2002 INTERNATIONAL STOCK PURCHASE PLAN

Exhibit 99.10

 

ADVANCED MEDICAL OPTICS, INC.

 

2002 INTERNATIONAL STOCK PURCHASE PLAN

 

AS PROPOSED TO BE AMENDED AND RESTATED

 

ADVANCED MEDICAL OPTICS, INC.

 

2002 INTERNATIONAL STOCK PURCHASE PLAN

 

(AS PROPOSED TO BE AMENDED AND RESTATED)

 

Table of Contents

 

 

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ADVANCED MEDICAL OPTICS, INC.

 

2002 INTERNATIONAL STOCK PURCHASE PLAN

 

ARTICLE I.

GENERAL PROVISIONS

 

1.1 Purposes of the Plan

 

Advanced Medical Optics, Inc., a Delaware corporation (“AMO”), has adopted the Advanced Medical Optics, Inc. 2002 International Stock Purchase Plan (the “Plan”).

 

The purposes of the Plan are as follows:

 

(1) To assist eligible employees of Designated Parents and Designated Subsidiaries (each as defined below) of AMO in acquiring ownership of shares of Common Stock of AMO.

 

(2) To help such employees provide for their future security and to encourage them to remain in the employment of the Parents and Subsidiaries of AMO.

 

The Plan is not intended to qualify as an “employee stock purchase plan,” within the meaning of Section 423(b) of the Code (as defined below).

 

1.2 Definitions

 

Whenever any of the following terms is used in the Plan with the first letter or letters capitalized, it shall have the following meaning unless context clearly indicates to the contrary (such definitions to be equally applicable to both the singular and the plural forms of the terms defined):

 

(a) “Account” means the account established for an Eligible Employee under the Plan with respect to an Offering Period.

 

(b) “Agent” means the brokerage firm, bank or other financial institution, entity or person(s) engaged, retained, appointed or authorized to act as the agent of AMO or an Employee with regard to the Plan.

 

(c) “Authorization” means an Eligible Employee’s payroll deduction authorization with respect to an Offering Period provided by such Eligible Employee in accordance with Section 3.1(b).

 

(d) “Board” means the Board of Directors of AMO.

 

(e) “Change in Control” means the following and shall be deemed to occur if any of the following events occur:

 

(i) Any “person,” as such term is used in Sections 13(d) and 14(d) of the Exchange Act (a “Person”), is or becomes the “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act (a “Beneficial Owner”), directly or indirectly, of securities of AMO representing (i) 20% or more of the combined voting power of AMO’s then outstanding voting securities, which acquisition is not approved in advance of the acquisition or within 30 days after the acquisition by a majority of the Incumbent Board (as hereinafter defined) or (ii) 33% or more of the combined voting power of AMO’s then outstanding voting securities, without regard to whether such acquisition is approved by the Incumbent Board;

 

(ii) Individuals who, as of June 29, 2002, constitute the Board (the “Incumbent Board”), cease for any reason to constitute at least a majority of the Board, provided that any person becoming a Director subsequent to June 29, 2002 whose election, or nomination for election by AMO’s stockholders, is approved by a vote of at least a majority of the Directors then comprising the Incumbent Board (other than an election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the Directors of AMO, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) shall, for the purposes of this Plan, be considered as though such person were a member of the Incumbent Board of AMO;

 

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(iii) The consummation of a merger, consolidation or reorganization involving AMO, other than one which satisfies both of the following conditions:

 

(A) a merger, consolidation or reorganization which would result in the voting securities of AMO outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of another entity) at least 55% of the combined voting power of the voting securities of AMO or such other entity resulting from the merger, consolidation or reorganization (the “Surviving Corporation”) outstanding immediately after such merger, consolidation or reorganization and being held in substantially the same proportion as the ownership in AMO’s voting securities immediately before such merger, consolidation or reorganization, and

 

(B) a merger, consolidation or reorganization in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of AMO representing 20% or more of the combined voting power of AMO’s then outstanding voting securities; or

 

(iv) Complete liquidation of AMO or a sale of all or substantially all of AMO’s assets.

 

Additionally, notwithstanding the preceding provisions of this subsection (e), a Change in Control shall not be deemed to have occurred if the Person described in the preceding provisions of this subsection (e) is (1) an underwriter or underwriting syndicate that has acquired any of AMO’s then outstanding voting securities solely in connection with a public offering of AMO’s securities, (2) AMO or any subsidiary of AMO or (3) an employee stock ownership plan or other employee benefit plan maintained by the AMO or any of its subsidiaries that is qualified under the provisions of the Code. In addition, notwithstanding the preceding provisions of this subsection (e), a Change in Control shall not be deemed to have occurred if the Person described in the preceding provisions of this subsection (e) becomes a Beneficial Owner of more than the permitted amount of outstanding securities as a result of the acquisition of voting securities by AMO which, by reducing the number of voting securities outstanding, increases the proportional number of shares beneficially owned by such Person, provided , that if a Change in Control would occur but for the operation of this sentence and such Person becomes the Beneficial Owner of any additional voting securities (other than through the exercise of options granted under any stock option plan of AMO or through a stock dividend or stock split), then a Change in Control shall occur.

 

(f) “Code” means the Internal Revenue Code of 1986, as amended. Where the context so requires, a reference to a particular Code section shall also refer to any successor provision of the Code to such section.

 

(g) “Committee” means the committee of the Board appointed to administer the Plan pursuant to Section 1.4.

 

(h) “Common Stock” means the shares of AMO’s Common Stock, $0.01 par value.

 

(i) “Compensation” of an Employee means such Employee’s base earnings, and commissions and similar incentive compensation, payable to an Eligible Employee by any Designated Parent or any Designated Subsidiary on each Payday as compensation for services rendered.

 

(j) “Date of Exercise” of any Option means the date on which such Option is exercised, which shall be the last day of the Offering Period with respect to which the Option was granted, in accordance with Section 3.2(a) (except as provided in Section 5.1).

 

(k) “Date of Grant” of any Option means the date on which such Option is granted, which shall be the first day of the Offering Period with respect to which the Option was granted, in accordance with Section 3.1(a).

 

(l) “Designated Parent” means any Parent designated by the Board in accordance with Section 2.1.

 

(m) “Designated Subsidiary” means any Subsidiary designated by the Board in accordance with Section 2.1.

 

(n) “Disability” means any mental or physical condition which, in the judgment of the Committee, based on such competent medical evidence as the Committee may require, renders an individual unable to engage in any substantial gainful activity for AMO, or any Designated Parent or any Designated Subsidiary for which he or she is reasonably fitted by education, training, or experience and which condition can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve (12) months. The determination by the Committee, upon opinion of a physician selected by the Committee, as to whether an Employee has incurred a Disability shall be

 

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final and binding on all persons. If the employment of an Employee terminates upon the expiration of such Employee’s medical leave of absence in accordance with the medical leave of absence policies of AMO or the Parent or Subsidiary employing such individual, as in effect as of the effective date of the Plan, such termination of employment shall be deemed to be due to a Disability.

 

(o) “Eligible Employee” means an Employee of any Designated Parent or any Designated Subsidiary who is eligible to participate in the Plan, pursuant to the appendix to the Plan with respect to the foreign jurisdiction in which such Employee resides, and who does not, immediately after the Option is granted, own (directly or through attribution) stock possessing five percent (5%) or more of the total combined voting power or value of all classes of Common Stock or other stock of AMO, a parent corporation of AMO or a subsidiary corporation of AMO (as determined under Section 423(b)(3) of the Code). For purposes of the foregoing, the rules of Section 424(d) of the Code with regard to the attribution of stock ownership shall apply in determining the stock ownership of an individual, and stock which an Employee may purchase under outstanding options shall be treated as stock owned by the Employee.

 

(p) “Employee” means an individual who renders services to a Parent or a Subsidiary in the status of an “employee,” within the meaning of applicable law, except that “Employee” shall not include (i) any individual who performs services for a Parent or a Subsidiary and who is classified or paid as an independent contractor as determined by the payroll records of a Parent or a Subsidiary even if a court or administrative agency determines that such individual is a common-law employee and not an independent contractor, and (ii) any individual who performs services for a Parent or a Subsidiary pursuant to an agreement between a Parent or a Subsidiary and any other person including a leasing organization. In addition, “Employee” shall not include any director of a Parent or a Subsidiary who does not render services to a Parent or a Subsidiary in the status of an “employee,” within the meaning of applicable law. During a leave of absence meeting the requirements of Treasury Regulation Section 1.421-7(h)(2), an individual shall be treated as an Employee of the Parent or Subsidiary employing such individual immediately prior to such leave.

 

(q) “Exchange Act” means the Securities Exchange Act of 1934, as amended. Where the context so requires, a reference to a particular section of the Exchange Act shall also refer to any successor provision to such section.

 

(r) “Fair Market Value” means: (a) the closing price of a share of Common Stock on the principal exchange on which shares of Common Stock are then trading, if any (or as reported on any composite index which includes such principal exchange), on the trading day previous to such date, or if shares were not traded on the trading day previous to such date, then on the next preceding date on which a trade occurred, or (b) if Common Stock is not traded on an exchange but is quoted on Nasdaq or a successor quotation system, the mean between the closing representative bid and asked prices for the Common Stock on the trading day previous to such date as reported by Nasdaq or such successor quotation system, or (c) if Common Stock is not publicly traded on an exchange and not quoted on Nasdaq or a successor quotation system, the Fair Market Value of a share of Common Stock as established by the Committee acting in good faith.

 

(s) “Offering Period” shall have the following meaning:

 

(i) During the period commencing on or after the date of adoption of the Plan and ending on October 1, 2004, “Offering Period” means each six-month period commencing on any April 1 and October 1, or at such other time or times or such other periods as may be determined by the Committee; provided, however, that, on a one-time basis, the Offering Period commencing October 1, 2004 shall end on April 30, 2005.

 

(ii) After April 30, 2005, “Offering Period” means each six-month period commencing on any May 1 and November 1, or at such other time or times or such other periods as may be determined by the Committee.

 

(iii) Subject to Section 5.8 hereof, the Committee shall have the power to change the duration and/or frequency of Offering Periods with respect to future offerings and shall use its best efforts to notify Employees of any such change at least 15 days prior to the scheduled beginning of the first Offering Period to be affected. In no event shall any Option granted hereunder be exercisable more than 27 months from the Date of Grant.

 

Options shall be granted on the Date of Grant and exercised on the Date of Exercise, as provided in Section 3.1(a) and 3.2(a), respectively.”

 

(t) “Option” means an option to purchase shares of Common Stock granted under the Plan to an Eligible Employee in accordance with Section 3.1(a).

 

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(u) “Option Price” means the option price per share of Common Stock determined in accordance with Section 3.2(b).

 

(v) “Parent” means any entity (whether a corporation, limited liability company, or other business entity), other than AMO, in an unbroken chain of entities ending with AMO if, at the time of the granting of the Option, each of the entities other than AMO possesses 50% or more of the total ownership interest in, or 50% or more of the interests needed to assert control over, one of the other entities in such chain.

 

(w) “Payday” means the regular and recurring established day for payment of Compensation to an Employee of any Parent or any Subsidiary.

 

(x) “Plan” means the Advanced Medical Optics, Inc. 2002 International Stock Purchase Plan.

 

(y) “Rule 16b-3” means Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act, or, where the context so requires, any successor provision to such Rule 16b-3.

 

(z) “Subsidiary” means any entity (whether a corporation, limited liability company, or other business entity), other than AMO, in an unbroken chain of entities beginning with AMO if, at the time of the granting of the Option, each of the entities other than the last entity in an unbroken chain possesses 50% or more of the total ownership interest in, or 50% or more of the interests needed to assert control over, one of the other entities in such chain.

 

(aa) “U.S. ESPP” means the Advanced Medical Optics, Inc. 2002 Employee Stock Purchase Plan, as amended.

 

1.3 Stock Subject to the Plan

 

(a) Subject to the provisions of Section 5.1 (relating to adjustments upon changes in the Common Stock) and Section 5.8 (relating to amendments of the Plan), the aggregate number of shares of Common Stock that may be sold pursuant to Options granted under the Plan shall not exceed (i) the number determined in accordance with subsection (b) below, less (ii) the number of shares of Common Stock sold pursuant to options granted under the U.S. ESPP.

 

(b) The aggregate number of shares of Common Stock that may be sold pursuant to Options granted under the Plan (before deduction for shares of Common Stock sold pursuant to options granted under the U.S. ESPP, in accordance with subsection (a) above) shall be determined as follows:

 

(i) Initially, the lesser of

 

(A) two hundred ninety thousand (290,000) shares of Common Stock, or

 

(B) one percent (1%) of the shares of Common Stock outstanding as of June 29, 2002.

 

(ii) The number of shares set forth in subparagraph (i) shall be increased each October 1 beginning October 1, 2003 and ending (and including) October 1, 2004, by the lesser of

 

(A) two hundred ninety thousand (290,000) shares of Common Stock, or

 

(B) one percent (1%) of the shares of Common Stock outstanding as of the last day of the second quarter of the then current year as reported on AMO’s Form 10-Q for such quarter;

 

(iii) The number of shares set forth in subparagraphs (i) and (ii) shall be increased each November 1 beginning November 1, 2005, and ending (and including) November 1, 2014, by the lesser of:

 

(A) four hundred thousand (400,000) shares of Common Stock, or

 

(B) one percent (1%) of the shares of Common Stock outstanding as of the last day of the second quarter of the then current year as reported on AMO’s Form 10-Q for such quarter;

 

provided, however , that the Board may, by resolution adopted prior to such November 1, substitute a lower number for that provided pursuant to clauses (A) and (B) of this subparagraph (iii).

 

(c) The shares of Common Stock sold pursuant to Options granted under the Plan may be newly issued shares or treasury shares of Common Stock, or shares of Common Stock bought on the New York Stock Exchange or other nationally-recognized exchange, or other market.

 

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1.4 Administration by Committee; Rules and Regulations

 

(a) Appointment of Committee . The Plan shall be administered by the Committee, which shall be appointed by the Board and which shall be composed of not less than two members of the Board, each of whom shall be a “non-employee director” within the meaning of Rule 16b-3. Each member of the Committee shall serve for a term commencing on a date specified by the Board and continuing until the member dies, resigns or is removed from office by the Board. The Committee in its discretion may utilize the services of an agent to assist in the administration of the Plan, including establishing and maintaining an individual securities account under the Plan for each Employee.

 

(b) Duties and Powers of Committee . It shall be the duty of the Committee to conduct the general administration of the Plan in accordance with the provisions of the Plan. The Committee shall have the power to interpret the Plan and the terms of the Options and to adopt such rules for the administration, interpretation, and application of the Plan as are consistent therewith and to interpret, amend or revoke any such rules. In its absolute discretion, the Board may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan.

 

(c) Majority Rule . The Committee shall act by a majority of its members in office. The Committee may act either by vote at a meeting or by a memorandum or other written instrument signed by a majority of the Committee.

 

(d) Compensation; Professional Assistance; Good Faith Actions . All expenses and liabilities incurred by members of the Committee in connection with the administration of the Plan shall be borne by AMO. The Committee may employ attorneys, consultants, accountants, appraisers, brokers or other persons. The Comm