Ocular Sciences, Inc. Amended and Restated 1997 Directors Stock Option Plan, as amended.
3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized in the City of Concord, State of California, on this 16th day of May, 2002. OCULAR SCIENCES, INC. /s/ Sidney B. Landman ------------------------------ Sidney B. Landman Vice President, Finance, Chief Financial Officer, Secretary and Treasurer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints jointly and severally, Stephen J. Fanning and Sidney B. Landman and each of them, his attorney-in-fact, each with the power of substitution, for him in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments) and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the foregoing, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - --------- ----- ---- PRINCIPAL EXECUTIVE OFFICER: /s/ Stephen J. Fanning Chief Executive Officer, President May 16, 2002 - ------------------------ and Director Stephen J. Fanning PRINCIPAL FINANCIAL OFFICER AND PRINCIPAL ACCOUNTING OFFICER: /s/ Sidney B. Landman Vice President, Finance, Chief Financial May 16, 2002 - ------------------------ Officer, Secretary and Treasurer Sidney B. Landman ADDITIONAL DIRECTORS: /s/ John D. Fruth Chairman of the Board of Directors May 16, 2002 - ------------------------ John D. Fruth /s/ Edgar J. Cummings Director May 16, 2002 - ------------------------ Edgar J. Cummings /s/ Terence M. Fruth Director May 16, 2002 - ---------------------- Terence M. Fruth /s/ William R. Grant Director May 16, 2002 - ---------------------- William R. Grant
4 /s/ Francis R. Tunney Director May 16, 2002 - ---------------------- Francis R. Tunney /s/ Terrance H. Gregg Director May 16, 2002 - ---------------------- Terrance H. Gregg
5 EXHIBIT INDEX Exhibit Number Description - ------ ----------- 5.1 Opinion of Latham & Watkins. 23.1 Consent of Latham & Watkins (included in Exhibit 5.1). 23.2 Consent of KPMG LLP. 24.1 Power of Attorney (included on the signature page of this Registration Statement). 99.1 Ocular Sciences, Inc. Amended and Restated 1997 Directors Stock Option Plan, as amended.
EX-5.1 3 f81331ex5-1.txt EXHIBIT 5.1 Exhibit 5.1 [LATHAM & WATKINS LETTERHEAD] May 16, 2002 Ocular Sciences, Inc. 1855 Gateway Boulevard, Suite 700 Concord, California 94520 Re: Registration Statement on Form S-8 Ladies and Gentlemen: In connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 300,000 shares (the "Shares") of common stock, par value $0.001 per share, of Ocular Sciences, Inc. (the "Company") that may become issuable under the Company's Amended and Restated 1997 Directors Stock Option Plan, as amended (the "Plan"), by the Company on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission, you have requested our opinion with respect to the matters set forth below. In our capacity as your special counsel in connection with such registration, we are familiar with the proceedings taken and proposed to be taken in connection with the authorization, issuance and sale of the Shares. In addition, we have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records and instruments, as we have deemed necessary or appropriate for purposes of this opinion. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to authentic original documents of all documents submitted to us as copies. We are opining herein as to the effect on the subject transaction only of the General Corporation Law of the State of Delaware, and we express no opinion with respect to the applicability thereto, or the effect thereon, of any other laws, or as to matters of municipal law or the laws of any local agencies within any state. Subject to the foregoing, it is our opinion that the Shares to be issued under the Plan have been duly authorized, and, upon the issuance, delivery and payment therefor in the manner contemplated by the Plan and the Registration Statement, and assuming the Company completes LATHAM & WATKINS May 16, 2002 Page 2 all actions and proceedings required on its part to be taken prior to the issuance and delivery of the Shares pursuant to the terms of the Plan, including, without limitation, collection of required payment for the Shares, the Shares will be validly issued, fully paid and nonassessable. We consent to your filing this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Latham & Watkins EX-23.2 4 f81331ex23-2.txt EXHIBIT 23.2 Exhibit 23.2 CONSENT OF KPMG LLP The Board of Directors Ocular Sciences, Inc.: We consent to incorporation by reference in this registration statement on Form S-8 of Ocular Sciences, Inc. of our reports dated February 5, 2002, relating to the consolidated balance sheets of Ocular Sciences, Inc. and subsidiaries as of December 31, 2001 and 2000, and the related consolidated statements of income, stockholders' equity, and cash flows for each of the years in the three-year period ended December 31, 2001, and the related schedule, which reports appear in the December 31, 2001 annual report on Form 10-K of Ocular Sciences, Inc. San Francisco, California May 13, 2002 EX-99.1 5 f81331ex99-1.txt EXHIBIT 99.1 EXHIBIT 99.1 OCULAR SCIENCES, INC. AMENDED AND RESTATED 1997 DIRECTORS STOCK OPTION PLAN Adopted June 1997, as amended July 1997, as effective August 4, 1997, as amended September 20, 2000, as approved by the stockholders November 3, 2000, as amended November 30, 2001 and approved by the stockholders April 25, 2002 1. PURPOSE. This Amended and Restated 1997 Directors Stock Option Plan (this "Plan") is established to provide equity incentives for nonemployee members of the Board of Directors of Ocular Sciences, Inc. (the "COMPANY"), who are described in Section 6.1 below, by granting such persons options to purchase shares of stock of the Company. 2. ADOPTION AND STOCKHOLDER APPROVAL. After this Plan is adopted by the Board of Directors of the Company (the "BOARD"), this Plan will become effective on the time and date (the "EFFECTIVE DATE") on which the registration statement filed by the Company with the Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the "SECURITIES ACT"), to register the initial public offering of the Company's Common Stock is declared effective by the SEC. This Plan shall be approved by the stockholders of the Company, consistent with applicable laws, within twelve (12) months after the date this Plan is adopted by the Board. 3. TYPES OF OPTIONS AND SHARES. Options granted under this Plan shall be non-qualified stock options ("NQSOS"). The shares of stock that may be purchased upon exercise of Options granted under this Plan (the "SHARES") are shares of the Common Stock of the Company. 4. NUMBER OF SHARES. The maximum number of Shares that may be issued pursuant to Options granted under this Plan (the "MAXIMUM NUMBER") is 700,000 Shares, subject to adjustment as provided in this Plan. If any Option is terminated for any reason without being exercised in whole or in part, the Shares thereby released from such Option shall be available for purchase under other Options subsequently granted under this Plan. At all times during the term of this Plan, the Company shall reserve and keep available such number of Shares as shall be required to satisfy the requirements of outstanding Options granted under this Plan; provided, however that if the aggregate number of Shares subject to outstanding Options granted under this Plan plus the aggregate number of Shares previously issued by the Company pursuant to the exercise of Options granted under this Plan equals or exceeds the Maximum Number, then notwithstanding anything herein to the contrary, no further Options may be granted under this Plan until the Maximum Number is increased or the aggregate number of Shares subject to outstanding Options granted under this Plan plus the aggregate number of Shares previously issued by the Company pursuant to the exercise of Options granted under this Plan is less than the Maximum Number. 5. ADMINISTRATION. This Plan shall be administered by the Board or by a committee of not less than two members of the Board appointed to administer this Plan (the "COMMITTEE"). As used in this Plan, references to the Committee shall mean either such Committee or the Board if no Committee has been established. The interpretation by the Committee of any of the provisions of this Plan or any Option granted under this Plan shall be final and binding upon the Company and all persons having an interest in any Option or any Shares purchased pursuant to an Option. 6. ELIGIBILITY AND AWARD FORMULA. 6.1 Eligibility. Options shall be granted only to directors of the Company who are not employees of the Company or any Parent, Subsidiary or Affiliate of the Company, as those terms are defined in Section 17 below (each such person referred to as an "OPTIONEE"). 6.2 Initial Grant. Each Optionee who on or after the Effective Date is or becomes a member of the Board will automatically be granted an Option for 30,000 Shares (an "INITIAL GRANT") on the later of the Effective Date and the date such Optionee first becomes a member of the Board. 6.3 Succeeding Grants. On each annual anniversary of an Optionee's Initial Grant, provided the Optionee is a member of the Board on such anniversary date and has served continuously as a member of the Board since the date of the Optionee's Initial Grant, the Optionee will automatically be granted an Option for 15,000 Shares (a "SUCCEEDING GRANT"). 7. TERMS AND CONDITIONS OF OPTIONS. Subject to the following and to Section 6 above: 7.1 Form of Option Grant. Each Option granted under this Plan shall be evidenced by a written Stock Option Grant ("GRANT") in such form (which need not be the same for each Optionee) as the Committee shall from time to time approve, which Grant shall comply with and be subject to the terms and conditions of this Plan. 7.2 Vesting. Options granted under this Plan shall be exercisable as they vest. The date an Optionee receives an Initial Grant or a Succeeding Grant is referred to in this Plan as the "START DATE" for such Option. (a) Initial Grants. Each Initial Grant will vest as to two and seventy-eight one-hundredths percent (2.78%) of the Shares on the last day of each month following the Start Date, so long as the Optionee continuously remains a director or consultant of the Company. (b) Succeeding Grants. Each Succeeding Grant will vest as to two and seventy-eight one-hundredths percent (2.78%) of the Shares on the last day of each month following the Start Date, so long as the Optionee continuously remains a director or consultant of the Company. 7.3 Exercise Price. The exercise price of an Option shall be the Fair Market Value (as defined in Section 17.4) of the Shares, at the time that the Option is granted. 7.4 Termination of Option. Except as provided below in this Section, each Option shall expire ten (10) years after its Start Date (the "EXPIRATION DATE"). The Option shall cease to vest when the Optionee ceases to be a member of the Board or a consultant of the Company. The date on which the Optionee ceases to be a member of the Board or a consultant of the Company shall be referred to as the "TERMINATION DATE." An Option may be exercised after the Termination Date only as set forth below: (a) Termination Generally. If the Optionee ceases to be a member of the Board or consultant of the Company for any reason except death of the Optionee or disability of the Optionee (whether temporary or permanent, partial or total, as determined by the Committee), then each Option then held by such Optionee, to the extent (and only to the extent) that it would have been exercisable by the Optionee on the Termination Date, may be exercised by the Optionee no later than seven (7) months after the Termination Date, but in no event later than the Expiration Date. (b) Death or Disability. If the Optionee ceases to be a member of the Board or consultant of the Company because of the death of the Optionee or the disability of the Optionee (whether temporary or permanent, partial or total, as determined by the Committee), then each Option then held by such Optionee, to the extent (and only to the extent) that it would have been exercisable by the Optionee on the Termination Date, may be exercised by the Optionee (or the Optionee's legal representative) no later than twelve (12) months after the Termination Date, but in no event later than the Expiration Date. 8. EXERCISE OF OPTIONS. 8.1 Exercise Period. Subject to the provisions of Section 8.5 below, Options shall be exercisable as they vest. 8.2 Notice. Options may be exercised only by delivery to the Company of an exercise agreement in a form approved by the Committee stating the number of Shares being purchased, the restrictions imposed on the Shares and such representations and agreements regarding the Optionee's investment intent and access to information as may be required by the Company to comply with applicable securities laws, together with payment in full of the exercise price for the number of Shares being purchased. 8.3 Payment. Payment for the Shares purchased upon exercise of an Option may be made (a) in cash or by check; (b) by surrender of shares of Common Stock of the Company that have been owned by the Optionee for more than six (6) months (and which have been paid for within the meaning of SEC Rule 144 and, if such shares were purchased from the Company by use of a promissory note, such note has been fully paid with respect to such shares) or were obtained by the Optionee in the open public market, having a Fair Market Value equal to the exercise price of the Option; (c) by waiver of compensation due or accrued to the Optionee for services rendered; (d) provided that a public market for the Company's stock exists, through a "same day sale" commitment from the Optionee and a broker-dealer that is a member of the National Association of Securities Dealers (an "NASD DEALER") whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased to pay for the exercise price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company; (e) provided that a public market for the Company's stock exists, through a "margin" commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise the Option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company; or (f) by any combination of the foregoing. 8.4 Withholding Taxes. Prior to issuance of the Shares upon exercise of an Option, the Optionee shall pay or make adequate provision for any federal or state withholding obligations of the Company, if applicable. 8.5 Limitations on Exercise. Notwithstanding the exercise periods set forth in the Grant, exercise of an Option shall always be subject to the following limitations: (a) An Option shall not be exercisable unless such exercise is in compliance with the Securities Act and all applicable state securities laws, as they are in effect on the date of exercise. (b) The Committee may specify a reasonable minimum number of Shares that may be purchased upon any exercise of an Option, provided that such minimum number will not prevent the Optionee from exercising the full number of Shares as to which the Option is then exercisable. 9. NONTRANSFERABILITY OF OPTIONS. During the lifetime of the Optionee, an Option shall be exercisable only by the Optionee or by the Optionee's guardian or legal representative, unless otherwise determined by the Committee. No Option may be sold, pledged, assigned, hypothecated, transferred or disposed of in any manner other than by will or by the laws of descent and distribution, unless otherwise determined by the Committee. 10. PRIVILEGES OF STOCK OWNERSHIP. No Optionee shall have any of the rights of a stockholder with respect to any Shares subject to an Option until the Option has been validly exercised. No adjustment shall be made for dividends or distributions or other rights for which the record date is prior to the date of exercise, except as provided in this Plan. The Company shall provide to each Optionee a copy of the annual financial statements of the Company at such time after the close of each fiscal year of the Company as they are released by the Company to its stockholders. 11. ADJUSTMENT OF OPTION SHARES. In the event that the number of outstanding shares of Common Stock of the Company is changed by a stock dividend, stock split, reverse stock split, combination, reclassification or similar change in the capital structure of the Company without consideration, the number of Shares available under this Plan and the number of Shares subject to outstanding Options and the exercise price per share of such outstanding Options shall be proportionately adjusted, subject to any required action by the Board or stockholders of the Company and compliance with applicable securities laws; provided, however, that no fractional shares shall be issued upon exercise of any Option and any resulting fractions of a Share shall be rounded up to the nearest whole Share. 12. NO OBLIGATION TO CONTINUE AS DIRECTOR. Nothing in this Plan or any Option granted under this Plan shall confer on any Optionee any right to continue as a director of the Company. 13. COMPLIANCE WITH LAWS. The grant of Options and the issuance of Shares upon exercise of any Options shall be subject to and conditioned upon compliance with all applicable requirements of law, including without limitation compliance with the Securities Act, compliance with all other applicable state securities laws and compliance with the requirements of any stock exchange or national market system on which the Shares may be listed. The Company shall be under no obligation to register the Shares with the SEC or to effect compliance with the registration or qualification requirement of any state securities laws, stock exchange or national market system. 14. ACCELERATION OF OPTIONS ON CERTAIN CORPORATE TRANSACTIONS. In the event of (a) a dissolution or liquidation of the Company, (b) a merger or consolidation in which the Company is not the surviving corporation (other than a merger or consolidation with a wholly-owned subsidiary, a reincorporation of the Company in a different jurisdiction, or other transaction in which there is no substantial change in the stockholders of the Company or their relative stock holdings and the Options granted under this Plan are assumed, converted or replaced by the successor corporation, which assumption, conversion or replacement will be binding on all Optionees), (c) a merger in which the Company is the surviving corporation but after which the stockholders of the Company (other than any stockholder which merges (or which owns or controls another corporation which merges) with the Company in such merger) cease to own their shares or other equity interests in the Company, (d) the sale of substantially all of the assets of the Company, or (e) the acquisition, sale or transfer of more than 50% of the outstanding shares of the Company by tender offer or similar transaction, the vesting of all options granted pursuant to this Plan will accelerate and the options will become exercisable in full prior to the consummation of such event at such times and on such conditions as the Committee determines, and if such options are not exercised prior to the consummation of the corporate transaction, they shall terminate in accordance with the provisions of this Plan. 15. AMENDMENT OR TERMINATION OF PLAN. The Board may at any time terminate or amend this Plan or any outstanding option, provided that the Board may not terminate or amend the terms of any outstanding option without the consent of the Optionee. In any case, no amendment of this Plan may adversely affect any then outstanding Options or any unexercised portions thereof without the written consent of the Optionee. 16. TERM OF PLAN. Options may be granted pursuant to this Plan from time to time within a period of ten (10) years from the Effective Date. 17. CERTAIN DEFINITIONS. As used in this Plan, the following terms shall have the following meanings: 17.1 "PARENT" means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company if each of such corporations other than the Company owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. 17.2 "SUBSIDIARY" means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. 17.3 "AFFILIATE" means any corporation that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, another corporation, where "control" (including the terms "controlled by" and "under common control with") means the possession, direct or indirect, of the power to cause the direction of the management and policies of the corporation, whether through the ownership of voting securities, by contract or otherwise. 17.4 "FAIR MARKET VALUE" means, as of any date, the value of a share of the Company's Common Stock determined as follows: (a) if such Common Stock is then quoted on the Nasdaq National Market, its closing price on the Nasdaq National Market on the date of determination as reported in The Wall Street Journal; (b) if such Common Stock is publicly traded and is then listed on a national securities exchange, its closing price on the date of determination on the principal national securities exchange on which the Common Stock is listed or admitted to trading as reported in The Wall Street Journal; (c) if such Common Stock is publicly traded but is not quoted on the Nasdaq National Market nor listed or admitted to trading on a national securities exchange, the average of the closing bid and asked prices on the date of determination as reported in The Wall Street Journal; (d) in the case of an Option granted on the Effective Date, the price per share at which shares of the Company's Common Stock are initially offered for sale to the public by the Company's underwriters in the initial public offering of the Company's Common Stock pursuant to a registration statement filed with the SEC under the Securities Act; or (e) if none of the foregoing is applicable, by the Committee in good faith. -----END PRIVACY-ENHANCED MESSAGE-----