Exhibit 10.1
CORNERSTONE THERAPEUTICS INC.
2004 STOCK INCENTIVE PLAN
(as Amended and Restated May 28, 2009)
The purpose of this 2004
Stock Incentive Plan (the “Plan”) of Cornerstone
Therapeutics Inc., a Delaware corporation (the
“Company,” and formerly known as Critical Therapeutics,
Inc.), is to advance the interests of the Company’s
stockholders by enhancing the Company’s ability to attract,
retain and motivate persons who make (or are expected to make)
important contributions to the Company by providing such persons
with equity ownership opportunities and performance-based
incentives and thereby better aligning the interests of such
persons with those of the Company’s stockholders. Except
where the context otherwise requires, the term
“Company” shall include any of the Company’s
present or future parent or subsidiary corporations as defined in
Sections 424(e) or (f) of the Internal Revenue Code of
1986, as amended, and any regulations promulgated thereunder (the
“Code”) and any other business venture (including,
without limitation, joint venture or limited liability company) in
which the Company has a controlling interest, as determined by the
Board of Directors of the Company (the
“Board”).
All of the
Company’s employees, officers, directors, consultants and
advisors (including persons who have entered into an agreement with
the Company under which they will be employed by the Company in the
future) are eligible to be granted options, restricted stock
awards, stock appreciation rights or other stock-based awards
(each, an “Award”) under the Plan. Each person who has
been granted an Award under the Plan shall be deemed a
“Participant.”
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3.
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Administration and
Delegation
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(a)
Administration by Board of Directors. The Plan
will be administered by the Board. The Board shall have authority
to grant Awards and to adopt, amend and repeal such administrative
rules, guidelines and practices relating to the Plan as it shall
deem advisable. The Board may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or any Award in
the manner and to the extent it shall deem expedient to carry the
Plan into effect and it shall be the sole and final judge of such
expediency. All decisions by the Board shall be made in the
Board’s sole discretion and shall be final and binding on all
persons having or claiming any interest in the Plan or in any
Award. No director or person acting pursuant to the authority
delegated by the Board shall be liable for any action or
determination relating to or under the Plan made in good
faith.
(b) Appointment
of Committees. To the extent permitted by
applicable law, the Board may delegate any or all of its powers
under the Plan to one or more committees or subcommittees of the
Board (a “Committee”). All references in the Plan to
the “Board” shall mean the Board or a Committee of the
Board or the officers referred to in Section 3(c) to the
extent that the Board’s powers or authority under the Plan
have been delegated to such Committee or officers.
(c) Delegation
to Officers. To the extent permitted by applicable
law, the Board may delegate to one or more officers of the Company
the power to grant Awards to employees or officers of the Company
or any of its present or future subsidiary corporations and to
exercise such other powers under the Plan as the Board may
determine, provided that the Board shall fix the terms of the
Awards to be granted by such officers (including the exercise price
of such Awards, which may include a formula by which the exercise
price will be determined) and the maximum number of shares subject
to Awards that the officers may grant; provided further, however,
that no officer shall be authorized to grant Awards to any
“executive officer” of the Company (as defined by
Rule 3b-7 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) or to any
“officer” of the Company (as defined by Rule 16a-1
under the Exchange Act).
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4.
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Stock Available for
Awards
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(a) Number of
Shares. Subject to adjustment under
Section 10, Awards may be made under the Plan for up to the
number of shares of common stock, $0.001 par value per share,
of the Company (the “Common Stock”) that is equal to
the sum of:
(1) 1,454,000 shares of
Common Stock; plus
(2) 13,256 shares
representing the shares of Common Stock reserved for issuance under
the Critical Therapeutics, Inc. 2000 Equity Incentive Plan, as
amended, and the Critical Therapeutics, Inc. 2003 Stock Incentive
Plan, as amended (the “Existing Plans”), that remained
available for grant under the Existing Plans immediately prior to
the closing of Critical Therapeutics, Inc.’s initial public
offering; plus
(3) an annual
increase to be added on the first day of each of the
Company’s fiscal years beginning January 1, 2006 and
ending on the second day of fiscal year 2014, which increase shall
be determined by the Board for each fiscal year prior to the first
day of such fiscal year (by vote of a majority of the independent
directors, following a recommendation by the Compensation Committee
of the Board or any other Committee designated by the Board);
provided, however, that the amount determined by the Board may not
exceed the lesser of (i) 133,333 shares of Common Stock
and (ii) 4% of the outstanding shares of Common Stock on the
first day of such fiscal year.
Notwithstanding the
foregoing, no more than 80,000 shares of Common Stock (subject
to adjustment under Section 10) or such other number of
shares of Common Stock as may be determined by vote of a majority
of the independent directors, following a recommendation by the
Compensation Committee of the Board or any other Committee
designated by the Board, may be issued pursuant to all Awards other
than Options and SARs (each as hereinafter defined). Furthermore,
notwithstanding clause (3) above, in no event may the number
of shares available under this Plan be increased as set forth in
clause (3) to the extent such increase, in addition to any
other increases proposed by the Board in the number of shares
available for issuance under all other employee or director stock
plans, would result in the total number of shares then available
for issuance under all employee and director stock plans exceeding
30% of the outstanding shares of the Company on the first day of
the applicable fiscal year.
If any Award expires or
is terminated, surrendered or canceled without having been fully
exercised or is forfeited in whole or in part (including as the
result of shares of Common Stock subject to such Award being
repurchased by the Company at the original issuance price pursuant
to a contractual repurchase right) or results in any Common Stock
not being issued, the unused Common Stock covered by such Award
shall again be available for the grant of Awards under the Plan,
subject, however, in the case of Incentive Stock Options (as
hereinafter defined), to any limitations under the Code. Shares
issued under the Plan may consist in whole or in part of authorized
but unissued shares or treasury shares.
(b)
Per-Participant Limit. Subject to adjustment
under Section 10, the maximum number of shares of Common Stock
with respect to which Awards may be granted to any Participant
under the Plan shall be 500,000 per calendar year. The
per-Participant limit described in this Section 4(b) shall be
construed and applied consistently with Section 162(m) of the
Code (“Section 162(m)”).
(a)
General. The Board may grant options to purchase
Common Stock (each, an “Option”) and determine the
number of shares of Common Stock to be covered by each Option, the
exercise price of each Option and the conditions and limitations
applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it
considers necessary or advisable. An Option which is not intended
to be an Incentive Stock Option (as hereinafter defined) shall be
designated a “Nonstatutory Stock Option.”
(b) Incentive
Stock Options. An Option that the Board intends to
be an “incentive stock option” as defined in
Section 422 of the Code (an “Incentive Stock
Option”) shall only be granted to employees of Cornerstone
Therapeutics Inc., any of Cornerstone Therapeutics Inc.’s
present or future parent or subsidiary
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corporations as defined in
Sections 424(e) or (f) of the Code, and any other
entities the employees of which are eligible to receive Incentive
Stock Options under the Code, and shall be subject to and shall be
construed consistently with the requirements of Section 422 of
the Code. The Company shall have no liability to a Participant, or
any other party, if an Option (or any part thereof) that is
intended to be an Incentive Stock Option is not an Incentive Stock
Option.
(c) Exercise
Price. The Board shall establish the exercise price
at the time each Option is granted and specify it in the applicable
option agreement; provided, however, that the exercise price shall
be not less than 100% of the Fair Market Value (as hereinafter
defined) at the time the Option is granted.
(d) Duration of
Options. Each Option shall be exercisable at such
times and subject to such terms and conditions as the Board may
specify in the applicable option agreement; provided, however, that
no Option will be granted for a term in excess of
10 years.
(e) Exercise of
Option. Options may be exercised by delivery to the
Company of a written notice of exercise signed by the proper person
or by any other form of notice (including electronic notice)
approved by the Board together with payment in full as specified in
Section 5(f) for the number of shares for which the Option is
exercised.
(f) Payment
Upon Exercise. Common Stock purchased upon the
exercise of an Option granted under the Plan shall be paid for as
follows:
(1) in cash or by
check, payable to the order of the Company;
(2) except as the
Board may otherwise provide in an option agreement, by
(i) delivery of an irrevocable and unconditional undertaking
by a creditworthy broker to deliver promptly to the Company
sufficient funds to pay the exercise price and any required tax
withholding or (ii) delivery by the Participant to the Company
of a copy of irrevocable and unconditional instructions to a
creditworthy broker to pay promptly to the Company the exercise
price and any required tax withholding;
(3) if provided for
in the option agreement or approved by the Company in its sole
discretion, by delivery of shares of Common Stock owned by the
Participant valued at their fair market value as determined by (or
in a manner approved by) the Board (“Fair Market
Value”), provided (i) such method of payment is then
permitted under applicable law, (ii) such Common Stock, if
acquired directly from the Company, was owned by the Participant at
least six months prior to such delivery and (iii) such Common
Stock is not subject to any repurchase, forfeiture, unfulfilled
vesting or other similar requirements;
(4) if provided for
in the option agreement or approved by the Company in its sole
discretion, by (i) delivery of a promissory note of the
Participant to the Company on terms determined by the Board, or
(ii) payment of such other lawful consideration as the Board
may determine; or
(5) by any
combination of the above permitted forms of payment.
(g) Substitute
Options. In connection with a merger or
consolidation of an entity with the Company or the acquisition by
the Company of property or stock of an entity, the Board may grant
Options in substitution for any options or other stock or
stock-based awards granted by such entity or an affiliate thereof.
Substitute Options may be granted on such terms as the Board deems
appropriate in the circumstances, notwithstanding any limitations
on Options contained in the other sections of this Section 5
or in Section 2.
(h) Repricing
of Options. The Board (by vote of a majority of the
independent directors, following a recommendation by the
Compensation Committee of the Board or any other committee
designated by the Board) shall have the authority, at any time and
from time to time, with the consent of the affected Participants,
to amend any or all outstanding Options granted under the Plan to
provide an Option exercise price per share which may be lower or
higher than the original Option exercise price, and/or cancel any
such Options and grant in substitution therefor other Awards,
including new Options, covering the same or different numbers of
shares of Common Stock having an Option exercise price per share
which may be lower or higher than the exercise price of the
canceled Options; provided, however, that the Board may not engage
in any such repricing of Options with respect to Options then held
by officers or directors of the Company.
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7.
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Stock Appreciation
Rights.
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(a) Nature of
Stock Appreciation Rights. A Stock Appreciation
Right, or SAR, is an Award entitling the holder on exercise to
receive an amount in cash or Common Stock or a combination thereof
(such form to be determined by the Board) determined in whole or in
part by reference to appreciation, from and after the date of
grant, in the fair market value of a share of Common Stock. SARs
may be based solely on appreciation in the fair market value of
Common Stock or on a comparison of such appreciation with some
other measure of market growth such as (but not limited to)
appreciation in a recognized market index. The date as of which
such appreciation or other measure is determined shall be the
exercise date unless another date is specified by the Board in the
SAR Award.
(b) Grants.
Stock Appreciation Rights may be granted in tandem
with, or independently of, Options granted under the
Plan.
(1)
Rules Applicable to Tandem Awards. When
Stock Appreciation Rights are expressly granted in tandem with
Options, the Stock Appreciation Right and the related Options will
be exercisable only at such time or times and on such conditions as
the Board may specify in the SAR Award or the related
Option.
(2) Exercise of
Independent Stock Appreciation Rights. A Stock Appreciation Right
not expressly granted in tandem with an Option will become
exercisable at such time or times, and on such conditions, as the
Board may specify in the SAR Award.
(c)
Exercise. Any exercise of a Stock Appreciation
Right must be in writing, signed by the proper person and delivered
or mailed to the Company, accompanied by any other documents
required by the Board.
(a) Grants.
The Board may grant Awards entitling recipients to
acquire shares of Common Stock, subject to the right of the Company
to repurchase all or part of such shares at their issue price or
other stated or formula price (or to require forfeiture of such
shares if issued at no cost) from the recipient in the event that
conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable restriction period or
periods establish
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