EXHIBIT 10.9
GERON CORPORATION
2006 DIRECTORS STOCK OPTION PLAN
(As Amended and Restated Effective
March 13, 2012)
The purposes
of this Amended and Restated 2006 Directors Stock Option Plan are to attract
and retain the best available personnel for service as Directors of the Company,
to provide additional incentive to the Outside Directors of the Company to serve
as Directors, and to encourage their continued service on the
Board.
All options
granted hereunder shall be nonqualified stock options. Awards of Restricted
Stock and Restricted Stock Units may also be granted under this Plan.
2. |
Definitions. |
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As used
herein, the following definitions shall apply: |
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(a) |
Award shall mean an
Option, a Restricted Stock award or a Restricted Stock Unit award granted
to an Outside Director pursuant to the Plan. |
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(b) |
Award Agreement
shall mean any written agreement, contract or other instrument or document
evidencing an Award, including through electronic medium. |
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(c) |
Board shall mean the
Board of Directors of the Company. |
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(d) |
Code shall mean the
Internal Revenue Code of 1986, as amended. |
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(e) |
Common Stock shall
mean the Common Stock of the Company. |
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(f) |
Company shall mean
Geron Corporation, a Delaware corporation. |
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(g) |
Continuous Status as a Director shall mean the absence of any interruption or
termination of service as a Director. |
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(h) |
Director shall mean
a member of the Board. |
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(i) |
Employee shall mean
any person, including officers and directors, employed by the Company or
any Parent or Subsidiary of the Company. The payment of a directors fee
by the Company shall not be sufficient in and of itself to constitute
employment by the Company. |
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(j) |
Exchange Act shall
mean the Securities Exchange Act of 1934, as amended. |
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(k) |
Option shall mean a
stock option granted pursuant to the Plan. All Options shall be
nonqualified stock options (i.e., options that are not intended to qualify
as incentive stock options under Section 422 of the Code). |
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(l) |
Outside Director
shall mean a Director who is not an Employee. |
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(m) |
Parent shall mean a
parent corporation, whether now or hereafter existing, as defined in
Section 424(e) of the Code. |
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(n) |
Participant shall
mean an Outside Director who receives an Award. |
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(o) |
Plan shall mean this Amended
and Restated 2006 Directors Stock Option Plan, as it may be amended from
time to time. |
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(p) |
Restricted Stock shall mean an
Award of Shares granted to an Outside Director pursuant to Section
11. |
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(q) |
Restricted Stock Unit shall
mean an Award granted pursuant to Section 12. |
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(r) |
Share shall mean a share of the
Common Stock, as adjusted in accordance with Section 14 of the
Plan. |
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(s) |
Subsidiary shall mean a
subsidiary corporation, whether now or hereafter existing, as defined in
Section 424(f) of the Code. |
3. |
Stock
Subject to the Plan. |
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Subject to
the provisions of Section 14 of the Plan, the maximum aggregate number of Shares
which may be issued pursuant to Awards granted under the Plan is 2,500,000
Shares (the Pool) of Common Stock. The Shares may be authorized, but unissued, or
reacquired Common Stock.
To the
extent that an Award terminates, expires, or lapses for any reason, any Shares
subject to the Award shall again be available for the grant of an Award pursuant
to the Plan. If Shares which were acquired upon exercise of an Option are
subsequently repurchased by the Company, such Shares shall not in any event be
returned to the Plan and shall not become available for future grant under the
Plan. However, if unvested Shares of Restricted Stock are repurchased by the
Company at their original purchase price or forfeited back to the Company for no
consideration, such Shares shall become available for future grant under the
Plan.
4. |
Administration of and Grants of Awards under the
Plan. |
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(a) |
Administrator. Except as
otherwise required herein, the Plan shall be administered by the
Board. |
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(b) |
Procedure for
Grants. All grants of Options pursuant
to Section 5 shall be automatic and non-discretionary and shall be made
strictly in accordance with the provisions set forth in Section 5. In
addition, the Board may make discretionary grants of Options, Restricted
Stock or Restricted Stock Units. |
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(c) |
Powers of the
Board. Subject to the provisions and
restrictions of the Plan, the Board shall have the authority, in its
discretion: (i) to determine, upon review of relevant information and in
accordance with Section 9(b) of the Plan, the fair market value of the
Common Stock; (ii) to determine the exercise price per share of Options to
be granted, which exercise price shall be determined in accordance with
Section 9(a) of the Plan; (iii) to interpret the Plan; (iv) to prescribe,
amend and rescind rules and regulations relating to the Plan; (v) to
authorize any person to execute on behalf of the Company any instrument
required to effectuate the grant of an Award previously granted hereunder;
(vi) to make discretionary grants of Options, Restricted Stock and
Restricted Stock Units and to determine the terms and conditions of such
Awards, and (vii) to make all other determinations deemed necessary or
advisable for the administration of the Plan. |
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(d) |
Effect of Boards
Decision. All decisions, determinations
and interpretations of the Board shall be final and binding on all
Participants and any other holders of any Awards granted under the
Plan. |
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(e) |
Suspension or
Termination of Option. If the President
or his or her designee reasonably believes that a Participant has
committed an act of misconduct, the President may suspend the
Participants right to exercise any Option pending a determination by the
Board (excluding the Outside Director accused of such misconduct). If the
Board (excluding the Outside Director accused of such misconduct)
determines a Participant has committed an act of embezzlement, fraud,
dishonesty, nonpayment of an obligation owed to
the Company, breach of fiduciary duty or deliberate disregard of the
Company rules resulting in loss, damage or injury to the Company, or if a
Participant makes an unauthorized disclosure of any Company trade secret
or confidential information, engages in any conduct constituting unfair
competition, induces any Company customer to breach a contract with the
Company or induces any principal for whom the Company acts as agent to
terminate such agency relationship, neither the Participant nor his or her
estate shall be entitled to exercise any Option whatsoever and such Option
shall immediately terminate as of such determination (the date of
determination). In making such determination, the Board (excluding the
Outside Director accused of such misconduct) shall act fairly and shall
give the Participant an opportunity to appear and present evidence on
Participants behalf at a hearing before the Board or a committee of the
Board. |
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5. |
Automatic Grant Program. |
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(a) |
General. No person shall have
any discretion to select which Outside Directors shall be granted Awards
or to determine the number of Shares to be covered by Awards granted to
Outside Directors pursuant to this Section 5. Subject to the limitations
set forth in Section 5(d), Outside Directors shall receive automatic
grants of Awards pursuant to this Section 5 for the number of Shares set
forth below. |
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(b) |
First
Option. Each Outside Director shall be
automatically granted an Option to purchase 70,000 Shares (the
First Option) on the date on which such person first becomes an Outside
Director, whether through election by the stockholders of the Company or
appointment by the Board to fill a vacancy. For the avoidance of doubt,
unless otherwise determined by the Board, an Executive Chairman of the
Board, if any, shall not receive a First Option pursuant to this Section
5(b). |
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(c) |
Subsequent
Option. Each Outside Director, other
than an Outside Director whose First Option is being granted on the date
of the Annual Meeting of the Companys stockholders, shall be
automatically granted an Option to purchase 35,000 Shares (a
Subsequent Option) on the date of the Annual Meeting of the Companys
stockholders in each year of his service. For the avoidance of doubt,
unless otherwise determined by the Board, an Executive Chairman of the
Board, if any, shall not receive a Subsequent Option pursuant to this
Section 5(c). |
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(d) |
Limitations. |
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(i) |
Notwithstanding the provisions of subsections 5(b) or (c) hereof,
in the event that a grant would cause the number of Shares subject to
outstanding Awards plus the number of Shares previously issued pursuant to
Awards to exceed the Pool, then each such automatic grant shall be for
that number of Shares determined by dividing the total number of Shares
remaining available for grant by the number of Outside Directors receiving
an Award on such date on the automatic grant date, rounded down to the
nearest whole Share. Any further grants shall then be deferred until such
time, if any, as additional Shares become available for grant under the
Plan through action of the stockholders to increase the number of Shares
which may be issued under the Plan or through cancellation or expiration
of Awards previously granted hereunder. |
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(ii) |
The terms of
each Option granted under this Section 5 shall be as follows: |
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(1) |
the
Option shall be exercisable only while the Outside Director remains a
Director of the Company, except as set forth in Section 10
hereof. |
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(2) |
the exercise
price per Share shall be 100% of the fair market value per Share on the
date of grant of the Option, determined in accordance with Section 9
hereof. |
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(3) |
a First Option shall
become exercisable in installments cumulatively as to 33 1/3% of the
Shares subject to such First Option on each of the first, second and third
anniversaries of the date of grant of the First Option; |
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(4) |
a Subsequent Option
shall become exercisable as to one hundred percent (100%) of the Shares
subject to such Subsequent Option on the first anniversary of the date of
the grant of such Subsequent Option; and |
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(5) |
Notwithstanding the
foregoing, exercise of a First Option or Subsequent Option is subject to
those limitations provided in Section 4(e)
above. |
Awards may
be granted only to Outside Directors. All Awards described in Section 5 shall be
automatically granted in accordance with the terms set forth in Section 5. In
addition, the Board may make discretionary grants of Options, Restricted Stock
and/or Restricted Stock Units to Outside Directors. An Outside Director who has
been granted an Award may, if he or she is otherwise eligible, be granted an
additional Award or Awards in accordance with such provisions.
The Plan (as
well as any Award granted hereunder) shall not confer upon any Participant any
right with respect to continuation of service as a Director or nomination to
serve as a Director, nor shall it interfere in any way with any rights which the
Director or the Company may have to terminate his or her directorship at any
time.
7. |
Term of
Plan; Effective Date. |
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The Plan
shall become effective upon its initial adoption by the Board and shall continue
in effect until it is terminated under Section 16 of the Plan. No Awards may be
issued under the Plan after the tenth (10th) anniversary of the earlier of (a)
the date upon which the Plan is adopted by the Board or (b) the date the Plan is
approved by the stockholders.
The term of
each Option granted pursuant to Section 5 shall be ten (10) years from the date
of grant thereof. The term of each discretionary Option granted pursuant to the
Plan shall have a term specified by the Board at the time of grant, which term
shall not exceed ten (10) years from the date of grant thereof.
9. |
Exercise
Price and Consideration. |
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(a) |
Exercise Price. The per Share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be 100% of the fair market
value per Share on the date of grant of the Option. |
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(b) |
Fair Market
Value. The fair market value shall be
determined by the Board; provided, however, that where
there is a public market for the Common Stock, the fair market value per
Share shall be the mean of the bid and ask prices of the Common Stock in
the over-the-counter market on the date of grant, or if no closing bid and
asked prices were reported for such date, the date immediately prior to
such date during which closing bid and asked prices were quoted for such
Common Stock, in each case as reported in The Wall Street Journal or such
other source as the Board deems reliable or, in the event the Common Stock
is listed on any established stock exchange or a national market system,
the fair market value per Share shall be the closing sales price for a
share of such stock (or the closing bid, if no sales were reported) as
quoted on such exchange or system on the date of grant of the Option, 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 in The Wall
Street Journal or such other source as
the Board deems reliable. |
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(c) |
Form of
Consideration. The consideration to be
paid for the Shares to be issued upon exercise of an Option shall consist
entirely of cash, check, other Shares of Common Stock having a fair market
value on the date of surrender equal to the aggregate exercise price of
the Shares as to which said Option shall be exercised (which, if acquired
from the Company, shall have been held for at least such holding period as
is required in order to avoid a charge to the Companys earnings for
financial statement purposes), or any combination of such methods of
payment and/or any other consideration or method of payment as shall be
permitted under applicable corporate law, including, without limitation,
by withholding Shares that would otherwise be issued upon the exercise of
such Option, subject to applicable laws and regulations concerning
withholding. |
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10. |
Exercise of
Option. |
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(a) |
Procedure for Exercise; Rights
as a Stockholder. Any Option granted
pursuant to Section 5 shall be exercisable at such times as are set forth
in Section 5 hereof; provided, however, that no
Options shall be exercisable prior to stockholder approval of the Plan in
accordance with Section 20 hereof has been obtained. Each discretionary
Option granted pursuant to the Plan shall be exercisable at such times
specified by the Board at the time of grant. |
An Option
may not be exercised for a fraction of a Share.
An Option
shall be deemed to be exercised when written notice of such exercise has been
given to the Company in accordance with the terms of the Option by the person
entitled to exercise the Option and full payment for the Shares with respect to
which the Option is exercised has been received by the Company. Full payment may
consist of any consideration and method of payment allowable under Section 9(c).
Until the issuance (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or any
other rights as a stockholder shall exist with respect to the Shares acquired
upon exercise of an Option, notwithstanding the exercise of the Option. A share
certificate for the number of Shares so acquired shall be issued to the
Participant as soon as practicable after exercise of the Option. No adjustment
will be made for a dividend or other right for which the record date is prior to
the date the stock certificate is issued, except as provided in Section 14.
Exercise of
an Option in any manner shall result in a decrease in the number of Shares which
thereafter may be available, both for purposes of the Plan and for sale under
the Option, by the number of Shares as to which the Option is exercised. The
post-termination exercise provisions set forth in Sections 10(b), 10(c) and
10(d) shall apply to Options automatically granted pursuant to Section 5, and,
to the extent provided by the Board at the time of grant, to Options granted by
the Board pursuant to its discretionary authority. However, Options granted by
the Board pursuant to its discretionary authority may contain post-termination
exercise provisions which differ from those set forth below.
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(b) |
Termination of Status as a
Director. If an Outside Director ceases
to serve as a Director (other than by reason of the Participants death or
the total and permanent disability of the Participant as defined in Code
Section 22(e)(3) and subject to Section 4(e) hereof), he or she may, but
only within thirty-six (36) months from the date he or she ceases to be a
Director of the Company, exercise his or her Option to the extent that he
or she was entitled to exercise it at the date of such termination.
Notwithstanding the foregoing, in no event may the Option be exercised
after its term set forth in Section 8 has expired. To the extent that such
Outside Director was not entitled to exercise an Option at the date of
such termination, or does not exercise such Option (which he or she was
entitled to exercise) within the time specified herein, the Option shall
terminate. For the avoidance of doubt, if the Outside Director commits an
act described in Section 4(e) hereof, neither the Outside Director nor his
or her estate shall be entitled to exercise any Option whatsoever and the
Option shall terminate as of the date of determination pursuant to Section
4(e) hereof. |
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(c) |
Disability of
Participant. Notwithstanding Section
10(b) above, in the event an Outside Director is unable to continue his or
her service as a Director of the Company as a result of his or her total
and permanent disability (as defined in Section 22(e)(3) of the Code), he
or she may, but only within twenty-four (24) months from the date of such
termination, exercise his or her Option to the extent of the right to
exercise that would have accrued had the Participant remained in
Continuous Status as Director for thirty-six (36) months (or such lesser
period of time as is determined by the Board) after the date of such
termination. Notwithstanding the foregoing, in no event may the Option be
exercised after its term set forth in Section 8 has expired. To the extent
that he or she does not exercise such Option (which he or she was entitled
to exercise) within the time specified herein, the Option shall
terminate. |
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(d) |
Death of
Participant. In the event of the death
of a Participant: |
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(i) |
During the term of the Option, if
the Participant is, at the time of his or her death, a Director of the
Company and has been in Continuous Status as a Director since the date of
grant of the Option, the Option may be exercised, at any time within
twenty-four (24) months following the date of death, by the Participants
estate or by a person who acquired the right to exercise the Option by
bequest or inheritance, but only to the extent of the right to exercise
that would have accrued had the Participant continued living and remained
in Continuous Status as Director for thirty-six (36) months (or such
lesser period of time as is determined by the Board) after the date of
death. Notwithstanding the foregoing, in no event may the Option be
exercised after its term set forth in Section 8 has expired. |
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(ii) |
Within three (3) months after the
termination of Continuous Status as a Director, the Option may be
exercised, at any time within six (6) months following the date of death,
by the Participants estate or by a person who acquired the right to
exercise the Option by bequest or inheritance, but only to the extent of
the right to exercise that had accrued at the date of termination.
Notwithstanding the foregoing, in no event may the option be exercised
after its term set forth in Section 8 has expired. |
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11. |
Restricted
Stock. |
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(a) |
General. Restricted Stock may be
issued to an Outside Director at the discretion of the Board, in
accordance with this Section 11. The Board shall specify the terms,
conditions and restrictions related to the Restricted Stock, including the
number of Shares and the vesting restrictions (if any) applicable to the
Shares. The Board shall also establish the purchase price, if any, and
form of payment for the Restricted Stock; provided, however, that if a
purchase price is charged, such purchase price shall be no less than the
par value of the Shares to be purchased, unless otherwise permitted by
applicable state law. In all cases, legal consideration shall be required
for each issuance of Restricted Stock. |
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(b) |
Repurchase or
Forfeiture. Unless the Board determines
otherwise, the Award Agreement evidencing a Restricted Stock Award granted
under Section 11 shall grant the Company, upon the termination of the
Participants Continuous Status as a Director for any reason, the
forfeiture of unvested Shares acquired pursuant to an Award of Restricted
Stock (or the right to repurchase such Shares at the Outside Directors
original purchase price if the Outside Director paid a price to acquire
such Shares). |
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(c) |
Other
Provisions. Restricted Stock shall be
evidenced by an Award Agreement which shall contain such other terms,
provisions and conditions not inconsistent with the Plan as may be
determined by the Board in its sole discretion. |
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(d) |
Rights as a
Stockholder. Upon the issuance of the
Restricted Stock, the Participant shall have rights equivalent to those of
a stockholder and shall be a stockholder when his or her issuance or
purchase is entered upon the records of the duly authorized transfer agent
of the Company. No adjustment shall be made for a dividend or other right
for which the record date is prior to the date of the Restricted Stock
issuance, except as provided in Section 14 of the
Plan. |
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(e) |
Certificates for Restricted
Stock. Restricted Stock granted
pursuant to the Plan may be evidenced in such manner as the Board shall
determine. Certificates or book entries evidencing shares of Restricted
Stock must include an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted Stock, and the
Company may, in it sole discretion, retain physical possession of any
stock certificate until such time as all applicable restrictions
lapse. |
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(f) |
Section 83(b)
Election. If a Participant makes an
election under Section 83(b) of the Code 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 Participant would otherwise be
taxable under Section 83(a) of the Code, the Participant shall be required
to deliver a copy of such election to the Company promptly after filing
such election with the Internal Revenue Service. |
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12. |
Restricted Stock
Units. |
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(a) |
General. An Outside Director selected by the Board may be
granted an award of Restricted Stock Units in the manner determined from
time to time by the Board. The number and terms and conditions of
Restricted Stock Units shall be determined by the Board. |
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(b) |
Vesting and
Distribution. The Board shall specify
the date or dates on which the Restricted Stock Units shall become fully
vested and nonforfeitable, and may specify such vesting conditions as it
deems appropriate, including continued service as a Director or conditions
based on one or more performance criteria. The Board shall specify, or
permit the Participant to elect, the conditions and dates upon which the
Shares underlying the Restricted Stock Units 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
exempt from or subject to compliance with Section 409A of the Code.
Restricted Stock Units may be paid in cash, Shares, or both, as determined
by the Board. On the distribution dates, to the extent the Board
determines that the Restricted Stock Units shall be paid in Shares, the
Company shall issue to the Participant one unrestricted, fully
transferable Share (or the fair market value of one such Share in cash)
for each vested and nonforfeitable Restricted Stock Unit. |
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(c) |
Rights as a
Stockholder. Unless otherwise provided
by the Board, a Participant awarded Restricted Stock Units shall have no
rights as a Company stockholder with respect to such Restricted Stock
Units until such time as the Restricted Stock Units have vested and the
Common Stock underlying the Restricted Stock Units has been
issued. |
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(d) |
Other Terms. All Restricted Stock Units shall be subject to such
additional terms and conditions as determined by the Board and shall be
evidenced by a written Award Agreement. |
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13. |
Nontransferability of Awards. |
An Award may
not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any
manner other than by will or by the laws of descent or distribution or pursuant
to a qualified domestic relations order (as defined by the Code or the rules
thereunder). The designation of a beneficiary by a Participant does not
constitute a transfer. An exercisable Option may be exercised during the
lifetime of a Participant only by the Participant or a transferee permitted by
this Section.
14. |
Adjustments Upon
Changes in Capitalization; Corporate Transactions. |
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(a) |
Adjustment. Subject to any required action by the stockholders of
the Company, the number of shares of Common Stock covered by each
outstanding Award, the number of shares of Common Stock which have been
authorized for issuance under the Plan but as to which no Awards have yet
been granted or which have been returned to the Plan upon cancellation,
expiration or lapse of an Award, and the number of shares of Common Stock
to be granted under the provisions set forth in Section 5 of the Plan, as
well as the price per share of Common Stock covered by each such
outstanding Award, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a
stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in
the number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be
deemed to have been effected without receipt of consideration. Such
adjustment shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided
herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect,
and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to an
Award. |
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(b) |
Corporate
Transactions. In the event of (i) a
dissolution or liquidation of the Company, (ii) a sale of all or
substantially all of the Companys assets, (iii) a merger or consolidation
in which the Company is not the surviving corporation, or (iv) any other
capital reorganization in which more than fifty percent (50%) of the
shares of the Company entitled to vote are exchanged, the Company shall
give to the Participant, at the time of adoption of the plan for
liquidation, dissolution, sale, merger, consolidation or reorganization, a
reasonable time thereafter within which to exercise the Option, including
Shares as to which the Option would not be otherwise exercisable, prior to
the effectiveness of such liquidation, dissolution, sale, merger,
consolidation or reorganization, at the end of which time the Option shall
terminate, unless the outstanding Option is assumed or an equivalent
Option substituted by the successor corporation (or a parent or subsidiary
of the successor corporation) as described below. In addition, except as
otherwise provided in an Award Agreement, unvested Shares subject to
Restricted Stock and Restricted Stock Unit Awards shall become fully
vested immediately prior to the date of such liquidation, dissolution,
sale, merger, consolidation or reorganization. In connection with such
transactions, an Award shall terminate upon the consummation of the
transaction unless the Award is assumed by the successor or survivor
corporation, or a parent or subsidiary thereof, or shall be substituted
for by similar 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. |
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15. |
Time of Granting
Awards.
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The date of
grant of an Option pursuant to Section 5 shall, for all purposes, be the date
determined in accordance with Section 5 hereof. The date of grant of other
Awards shall be the date on which the Board makes the determination granting
such Award. Notice of the determination shall be given to each Outside Director
to whom an Award is so granted within a reasonable time after the date of such
grant.
16. |
Amendment and
Termination of the Plan. |
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(a) |
Amendment and
Termination. The Board may amend or
terminate the Plan from time to time in such respects as the Board may
deem advisable; provided, that, to the extent necessary and desirable to comply with
any applicable law or regulation, the Company shall obtain approval of the
stockholders of the Company of Plan amendments to the extent and in the
manner required by such law or regulation. |
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(b) |
Effect of Amendment or
Termination. Any such amendment or
termination of the Plan that would impair the rights of any Participant
shall not affect Awards already granted to such Participant and such
Awards shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the
Participant and the Board, which agreement must be in writing and signed
by the Participant and the Company. |
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17. |
Conditions Upon
Issuance of Shares. |
Shares shall
not be issued pursuant to an Award unless the issuance and delivery of such
Shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, state securities laws, and the requirements of any stock exchange
upon which the Shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance. As a
condition to the issuance of Shares pursuant to an Award, the Company may
require the person acquiring such Shares to represent and warrant at the time of
any such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares, if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
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18. |
Reservation of Shares. |
|
|
The Company,
during the term of this Plan, will at all times reserve and keep available such
number of Shares as shall be sufficient to satisfy the requirements of the Plan.
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 any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or sell such Shares
as to which such requisite authority shall not have been
obtained.
Awards shall
be evidenced by Award Agreements in such form as the Board shall
approve.
20. |
Stockholder Approval. |
|
|
The Plan
will be submitted for the approval of the Companys stockholders within twelve
(12) months after the date of the Boards initial adoption of the Plan. Awards
may be granted or awarded prior to such stockholder approval, provided that such Awards
shall not be exercisable, shall not vest and the restrictions thereon shall not
lapse 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.
To the
extent that the Board 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 applicable guidance that may be
issued. Notwithstanding any provision of the Plan to the contrary, in the event
that the Board determines that any Award may be subject to Section 409A of the
Code and related Department of Treasury guidance, the Board may adopt such
amendments to the Plan and the applicable Award Agreement (with the consent of
the Participant, to the extent required) or adopt other policies and procedures
(including amendments, policies and procedures with retroactive effect), or take
any other actions, that the Board 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.
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