COINSTAR, INC.
1997 AMENDED AND RESTATED EQUITY INCENTIVE PLAN
(As Amended by the Board of Directors on February 11,
2009)
(a) The
purpose of the Coinstar, Inc. 1997 Amended and Restated Equity
Incentive Plan (the “Plan”) is to provide a means by
which selected Employees, Directors and Consultants may be given an
opportunity to benefit from increases in value of the common stock
of the Company (“Common Stock”) through the granting of
(i) Incentive Stock Options, (ii) Nonstatutory Stock
Options, and (iii) Stock Awards.
(b) The
Company, by means of the Plan, seeks to retain the services of
persons who are now Employees, Directors or Consultants, to secure
and retain the services of new Employees, Directors and
Consultants, and to provide incentives for such persons to exert
maximum efforts for the success of the Company and its
Affiliates.
(c) The
Company intends that the Awards issued under the Plan shall, in the
discretion of the Board or any committee to which responsibility
for administration of the Plan has been delegated pursuant to
subsection 3(c), be either (i) Options granted pursuant to
Section 6 hereof, including Incentive Stock Options and
Nonstatutory Stock Options, or (ii) Stock Awards granted
pursuant to Section 7 hereof. All Options shall be separately
designated Incentive Stock Options or Nonstatutory Stock Options at
the time of grant, and in such form as issued pursuant to
Section 6.
(a)
Affiliate ” means any parent corporation or
subsidiary corporation with respect to which an employee of such
corporation would be eligible to receive from the Company a grant
of an Incentive Stock Option in connection with such
employee’s employment by such corporation, whether such
corporation is now or hereafter existing, except that, for purposes
of Awards not intended to qualify as Incentive Stock Options, the
parent or subsidiary need not be a corporation.
(b) “
Award ” means any Option or Stock
Award.
(c) “
Board ” means the Board of Directors of the
Company.
(d) “
Code ” means the Internal Revenue Code of 1986,
as amended.
(e) “
Company ” means Coinstar, Inc., a Delaware
corporation.
(f) “
Consultant ” means any person, including an
advisor, engaged by the Company or an Affiliate to render bona fide
consulting services and who is compensated for such services,
provided that the term “Consultant” shall not include
Directors who are paid only a director’s fee by the Company
or who are not compensated by the Company for their services as
Directors.
(g) “
Continuous Status as an Employee, Director or
Consultant ” means the employment or relationship as
an Employee, Director or Consultant is not interrupted or
terminated. The Plan Administrator, in its sole discretion, may
determine whether Continuous Status as an Employee, Director or
Consultant shall be considered interrupted in the case of:
(i) any leave of absence approved by the Plan Administrator,
including sick leave, military leave or any other personal leave;
or (ii) transfers between locations of the Company or between
the Company, Affiliates or their successors.
(h) “
Director ” means a member of the
Board.
(i) “
Employee ” means any person employed by the
Company or any Affiliate of the Company. Neither service as a
Director nor payment of a director’s fee by the Company shall
be sufficient to constitute “employment” by the
Company.
(j) “
Exchange Act ” means the Securities Exchange
Act of 1934, as amended.
(k) “
Fair Market Value ” means, as of any date, the
value of the Common Stock of the Company determined as
follows:
(1) If
the Common Stock is listed on any established stock exchange, or
traded on the Nasdaq Global Select Market or the Nasdaq Capital
Market, 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 market (or the
exchange or market with the greatest volume of trading in Common
Stock) on the day of determination, as reported in The Wall
Street Journal or such other source as the Board deems
reliable; or
(2) In
the absence of such markets for the Common Stock, the Fair Market
Value shall be determined in good faith by the Board.
(l) “
Incentive Stock Option ” means an Option
intended to qualify as an incentive stock option within the meaning
of Section 422 of the Code and the regulations promulgated
thereunder.
(m) “
Nonstatutory Stock Option ” means an Option not
intended to qualify as an Incentive Stock Option.
(n) “
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.
(o) “
Option ” means the right to purchase Common
Stock granted pursuant to the Plan.
(p) “
Option Agreement ” means a written agreement
between the Company and a Participant evidencing the terms and
conditions of an individual Option grant. Each Option Agreement
shall be subject to the terms and conditions of the
Plan.
(q) “
Participant ” means the person to whom an Award
is granted.
(r) “
Plan ” means this Coinstar, Inc. 1997 Amended
and Restated Equity Incentive Plan, as amended and
restated.
(s) “
Plan Administrator ” has the meaning set forth
in subsection 3(c) of the Plan.
(t) “
Rule 16b-3 ” means Rule 16b-3 of the
Exchange Act or any successor to Rule 16b-3.
(u) “
Section 409A ” means Section 409A of
the Code, including any proposed and final regulations and other
guidance issued thereunder by the Department of the Treasury and/or
the Internal Revenue Service.
(v) “
Stock Award ” means an Award of shares of
Common Stock or units denominated in Common Stock granted under
Section 7, the rights of ownership of which may be subject to
restrictions prescribed by the Plan Administrator.
(w) “
Stock Award Agreement ” means a written
agreement between the Company and a holder of a Stock Award
evidencing the terms and conditions of an individual Stock Award
grant. Each Stock Award Agreement shall be subject to the terms and
conditions of the Plan.
(a) The Board
shall administer the Plan unless and until the Board delegates
administration to a committee or subcommittee, as provided in
subsection 3(c).
(b) The
Board, or the Plan Administrator, as defined below, shall have the
power, subject to, and within the limitations of, the express
provisions of the Plan:
(1) To
determine from time to time which of the persons eligible under the
Plan shall be granted Awards; when and how each Award shall be
granted; whether an Award will be an Incentive Stock Option, a
Nonstatutory Stock Option, a Stock Award or a combination of the
foregoing; and the provisions of each Award granted (which need not
be identical), including the time or times when a person shall be
permitted to receive stock pursuant to an Award and the number of
shares with respect to which an Award shall be granted to each such
person.
(2) 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, in any
Stock Award or Option Agreement, in a manner and to the extent it
shall deem necessary or expedient to make the Plan fully
effective.
(3) To
amend the Plan or an Award as provided in
Section 12.
(4) To
permit or require the deferral of any Award payment, subject to
such rules and procedures as it may establish, which may include
provisions for the payment or crediting of interest, or dividend
equivalents, including converting such credits into deferred stock
equivalents. Deferral of any Award payment shall satisfy the
requirements for exemption from Section 409A of the Code or
satisfy the requirements of Section 409A as determined by the
Plan Administrator prior to such deferral.
(5) Generally,
to exercise such powers and to perform such acts as the Board or
the Plan Administrator deems necessary or expedient to promote the
best interests of the Company, which are not in conflict with the
provisions of the Plan.
(c) The Plan
shall be administered by the Board and/or a committee or committees
(which term includes subcommittees) appointed by, and consisting of
two or more independent members of the Board (the “Plan
Administrator”). If and so long as the Common Stock is
registered under Section 12(b) or 12(g) of the Exchange Act, the
Board shall consider in selecting the members of any committee
acting as Plan Administrator, with respect to any persons subject
or likely to become subject to Section 16 of the Exchange Act,
the provisions regarding (i) “outside directors” as
contemplated by Section 162(m) of the Code and (ii)
“non-employee directors” as contemplated by
Rule 16b-3. Notwithstanding the foregoing, the Plan
Administrator may delegate the responsibility for administering the
Plan with respect to designated classes of eligible persons to
different committees consisting of one or more members of the
Board, subject to such limitations as the Board deems appropriate.
Committee members shall serve for such term as the Board may
determine, subject to removal by the Board at any time.
Furthermore, to the extent not inconsistent with applicable law,
the Plan Administrator may authorize one or more executive Officers
of the Company to grant Awards to certain eligible individuals in
such amounts and at an exercise price as specifically prescribed by
the Plan Administrator. Notwithstanding any other provision of the
Plan, all grants of Awards to Directors shall be approved only by a
committee consisting of independent members of the
Board.
4. Shares
Subject to the Plan
(a) Subject
to the provisions of Section 11 relating to adjustments upon
changes in stock, the stock that may be available for issuance
pursuant to Awards shall not exceed in the aggregate Eight Million
One Hundred Seventeen Thousand Two Hundred Seventy Four (8,117,274)
shares of Common Stock. If any Awards shall for any reason expire
or otherwise terminate, in whole or in part, without having been
exercised in full (or vested in the case of restricted stock
awarded pursuant to Section 7), the stock not acquired under
such Award shall revert to and again become available for issuance
under the Plan.
(b) The stock
subject to the Plan may be unissued shares or reacquired shares,
bought on the market or otherwise.
(c) Subject
to the provisions of Section 11 relating to adjustments upon
changes in stock, not more than an aggregate of Six Hundred
Thousand (600,000) shares shall be available for issuance pursuant
to grants of Stock Awards under the Plan.
(d) Notwithstanding
the foregoing, the maximum number of shares that may be issued upon
the exercise of Incentive Stock Options shall equal the aggregate
share number stated in subsection 4(a), subject to the provisions
of Section 11 relating to adjustments upon changes in
stock.
(a) Incentive
Stock Options may be granted only to Employees. Awards other than
Incentive Stock Options may be granted only to Employees, Directors
or Consultants.
(b) No person
shall be eligible for the grant of an Incentive Stock Option if, at
the time of grant, such person 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 of any of its Affiliates unless the
exercise price of such Option is at least one hundred ten percent
(110%) of the Fair Market Value of such stock at the date of grant
and the Option is not exercisable after the expiration of five
(5) years from the date of grant.
(c) Subject
to the provisions of Section 11 relating to adjustments upon
changes in stock, no person shall be eligible to be granted Awards
covering more than Five Hundred Thousand (500,000) shares of the
Common Stock in any calendar year, such limitation to be applied in
a manner consistent with the requirements of, and only to the
extent required for compliance with, the exclusion from the
limitation on deductibility of compensation under Section 162(m) of
the Code.
Each Option shall
be in such form and shall contain such terms and conditions as the
Plan Administrator shall deem appropriate. The provisions of
separate Options need not be identical, but each Option shall
include (through incorporation of provisions hereof by reference in
the Option or otherwise) the substance of each of the following
provisions:
(a)
Term . No Option shall be exercisable after the expiration
of ten (10) years from the date it was granted.
(b)
Price . The exercise price of each Option shall be not less
than one hundred percent (100%) of the Fair Market Value of the
stock subject to the Option on the date the Option is granted.
Notwithstanding the foregoing, an Option may be granted with an
exercise price lower than that set forth in the preceding sentence
if such Option is granted pursuant to an assumption or substitution
for another option in a manner satisfying the provisions of Section
424(a) of the Code.
(c)
Consideration . The purchase price of stock acquired
pursuant to an Option shall be paid, to the extent permitted by
applicable statutes and regulations, either (i) in cash or
with a check at the time the Option is exercised, or (ii) at
the discretion of the Plan Administrator (A) by tendering (either
actually or, so long as the Common Stock is registered under
Section 12(b) or 12(g) of the Exchange Act, by attestation) shares
of Common Stock already owned by a Participant, provided that the
Participant must have held any such shares tendered that were
acquired by the Participant under a Company-sponsored stock
compensation program for at least six (6) months, that on the
day prior to the exercise date have a Fair Market Value equal to
the aggregate exercise price of shares being purchased under the
Option, (B) so long as the Common Stock is registered under
Section 12(b) or 12(g) of the Exchange Act and to the extent
permitted by law, delivery of a properly executed exercise notice,
together with irrevocable instructions to a brokerage firm
designated by the Company to deliver promptly to the Company the
aggregate amount of sale or loan proceeds to pay the Option
exercise price and any withholding tax obligations that may arise
in connection with this exercise, all in accordance with the
regulations of the Federal Reserve Board, or (C) such other
consideration as the Plan Administrator may permit.
In addition, to
assist a Participant in acquiring shares of Common Stock pursuant
to an Option granted under the Plan, the Plan Administrator may, in
its sole and absolute discretion at the time the Option is
exercised, permit exercise of the Option by delivery of a
promissory note from the Participant in a form approved by the
Company, provided that the Participant is an Employee, and not an
Officer or member of the Board (unless otherwise not prohibited by
law, including, without limitation, any regulation
promulgated by
the Board of Governors of the Federal Reserve System). No
promissory note shall b
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