Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) HTML 1.03M
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 23 92K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws 2 15K
4: EX-3.3 Articles of Incorporation/Organization or By-Laws 5 32K
5: EX-3.4 Articles of Incorporation/Organization or By-Laws 23 109K
6: EX-10.1 Material Contract 10 50K
15: EX-10.10 Material Contract 99 325K
16: EX-10.11 Material Contract 13 43K
17: EX-10.12 Ex-10.2 6 36K
18: EX-10.13 Material Contract 10 41K
19: EX-10.14 Material Contract 10 39K
20: EX-10.15 Material Contract 10 39K
21: EX-10.16 Material Contract 8 33K
22: EX-10.17 Material Contract 8 33K
23: EX-10.18 Material Contract 10 43K
24: EX-10.19 Material Contract 10 44K
7: EX-10.2 Material Contract 14 69K
25: EX-10.20 Material Contract 10 43K
26: EX-10.21 Material Contract 7 27K
27: EX-10.22 Material Contract 7 31K
28: EX-10.24 Material Contract 10 48K
29: EX-10.25 Material Contract 10 48K
30: EX-10.26 Material Contract 11 57K
31: EX-10.27 Material Contract 11 52K
8: EX-10.3 Material Contract 3 19K
9: EX-10.4 Material Contract 11 41K
10: EX-10.5 Material Contract 14 68K
11: EX-10.6 Material Contract 18 79K
12: EX-10.7 Material Contract 23 93K
13: EX-10.8 Material Contract 16 71K
14: EX-10.9 Material Contract 5 26K
32: EX-23.1 Consent of Experts or Counsel 1 10K
EX-10.7 — Material Contract
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EXHIBIT 10.7
PLANETOUT INC.
2004 EQUITY INCENTIVE PLAN
ADOPTED: APRIL 26, 2004
APPROVED BY STOCKHOLDERS: _______________, 2004
TERMINATION DATE: APRIL 25, 2014
1. PURPOSES.
(a) Eligible Stock Award Recipients. The persons eligible to receive
Stock Awards are Employees, Directors and Consultants.
(b) Available Stock Awards. The purpose of the Plan is to provide a
means by which eligible recipients of Stock Awards may be given an opportunity
to benefit from increases in value of the Common Stock through the granting of
the following Stock Awards: (i) Incentive Stock Options; (ii) Nonstatutory Stock
Options; (iii) Stock Bonuses; (iv) Stock Appreciation Rights; (v) Phantom Stock;
(vi) Restricted Stock Awards; (vii) Restricted Stock Units; and (viii) Other
Stock Awards.
(c) General Purpose. The Company, by means of the Plan, seeks to retain
the services of the group of persons eligible to receive Stock Awards, to secure
and retain the services of new members of this group and to provide incentives
for such persons to exert maximum efforts for the success of the Company and its
Affiliates.
2. DEFINITIONS.
(a) "Affiliate" means any parent corporation or subsidiary corporation
of the Company, whether now or hereafter existing, as those terms are defined in
Sections 424(e) and (f), respectively, of the Code.
(b) "Board" means the Board of Directors of the Company.
(c) "Capitalization Adjustment" has the meaning ascribed to that term
in Section 11(a).
(d) "Change in Control" means the occurrence, in a single transaction
or in a series of related transactions, of any one or more of the following
events:
(i) any Exchange Act Person becomes the Owner, directly
or indirectly, of securities of the Company representing more than fifty percent
(50%) of the combined voting power of the Company's then outstanding securities
other than by virtue of a merger, consolidation or similar transaction.
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
(A) on account of the acquisition of securities of the Company by an
institutional investor, any affiliate thereof or any other Exchange Act
Person that acquires the Company's securities in a transaction or series of
related transactions that are primarily a private financing transaction for the
Company or (B) solely because the level of Ownership held by any Exchange Act
Person (the "Subject Person") exceeds the designated percentage threshold of the
outstanding voting securities as a result of a repurchase or other acquisition
of voting securities by the Company reducing the number of shares outstanding,
provided that if a Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of voting securities by the Company,
and after such share acquisition, the Subject Person becomes the Owner of any
additional voting securities that, assuming the repurchase or other acquisition
had not occurred, increases the percentage of the then outstanding voting
securities Owned by the Subject Person over the designated percentage threshold,
then a Change in Control shall be deemed to occur;
(ii) there is consummated a merger, consolidation or
similar transaction involving (directly or indirectly) the Company if,
immediately after the consummation of such merger, consolidation or similar
transaction, the stockholders of the Company immediately prior thereto do not
Own, directly or indirectly, either (A) outstanding voting securities
representing more than fifty percent (50%) of the combined outstanding voting
power of the surviving Entity in such merger, consolidation or similar
transaction or (B) more than fifty percent (50%) of the combined outstanding
voting power of the parent of the surviving Entity in such merger, consolidation
or similar transaction;
(iii) the stockholders of the Company approve or the Board
approves a plan of complete dissolution or liquidation of the Company, or a
complete dissolution or liquidation of the Company shall otherwise occur;
(iv) there is consummated a sale, lease, license or other
disposition of all or substantially all of the consolidated assets of the
Company and its Subsidiaries, other than a sale, lease, license or other
disposition of all or substantially all of the consolidated assets of the
Company and its Subsidiaries to an Entity, more than fifty percent (50%) of the
combined voting power of the voting securities of which are Owned by
stockholders of the Company in substantially the same proportion as their
Ownership of the Company immediately prior to such sale, lease, license or other
disposition; or
(v) individuals who, on the date this Plan is adopted by
the Board, are members of the Board (the "Incumbent Board") cease for any reason
to constitute at least a majority of the members of the Board; provided,
however, that if the appointment or election (or nomination for election) of any
new Board member was approved or recommended by a majority vote of the members
of the Incumbent Board then still in office, such new member shall, for purposes
of this Plan, be considered as a member of the Incumbent Board.
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The term Change in Control shall not include a sale of assets, merger
or other transaction effected exclusively for the purpose of changing the
domicile of the Company.
Notwithstanding the foregoing or any other provision of this Plan, the
definition of Change in Control (or any analogous term) in an individual written
agreement between the Company or any Affiliate and the Participant shall
supersede the foregoing definition with respect to Stock Awards subject to such
agreement (it being understood, however, that if no definition of Change in
Control or any analogous term is set forth in such an individual written
agreement, the foregoing definition shall apply).
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Committee" means a committee of one or more members of the Board
appointed by the Board in accordance with Section 3(c).
(g) "Common Stock" means the common stock of the Company.
(h) "Company" means PlanetOut Inc., a Delaware corporation.
(i) "Consultant" means any person, including an advisor, (i) engaged by
the Company or an Affiliate to render consulting or advisory services and who is
compensated for such services or (ii) serving as a member of the Board of
Directors of an Affiliate and who is compensated for such services. However, the
term "Consultant" shall not include Directors who are not compensated by the
Company for their services as Directors, and the payment of a director's fee by
the Company for services as a Director shall not cause a Director to be
considered a "Consultant" for purposes of the Plan.
(j) "Continuous Service" means that the Participant's service with the
Company or an Affiliate, whether as an Employee, Director or Consultant, is not
interrupted or terminated. A change in the capacity in which the Participant
renders service to the Company or an Affiliate as an Employee, Consultant or
Director or a change in the entity for which the Participant renders such
service, provided that there is no interruption or termination of the
Participant's service with the Company or an Affiliate, shall not terminate a
Participant's Continuous Service. For example, a change in status from an
employee of the Company to a Consultant of an Affiliate or to a Director shall
not constitute an interruption of Continuous Service. The Board or the chief
executive officer of the Company, in that party's sole discretion, may determine
whether Continuous Service shall be considered interrupted in the case of any
leave of absence approved by that party, including sick leave, military leave or
any other personal leave. Notwithstanding the foregoing, a leave of absence
shall be treated as Continuous Service for purposes of vesting in a Stock Award
only to such extent as may be provided in the Company's leave of absence policy
or in the written terms of the Participant's leave of absence.
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(k) "Corporate Transaction" means the occurrence, in a single
transaction or in a series of related transactions, of any one or more of the
following events:
(i) a sale or other disposition of all or substantially
all, as determined by the Board in its discretion, of the consolidated assets of
the Company and its Subsidiaries;
(ii) a sale or other disposition of at least fifty percent
(50%) of the outstanding securities of the Company;
(iii) a merger, consolidation or similar transaction
following which the Company is not the surviving corporation; or
(iv) a merger, consolidation or similar transaction
following which the Company is the surviving corporation but the shares of
Common Stock outstanding immediately preceding the merger, consolidation or
similar transaction are converted or exchanged by virtue of the merger,
consolidation or similar transaction into other property, whether in the form of
securities, cash or otherwise.
(l) "Covered Employee" means the chief executive officer and the four
(4) other highest compensated officers of the Company for whom total
compensation is required to be reported to stockholders under the Exchange Act,
as determined for purposes of Section 162(m) of the Code.
(m) "Director" means a member of the Board.
(n) "Disability" means the permanent and total disability of a person
within the meaning of Section 22(e)(3) of the Code.
(o) "Employee" means any person employed by the Company or an
Affiliate. Service as a Director or payment of a director's fee by the Company
for such service or for service as a member of the Board of Directors of an
Affiliate shall not be sufficient to constitute "employment" by the Company or
an Affiliate.
(p) "Entity" means a corporation, partnership or other entity.
(q) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(r) "Exchange Act Person" means any natural person, Entity or "group"
(within the meaning of Section 13(d) or 14(d) of the Exchange Act), except that
"Exchange Act Person" shall not include (A) the Company or any Subsidiary of the
Company, (B) any employee benefit plan of the Company or any Subsidiary of the
Company or any trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any Subsidiary of the Company, (C) an underwriter
temporarily holding securities pursuant to an offering of such securities, or
(D) an Entity Owned, directly or indirectly,
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by the stockholders of the Company in substantially the same proportions as
their Ownership of stock of the Company.
(s) "Fair Market Value" means, as of any date, the value of the Common
Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or traded on the Nasdaq National Market or the Nasdaq SmallCap
Market, the Fair Market Value of a share of Common Stock, unless otherwise
determined by the Board, shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or market (or
the exchange or market with the greatest volume of trading in the Common Stock)
on the day of determination (or if such day of determination does not fall on a
market trading day, then the last market trading day prior to the day of
determination), as reported in The Wall Street Journal or such other source as
the Board deems reliable.
(ii) In the absence of such markets for the Common Stock,
the Fair Market Value shall be determined in good faith by the Board.
(t) "Incentive Stock Option" means an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
(u) "Non-Employee Director" means a Director who either (i) is not
currently an employee or officer of the Company or its parent or a subsidiary,
does not receive compensation (directly or indirectly) from the Company or its
parent or a subsidiary, for services rendered as a consultant or in any capacity
other than as a Director (except for an amount as to which disclosure would not
be required under Item 404(a) of Regulation S-K promulgated pursuant to the
Securities Act ("Regulation S-K")), does not possess an interest in any other
transaction as to which disclosure would be required under Item 404(a) of
Regulation S-K, and is not engaged in a business relationship as to which
disclosure would be required under to Item 404(b) of Regulation S-K; or (ii) is
otherwise considered a "non-employee director" for purposes of Rule 16b-3.
(v) "Nonstatutory Stock Option" means an Option not intended to qualify
as an Incentive Stock Option.
(w) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(x) "Option" means an Incentive Stock Option or a Nonstatutory Stock
Option granted pursuant to the Plan.
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(y) "Option Agreement" means a written agreement between the Company
and an Optionholder evidencing the terms and conditions of an individual Option
grant. Each Option Agreement shall be subject to the terms and conditions of the
Plan.
(z) "Optionholder" means a person to whom an Option is granted pursuant
to the Plan or, if applicable, such other person who holds an outstanding
Option.
(aa) "Other Stock Awards" means an award based in whole or in part by
reference to the Common Stock which is granted pursuant to the terms and
conditions of Section 7(f).
(bb) "Outside Director" means a Director who either (i) is not a
current employee of the Company or an "affiliated corporation" (within the
meaning of Treasury Regulations promulgated under Section 162(m) of the Code),
is not a former employee of the Company or an "affiliated corporation" who
receives compensation for prior services (other than benefits under a
tax-qualified retirement plan) during the taxable year, has not been an officer
of the Company or an "affiliated corporation", and does not receive remuneration
from the Company or an "affiliated corporation," either directly or indirectly,
in any capacity other than as a Director or (ii) is otherwise considered an
"outside director" for purposes of Section 162(m) of the Code.
(cc) "Own," "Owned," "Owner," "Ownership." A person or Entity shall be
deemed to "Own," to have "Owned," to be the "Owner" of, or to have acquired
"Ownership" of securities if such person or Entity, directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise, has
or shares voting power, which includes the power to vote or to direct the
voting, with respect to such securities.
(dd) "Participant" means a person to whom a Stock Award is granted
pursuant to the Plan or, if applicable, such other person who holds an
outstanding Stock Award.
(ee) "Plan" means this PlanetOut Inc. 2004 Equity Incentive Plan.
(ff) "Phantom Stock" means a right to receive shares of Common Stock
which is granted pursuant to the terms and conditions of Section 7(e).
(gg) "Restricted Stock Award" means an award of shares of Common Stock
which is granted pursuant to the terms and conditions of Section 7(b).
(hh) "Restricted Stock Unit Award" means award under which the Company
agrees to issue shares of Common Stock in the future to a Participant on terms
and conditions determined by the Board, pursuant to a grant made under the terms
and conditions of Section 7(c).
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(ii) "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act
or any successor to Rule 16b-3, as in effect from time to time.
(jj) "Securities Act" means the Securities Act of 1933, as amended.
(kk) "Stock Appreciation Right" means a stock appreciation right
entitling a Participant to receive a bonus equal to the appreciation in the
value of Common Stock over an amount determined by the Board, pursuant to a
grant made under the terms and conditions of Section 7(d).
(ll) "Stock Award" means any right granted under the Plan, including an
Option, a Stock Appreciation Right, a Restricted Stock Award, a Restricted Stock
Unit Award, Phantom Stock, a Stock Bonus and an Other Stock Award.
(mm) "Stock Award Agreement" means a written agreement between the
Company and a holder of a Stock Award evidencing the terms and conditions of an
individual Stock Award grant. Each Stock Award Agreement shall be subject to the
terms and conditions of the Plan.
(nn) "Stock Bonus" means a right to receive shares of Common Stock
which is granted pursuant to the terms and conditions of Section 7(a).
(oo) "Subsidiary" means, with respect to the Company, (i) any
corporation of which more than fifty percent (50%) of the outstanding capital
stock having ordinary voting power to elect a majority of the board of directors
of such corporation (irrespective of whether, at the time, stock of any other
class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time, directly or
indirectly, Owned by the Company, and (ii) any partnership in which the Company
has a direct or indirect interest (whether in the form of voting or
participation in profits or capital contribution) of more than fifty percent
(50%).
(pp) "Ten Percent Stockholder" means a person who Owns (or is deemed to
Own pursuant to Section 424(d) of the Code) stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company or of any of its Affiliates.
3. ADMINISTRATION.
(a) Administration by the Board. The Board shall administer the Plan
unless and until the Board delegates administration to a Committee, as provided
in Section 3(c).
(b) Powers of the Board. The Board shall have the power, subject to,
and within the limitations of, the express provisions of the Plan:
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(i) To determine from time to time which of the persons
eligible under the Plan shall be granted Stock Awards; when and how each Stock
Award shall be granted; what type or combination of types of Stock Award shall
be granted; the provisions of each Stock Award granted (which need not be
identical), including the time or times when a person shall be permitted to
receive Common Stock pursuant to a Stock Award; and the number of shares of
Common Stock with respect to which a Stock Award shall be granted to each such
person.
(ii) To construe and interpret the Plan and Stock Awards
granted under it, and to establish, amend and revoke rules and regulations for
its administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any Stock Award Agreement,
in a manner and to the extent it shall deem necessary or expedient to make the
Plan fully effective.
(iii) To effect, at any time and from time to time, with
the consent of any adversely affected Optionholder, (1) the reduction of the
exercise price of any outstanding Option under the Plan, (2) the cancellation of
any outstanding Option under the Plan and the grant in substitution therefor of
(A) a new Option under the Plan or another equity plan of the Company covering
the same or a different number of shares of Common Stock, (B) a Restricted Stock
Award (including a Stock Bonus), (C) a Stock Appreciation Right, (D) Phantom
Stock, (E) a Restricted Stock Unit Award, (F) an Other Stock Award, (G) cash
and/or (H) other valuable consideration (as determined by the Board in its sole
discretion), or (3) any other action that is treated as a repricing under
generally accepted accounting principles.
(iv) To amend the Plan or a Stock Award as provided in
Section 12.
(v) To terminate or suspend the Plan as provided in
Section 13.
(vi) Generally, to exercise such powers and to perform
such acts as the Board deems necessary or expedient to promote the best
interests of the Company and that are not in conflict with the provisions of the
Plan.
(c) Delegation to Committee.
(i) General. The Board may delegate administration of the
Plan to a Committee or Committees of one (1) or more members of the Board, and
the term "Committee" shall apply to any person or persons to whom such authority
has been delegated. If administration is delegated to a Committee, the Committee
shall have, in connection with the administration of the Plan, the powers
theretofore possessed by the Board, including the power to delegate to a
subcommittee any of the administrative powers the Committee is authorized to
exercise (and references in this Plan to the Board shall thereafter be to the
Committee or subcommittee), subject, however, to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted from time
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to time by the Board. The Board may abolish the Committee at any time and revest
in the Board the administration of the Plan.
(ii) Section 162(m) and Rule 16b-3 Compliance. In the
discretion of the Board, the Committee may consist solely of two or more Outside
Directors, in accordance with Section 162(m) of the Code, and/or solely of two
or more Non-Employee Directors, in accordance with Rule 16b-3. Within the scope
of such authority, the Board or the Committee may delegate to a committee of one
or more members of the Board the authority to grant Stock Awards to eligible
persons who are either (a) not then Covered Employees and are not expected to be
Covered Employees at the time of recognition of income resulting from such Stock
Award, (b) not persons with respect to whom the Company wishes to comply with
Section 162(m) of the Code, or (c) not then subject to Section 16 of the
Exchange Act.
(d) Delegation to an Officer. The Board may delegate to one or more
Officers of the Company the authority to do one or both of the following (i)
designate Officers and Employees of the Company or any of its Subsidiaries to be
recipients of Stock Awards and (ii) determine the number of shares of Common
Stock to be subject to such Stock Awards granted to such Officers and Employees
of the Company; provided, however, that the Board resolutions regarding such
delegation shall specify the total number of shares of Common Stock that may be
subject to the Stock Awards granted by such Officer and that such Officer may
not grant a Stock Award to himself or herself. Notwithstanding the foregoing,
the Board may not delegate authority to an Officer to determine the Fair Market
Value of the Common Stock.
(e) Effect of Board's Decision. All determinations, interpretations and
constructions made by the Board in good faith shall not be subject to review by
any person and shall be final, binding and conclusive on all persons.
(f) Arbitration. Any dispute or claim concerning any Stock Awards
granted (or not granted) pursuant to the Plan or any disputes or claims relating
to or arising out of the Plan shall be fully, finally and exclusively resolved
by binding and confidential arbitration conducted pursuant to the Commercial
Arbitration Rules of the American Arbitration Association the rules of Judicial
Arbitration and Mediation Services, Inc. ("JAMS") in San Francisco, California.
The Company shall pay all arbitration fees. In addition to any other relief, the
arbitrator may award to the prevailing party recovery of its attorneys' fees and
costs. By accepting a Stock Award, Participants and the Company waive their
respective rights to have any such disputes or claims tried by a judge or jury.
4. SHARES SUBJECT TO THE PLAN.
(a) Share Reserve. Subject to the provisions of Section 11(a) relating
to Capitalization Adjustments, the shares of Common Stock that may be issued
pursuant to Stock Awards shall not exceed in the aggregate six million
(6,000,000) shares of
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Common Stock, plus an annual increase to be added on the first day of the fiscal
year of the Company for a period of ten (10) years, commencing on the first day
of the fiscal year that begins on January 1, 2005 and ending on (and including)
the first day of the fiscal year that begins on January 1, 2014 (each such day,
a "Calculation Date"), equal to the lesser of (i) four percent (4%) of the
shares of Common Stock outstanding on each such Calculation Date (rounded down
to the nearest whole share); (ii) six million (6,000,000) shares of Common
Stock; or (iii) the number of shares determined by the Board prior to the first
day of any fiscal year of the Company, which number shall be less than each of
(i) and (ii).
(b) Reversion of Shares to the Share Reserve. If any Stock Award shall
for any reason expire or otherwise terminate, in whole or in part, without
having been exercised in full, the shares of Common Stock not acquired under
such Stock Award shall revert to and again become available for issuance under
the Plan.
(c) Source of Shares. The shares of Common Stock subject to the Plan
may be unissued shares or reacquired shares, bought on the market or otherwise.
5. ELIGIBILITY.
(a) Eligibility for Specific Stock Awards. Incentive Stock Options may
be granted only to Employees. Stock Awards other than Incentive Stock Options
may be granted to Employees, Directors and Consultants.
(b) Ten Percent Stockholders. A Ten Percent Stockholder shall not be
granted an Incentive Stock Option unless the exercise price of such Option is at
least one hundred ten percent (110%) of the Fair Market Value of the Common
Stock on the date of grant and the Option is not exercisable after the
expiration of five (5) years from the date of grant.
(c) Section 162(m) Limitation on Annual Grants. Subject to the
provisions of Section 11(a) relating to Capitalization Adjustments, no Employee
shall be eligible to be granted Options covering more than three million
(3,000,000) shares of Common Stock during any calendar year.
(d) Consultants. A Consultant shall not be eligible for the grant of a
Stock Award if, at the time of grant, a Form S-8 Registration Statement under
the Securities Act ("Form S-8") is not available to register either the offer or
the sale of the Company's securities to such Consultant because of the nature of
the services that the Consultant is providing to the Company, because the
Consultant is not a natural person, or because of any other rule governing the
use of Form S-8, unless the Company determines both (i) that such grant (A)
shall be registered in another manner under the Securities Act (e.g., on a Form
S-3 Registration Statement) or (B) does not require registration under the
Securities Act in order to comply with the requirements of the Securities Act,
if
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applicable, and (ii) that such grant complies with the securities laws of all
other relevant jurisdictions.
6. OPTION PROVISIONS.
Each Option shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. All Options shall be separately
designated Incentive Stock Options or Nonstatutory Stock Options at the time of
grant, and, if certificates are issued, a separate certificate or certificates
shall be issued for shares of Common Stock purchased on exercise of each type of
Option. The provisions of separate Options need not be identical, but each
Option shall include (through incorporation of provisions hereof by reference in
the Option or otherwise) the substance of each of the following provisions:
(a) Term. Subject to the provisions of Section 5(b) regarding Ten
Percent Stockholders, no Incentive Stock Option shall be exercisable after the
expiration of ten (10) years from the date on which it was granted.
(b) Exercise Price of an Incentive Stock Option. Subject to the
provisions of Section 5(b) regarding Ten Percent Stockholders, the exercise
price of each Incentive Stock Option shall be not less than one hundred percent
(100%) of the Fair Market Value of the Common Stock subject to the Option on the
date the Option is granted. Notwithstanding the foregoing, an Incentive Stock
Option may be granted with an exercise price lower than that set forth in the
preceding sentence if such Option is granted pursuant to an assumption or
substitution for another option in a manner satisfying the provisions of Section
424(a) of the Code.
(c) Exercise Price of a Nonstatutory Stock Option. The exercise price
of each Nonstatutory Stock Option shall be not less than eighty-five percent
(85%) of the Fair Market Value of the Common Stock subject to the Option on the
date the Option is granted. Notwithstanding the foregoing, a Nonstatutory Stock
Option may be granted with an exercise price lower than that set forth in the
preceding sentence if such Option is granted pursuant to an assumption or
substitution for another option in a manner satisfying the provisions of Section
424(a) of the Code.
(d) Consideration. The purchase price of Common Stock acquired pursuant
to an Option shall be paid, to the extent permitted by applicable statutes and
regulations, either (i) in cash at the time the Option is exercised or (ii) at
the discretion of the Board at the time of the grant of the Option (or
subsequently in the case of a Nonstatutory Stock Option) (1) by delivery to the
Company of other Common Stock, (2) according to a deferred payment or other
similar arrangement with the Optionholder or (3) in any other form of legal
consideration that may be acceptable to the Board. Unless otherwise specifically
provided in the Option, the purchase price of Common Stock acquired pursuant to
an Option that is paid by delivery to the Company of other Common Stock
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acquired, directly or indirectly from the Company, shall be paid only by shares
of the Common Stock of the Company that have been held for more than six (6)
months (or such longer or shorter period of time required to avoid a charge to
earnings for financial accounting purposes). At any time that the Company is
incorporated in Delaware, payment of the Common Stock's "par value," as defined
in the Delaware General Corporation Law, shall not be made by deferred payment.
In the case of any deferred payment arrangement, interest shall be
compounded at least annually and shall be charged at the minimum rate of
interest necessary to avoid (1) the treatment as interest, under any applicable
provisions of the Code, of any amounts other than amounts stated to be interest
under the deferred payment arrangement and (2) the treatment of the Option as a
variable award for financial accounting purposes.
(e) Transferability of an Incentive Stock Option. An Incentive Stock
Option shall not be transferable except by will or by the laws of descent and
distribution and shall be exercisable during the lifetime of the Optionholder
only by the Optionholder. Notwithstanding the foregoing, the Optionholder may,
by delivering written notice to the Company, in a form satisfactory to the
Company, designate a third party who, in the event of the death of the
Optionholder, shall thereafter be entitled to exercise the Option.
(f) Transferability of a Nonstatutory Stock Option. A Nonstatutory
Stock Option shall be transferable to the extent provided in the Option
Agreement. If the Nonstatutory Stock Option does not provide for
transferability, then the Nonstatutory Stock Option shall not be transferable
except by will or by the laws of descent and distribution and shall be
exercisable during the lifetime of the Optionholder only by the Optionholder.
Notwithstanding the foregoing, the Optionholder may, by delivering written
notice to the Company, in a form satisfactory to the Company, designate a third
party who, in the event of the death of the Optionholder, shall thereafter be
entitled to exercise the Option.
(g) Vesting Generally. The total number of shares of Common Stock
subject to an Option may, but need not, vest and therefore become exercisable in
periodic installments that may, but need not, be equal. The Option may be
subject to such other terms and conditions on the time or times when it may be
exercised (which may be based on performance or other criteria) as the Board may
deem appropriate. The vesting provisions of individual Options may vary. The
provisions of this Section 6(g) are subject to any Option provisions governing
the minimum number of shares of Common Stock as to which an Option may be
exercised.
(h) Termination of Continuous Service. In the event that an
Optionholder's Continuous Service terminates (other than upon the Optionholder's
death or Disability), the Optionholder may exercise his or her Option (to the
extent that the Optionholder was entitled to exercise such Option as of the date
of termination) but only within such period of time ending on the earlier of (i)
the date three (3) months following the termination of the Optionholder's
Continuous Service (or such longer or shorter period specified in the
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Option Agreement or (ii) the expiration of the term of the Option as set forth
in the Option Agreement. If, after termination, the Optionholder does not
exercise his or her Option within the time specified in the Option Agreement,
the Option shall terminate.
(i) Extension of Termination Date. An Optionholder's Option Agreement
may also provide that if the exercise of the Option following the termination of
the Optionholder's Continuous Service (other than upon the Optionholder's death
or Disability) would be prohibited at any time solely because the issuance of
shares of Common Stock would violate the registration requirements under the
Securities Act, then the Option shall terminate on the earlier of (i) the
expiration of the term of the Option set forth in Section 6(a) or (ii) the
expiration of a period of three (3) months after the termination of the
Optionholder's Continuous Service during which the exercise of the Option would
not be in violation of such registration requirements.
(j) Disability of Optionholder. In the event that an Optionholder's
Continuous Service terminates as a result of the Optionholder's Disability, the
Optionholder may exercise his or her Option (to the extent that the Optionholder
was entitled to exercise such Option as of the date of termination), but only
within such period of time ending on the earlier of (i) the date twelve (12)
months following such termination (or such longer or shorter period specified in
the Option Agreement or (ii) the expiration of the term of the Option as set
forth in the Option Agreement. If, after termination, the Optionholder does not
exercise his or her Option within the time specified herein, the Option shall
terminate.
(k) Death of Optionholder. In the event that (i) an Optionholder's
Continuous Service terminates as a result of the Optionholder's death or (ii)
the Optionholder dies within the period (if any) specified in the Option
Agreement after the termination of the Optionholder's Continuous Service for a
reason other than death, then the Option may be exercised (to the extent the
Optionholder was entitled to exercise such Option as of the date of death) by
the Optionholder's estate, by a person who acquired the right to exercise the
Option by bequest or inheritance or by a person designated to exercise the
option upon the Optionholder's death pursuant to Section 6(e) or 6(f), but only
within the period ending on the earlier of (1) the date eighteen (18) months
following the date of death (or such longer or shorter period specified in the
Option Agreement or (2) the expiration of the term of such Option as set forth
in the Option Agreement. If, after death, the Option is not exercised within the
time specified herein, the Option shall terminate.
(l) Early Exercise. The Option may, but need not, include a provision
whereby the Optionholder may elect at any time before the Optionholder's
Continuous Service terminates to exercise the Option as to any part or all of
the shares of Common Stock subject to the Option prior to the full vesting of
the Option. Any unvested shares of Common Stock so purchased may be subject to a
repurchase option in favor of the Company or to any other restriction the Board
determines to be appropriate. The Company will not exercise its repurchase
option until at least six (6) months (or such
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longer or shorter period of time required to avoid a charge to earnings for
financial accounting purposes) have elapsed following exercise of the Option
unless the Board otherwise specifically provides in the Option.
7. PROVISIONS OF STOCK AWARDS OTHER THAN OPTIONS.
(a) Stock Bonus Awards. Each Stock Bonus agreement shall be in such
form and shall contain such terms and conditions as the Board shall deem
appropriate. The terms and conditions of Stock Bonus agreements may change from
time to time, and the terms and conditions of separate Stock Bonus agreements
need not be identical, but each Stock Bonus agreement shall include (through
incorporation of provisions hereof by reference in the agreement or otherwise)
the substance of each of the following provisions:
(i) Consideration. A Stock Bonus may be awarded in
consideration for past services actually rendered to the Company or an Affiliate
for its benefit (i.e., with no cash purchase price to be paid) to the extent
permissible under applicable law.
(ii) Vesting. Shares of Common Stock awarded under the
Stock Bonus agreement may, but need not, be subject to a share repurchase option
in favor of the Company in accordance with a vesting schedule to be determined
by the Board.
(iii) Termination of Participant's Continuous Service. In
the event that a Participant's Continuous Service terminates, the Company may
reacquire any or all of the shares of Common Stock held by the Participant that
have not vested as of the date of termination under the terms of the Stock Bonus
agreement. The Company will not exercise its repurchase option until at least
six (6) months (or such longer or shorter period of time required to avoid a
change to earnings for financial accounting purposes) have elapsed following
receipt of the Stock Bonus unless otherwise specifically provided in the Stock
Bonus agreement.
(iv) Transferability. Rights to acquire shares of Common
Stock under the Stock Bonus agreement shall be transferable by the Participant
only upon such terms and conditions as are set forth in the Stock Bonus
agreement, as the Board shall determine in its discretion, so long as Common
Stock awarded under the Stock Bonus agreement remains subject to the terms of
the Stock Bonus agreement.
(b) Restricted Stock Awards. Each Restricted Stock Award purchase
agreement shall be in such form and shall contain such terms and conditions as
the Board shall deem appropriate. The terms and conditions of the Restricted
Stock Award purchase agreements may change from time to time, and the terms and
conditions of separate Restricted Stock Award purchase agreements need not be
identical, but each Restricted Stock Award purchase agreement shall include
(through incorporation of the provisions hereof by reference in the agreement or
otherwise) the substance of each of the following provisions:
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(i) Purchase Price. At the time of the grant of a
Restricted Stock Award, the Board will determine the price to be paid by the
Participant for each share subject to the Restricted Stock Award. To the extent
required by applicable law, the price to be paid by the Participant for each
share of the Restricted Stock Award will not be less than the par value of a
share of Common Stock.
(ii) Consideration. The purchase price of Common Stock
acquired pursuant to the Restricted Stock Award purchase agreement shall be paid
either: (i) in cash at the time of purchase; (ii) at the discretion of the
Board, according to a deferred payment or other similar arrangement with the
Participant; (iii) by services rendered or to be rendered to the Company; or
(iv) in any other form of legal consideration that may be acceptable to the
Board in its discretion; provided, however, that at any time that the Company is
incorporated in Delaware, the Common Stock's "par value," as defined in the ,
shall not be paid by deferred payment and must be paid in a form of
consideration that is permissible under the Delaware General Corporation Law.
(iii) Vesting. Shares of Common Stock acquired under the
Restricted Stock Award may, but need not, be subject to a share repurchase
option in favor of the Company in accordance with a vesting schedule to be
determined by the Board.
(iv) Termination of Participant's Continuous Service. In
the event that a Participant's Continuous Service terminates, the Company may
repurchase or otherwise reacquire any or all of the shares of Common Stock held
by the Participant that have not vested as of the date of termination under the
terms of the Restricted Stock Award. The Company will not exercise its
repurchase option until at least six (6) months (or such longer or shorter
period of time required to avoid a charge to earnings for financial accounting
purposes) have elapsed following the purchase of the Restricted Stock Award
unless otherwise determined by the Board or provided in the Restricted Stock
Award purchase agreement.
(v) Transferability. Rights to acquire shares of Common
Stock under the Restricted Stock Award purchase agreement shall be transferable
by the Participant only upon such terms and conditions as are set forth in the
Restricted Stock Award purchase agreement, as the Board shall determine in its
discretion, and so long as Common Stock awarded under the Restricted Stock Award
purchase agreement remains subject to the terms of the Restricted Stock Award
purchase agreement.
(c) Restricted Stock Unit Awards. Each Restricted Stock Unit Award
shall be made pursuant to a Stock Award Agreement in such form, and containing
such terms and conditions, as the Board shall deem appropriate. The terms and
conditions of separate Stock Award Agreements relating to Restricted Stock Unit
Awards need not be identical. Any recipient of a Restricted Stock Unit Award
will have only the rights of a general unsecured creditor of the Company until
delivery of shares of Common Stock is made as specified in the agreement
relating to such Restricted Stock Unit Award.
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(d) Stock Appreciation Rights. Each grant of Stock Appreciation Rights
shall be made pursuant to a Stock Award Agreement in such form, and containing
such terms and conditions as the Board shall deem appropriate. The terms and
conditions of separate Stock Award Agreements relating to Stock Appreciation
Rights need not be identical, but each such Stock Award Agreement shall include
(through incorporation of the provisions hereof by reference in the agreement or
otherwise) the substance of each of the following provisions:
(i) Exercise Price and Calculation of Appreciation. Each
Stock Appreciation Right will be denominated in shares of Common Stock
equivalents. The appreciation distribution payable upon the exercise of a Stock
Appreciation Right shall be not greater than an amount equal to: (1) the
aggregate Fair Market Value (on the date of the exercise of the Stock
Appreciation Right) of a number of shares of Common Stock equal to the number of
share of Common Stock equivalents in which the Participant is vested under such
Stock Appreciation Right and with respect to which the Participant is exercising
the Stock Appreciation Right on such date; less (2) an amount that will be
determined by the Board at the time of grant of the Stock Appreciation Right.
(ii) Vesting. At the time of the grant of a Stock
Appreciation Right, the Board may impose such restrictions or conditions to the
vesting of such Right as it deems appropriate.
(iii) Exercise. To exercise any outstanding Stock
Appreciation Right, the Participant must provide written notice of exercise to
the Company in compliance with the provisions of the Stock Award Agreement
evidencing such Stock Appreciation Right.
(iv) Payment. The appreciation distribution in respect of
a Stock Appreciation Right may be paid in Common Stock, in cash, or any
combination of the two, as the Board deems appropriate.
(v) Termination of Continuous Service. In the event that
a Participant's Continuous Service terminates, the Participant may exercise his
or her Stock Appreciation Right (to the extent that the Participant was entitled
to exercise such Stock Appreciation Right as of the date of termination) but
only within such period of time ending on the earlier of (i) the date three (3)
months following the termination of the Participant's Continuous Service (or
such longer or shorter period specified in the Stock Appreciation Rights
agreement) or (ii) the expiration of the term of the Stock Appreciation Right as
set forth in the Stock Appreciation Rights agreement. If, after such
termination, the Participant does not exercise his or her Stock Appreciation
Right within the time specified in the Stock Appreciation Rights agreement, the
Stock Appreciation Right shall terminate.
(e) Phantom Stock. Each Phantom Stock agreement shall be in such form
and shall contain such terms and conditions as the Board shall determine. The
terms and conditions of Phantom Stock agreements may change from time to time,
and the terms and
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conditions of separate Phantom Stock agreements need not be identical; provided,
however, that each Phantom Stock agreement shall include (through incorporation
of the provisions hereof by reference in the agreement or otherwise) the
substance of each of the following provisions:
(i) Consideration. At the time of grant of a Phantom
Stock award, the Board will determine the consideration, if any, to be paid by
the Participant upon delivery of each share of Common Stock subject to the
Phantom Stock award. To the extent required by applicable law, the consideration
to be paid by the Participant for each share of Common Stock subject to a
Phantom Stock award will not be less than the par value of a share of Common
Stock. Such consideration may be paid in any form permitted under applicable
law.
(ii) Vesting. At the time of the grant of a Phantom Stock
award, the Board may impose such restrictions or conditions to the vesting of
the shares Phantom Stock as it deems appropriate.
(iii) Payment. A Phantom Stock award may be settled by the
delivery of shares of Common Stock, their cash equivalent, or any combination of
the two, as the Board deems appropriate.
(iv) Additional Restrictions. At the time of the grant of
a Phantom Stock award, the Board, as it deems appropriate, may impose such
restrictions or conditions that delay the delivery of the shares of Common Stock
(or their cash equivalent) subject to a Phantom Stock award after the vesting
thereof.
(v) Dividend Equivalents. Dividend equivalents may be
credited in respect of shares of Phantom Stock, as the Board deems appropriate.
Such dividend equivalents may be converted into additional shares of Phantom
Stock by dividing (1) the aggregate amount or value of the dividends paid with
respect to that number of shares of Common Stock equal to the number of shares
of Phantom Stock then credited by (2) the Fair Market Value per share of Common
Stock on the payment date for such dividend. The additional shares of Phantom
Stock credited by reason of such dividend equivalents will be subject to all the
terms and conditions of the underlying Phantom Stock award to which they relate.
(vi) Termination Continuous Service. Except as otherwise
provided in the applicable Stock Award Agreement, shares of Phantom Stock that
have not vested will be forfeited upon the Participant's termination of
Continuous Service for any reason.
(f) Other Stock Awards. Other forms of Stock Awards valued in whole or
in part by reference to, or otherwise based on, Common Stock may be granted
either alone or in addition to Stock Awards provided for under Section 6 and the
preceding provisions of
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this Section 7. Subject to the provisions of the Plan, the Board shall have sole
and complete authority to determine the persons to whom and the time or times at
which such Other Stock Awards will be granted, the number of shares of Common
Stock (or the cash equivalent thereof) to be granted pursuant to such Awards and
all other terms and conditions of such Awards.
(g) Deferral of Award Payment. The Board may establish one or more
programs under the Plan to permit selected Participants to elect to defer
receipt of consideration upon exercise of a Stock Award, the satisfaction of
performance criteria, or other events which, absent such an election, would
entitle such Participants to payment or receipt of Common Stock or other
consideration under a Stock Award. The Board may establish the election
procedures of such deferrals, the mechanisms for payment of Common Stock or
other consideration subject to deferral (including accrual of interest or other
earnings, if any, on amounts with respect thereto) and such other terms,
conditions, rules and procedures that the Board deems advisable.
8. COVENANTS OF THE COMPANY.
(a) Availability of Shares. During the terms of the Stock Awards, the
Company shall keep available at all times the number of shares of Common Stock
required to satisfy such Stock Awards.
(b) Securities Law Compliance. The Company shall seek to obtain from
each regulatory commission or agency having jurisdiction over the Plan such
authority as may be required to grant Stock Awards and to issue and sell shares
of Common Stock upon exercise of the Stock Awards; provided, however, that this
undertaking shall not require the Company to register under the Securities Act
the Plan, any Stock Award or any Common Stock issued or issuable pursuant to any
such Stock Award. If, after reasonable efforts, the Company is unable to obtain
from any such regulatory commission or agency the authority which counsel for
the Company deems necessary for the lawful issuance and sale of Common Stock
under the Plan, the Company shall be relieved from any liability for failure to
issue and sell Common Stock upon exercise of such Stock Awards unless and until
such authority is obtained.
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9. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of Common Stock pursuant to Stock Awards shall
constitute general funds of the Company.
10. MISCELLANEOUS.
(a) Acceleration of Exercisability and Vesting. The Board shall have
the power to accelerate the time at which a Stock Award may first be exercised
or the time during which a Stock Award or any part thereof will vest in
accordance with the Plan, notwithstanding the provisions in the Stock Award
stating the time at which it may first be exercised or the time during which it
will vest.
(b) Stockholder Rights. Subject to the further limitations of Section
7(e)(iv) hereof, no Participant shall be deemed to be the holder of, or to have
any of the rights of a holder with respect to, any shares of Common Stock
subject to such Stock Award unless and until such Participant has satisfied all
requirements for exercise of the Stock Award pursuant to its terms.
(c) No Employment or other Service Rights. Nothing in the Plan or any
instrument executed or Stock Award granted pursuant thereto shall confer upon
any Participant any right to continue to serve the Company or an Affiliate in
the capacity in effect at the time the Stock Award was granted or shall affect
the right of the Company or an Affiliate to terminate (i) the employment of an
Employee with or without notice and with or without cause, (ii) the service of a
Consultant pursuant to the terms of such Consultant's agreement with the Company
or an Affiliate or (iii) the service of a Director pursuant to the Bylaws of the
Company or an Affiliate, and any applicable provisions of the corporate law of
the state in which the Company or the Affiliate is incorporated, as the case may
be.
(d) Incentive Stock Option $100,000 Limitation. To the extent that the
aggregate Fair Market Value (determined at the time of grant) of Common Stock
with respect to which Incentive Stock Options are exercisable for the first time
by any Optionholder during any calendar year (under all plans of the Company and
its Affiliates) exceeds one hundred thousand dollars ($100,000), the Options or
portions thereof that exceed such limit (according to the order in which they
were granted) shall be treated as Nonstatutory Stock Options, notwithstanding
any contrary provision of a Stock Award Agreement.
(e) Investment Assurances. The Company may require a Participant, as a
condition of exercising or acquiring Common Stock under any Stock Award, (i) to
give written assurances satisfactory to the Company as to the Participant's
knowledge and experience in financial and business matters and/or to employ a
purchaser representative reasonably satisfactory to the Company who is
knowledgeable and experienced in financial and business matters and that he or
she is capable of evaluating, alone or
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together with the purchaser representative, the merits and risks of exercising
the Stock Award and (ii) to give written assurances satisfactory to the Company
stating that the Participant is acquiring Common Stock subject to the Stock
Award for the Participant's own account and not with any present intention of
selling or otherwise distributing the Common Stock. The foregoing requirements,
and any assurances given pursuant to such requirements, shall be inoperative if
(1) the issuance of the shares of Common Stock upon the exercise or acquisition
of Common Stock under the Stock Award has been registered under a then currently
effective registration statement under the Securities Act or (2) as to any
particular requirement, a determination is made by counsel for the Company that
such requirement need not be met in the circumstances under the then applicable
securities laws. The Company may, upon advice of counsel to the Company, place
legends on stock certificates issued under the Plan as such counsel deems
necessary or appropriate in order to comply with applicable securities laws,
including, but not limited to, legends restricting the transfer of the Common
Stock.
(f) Withholding Obligations. To the extent provided by the terms of a
Stock Award Agreement, the Participant may satisfy any federal, state or local
tax withholding obligation relating to the exercise or acquisition of Common
Stock under a Stock Award by any of the following means (in addition to the
Company's right to withhold from any compensation paid to the Participant by the
Company) or by a combination of such means: (i) tendering a cash payment; (ii)
authorizing the Company to withhold shares of Common Stock from the shares of
Common Stock otherwise issuable to the Participant as a result of the exercise
or acquisition of Common Stock under the Stock Award; provided, however, that no
shares of Common Stock are withheld with a value exceeding the minimum amount of
tax required to be withheld by law (or such lesser amount as may be necessary to
avoid variable award accounting); or (iii) delivering to the Company owned and
unencumbered shares of Common Stock.
11. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) Capitalization Adjustments. If any change is made in, or other
event occurs with respect to, the Common Stock subject to the Plan or subject to
any Stock Award without the receipt of consideration by the Company (through
merger, consolidation, reorganization, recapitalization, reincorporation, stock
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or other transaction not involving the receipt of consideration by the
Company (each a "Capitalization Adjustment"), the Plan will be appropriately
adjusted in the class(es) and maximum number of securities subject to the Plan
pursuant to Sections 4(a) and 4(b) and the maximum number of securities subject
to award to any person pursuant to Section 5(c), and the outstanding Stock
Awards will be appropriately adjusted in the class(es) and number of securities
and price per share of Common Stock subject to such outstanding Stock Awards.
The Board shall make such adjustments, and its determination shall be final,
binding and conclusive. (The
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conversion of any convertible securities of the Company shall not be treated as
a transaction "without receipt of consideration" by the Company.)
(b) Dissolution or Liquidation. In the event of a dissolution or
liquidation of the Company, then all outstanding Stock Awards shall terminate
immediately prior to the completion of such dissolution or liquidation, and
shares of Common Stock subject to the Company's repurchase option may be
repurchased by the Company notwithstanding the fact that the holder of such
stock is still in Continuous Service.
(c) Corporate Transaction. In the event of a Corporate Transaction, any
surviving corporation or acquiring corporation may assume or continue any or all
Stock Awards outstanding under the Plan or may substitute similar stock awards
for Stock Awards outstanding under the Plan (it being understood that similar
stock awards include, but are not limited to, awards to acquire the same
consideration paid to the stockholders or the Company, as the case may be,
pursuant to the Corporate Transaction), and any reacquisition or repurchase
rights held by the Company in respect of Common Stock issued pursuant to Stock
Awards may be assigned by the Company to the successor of the Company (or the
successor's parent company), if any, in connection with such Corporate
Transaction. In the event that any surviving corporation or acquiring
corporation does not assume or continue any or all such outstanding Stock Awards
or substitute similar stock awards for such outstanding Stock Awards, then with
respect to Stock Awards that have been not assumed, continued or substituted and
that are held by Participants whose Continuous Service has not terminated prior
to the effective time of the Corporate Transaction, the vesting of such Stock
Awards (and, if applicable, the time at which such Stock Awards may be
exercised) shall (contingent upon the effectiveness of the Corporate
Transaction) be accelerated in full to a date prior to the effective time of
such Corporate Transaction as the Board shall determine (or, if the Board shall
not determine such a date, to the date that is five (5) days prior to the
effective time of the Corporate Transaction), the Stock Awards shall terminate
if not exercised (if applicable) at or prior to such effective time, and any
reacquisition or repurchase rights held by the Company with respect to such
Stock Awards held by Participants whose Continuous Service has not terminated
shall (contingent upon the effectiveness of the Corporate Transaction) lapse.
With respect to any other Stock Awards outstanding under the Plan that have not
been assumed, continued or substituted, the vesting of such Stock Awards (and,
if applicable, the time at which such Stock Award may be exercised) shall not be
accelerated, unless otherwise provided in a written agreement between the
Company or any Affiliate and the holder of such Stock Award, and such Stock
Awards shall terminate if not exercised (if applicable) prior to the effective
time of the Corporate Transaction.
(d) Change in Control. A Stock Award held by any Participant whose
Continuous Service has not terminated prior to the effective time of a Change in
Control may be subject to additional acceleration of vesting and exercisability
upon or after such event as may be
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provided in the Stock Award Agreement for such Stock Award or as may be provided
in any other written agreement between the Company or any Affiliate and the
Participant, but in the absence of such provision, no such acceleration shall
occur.
12. AMENDMENT OF THE PLAN AND STOCK AWARDS.
(a) Amendment of Plan. The Board at any time, and from time to time,
may amend the Plan. However, except as provided in Section 11(a) relating to
Capitalization Adjustments, no amendment shall be effective unless approved by
the stockholders of the Company to the extent stockholder approval is necessary
to satisfy the requirements of Section 422 of the Code or other applicable law.
(b) Stockholder Approval. The Board, in its sole discretion, may submit
any other amendment to the Plan for stockholder approval, including, but not
limited to, amendments to the Plan intended to satisfy the requirements of
Section 162(m) of the Code and the regulations thereunder regarding the
exclusion of performance-based compensation from the limit on corporate
deductibility of compensation paid to Covered Employees.
(c) Contemplated Amendments. It is expressly contemplated that the
Board may amend the Plan in any respect the Board deems necessary or advisable
to provide eligible Employees with the maximum benefits provided or to be
provided under the provisions of the Code and the regulations promulgated
thereunder relating to Incentive Stock Options and/or to bring the Plan and/or
Incentive Stock Options granted under it into compliance therewith.
(d) No Impairment of Rights. Rights under any Stock Award granted
before amendment of the Plan shall not be impaired by any amendment of the Plan
unless (i) the Company requests the consent of the Participant and (ii) the
Participant consents in writing.
(e) Amendment of Stock Awards. The Board at any time, and from time to
time, may amend the terms of any one or more Stock Awards; provided, however,
that the rights under any Stock Award shall not be impaired by any such
amendment unless (i) the Company requests the consent of the Participant and
(ii) the Participant consents in writing.
13. TERMINATION OR SUSPENSION OF THE PLAN.
(a) Plan Term. The Board may suspend or terminate the Plan at any time.
Unless sooner terminated, the Plan shall terminate on the day before the tenth
(10th) anniversary of the date the Plan is adopted by the Board or approved by
the stockholders of the Company, whichever is earlier. No Stock Awards may be
granted under the Plan while the Plan is suspended or after it is terminated.
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(b) No Impairment of Rights. Suspension or termination of the Plan
shall not impair rights and obligations under any Stock Award granted while the
Plan is in effect except with the written consent of the Participant.
14. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board, but no
Stock Award shall be exercised (or, in the case of a Stock Bonus, shall be
granted) unless and until the Plan has been approved by the stockholders of the
Company, which approval shall be within twelve (12) months before or after the
date the Plan is adopted by the Board.
15. CHOICE OF LAW.
The law of the State of Delaware shall govern all questions concerning
the construction, validity and interpretation of this Plan, without regard to
such state's conflict of laws rules.
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Dates Referenced Herein
| Referenced-On Page |
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This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
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| | |
| | 4/25/14 | | 1 | | | | | None on these Dates |
| | 1/1/14 | | 10 |
| | 1/1/05 | | 10 |
Filed on: | | 4/29/04 |
| | 4/26/04 | | 1 |
| List all Filings |
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