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8-K - FORM 8-K - GEN PROBE INC | a59599e8vk.htm |
Exhibit 10.1
THE 2003
INCENTIVE AWARD PLAN
OF
GEN-PROBE
INCORPORATED
Originally Adopted by the Board of Directors on March 3,
2003
Amendment Adopted by Board of Directors on May 13, 2003
Originally Approved by the Stockholders on May 29, 2003
Amendment and Restatement Adopted by Board of Directors on
February 9, 2006
Amendment and Restatement Approved by the Stockholders on
May 17, 2006
Second Amendment and Restatement Adopted by Board of Directors
on November 16, 2006
Third Amendment and Restatement Adopted by Board of Directors on
February 8, 2007
Fourth Amendment and Restatement Adopted by Board of Directors
on March 20, 2009
Fourth Amendment and Restatement Approved by the Stockholders on
May 14, 2009
Fifth Amendment and Restatement Adopted by Board of Directors on
March 9, 2011
Fifth Amendment and Restatement Approved by the Stockholders on
May 19, 2011
Gen-Probe Incorporated, a Delaware corporation, has adopted The
2003 Incentive Award Plan of Gen-Probe Incorporated (the
Plan) for the benefit of its eligible Employees,
Consultants and Directors.
The purposes of the Plan are as follows:
(1) To provide an additional incentive for Directors,
Employees and Consultants (as such terms are defined below) to
further the growth, development and financial success of the
Company by personally benefiting through the ownership of
Company stock
and/or
rights which recognize such growth, development and financial
success.
(2) To enable the Company to obtain and retain the services
of Directors, Employees and Consultants considered essential to
the long range success of the Company by offering them an
opportunity to own stock in the Company
and/or
rights which will reflect the growth, development and financial
success of the Company.
ARTICLE I.
DEFINITIONS
1.1 General. Whenever the following
terms are used in the Plan they shall have the meanings
specified below, unless the context clearly indicates otherwise.
1.2 Administrator. Administrator
shall mean the entity that conducts the general administration
of the Plan as provided herein. With reference to the
administration of the Plan with respect to Awards granted to
Independent Directors, the term Administrator shall
refer to the Board. With reference to the administration of the
Plan with respect to any other Awards, the term
Administrator shall refer to the Committee, except
to the extent the Board has assumed the authority for
administration of the Plan as provided in Section 11.2.
1.3 Award. Award shall
mean an Option, a Restricted Stock award, a Restricted Stock
Unit award, a Performance Award, a Dividend Equivalents award, a
Deferred Stock award, a Stock Payment award or a Stock
Appreciation Right, which may be awarded or granted under the
Plan (collectively, Awards).
1.4 Award Agreement. Award
Agreement shall mean a written agreement executed by an
authorized officer of the Company and the Holder, which shall
contain such terms and conditions with respect to an Award, as
the Administrator shall determine, consistent with the Plan.
1.5 Award Limit. Award
Limit shall mean Five Hundred Thousand (500,000) shares of
Common Stock, as adjusted pursuant to Section 12.3 of the
Plan.
1.6 Board. Board shall
mean the Board of Directors of the Company.
1.7 Change in Control. Change
in Control shall mean a change in ownership or control of
the Company effected through any of the following transactions:
(a) any person or related group of persons (other than the
Company or a person that, prior to such transaction, directly or
indirectly controls, is controlled by, or is under common
control with, the Company) directly or indirectly acquires
beneficial ownership (within the meaning of
Rule 13d-3
under the Exchange Act) of securities possessing more than fifty
percent (50%) of the total combined voting power of the
Companys outstanding securities pursuant to a tender or
exchange offer for securities of the Company;
(b) there is a change in the composition of the Board over
a period of thirty-six (36) consecutive months (or less)
such that a majority of the Board members (rounded up to the
nearest whole number) ceases, by reason of one or more proxy
contests for the election of Board members, to be comprised of
individuals who either (i) have been Board members
continuously since the beginning of such period or
(ii) have been elected or nominated for election as Board
members during such period by at least a majority of the Board
members described in clause (i) who were still in office at
the time such election or nomination was approved by the Board;
(c) a merger or consolidation of the Company with any other
corporation (or other entity), other than a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or another
entity) more than
662/3%
of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after
such merger or consolidation; provided, however, that a merger
or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no person acquires
more than 25% of the combined voting power of the Companys
then outstanding voting securities shall not constitute a Change
in Control; or
(d) a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all of the Companys assets.
1.8 Code. Code shall
mean the Internal Revenue Code of 1986, as amended from time to
time.
1.9 Committee. Committee
shall mean the Board, or Compensation Committee of the Board, or
another committee or subcommittee of the Board, appointed as
provided in Section 11.1.
1.10 Common Stock. Common
Stock shall mean the Common Stock of the Company, par
value $0.0001 per share.
1.11 Company. Company
shall mean Gen-Probe Incorporated, a Delaware corporation.
1.12 Consultant. Consultant
shall mean any consultant or adviser (other than an Employee) if:
(a) the consultant or adviser renders bona fide services to
the Company or any Subsidiary;
(b) the services rendered by the consultant or adviser are
not in connection with the offer or sale of securities in a
capital-raising transaction and do not directly or indirectly
promote or maintain a market for the Companys
securities; and
(c) the consultant or adviser is a natural person who has
contracted directly with the Company or any Subsidiary to render
such services.
1.13 Deferred Stock. Deferred
Stock shall mean a right to receive Common Stock awarded
under Section 9.4.
1.14 Director. Director
shall mean a member of the Board, whether such Director is an
Employee or an Independent Director.
1.15 Dividend
Equivalent. Dividend Equivalent shall
mean a right to receive the equivalent value (in cash or Common
Stock) of dividends paid on Common Stock, awarded under
Section 9.2.
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1.16 DRO. DRO shall
mean a domestic relations order as defined by the Code or
Title I of the Employee Retirement Income Security Act of
1974, as amended, or the rules thereunder.
1.17 Eligible
Individual. Eligible Individual shall
mean any person who is an Employee, a Consultant or an
Independent Director, as determined by the Administrator.
1.18 Employee. Employee
shall mean any officer or other employee (as defined in
accordance with Section 3401(c) of the Code) of the
Company, or of any corporation which is a Subsidiary.
1.19 Equity
Restructuring. Equity Restructuring
shall mean a non-reciprocal transaction between the Company and
its stockholders, such as a stock dividend, stock split,
spin-off, rights offering or recapitalization through a large,
nonrecurring cash dividend, that affects the number or kind of
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 Common Stock underlying
outstanding Awards.
1.20 Exchange Act. Exchange
Act shall mean the Securities Exchange Act of 1934, as
amended.
1.21 Fair Market Value. Fair
Market Value shall mean, as of any date, the value of the
Common Stock determined as follows:
(a) If the Common Stock is listed on any established stock
exchange or a national market system, 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 system (or the exchange or system with the
greatest volume of trading in the Common Stock) for such date,
or if no bids or sales were reported for such date, then the
closing sales price (or the closing bid, if no sales were
reported) on the trading date immediately prior to such date
during which a bid or sale occurred, in each case, as reported
by The NASDAQ Stock Market or such other source as the Board
deems reliable.
(b) In the absence of such markets for the Common Stock,
the Fair Market Value shall be determined in good faith by the
Board.
1.22 Full Value Award. Full
Value Award shall mean any Award other than an Option or a
Stock Appreciation Right.
1.23 Holder. Holder
shall mean a person who has been granted or awarded an Award.
1.24 Incentive Stock
Option. Incentive Stock Option shall
mean an Option which conforms to the applicable provisions of
Section 422 of the Code and which is designated as an
Incentive Stock Option by the Administrator.
1.25 Independent
Director. Independent Director shall
mean a member of the Board who is not an Employee.
1.26 Independent Director Equity Compensation
Policy. Independent Director Equity
Compensation Policy shall mean a written non-discretionary
formula to provide for granting Awards to Independent Directors
that is established by the Administrator in accordance with
Article X.
1.27 Non-Qualified Stock
Option. Non-Qualified Stock Option
shall mean an Option not intended to qualify as an incentive
stock option within the meaning of Section 422 of the Code
and the regulations promulgated thereunder.
1.28 Option. Option
shall mean a stock option granted under Article IV of the
Plan. An Option granted under the Plan shall, as determined by
the Administrator, be either a Non-Qualified Stock Option or an
Incentive Stock Option; provided, however, that Options granted
to Independent Directors and Consultants shall be Non-Qualified
Stock Options.
1.29 Performance
Award. Performance Award shall mean a
cash bonus award, stock bonus award, performance award or
incentive award that is paid in cash, Common Stock or a
combination of both, awarded under Section 9.1.
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1.30 Performance-Based
Compensation. Performance-Based
Compensation shall mean any compensation that is intended
to qualify as performance-based compensation as
described in Section 162(m)(4)(C) of the Code.
1.31 Performance
Criteria. Performance Criteria shall
mean the following business criteria with respect to the
Company, any Subsidiary or any division or operating unit:
(a) revenue, (b) sales, (c) cash flow,
(d) earnings per share of Common Stock (including earnings
before any one or more of the following: (i) interest,
(ii) taxes, (iii) depreciation and
(iv) amortization), (e) return on equity,
(f) total stockholder return, (g) return on capital,
(h) return on assets or net assets, (i) income or net
income, (j) operating income or net operating income,
(k) operating profit or net operating profit,
(l) operating margin, (m) cost reductions or savings,
(n) research and development expenses (including research
and development expenses as a percentage of sales or revenues);
(o) working capital and (p) market share.
1.32 Plan. Plan shall
mean The 2003 Incentive Award Plan of Gen-Probe Incorporated.
1.33 Restricted
Stock. Restricted Stock shall mean
Common Stock awarded under Article VII of the Plan.
1.34 Restricted Stock
Units. Restricted Stock Units shall
mean the right to receive Common Stock awarded under
Section 9.5.
1.35 Rule 16b-3. Rule 16b-3
shall mean that certain
Rule 16b-3
under the Exchange Act, as such Rule may be amended from time to
time.
1.36 Section 162(m)
Employee. Section 162(m)
Employee shall mean any Employee designated by the
Administrator as an Employee whose compensation for the fiscal
year in which the Employee is so designated or a future fiscal
year may be subject to the limit on deductible compensation
imposed by Section 162(m) of the Code.
1.37 Securities
Act. Securities Act shall mean the
Securities Act of 1933, as amended.
1.38 Stock Appreciation
Right. Stock Appreciation Right shall
mean a stock appreciation right granted under Article VIII
of the Plan.
1.39 Stock Payment. Stock Payment
shall mean (a) a payment in the form of shares of Common
Stock, or (b) an option or other right to purchase shares
of Common Stock, as part of a bonus, deferred compensation or
other arrangement, awarded under Section 9.3.
1.40 Subsidiary. Subsidiary
shall mean any corporation in an unbroken chain of corporations
beginning with the Company if each of the corporations other
than the last corporation in the unbroken chain then owns stock
possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain.
1.41 Substitute
Award. Substitute Award shall mean an
Option granted under the Plan upon the assumption of, or in
substitution for, outstanding equity awards previously granted
by another company or entity in connection with a corporate or
similar transaction, such as a merger, combination,
consolidation or acquisition of property or stock; provided,
however, that in no event shall the term Substitute
Award be construed to refer to an option granted in
connection with the cancellation and repricing of an Option.
1.42 Termination of
Consultancy. Termination of
Consultancy shall mean the time when the engagement of a
Holder as a Consultant to the Company or a Subsidiary is
terminated for any reason, with or without cause, including, but
not by way of limitation, by resignation, discharge, death,
disability or retirement; but excluding terminations where there
is a simultaneous engagement by or commencement of employment
with the Company or any Subsidiary or a parent corporation
thereof (within the meaning of Section 424 of the Code).
The Administrator, in its absolute discretion, shall determine
the effect of all matters and questions relating to Termination
of Consultancy, including, but not by way of limitation, the
question of whether a Termination of Consultancy resulted from a
discharge for cause, and all questions of whether a particular
leave of absence constitutes a Termination of Consultancy.
Notwithstanding any other provision of the Plan, the Company or
any Subsidiary has an absolute and unrestricted right to
terminate a Consultants service at any time for any reason
whatsoever, with or without cause, except to the extent
expressly provided otherwise in writing.
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1.43 Termination of
Directorship. Termination of
Directorship shall mean the time when a Holder who is an
Independent Director ceases to be a Director for any reason,
including, but not by way of limitation, a termination by
resignation, removal, failure to be re-elected, death,
disability or retirement. The Board, in its sole and absolute
discretion, shall determine the effect of all matters and
questions relating to Termination of Directorship with respect
to Independent Directors.
1.44 Termination of
Employment. Termination of Employment
shall mean the time when the employee-employer relationship
between a Holder and the Company or any Subsidiary is terminated
for any reason, with or without cause, including, but not by way
of limitation, a termination by resignation, discharge, death,
disability or retirement; but excluding (a) terminations
where there is a simultaneous reemployment or continuing
employment of a Holder by the Company or any Subsidiary or a
parent corporation thereof (within the meaning of
Section 424 of the Code), (b) at the discretion of the
Administrator, terminations which result in a temporary
severance of the employee-employer relationship, and (c) at
the discretion of the Administrator, terminations which are
followed by the simultaneous establishment of a consulting
relationship by the Company or a Subsidiary with the former
employee, until the consultancy terminates and
(d) terminations of employment due to retirement which are
followed by the continuing service of the Holder as a Director
of the Company, until such service as a director terminates. The
Administrator, in its absolute discretion, shall determine the
effect of all matters and questions relating to Termination of
Employment, including, but not by way of limitation, the
question of whether a Termination of Employment resulted from a
discharge for cause, and all questions of whether a particular
leave of absence constitutes a Termination of Employment;
provided, however, that, with respect to Incentive Stock
Options, unless otherwise determined by the Administrator in its
discretion, a leave of absence, change in status from an
employee to an independent contractor or other change in the
employee-employer relationship shall constitute a Termination of
Employment if, and to the extent that, such leave of absence,
change in status or other change interrupts employment for the
purposes of Section 422(a)(2) of the Code and the then
applicable regulations and revenue rulings under said Section.
ARTICLE II.
SHARES SUBJECT
TO PLAN
2.1 Shares Subject to Plan.
(a) The shares of stock subject to Awards shall be Common
Stock, subject to Section 12.3 of the Plan. The aggregate
number of such shares which may be issued upon exercise of such
Options or rights or upon any such Awards under the Plan shall
not exceed Thirteen Million (13,000,000) shares. No additional
shares may be authorized for issuance under the Plan without
stockholder approval (subject to adjustment as set forth in
Section 12.3). The shares of Common Stock issuable upon
exercise of such Options or rights or upon any such Awards may
be either previously authorized but unissued shares or treasury
shares.
(b) Subject to Section 2.2, the number of shares
available for issuance under the Plan shall be reduced by:
(i) one (1) share for each share of stock issued
pursuant to (A) an Option granted under Article IV,
(B) an award of Restricted Stock under Article VII
granted prior to May 17, 2006 and (C) a Stock
Appreciation Right granted under Article VIII with respect
to which the exercise price is at least one hundred percent
(100%) of the Fair Market Value of the underlying Common Stock
on the date of grant; and (ii) two (2.0) shares for each
share of Common Stock issued pursuant to a Full Value Award
granted after May 17, 2006.
(c) The maximum number of shares of Common Stock which may
be subject to Awards granted under the Plan to any individual in
any calendar year shall not exceed the Award Limit. To the
extent required by Section 162(m) of the Code, shares
subject to Options that are canceled continue to be counted
against the Award Limit. The maximum aggregate amount of cash
that may be paid during any calendar year with respect to one or
more Awards payable in cash shall be $3,000,000.
2.2 Add-Back of Options and Other
Rights. If any Option or other right to acquire
shares of Common Stock under any other Award under the Plan
expires or is canceled without having been fully exercised, or
is exercised in whole or in part for cash as permitted by the
Plan, then the number of shares of Common Stock subject to such
Option or other right but as to which such Option or other right
was not exercised prior to its expiration or
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cancellation may again be optioned, granted or awarded
hereunder, subject to the limitations of Section 2.1;
provided that to the extent there is issued a share of Common
Stock pursuant to an Award that counted as two (2.0) shares
against the number of shares available for issuance under the
Plan pursuant to Section 2.1(b) and such share of Common
Stock again becomes available for issuance under the Plan
pursuant to this Section 2.2, then the number of shares of
Common Stock available for issuance under the Plan shall
increase by two (2.0) shares. Furthermore, any shares subject to
Awards which are adjusted pursuant to Section 12.3 and
become exercisable with respect to shares of stock of another
corporation shall be considered cancelled and may again be
optioned, granted or awarded hereunder, subject to the
limitations of Section 2.1. Shares of Common Stock which
are delivered by the Holder or withheld by the Company upon the
exercise of any Award under the Plan, in payment of the exercise
price thereof or tax withholding thereon, and shares of Common
Stock that were subject to a stock-settled Stock Appreciation
Right and were not issued upon the settlement or net exercise of
such Stock Appreciation Right may not again be optioned, granted
or awarded hereunder, subject to the limitations of
Section 2.1. If any shares of Restricted Stock are
surrendered by the Holder or repurchased by the Company pursuant
to Section 7.4 or 7.5 hereof, such shares may again be
optioned, granted or awarded hereunder, subject to the
provisions of Section 2.1. Notwithstanding the provisions
of this Section 2.2, no shares of Common Stock may again be
optioned, granted or awarded if such action would cause an
Incentive Stock Option to fail to qualify as an incentive
stock option under Section 422 of the Code. The
payment of Dividend Equivalents in cash in conjunction with any
outstanding Awards shall not be counted against the shares
available for issuance under the Plan.
ARTICLE III.
GRANTING OF
AWARDS
3.1 Award Agreement. Each Award
shall be evidenced by an Award Agreement. Award Agreements
evidencing Awards intended to qualify as Performance-Based
Compensation shall contain such terms and conditions as may be
necessary to meet the applicable provisions of
Section 162(m) of the Code. Award Agreements evidencing
Incentive Stock Options shall contain such terms and conditions
as may be necessary to meet the applicable provisions of
Section 422 of the Code.
3.2 Provisions Applicable to Section 162(m)
Employees.
(a) The Committee, in its discretion, may determine whether
an Award is to qualify as Performance-Based Compensation.
(b) Notwithstanding anything in the Plan to the contrary,
the Committee may grant any Award to a Section 162(m)
Employee that vests or becomes exercisable or payable upon the
attainment of performance goals which are related to one or more
of the Performance Criteria, including Restricted Stock the
restrictions to which lapse upon the obtainment of performance
goals which are related to one or more of the Performance
Criteria.
(c) To the extent necessary to comply with the requirements
of Section 162(m)(4)(C) of the Code, with respect to any
Award granted under Article VII or IX which may be granted
to one or more Section 162(m) Employees, no later than
ninety (90) days following the commencement of any fiscal
year in question or any other designated fiscal period or period
of service (or such other time as may be required or permitted
by Section 162(m) of the Code), the Committee shall, in
writing, (i) designate one or more Section 162(m)
Employees, (ii) select the Performance Criteria applicable
to the fiscal year or other designated fiscal period or period
of service, (iii) establish the various performance
targets, in terms of an objective formula or standard, and
amounts of such Awards, as applicable, which may be earned for
such fiscal year or other designated fiscal period or period of
service, and (iv) specify the relationship between
Performance Criteria and the performance targets and the amounts
of such Awards, as applicable, to be earned by each
Section 162(m) Employee for such fiscal year or other
designated fiscal period or period of service. Following the
completion of each fiscal year or other designated fiscal period
or period of service, the Committee shall certify in writing
whether the applicable performance targets have been achieved
for such fiscal year or other designated fiscal period or period
of service. In determining the amount earned by a
Section 162(m) Employee, the Committee shall have the right
to reduce (but not to increase) the amount payable at a given
level of performance to take into account additional factors
that the Committee may deem relevant to the assessment of
individual or corporate performance for the fiscal year or other
designated fiscal period or period of service.
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(d) Furthermore, notwithstanding any other provision of the
Plan, any Award that is granted to a Section 162(m)
Employee and is intended to qualify as Performance-Based
Compensation shall be subject to any additional limitations set
forth in Section 162(m) of the Code (including any
amendment to Section 162(m) of the Code) or any regulations
or rulings issued thereunder that are requirements for
qualification as Performance-Based Compensation and the Plan and
such Awards shall be deemed amended to the extent necessary to
conform to such requirements.
3.3 Limitations Applicable to
Section 16 Persons. Notwithstanding any
other provision of the Plan, the Plan, and any Award granted or
awarded to any individual who is then subject to Section 16
of the Exchange Act, shall be subject to any additional
limitations set forth in any applicable exemptive rule under
Section 16 of the Exchange Act (including any amendment to
Rule 16b-3
of the Exchange Act) that are requirements for the application
of such exemptive rule. To the extent permitted by applicable
law, the Plan and Awards granted or awarded hereunder shall be
deemed amended to the extent necessary to conform to such
applicable exemptive rule.
3.4 At-Will Employment. Nothing in
the Plan or in any Award Agreement hereunder shall confer upon
any Holder any right to continue in the employ of, or as a
Consultant for, the Company or any Subsidiary, or as a Director
of the Company, or shall interfere with or restrict in any way
the rights of the Company and any Subsidiary, which are hereby
expressly reserved, to discharge any Holder at any time for any
reason whatsoever, with or without cause, except to the extent
expressly provided otherwise in a written employment or
consulting agreement between the Holder and the Company and any
Subsidiary.
3.5 Foreign
Holders. Notwithstanding any provision of the
Plan to the contrary, in order to comply with the laws in other
countries in which the Company and its Subsidiaries operate or
have Employees, Independent Directors or Consultants, or in
order to comply with the requirements of any foreign stock
exchange, the Administrator, in its sole discretion, shall have
the power and authority to: (a) determine which
Subsidiaries shall be covered by the Plan; (b) determine
which Eligible Individuals outside the United States are
eligible to participate in the Plan; (c) modify the terms
and conditions of any Award granted to Eligible Individuals
outside the United States to comply with applicable foreign laws
or listing requirements of any such foreign stock exchange;
(d) establish subplans and modify exercise procedures and
other terms and procedures, to the extent such actions may be
necessary or advisable (any such subplans
and/or
modifications shall be attached to the Plan as appendices);
provided, however, that no such subplans
and/or
modifications shall increase the share limitations contained in
Section 2.1 and (e) take any action, before or after
an Award is made, that it deems advisable to obtain approval or
comply with any necessary local governmental regulatory
exemptions or approvals or listing requirements of any such
foreign stock exchange. Notwithstanding the foregoing, the
Administrator may not take any actions hereunder, and no Awards
shall be granted, that would violate the Code, the Exchange Act,
the Securities Act or any other securities law or governing
statute or any other applicable law.
ARTICLE IV.
GRANTING OF
OPTIONS
4.1 Eligibility. Any Employee or
Consultant selected by the Committee pursuant to
Section 4.4(a)(i) shall be eligible to be granted an
Option. Any Independent Director shall be eligible to be granted
an Option pursuant to the Independent Director Equity
Compensation Policy. All grants, other than those made pursuant
to the Independent Director Equity Compensation Policy, shall be
made at the discretion of the Committee or the Board, as the
case may be, and no person shall be entitled to a grant of an
Option as a matter of right.
4.2 Disqualification for Stock
Ownership. No person may be granted an Incentive
Stock Option under the Plan if such person, at the time the
Incentive Stock Option is granted, owns stock possessing more
than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or any then existing Subsidiary
or parent corporation (within the meaning of Section 424 of
the Code) unless such Incentive Stock Option conforms to the
applicable provisions of Section 422 of the Code.
4.3 Qualification of Incentive Stock
Options. No Incentive Stock Option shall be
granted to any person who is not an Employee.
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4.4 Granting of Options to Employees and
Consultants.
(a) The Committee shall from time to time, in its absolute
discretion, and subject to applicable limitations of the Plan:
(i) Select from among the Employees or Consultants
(including Employees or Consultants who have previously been
granted Awards under the Plan) such of them as in its opinion
should be granted Options;
(ii) Subject to the Award Limit, determine the number of
shares of Common Stock to be subject to such Options granted to
the selected Employees or Consultants;
(iii) Subject to Section 4.3, determine whether such
Options are to be Incentive Stock Options or Non-Qualified Stock
Options and whether such Options are to qualify as
Performance-Based Compensation; and
(iv) Determine the terms and conditions of such Options,
consistent with the Plan; provided, however, that the terms and
conditions of Options intended to qualify as Performance-Based
Compensation shall include, but not be limited to, such terms
and conditions as may be necessary to meet the applicable
provisions of Section 162(m) of the Code.
(b) Upon the selection of an Employee or Consultant to be
granted an Option, the Committee shall instruct the Secretary of
the Company to issue the Option and may impose such conditions
on the grant of the Option as it deems appropriate, and the
Committee shall authorize one or more of the officers of the
Company to prepare, execute and deliver the Award Agreement with
respect to such Option.
(c) Any Incentive Stock Option granted under the Plan may
be modified by the Committee, with the consent of the Holder, to
disqualify such Option from treatment as an incentive
stock option under Section 422 of the Code.
4.5 Options in Lieu of Cash
Compensation. Options may be granted under the
Plan to Employees and Consultants in lieu of cash bonuses that
would otherwise be payable to such Employees and Consultants
pursuant to such policies that may be adopted by the
Administrator from time to time and to Independent Directors in
lieu of directors fees that would otherwise be payable to
such Independent Directors pursuant to the Independent Director
Equity Compensation Policy.
ARTICLE V.
TERMS OF
OPTIONS
5.1 Option Price. The price per
share of the shares of Common Stock subject to each Option
granted to Employees and Consultants shall be set by the
Committee; provided, however, that such price shall be no less
than 100% of the Fair Market Value of a share of Common Stock on
the date the Option is granted, and:
(a) in the case of Incentive Stock Options, such price
shall not be less than 100% of the Fair Market Value of a share
of Common Stock on the date the Option is modified, extended or
renewed for purposes of Section 424(h) of the Code; and
(b) in the case of Incentive Stock Options granted to an
individual then owning (within the meaning of
Section 424(d) of the Code) more than 10% of the total
combined voting power of all classes of stock of the Company or
any Subsidiary or parent corporation thereof (within the meaning
of Section 422 of the Code), such price shall not be less
than 110% of the Fair Market Value of a share of Common Stock on
the date the Option is granted (or the date the Option is
modified, extended or renewed for purposes of
Section 424(h) of the Code).
5.2 Option Term. The term of an
Option granted to an Employee or Consultant shall be set by the
Committee in its absolute discretion; provided, however, that
the term shall not be more than ten (10) years from the
date the Option is granted; provided, further, however, that the
term of any Option granted after May 17, 2006 shall not be
more than seven (7) years from the date the Option is
granted; and, provided, further, that, in the case of Incentive
Stock Options, the term shall not be more than five
(5) years from the date the Incentive Stock Option is
granted if the Incentive Stock Option is granted to an
individual then owning (within the meaning of
Section 424(d)
8
of the Code) more than 10% of the total combined voting power of
all classes of stock of the Company or any Subsidiary or parent
corporation thereof (within the meaning of Section 424 of
the Code). Except as limited by requirements of Section 422
of the Code and regulations and rulings thereunder applicable to
Incentive Stock Options, as well as any applicable requirements
of Section 409A of the Code and the guidance and
regulations thereunder, the Committee may extend the term of any
outstanding Option in connection with any Termination of
Employment or Termination of Consultancy of the Holder, or amend
any other term or condition of such Option relating to such a
termination; provided, however, that any extended term shall not
be more than seven (7) years from the date the Option is
granted.
5.3 Option Vesting.
(a) The period during which the right to exercise, in whole
or in part, an Option granted to an Employee or a Consultant
vests in the Holder shall be set by the Committee and the
Committee may determine that an Option may not be exercised in
whole or in part for a specified period after it is granted.
Subject to the provisions of the prior sentence, at any time
after grant of an Option, the Committee may, in its absolute
discretion and subject to whatever terms and conditions it
selects, accelerate the period during which an Option granted to
an Employee or Consultant vests and becomes exercisable.
(b) No portion of an Option granted to an Employee or
Consultant which is unexercisable at Termination of Employment
or Termination of Consultancy, as applicable, shall thereafter
become exercisable, except as may be otherwise provided by the
Committee either in the Award Agreement or by action of the
Committee following the grant of the Option.
(c) To the extent that the aggregate Fair Market Value of
stock with respect to which incentive stock options
(within the meaning of Section 422 of the Code, but without
regard to Section 422(d) of the Code) are exercisable for
the first time by a Holder during any calendar year (under the
Plan and all other incentive stock option plans of the Company
and any parent or subsidiary corporation (within the meaning of
Section 422 of the Code) of the Company), exceeds $100,000,
such Options or other options shall be treated as non-qualified
stock options to the extent required by Section 422 of the
Code. The rule set forth in the preceding sentence shall be
applied by taking Options or other options into account in the
order in which they were granted. For purposes of this
Section 5.3(c), the Fair Market Value of stock shall be
determined as of the time the Option or other options with
respect to such stock is granted.
5.4 Terms of Options Granted to Independent
Directors. The price per share of the shares
subject to each Option granted to an Independent Director shall
equal 100% of the Fair Market Value of a share of Common Stock
on the date the Option is granted. The period during which the
right to exercise, in whole or in part, an Option granted to an
Independent Director vests in the Holder and the term of such
Option shall be set forth in the Independent Director Equity
Compensation Policy; provided, however, that the term of any
Option granted after May 17, 2006 shall not be more than
seven (7) years from the date the Option is granted. Except
as otherwise provided in the Independent Director Equity
Compensation Policy, no portion of an Option which is
unexercisable at Termination of Directorship shall thereafter
become exercisable. Options granted to Independent Directors
shall be subject to such other terms and conditions as are
determined by the Administrator and set forth in the Independent
Director Equity Compensation Policy.
5.5 Substitute
Awards. Notwithstanding the foregoing provisions
of this Article V to the contrary, in the case of an Option
that is a Substitute Award, the price per share of the shares
subject to such Option may be less than the Fair Market Value
per share on the date of grant, provided, that the excess of:
(a) the aggregate Fair Market Value (as of the date such
Substitute Award is granted) of the shares subject to the
Substitute Award; over
(b) the aggregate exercise price thereof; does not exceed
the excess of;
(c) the aggregate fair market value (as of the time
immediately preceding the transaction giving rise to the
Substitute Award, such fair market value to be determined by the
Administrator) of the shares of the predecessor entity that were
subject to the grant assumed or substituted for by the Company;
over
(d) the aggregate exercise price of such shares.
9
5.6 Restrictions on Common Stock.
The Administrator may, in its sole discretion, provide under the
terms of an Option that shares of Common Stock purchased upon
exercise of such Option shall be subject to repurchase from the
Holder by the Company, or shall be subject to such restrictions
as the Administrator shall provide, which restrictions may
include, without limitation, restrictions concerning voting
rights and transferability and restrictions based on duration of
employment with the Company and the Subsidiaries, Company
performance and individual performance; provided, however, that,
by action taken before or after the Common Stock is purchased
upon exercise of the Option, the Administrator may, on such
terms and conditions as it may determine to be appropriate,
terminate the Companys repurchase right or remove any or
all of the restrictions imposed by the terms of the Award
Agreement. The Companys right to repurchase the Common
Stock from the Holder then subject to the right shall provide
that immediately upon a Termination of Employment, a Termination
of Consultancy, or a Termination of Directorship, as applicable,
and for such period as the Administrator shall determine, the
Company shall have the right to purchase the Common Stock at a
price per share equal to the price paid by the Holder for such
Common Stock, or such other price as is determined by the
Administrator; provided, however, that, in the event of a Change
in Control, such right of repurchase shall terminate immediately
prior to the effective date of such Change in Control. Shares of
Common Stock purchased upon the exercise of an Option may not be
sold, transferred or encumbered until any repurchase right and
any and all restrictions are terminated or expire. The Secretary
of the Company or such other escrow holder as the Administrator
may appoint shall retain physical custody of each certificate
representing such shares of Common Stock until the repurchase
right and any and all of the restrictions imposed under the
Award Agreement with respect to the shares evidenced by such
certificate terminate, expire or shall have been removed. In
order to enforce the restrictions imposed upon shares of Common
Stock hereunder, the Administrator shall cause a legend or
legends to be placed on certificates representing all shares of
Common Stock that are still subject to any repurchase right or
restrictions under Award Agreements, which legend or legends
shall make appropriate reference to the conditions imposed
thereby. If a Holder makes an election under Section 83(b)
of the Code, or any successor section thereto, to be taxed with
respect to the Common Stock as of the date of transfer of the
Common Stock rather than as of the date or dates upon which the
Holder would otherwise be taxable under Section 83(a) of
the Code, the Holder shall deliver a copy of such election to
the Company immediately after filing such election with the
Internal Revenue Service.
ARTICLE VI.
EXERCISE OF
OPTIONS
6.1 Partial Exercise. An
exercisable Option may be exercised in whole or in part.
However, an Option shall not be exercisable with respect to
fractional shares and the Administrator may require that, by the
terms of the Option, a partial exercise be with respect to a
minimum number of shares.
6.2 Manner of Exercise. All or a
portion of an exercisable Option shall be deemed exercised upon
delivery of all of the following to the Secretary of the Company
or his office:
(a) A written notice complying with the applicable rules
established by the Administrator stating that the Option, or a
portion thereof, is exercised. The notice shall be signed by the
Holder or other person then entitled to exercise the Option or
such portion of the Option;
(b) Such representations and documents as the
Administrator, in its absolute discretion, deems necessary or
advisable to effect compliance with all applicable provisions of
the Securities Act and any other federal or state securities
laws or regulations. The Administrator may, in its absolute
discretion, also take whatever additional actions it deems
appropriate to effect such compliance including, without
limitation, placing legends on share certificates and issuing
stop-transfer notices to agents and registrars;
(c) In the event that the Option shall be exercised
pursuant to Section 12.1 by any person or persons other
than the Holder, appropriate proof of the right of such person
or persons to exercise the Option; and
(d) Full cash payment to the Secretary of the Company, or
such other person or entity designated by the Administrator, for
the shares with respect to which the Option, or portion thereof,
is exercised. However, the
10
Administrator, may in its sole and absolute discretion
(i) allow payment, in whole or in part, through the
delivery of shares of Common Stock owned by the Holder duly
endorsed for transfer to the Company (or the Holders
attestation of ownership of such shares) with a Fair Market
Value on the date of delivery equal to the aggregate exercise
price of the Option or exercised portion thereof;
(ii) allow payment, in whole or in part, through the
surrender of shares of Common Stock then issuable upon exercise
of the Option having a Fair Market Value on the date of Option
exercise equal to the aggregate exercise price of the Option or
exercised portion thereof; (iii) allow payment, in whole or
in part, through the delivery of a notice that the Holder has
placed a market sell order with a broker with respect to shares
of Common Stock then issuable upon exercise of the Option, and
that the broker has been directed to pay a sufficient portion of
the net proceeds of the sale to the Company in satisfaction of
the Option exercise price, provided that payment of such
proceeds is then made to the Company upon settlement of such
sale; (iv) allow payment in another form of legal
consideration acceptable to the Administrator; or (v) allow
payment through any combination of the consideration provided in
the foregoing subparagraphs (i)-(iv).
6.3 Conditions to Issuance of Stock
Certificates. The Company shall not be required
to issue or deliver any certificate or certificates for shares
of stock purchased upon the exercise of any Option or portion
thereof prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed;
(b) The completion of any registration or other
qualification of such shares under any state or federal law, or
under the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body which the
Administrator shall, in its absolute discretion, deem necessary
or advisable;
(c) The obtaining of any approval or other clearance from
any state or federal governmental agency which the Administrator
shall, in its absolute discretion, determine to be necessary or
advisable;
(d) The lapse of such reasonable period of time following
the exercise of the Option as the Administrator may establish
from time to time for reasons of administrative
convenience; and
(e) The receipt by the Company of full payment for such
shares, including payment of any applicable withholding tax,
which in the discretion of the Administrator may be in the form
of consideration used by the Holder to pay for such shares under
Section 6.2(d).
6.4 Rights as Stockholders. Holders
shall not be, nor have any of the rights or privileges of,
stockholders of the Company in respect of any shares purchasable
upon the exercise of any part of an Option unless and until
certificates representing such shares have been issued by the
Company to such Holders.
6.5 Ownership and Transfer
Restrictions. The Administrator, in its absolute
discretion, may impose such restrictions on the ownership and
transferability of the shares purchasable upon the exercise of
an Option as it deems appropriate. Any such restriction shall be
set forth in the respective Award Agreement and may be referred
to on the certificates evidencing such shares. The Holder shall
give the Company prompt notice of any disposition of shares of
Common Stock acquired by exercise of an Incentive Stock Option
within (a) two years from the date of granting (including
the date the Option is modified, extended or renewed for
purposes of Section 424(h) of the Code) such Option to such
Holder or (b) one year after the transfer of such shares to
such Holder.
6.6 Limitations on Exercise of Options Granted to
Independent Directors. No Option granted to an
Independent Director may be exercised to any extent by anyone
after the first to occur of the following events:
(a) The expiration of 12 months from the date of the
Holders death;
(b) The expiration of 12 months from the date of the
Holders Termination of Directorship by reason of his or
her permanent and total disability (within the meaning of
Section 22(e)(3) of the Code); or
(c) Except as otherwise provided in any Award Agreement or
the Independent Director Equity Compensation Policy, the
expiration of three months from the date of the Holders
Termination of Directorship for any reason other than such
Holders death or his or her permanent and total
disability, unless the Holder dies within said three-month
period.
11
6.7 Additional Limitations on Exercise of
Options. Holders may be required to comply with
any timing or other restrictions with respect to the settlement
or exercise of an Option, including a window-period limitation,
as may be imposed in the discretion of the Administrator.
ARTICLE VII.
AWARD OF
RESTRICTED STOCK
7.1 Eligibility. Subject to the
Award Limit, Restricted Stock may be awarded to any Eligible
Individual who the Administrator determines should receive such
an Award.
7.2 Award of Restricted Stock.
(a) The Administrator may from time to time, in its
absolute discretion:
(i) Select from among the Eligible Individuals (including
Eligible Individuals who have previously been granted other
Awards under the Plan) such of them as in its opinion should be
awarded Restricted Stock; and
(ii) Determine the purchase price, if any, and other terms
and conditions applicable to such Restricted Stock, consistent
with the Plan.
(b) The Administrator shall establish the purchase price,
if any, and form of payment for Restricted Stock; provided,
however, that such purchase price shall be no less than the par
value of the Common Stock to be purchased, unless otherwise
permitted by applicable state law. In all cases, legal
consideration shall be required for each issuance of Restricted
Stock.
(c) Upon the selection of an Eligible Individual to be
awarded Restricted Stock, the Administrator shall instruct the
Secretary of the Company to issue such Restricted Stock and may
impose such conditions on the issuance of such Restricted Stock
as it deems appropriate, and the Committee shall authorize one
or more officers of the Company to prepare, execute and deliver
the Award Agreement with respect to such Restricted Stock.
7.3 Rights as Stockholders. Subject
to Section 7.4, upon delivery of the shares of Restricted
Stock to the escrow holder pursuant to Section 7.6, the
Holder shall have, unless otherwise provided by the
Administrator, all the rights of a stockholder with respect to
said shares, subject to the restrictions in his Award Agreement,
including the right to receive all dividends and other
distributions paid or made with respect to the shares; provided,
however, that in the discretion of the Administrator, any
extraordinary distributions with respect to the Common Stock
shall be subject to the restrictions set forth in
Section 7.4.
7.4 Restriction. All shares of
Restricted Stock issued under the Plan (including any shares
received by holders thereof with respect to shares of Restricted
Stock as a result of stock dividends, stock splits or any other
form of recapitalization) shall, in the terms of each individual
Award Agreement, be subject to such restrictions as the
Administrator shall provide, if any, which restrictions may
include, without limitation, restrictions concerning voting
rights and transferability and restrictions based on duration of
employment with the Company, Company performance and individual
performance; provided, however, that, except with respect to
shares of Restricted Stock granted to Section 162(m)
Employees, by action taken after the Restricted Stock is issued,
the Administrator may, on such terms and conditions as it may
determine to be appropriate, remove any or all of the
restrictions imposed by the terms of the Award Agreement subject
to the limitations contained herein. Restricted Stock may not be
sold or encumbered until all restrictions are terminated or
expire. If no consideration was paid by the Holder upon
issuance, a Holders rights in unvested Restricted Stock
shall lapse, and such Restricted Stock shall be surrendered to
the Company without consideration, upon Termination of
Employment, Termination of Consultancy or, if applicable, upon
Termination of Directorship; provided, however, that the
Administrator in its sole and absolute discretion may provide
that such rights shall not lapse in the event of a Termination
of Employment because of the Holders death or disability.
7.5 Repurchase of Restricted
Stock. The Administrator shall provide in the
terms of each individual Award Agreement that the Company shall
have the right to repurchase from the Holder the Restricted
Stock then subject to restrictions under the Award Agreement
immediately upon a Termination of Employment, a Termination of
Consultancy, or, if applicable, a Termination of Directorship at
a cash price per share equal to the price paid by the
12
Holder for such Restricted Stock; provided, however, that the
Committee in its sole and absolute discretion may provide that
no such right of repurchase shall exist in the event of a
Termination of Employment following a change of ownership
or control (within the meaning of Treasury
Regulation Section 1.162-27(e)(2)(v)
or any successor regulation thereto) of the Company or because
of the Holders death or disability; provided, further,
that, except with respect to shares of Restricted Stock granted
to Section 162(m) Employees, the Committee in its sole and
absolute discretion may provide that no such right of repurchase
shall exist in the event of a Termination of Employment, a
Termination of Consultancy or a Termination of Directorship
without cause or following any Change in Control of the Company
or because of the Holders retirement, or otherwise.
7.6 Escrow. The Secretary of the
Company or such other escrow holder as the Administrator may
appoint shall retain physical custody of each certificate
representing Restricted Stock until all of the restrictions
imposed under the Award Agreement with respect to the shares
evidenced by such certificate expire or shall have been removed.
7.7 Legend. In order to enforce the
restrictions imposed upon shares of Restricted Stock hereunder,
the Administrator shall cause a legend or legends to be placed
on certificates representing all shares of Restricted Stock that
are still subject to restrictions under Award Agreements, which
legend or legends shall make appropriate reference to the
conditions imposed thereby.
7.8 Section 83(b) Election. If
a Holder makes an election under Section 83(b) of the Code,
or any successor section thereto, to be taxed with respect to
the Restricted Stock as of the date of transfer of the
Restricted Stock rather than as of the date or dates upon which
the Holder would otherwise be taxable under Section 83(a)
of the Code, the Holder shall deliver a copy of such election to
the Company immediately after filing such election with the
Internal Revenue Service.
7.9 Restricted Stock in Lieu of Cash
Compensation. Notwithstanding anything herein to
the contrary, shares of Restricted Stock may be granted to
Independent Directors in lieu of directors fees which
would otherwise be payable to such Independent Directors
pursuant to the Independent Director Equity Compensation Policy.
ARTICLE VIII.
STOCK
APPRECIATION RIGHTS
8.1 Grant of Stock Appreciation
Rights. A Stock Appreciation Right may be granted
to any Eligible Individual selected by the Administrator. A
Stock Appreciation Right may be granted (a) in connection
and simultaneously with the grant of an Option, (b) with
respect to a previously granted Option, or (c) independent
of an Option. The exercise price per share of Common Stock
subject to each Stock Appreciation Right shall be set by the
Administrator, but shall not be less than 100% of the per share
Fair Market Value of the Common Stock on the date the Stock
Appreciation Right is granted. A Stock Appreciation Right shall
be subject to such other terms and conditions not inconsistent
with the Plan as the Administrator shall impose and shall be
evidenced by an Award Agreement.
8.2 Coupled Stock Appreciation Rights.
(a) A Coupled Stock Appreciation Right (CSAR)
shall be related to a particular Option and shall be exercisable
only when and to the extent the related Option is exercisable.
(b) A CSAR may be granted to the Holder for no more than
the number of shares subject to the simultaneously or previously
granted Option to which it is coupled.
(c) A CSAR shall entitle the Holder (or other person
entitled to exercise the Option pursuant to the Plan) to
surrender to the Company unexercised a portion of the Option to
which the CSAR relates (to the extent then exercisable pursuant
to its terms) and to receive from the Company in exchange
therefor an amount determined by multiplying the difference
obtained by subtracting the Option exercise price from the Fair
Market Value of a share of Common Stock on the date of exercise
of the CSAR by the number of shares of Common Stock with respect
to which the CSAR shall have been exercised, subject to any
limitations the Administrator may impose.
13
8.3 Independent Stock Appreciation Rights.
(a) An Independent Stock Appreciation Right
(ISAR) shall be unrelated to any Option and shall
have a term set by the Administrator; provided, however, that
the term shall not be more than seven (7) years from the
date the ISAR is granted. An ISAR shall be exercisable in such
installments as the Administrator may determine. Subject to the
provisions of the prior sentence, at any time after grant of an
ISAR, the Administrator may, in its absolute discretion and
subject to whatever terms and conditions it selects, accelerate
the period during which an Option granted to an Employee or
Consultant vests and becomes exercisable. An ISAR shall cover
such number of shares of Common Stock as the Administrator may
determine. The exercise price per share of Common Stock subject
to each ISAR shall be set by the Committee. An ISAR is
exercisable only while the Holder is an Employee, Consultant or
Director; provided that the Committee may determine that the
ISAR may be exercised subsequent to Termination of Employment,
Termination of Consultancy or Termination of Directorship
without cause, or following a Change in Control of the Company,
or because of the Holders retirement, death or disability,
or otherwise.
(b) An ISAR shall entitle the Holder (or other person
entitled to exercise the ISAR pursuant to the Plan) to exercise
all or a specified portion of the ISAR (to the extent then
exercisable pursuant to its terms) and to receive from the
Company an amount determined by multiplying the difference
obtained by subtracting the exercise price per share of the ISAR
from the Fair Market Value of a share of Common Stock on the
date of exercise of the ISAR by the number of shares of Common
Stock with respect to which the ISAR shall have been exercised,
subject to any limitations the Administrator may impose.
8.4 Payment and Limitations on Exercise.
(a) Payment of the amounts determined under
Section 8.2(c) and 8.3(b) above shall be in cash, in Common
Stock (based on its Fair Market Value as of the date the Stock
Appreciation Right is exercised) or a combination of both, as
determined by the Administrator. To the extent such payment is
effected in Common Stock it shall be made subject to
satisfaction of all provisions of Section 6.3 above
pertaining to Options.
(b) Holders of Stock Appreciation Rights may be required to
comply with any timing or other restrictions with respect to the
settlement or exercise of a Stock Appreciation Right, including
a window-period limitation, as may be imposed in the discretion
of the Administrator.
ARTICLE IX.
AWARD OF
PERFORMANCE AWARDS, DIVIDEND EQUIVALENTS, DEFERRED STOCK,
STOCK PAYMENTS AND RESTRICTED STOCK UNITS
9.1 Performance Awards.
(a) The Administrator is authorized to grant Performance
Awards to any Eligible Individual and to determine whether such
Performance Awards shall be Performance-Based Compensation. The
value of Performance Awards may be linked to any one or more of
the Performance Criteria or other specific criteria determined
by the Administrator, in each case on a specified date or dates
or over any period or periods determined by the Administrator.
In making such determinations, the Administrator shall consider
(among such other factors as it deems relevant in light of the
specific type of Award) the contributions, responsibilities and
other compensation of the particular Eligible Individual.
Performance Awards may be paid in cash, shares of Common Stock,
or both, as determined by the Administrator.
(b) Without limiting Section 9.1(a), the Administrator
may grant Performance Awards to any Eligible Individual in the
form of a cash bonus payable upon the attainment of objective
Performance Goals, or such other criteria, whether or not
objective, which are established by the Administrator, in each
case on a specified date or dates or over any period or periods
determined by the Administrator. Any such bonuses paid to a
Holder which are intended to be Performance-Based Compensation
shall be based upon objectively determinable bonus formulas
established in accordance with the provisions of Article 5.
Additionally, any such bonuses paid to any Eligible Individual
shall be subject to the Award Limit.
14
9.2 Dividend Equivalents.
(a) Dividend Equivalents may be granted by the
Administrator based on dividends declared on the Common Stock
subject to any Award, to be credited as of dividend payment
dates during the period between the date an Award is granted to
a Holder and the date such Award vests, is exercised, is
distributed or expires, as determined by the Administrator. Such
Dividend Equivalents shall be converted to cash or additional
shares of Common Stock by such formula and at such time and
subject to such limitations as may be determined by the
Administrator.
(b) Notwithstanding the foregoing, no Dividend Equivalents
shall be payable with respect to Options or Stock Appreciation
Rights.
9.3 Stock Payments. The
Administrator is authorized to make Stock Payments to any
Eligible Individual. The number or value of shares of any Stock
Payment shall be determined by the Administrator and may be
based upon one or more Performance Criteria or any other
specific criteria, including service to the Company or any
Subsidiary, determined by the Administrator. Common Stock
underlying a Stock Payment which is subject to a vesting
schedule or other conditions or criteria set by the
Administrator will not be issued until those conditions have
been satisfied. Unless otherwise provided by the Administrator,
a Holder of a Stock Payment shall have no rights as a Company
stockholder with respect to such Stock Payment until such time
as the Stock Payment has vested and the Common Stock underlying
the Award have been issued to the Holder. Stock Payments may,
but are not required to be made in lieu of base salary, bonus,
fees or other cash compensation otherwise payable to such
Eligible Individual.
9.4 Deferred Stock. The
Administrator is authorized to grant Deferred Stock to any
Eligible Individual. The number of shares of Deferred Stock
shall be determined by the Administrator and may be based on one
or more Performance Criteria or other specific criteria,
including service to the Company or any Subsidiary, as the
Administrator determines, in each case on a specified date or
dates or over any period or periods determined by the
Administrator. Common Stock underlying a Deferred Stock award
which is subject to a vesting schedule or other conditions or
criteria set by the Administrator will not be issued until those
conditions have been satisfied. Unless otherwise provided by the
Administrator, a Holder of Deferred Stock shall have no rights
as a Company stockholder with respect to such Deferred Stock
until such time as the Award has vested and the Common Stock
underlying the Award has been issued to the Holder.
9.5 Restricted Stock Units. The
Administrator is authorized to grant Restricted Stock Units to
any Eligible Individual. The number and terms and conditions of
Restricted Stock Units shall be determined by the Administrator.
The Administrator shall specify the date or dates on which the
Restricted Stock Units shall become fully vested and
nonforfeitable, and may specify such conditions to vesting as it
deems appropriate, including conditions based on one or more
Performance Criteria or other specific criteria, including
service to the Company or any Subsidiary, in each case on a
specified date or dates or over any period or periods, as the
Administrator determines,. The Administrator shall specify, or
permit the Holder to elect, the conditions and dates upon which
the shares of Common Stock underlying the Restricted Stock Units
which shall be issued, which dates shall not be earlier than the
date as of which the Restricted Stock Units vest and become
nonforfeitable and which conditions and dates shall be subject
to compliance with Section 409A of the Code. On the
distribution dates, the Company shall issue to the Holder one
unrestricted, fully transferable share of Common Stock for each
vested and nonforfeitable Restricted Stock Unit.
9.6 Term. The term of a Performance
Award, Dividend Equivalent award, Deferred Stock award, Stock
Payment award
and/or
Restricted Stock Unit award shall be set by the Administrator in
its sole discretion.
9.7 Exercise or Purchase Price. The
Administrator may establish the exercise or purchase price of a
Performance Award, shares of Deferred Stock, shares distributed
as a Stock Payment award or shares distributed pursuant to a
Restricted Stock Unit award; provided, however,
that value of the consideration shall not be less than the par
value of a share of Common Stock, unless otherwise permitted by
applicable law. Any such exercise or purchase price shall be
payable in the form(s) of legal consideration specified in the
Award Agreement.
9.8 Exercise upon Termination of
Service. A Performance Award, Dividend Equivalent
award, Deferred Stock award, Stock Payment award
and/or
Restricted Stock Unit award is exercisable or distributable only
while the Holder is an Employee, Director or Consultant, as
applicable. The Administrator, however, in its sole discretion
15
may provide that the Performance Award, Dividend Equivalent
award, Deferred Stock award, Stock Payment award
and/or
Restricted Stock Unit award may be exercised or distributed
subsequent to a Termination of Consultancy, Termination of
Directorship or Termination of Employment in certain events,
including a Change in Control, the Holders death,
retirement or disability or any other specified Termination of
Consultancy, Termination of Directorship or Termination of
Employment.
ARTICLE X.
INDEPENDENT
DIRECTOR AWARDS
The Board may grant Awards to Independent Directors, subject to
the limitations of the Plan, pursuant to the Independent
Director Equity Compensation Policy, as adopted by the
Administrator from time to time. The Independent Director Equity
Compensation Policy shall set forth the type of Award(s) to be
granted to Independent Directors, the number of shares of Common
Stock to be subject to Independent Director Awards, the
conditions on which such Awards shall be granted, become
exercisable
and/or
payable and expire, and such other terms and conditions as the
Administrator shall determine in its discretion. For the
avoidance of doubt, Awards granted to Independent Directors
shall be subject to all of the limitations set forth in the Plan.
ARTICLE XI.
ADMINISTRATION
11.1 Committee. The Committee shall
be the Compensation Committee of the Board, unless the Board
specifically assumes the functions of the Committee or appoints
another committee to assume such functions.
11.2 Duties and Powers of
Committee. It shall be the duty of the Committee
to conduct the general administration of the Plan in accordance
with its provisions. The Committee shall have the power to
interpret the Plan and the Award Agreements, and to adopt such
rules for the administration, interpretation, and application of
the Plan as are consistent therewith, to interpret, amend or
revoke any such rules and to amend any Award Agreement provided
that the rights or obligations of the Holder of the Award that
is the subject of any such Award Agreement are not affected
adversely. Any such interpretations and rules with respect to
Incentive Stock Options shall be consistent with the provisions
of Section 422 of the Code. In its absolute discretion, the
Board may at any time and from time to time assume any and all
rights and duties of the Committee under the Plan, except with
respect to matters which under
Rule 16b-3
or Section 162(m) of the Code, or any regulations or rules
issued thereunder, are required to be determined in the sole
discretion of the Committee. Notwithstanding the foregoing, the
full Board, acting by a majority of its members in office, shall
conduct the general administration of the Plan with respect to
Awards granted to Independent Directors.
11.3 Majority Rule; Unanimous Written
Consent. The Committee shall act by a majority of
its members in attendance at a meeting at which a quorum is
present or by a memorandum or other written instrument signed by
all members of the Committee.
11.4 Compensation; Professional Assistance; Good
Faith Actions. Members of the Committee shall
receive such compensation, if any, for their services as members
as may be determined by the Board. All expenses and liabilities
which members of the Committee incur in connection with the
administration of the Plan shall be borne by the Company. The
Committee may, with the approval of the Board, employ attorneys,
consultants, accountants, appraisers, brokers, or other persons.
The Committee, the Company and the Companys officers and
Directors shall be entitled to rely upon the advice, opinions or
valuations of any such persons. All actions taken and all
interpretations and determinations made by the Committee or the
Board in good faith shall be final and binding upon all Holders,
the Company and all other interested persons. No members of the
Committee or Board shall be personally liable for any action,
determination or interpretation made in good faith with respect
to the Plan or Awards, and all members of the Committee and the
Board shall be fully protected by the Company in respect of any
such action, determination or interpretation.
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ARTICLE XII.
MISCELLANEOUS
PROVISIONS
12.1 Not Transferable. No Award
under the Plan may be sold, pledged, assigned or transferred in
any manner other than by will or the laws of descent and
distribution or, subject to the consent of the Administrator,
pursuant to a DRO, unless and until such Award has been
exercised, or the shares underlying such Award have been issued,
and all restrictions applicable to such shares have lapsed. No
Award or interest or right therein shall be liable for the
debts, contracts or engagements of the Holder or his successors
in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary
or by operation of law by judgment, levy, attachment,
garnishment or any other legal or equitable proceedings
(including bankruptcy), and any attempted disposition thereof
shall be null and void and of no effect, except to the extent
that such disposition is permitted by the preceding sentence.
During the lifetime of the Holder, only he may exercise an
Option or other Award (or any portion thereof) granted to him
under the Plan, unless it has been disposed of with the consent
of the Administrator pursuant to a DRO. After the death of the
Holder, any exercisable portion of an Option or other Award may,
prior to the time when such portion becomes unexercisable under
the Plan or the applicable Award Agreement, be exercised by his
personal representative or by any person empowered to do so
under the deceased Holders will or under the then
applicable laws of descent and distribution.
Notwithstanding the foregoing provisions of this
Section 12.1, the Administrator, in its sole discretion,
may determine to grant a Non-Qualified Stock Option which, by
its terms as set forth in the applicable Award Agreement, may be
transferred by the Holder, in writing and with prior written
notice to the Administrator, to any one or more Permitted
Transferees (as defined below), subject to the following terms
and conditions: (a) a Non-Qualified Stock Option
transferred to a Permitted Transferee shall not be assignable or
transferable by the Permitted Transferee other than by will or
the laws of descent and distribution; (b) any Non-Qualified
Stock Option which is transferred to a Permitted Transferee
shall continue to be subject to all the terms and conditions of
the Non-Qualified Stock Option as applicable to the original
Holder (other than the ability to further transfer the
Non-Qualified Stock Option); and (c) the Holder and the
Permitted Transferee shall execute any and all documents
requested by the Administrator, including, without limitation,
documents to: (i) confirm the status of the transferee as a
Permitted Transferee, (ii) satisfy any requirements for an
exemption for the transfer under applicable federal and state
securities laws and (iii) evidence the transfer. For
purposes of this Section, Permitted Transferee shall
mean, with respect to a Holder, any child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, former
spouse, sibling, niece, nephew,
mother-in-law,
father-in-law,
daughter-in-law,
brother-in-law,
or
sister-in-law,
including adoptive relationships, any person sharing the
Holders household (other than a tenant or employee), a
trust in which these persons (or the Holder) control the
management of assets, and any other entity in which these
persons (or the Holder) owns more than fifty percent (50%) of
the voting interests, or any other transferee specifically
approved by the Administrator after taking into account any
state or federal tax or securities laws applicable to
transferable Non-Qualified Stock Options. Notwithstanding
anything herein to the contrary, no Award may be transferred by
a Holder or Permitted Transferee to a third-party for
consideration absent stockholder approval.
12.2 Amendment, Suspension or Termination of the
Plan.
(a) Except as otherwise provided in this Section 12.2,
the Plan may be wholly or partially amended or otherwise
modified, suspended or terminated at any time or from time to
time by the Board. However, without approval of the
Companys stockholders given within twelve months before or
after the action by the Board, no action of the Board may,
except as provided in Section 12.3, increase the limits
imposed in Section 2.1 on the maximum number of shares that
may be issued under the Plan.
(b) No amendment, suspension or termination of the Plan
shall, without the consent of the Holder alter or impair any
rights or obligations under any Award theretofore granted or
awarded, unless the Award itself otherwise expressly so
provides. No amendment of the Plan shall have application to any
Award granted or awarded prior to the approval of such
amendment, unless such amendment is expressly and particularly
stated to apply to prior awards.
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(c) No Awards may be granted or awarded during any period
of suspension or after termination of the Plan, and in no event
may any Option be granted under the Plan after June 1, 2020.
(d) Stockholder approval shall be required for any
amendment to the Plan that (i) permits the Administrator to
grant Options or Stock Appreciation Rights with an exercise
price that is below Fair Market Value on the date of grant or
(ii) permits the Administrator to extend the exercise
period for an Option or Stock Appreciation Right beyond seven
(7) years from the date of grant.
(e) To the extent required by applicable law or listing
requirements, stockholder approval shall be required for any
amendment of the Plan that either (i) materially expands
the class of individuals eligible to receive Awards under the
Plan, (ii) materially increases the benefits accruing to
Employees and Consultants under the Plan or materially reduces
the price at which shares may be issued or purchased under the
Plan, (iii) materially extends the term of the Plan, or
(iv) expands the types of Awards available for issuance
under the Plan.
12.3 Changes in Common Stock or Assets of the
Company, Acquisition or Liquidation of the Company and Other
Corporate Events.
(a) Subject to Section 12.3(e), in the event that the
Administrator determines that other than an Equity Restructuring
any dividend or other distribution (whether in the form of cash,
Common Stock, other securities, or other property),
reorganization, merger, consolidation, combination, repurchase,
liquidation, dissolution, or sale, transfer, exchange or other
disposition of all or substantially all of the assets of the
Company, or exchange of Common Stock or other securities of the
Company, issuance of warrants or other rights to purchase Common
Stock or other securities of the Company, or other similar
corporate transaction or event, in the Administrators sole
discretion, affects the Common Stock such that an adjustment is
determined by the Administrator to be appropriate in order to
prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan or with
respect to an Award, then the Administrator shall, in such
manner as it may deem equitable, adjust any or all of:
(i) the number and kind of shares of Common Stock (or other
securities or property) with respect to which Awards may be
granted or awarded (including, but not limited to, adjustments
of the limitations in Section 2.1 on the maximum number and
kind of shares which may be issued and adjustments of the Award
Limit);
(ii) the number and kind of shares of Common Stock (or
other securities or property) subject to outstanding
Awards; and
(iii) the grant or the exercise price with respect to any
Award.
(b) Subject to Sections 12.3(e) and 12.4, in the event
of any transaction or event described in Section 12.3(a),
any Equity Restructuring or any unusual or nonrecurring
transactions or events affecting the Company, any affiliate of
the Company, or the financial statements of the Company or any
affiliate, or of changes in applicable laws, regulations, or
accounting principles, the Administrator, in its sole and
absolute discretion, and on such terms and conditions as it
deems appropriate, either by the terms of the Award or by action
taken prior to the occurrence of such transaction or event (any
such action applied to Employees and former Employees to be
applied uniformly) and either automatically or upon the
Holders request, is hereby authorized to take any one or
more of the following actions whenever the Administrator
determines that such action is appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan or with respect to
any Award under the Plan, to facilitate such transactions or
events or to give effect to such changes in laws, regulations or
principles:
(i) to provide for either the cancellation of any such
Award for an amount of cash equal to the amount that could have
been attained upon the exercise of such Award or realization of
the Holders rights had such Award been currently
exercisable or payable or fully vested, or the replacement of
such Award with other rights or property selected by the
Administrator in its sole discretion;
(ii) to provide that the Award cannot vest, be exercised or
become payable after such event;
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(iii) to provide that such Award shall be exercisable as to
all shares covered thereby, notwithstanding anything to the
contrary in Section 5.3 or 5.4 or the provisions of such
Award;
(iv) to provide that such Award be assumed by the successor
or survivor corporation, or a parent or subsidiary thereof, or
shall be substituted for by similar options, rights or awards
covering the stock of the successor or survivor corporation, or
a parent or subsidiary thereof, with appropriate adjustments as
to the number and kind of shares and prices;
(v) to make adjustments in the number and type of shares of
Common Stock (or other securities or property) subject to
outstanding Awards, and in the number and kind of outstanding
Restricted Stock,
and/or in
the terms and conditions of (including the grant or exercise
price), and the criteria included in, outstanding Awards and
Awards which may be granted in the future; and
(vi) to provide that, for a specified period of time prior
to such event, the restrictions imposed under an Award Agreement
upon some or all shares of Restricted Stock or Common Stock may
be terminated and some or all shares of such Restricted Stock or
Common Stock may cease to be subject to repurchase after such
event.
(c) In connection with the occurrence of any Equity
Restructuring, and notwithstanding anything to the contrary in
Section 12.3(a) and 11.3(b):
(i) The number and type of securities subject to each
outstanding Award and the exercise price or grant price thereof,
if applicable, will be proportionately adjusted. The adjustments
provided under this Section 12.3(c)(i) shall be
nondiscretionary and shall be final and binding on the affected
Holder and the Company.
(ii) The Administrator shall make such proportionate
adjustments, if any, as the Administrator in its discretion may
deem appropriate to reflect such Equity Restructuring with
respect to the aggregate number and kind of shares that may be
issued under the Plan (including, but not limited to,
adjustments of the limitations in Section 2 and the Award
Limit).
(iii) Notwithstanding anything in this Section 12.3(c)
to the contrary, this Section 12.3(c) shall not apply to,
and instead Section 12.3(a) of the Plan shall apply to, any
Award to which the application of this Section 12.3(c)
would (A) result in a penalty tax under Section 409A
of the Code and the Department of Treasury proposed and final
regulations and guidance thereunder or (B) cause any
Incentive Stock Option to fail to qualify as an incentive
stock option under Section 422 of the Code.
(d) Subject to Sections 12.3(e), 3.2 and 3.3, the
Administrator may, in its discretion, include such further
provisions and limitations in any Award, Award Agreement or
certificate, as it may deem equitable and in the best interests
of the Company.
(e) With respect to Awards that are granted to
Section 162(m) Employees are intended to qualify as
Performance-Based Compensation, no adjustment or action
described in this Section 12.3 or in any other provision of
the Plan shall be authorized to the extent that such adjustment
or action would cause such Award to fail to so qualify under
Section 162(m)(4)(C) or any successor provisions thereto.
No adjustment or action described in this Section 12.3 or
in any other provision of the Plan shall be authorized to the
extent that such adjustment or action would cause the Plan to
violate Section 422(b)(1) of the Code. Furthermore, no such
adjustment or action shall be authorized to the extent such
adjustment or action would result in short-swing profits
liability under Section 16 or violate the exemptive
conditions of
Rule 16b-3
unless the Administrator determines that the Award is not to
comply with such exemptive conditions. The number of shares of
Common Stock subject to any Award shall always be rounded to the
next whole number.
(f) The existence of the Plan, any Award Agreement and the
Awards granted hereunder shall not affect or restrict in any way
the right or power of the Company or the stockholders of the
Company to make or authorize any adjustment, recapitalization,
reorganization or other change in the Companys capital
structure or its business, any merger or consolidation of the
Company, any issue of stock or of options, warrants or rights to
purchase stock or of bonds, debentures, preferred or prior
preference stocks whose rights are superior to or affect the
Common Stock or the rights thereof or which are convertible into
or exchangeable for Common Stock, or the dissolution or
liquidation
19
of the Company, or any sale or transfer of all or any part of
its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
12.4 Change in
Control. Notwithstanding any other provision of
the Plan, in the event of a Change in Control, each outstanding
Award shall, immediately prior to the effective date of the
Change in Control, automatically become fully exercisable for
all of the shares of Common Stock at the time subject to such
Award and may be exercised for any or all of those shares as
fully-vested shares of Common Stock.
12.5 Approval of Plan by
Stockholders. The Plan shall be submitted for the
approval of the Companys stockholders within twelve months
after the date of the Boards initial adoption of the Plan.
Awards may be granted or awarded prior to such stockholder
approval; provided, however, that such Awards shall not be
exercisable nor shall such Awards vest prior to the time when
the Plan is approved by the stockholders; and provided, further,
that if such approval has not been obtained at the end of said
twelve-month period, all Awards previously granted or awarded
under the Plan shall thereupon be canceled and become null and
void. In addition, if the Board determines that Awards other
than Options or Stock Appreciation Rights which may be granted
to Section 162(m) Employees should continue to be eligible
to qualify as Performance-Based Compensation, the Performance
Criteria must be disclosed to and approved by the Companys
stockholders no later than the first stockholder meeting that
occurs in the fifth year following the year in which the
Companys stockholders previously approved the Performance
Criteria.
12.6 Tax Withholding. The Company
shall be entitled to require payment in cash or deduction from
other compensation payable to each Holder of any sums required
by federal, state or local tax law to be withheld with respect
to the issuance, vesting, exercise or payment of any Award. The
Administrator may in its discretion and in satisfaction of the
foregoing requirement allow such Holder to elect to have the
Company withhold shares of Common Stock otherwise issuable under
such Award (or allow the return of shares of Common Stock)
having a Fair Market Value equal to the sums required to be
withheld. Notwithstanding any other provision of the Plan, the
number of shares of Common Stock which may be withheld with
respect to the issuance, vesting, exercise or payment of any
Award (or which may be repurchased from the Holder of such Award
within six months after such shares of Common Stock were
acquired by the Holder from the Company) in order to satisfy the
Holders federal and state income and payroll tax
liabilities with respect to the issuance, vesting, exercise or
payment of the Award shall be limited to the number of shares
which have a Fair Market Value on the date of withholding or
repurchase equal to the aggregate amount of such liabilities
based on the minimum statutory withholding rates for federal and
state tax income and payroll tax purposes that are applicable to
such supplemental taxable income.
12.7 Forfeiture Provisions. Subject
to the limitations of applicable law, pursuant to its general
authority to determine the terms and conditions applicable to
Awards under the Plan, the Administrator shall have the right to
provide, in the terms of Awards made under the Plan, or to
require a Holder to agree by separate written instrument, that
if (a)(i) the Holder at any time, or during a specified time
period, engages in any activity in competition with the Company,
or which is inimical, contrary or harmful to the interests of
the Company, as further defined by the Administrator or
(ii) the Holder incurs a Termination of Employment,
Termination of Consultancy or Termination of Directorship for
cause, then (b) (i) any proceeds, gains or other economic
benefit actually or constructively received by the Holder upon
any exercise of the Award, or upon the receipt or resale of any
Common Stock underlying any Award, must be paid to the Company,
and (ii) the Award shall terminate and any unexercised
portion of the Award (whether or not vested) shall be forfeited.
12.8 Effect of Plan upon Options and Compensation
Plans. The adoption of the Plan shall not affect
any other compensation or incentive plans in effect for the
Company or any Subsidiary. Nothing in the Plan shall be
construed to limit the right of the Company (a) to
establish any other forms of incentives or compensation for
Employees, Directors or Consultants of the Company or any
Subsidiary or (b) to grant or assume options or other
rights or awards otherwise than under the Plan in connection
with any proper corporate purpose including but not by way of
limitation, the grant or assumption of options in connection
with the acquisition by purchase, lease, merger, consolidation
or otherwise, of the business, stock or assets of any
corporation, partnership, limited liability company, firm or
association.
12.9 Compliance with Laws. The
Plan, the granting and vesting of Awards under the Plan and the
issuance and delivery of shares of Common Stock and the payment
of money under the Plan or under Awards granted or
20
awarded hereunder are subject to compliance with all applicable
federal and state laws, rules and regulations (including but not
limited to state and federal securities law and federal margin
requirements) and to such approvals by any listing, regulatory
or governmental authority as may, in the opinion of counsel for
the Company, be necessary or advisable in connection therewith.
Any securities delivered under the Plan shall be subject to such
restrictions, and the person acquiring such securities shall, if
requested by the Company, provide such assurances and
representations to the Company as the Company may deem necessary
or desirable to assure compliance with all applicable legal
requirements. To the extent permitted by applicable law, the
Plan and Awards granted or awarded hereunder shall be deemed
amended to the extent necessary to conform to such laws, rules
and regulations.
12.10 Inability to Obtain
Authority. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which
authority is deemed by the Companys counsel to be
necessary to the lawful issuance and sale of share of Common
Stock hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such shares of Common
Stock as to which such requisite authority shall not have been
obtained.
12.11 Reservation of Shares. The
Company, during the term of this Plan, shall at all times
reserve and keep available such number of shares of Common Stock
as shall be sufficient to satisfy the requirements of the Plan.
12.12 Titles. Titles are provided
herein for convenience only and are not to serve as a basis for
interpretation or construction of the Plan.
12.13 Governing Law. The Plan and
any agreements hereunder shall be administered, interpreted and
enforced under the internal laws of the State of California
without regard to conflicts of laws thereof.
12.14 Section 409A. To the
extent that the Administrator determines that any Award granted
under the Plan is subject to Section 409A of the Code, the
Award Agreement evidencing such Award shall incorporate the
terms and conditions required by Section 409A of the Code.
To the extent applicable, the Plan and Award Agreements shall be
interpreted in accordance with Section 409A of the Code and
Department of Treasury regulations and other interpretive
guidance issued thereunder, including without limitation any
such regulations or other guidance that may be issued.
Notwithstanding any provision of the Plan to the contrary, in
the event that the Administrator determines that any Award may
be subject to Section 409A of the Code and related
Department of Treasury guidance (including such subsequent
Department of Treasury guidance as may be issued), the
Administrator may adopt such amendments to the Plan and the
applicable Award Agreement or adopt other policies and
procedures (including amendments, policies and procedures with
retroactive effect), or take any other actions, that the
Administrator determines are necessary or appropriate to
(a) exempt the Award from Section 409A of the Code
and/or
preserve the intended tax treatment of the benefits provided
with respect to the Award, or (b) comply with the
requirements of Section 409A of the Code and related
Department of Treasury guidance and thereby avoid the
application of any penalty taxes under such Section.
12.15 Repricing
Awards. Notwithstanding any provision in this
Plan to the contrary, absent approval of the stockholders of the
Company, no Option or Stock Appreciation Right may be amended to
reduce the per share exercise price of the shares subject to
such Option or Stock Appreciation Right below the per share
exercise price of the shares subject to such Option or Stock
Appreciation Right below the per share exercise price as of the
date the Option or Stock Appreciation Right was granted and,
except as permitted by Section 12.3, no Option or Stock
Appreciation Right may be granted in exchange for, or in
connection with, the cancellation or surrender of an Option,
Stock Appreciation Right or other Award. Further notwithstanding
any provision of this Plan to the contrary, except as permitted
by Section 12.3, absent the approval of the stockholders of
the Company, the Administrator shall not offer to buyout for a
payment in cash, an Option or Stock Appreciation Right
previously granted.
12.16 Full Value Award Vesting
Limitations. Notwithstanding any other provision
of this Plan to the contrary, Full Value Awards made to
Employees or Consultants shall become vested over a period of
not less than three years (or, in the case of vesting based upon
the attainment of Performance Goals or other performance-based
objectives, over a period of not less than one year measured
from the commencement of the period over which performance is
evaluated) following the date the Award is made; provided,
however, that, notwithstanding the foregoing, Full Value Awards
that result in the issuance of an aggregate of up to five
percent (5%) of the shares of Common Stock available pursuant to
Section 2.1 may be granted to any one or more Holders
without respect to such minimum vesting provisions
* * *
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I hereby certify that the foregoing Plan was duly adopted by the
Board of Directors of Gen-Probe Incorporated on March 3rd,
2003, adopted as initially amended and restated on
February 9, 2006, adopted as amended a second time and
restated on November 16, 2006, adopted as amended a third
time and restated on February 8, 2007, adopted as amended a
fourth time and restated on March 20, 2009, and adopted as
amended a fifth time and restated on March 9, 2011.
Executed on this
25th day
of May, 2011.
/s/ R.
William Bowen
R. William Bowen
Secretary
* * *
I hereby certify that the foregoing Plan was duly approved by
the stockholders of Gen-Probe Incorporated on May 29, 2003,
approved as initially amended and restated on May 17, 2006
and subsequently approved as amended and restated on
May 14, 2009 and on May 19, 2011. The Plan as amended
and restated on November 16, 2006 and February 8, 2007
did not require additional stockholder approval.
Executed on this
25th day
of May, 2011.
/s/ R.
William Bowen
R. William Bowen
Secretary