-----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, NmK9PQ/eexle5WctQZMm7WRfJZDL/yg4/h6+aUgfAdLv1HsIhnT8SBGCgmK1KJ7K KhRfUltr9qufqOv1JR4Zew== 0001144204-05-041120.txt : 20051227 0001144204-05-041120.hdr.sgml : 20051226 20051227130023 ACCESSION NUMBER: 0001144204-05-041120 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20051227 DATE AS OF CHANGE: 20051227 EFFECTIVENESS DATE: 20051227 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENETHERA INC CENTRAL INDEX KEY: 0001017110 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 660622463 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-130702 FILM NUMBER: 051286539 BUSINESS ADDRESS: STREET 1: 3930 YOUNGFIELD STREET CITY: WHEAT RIDGE STATE: CO ZIP: 80033 BUSINESS PHONE: 3034636371 MAIL ADDRESS: STREET 1: 3930 YOUNGFIELD STREET CITY: WHEAT RIDGE STATE: CO ZIP: 80033 FORMER COMPANY: FORMER CONFORMED NAME: HAND BRAND DISTRIBUTION INC DATE OF NAME CHANGE: 19990818 S-8 1 v032169_s8.txt As filed with the Securities and Exchange Commission on December 28, 2005 Registration No. 333-118937 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 GENETHERA, INC. (Exact name of registrant as specified in its charter) FLORIDA 66-0622463 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification NO.) 3930 YOUNGFIELD WHEAT RIDGE, CO 80033 (Address of principal executive offices) GENETHERA, INC. 2004 EMPLOYEE, DIRECTOR AND CONSULTANT STOCK OPTION PLAN (Full title of the plan) STEVEN M. GRUBNER CHIEF FINANCIAL OFFICER GENETHERA, INC. 3930 YOUNGFIELD WHEAT RIDGE, CO 80033 (Name and address of agent for service) (303) 463-6371 (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
==================================================================================================================== TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE - -------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.001 1,600,000(1) $0.15 (2) $225,000 $28.53
(1) This Registration Statement also registers additional securities to be offered or issued upon adjustment or changes made to the registered securities by reason of any stock splits, stock dividends or similar transactions as permitted by Rule 416(a) and Rule 416(b) under the Securities Act of 1933, as amended (the "Securities Act"). (2) Estimated solely for the purpose of calculating the registration fee under Rule 457(h), based on the average of the high and low prices for the Registrant's Common Stock reported on the Over-The-Counter Bulletin Board on December 19, 2005. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by the Registrant with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933, as amended (the "Securities Act"), are incorporated by reference into this Registration Statement: (i) the Registrant's annual report on Form 10-KSB-A, filed with the Commission on May 15, 2005 for the fiscal year ended December 31, 2004 and (ii) the description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form SB-2, as amended, filed with the Commission on March 4, 2005. All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") after the date of this Registration Statement, but prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered by this Registration Statement have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement. Each document incorporated by reference into this Registration Statement shall be deemed to be a part of this Registration Statement from the date of filing of such document with the Commission until the information contained therein is superseded or updated by any subsequently filed document which is incorporated by reference into this Registration Statement or by any document which constitutes part of the prospectus relating to the GeneThera, Inc. 2004 Employee, Director, and Consultant Stock Option Plan (the "Plan") meeting the requirements of Section 10(a) of the Securities Act. ITEM 4. DESCRIPTION OF SECURITIES. The class of securities to be offered under this Registration Statement is registered under Section 12 of the Exchange Act. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL None. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Reference is hereby made to the provisions of the Florida Business Corporation Act, which provides for indemnification of directors and officers under certain circumstances. The Registrant's Articles of Incorporation and Bylaws provide that the Company shall, to the fullest extent permitted by the laws of the State of Florida, indemnify any director, officer, employee and agent of the corporation against expenses incurred by such person by reason of the fact that he serves or has served the corporation in such capacity. Indemnification under the Company's Articles Bylaws is nonexclusive of any other right such persons may have under statute, agreement, bylaw or action of the Board of Directors or shareholders of the corporation. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. None. ITEM 8. EXHIBITS. The following exhibits are filed herewith or incorporated by reference as part of this Registration Statement: EXHIBIT NO. DESCRIPTION ----------- ----------- 5.1 Opinion of Steven L. Slaw P.C. regarding the legality of the shares being registered hereunder. 23.1 Consent of Kantor, Geisler & Associates, LLC., independent auditors. 23.2 Consent of Steven L. Slaw P.C. (contained in Exhibit 5.1 hereto) 24.1 Power of Attorney. 99.1 2004 Employee, Director, and Consultant Stock Option Plan ITEM 9. UNDERTAKINGS (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement (i) to include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement); and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however that clauses (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those clauses is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be an initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act, 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 Wheat Ridge, State of Colorado, on this 28th day of December, 2005. GENETHERA, INC. By: /s/ DR. ANTONIO MILICI ----------------------------------------------- Dr. Antonio Milici Chairman, President and Chief Executive Officer Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date(s) indicated: SIGNATURE CAPACITY DATE - --------- -------- ---- /s/ Antonio Milici Chairman, President and Chief December 28, 2005 - ------------------ Executive Officer Antonio Milici (Principal Executive Officer) /s/ Steven M. Grubner Chief Financial Officer, Director December 28, 2005 - --------------------- (Principal Financial Officer) Steven M. Grubner * Director December 28, 2005 - --------------------- Thomas G. Slaga * /s/ Steven M. Grubner - ------------------------------------ Steven M. Grubner Pursuant to a Power of Attorney EXHIBIT INDEX EXHIBIT NO. DESCRIPTION ----------- ----------- 5.1 Opinion of Steven L. Slaw P.C. regarding the legality of the shares being registered hereunder. 23.1 Consent of Kantor, Geisler & Associates, independent auditors. 23.2 Consent of Steven L. Slaw P.C. (contained in Exhibit 5.1 hereto) 24.1 Power of Attorney. 99.1 2004 Employee, Director, and Consultant Stock Option Plan EX-5.1 2 v032169_ex5-1.txt Exhibit 5.1 GeneThera, Inc. 3930 Youngfield Wheat Ridge, CO 80033 Ladies and Gentlemen: As counsel to GeneThera, Inc. (the "Company"), we have reviewed the Registration Statement on Form S-8 to be filed by the Company with the Securities and Exchange Commission for the registration under the Securities Act of 1933, as amended, for 1,600,000 shares of the Company's common stock, par value $.001 per share (the "Shares"); which are to be issued from time to time to certain employees of the Company and its affiliates in connection with the 2004 Employee, Director, and Consultant Stock Option Plan (the "Plan"). We have examined originals, certified copies and/or copies otherwise identified to our satisfaction as being true copies of the Plan and such other documents as we have deemed necessary or appropriate for purposes of this opinion. Based on the foregoing, we are of the opinion that the Shares have been duly and validly authorized and reserved for issuance, and that the Shares, when issued under the terms of the Plan, will be legally and validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Very truly yours, STEVEN L. SLAW, P.C. Steven L. Slaw EX-23.1 3 v032169_ex23-1.txt Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS Board of Directors GeneThera, Inc. Wheat Ridge, Colorado 80033 We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2004 Senior Executive Officer Stock Option Plan of GeneThera, Inc. of our report dated March 31, 2005, with respect to the consolidated financial statements of GeneThera, Inc. included in it's Annual Report (Form 10-KSB-A), as amended, for the years ended December 31, 2004 and 2003, as filed with the Securities and Exchange Commission May 15, 2005. /s/ Kantor, Geisler & Associates, LLC. CERTIFIED PUBLIC ACCOUNTANTS Hollywood, Florida December 23, 2005. EX-24.1 4 v032169_ex24-1.txt Exhibit 24.1 POWER OF ATTORNEY GeneThera, Inc.2004 Senior Executive Officer Stock Option Plan. The undersigned directors and officers of GeneThera, Inc., a Florida corporation ("GTHA"), do hereby constitute and appoint Steven M. Grubner, our true and lawful attorney and agent, to execute, file and deliver a Registration Statement on Form S-8 (or other appropriate form) with respect to the 2004 Employee, Director, and Consultant Stock Option Plan of GeneThera, Inc. ("Form S-8"), which registers up to 1,600,000 shares of GTHA's Common Stock, par value $0.001 per share, in our name and on our behalf in our capacities as directors and officers of GTHA as listed below, and to do any and all acts or things, in our name and on our behalf in our capacities as directors and officers of GTHA as listed below, which said attorneys and agents, or either of them, may deem necessary or advisable to enable GTHA to comply with the Securities Act of 1933 and any rules, regulations and requirements of the Securities and Exchange Commission in connection with the Form S-8 (including without limitation executing, filing and delivering any amendments to the Form S-8 ), and the undersigned do hereby ratify and confirm all that said attorneys and agents, or either of them, shall do or cause to be done by virtue hereof. Witness the due execution hereof as of December 28, 2005. SIGNATURE CAPACITY DATE --------- -------- ---- /s/ Antonio Milici Chairman, President and Chief December 28, 2005 - ------------------ Executive Officer Antonio Milici (Principal Executive Officer) /s/ Steven M. Grubner Chief Financial Officer, Director December 28, 2005 - --------------------- (Principal Financial Officer) Steven M. Grubner /s/ Thomas G. Slaga Director December 28, 2005 - ------------------- Thomas G. Slaga EX-99.1 5 v032169_ex99-1.txt EXHIBIT 99.1 GENETHERA, INC. 2004 EMPLOYEE, DIRECTOR AND CONDULTANT STOCK OPTION PLAN Dated April 1, 2004 1. PURPOSE. This 2004 Employee, Director And Consultant Stock Option Plan (the "Plan") is established as a compensatory plan to attract and provide equity incentives to Employees, Directors And Consultants of GeneThera, Inc. (the "Company") or any Subsidiary or Affiliate of the Company to promote the financial success of the Company. Capitalized terms not previously defined herein are defined in Section 16 of the Plan. The Plan is intended to provide participants with stock-based incentive compensation which is not subject to the deduction limitation rules prescribed under Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code"), and should be construed to the extent possible as providing for remuneration which is "performance-based compensation" within the meaning of Section 162(m) of the Code and the regulations promulgated thereunder. 2. SHARES. The shares of stock that may be purchased upon exercise of Options granted under the Plan (the "Shares") are shares of the common stock, $.001 par value (the "Common Stock") of the Company. 3 . NUMBER OF SHARES. The maximum number of Shares that may be issued pursuant to Options granted under the Plan shall not exceed 2,000,000 in total subject to adjustment as provided in the Plan. The maximum number of Shares which may be subject to Options granted under the Plan to any individual in any calendar year shall not exceed 500,000, and the method of counting such Shares shall conform to any requirements applicable to performance-based compensation under Section 162(m) of the Code. 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 the Plan.At all times during the term of the Plan, the Company shall reserve and keep available such number of Shares as shall be required to satisfy the requirements of outstanding Options under the Plan. 4. ELIGIBILITY. The Administrator will, in its sole discretion, name the Participants in the Plan, provided, however, that each Participant must be a Key Employee, director or consultant of the Company or of an Affiliate at the time an Option is granted. Notwithstanding any of the foregoing provisions, the Administrator may authorize the grant of an Option to a person not then an employee, director or consultant of the Company or of an Affiliate. The actual grant of such Option, however, shall be conditioned upon such person becoming eligible to become a Participant at or prior to the time of the execution of the Option Agreement evidencing such Option. Non-Qualified Options may be granted to any Key Employee, director or consultant of the Company or an Affiliate. No resident of the United States shall be granted in any one year Options to purchase more than 500,000 Shares. The granting of any Option to any individual shall neither entitle that individual to, nor disqualify him or her from, participation in any other grant of Options. 5. TERMS AND CONDITIONS OF OPTIONS. The Plan Committee shall determine the number of Shares subject to the Option, the exercise price of the Option, the period during which the Option may be exercised, and all other terms and conditions of the Option, subject to the following: 5.1 Form of Option Grant. Each Option granted under the Plan shall be evidenced by a written Stock Option Grant (the "Grant") in such form (which need not be the same for each Optionee) as the Plan Committee shall from time to time approve. 5.2 Date of Grant. The date of grant of an Option shall be the date on which the Plan Committee makes the determination to grant such Option unless otherwise specified by the Plan Committee. The Grant representing the Option will be delivered to the Optionee with a copy of the Plan within a reasonable time after the date of grant. 5.3 Exercise Price. The exercise price of an Option shall be determined by the Plan Committee at the time of grant. 5.4 Exercise Period. Options shall be exercisable within the times or upon the events determined by the Plan Committee as set forth in the Grant. 5.5 Options Transferable. Options granted under the Plan may be freely transferred or assigned by the Optionee as determined by the Plan Committee. 6. EXERCISE OF OPTIONS. 6.1 Notice. Options may be exercised only by delivery to the Company of a written exercise agreement in a form approved by the Plan Committee (which need not be the same for each Optionee), stating the number of Shares being purchased, the restrictions imposed on the Shares, if any, and such representations and agreements regarding the Optionee's investment intent and access to information, if any, 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. 6.2 Payment. Payment for the Shares may be made in cash (by check) or, where approved by the Plan Committee in its sole discretion at the time of grant and where permitted by law: (a) by- cancellation of indebtedness of the Company to the Optionee; (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 instructing the Company to withhold Shares otherwise issuable pursuant to an exercise of the Option having a Fair Market Value equal to the exercise price of the Option (including the withheld Shares); (d) by waiver of compensation due or accrued to Optionee for services rendered; (e) 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; (f) 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 (g) by any combination of the foregoing. 6.3 Taxes. The Company may make such provisions as it may deem appropriate, consistent with applicable law, in connection with any Options granted under the Plan with respect to the withholding of any taxes or any other tax matters. 6.4 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) The Plan Committee may specify a reasonable minimum number of Shares that may be purchased on 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. (b) An Option shall not be exercisable unless such exercise is in compliance with the Securities Act of 1933, as amended (the "1933 Act"), all applicable state securities laws and the requirements of any stock exchange or national market system upon which the Shares may then be listed, as they are in effect on the date of exercise. The Company shall be under no obligation to register the Shares with the Securities and Exchange Commission ("SEC") or to effect compliance with the registration, qualification or listing requirements of any state securities laws or stock exchange, and the Company shall have no liability for any inability or failure to do so. 6.5 Information to Optionees. The Company shall provide to each Optionee a copy of the annual financial statements of the Company prior to such Optionee's exercise of the Option, and to each Optionee annually during the period such Optionee has Options outstanding, at such time after the close of each fiscal year of the Company as such statements are released by the Company to its shareholders; provided, however, the Company shall not be required to provide such financial statements to Optionees whose services in connection with the Company assure them access to equivalent information. 7. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. The Plan Committee shall have the power to modify, extend or renew outstanding Options and to authorize the grant of new Options in substitution therefor, provided that any such action may not, without the written consent of the Optionee, impair any rights under any Option previously granted. The Plan Committee shall have the power to reduce the exercise price of outstanding options. 8. PRIVILEGES OF STOCK OWNERSHIP. No Optionee shall have any of the rights of a shareholder with respect to any Shares subject to an Option until such Option is properly exercised. No adjustment shall be made for dividends or distributions or other rights for which the record date is prior to such date, except as provided in the Plan. 9. NO OBLIGATION TO EMPLOY. Nothing in the Plan or any Option granted under the Plan shall confer on any Optionee any right to continue in the employ of, or other relationship with, the Company or any Parent, Subsidiary or Affiliate of the Company or limit in any way the right of the Company or any Parent, Subsidiary or Affiliate of the Company to terminate the Optionee's employment or other relationship at any time, with or without cause. 10. 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, recapitalization, combination, reclassification or similar change in the capital structure of the Company without consideration, or if a substantial portion of the assets of the Company are distributed, without consideration in a spin-off or similar transaction, to the shareholders of the Company, the number of Shares available under the Plan and the number of Shares subject to outstanding Options and the exercise price per share of such Options shall be proportionately adjusted, subject to any required action by the Plan Committee or shareholders of the Company and compliance with applicable securities laws; provided, however, that a fractional share shall not be issued upon exercise of any Option and any fractions of a Share that would have resulted shall either be cashed out at Fair Market Value or the number of shares issuable under the Option shall be rounded up to the nearest whole number, as determined by the Plan Committee; and provided further that the exercise price may not be decreased to below the par value, if any, for the Shares. 11. ASSUMPTION OF OPTIONS BY SUCCESSORS. 11.1 Assumption or Replacement of Options by Successor. In the event of (a) 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 shareholders of the Company and the Options granted under the Plan are assumed or replaced by the successor corporation, which assumption shall be binding on all Optionees), (b) a dissolution or liquidation of the Company, (c) the sale of substantially all of the assets of the Company, or (d) any other transaction which qualifies as a "corporate transaction" under Section 424(a) of the Code wherein the shareholders of the Company give up all of their equity interest in the Company (except for the acquisition, sale or transfer of all or substantially all of the outstanding shares of the Company), any or all outstanding Options may be assumed by the successor corporation, which assumption shall be binding on all Optionees. In the alternative, the successor corporation may substitute equivalent Options or provide substantially similar consideration to Optionees as was provided to shareholders (after taking into account the existing provisions of the Options). The successor corporation may also issue, in place of outstanding Shares of the Company held by the Optionee, substantially similar shares or other property subject to repurchase restrictions no less favorable to the Optionee. 11.2 Expiration of Options. In the event such successor corporation, if any, refuses to assume or substitute the Options, as provided above, pursuant to a transaction described in Subsection 11.1(a) above, such Options shall expire on the consummation of such transaction at such time and on such conditions as the Plan Committee shall determine. In the event such successor corporation, if any, refuses to assume or substitute the Options as provided above, pursuant to a transaction described in Subsections 11.1 (a), (b), (c) or (d) above, or there is no successor corporation, and if the Company ceases to exist as a separate corporate entity, then, notwithstanding any contrary terms in the Option Grant, the Options shall expire on a date at least twenty (20) days after the Plan Committee gives written notice to Optionees specifying the terms and conditions of such termination. 11.3 Other Treatment of Options. Subject to any greater rights granted to Optionees under the foregoing provisions of this Section 11, in the event of the occurrence of any transaction described in Section 11.1, any outstanding Options shall be treated as provided in the applicable agreement or plan of merger, consolidation, dissolution, liquidation, sale of assets or other "corporate transaction." 11.4 Assumption of Options by the Company. The Company, from time to time, also may substitute or assume outstanding options granted by another company, whether in connection with an acquisition of such other company or otherwise, by either (a) granting an Option under the Plan in substitution of such other company's option, or (b) assuming such option as if it had been granted under the Plan if the terms of such assumed option could be applied to an Option granted under the Plan. Such substitution or assumption shall be permissible if the holder of the substituted or assumed option would have been eligible to be granted an Option under the Plan if the other company had applied the rules of the Plan to such grant. In the event the Company assumes an option by another company, the terms and conditions of such option shall remain unchanged (except that the exercise price and the number and nature of Shares issuable upon exercise of any such option will be adjusted appropriately pursuant to Section 424(a) of the Code). In the event the Company elects to grant a new Option rather than assuming an existing option, such new Option may be granted with a similarly adjusted Exercise Price. 12. ADOPTION. The Plan shall become effective on the date that it is adopted by the Plan Committee (the "Effective Date"). Upon the Effective Date, the Plan Committee may grant Options pursuant to the Plan. 13. ADMINISTRATION. The Plan may be administered by the Plan Committee. The interpretation by the Plan Committee of any of the provisions of the Plan or any Option granted under the 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. 14. TERM OF PLAN. Options may be granted pursuant to the Plan from time to time within a period of ten (10) years after the date on which the Plan is adopted by the Plan Committee. 15. AMENDMENT OR TERMINATION OF PLAN. The Plan Committee may at any time terminate or amend the plan in any respect including (but not limited to) amendment of any form of Grant, exercise agreement or instrument to be executed pursuant to the Plan. 16. CERTAIN DEFINITIONS. As used herein, the following terms shall have the following meanings: 16.1 "Parent" means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company if, at the time of the granting of the Option, 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. 16.2 "Subsidiarv" means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if, at the time of granting of the Option, 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. 16.3 "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. 16.4 "Fair Market Value" shall mean the fair market value of the Shares as determined by the Plan Committee from time to time in good faith. If a public market exists for the Shares, the Fair Market Value shall be the last sale price on the Company's principal exchange or quotation system on the last trading day prior to the date of determination. -----END PRIVACY-ENHANCED MESSAGE-----