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8-K - FORM 8-K - AMICUS THERAPEUTICS, INC. | c02571e8vk.htm |
EX-10.1 - EXHIBIT 10.1 - AMICUS THERAPEUTICS, INC. | c02571exv10w1.htm |
Exhibit 10.2
AMENDED AND RESTATED
AMICUS THERAPEUTICS
2007 DIRECTOR OPTION PLAN
1. Purpose
This Plan is intended to promote the recruiting and retention of highly qualified Eligible
Directors, to strengthen the commonality of interest between directors and stockholders by
encouraging ownership of Common Stock of the Company by Eligible Directors, and to provide
additional incentives for Eligible Directors to promote the success of the Companys business. The
Plan is not intended to be an incentive stock option plan within the meaning of Section 422 of the
Code. None of the Options granted hereunder will be incentive stock options within the meaning
of Section 422 of the Code.
2. Definitions
As used in the Plan the following terms shall have the respective meanings set out below,
unless the context clearly requires otherwise:
2.1. Accelerate, Accelerated, and Acceleration, when used with respect to an Option,
means that as of the time of reference such Option will become exercisable with respect to some or
all of the shares of Common Stock for which it was not then otherwise exercisable by its terms.
2.2. Acquiring Person means, with respect to any Transaction or any acquisition described in
clause (ii) of the definition of Change of Control, the surviving or acquiring person or entity in
connection with such Transaction or acquisition, as the case may be, provided that if such
surviving or acquiring person or entity is controlled, directly or indirectly, by any other person
or entity (an Ultimate Parent Entity) that is not itself controlled by any entity or person that
is not a natural person, the term Acquiring Person shall mean such Ultimate Parent Entity.
2.3. Affiliate means, with respect to any person or entity, any other person or entity
controlling, controlled by or under common control with the first person or entity.
2.4. Applicable Voting Control Percentage means twenty percent (20%).
2.5. Beneficial Ownership has the meaning ascribed to such term in Rule 13d-3, or any
successor rule thereto, promulgated by the Securities and Exchange Commission pursuant to the
Exchange Act.
2.6. Board means the Companys board of directors.
2.7. Change of Control means (i) the closing of any Sale of the Company Transaction or (ii)
the direct or indirect acquisition, in a single transaction or a series of related transactions, by
any person or Group (other than the Company or a Controlled Affiliate of the Company) of Beneficial
Ownership of previously outstanding shares of capital stock of the Company if (A) immediately after
such acquisition, such person or Group, together with their respective Affiliates, shall own or
hold shares of capital stock of the Company possessing at least the Applicable Voting Control
Percentage of the total voting power of the outstanding capital stock of the Company and (B)
immediately prior to such acquisition, such person or Group, together with their respective
Affiliates, did not own or hold shares of capital stock of the Company possessing at least the
Applicable Voting Control Percentage of the total voting power of the outstanding capital stock of
the Company. Notwithstanding anything expressed or implied in the foregoing provisions of this
definition to the contrary, any direct or indirect acquisition referred to in clause (ii) above in
this
definition shall not be treated as a Change of Control if, at any time prior to or after such
direct or indirect acquisition, a majority of the members of the Board of Directors of the Company
as constituted immediately prior to such direct or indirect acquisition consent in writing to
exclude such direct or indirect acquisition from the scope of this definition.
2.8. Code means the Internal Revenue Code of 1986, as amended from time to time, or any
successor statute thereto, and any regulations issued from time to time thereunder.
2.9. Controlled Affiliate means, with respect to any person or entity, any other person or
entity that is controlled by such person or entity.
2.10. Committee means any committee of the Board delegated responsibility by the Board for
the administration of the Plan, as provided in Section 5 of the Plan. For any period during which
no such committee is in existence, Committee shall mean the Board and all authority and
responsibility assigned the Committee under the Plan shall be exercised, if at all, by the Board.
2.11. Common Stock means common stock, par value $0.01 per share, of the Company.
2.12. Company means Amicus Therapeutics, Inc., a corporation organized under the laws of the
State of Delaware.
2.13. Eligible Director means a director of one or more of the Company and its Subsidiaries
who is not also an employee or officer of one or more of the Company and its Subsidiaries.
2.14. Exchange Act means the Securities Exchange Act of 1934, as amended.
2.15. Grant Date means the date as of which an Option is granted, as determined under
Section 7.1.
2.16. Group has the meaning ascribed to such term in Section 13(d)(3) of the Exchange Act or
any successor section thereto.
2.17. Holder means, with respect to any Option, (a) the Optionee to whom such Option shall
have been initially granted under the Plan, or (b) any transferee of such Option to whom such
Option shall have been transferred in accordance with the provisions set forth herein.
2.18. Market Value means the value of a share of Common Stock on a particular date
determined by such methods or procedures as may be established by the Committee. Unless otherwise
determined by the Committee, the Market Value of Common Stock as of any date is the closing price
for the Common Stock as reported on the Nasdaq Global Market (or on any other national securities
exchange on which the Common Stock is then listed) for that date or, if no closing price is
reported for that date, the closing price on the next preceding date for which a closing price was
reported.
2.19. Option means an option granted under the Plan to purchase shares of Common Stock.
2.20. Option Agreement means an agreement between the Company and the Holder of an Option,
setting forth the terms and conditions of the Option.
2.21. Optionee means an Eligible Director to whom an Option shall have been granted under
the Plan.
2.22. Plan means this Amended and Restated 2007 Director Option Plan of the Company, as
amended and in effect from time to time.
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2.23. Sale of the Company Transaction means any Transaction in which the stockholders of the
Company immediately prior to such Transaction, together with any and all of such stockholders
Affiliates, do not own or hold, immediately after consummation of such Transaction, shares of
capital stock of the Acquiring Person in connection with such Transaction possessing at least a
majority of the total voting power of the outstanding capital stock of such Acquiring Person.
2.24. Securities Act means the Securities Act of 1933, as amended.
2.25. Transaction means any merger or consolidation of the Company with or into another
person or entity or the sale or transfer of all or substantially all of the assets of the Company,
in each case in a single transaction or in a series of related transactions.
3. Term of the Plan
Unless the Plan shall have been earlier terminated by the Board, Options may be granted under
this Plan at any time in the period commencing upon the effectiveness of the Plan in accordance
with the provisions of Section 17 hereof and ending immediately prior to the tenth anniversary of
the most recent date on which the Plan is approved (or reapproved) by the Companys stockholders.
Options granted pursuant to the Plan within such period shall not expire solely by reason of the
termination of the Plan.
4. Stock Subject to the Plan
Subject to the provisions of Section 8 of the Plan, at no time shall the number of shares of
Common Stock issued pursuant to or subject to outstanding Options granted under the Plan exceed the
sum of (a) Two Hundred Sixty Thousand Seven Hundred Ninety-Eight (260,798) shares of Common Stock
plus (b) an annual increase to be added, automatically and without further action, on January 1 of
each calendar year equal to 100,000 shares of Common Stock; provided, however, that
the Board may, at any time and on any one or more occasions, take action to waive the annual
increase set forth in clause (b), in whole or in part. For purposes of applying the foregoing
limitation, (a) if any Option expires, terminates, or is cancelled for any reason without having
been exercised in full, the shares not purchased by the Optionee (or the Holder of such Option)
shall again be available for Options thereafter to be granted under the Plan, and (b) if any Option
is exercised by delivering previously owned shares in payment of the exercise price therefor, only
the net number of shares, that is, the number of shares issued minus the number received by the
Company in payment of the exercise price, shall be considered to have been issued pursuant to an
Option granted under the Plan. Shares of Common Stock issued pursuant to the Plan may be either
authorized but unissued shares or shares held by the Company in its treasury.
5. Administration
The Plan shall be administered by the Committee; provided, however, that at any time and on
any one or more occasions the Board may itself exercise any of the powers and responsibilities
assigned the Committee under the Plan and when so acting shall have the benefit of all of the
provisions of the Plan pertaining to the Committees exercise of its authorities hereunder.
Subject to the provisions of the Plan, the Committee shall have complete authority to interpret the
Plan, to prescribe, amend and rescind rules and regulations relating to it, to determine the terms
and provisions of the respective Option Agreements (which need not be identical), and to make all
other determinations necessary or advisable for the administration of the Plan. The Committees
determinations made in good faith on matters referred to in this Plan shall be final, binding and
conclusive on all persons having or claiming any interest under the Plan or an Option made pursuant
hereto.
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6. Authorization and Eligibility
Only Eligible Directors shall be granted Options under the Plan. Each grant of an Option
shall be subject to all applicable terms and conditions of the Plan (including but not limited to
any specific terms and conditions set forth in Section 7 below), and such other terms and
conditions, not inconsistent with the terms of the Plan, as the Committee may prescribe. No
prospective holder of an Option shall have any rights with respect to such Option, unless and until
such holder has executed an agreement evidencing the Option, delivered a fully executed copy
thereof to the Company, and otherwise complied with the applicable terms and conditions of such
Option.
7. Specific Terms of Options
7.1. Annual Grants. Subject to the Plans effectiveness as set forth in Section 17 and to the
provisions set forth below in this Section 7.1, on the date of each annual meeting of stockholders
of the Company, commencing with the 2010 annual meeting of stockholders, each Eligible Director who
continues to be a director of the Company as of the close of business on the date of such annual
meeting of stockholders shall be granted an Option as of the close of business on such date, to
purchase Ten Thousand (10,000) shares of Common Stock (subject to adjustment as set forth in
Section 8) or such other greater or smaller number of shares of Common Stock as the Board shall
have set by resolution of the Board prior to the date of such annual meeting of stockholders
(unless such resolution shall provide that such Eligible Director shall not receive an Option under
this Section 7.1 at such annual meeting of stockholders, in which case such Eligible Director shall
not be granted any Option under this Section 7.1 as of the close of business on the date of such
annual meeting). Subject to the provisions of this Section 7.1 or Section 9 hereof, grants of
Options under this Section 7.1 shall occur automatically without any action being required of the
Optionee, the Committee, the Board, the Company or any other person, entity or body.
7.2. Other Grants. The Committee may grant from time to time, and at any time prior to the
termination of the Plan, Options to Eligible Directors for any reason that promotes the purpose of
the Plan, including but not limited to, in connection with an Eligible Directors initial election
to the Board.
7.3 Certain Terms of Option; Exercise Price. Each Option granted to an Optionee under this
Section 7 shall have an exercise price equal to 100% of the Market Value of the Stock on the
applicable Grant Date. No Option granted pursuant to this Plan is intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code. The grants shall be
evidenced by Option Agreements containing provisions that are in all respects consistent with this
Section 7.
7.4 Option Period. The option period for each Option granted pursuant to the Plan shall be
ten (10) years from the Grant Date of such Option.
7.5 Exercisability. Subject to Section 7.6 below, each Option granted to an Eligible Director
pursuant to Section 7.1 above shall automatically become exercisable for 100% of the shares of
Common Stock subject to such Option on the date of the annual meeting of stockholders of the
Company in the calendar year following the calendar year during which such Option was automatically
granted. Subject to
Section 7.6 below, each Option granted to an Eligible Director pursuant
to Section 7.2 above shall become exercisable immediately or in installments, as the Committee may
determine. In the case of an Option not otherwise immediately exercisable in full, the Committee
may Accelerate such Option in whole or in part at any time.
7.6 Effect of Termination of Board Member Relationship. Unless the Committee at any time
shall provide otherwise with respect to any Option, if an Optionee ceases to be a director of the
Company and its Affiliates for any reason or no reason (whether voluntarily or involuntarily,
including as a result of death), any outstanding Option initially granted to such Optionee, whether
then held by such Optionee or any other Holder, shall cease to be exercisable in any respect not
later than ninety (90) days following that
event and, for the period it remains exercisable following that event, shall be exercisable
only to the extent exercisable at the date of that event.
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7.7 Transferability. Except as otherwise provided in this Section 7.7, Options shall not be
transferable, and no Option or interest therein may be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution
(subject always to the provisions of Section 7.6 hereof). Except as otherwise provided in this
Section 7.7, all of a Holders rights in any Option may be exercised only during the life of such
Holder and only by such Holder or such Holders legal representative. However, the applicable
Option Agreement or the Committee (at or after the grant of an Option) may provide that an Option
may be transferred by the applicable Holder to a family member; provided, however, that any such
transfer is without payment of any consideration whatsoever and that no transfer of an Option shall
be valid unless first approved by the Committee, acting in its sole discretion, unless such
transfer is permitted under the applicable Option Agreement. For this purpose, family member
means any child, stepchild, grandchild, parent, stepparent, spouse, former spouse, sibling, niece,
nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, including adoptive relationships, any person sharing the applicable Holders
household (other than a tenant or employee), a trust in which the foregoing persons and/or the
applicable Holder have more than fifty percent (50%) of the beneficial interests, a foundation in
which the foregoing persons and/or the applicable Holder control the management of assets, and any
other entity in which these persons and/or the applicable Holder own more than fifty percent (50%)
of the voting interests. The Committee may at any time or from time to time delegate to one or
more officers of the Company the authority to permit transfers of Options to third parties pursuant
to this Section 7.7, which authorization shall be exercised by such officer or officers in
accordance with guidelines established by the Committee at any time and from time to time. The
restrictions on transferability set forth in this Section 7.7, shall in no way preclude any Holder
from effecting cashless exercises of an Option pursuant to the terms of the Plan.
7.8 Method of Exercise. An Option may be exercised by the Holder of such Option by giving
written notice, in the manner provided in Section 15, specifying the number of shares of Common
Stock with respect to which the Option is then being exercised. The notice shall be accompanied by
payment in the form of cash or check payable to the order of the Company in an amount equal to the
exercise price of the shares of Common Stock to be purchased or, subject in each instance to the
Committees approval, acting in its sole discretion and subject to such conditions, if any, as the
Committee may deem necessary to comply with applicable laws, rules and regulations and to avoid
adverse accounting effects to the Company, by delivery to the Company of shares of Common Stock
having a Market Value equal to the exercise price of the shares to be purchased. No Holder shall
be permitted to effect payment of any amount of the exercise price of the shares of Common Stock to
be purchased by executing and delivering to the Company a promissory note. If the Common Stock is
traded on an established market, payment of any exercise price may also be made through and under
the terms and conditions of any formal cashless exercise program authorized by the Company
entailing the sale of the Common Stock subject to any Option in a brokered transaction (other than
to the Company). Receipt by the Company of such notice and payment in any authorized or
combination of authorized means shall constitute the exercise of the Option. Within thirty (30)
days thereafter but subject to the remaining provisions of the Plan, the Company shall deliver or
cause to be delivered to the Holder or his agent a certificate or certificates for the number of
shares then being purchased. Such shares shall be fully paid and nonassessable. Notwithstanding
any of the foregoing provisions in this subsection 7.8 to the contrary, (A) no Option shall be
considered to have been exercised unless and until all of the provisions governing such exercise
specified in the Plan and in the relevant Option Agreement shall have been duly complied with; and
(B) the obligation of the Company to issue any shares upon exercise of an Option is subject to the
provisions of Section 9.1 hereof and to compliance by the Holder with all of the provisions of the
Plan and the relevant Option Agreement.
7.9 Rights Pending Exercise. No person holding an Option shall be deemed for any purpose to be
a stockholder of the Company with respect to any of the shares of Common Stock issuable pursuant to
his Option, except to the extent that the Option shall have been exercised with respect
thereto and, in addition, a certificate shall have been issued therefor and delivered to such
holder or his agent.
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7.10 Grants to Optionees Outside the United States. The Committee may modify the terms of any
Option under the Plan granted to an Optionee who is, at the time of grant or during the term of the
Option, resident or primarily employed outside of the United States in any manner deemed by the
Committee to be necessary or appropriate in order that such Option shall conform to laws,
regulations, and customs of the country in which such Optionee is then resident or primarily
employed, or so that the value and other benefits of the Option to such Optionee, as affected by
foreign tax laws and other restrictions applicable as a result of such Optionees residence or
employment abroad, shall be comparable to the value of such Option to an Optionee who is resident
or primarily employed in the United States. An Option may be modified under this Section 7.10 in a
manner that is inconsistent with the express terms of the Plan, so long as such modifications will
not contravene any applicable law or regulation. The Committee may establish supplements to, or
amendments, restatements, or alternative versions of the Plan for the purpose of granting and
administrating any such modified Option. No such modification, supplement, amendment, restatement
or alternative version may increase the share limit of Section 4.
8. Adjustment Provisions
8.1. Adjustment for Corporate Actions. All of the share numbers set forth in the Plan reflect
the capital structure of the Company immediately after the closing of the initial public offering
of the Companys Common Stock. Subject to the provisions of Section 8.2, if subsequent to such
closing the outstanding shares of Common Stock (or any other securities covered by the Plan by
reason of the prior application of this Section) are increased, decreased, or exchanged for a
different number or kind of shares or other securities, or if additional shares or new or different
shares or other securities are distributed with respect to such shares of Common Stock or other
securities, through merger, consolidation, sale of all or substantially all the property of the
Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse
stock split, or other distribution with respect to such shares of Common Stock, or other
securities, an appropriate and proportionate adjustment will be made in (i) the maximum numbers and
kinds of shares provided in Section 4, (ii) the numbers and kinds of shares or other securities
subject to the then outstanding Options, and (iii) the exercise price for each share or other unit
of any other securities subject to then outstanding Options (without change in the aggregate
purchase price as to which such Options remain exercisable).
8.2. Change of Control. Subject to the applicable provisions of the Option Agreement, in the
event of a Change of Control, the Committee shall have the discretion, exercisable in advance of,
at the time of, or (except to the extent otherwise provided below) at any time after, the Change of
Control, to provide for any or all of the following (subject to and upon such terms as the
Committee may deem appropriate): (A) the assumption of outstanding Options, or the substitution of
outstanding Options with equivalent options, by the acquiring or succeeding corporation or entity
(or an affiliate thereof); or (B) the termination of all Options (other than Options that are
assumed or substituted pursuant to clause (A) above) that remain outstanding at the time of the
consummation of the Change of Control, provided that, the Committee shall have made the
determination to effect such termination prior to the consummation of the Change of Control and the
Committee shall have given, or caused to be given, to all Optionees written notice of such
potential termination at least five business days prior to the consummation of the Change of
Control, and provided, further, that, if the Committee shall have determined in its sole and
absolute discretion that the Company make payment or provide consideration to the holders of such
terminated Options on account of such termination, which payment or consideration shall be on such
terms and conditions as the Committee shall have determined (and which could consist of, in the
Committees sole and absolute discretion, payment to the applicable Optionee or Optionees of an
amount of cash equal to the difference between the Market Value of the shares of Common Stock for
which the Option is then exercisable and the aggregate exercise price for such shares under the
Option), then the Company shall be required to make, or cause to be
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made,
such payment or provide,
or cause to be provided, such
consideration in accordance with the terms and conditions so determined by the Committee;
otherwise the Company shall not be required to make any payment or provide any consideration in
connection with, or as a result of, the termination of Options pursuant to the foregoing provisions
of this clause (B). Upon the occurrence of a Change of Control, any and all Options not already
exercisable in full shall Accelerate with respect to all of the shares of Common Stock for which
such Options are not then exercisable. In the case of any Option that would be terminated pursuant
to clause (B) above of this Section 8.2 upon consummation of a Change of Control, such Option, to
the extent not already exercisable in full on the date the Holder thereof is given written notice
of such potential termination as required by the foregoing provisions of this Section 8.2, shall,
on the date such written notice of termination is given or required to be given, Accelerate with
respect to all of the shares of Common Stock for which such Option is not then exercisable;
provided, however, that if such Change of Control is not and will not be
consummated then the Acceleration of such Option pursuant to the provisions of this sentence, but
only if and to the extent that such Option remains outstanding at the time written notice is given
to the Holder thereof that such Change of Control has not and will not be consummated, shall be
automatically revoked and such Option shall thereafter continue to be exercisable in accordance
with its terms as if the Acceleration thereof pursuant to this sentence had never occurred. The
provisions of this Section 8.2 shall not be construed as to limit or restrict in any way the
Committees general authority under Section 7.5 hereof to Accelerate Options in whole or in part at
any time. Each outstanding Option that is assumed in connection with a Change of Control, or is
otherwise to continue in effect subsequent to a Change of Control, will be appropriately adjusted,
immediately after the Change of Control, as to the number and class of securities and the price at
which it may be exercised in accordance with Section 8.1.
8.3. Dissolution or Liquidation. Upon dissolution or liquidation of the Company, each
outstanding Option shall terminate, but the Optionee (if at the time he or she is a board member of
the Company or any of its Affiliates) shall have the right, immediately prior to such dissolution
or liquidation, to exercise the Option to the extent exercisable on the date of such dissolution or
liquidation.
8.4. Related Matters. Any adjustment in Options made pursuant to this Section 8 shall be
determined and made, if at all, by the Committee and shall include any correlative modification of
terms, including exercise prices, rates of vesting or exercisability which the Committee may deem
necessary or appropriate so as to ensure that the rights of the Holders in their respective Options
are not substantially diminished nor enlarged as a result of the adjustment and corporate action
other than as expressly contemplated in this Section 8. No fraction of a share shall be
purchasable or deliverable upon exercise, but in the event any adjustment hereunder of the number
of shares covered by an Option shall cause such number to include a fraction of a share, such
number of shares shall be adjusted to the nearest smaller whole number of shares. No adjustment of
an Option exercise price per share pursuant to this Section 8 shall result in an exercise price
which is less than the par value of the Common Stock.
9. Settlement of Options
9.1. Violation of Law. Notwithstanding any other provision of the Plan or the relevant Option
Agreement, if, at any time, in the reasonable opinion of the Company, the issuance of shares of
Common Stock covered by an Option may constitute a violation of law, then the Company may delay
such issuance and the delivery of a certificate for such shares until (i) approval shall have been
obtained from such governmental agencies, other than the Securities and Exchange Commission, as may
be required under any applicable law, rule, or regulation and (ii) in the case where such issuance
would constitute a violation of a law administered by or a regulation of the Securities and
Exchange Commission, one of the following conditions shall have been satisfied:
(a) the shares are at the time of the issue of such shares effectively registered under the
Securities Act; or
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(b) the Company shall have determined, on such basis as it deems appropriate (including an
opinion of counsel in form and substance satisfactory to the Company) that the sale, transfer,
assignment, pledge, encumbrance or other disposition of such shares or such beneficial interest, as
the case may be, does not require registration under the Securities Act or any applicable state
securities laws.
9.2. Corporate Restrictions on Rights in Stock. Any Common Stock to be issued pursuant to
Options granted under the Plan shall be subject to all restrictions upon the transfer thereof which
may be now or hereafter imposed by the Certificate of Incorporation and the By-laws of the Company,
each as amended and in effect from time to time. Whenever Common Stock is to be issued pursuant to
an Option, if the Committee so directs at the time of grant (or, if such Option is an Option, at
any time prior to the exercise thereof), the Company shall be under no obligation, notwithstanding
any other provision of the Plan or the relevant Option Agreement to the contrary, to issue such
shares until such time, if ever, as the recipient of the Option (and any person who exercises any
Option, in whole or in part), shall have become a party to and bound by any agreement that the
Committee shall require in its sole discretion. In addition, any Common Stock to be issued
pursuant to Options granted under the Plan shall be subject to all stop-transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations and other
requirements of any stock exchange upon which the Common Stock is then listed, and any applicable
federal or state securities laws, and the Committee may cause a legend or legends to be put on any
such certificates to make appropriate reference to such restrictions.
9.3. Investment Representations. The Company shall be under no obligation to issue any shares
covered by an Option unless the shares to be issued pursuant to Options granted under the Plan have
been effectively registered under the Securities Act or the Holder shall have made such written
representations to the Company (upon which the Company believes it may reasonably rely) as the
Company may deem necessary or appropriate for purposes of confirming that the issuance of such
shares will be exempt from the registration requirements of that Act and any applicable state
securities laws and otherwise in compliance with all applicable laws, rules and regulations,
including but not limited to that the Holder is acquiring shares for his or her own account for the
purpose of investment and not with a view to, or for sale in connection with, the distribution of
any such shares.
9.4. Registration. If the Company shall deem it necessary or desirable to register under the
Securities Act or other applicable statutes any shares of Common Stock issued or to be issued
pursuant to Options granted under the Plan, or to qualify any such shares of Common Stock for
exemption from the Securities Act or other applicable statutes, then the Company shall take such
action at its own expense. The Company may require from each recipient of an Option, or each
holder of shares of Common Stock acquired pursuant to the Plan, such information in writing for use
in any registration statement, prospectus, preliminary prospectus or offering circular as is
reasonably necessary for such purpose and may require reasonable indemnity to the Company and its
officers and directors from such holder against all losses, claims, damage and liabilities arising
from such use of the information so furnished and caused by any untrue statement of any material
fact therein or caused by the omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the circumstances under
which they were made.
9.5. Lock-Up. Without the prior written consent of the Company or the managing underwriter in
any public offering of shares of Common Stock, no Holder shall sell, make any short sale of, loan,
grant any option for the purchase of, pledge or otherwise encumber, or otherwise dispose of, any
shares of Common Stock during the one hundred-eighty (180) day period commencing on the effective
date of the registration statement relating to any underwritten public offering of securities of
the Company. The foregoing restrictions are intended and shall be construed so as to preclude any
Holder from engaging in any hedging or other transaction that is designed to or reasonably could be
expected to lead to or result in, a sale or disposition of any shares of Common Stock during such
period even if such shares of Common Stock are or would be disposed of by someone other than such
Holder. Such prohibited hedging or other transactions would include, without limitation, any short
sale (whether
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or not against the box) or any
purchase, sale or grant of any right (including without limitation any put or call option)
with respect to any shares of Common Stock or with respect to any security that includes, relates
to, or derives any significant part of its value from any shares of Common Stock. Without limiting
the generality and applicability of the foregoing provisions of this Section 9.5, if, in connection
with any underwritten public offering of securities of the Company, the managing underwriter of
such offering requires that the Companys directors and officers enter into a lock-up agreement,
then (a) each Holder (regardless of whether or not such Holder has complied or complies with the
provisions of clause (b) below) shall be bound by, and shall be deemed to have agreed to, the same
lock-up terms as those to which the Companys directors and officers are required to adhere; and
(b) at the request of the Company or such managing underwriter, each Holders shall execute and
deliver a lock-up agreement in form and substance equivalent to that which is required to be
executed by the Companys directors and officers.
9.6. Placement of Legends; Stop Orders; Etc. Each share of Common Stock to be issued
pursuant to Options granted under the Plan may bear a reference to the investment representations
made in accordance with Section 9.3 in addition to any other applicable restrictions under the
Plan, the terms of the Option and, if applicable, under any agreement between the Company and the
Optionee and/or Holder, and to the fact that no registration statement has been filed with the
Securities and Exchange Commission in respect to such shares of Common Stock. All certificates for
shares of Common Stock or other securities delivered under the Plan shall be subject to such stock
transfer orders and other restrictions as the Committee may deem advisable under the rules,
regulations, and other requirements of any stock exchange upon which the Common Stock is then
listed, and any applicable federal or state securities law, and the Committee may cause a legend or
legends to be placed on any such certificates to make appropriate reference to such restrictions.
9.7. Tax Withholding. Whenever shares of Common Stock are issued or to be issued pursuant to
Options granted under the Plan, the Company shall have the right to require the recipient to remit
to the Company an amount sufficient to satisfy federal, state, local or other withholding tax
requirements if, when, and to the extent required by law (whether so required to secure for the
Company an otherwise available tax deduction or otherwise) prior to the delivery of any certificate
or certificates for such shares. The obligations of the Company under the Plan shall be
conditional on satisfaction of all such withholding obligations and the Company shall, to the
extent permitted by law, have the right to deduct any such taxes from any payment of any kind
otherwise due to the recipient of an Option. However, in such cases Holders may elect, subject to
the approval of the Committee, acting in its sole discretion, to satisfy an applicable withholding
requirement, in whole or in part, by having the Company withhold shares to satisfy their tax
obligations. Holders may only elect to have shares of Common Stock withheld having a Market Value
on the date the tax is to be determined equal to the minimum statutory total tax which could be
imposed on the transaction. All elections shall be irrevocable, made in writing, signed by the
Holder, and shall be subject to any restrictions or limitations that the Committee deems
appropriate.
10. Reservation of Stock
The Company shall at all times during the term of the Plan and any outstanding Options granted
hereunder reserve or otherwise keep available such number of shares of Common Stock as will be
sufficient to satisfy the requirements of the Plan (if then in effect) and such Options and shall
pay all fees and expenses necessarily incurred by the Company in connection therewith.
11. No Special Service Rights
Nothing contained in the Plan or in any Option Agreement shall confer upon any recipient of an
Option any right with respect to any consulting or Board member relationship or other association
with the Company (or any Affiliate), or interfere in any way with the right of the Company (or any
Affiliate), subject to the terms of any separate agreement or provision of law or corporate
articles or by-laws to the contrary, at any time to terminate Board member or to increase or
decrease, or otherwise adjust, the other
terms and conditions of the recipients Board member relationship or other association with
the Company and its Affiliates.
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12. Nonexclusivity of the Plan
Neither the adoption of the Plan by the Board nor the submission of the Plan to the
stockholders of the Company shall be construed as creating any limitations on the power of the
Board to adopt such other incentive arrangements as it may deem desirable, including without
limitation, the granting of stock options and restricted stock other than under the Plan, and such
arrangements may be either applicable generally or only in specific cases.
13. Termination and Amendment of the Plan
The Board may at any time terminate the Plan or make such amendments or modifications of the
Plan as it shall deem advisable. In the event of the termination of the Plan, the terms of the
Plan shall survive any such termination with respect to any Option that is outstanding on the date
of such termination, unless the holder of such Option agrees in writing to terminate such Option or
to terminate all or any of the provisions of the Plan that apply to such Option. Unless the Board
otherwise expressly provides, any amendment or modification of the Plan shall affect the terms of
any Option outstanding on the date of such amendment or modification as well as the terms of any
Option made prior to, or from and after, the date of such amendment or modification; provided,
however, that, except to the extent otherwise provided in the last sentence of this paragraph, (i)
no amendment or modification of the Plan shall apply to any Option that is outstanding on the date
of such amendment or modification if such amendment or modification would reduce the number of
shares subject to such Option, increase the purchase price applicable to shares subject to such
Option or materially adversely affect the provisions applicable to such Option that relate to the
vesting or exercisability of such Option or of the shares subject to such Option, and (ii) no
amendment or modification of the Plan shall apply to any Option that is outstanding on the date of
such amendment or modification unless such amendment or modification of the Plan shall also apply
to all other Options outstanding on the date of such amendment or modification. In the event of
any amendment or modification of the Plan that is described in clause (i) or (ii) of the foregoing
proviso, such amendment or modification of the Plan shall apply to any Option outstanding on the
date of such amendment or modification only if the recipient of such Option consents in writing
thereto.
The Committee may amend or modify, prospectively or retroactively, the terms of any
outstanding Option without amending or modifying the terms of the Plan itself, provided that as
amended or modified such Option is consistent with the terms of the Plan as in effect at the time
of the amendment or modification of such Option, but no such amendment or modification of such
Option shall, without the written consent of the recipient of such Option, reduce the number of
shares subject to such Option, increase the purchase price applicable to shares subject to such
Option, adversely affect the provisions applicable to such Option that relate to the vesting or
exercisability of such Option or of the shares subject to such Option, or otherwise materially
adversely affect the terms of such Option (except for amendments or modifications to the terms of
such Option or of the stock subject to such Option that are expressly permitted by the terms of the
Plan or that result from any amendment or modification of the Plan in accordance with the
provisions of the first paragraph of this Section 13).
In addition, notwithstanding anything express or implied in any of the foregoing provisions of
this Section 13 to the contrary, the Committee may amend or modify, prospectively or retroactively,
the terms of any outstanding Option to the extent the Committee reasonably determines necessary or
appropriate to conform such Option to the requirements of Section 409A of the Code (concerning
non-qualified deferred compensation), if applicable.
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Without the approval of the Companys stockholders, the Committee will not, directly or
indirectly, reduce the exercise price of an outstanding Option (other than in accordance with the
adjustment provisions of Section 8.1).
14. Interpretation of the Plan
In the event of any conflict between the provisions of this Plan and the provisions of any
applicable Option Agreement, the provisions of this Plan shall control, except if and to the extent
that the conflicting provision in such Option Agreement was authorized and approved by the
Committee at the time of the grant of the Option evidenced by such Option Agreement or is ratified
by the Committee at any time subsequent to the grant of such Option, in which case the conflicting
provision in such Option Agreement shall control. Without limiting the generality of the foregoing
provisions of this Section 14, insofar as possible the provisions of the Plan and such Option
Agreement shall be construed so as to give full force and effect to all such provisions. In the
event of any conflict between the provisions of this Plan and the provisions of any other agreement
between the Company and the Holder, the provisions of such agreement shall control, but insofar as
possible the provisions of the Plan and any such agreement shall be construed so as to give full
force and effect to all such provisions.
15. Notices and Other Communications
Any notice, demand, request or other communication hereunder to any party shall be deemed to
be sufficient if contained in a written instrument delivered in person or duly sent by first class
registered, certified or overnight mail, postage prepaid, or telecopied with a confirmation copy by
regular, certified or overnight mail, addressed or telecopied, as the case may be, (i) if to the
recipient of an Option, at his or her residence address last filed with the Company and (ii) if to
the Company, at its principal place of business, addressed to the attention of its Chief Executive
Officer, or to such other address or telecopier number, as the case may be, as the addressee may
have designated by notice to the addressor. All such notices, requests, demands and other
communications shall be deemed to have been received: (i) in the case of personal delivery, on the
date of such delivery; (ii) in the case of mailing, when received by the addressee; and (iii) in
the case of facsimile transmission, when confirmed by facsimile machine report.
16. Governing Law
The Plan and all Option Agreements and actions taken thereunder shall be governed, interpreted
and enforced in accordance with the laws of the State of New Jersey, without regard to the conflict
of laws principles thereof.
17. Effectiveness of Plan
This Amended and Restated 2007 Director Option Plan was approved in May 2007 by the
stockholders of the Company and was amended and restated and reapproved by stockholders effective
as of June 15, 2010.
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