Annual Report — Form 10-K Filing Table of Contents
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2: EX-10.03 Material Contract HTML 67K
3: EX-10.04 Material Contract HTML 79K
4: EX-10.07 Material Contract HTML 32K
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6: EX-10.10 Material Contract HTML 70K
7: EX-10.12 Material Contract HTML 89K
8: EX-10.13 Material Contract HTML 62K
9: EX-10.15 Material Contract HTML 56K
10: EX-21.01 Subsidiaries of the Registrant HTML 75K
11: EX-23.01 Consent of Experts or Counsel HTML 11K
12: EX-31.01 Certification per Sarbanes-Oxley Act (Section 302) HTML 13K
13: EX-31.02 Certification per Sarbanes-Oxley Act (Section 302) HTML 13K
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Initial
Stockholder Approval on May 23, 2000
Amendment adopted by the Board of Directors on March 14,2002
Stockholder Approval of Amendment on June 5, 2002
Amendment Adopted by the Compensation Committee on
March 18, 2004
Stockholder Approval of Amendment on June 24, 2004
Amendment Adopted by the Board of Directors on September 9,2004
Amendment Adopted by the Board of Directors on January 10,2007
Termination
Date: None
1. Purposes.
(a) Eligible Stock Award Recipients. The
persons eligible to receive Stock Awards are the Employees and
Consultants of the Company and its Affiliates, in particular
(but not limited to) those Employees and Consultants who are
neither citizens nor residents of the United States of America.
(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) Stock Options,
(ii) stock bonuses, (iii) rights to acquire restricted
stock, and (iv) restricted stock units.
(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, and any
other entity which is controlled, directly or indirectly, by the
Company.
(b) “Board” means the Board of Directors
of the Company.
(c) “Code” means the United States
Internal Revenue Code of 1986, as amended.
(d) “Committee”means a committee of one
or more members of the Board appointed by the Board in
accordance with subsection 3(c).
(e) “Common Stock” means the common stock
of the Company.
(f) “Company” means eBay Inc., a Delaware
corporation.
(g) “Consultant” means any natural 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) who is a member of
the Board of Directors or comparable governing body 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.
In addition, 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.
(h) “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. The Participant’s Continuous
Service shall not be deemed to have terminated merely because of
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 Continuous
Service. For example, a change in status from an Employee of the
Company to a Consultant of an Affiliate or a Director will 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.
(i) “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.
(j) “Director” means a member of the Board
of Directors of the Company.
(k) “Disability” means the inability of a
natural person to continue to perform services for the Company
or any Affiliate of the type previously performed prior to the
occurrence of such Disability, whether as a result of physical
and/or
mental illness or injury, as determined by a physician
acceptable to the Company, for a period that is expected to be
of a duration of no less than six (6) months.
(l) “Employee” means any person employed
by the Company or an Affiliate. Mere service as a Director or
payment of a director’s fee by the Company or an Affiliate
shall not be sufficient to constitute “employment” by
the Company or an Affiliate.
(m) “Equity Restructuring”means a
non-reciprocal transaction (i.e. a transaction in which the
Company does not receive consideration or other resources in
respect of the transaction approximately equal to and in
exchange for the consideration or resources the Company is
relinquishing in such transaction) between the Company and its
stockholders, such as a stock split, spin-off, rights offering,
nonrecurring stock dividend or recapitalization through a large,
nonrecurring cash dividend, that affects the shares of Common
Stock (or other securities of the Company) or the share price of
Common Stock (or other securities) and causes a change in the
per share value of the Stock underlying outstanding Stock Awards.
(n) “Exchange Act” means the United States
Securities Exchange Act of 1934, as amended.
(o) “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 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 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.
(p) “Non-Employee Director” means a
Director who either (i) is not a current Employee or
officer of the Company or an Affiliate, does not receive
compensation, either directly or indirectly, from the Company or
an Affiliate 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 for which
disclosure would be required under Item 404(a) of
Regulation S-K,
and is not engaged in a business relationship for which
disclosure would be required pursuant to Item 404(b) of
Regulation S-K;
or (ii) is otherwise considered a “non-employee
director” for purposes of
Rule 16b-3.
(q) “Option” means an option granted
pursuant to Section 6 of the Plan.
(r) “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.
2
(s) “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.
(t) “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.
(u) “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.
(v) “Plan” means this eBay Inc. 1999
Global Equity Incentive Plan, as it may be duly amended from
time to time.
(w) “Rule 16b-3”
means
Rule 16b-3
promulgated under the Exchange Act of any successor to
Rule 16b-3,
as in effect from time to time.
(x) “Securities Act” means the United
States Securities Act of 1933, as amended.
(y) “Stock Award” means any right granted
under the Plan, including an option, a stock bonus, a right to
acquire restricted stock and a restricted stock unit award.
(z) “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.
3. Administration.
(a) Administration by Board. The Board
shall administer the Plan unless and until the Board delegates
administration to a Committee, as provided in
subsection 3(c).
(b) Powers of Board. The Board shall have
the power, subject to, and within the limitations of, the
express provisions of the Plan:
(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 in its sole
discretion to make the Plan fully effective.
(iii) To amend the Plan or a Stock Award as provided in
Section 12.
(iv) To terminate or suspend the Plan as provided in
Section 13.
(v) Generally, to exercise such powers and to perform such
acts as the Board deems necessary or expedient in its sole
discretion to promote the best interests of the Company, which
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
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administration of the Plan, the powers theretofore possessed by
the Board, including the power to delegate to a subcommittee of
one (1) or more members of the Board 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 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 sole discretion of the Board,
a 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 (1) delegate to a committee of one or more members of
the Board who are not Outside Directors 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 or (b) not persons with respect to whom
the Company wishes to comply with Section 162(m) of the
Code and/or
(2) delegate to a committee of one or more members of the
Board who are not Non-Employee Directors the authority to grant
Stock Awards to eligible persons who are not then subject to
Section 16 of the Exchange Act.
(d) Effect of Board’s Decision. All
determinations, interpretations and constructions made by the
Board in good faith shall not be subject to review by anyone and
shall be final, binding and conclusive on all Participants and
any other person having an interest in such determination,
interpretation or construction.
4. Shares Subject
to the Plan.
(a) Share Reserve. Subject to the
provisions of Section 11 relating to adjustments upon
changes in Common Stock, the Common Stock that may be issued
pursuant to Stock Awards shall not exceed in the aggregate fifty
two million
(52,000,000)1
shares of Common Stock. No more than two million
(2,000,000)2
of such shares of Common Stock (subject to adjustment as
provided in Section 11) may be awarded under the Plan
in the aggregate in respect of the Stock Awards pursuant to
Section 7 for which a Participant pays less than Fair
Market Value per share on the date of grant.
(b) Reversion of Shares to the Share
Reserve. If any Stock Option 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 Option 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. Stock Awards may be granted to Employees
and Consultants.
(b) Consultants.
(i) 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, or because the Consultant is not a natural person, or
as otherwise provided by the rules governing the use of
Form S-8.
(ii) Form S-8
generally is available to consultants and advisors only if
(i) they are natural persons; (ii) they provide bona
fide services to the issuer, its parents, its majority-owned
subsidiaries or majority-owned subsidiaries of the issuer’s
parent; and (iii) the services are not in connection with
the offer or sale of securities
1
Denotes that such share number reflects the stock splits of
eBay’s common stock occurring in 5/00, 8/03 and 2/05.
2
Denotes that such share number reflects the stock split of
eBay’s common stock occurring only in 2/05 because this
provision was approved in 2004.
4
in a capital-raising transaction, and do not directly or
indirectly promote or maintain a market for the issuer’s
securities.
(c) Section 162(m)
Limitation. Notwithstanding the provisions of
subsection 5(a) hereof and subject to the provisions of
Section 11 relating to adjustments upon changes in the
shares of Common Stock, no Employee shall be eligible to be
granted Options covering more than four million
(4,000,000)1
shares of Common Stock during any calendar year.
6. Option
Provisions
Each Option shall be in such form and shall contain such terms
and conditions as the Board shall deem appropriate. 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) Exercise Price. The exercise price of
each Option shall not be 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 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.
(b) 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: (1) by delivery
to the Company, or attestation to the Company of ownership, of
other Common Stock, (2) according to a deferred payment or
other similar arrangement with the Optionholder, whether through
the use of a promissory note or otherwise, or (3) in any
other form of legal consideration that may be acceptable to the
Board; provided, however, that 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.
Unless otherwise specifically provided, the purchase price of
Common Stock acquired pursuant to an Option that is paid by
delivery to the Company, or attestation to the Company of
ownership, of other Common Stock 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).
(c) Transferability. An Option shall be
transferable to the extent provided in the Option Agreement. If
the Option does not provide for transferability, then the 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.
(d) 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 subsection 6(d) are subject to any Option provisions
governing the minimum number of shares of Common Stock as to
which an Option may be exercised.
(e) Termination of Continuous Service. In
the event 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
1 Denotes
that such share number reflects the stock split of eBay’s
common stock occurring only in 2/05 because this provision was
approved in 2004.
5
Optionholder’s Continuous Service (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 in
the Option Agreement, the Option shall terminate.
(f) 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, 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.
(g) 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.
(h) Death of Optionholder. In the event
(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, 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.
(i) 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 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.
(ii) Vesting. Shares of Common Stock
awarded under the stock bonus agreement may, but need not, be
subject to a share reacquisition right or option in favor of the
Company in accordance with a vesting schedule to be determined
by the Board.
6
(iii) Termination of Participant’s Continuous
Service. In the event a Participant’s
Continuous Service terminates, the Company may reacquire any or
all of the shares of Common Stock held by the Participant which
have not vested as of the date of termination under the terms of
the stock bonus agreement.
(iv) Transferability. Rights to acquire
shares 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 Purchase
Awards. Each restricted stock 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 purchase agreements may
change from time to time, and the terms and conditions of
separate restricted stock purchase agreements need not be
identical, but each restricted stock purchase agreement shall
include (through incorporation of provisions hereof by reference
in the agreement or otherwise) the substance of each of the
following provisions:
(i) Purchase Price. The purchase price
under each restricted stock purchase agreement shall be such
amount as the Board shall determine and designate in such
restricted stock purchase agreement.
(ii) Consideration. The purchase price of
Common Stock acquired pursuant to the restricted stock 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, whether through the use of a promissory note or
otherwise; or (iii) 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, then payment of the Common
Stock’s “par value,” as defined in the Delaware
General Corporation Law, shall not be made by deferred payment.
(iii) Vesting. Shares of Common Stock
acquired under the restricted stock purchase 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.
(iv) Termination of Participant’s Continuous
Service. In the event 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 which have not vested as of the date of
termination under the terms of the restricted stock purchase
agreement.
(v) Transferability. Rights to acquire
shares under the restricted stock purchase agreement shall be
transferable by the Participant only upon such terms and
conditions as are set forth in the restricted stock purchase
agreement, as the Board shall determine in its discretion, so
long as Common Stock awarded under the restricted stock purchase
agreement remains subject to the terms of the restricted stock
purchase agreement.
(c) Restricted Stock Unit Awards. The
Board, or the Committee, if delegated by the Board, is
authorized to make awards of restricted stock units to any
Employee or Consultant selected by the Board in such amounts and
subject to such terms and conditions as the Board shall deem
appropriate. On the maturity date of a restricted stock unit,
unless otherwise noted in the restricted stock unit agreement,
the Company shall transfer to the Participant one unrestricted,
fully transferable share of Common Stock for each restricted
stock unit scheduled to be paid out on such date and not
previously forfeited.
(i) Consideration. Restricted stock units
may be awarded in consideration for past services actually
rendered to the Company or an Affiliate for its benefit.
(ii) Form of Restricted Stock Unit
Award. All awards of restricted stock units made
pursuant to this Plan will be evidenced by a restricted stock
unit agreement and will comply with and be subject to the terms
and conditions of this Plan.
(iii) Terms of Restricted Stock Unit
Awards. Restricted stock units shall be subject
to such terms and conditions as the Board may impose. These
terms and conditions may include restrictions based upon
7
completion of a specified period of service with the Company or
an Affiliate, or upon completion of the performance goals as set
out in advance in the Participant’s individual restricted
stock unit agreement. The terms of restricted stock units may
vary from Participant to Participant and between groups of
Participants. Prior to the grant of a restricted stock unit
award, the Board shall: (a) determine the nature, length
and starting date of any performance period for the restricted
stock unit; (b) select from among the performance factors
to be used to measure performance goals, if any; and
(c) determine the number of shares of Common Stock that may
be awarded to the Participant pursuant to such restricted stock
unit. Prior to the issuance of any shares of Common Stock
pursuant to any restricted stock unit, the Board shall determine
the extent to which performance goals have been met. Performance
periods may overlap and Participants may participate
simultaneously with respect to restricted stock units that are
subject to different performance periods and have different
performance goals and other criteria.
(iv) Termination During Performance
Period. In the event a Participant’s
Continuous Service terminates during a performance period for
any reason, then such Participant will be entitled to payment
(whether in shares of Common Stock, cash or otherwise, at the
Committee’s sole discretion) with respect to the restricted
stock unit only to the extent performance goals are met as of
the date of termination of the Participant’s Continuous
Service in accordance with the restricted stock unit agreement,
unless the Board will determine otherwise.
(v) Form and Timing of Settlement of Restricted Stock
Units. Settlement of restricted stock units shall
be made as soon as practicable after vesting
and/or the
expiration of the applicable performance period. The Board, in
its sole discretion, may settle restricted stock units in the
form of cash, in shares of Common Stock (which have an aggregate
Fair Market Value equal to the value of the earned restricted
stock units), or in a combination thereof.
(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 or vesting of such
Stock Awards unless and until such authority is obtained.
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 Option 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. 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 Option
or receipt of other type of Stock Award pursuant to its terms.
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(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, for any reason
or no reason, (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 jurisdiction
in which the Company or the Affiliate is incorporated, as the
case may be.
(d) Investment Assurances.The Company
may require a Participant, as a condition of exercising a Stock
Option 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 together with the purchaser representative, the merits
and risks of exercising the Stock Award; (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;
and/or
(iii) to give such other written assurances as the Company
shall determine are necessary, desirable or appropriate to
comply with applicable securities regulation and other governing
law. 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.
(e) Withholding Obligations. To the
extent provided by the terms of a Stock Award Agreement, the
Participant may satisfy any tax and social insurance withholding
obligation arising under the laws or regulations of any country,
state or local jurisdiction relating to the exercise of a Stock
Option or acquisition of Common Stock under a Stock Award by any
of the following means (in addition to the Company’s or
Affiliate’s right to withhold from any compensation paid to
the Participant by the Company or the Affiliate) 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 required to avoid variable award accounting);
or (iii) delivering to the Company owned and unencumbered
shares of the Common Stock; or (iv) authorizing the sale of
shares of Common Stock by the Company’s designated broker
equal to the amount of taxes due.
11. Adjustments
upon Changes in Stock.
(a) Capitalization Adjustments. In the
event that any dividend or other distribution, reorganization,
merger, consolidation, combination, repurchase, or exchange of
Common Stock or other securities of the Company, or other change
in the corporate structure of the Company affecting the Common
Stock (other than an Equity Restructuring) occurs such that an
adjustment is determined by the Board (in its sole discretion)
to be appropriate in order to prevent dilution or enlargement of
the benefits or potential benefits intended to be made available
under the Plan, then the Board shall, in such manner as it may
deem equitable, adjust the number and class of Common Stock
which may be delivered under the Plan, the number of shares
covered by each outstanding Stock Award, the exercise price or
grant price per share of such outstanding Stock Awards, if
applicable, and the numerical limits of Sections 4(a) and
4(c). The Company is not responsible for any tax consequences to
the Participant resulting from such adjustment.
(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
such event.
(c) Corporate Transaction. In the event
of (i) a sale, lease or other disposition of all or
substantially all of the assets of the Company, (ii) a
merger or consolidation in which the Company is not the
surviving corporation, or (iii) a reverse merger in which
the Company is the surviving corporation but the shares of
Common Stock outstanding immediately preceding the merger are
converted by virtue of the merger into other property, whether
in the form of securities, cash or otherwise, then any surviving
corporation or acquiring corporation shall assume or continue
any
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Stock Awards outstanding under the Plan or shall substitute
similar stock awards (including an award to acquire the same
consideration paid to the stockholders in the transaction
described in this subsection 11(c)) for those outstanding
under the Plan. In the event any surviving corporation or
acquiring corporation refuses to assume or continue such Stock
Awards or to substitute similar stock awards for those
outstanding under the Plan, then with respect to Stock Awards
held by Participants whose Continuous Service has not
terminated, the vesting of such Stock Awards (and, if
applicable, the time during which such Stock Awards may be
exercised) shall be accelerated in full, and the Stock Awards
shall terminate if not exercised (if applicable) at or prior to
such event. With respect to any other Stock Awards outstanding
under the Plan, such Stock Awards shall terminate if not
exercised (if applicable) at or prior to such event.
(d) Equity Restructuring Adjustments. In
connection with the occurrence of any Equity Restructuring, and
notwithstanding anything to the contrary in Sections 11(a)
and 11(c) the number and type of securities subject to each
outstanding Stock Award and the exercise price or grant price
thereof, if applicable, will be equitably adjusted by the
Committee. The adjustments provided under this
Section 11(d) shall be nondiscretionary and shall be final
and binding on the affected Participant and the Company.
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 relating to adjustments upon
changes in Common Stock, no amendment shall be effective unless
approved by the stockholders of the Company to the extent
stockholder approval is necessary under applicable laws or
regulations or to the extent that such amendment constitutes a
material amendment to the Plan.
(b) Stockholder Approval. The Board may,
in its sole discretion, submit any 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. Notwithstanding any provision of the Plan to
the contrary, the Board shall not, without prior stockholder
approval, (A) reduce the exercise price of any outstanding
Option under the Plan, (B) cancel any outstanding Option
under the Plan and grant in substitution therefor, on either an
immediate or delayed basis, a new Option under the Plan covering
the same or a different number of shares of Common Stock or
cash, or (C) take any other action with respect to any
outstanding Option under the Plan that is treated as a repricing
of such Option pursuant to generally accepted accounting
principles.
(c) 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.
(d) 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. No Stock Awards may be granted
under the Plan while the Plan is suspended or after it is
terminated.
(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 upon adoption 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 and Documents Incorporated by Reference
