EXHIBIT 99.1
AMENDED AND RESTATED 2005 EQUITY
INCENTIVE PLAN
AS AMENDED BY BOARD OF DIRECTORS:
FEBRUARY 6, 2009
AMENDMENT APPROVED BY
STOCKHOLDERS: MAY 21, 2009
TERMINATION DATE: MARCH 27,
2015
1.
GENERAL .
(a) Eligible Award
Recipients. The
persons eligible to receive Awards are Employees, Directors and
Consultants.
(b) Available
Awards. The Plan
provides for the grant of the following Awards: (i) Incentive
Stock Options, (ii) Nonstatutory Stock Options,
(iii) Stock Purchase Awards, (iv) Stock Bonus Awards,
(v) Stock Appreciation Rights, (vi) Stock Unit Awards,
(vii) Performance Cash Awards, and (viii) Other Stock
Awards.
(c) General
Purpose. The
Company, by means of the Plan, seeks to secure and retain the
services of the group of persons eligible to receive Awards as set
forth in Section 1(a), to provide incentives for such persons
to exert maximum efforts for the success of the Company and any
Affiliate and to provide a means by which such eligible recipients
may be given an opportunity to benefit from increases in value of
the Common Stock through the granting of Stock Awards.
2.
DEFINITIONS.
As used in the Plan, the following
definitions shall apply to the capitalized terms indicated
below:
(a)
“Affiliate” means (i) any corporation (other than the
Company) in an unbroken ownership chain of corporations ending with
the Company, provided each corporation in the unbroken ownership
chain owns, at the time of the determination, 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
ownership chain, and (ii) any corporation (other than the
Company) in an unbroken ownership chain of corporations beginning
with the Company, provided each corporation (other than the last
corporation) in the unbroken ownership chain owns, at the time of
the determination, 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 ownership chain. The Board shall
have the authority to determine (x) the time or times at which
the ownership tests are applied, and (y) whether
“Affiliate” includes entities other than corporations
within the foregoing definition.
(b)
“Award” means a Stock Award or a Performance Cash
Award.
(c) “Award
Agreement” means a Stock Award Agreement or a Performance
Cash Award Agreement.
(d)
“Board” means the Board of Directors of the
Company.
(e)
“Capitalization Adjustment” has the meaning ascribed to that term in
Section 11(a).
(f)
“Cause” means with respect to a Participant, the
occurrence of any of the following: (i) such
Participant’s commission of any felony or any crime involving
fraud, dishonesty or moral turpitude under the laws of the United
States or any state thereof; (ii) such Participant’s
attempted commission of, or participation in, a fraud or act of
dishonesty against the Company; (iii) such Participant’s
intentional, material violation of any contract or agreement
between the Participant and the Company or of any statutory duty
owed to the Company; (iv) such Participant’s
unauthorized use or disclosure of the Company’s confidential
information or trade secrets; or (v) such Participant’s
gross misconduct. The determination that a termination of the
Participant’s Continuous Service is either for Cause or
without Cause shall be made by the Company in its sole discretion.
Any determination by the Company that the Continuous Service of a
Participant was terminated by reason of dismissal without Cause for
the purposes of outstanding Awards held by such Participant shall
have no effect upon any determination of the rights or obligations
of the Company or such Participant for any other
purpose.
(g)
“Code” means the Internal Revenue Code of 1986, as
amended.
(h)
“Committee” means a committee of one (1) or more
Directors to whom authority has been delegated by the Board in
accordance with Section 3(c).
(i)
“Common Stock” means the common stock of the
Company.
(j)
“Company” means Cymer, Inc., a Nevada
corporation.
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(k)
“Consultant” means any person, including an advisor, who is
(i) engaged by the Company or an Affiliate to render
consulting or advisory services and is compensated for such
services, or (ii) serving as a member of the board of
directors of an Affiliate and is compensated for such services.
However, service solely as a Director, or payment of a fee for such
service, shall not cause a Director to be considered a
“Consultant” for purposes of the Plan.
(l)
“Continuous Service” means that the Participant’s service with
the Company or an Affiliate, whether as an Employee, Director or
Consultant, is not interrupted or terminated. A change in the
capacity in which the Participant renders service to the Company or
an Affiliate as an Employee, Consultant or Director or a change in
the entity for which the Participant renders such service, provided
that there is no interruption or termination of the
Participant’s service with the Company or an Affiliate, shall
not terminate a Participant’s Continuous Service. For
example, a change in status from an employee of the Company to a
consultant to an Affiliate or to a Director shall not constitute an
interruption of Continuous Service. To the extent permitted by law,
the Board or the chief executive officer of the Company, in that
party’s sole discretion, may determine whether Continuous
Service shall be considered interrupted in the case of any leave of
absence approved by that party, including sick leave, military
leave or any other personal leave. Notwithstanding the foregoing, a
leave of absence shall be treated as Continuous Service for
purposes of vesting in an Award only to such extent as may be
provided in the Company’s leave of absence policy, in the
written terms of any leave of absence agreement or policy
applicable to the Participant, or as otherwise required by
law.
(m) “Corporate
Transaction” means the occurrence, in a single transaction or
in a series of related transactions, of any one or more of the
following events:
(i)
a sale or other disposition of all or substantially all, as
determined by the Board in its sole discretion, of the consolidated
assets of the Company and its Subsidiaries;
(ii)
a sale or other disposition of at least ninety percent (90%) of the
outstanding securities of the Company;
(iii)
the consummation of a merger, consolidation or similar transaction
following which the Company is not the surviving corporation;
or
(iv)
the consummation of a merger, consolidation or similar transaction
following which the Company is the surviving corporation but the
shares of Common Stock outstanding immediately preceding the
merger, consolidation or similar transaction are converted or
exchanged by virtue of the merger, consolidation or similar
transaction into other property, whether in the form of securities,
cash or otherwise.
(n)
“Covered Employee” shall have the meaning provided in
Section 162(m)(3) of the Code and the regulations
promulgated thereunder.
(o)
“Director” means a member of the Board.
(p)
“Disability” means the permanent and total disability of a
person within the meaning of Section 22(e)(3) of the
Code.
(q)
“Effective Date” means the effective date of this Plan document,
which is the date that this Plan is first approved by the
Company’s stockholders.
(r)
“Employee” means any person employed by the Company or an
Affiliate. However, service solely as a Director, or payment of a
fee for such services, shall not cause a Director to be considered
an “Employee” for purposes of the Plan.
(s)
“Entity” means a corporation, partnership, limited
liability company or other entity.
(t)
“Exchange Act” means the Securities Exchange Act of 1934, as
amended.
(u) “Fair
Market Value” means, as of any date, the value of the Common
Stock determined as follows:
(i)
If the Common Stock is listed on any established stock exchange,
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 the exchange with the
greatest volume of trading in the Common Stock) on the date in
question, as reported in The Wall Street Journal or such
other source as the Board deems reliable. Unless otherwise provided
by the Board, if there is no closing sales price (or closing bid if
no sales were reported) for the Common Stock on the date in
question, then the Fair Market Value shall be the closing selling
price (or closing bid if no sales were reported) on the last
preceding date for which such quotation exists.
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(ii)
In the absence of such markets for the Common Stock, the Fair
Market Value shall be determined by the Board in good
faith.
(v)
“Incentive Stock Option” means an Option that is intended to be and
qualifies as an “incentive stock option” within the
meaning of Section 422 of the Code and the regulations
promulgated thereunder.
(w)
“Non-Employee Director” means a Director who either (i) is not a
current employee or officer of the Company or an Affiliate, does
not receive compensation, either directly or indirectly, from the
Company or an Affiliate for services rendered as a consultant or in
any capacity other than as a Director (except for an amount as to
which disclosure would not be required under
Item 404(a) of Regulation S-K promulgated pursuant
to the Securities Act (“ Regulation S-K
”)), does not possess an interest in any other transaction
for which disclosure would be required under
Item 404(a) of Regulation S-K, and is not engaged in
a business relationship for which disclosure would be required
pursuant to Item 404(b) of Regulation S-K; or
(ii) is otherwise considered a “non-employee
director” for purposes of Rule 16b-3.
(x)
“Nonstatutory Stock Option” means any Option that does not qualify as an
Incentive Stock Option.
(y)
“Officer” means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the
rules and regulations promulgated thereunder.
(z)
“Option” means an Incentive Stock Option or a
Nonstatutory Stock Option to purchase shares of Common Stock
granted pursuant to the
Plan.
(aa) “Option Agreement” means a written
agreement between the Company and an Optionholder evidencing the
terms and conditions of an Option grant. Each Option Agreement
shall be subject to the terms and conditions of the
Plan.
(bb)
“Optionholder” means a person to whom an Option is granted
pursuant to the Plan or, if permitted under the terms of this Plan,
such other person who holds an outstanding Option.
(cc) “Other Stock
Award” means an
award based in whole or in part by reference to the Common Stock
which is granted pursuant to the terms and conditions of
Section 7(f).
(dd) “Other Stock Award
Agreement” means a written agreement between the Company
and a holder of an Other Stock Award evidencing the terms and
conditions of an Other Stock Award grant. Each Other Stock Award
Agreement shall be subject to the terms and conditions of the
Plan.
(ee) “Outside
Director” means
a Director who either (i) is not a current employee of the
Company or an “affiliated corporation” (within the
meaning of Treasury Regulations promulgated under
Section 162(m) of the Code), is not a former employee of
the Company or an “affiliated corporation” who receives
compensation for prior services (other than benefits under a
tax-qualified retirement plan) during the taxable year, has not
been an officer of the Company or an “affiliated
corporation,” and does not receive remuneration from the
Company or an “affiliated corporation,” either directly
or indirectly, in any capacity other than as a Director, or
(ii) is otherwise considered an “outside director”
for purposes of Section 162(m) of the Code.
(ff) “Own,”
“Owned,” “Owner,”
“Ownership” A person or Entity shall be deemed to
“Own,” to have “Owned,” to be the
“Owner” of, or to have acquired “Ownership”
of securities if such person or Entity, directly or indirectly,
through any contract, arrangement, understanding, relationship or
otherwise, has or shares voting power, which includes the power to
vote or to direct the voting, with respect to such
securities.
(gg)
“Participant” means a person to whom an Award is granted
pursuant to the Plan or, if applicable, such other person who holds
an outstanding Award.
(hh) “Performance Cash
Award” means an
award of cash granted pursuant to the terms and conditions of
Section 7(e)(ii).
(ii) “Performance
Cash Award Agreement” means a written agreement between the Company
and a Participant evidencing the terms and conditions of a
Performance Cash Award. Each Performance Cash Award Agreement shall
be subject to the terms and conditions of the Plan.
(jj) “Performance
Criteria” means
the one or more criteria that the Board shall select for purposes
of establishing the Performance Goals for a Performance Period. The
Performance Criteria that shall be used to establish such
Performance Goals may be based on any one of, or combination of,
the following: (i) earnings per share; (ii) earnings
before interest, taxes and depreciation; (iii) earnings before
interest, taxes, depreciation and amortization; (iv) total
stockholder return; (v) return on equity; (vi) return on
assets, investment, or capital employed; (vii) operating
margin; (viii) gross margin; (ix) operating
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income; (x) net income (before
or after taxes); (xi) net operating income; (xii) net
operating income after tax; (xiii) pre-tax profit;
(xiv) sales or revenue targets; (xv) increases in revenue
or product revenue; (xvi) expenses and cost reduction goals;
(xvii) improvement in or attainment of working capital levels;
(xviii) economic value added (or an equivalent metric);
(xix) market share; (xx) cash flow; (xxi) free cash
flow (cash provided by operating activities less acquisition of
property, equipment, patent licenses and/or any other expenses
specified by the Board); (xxii) operating cash flow;
(xxiii) any per share measure of any of the foregoing cash
flow metrics; (xxiv) share price performance; (xxv) debt
reduction; (xxvi) implementation or completion of projects or
processes; (xxvii) customer satisfaction;
(xxviii) stockholders’ equity; and (xxviv) to the
extent an Award is not intended to comply with
Section 162(m) of the Code, other measures of performance
selected by the Board. Partial achievement of the specified
criteria may result in the payment or vesting corresponding to the
degree of achievement as specified in the Award Agreement. The
Board shall, in its sole discretion, define the manner of
calculating the Performance Criteria it selects to use for such
Performance Period.
(kk) “Performance
Goals” means,
for a Performance Period, the one or more goals established by the
Board for the Performance Period based upon the Performance
Criteria. The Board is authorized at any time in its sole
discretion, to adjust or modify the calculation of a Performance
Goal for such Performance Period in order to prevent the dilution
or enlargement of the rights of Participants (i) in the event
of, or in anticipation of, any unusual or extraordinary corporate
item, transaction, event or development; (ii) in recognition
of, or in anticipation of, any other unusual or nonrecurring events
affecting the Company, or the financial statements of the Company,
or in response to, or in anticipation of, changes in applicable
laws, regulations, accounting principles, or business conditions;
or (iii) in view of the Board’s assessment of the
business strategy of the Company, performance of comparable
organizations, economic and business conditions, and any other
circumstances deemed relevant. Specifically, the Board is
authorized to make adjustment in the method of calculating
attainment of Performance Goals and objectives for a Performance
Period as follows: (x) to exclude the dilutive effects of
acquisitions or joint ventures; (y) 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; and (z) to exclude the effect of
any change in the outstanding shares of Common Stock 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. In addition, with respect to Performance Goals
established for Participants who are not Covered Employees, and who
will not be Covered Employees at the time the compensation will be
paid, the Board is authorized to make adjustment in the method of
calculating attainment of Performance Goals and objectives for a
Performance Period as follows: (A) to exclude restructuring
and/or other nonrecurring charges; (B) to exclude exchange
rate effects, as applicable, for non-U.S. dollar denominated net
sales and operating earnings; (C) to exclude the effects of
changes to generally accepted accounting standards required by the
Financial Accounting Standards Board; (D) to exclude the
effects to any statutory adjustments to corporate tax rates;
(E) to exclude the impact of any “extraordinary
items” as determined under generally accepted accounting
principles; and (F) to exclude any other unusual,
non-recurring gain or loss or other extraordinary item.
(ll) “Performance
Period” means
the period of time selected by the Board over which the attainment
of one or more Performance Goals will be measured for the purpose
of determining a Participant’s right to and the payment of an
Award. Performance Periods may be of varying and overlapping
duration, at the sole discretion of the Board.
(mm) “Performance Stock
Award” means
any right to receive Common Stock granted pursuant to the terms and
conditions of Section 7(e)(i).
(nn) “Performance Stock
Award Agreement” means a written agreement between the Company
and a Participant evidencing the terms and conditions of a
Performance Stock Award. Each Performance Stock Award Agreement
shall be subject to the terms and conditions of the
Plan.
(oo)
“Plan” means this Cymer, Inc. 2005 Equity
Incentive Plan.
(pp)
“Rule 16b-3” means Rule 16b-3 promulgated under the
Exchange Act or any successor to Rule 16b-3, as in effect from
time to time.
(qq) “Securities
Act” means the
Securities Act of 1933, as amended.
(rr) “Stock Appreciation
Right” means a
right to receive the appreciation on Common Stock that is granted
pursuant to the terms and conditions of
Section 7(d).
(ss) “Stock Appreciation
Right Agreement” means a written agreement between the Company
and a holder of a Stock Appreciation Right evidencing the terms and
conditions of a Stock Appreciation Right grant. Each Stock
Appreciation Right Agreement shall be subject to the terms and
conditions of the Plan.
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(tt) “Stock
Award” means
any right to receive Common Stock granted under the Plan, including
an Incentive Stock Option, a Nonstatutory Stock Option, a Stock
Purchase Award, Stock Bonus Award, a Stock Appreciation Right, a
Stock Unit Award, or any Other Stock Award.
(uu) “Stock Award
Agreement” means a written agreement between the Company
and a Participant evidencing the terms and conditions of a Stock
Award grant, including an Option Agreement, a Stock Purchase Award
Agreement, Stock Bonus Award Agreement, a Stock Appreciation Right
Agreement, a Stock Unit Award Agreement, or any Other Stock Award
Agreement. Each Stock Award Agreement shall be subject to the terms
and conditions of the Plan.
(vv) “Stock Bonus
Award” means an
award of shares of Common Stock which is granted pursuant to the
terms and conditions of Section 7(b).
(ww) “Stock Bonus Award
Agreement” means a written agreement between the Company
and a holder of a Stock Bonus Award evidencing the terms and
conditions of a Stock Bonus Award grant. Each Stock Bonus Award
Agreement shall be subject to the terms and conditions of the
Plan.
(xx) “Stock Purchase
Award” means an
award of shares of Common Stock which is granted pursuant to the
terms and conditions of Section 7(a).
(yy) “Stock Purchase
Award Agreement” means a written agreement between the Company
and a holder of a Stock Purchase Award evidencing the terms and
conditions of a Stock Purchase Award grant. Each Stock Purchase
Award Agreement shall be subject to the terms and conditions of the
Plan.
(zz) “Stock Unit
Award” means a
right to receive shares of Common Stock which is granted pursuant
to the terms and conditions of Section 7(c).
(aaa) “Stock Unit Award
Agreement” means a written agreement between the Company
and a holder of a Stock Unit Award evidencing the terms and
conditions of a Stock Unit Award grant. Each Stock Unit Award
Agreement shall be subject to the terms and conditions of the
Plan.
(bbb)
“Subsidiary” means, with respect to the Company, (i) any
corporation of which more than fifty percent (50%) of the
outstanding capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation
(irrespective of whether, at the time, stock of any other class or
classes of such corporation shall have or might have voting power
by reason of the happening of any contingency) is at the time,
directly or indirectly, Owned by the Company, and (ii) any
partnership in which the Company has a direct or indirect interest
(whether in the form of voting or participation in profits or
capital contribution) of more than fifty percent (50%).
(ccc) “Ten Percent
Stockholder” means a person who Owns (or is deemed to Own
pursuant to Section 424(d) of the Code) stock possessing
more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or any Affiliate.
(ddd) “Terminated
Plans” means
the Company’s 1996 Stock Option Plan and the Company’s
2000 Equity Incentive Plan in effect immediately prior to the
Effective Date of the Plan.
3.
ADMINISTRATION.
(a) Administration by
Board. The Board
shall administer the Plan unless and until the Board delegates
administration of the Plan to a Committee or Committees, as
provided in Section 3(c).
(b) Powers of
Board. The Board
shall have the power, subject to, and within the limitations of,
the express provisions of the Plan:
(i)
To determine from time to time (A) which of the persons
eligible under the Plan shall be granted Awards; (B) when and
how each Award shall be granted; (C) what type or combination
of types of Award shall be granted; (D) the provisions of each
Award granted (which need not be identical), including the time or
times when a person shall be permitted to receive Common Stock or
cash pursuant to an Award; and (E) the number of shares of
Common Stock with respect to which a Stock Award shall be granted
to each such person.
(ii)
To construe and interpret the Plan and Awards granted under it, and
to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may
correct any defect, omission or inconsistency in the Plan or any
Award Agreement in a manner and to the extent it shall deem
necessary or expedient to make the Plan or Award fully
effective.
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(iii)
To settle all controversies regarding the Plan and Awards granted
under it.
(iv)
To accelerate the time at which a Stock Award may first be
exercised or the time during which an Award or any part thereof
will vest in accordance with the Plan, notwithstanding the
provisions in the Award stating the time at which it may first be
exercised or the time during which it will vest.
(v)
To suspend or terminate the Plan at any time. Suspension or
termination of the Plan shall not impair rights and obligations
under any Award granted while the Plan is in effect except with the
written consent of the affected Participant.
(vi)
To amend the Plan, subject to the limitations, if any, of
applicable law. However, except as provided in
Section 11(a) relating to Capitalization Adjustments, no
amendment shall be effective unless approved by the stockholders of
the Company to the extent stockholder approval is necessary to
satisfy applicable law or applicable exchange listing requirements.
Rights under any Award granted before amendment of the Plan shall
not be impaired by any amendment of the Plan unless (i) the
Company requests the consent of the affected Participant, and
(ii) such Participant consents in writing.
(vii)
To submit any amendment to the Plan for stockholder approval,
including, but not limited to, amendments to the Plan intended to
satisfy the requirements of Section 162(m) of the Code
and the regulations thereunder regarding the exclusion of
performance-based compensation from the limit on corporate
deductibility of compensation paid to Covered Employees.
(viii) To
amend the Plan in any respect the Board deems necessary or
advisable to provide eligible Employees with the maximum benefits
provided or to be provided under the provisions of the Code and the
regulations promulgated thereunder relating to Incentive Stock
Options or to bring the Plan or Incentive Stock Options granted
under it into compliance therewith.
(ix)
To approve the forms of Award Agreements for use under the plan and
to amend the terms of any one or more Awards, including, but not
limited to, amendments to provide terms more favorable than
previously provided in the Award Agreement, subject to any
specified limits in the Plan that are not subject to Board
discretion; provided, however, that the rights under any
Award shall not be impaired by any such amendment unless
(i) the Company requests the consent of the affected
Participant, and (ii) such Participant consents in
writing.
(x)
Generally, to exercise such powers and to perform such acts as the
Board deems necessary or expedient to promote the best interests of
the Company and that are not in conflict with the provisions of the
Plan or Awards.
(xi)
To adopt such procedures and sub-plans as are necessary or
appropriate to permit participation in the Plan by Employees,
Directors or Consultants who are foreign nationals or employed
outside the United States.
(c) Delegation to
Committee.
(i)
General. The Board
may delegate some or all of the administration of the Plan to a
Committee or Committees. If administration of the Plan is delegated
to a Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the
Board that have been delegated to the Committee, including the
power to delegate to a subcommittee of the Committee any of the
administrative powers the Committee is authorized to exercise (and
references in this Plan to the Board shall thereafter be to the
Committee or subcommittee), subject, however, to such resolutions,
not inconsistent with the provisions of the Plan, as may be adopted
from time to time by the Board. The Board may retain the authority
to concurrently administer the Plan with the Committee and may, at
any time, revest in the Board some or all of the powers previously
delegated.
(ii)
Section 162(m) and Rule 16b-3 Compliance.
In the sole discretion of the
Board, the Committee may consist solely of two or more Outside
Directors, in accordance with Section 162(m) of the Code,
or solely of two or more Non-Employee Directors, in accordance with
Rule 16b-3. In addition, the Board or the Committee, in its
sole discretion, may (A) delegate to a Committee of Directors
who need not be Outside Directors the authority to grant Awards to
eligible persons who are either (I) not then Covered Employees
and are not expected to be Covered Employees at the time of
recognition of income resulting from such Award, or (II) not
persons with respect to whom the Company wishes to comply with
Section 162(m) of the Code, or (B) delegate to a
Committee of Directors who need not be Non-Employee Directors the
authority to grant Awards to eligible persons who are not then
subject to Section 16 of the Exchange Act.
(d) Delegation to an
Officer. The Board
may delegate to one or more Officers the authority to do one or
both of the following (i) designate Officers and Employees to
be recipients of Awards and the terms thereof, and
(ii) determine the number of shares of Common Stock to be
subject to any Stock Awards granted to such Officers and Employees;
provided, however, that the Board resolutions regarding such
delegation shall specify the total number of shares of Common Stock
that
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may be subject to the Stock Awards
granted by such Officer and that such Officer may not grant a Stock
Award to himself or herself. Notwithstanding anything to the
contrary in this Section 3(d), the Board may not delegate to
an Officer authority to determine the Fair Market Value of the
Common Stock pursuant to
Section 2(u)(ii) above.
(e) Effect of
Board’s Decision. All determinations, interpretations and
constructions made by the Board in good faith shall not be subject
to review by any person and shall be final, binding and conclusive
on all persons.
(f)
Repricings.
Notwithstanding any provision or provisions to the contrary in this
Plan, the Board or Committee may not, without prior approval of its
stockholders, effect (A) the reduction of the exercise price
of any outstanding Option under the Plan; (B) the cancellation
of any outstanding Option or Stock Appreciation Right under the
Plan and the grant in substitution therefor of (I) a new
Option under the Plan or another equity plan of the Company
covering the same or a different number of shares of Common Stock,
(II) a Stock Purchase Award, (III) a Stock Bonus Award,
(IV) a Stock Appreciation Right under the Plan or another
equity plan of the Company covering the same or a different number
of shares of Common Stock, (V) a Stock Unit Award,
(VI) an Other Stock Award, (VII) cash, including a
Performance Cash Award, or (VIII) other valuable consideration
(as determined by the Board, in its sole discretion); or
(C) any other action that is treated as a repricing under
generally accepted accounting principles.
4.
SHARES SUBJECT TO THE
PLAN.
(a) Share
Reserve. Subject
to the provisions of Section 11(a) relating to
Capitalization Adjustments, the number of shares of Common Stock
that may be issued pursuant to Stock Awards shall not exceed, in
the aggregate, three million two hundred fifty thousand (3,250,000)
shares of Common Stock.
(b) Reversion of
Shares to the Share Reserve. If any Stock Award shall for any reason
expire or otherwise terminate, in whole or in part, without having
been exercised in full, if any shares of Common Stock issued to a
Participant pursuant to a Stock Award are forfeited to or
repurchased by the Company, including, but not limited to, any
repurchase or forfeiture caused by the failure to meet a
contingency or condition required for the vesting of such shares,
then the shares of Common Stock not issued under such Stock Award,
or forfeited to or repurchased by the Company, shall revert to and
again become available for iss
