Attached files
file | filename |
---|---|
EX-32.2 - EX-32.2 - GENOMIC HEALTH INC | ghdx-20170630ex322549d3d.htm |
EX-32.1 - EX-32.1 - GENOMIC HEALTH INC | ghdx-20170630ex321b6b0dc.htm |
EX-31.2 - EX-31.2 - GENOMIC HEALTH INC | ghdx-20170630ex312c86a46.htm |
EX-31.1 - EX-31.1 - GENOMIC HEALTH INC | ghdx-20170630ex311a35686.htm |
EX-10.3 - EX-10.3 - GENOMIC HEALTH INC | ghdx-20170630ex103f8cfeb.htm |
10-Q - 10-Q - GENOMIC HEALTH INC | ghdx-20170630x10q.htm |
Exhibit 10.2
GENOMIC HEALTH, INC.
AMENDED AND RESTATED 2005 STOCK INCENTIVE PLAN
(As amended on January 31, 2017)
Table of Contents
Page
SECTION 1. |
|
ESTABLISHMENT AND PURPOSE. |
1 |
SECTION 2. |
|
DEFINITIONS. |
1 |
(a) |
|
“Affiliate” |
1 |
(b) |
|
“Award” |
1 |
(c) |
|
“Board of Directors” |
1 |
(d) |
|
“Change in Control” |
1 |
(e) |
|
“Code” |
2 |
(f) |
|
“Committee” |
2 |
(g) |
|
“Company” |
2 |
(h) |
|
“Consultant” |
3 |
(i) |
|
“Employee” |
3 |
(j) |
|
“Exchange Act” |
3 |
(k) |
|
“Exercise Price” |
3 |
(l) |
|
“Fair Market Value” |
3 |
(m) |
|
“ISO” |
3 |
(n) |
|
“Nonstatutory Option” or “NSO” |
3 |
(o) |
|
“Offeree” |
4 |
(p) |
|
“Option” |
4 |
(q) |
|
“Optionee” |
4 |
(r) |
|
“Outside Director” |
4 |
(s) |
|
“Parent” |
4 |
(t) |
|
“Participant” |
4 |
(u) |
|
“Plan” |
4 |
(v) |
|
“Purchase Price” |
4 |
(w) |
|
“Restricted Share” |
4 |
(x) |
|
“Restricted Share Agreement” |
4 |
(y) |
|
“SAR” |
4 |
(z) |
|
“SAR Agreement” |
4 |
(aa) |
|
“Service” |
4 |
(bb) |
|
“Share” |
5 |
(cc) |
|
“Stock” |
5 |
(dd) |
|
“Stock Option Agreement” |
5 |
(ee) |
|
“Stock Unit” |
5 |
(ff) |
|
“Stock Unit Agreement” |
5 |
(gg) |
|
“Subsidiary” |
5 |
(hh) |
|
“Total and Permanent Disability” |
5 |
SECTION 3. |
|
ADMINISTRATION. |
5 |
(a) |
|
Committee Composition |
5 |
(b) |
|
Committee for Non-Officer Grants |
5 |
(c) |
|
Committee Procedures |
6 |
(d) |
|
Committee Responsibilities |
6 |
SECTION 4. |
|
ELIGIBILITY. |
7 |
(a) |
|
General Rule |
7 |
(b) |
|
Automatic Grants to Outside Directors |
7 |
(c) |
|
Ten-Percent Stockholders |
8 |
(d) |
|
Attribution Rules |
8 |
(e) |
|
Outstanding Stock |
8 |
SECTION 5. |
|
STOCK SUBJECT TO PLAN. |
9 |
(a) |
|
Basic Limitation |
9 |
(b) |
|
Award Limitation |
9 |
(c) |
|
Additional Shares |
9 |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- i -
SECTION 6. |
|
RESTRICTED SHARES. |
9 |
(a) |
|
Restricted Stock Agreement |
9 |
(b) |
|
Payment for Awards |
9 |
(c) |
|
Vesting |
10 |
(d) |
|
Voting and Dividend Rights |
10 |
(e) |
|
Restrictions on Transfer of Shares |
10 |
SECTION 7. |
|
TERMS AND CONDITIONS OF OPTIONS. |
10 |
(a) |
|
Stock Option Agreement |
10 |
(b) |
|
Number of Shares |
10 |
(c) |
|
Exercise Price |
10 |
(d) |
|
Withholding Taxes |
11 |
(e) |
|
Exercisability and Term |
11 |
(f) |
|
Exercise of Options |
11 |
(g) |
|
Effect of Change in Control |
11 |
(h) |
|
No Rights as a Stockholder |
11 |
(i) |
|
Modification, Extension and Renewal of Options |
11 |
(j) |
|
Restrictions on Transfer of Shares |
12 |
(k) |
|
Buyout Provisions |
12 |
SECTION 8. |
|
PAYMENT FOR SHARES. |
12 |
(a) |
|
General Rule |
12 |
(b) |
|
Surrender of Stock |
12 |
(c) |
|
Services Rendered |
12 |
(d) |
|
Cashless Exercise |
12 |
(e) |
|
Exercise/Pledge |
12 |
(f) |
|
Promissory Note |
12 |
(g) |
|
Other Forms of Payment |
13 |
(h) |
|
Limitations under Applicable Law |
13 |
SECTION 9. |
|
STOCK APPRECIATION RIGHTS. |
13 |
(a) |
|
SAR Agreement |
13 |
(b) |
|
Number of Shares |
13 |
(c) |
|
Exercise Price |
13 |
(d) |
|
Exercisability and Term |
13 |
(e) |
|
Effect of Change in Control |
13 |
(f) |
|
Exercise of SARs |
13 |
(g) |
|
Modification or Assumption of SARs |
14 |
(h) |
|
Buyout Provisions |
14 |
SECTION 10. |
|
STOCK UNITS. |
14 |
(a) |
|
Stock Unit Agreement |
14 |
(b) |
|
Payment for Awards |
14 |
(c) |
|
Vesting Conditions |
14 |
(d) |
|
Voting and Dividend Rights |
14 |
(e) |
|
Form and Time of Settlement of Stock Units |
15 |
(f) |
|
Death of Recipient |
15 |
(g) |
|
Creditors’ Rights |
15 |
SECTION 11. |
|
ADJUSTMENT OF SHARES. |
15 |
(a) |
|
Adjustments |
15 |
(b) |
|
Dissolution or Liquidation |
16 |
(c) |
|
Reorganizations |
16 |
(d) |
|
Reservation of Rights |
16 |
SECTION 12. |
|
DEFERRAL OF AWARDS. |
17 |
(a) |
|
Committee Powers |
17 |
(b) |
|
General Rules |
17 |
SECTION 13. |
|
AWARDS UNDER OTHER PLANS. |
17 |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- ii -
SECTION 14. |
|
PAYMENT OF DIRECTOR’S FEES IN SECURITIES. |
18 |
(a) |
|
Effective Date |
18 |
(b) |
|
Elections to Receive NSOs, Restricted Shares or Stock Units |
18 |
(c) |
|
Number and Terms of NSOs, Restricted Shares or Stock Units |
18 |
SECTION 15. |
|
LEGAL AND REGULATORY REQUIREMENTS. |
18 |
SECTION 16. |
|
TAXES. |
19 |
(a) |
|
Withholding Taxes |
19 |
(b) |
|
Share Withholding |
19 |
(c) |
|
Section 409A |
19 |
SECTION 17. |
|
OTHER PROVISIONS APPLICABLE TO AWARDS. |
20 |
(a) |
|
Transferability |
20 |
(b) |
|
Qualifying Performance Criteria |
20 |
SECTION 18. |
|
NO EMPLOYMENT RIGHTS. |
21 |
SECTION 19. |
|
DURATION AND AMENDMENTS. |
22 |
(a) |
|
Term of the Plan |
22 |
(b) |
|
Right to Amend or Terminate the Plan |
22 |
(c) |
|
Effect of Termination |
22 |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- iii -
GENOMIC HEALTH, INC.
AMENDED AND RESTATED 2005 STOCK INCENTIVE PLAN
(As amended on January 31, 2017)
The Plan was adopted by the Board of Directors on September 8, 2005, amended and restated on January 28, 2009, amended on July 25, 2013, amended and restated on March 19, 2014, amended on April 26, 2015, amended on January 26, 2016 and further amended on January 31, 2017. The purpose of the Plan is to promote the long-term success of the Company and the creation of stockholder value by (a) encouraging Employees, Outside Directors and Consultants to focus on critical long-range objectives, (b) encouraging the attraction and retention of Employees, Outside Directors and Consultants with exceptional qualifications and (c) linking Employees, Outside Directors and Consultants directly to stockholder interests through increased stock ownership. The Plan seeks to achieve this purpose by providing for Awards in the form of restricted shares, stock units, options (which may constitute incentive stock options or nonstatutory stock options) or stock appreciation rights.
(a) “Affiliate” shall mean any entity other than a Subsidiary, if the Company and/or one or more Subsidiaries own not less than 50% of such entity. |
(b) “Award” shall mean any award of an Option, a SAR, a Restricted Share or a Stock Unit under the Plan. |
(c) “Board of Directors” shall mean the Board of Directors of the Company, as constituted from time to time. |
(i) A change in the composition of the Board of Directors occurs, as a result of which fewer than one-half of the incumbent directors are directors who either: |
(A) Had been directors of the Company on the “look-back date” (as defined below) (the “original directors”); or |
(B) Were elected, or nominated for election, to the Board of Directors with the affirmative votes of at least a majority of the aggregate of the original directors who were still in office at the time of the election or nomination and the directors whose election or nomination was previously so approved (the “continuing directors”); or |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 1 -
(ii) Any “person” (as defined below) who by the acquisition or aggregation of securities, is or becomes the “beneficial owner” (as defined in Rule 13d‑3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding securities ordinarily (and apart from rights accruing under special circumstances) having the right to vote at elections of directors (the “Base Capital Stock”); except that any change in the relative beneficial ownership of the Company’s securities by any person resulting solely from a reduction in the aggregate number of outstanding shares of Base Capital Stock, and any decrease thereafter in such person’s ownership of securities, shall be disregarded until such person increases in any manner, directly or indirectly, such person’s beneficial ownership of any securities of the Company; or |
(iii) The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if persons who were not stockholders of the Company immediately prior to such merger, consolidation or other reorganization own immediately after such merger, consolidation or other reorganization 50% or more of the voting power of the outstanding securities of each of (A) the continuing or surviving entity and (B) any direct or indirect parent corporation of such continuing or surviving entity; or |
(iv) The sale, transfer or other disposition of all or substantially all of the Company’s assets. |
For purposes of subsection (d)(i) above, the term “look-back” date shall mean the date 24 months prior to the date of the event that may constitute a Change in Control.
For purposes of subsection (d)(ii)) above, the term “person” shall have the same meaning as when used in Sections 13(d) and 14(d) of the Exchange Act but shall exclude (1) a trustee or other fiduciary holding securities under an employee benefit plan maintained by the Company or a Parent or Subsidiary and (2) a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the Stock.
Any other provision of this Section 2(d) notwithstanding, a transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction, and a Change in Control shall not be deemed to occur if the Company files a registration statement with the United States Securities and Exchange Commission for the initial offering of Stock to the public.
(f) “Committee” shall mean the Compensation Committee as designated by the Board of Directors, which is authorized to administer the Plan, as described in Section 3 hereof. |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 2 -
(i) “Employee” shall mean any individual who is a common-law employee of the Company, a Parent, a Subsidiary or an Affiliate. |
(l) “Fair Market Value” with respect to a Share, shall mean the market price of one Share, determined by the Committee as follows: |
(i) If the Stock was traded over-the-counter on the date in question but was not traded on The Nasdaq Stock Market, then the Fair Market Value shall be equal to the last transaction price quoted for such date by the OTC Bulletin Board or, if not so quoted, shall be equal to the mean between the last reported representative bid and asked prices quoted for such date by the principal automated inter-dealer quotation system on which the Stock is quoted or, if the Stock is not quoted on any such system, by the Pink Sheets LLC; |
(ii) If the Stock was traded on The Nasdaq Stock Market, then the Fair Market Value shall be equal to the last reported sale price quoted for such date by The Nasdaq Stock Market; |
(iii) If the Stock was traded on a United States stock exchange on the date in question, then the Fair Market Value shall be equal to the closing price reported for such date by the applicable composite-transactions report; and |
(iv) If none of the foregoing provisions is applicable, then the Fair Market Value shall be determined by the Committee in good faith on such basis as it deems appropriate. |
In all cases, the determination of Fair Market Value by the Committee shall be conclusive and binding on all persons.
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 3 -
(o) “Offeree” shall mean an individual to whom the Committee has offered the right to acquire Shares under the Plan (other than upon exercise of an Option). |
(p) “Option” shall mean an ISO or Nonstatutory Option granted under the Plan and entitling the holder to purchase Shares. |
(r) “Outside Director” shall mean a member of the Board of Directors who is not a common-law employee of, or paid consultant to, the Company, a Parent or a Subsidiary. |
(u) “Plan” shall mean this 2005 Stock Incentive Plan of Genomic Health, Inc., as amended from time to time. |
(v) “Purchase Price” shall mean the consideration for which one Share may be acquired under the Plan (other than upon exercise of an Option), as specified by the Committee. |
(z) “SAR Agreement” shall mean the agreement between the Company and an Optionee which contains the terms, conditions and restrictions pertaining to his or her SAR. |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 4 -
(dd) “Stock Option Agreement” shall mean the agreement between the Company and an Optionee that contains the terms, conditions and restrictions pertaining to such Option. |
(ee) “Stock Unit” shall mean a bookkeeping entry representing the equivalent of one Share, as awarded under the Plan. |
(ff) “Stock Unit Agreement” shall mean the agreement between the Company and the recipient of a Stock Unit which contains the terms, conditions and restrictions pertaining to such Stock Unit. |
(hh)“Total and Permanent Disability” shall mean permanent and total disability as defined by section 22(e)(3) of the Code.
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 5 -
(d) Committee Responsibilities. Subject to the provisions of the Plan, the Committee shall have full authority and discretion to take the following actions: |
(i) To interpret the Plan and to apply its provisions; |
(ii) To adopt, amend or rescind rules, procedures and forms relating to the Plan; |
(iii) To adopt, amend or terminate sub-plans established for the purpose of satisfying applicable foreign laws including qualifying for preferred tax treatment under applicable foreign tax laws; |
(iv) To authorize any person to execute, on behalf of the Company, any instrument required to carry out the purposes of the Plan; |
(v) To determine when Awards are to be granted under the Plan; |
(vi) To select the Offerees and Optionees; |
(vii) To determine the number of Shares to be made subject to each Award; |
(viii) To prescribe the terms and conditions of each Award, including (without limitation) the Exercise Price and Purchase Price, and the vesting or duration of the Award (including accelerating the vesting of Awards, either at the time of the Award or thereafter, without the consent of the Participant), to determine whether an Option is to be classified as an ISO or as a Nonstatutory Option, and to specify the provisions of the agreement relating to such Award; |
(ix) To amend any outstanding Award agreement, subject to applicable legal restrictions and to the consent of the Participant if the Participant’s rights or obligations would be materially impaired; |
(x) To prescribe the consideration for the grant of each Award or other right under the Plan and to determine the sufficiency of such consideration; |
(xi) To determine the disposition of each Award or other right under the Plan in the event of a Participant’s divorce or dissolution of marriage; |
(xii) To determine whether Awards under the Plan will be granted in replacement of other grants under an incentive or other compensation plan of an acquired business; |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 6 -
(xiii) To correct any defect, supply any omission, or reconcile any inconsistency in the Plan or any Award agreement; |
(xiv) To establish or verify the extent of satisfaction of any performance goals or other conditions applicable to the grant, issuance, exercisability, vesting and/or ability to retain any Award; and |
(xv) To take any other actions deemed necessary or advisable for the administration of the Plan. |
Subject to the requirements of applicable law, the Committee may designate persons other than members of the Committee to carry out its responsibilities and may prescribe such conditions and limitations as it may deem appropriate, except that the Committee may not delegate its authority with regard to the selection for participation of or the granting of Options or other rights under the Plan to persons subject to Section 16 of the Exchange Act. All decisions, interpretations and other actions of the Committee shall be final and binding on all Offerees, all Optionees, and all persons deriving their rights from an Offeree or Optionee. No member of the Committee shall be liable for any action that he has taken or has failed to take in good faith with respect to the Plan, any Option, or any right to acquire Shares under the Plan.
(i) Each Outside Director who first joins the Board of Directors on or after the effective date of the Plan, and who was not previously an Employee, shall receive a Nonstatutory Option, subject to approval of the Plan by the Company’s stockholders, to purchase 20,000 Shares (subject to adjustment under Section 11) on the date of his or her election to the Board of Directors. Twenty-five percent (25%) of the Shares subject to each Option granted under this Section 4(b)(i) shall vest and become exercisable on the first anniversary of the date of grant. The balance of the Shares subject to such Option (i.e. the remaining seventy-five percent (75%)) shall vest and become exercisable monthly over a three-year period beginning on the day which is one month after the first anniversary of the date of grant, at a monthly rate of 2.0833% of the total number of Shares subject to such Option. Notwithstanding the foregoing, each such Option shall become vested if a Change in Control occurs with respect to the Company during the Optionee’s Service. |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 7 -
(ii) On the first business day following the conclusion of each regular annual meeting of the Company’s stockholders, each Outside Director who was not elected to the Board for the first time at such meeting and who will continue serving as a member of the Board of Directors thereafter shall receive an Option to purchase 10,000 Shares (subject to adjustment under Section 11), provided that such Outside Director has served on the Board of Directors for at least six months. Each Option granted under this Section 4(b)(ii) shall vest and become exercisable on the first anniversary of the date of grant; provided, however, that each such Option shall become exercisable in full immediately prior to the next regular annual meeting of the Company’s stockholders following such date of grant in the event such meeting occurs prior to such first anniversary date. Notwithstanding the foregoing, each Option granted under this Section 4(b)(ii) shall become vested if a Change in Control occurs with respect to the Company during the Optionee’s Service. |
(iii) The Exercise Price of all Nonstatutory Options granted to an Outside Director under this Section 4(b) shall be equal to 100% of the Fair Market Value of a Share on the date of grant, payable in one of the forms described in Section 8(a), (b) or (d). |
(iv) All Nonstatutory Options granted to an Outside Director under this Section 4(b) shall terminate on the earlier of (A) the day before the tenth anniversary of the date of grant of such Options or (B) the date twelve months after the termination of such Outside Director’s Service for any reason; provided, however, that any such Options that are not vested upon the termination of the Outside Director’s Service as a member of the Board of Directors for any reason shall terminate immediately and may not be exercised. |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 8 -
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 9 -
(b) Number of Shares. Each Stock Option Agreement shall specify the number of Shares that are subject to the Option and shall provide for the adjustment of such number in accordance with Section 11. |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 10 -
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 11 -
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 12 -
(b) Number of Shares. Each SAR Agreement shall specify the number of Shares to which the SAR pertains and shall provide for the adjustment of such number in accordance with Section 11. |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 13 -
(b) Payment for Awards. To the extent that an Award is granted in the form of Stock Units, no cash consideration shall be required of the Award recipients. |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 14 -
(i) The number of Options, SARs, Restricted Shares and Stock Units available for future Awards under Section 5; |
(ii) The limitations set forth in Section 5(b); |
(iii) The number of NSOs to be granted to Outside Directors under Section 4(b); |
(iv) The number of Shares covered by each outstanding Option and SAR; |
(v) The Exercise Price under each outstanding Option and SAR; and |
(vi) The number of Stock Units included in any prior Award which has not yet been settled. |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 15 -
Except as provided in this Section 11, a Participant shall have no rights by reason of any issue by the Company of stock of any class or securities convertible into stock of any class, any subdivision or consolidation of shares of stock of any class, the payment of any stock dividend or any other increase or decrease in the number of shares of stock of any class.
(b) Dissolution or Liquidation. To the extent not previously exercised or settled, Options, SARs and Stock Units shall terminate immediately prior to the dissolution or liquidation of the Company. |
(i) The continuation of the outstanding Awards by the Company, if the Company is a surviving corporation; |
(ii) The assumption of the outstanding Awards by the surviving corporation or its parent or subsidiary; |
(iii) The substitution by the surviving corporation or its parent or subsidiary of its own awards for the outstanding Awards; |
(iv) Full exercisability or vesting and accelerated expiration of the outstanding Awards; or |
(v) Settlement of the full value of the outstanding Awards in cash or cash equivalents followed by cancellation of such Awards. |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 16 -
(a) Committee Powers. Subject to compliance with Section 409A of the Code, the Committee (in its sole discretion) may permit or require a Participant to: |
(i) Have cash that otherwise would be paid to such Participant as a result of the exercise of a SAR or the settlement of Stock Units credited to a deferred compensation account established for such Participant by the Committee as an entry on the Company’s books; |
(ii) Have Shares that otherwise would be delivered to such Participant as a result of the exercise of an Option or SAR converted into an equal number of Stock Units; or |
(iii) Have Shares that otherwise would be delivered to such Participant as a result of the exercise of an Option or SAR or the settlement of Stock Units converted into amounts credited to a deferred compensation account established for such Participant by the Committee as an entry on the Company’s books. Such amounts shall be determined by reference to the Fair Market Value of such Shares as of the date when they otherwise would have been delivered to such Participant. |
The Company may grant awards under other plans or programs. Such awards may be settled in the form of Shares issued under this Plan. Such Shares shall be treated for all purposes under the Plan like Shares issued in settlement of Stock Units and shall, when issued, reduce the number of Shares available under Section 5.
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 17 -
(a) Effective Date. No provision of this Section 14 shall be effective unless and until the Board has determined to implement such provision. |
Shares shall not be issued under the Plan unless the issuance and delivery of such Shares complies with (or is exempt from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations and the regulations of any stock exchange on which the Company’s securities may then be listed, and the Company has obtained the approval or favorable ruling from any governmental agency which the Company determines is necessary or advisable. The Company shall not be liable to a Participant or other persons as to: (a) the non-issuance or sale of Shares as to which the Company has been unable to obtain from any regulatory body having jurisdiction the authority deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares under the Plan; and (b) any tax consequences expected, but not realized, by any Participant or other person due to the receipt, exercise or settlement of any Award granted under the Plan.
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 18 -
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
- 19 -
(i) The amount potentially available under a Performance Based Award shall be subject to the attainment of pre-established, objective performance goals relating to a specified period of service based on one or more of the following performance criteria: (a) cash flow (including operating cash flow), (b) earnings per share, (c) earnings before any combination of interest, taxes, depreciation or amortization, (d) return on equity, (e) total stockholder return, (f) share price performance, (g) return on capital, (h) return on assets or net assets, (i) revenue, (j) income or net income, (k) operating income or net operating income, (l) operating profit or net operating profit, (m) operating margin or profit margin (including as a percentage of revenue), (n) return on operating revenue, (o) return on invested capital, (p) market segment shares, (q) costs, (r) expenses, (s) achievement of target levels of discovery and/or development of products or services, including but not limited to research or regulatory achievements, (t) third party coverage and/or reimbursement objectives, (u) test volume metrics, (v) objective customer indicators (including, without limitation, customer satisfaction), (w) improvements in productivity, (x) attainment of objective operating goals, or (y) objective employee metrics (“Qualifying Performance Criteria”), any of which may be measured either individually, alternatively or in any combination, applied to either the individual, the Company as a whole or to a business unit or subsidiary of the Company, either individually, alternatively or in any combination, and measured either annually or cumulatively over a period of years, or on the basis of any other specified period, on an absolute basis or relative to a pre-established target, to previous years’ results or to a designated comparison group or index, and subject to specified adjustments, in each case as specified by the Committee in the Award. |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
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(ii) Unless specified otherwise by the Committee at the time the performance goals are established or otherwise within the time limit prescribed by Section 162(m) of the Code, the Committee shall appropriately adjust the method of evaluating performance under a Qualifying Performance Criteria for a performance period as follows: (a) to exclude asset write-downs, (b) to exclude litigation or claim judgments or settlements, (c) to exclude the effect of changes in tax law, accounting principles or other such laws or provisions affecting reported results, (d) to exclude accruals for reorganization and restructuring programs, (e) to exclude any extraordinary nonrecurring items as determined under generally accepted accounting principles and/or described in managements’ discussion and analysis of financial condition and results of operations appearing in the Company’s annual report to stockholders for the applicable year, (f) to exclude the dilutive and/or accretive effects of acquisitions or joint ventures, (g) to assume that any business divested by the Company achieved performance objectives at targeted levels during the balance of a performance period following such divestiture, (h) to exclude the effect of any change in the outstanding shares of common stock of the Company by reason of any stock dividend or split, stock repurchase, reorganization, recapitalization, merger, consolidation, spin-off, combination or exchange of shares or other similar corporate change, or any distributions to common stockholders other than regular cash dividends, (i) to exclude the effects of stock based compensation; and (j) to exclude costs incurred in connection with potential acquisitions or divestitures that are required to be expensed under generally accepted accounting principles, in each case in compliance with Section 162(m). |
(iii) The Committee shall establish in writing the applicable performance goals (and any variation to the adjustments specified in the preceding subparagraph (ii)), and an objective method for determining the Award earned by a Participant if the goals are attained, while the outcome is substantially uncertain and not later than the 90th day of the performance period (but in no event after 25% of the period of service with respect to which the performance goals relate has elapsed), and shall determine and certify in writing, for each Participant, the extent to which the performance goals have been met prior to payment or vesting of the Award. The Committee may reserve the right, in its sole discretion, to reduce the amount of compensation otherwise payable under the Plan upon the attainment of the pre-established performance goals. The Committee may not in any event increase the amount of compensation payable under the Plan upon the attainment of the pre-established performance goals to a Participant who is a “covered employee” within the meaning of Section 162(m) of the Code. |
No provision of the Plan, nor any right or Option granted under the Plan, shall be construed to give any person any right to become, to be treated as, or to remain an Employee. The Company and its Subsidiaries reserve the right to terminate any person’s Service at any time and for any reason, with or without notice.
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
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(a) Term of the Plan. The Plan, as set forth herein, shall terminate automatically on March 18, 2024 and may be terminated on any earlier date pursuant to Subsection (b) below. |
Genomic Health, Inc.
Amended and Restated 2005 Stock Incentive Plan
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