Exhibit 10.1
C ASCADE M ICROTECH , I NC .
2000 S TOCK I NCENTIVE P LAN
A S A MENDED
1. Purposes of the Plan . The
purposes of this Stock Incentive Plan are to attract, retain and
reward individuals who can and do contribute to the Company’s
success by providing Employees and Consultants an opportunity to
share in the equity of the Company and to more closely align their
interests with the Company and its shareholders.
Options granted hereunder may be
either “incentive stock options,” as defined in
Section 422 of the Internal Revenue Code of 1986, as amended,
or “nonqualified stock options,” at the discretion of
the Board and as reflected in the terms of the written option
agreement. In addition, shares of the Company’s Common Stock
may be Sold hereunder independent of any Option grant.
2. Definitions . As used
herein, the following definitions shall apply:
2.1
“Administrator” shall mean the Board or any of
its Committees as shall be administering the Plan, in accordance
with Section 4.1 of the Plan.
2.2 “Board” shall
mean the Board of Directors of the Company.
2.3 “Code” shall
mean the Internal Revenue Code of 1986, as amended.
2.4 “Committee”
shall mean a committee appointed by the Board in accordance with
Section 4.1 of the Plan.
2.5 “Common
Stock” shall mean the Common Stock of the
Company.
2.6 “Company”
shall mean Cascade Microtech, Inc., an Oregon
corporation.
2.7 “Consultant”
shall mean any person who is engaged by the Company or any Parent
or Subsidiary to render consulting services and is compensated for
such consulting services and any Director of the Company whether
compensated for such services or not.
2.8 “Continuous Status as
an Employee or Consultant” shall mean the absence of any
interruption or termination of service as an Employee or
Consultant. Continuous Status as an Employee or Consultant shall
not be considered interrupted in the case of: (i) any sick
leave, military leave, or any other leave of absence approved by
the Company; provided, however, that for purposes of Incentive
Stock Options, any such leave is for a period of not more than
ninety days or reemployment upon the expiration of such leave is
guaranteed by contract or statute, provided, further, that on the
ninety-first day of such leave (where re-employment is not
guaranteed by contract or statute) the Optionee’s Incentive
Stock Option shall automatically convert to a Nonqualified Stock
Option; or (ii) transfers between locations of the Company or
between the Company, its Parent, its Subsidiaries or its
successor.
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2.9 “Director”
shall mean a member of the Board.
2.10 “Disability”
shall mean total and permanent disability as defined in
Section 22(e)(3) of the Code.
2.11 “Employee”
shall mean any person, including Officers and Directors, employed
by the Company or any Parent or Subsidiary. Neither the payment of
a director’s fee by the Company nor service as a Director
shall be sufficient to constitute “employment” by the
Company.
2.12 “Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended.
2.13 “Fair Market
Value” shall mean, as of any date, the value of Common
Stock determined as follows:
2.13.1 If the Common Stock is listed
on any established stock exchange or a national market system,
including without limitation the Nasdaq National Market or the
Nasdaq SmallCap Market of the Nasdaq Stock Market, its Fair Market
Value shall be the closing sales price for the Common Stock (or the
closing bid, if no sales were reported) as quoted on such exchange
or system for the last market trading day prior to the date of
determination, as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;
2.13.2 If the Common Stock is
regularly quoted by a recognized securities dealer but selling
prices are not reported, its Fair Market Value shall be the mean
between the high bid and low asked prices for the Common Stock on
the last market trading day prior to the date of determination, as
reported in The Wall Street Journal or such other source as the
Administrator deems reliable;
2.13.3 In the absence of an
established market for the Common Stock, the Fair Market Value
shall be determined in good faith by the Administrator.
2.14 “Incentive Stock
Option” shall mean an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of
the Code.
2.15 “Nonqualified Stock
Option” shall mean an Option not intended to qualify as
an incentive stock option within the meaning of Section 422 of
the Code.
2.16 “Notice of
Grant” shall mean a written notice evidencing certain
terms and conditions of an individual Option grant. The Notice of
Grant is part of the Option Agreement.
2.17 “Officer”
shall mean 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.
2.18 “Option”
shall mean a stock option granted pursuant to the Plan.
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2.19 “Option
Agreement” shall mean a written agreement between the
Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject to the
terms and conditions of the Plan.
2.20 “Optioned
Stock” shall mean the Common Stock subject to an
Option.
2.21 “Optionee”
shall mean an Employee or Consultant who holds an
Option.
2.22 “Parent”
shall mean a “parent corporation,” whether now or
hereafter existing, as defined in Section 424(e) of the
Code.
2.23 “Plan” shall
mean this 2000 Stock Incentive Plan.
2.24 “Rule 16b-3”
shall mean Rule 16b-3 of the Exchange Act or any successor to Rule
16b-3, as in effect when discretion is being exercised with respect
to the Plan.
2.25 “Sale” or
“Sold” shall include, with respect to the sale of
Shares under the Plan, the sale of Shares for any form of
consideration specified in Section 8.2, as well as a grant of
Shares for consideration in the form of past or future
services.
2.26 “Share”
shall mean a share of the Common Stock, as adjusted in accordance
with Section 11 of the Plan.
2.27 “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
.
3.1 Subject to the provisions of
paragraphs 3.2 and 3.3 of this Section 3 and the provisions of
Section 11 of the Plan, the maximum aggregate number of Shares
which may be optioned and/or Sold under the Plan is 3,000,000
shares of Common Stock. The Shares may be authorized, but unissued,
or reacquired Common Stock.
3.2 If an Option should expire or
become unexercisable for any reason, or is otherwise terminated or
forfeited, without having been exercised in full, the unpurchased
Shares which were subject thereto shall, unless the Plan shall have
been terminated, become available for future Option grants and/or
Sales under the Plan. If any Shares issued pursuant to a Sale shall
be reacquired, canceled or forfeited for any reason, such Shares
shall become available for future Option grants and/or Sales under
the Plan, unless the Plan shall have been terminated. If the
exercise price of any Option granted under the Plan is satisfied by
tendering Shares of Common Stock to the Company (by either actual
delivery or by attestation), only the number of shares of Common
Stock issued net of the Shares of Common Stock tendered shall be
deemed delivered for purposes of determining the maximum number of
Shares available for delivery under the Plan.
3.3 Notwithstanding any other
provision of this Section 3, but subject to the provisions of
Section 11 of the Plan, the maximum number of Shares that may
be issued upon the exercise of Incentive Stock Options shall be
3,000,000.
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4. Administration of the Plan
.
4.1 Procedure .
4.1.1 Multiple Administrative
Bodies . If permitted by Rule 16b-3, the Plan may be
administered by different bodies with respect to Directors,
Officers who are not Directors, and Employees who are neither
Directors nor Officers.
4.1.2 Administration With Respect
to Directors and Officers Subject to Section 16(b) . With
respect to Option grants made to Employees who are also Officers or
Directors subject to Section 16(b) of the Exchange Act, the
Plan shall be administered by (A) the Board, if the Board may
administer the Plan in compliance with the rules governing a plan
intended to qualify as a discretionary plan under Rule 16b-3, or
(B) a Committee designated by the Board to administer the
Plan, which Committee shall be constituted to comply with the
rules, if any, governing a plan intended to qualify as a
discretionary plan under Rule 16b-3. Once appointed, such Committee
shall continue to serve in its designated capacity until otherwise
directed by the Board. From time to time the Board may increase the
size of the Committee and appoint additional members, remove
members (with or without cause) and substitute new members, fill
vacancies (however caused), and remove all members of the Committee
and thereafter directly administer the Plan, all to the extent
permitted by the rules, if any, governing a plan intended to
qualify as a discretionary plan under Rule 16b-3. With respect to
persons subject to Section 16 of the Exchange Act,
transactions under the Plan are intended to comply with all
applicable conditions of Rule 16b-3. To the extent any provision of
the Plan or action by the Administrator fails to so comply, it
shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Administrator.
4.1.3 Administration With Respect
to Other Persons . With respect to Option grants made to
Employees or Consultants who are neither Directors nor Officers of
the Company, the Plan shall be administered by the Board or a
Committee designated by the Board, which Committee shall be
constituted to satisfy the legal requirements relating to the
administration of stock option plans under applicable corporate and
securities laws and the Code. Once appointed, such Committee shall
serve in its designated capacity until otherwise directed by the
Board. The Board may increase the size of the Committee and appoint
additional members, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), and remove
all members of the Committee and thereafter directly administer the
Plan, all to the extent permitted by the legal requirements
relating to the administration of stock option plans under state
corporate and securities laws and the Code.
4.2 Powers of the
Administrator . Subject to the provisions of the Plan, and in
the case of a Committee, subject to the specific duties delegated
by the Board to such Committee, the Administrator shall have the
authority, in its discretion:
4.2.1 to grant Incentive Stock
Options in accordance with Section 422 of the Code, or
Nonqualified Stock Options;
4.2.2 to authorize Sales of Shares
of Common Stock hereunder;
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4.2.3 to determine, upon review of
relevant information, the Fair Market Value of the Common
Stock;
4.2.4 to determine the
exercise/purchase price per Share of Options to be granted or
Shares to be Sold, which exercise/purchase price shall be
determined in accordance with Section 8.1 of the
Plan;
4.2.5 to determine the Employees or
Consultants to whom, and the time or times at which, Options shall
be granted and the number of Shares to be represented by each
Option;
4.2.6 to determine the Employees or
Consultants to whom, and the time or times at which, Shares shall
be Sold and the number of Shares to be Sold;
4.2.7 to interpret the
Plan;
4.2.8 to prescribe, amend and
rescind rules and regulations relating to the Plan;
4.2.9 to determine the terms and
provisions of each Option granted (which need not be identical)
and, with the consent of the holder thereof, modify or amend each
Option;
4.2.10 to determine the terms and
provisions of each Sale of Shares (which need not be identical)
and, with the consent of the purchaser thereof, modify or amend
each Sale;
4.2.11 to accelerate or defer (with
the consent of the Optionee) the exercise date of any
Option;
4.2.12 to accelerate or defer (with
the consent of the Optionee or purchaser of Shares) the vesting
restrictions applicable to Shares Sold under the Plan or pursuant
to Options granted under the Plan;
4.2.13 to authorize any person to
execute on behalf of the Company any instrument required to
effectuate the grant of an Option or Sale of Shares previously
granted or authorized by the Administrator;
4.2.14 to determine the restrictions
on transfer, vesting restrictions, repurchase rights, or other
restrictions applicable to Shares issued under the Plan;
4.2.15 to effect, at any time and
from time to time, with the consent of the affected Optionees, the
cancellation of any or all outstanding Options under the Plan and
to grant in substitution therefor new Options under the Plan
covering the same or different numbers of Shares, but having an
Option price per Share consistent with the provisions of
Section 8 of this Plan as of the date of the new Option
grant;
4.2.16 to establish, on a
case-by-case basis, different terms and conditions pertaining to
exercise or vesting rights upon termination of employment, whether
at the time of an Option grant or Sale of Shares, or
thereafter;
4.2.17 to approve forms of agreement
for use under the Plan;
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4.2.18 to reduce the exercise price
of any Option to the then current Fair Market Value if the Fair
Market Value of the Common Stock covered by such Option shall have
declined since the date the Option was granted;
4.2.19 to determine whether and
under what circumstances an Option may be settled in cash under
subsection 9.6 instead of Common Stock; and
4.2.20 to make all other
determinations deemed necessary or advisable for the administration
of the Plan.
4.3 Effect of
Administrator’s Decision . All decisions, determinations
and interpretations of the Administrator shall be final and binding
on all Optionees and any other holders of any Options granted under
the Plan or Shares Sold under the Plan.
5. Eligibility .
5.1 Persons Eligible .
Options may be granted and/or Shares Sold only to Employees and
Consultants. Incentive Stock Options may be granted only to
Employees. An Employee or Consultant who has been granted an Option
or Sold Shares may, if he or she is otherwise eligible, be granted
an additional Option or Options or Sold additional
Shares.
5.2 ISO Limitation . To the
extent that the aggregate Fair Market Value of Shares subject to an
Optionee’s Incentive Stock Options granted by the Company,
any Parent or Subsidiary which become exercisable for the first
time during any calendar year (under all plans of the Company or
any Parent or Subsidiary) exceeds $100,000, such excess Options
shall be treated as Nonqualified Stock Options. For purposes of
this Section 5.2, Incentive Stock Options shall
