Exhibit 10.1
INTERMUNE, INC.
AMENDED AND RESTATED 2000 EQUITY
INCENTIVE PLAN
Adopted January 31,
2000
Approved by Stockholders:
March 20, 2000
Amended on: April 4, 2002
and June 19, 2002
Approved by Stockholders:
June 19, 2002
Amended and Restated on:
April 2, 2004
Approved by Stockholders:
May 27, 2004
Amended and Restated on:
March 7, 2007
Amended on: April 27,
2007
Approved by Stockholders:
May 15, 2007
Amended and Approved by
Stockholders: May 21, 2009
(a) The Plan amends and restates the
InterMune, Inc. 2000 Equity Incentive Plan originally adopted
January 31, 2000. All Stock Awards granted subsequent to
April 7, 2007 shall be subject to the terms of this Plan (as
amended and restated hereby). Subject to approval of the amendments
to the Plan reflected in this document by the Company’s
stockholders at the Company’s 2007 Annual Meeting of
stockholders, this version of the Plan is effective on and after
April 7, 2007, and Awards granted on or after April 7,
2007 shall be made under this version of the Plan and not under the
Plan as previously in effect. For the terms and conditions of the
Plan applicable to Awards granted under the Plan before
April 7, 2007, refer to the version of the Plan in effect as
of the date such Stock Award was granted.
(b) The persons eligible to receive
Stock Awards are the Employees, Directors and Consultants of the
Company and its Affiliates.
(c) The purpose of the Plan is to
provide a means by which eligible recipients of Stock Awards may be
given an opportunity to benefit from increases in value of the
Common Stock through the granting of the following Stock Awards:
(i) Incentive Stock Options, (ii) Nonstatutory Stock
Options, (iii) Stock Purchase Awards, and (v) Stock Bonus
Awards.
(d) The Company, by means of the
Plan, seeks to retain the services of the group of persons eligible
to receive Stock Awards, to secure and retain the services of new
members of this group and to provide incentives for such persons to
exert maximum efforts for the success of the Company and its
Affiliates.
(a) “Affiliate” means
any parent corporation or subsidiary corporation of the Company,
whether now or hereafter existing, as those terms are defined in
Sections 424(e) and (f), respectively, of the Code.
(b) “Board” means the
Board of Directors of the Company.
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(c) “Code” means the
Internal Revenue Code of 1986, as amended.
(d) “Committee” means a
committee of one or more members of the Board appointed by the
Board in accordance with subsection 3(c).
(e) “Common Stock” means
the common stock of the Company.
(f) “Company” means
InterMune, Inc., a Delaware corporation.
(g) “Consultant” means
any person, including an advisor, (i) engaged by the Company
or an Affiliate to render consulting or advisory services and who
is compensated for such services or (ii) who is a member of
the Board of Directors of an Affiliate. However, the term
“Consultant” shall not include either Directors who are
not compensated by the Company for their services as Directors or
Directors who are merely paid a director’s fee by the Company
for their services as Directors.
(h) “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. The Participant’s Continuous
Service shall not be deemed to have terminated merely because of 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. For example, a change in status
without interruption from an Employee of the Company to a
Consultant of an Affiliate or a Director will not constitute an
interruption of Continuous Service. 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.
(i) “Covered Employee”
means the chief executive officer and the four (4) other
highest compensated officers of the Company for whom total
compensation is required to be reported to Stockholders under the
Exchange Act, as determined for purposes of Section 162(m) of
the Code.
(j) “Director” means a
member of the Board.
(k) “Disability” means
the permanent and total disability of a person within the meaning
of Section 22(e)(3) of the Code.
(l) “Employee” means any
person employed by the Company or an Affiliate. Mere service as a
Director or payment of a director’s fee by the Company or an
Affiliate shall not be sufficient to constitute
“employment” by the Company or an Affiliate.
(m) “Exchange Act” means
the Securities Exchange Act of 1934, as amended.
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(n) “Fair Market Value”
means, as of any date, the value of the Common Stock determined as
follows:
(i) If the Shares are listed on any
established stock exchange or a national market system, Fair Market
Value shall be the closing sales price for such Shares (or the
closing bid, if no sales were reported) as quoted on such exchange
or system for such date, or if no bids or sales were reported for
such date, then the closing sales price (or the closing bid, if no
sales were reported) on the trading date immediately prior to such
date during which a bid or sale occurred, in each case, as reported
in The Wall Street Journal or such other source as the Committee
deems reliable;
(ii) If the Shares are regularly
quoted by a recognized securities dealer but selling prices are not
reported, Fair Market Value shall be the mean of the closing bid
and asked prices for the Shares on such date, or if no closing bid
and asked prices were reported for such date, the date immediately
prior to such date during which closing bid and asked prices were
quoted for the Shares, in each case, as reported in The Wall Street
Journal or such other source as the Committee deems reliable;
or
(iii) In the absence of an
established market for the Shares, the Fair Market Value thereof
shall be determined in good faith by the Committee.
(o) “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.
(p) “Non-Employee
Director” means a Director who either (i) is not a
current Employee or Officer of the Company or its parent or a
subsidiary, does not receive compensation (directly or indirectly)
from the Company or its parent or a subsidiary 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 (“ dRegulation S-K
”)), does not possess an interest in any other transaction as
to which disclosure would be required under Item 404(a) of
Regulation S-K and is not engaged in a business relationship as to
which disclosure would be required under Item 404(b) of
Regulation S-K; or (ii) is otherwise considered a
“non-employee director” for purposes of Rule
16b-3.
(q) “Nonstatutory Stock
Option” means an Option not intended to qualify as an
Incentive Stock Option.
(r) “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.
(s) “Option” means an
Incentive Stock Option or a Nonstatutory Stock Option granted
pursuant to the Plan.
(t) “Option Agreement”
means a written agreement between the Company and an Optionholder
evidencing the terms and conditions of an individual Option grant.
Each Option Agreement shall be subject to the terms and conditions
of the Plan.
(u) “Optionholder” means
a person to whom an Option is granted pursuant to the Plan or, if
applicable, such other person who holds an outstanding
Option.
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(v) “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” receiving
compensation for prior services (other than benefits under a tax
qualified pension plan), was not an officer of the Company or an
“affiliated corporation” at any time and is not
currently receiving direct or indirect remuneration from the
Company or an “affiliated corporation” for services 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.
(w) “Participant” means
a person to whom a Stock Award is granted pursuant to the Plan or,
if applicable, such other person who holds an outstanding Stock
Award.
(x) “Plan” means this
InterMune, Inc. Amended and Restated 2000 Equity Incentive
Plan.
(y) “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.
(z) “Securities Act”
means the Securities Act of 1933, as amended.
(aa) “Share Reserve”
shall have the meaning ascribed in Section 4(a).
(bb) “Stock Award” means
any right granted under the Plan, including an Option, a Stock
Purchase Award and a Stock Bonus Award.
(cc) “Stock Award
Agreement” means a written agreement between the Company and
a Participant evidencing the terms and conditions of a Stock Award
grant. Each Stock Award Agreement shall be subject to the terms and
conditions of the Plan.
(dd) “Stock Bonus Award”
means an award of shares of Common Stock which is granted pursuant
to Section 7(a).
(ee) “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.
(ff) “Stockholder” means
a stockholder of the Company.
(gg) “Stock Purchase
Award” means an award of shares of Common Stock which is
granted pursuant to Section 7(b).
(hh) “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.
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(ii) “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 of any of its
Affiliates.
(a) Administration by Board .
The Board shall administer the Plan unless and until the Board
delegates administration to a Committee, as provided in subsection
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
which of the persons eligible under the Plan shall be granted Stock
Awards; when and how each Stock Award shall be granted; the
exercise price and acceptable types of consideration for payment of
the exercise price for each Stock Award; what type or combination
of types of Stock Award shall be granted; the provisions of each
Stock Award granted (which need not be identical), including the
time or times when a person shall be permitted to receive Common
Stock pursuant to a Stock Award; and 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 Stock 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 in any Stock Award Agreement, in a
manner and to the extent it shall deem necessary or expedient to
make the Plan fully effective.
(iii) Subject to the provisions of
Section 14, to amend the Plan or a Stock Award as provided in
Section 12.
(iv) To terminate or suspend the
Plan as provided in Section 13.
(v) 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 which are
not in conflict with the provisions of the Plan.
(c) Delegation to Committee
.
(i) General . The Board may
delegate administration of the Plan to a Committee or Committees of
one (1) or more members of the Board, and the term
“Committee” shall apply to any person or persons to
whom such authority has been delegated. If administration is
delegated to a Committee, the Committee shall have, in connection
with the administration of the Plan, the powers theretofore
possessed by the Board, including the power to delegate to a
subcommittee 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 abolish the Committee at any time and revest in the Board
the administration of the Plan.
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(ii) Committee Composition when
Common Stock is Publicly Traded . At such time as the Common
Stock is publicly traded, in the discretion of the Board, a
Committee may consist solely of two or more Outside Directors, in
accordance with Section 162(m) of the Code, and/or solely of
two or more Non-Employee Directors, in accordance with Rule 16b-3.
Within the scope of such authority, the Board or the Committee may
(1) delegate to a committee of one or more members of the
Board who are not Outside Directors the authority to grant Stock
Awards to eligible persons who are either (a) not then Covered
Employees and are not expected to be Covered Employees at the time
of recognition of income resulting from such Stock Awards or
(b) not persons with respect to whom the Company wishes to
comply with Section 162(m) of the Code and/or
(2) delegate to a committee of one or more members of the
Board who are not Non-Employee Directors the authority to grant
Stock Awards to eligible persons who are not then subject to
Section 16 of the Exchange Act.
(iii) Delegation to Non-Board
Members . To the extent permitted by applicable law, the Board
may from time to time delegate to a committee of one or more
officers of the Company the authority to grant or amend Options to
Participants other than (a) senior executives of the Company
who are subject to Section 16 of the Exchange Act,
(b) Covered Employees, or (c) officers of the Company (or
members of the Board) to whom authority to grant or amend Options
has been delegated hereunder. Any delegation hereunder shall be
subject to the restrictions and limits that the Board specifies at
the time of such delegation, and the Board may at any time rescind
the authority so delegated or appoint a new delegatee. At all
times, the delegatee appointed under this Section 3(d) shall
serve in such capacity at the pleasure of the Board.
(d) 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.
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4.
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Shares
Subject to the Plan .
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(a) Share Reserve . Subject
to the provisions of Section 11 relating to adjustments upon
changes in Common Stock, the Common Stock that may be issued
pursuant to Stock Awards shall not exceed in the aggregate ten
million seven hundred seventy eight and two hundred twenty six
(10,778,226) shares (the “Share Reserve”), which
is comprised of 2,000,000 shares that were approved by the
Stockholders on May 21, 2009, 1,500,000 shares that were
approved by the Stockholders on May 15, 2007, 1,000,000 shares
that were approved by the Stockholders on May 27, 2004;
2,500,000 shares that were approved by the Stockholders on
June 19, 2002; and 3,778,226 shares that were in the Share
Reserve prior to June 19, 2002; provided, however, that such
aggregate number of shares of Common Stock available for issuance
under the Plan shall be reduced by 1.67 shares for each share of
Stock delivered in settlement of any Stock Purchase Award or Stock
Bonus Award.
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(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, or 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 issuance under the Plan.
(c) Source of Shares . The
shares of Common Stock subject to the Plan may be unissued shares
or reacquired shares, bought on the market or otherwise.
(d) Incentive Stock Option
Shares . Subject to the provisions of Section 11 relating
to adjustments upon changes in Common Stock, the aggregate number
of shares of Common Stock issued under the Plan pursuant to the
exercise of all Incentive Stock Options granted under the Plan
shall not exceed ten million (10,000,000) shares of Common
Stock.
(a) Eligibility for Specific
Stock Awards . Incentive Stock Options may be granted only to
Employees. Stock Awards other than Incentive Stock Options may be
granted to Employees, Directors and Consultants.
(b) Ten Percent Stockholders
. A Ten Percent Stockholder shall not be granted an Incentive Stock
Option unless the exercise price of such Incentive Stock Option is
at least one hundred ten percent (110%) of the Fair Market
Value of the Common Stock at the date of grant and the Incentive
Stock Option is not exercisable after the expiration of five
(5) years from the date of grant.
(c) Section 162(m)
Limitation . Subject to the provisions of Section 11
relating to adjustments upon changes in Common Stock, no Employee
shall be eligible to be granted Options covering more than one
million (1,000,000) shares of Common Stock during any calendar
year.
(d) Consultants .
(i) A Consultant shall not be
eligible for the grant of a Stock Award if, at the time of grant, a
Form S-8 Registration Statement under the Securities Act
(“Form S-8”) is not available to register either the
offer or the sale of the Company’s securities to such
Consultant because of the nature of the services that the
Consultant is providing to the Company, or because the Consultant
is not a natural person, or as otherwise provided by the rules
governing the use of Form S-8, unless the Company determines both
(i) that such grant (A) shall be registered in another
manner under the Securities Act (e.g., on a Form S-3 Registration
Statement) or (B) does not require registration under the
Securities Act in order to comply with the requirements of the
Securities Act, if applicable, and (ii) that such grant
complies with the securities laws of all other relevant
jurisdictions.
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(ii) Form S-8 generally is available
to consultants and advisors only if (i) they are natural
persons; (ii) they provide bona fide services to the issuer,
its parents, its majority-owned subsidiaries or majority-owned
subsidiaries of the issuer’s parent; and (iii) the
services are not in connection with the offer or sale of securities
in a capital-raising transaction, and do not directly or indirectly
promote or maintain a market for the issuer’s
securities.
Each Option shall be in such form
and shall contain such terms and conditions as the Board shall deem
appropriate. All Options shall be separately designated Incentive
Stock Options or Nonstatutory Stock Options at the time of grant,
and, if certificates are issued, a separate certificate or
certificates will be issued for shares of Common Stock purchased on
exercise of each type of Option. 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 . Subject to the
provisions of subsection 5(b) regarding Ten Percent Stockholders,
no Option shall be exercisable after the expiration of seven
(7) years.
(b) Exercise Price of an
Option . Subject to the provisions of subsection 5(b) regarding
Ten Percent Stockholders, the exercise price of each Option shall
be not less than one hundred percent (100%) of the Fair Market
Value of the Common 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) [Intentionally
Omitted.]
(d) Consideration . The
purchase price of Common Stock acquired pursuant to an Option shall
be paid, to the extent permitted by applicable statutes and
regulations, either (i) in cash at the time the Option is
exercised or (ii) at the discretion of the Board (1) by
delivery to the Company of other Common Stock (either by actual
delivery or attestation), (2) by a “net exercise”
of the Option (as further described below), (3) to the extent
permissible under Section 13(k) of the Exchange Act, according
to a deferred payment or other similar arrangement with the
Optionholder, (4) to the extent permissible under
Section 13(k) of the Exchange Act, pursuant to a program
developed under Regulation T as promulgated by the Federal Reserve
Board that, prior to the issuance of Common Stock, results in
either the receipt of cash (or check) by the Company or the receipt
of irrevocable instructions to pay the aggregate exercise price to
the Company from the sales proceeds, or (5) in any other form
of legal consideration that may be acceptable to the Board. Unless
otherwise specifically provided in the Option, the purchase price
of Common Stock acquired pursuant to an Option that is paid by
delivery to the Company of other Common Stock acquired, directly or
indirectly from the Company, shall be paid only by shares of the
Common Stock of the Company that have been held for more than six
(6) months (or such longer or shorter period of time required
to avoid a charge to the Company’s earnings for financial
accounting purposes). At any time that the Company is incorporated
in Delaware, payment of the Common Stock’s “par
value,” as defined in the Delaware General Corporation Law,
shall not be made by deferred payment.
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In the case of any deferred payment
arrangement, interest shall be compounded at least annually and
shall be charged at the minimum rate of interest necessary to avoid
the treatment as interest, under any applicable provisions of the
Code, of any amounts other than amounts stated to be interest under
the deferred payment arrangement.
In the case of a “net
exercise” of an Option, the Company will not require a
payment of the exercise price of the Option from the Optionholder
but will reduce the number of shares of Common Stock issued upon
the exercise by the largest number of whole shares that has a Fair
Market Value that does not exceed the aggregate exercise price.
With respect to any remaining balance of the aggregate exercise
price, the Company shall accept a cash payment from the
Optionholder. Shares of Common Stock will no longer be outstanding
under an Option (and will therefore not thereafter be exercisable)
following the exercise of such Option to the extent of
(i) shares used to pay the exercise price of an Option under a
“net exercise”, (ii) shares actually delivered to
the Optionholder as a result of such exercise and (iii) shares
withheld for purposes of tax withholding.
(e) Transferability of an
Incentive Stock Option . An Incentive Stock Option shall not be
transferable except by will or by the laws of descent and
distribution and shall be exercisable during the lifetime of the
Optionholder only by the Optionholder. Notwithstanding the
foregoing, the Optionholder may, by delivering written notice to
the Company, in a form satisfactory to the Company, designate a
third party who, in the event of the death of the Optionholder,
shall thereafter be entitled to exercise the Option.
(f) Transferability of a
Nonstatutory Stock Option . A Nonstatutory Stock Option shall
be transferable to the extent provided in the Option Agreement. If
the Option Agreement does not provide for transferability, then the
Nonstatutory Stock Option shall not be transferable except by will
or by the laws of descent and distribution and shall be exercisable
during the lifetime of the Optionholder only by the Optionholder.
Notwithstanding the foregoing, the Optionholder may, by delivering
written notice to the Company, in a form satisfactory to the
Company, designate a third party who, in the event of the death of
the Optionholder, shall thereafter be entitled to exercise the
Option. Notwithstanding the foregoing, in no event may any
Nonstatutory Stock Option be sold, pledged, assigned, hypothecated,
transferred, or disposed of for consideration.
(g) Vesting Generally . The
total number of shares of Common Stock subject to an Option may,
but need not, vest and therefore become exercisable in periodic
installments that may, but need not, be equal. The Option may be
subject to such other terms and conditions on the time or times
when it may be exercised (which may be based on performance or
other criteria) as the Board may deem appropriate. The vesting
provisions of individual Options may vary. The provisions of this
subsection 6(g) are subject to any Option provisions governing the
minimum number of shares of Common Stock as to which an Option may
be exercised.
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(h) Termination of Continuous
Service . In the event an Optionholder’s Continuous
Service terminates (other than upon the Optionholder’s death
or Disability), the Optionholder may exercise his or her Option (to
the extent that the Optionholder was entitled to exercise such
Option as of the date of termination) but only within such period
of time ending on the earlier of (i) the date three
(3) months following the termination of the
Optionholder’s Continuous Service (or such longer or shorter
period specified in the Option Agreement), or (ii) the
expiration of the term of the Option as set forth in the Option
Agreement. If, after termination, the Optionholder does not
exercise his or her Option within the time specified in the Option
Agreement, the Option shall terminate.
(i) Extension of Termination
Date . An Optionholder’s Option Agreement may also
provide that if the exercise of the Option following the
termination of the Optionholder’s Continuous Service (other
than upon the Optionholder’s death or Disability) would be
prohibited at any time solely because the issuance of shares of
Common Stock would violate the registration requirements under the
Securities Act, then the Option shall terminate on the earlier of
(i) the expiration of the term of the Option set forth in the
Option Agreement or (ii) the expiration of a period of three
(3) months after the termination of the Optionholder’s
Continuous Service during which the exercise of the Option would
not be in violation of such registration requirements.
(j) Disability of
Optionholder . In the event that an Optionholder’s
Continuous Service terminates as a result of the
Optionholder’s Disability, the Optionholder may exercise his
or her Option (to the extent that the Optionholder was entitled to
exercise such Option as of the date of termination), but only
within such period of time ending on the earlier of (i) the
date twelve (12) months following such termination (or such
longer or shorter period specified in the Option Agreement) or
(ii) the expiration of the term of the Option as set forth in
the Option Agreement. If, after termination, the Optionholder does
not exercise his or her Option within the time specified herein,
the Option shall terminate.
(k) Death of Optionholder .
In the event (i) an Optionholder’s Continuous Service
terminates as a result of the Optionholder’s death or
(ii) the Optionholder dies within the period (if any)
specified in the Option Agreement after the termination of the
Optionholder’s Continuous Service for a reason other than
death, then the Option may be exercised (to the extent the
Optionholder was entitled to exercise such Option as of the date of
death) by the Optionholder’s estate, by a person who acquired
the right to exercise the Option by bequest or inheritance or by a
person designated to exercise the Option upon the
Optionholder’s death pursuant to subsection 6(e) or 6(f), but
only within the period ending on the earlier of (1) the date
eighteen (18) months following the date of death (or such
longer or shorter period specified in the Option Agreement) or
(2) the expiration of the term of such Option as set forth in
the Option Agreement. If, after death, the Option is not exercised
within the time specified herein, the Option shall
terminate.
(l) Early Exercise . The
Option may, but need not, include a provision whereby the
Optionholder may elect at any time before the Optionholder’s
Continuous Service terminates to exercise the Option as to any part
or all of the shares of Common Stock subject to the Option prior to
the full vesting of the Option. Any unvested shares of Common Stock
so purchased may be subject to a repurchase option in favor of the
Company or to any other restriction the Board determines to be
appropriate. At the Board’s election, the repurchase right
may be at the lesser of: (i) the Fair Market Value on the
relevant date and (ii) the Optionholder’s original cost.
The
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Company will not exercise its repurchase option
until at least six (6) months (or such longer or shorter
period of time required to avoid a charge to earnings for financial
accounting purposes) have elapsed following exercise of the Option
unless the Board otherwise specifically provides in the
Option.
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7.
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Provisions of Stock Awards other than
Options .
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(a) Stock Bonus Awards. Each Stock
Bonus Award Agreement shall be in such form and shall contain such
terms and conditions as the Board shall deem appropriate. At the
Board’s election, shares of Common Stock may be (i) held
in book entry form subject to the Company’s instructions
until any restrictions relating to the Stock Bonus Award lapse; or
(ii) evidenced by a certificate, which certificate shall be
held in such form and manner as determined by the Board. The terms
and conditions of Stock Bonus Award Agreements may change from time
to time, and the terms and conditions of separate Stock Bonus Award
Agreements need not be identical, but each Stock Bonus Award
Agreement shall include (through incorporation of provisions hereof
by reference in the agreement or otherwise) the substance of each
of the following provisions:
(i) Consideration . A Stock
Bonus Award may be awarded in consideration for past services
actually rendered to the Company or an Affiliate.
(ii) Vesting . Shares of
Common Stock awarded under the Stock Bonus Award Agreement may be
subject to forfeiture to the Company in accordance with a vesting
schedule to be determined by the Board.
(iii) Termination of
Participant’s Continuous Service . In the event a
Participant’s Continuous Service terminates, the Company may
receive pursuant to a forfeiture condition, any or all of the
shares of Common Stock held by the Participant which have not
vested as of the date of termination of Continuous Service under
the terms of the Stock Bonus Award Agreement.
(iv) Transferability . Rights
to acquire shares of Common Stock under the Stock Bonus Award
Agreement shall be transferable by the Participant only upon such
terms and conditions as are set forth in the Stock Bonus Award
Agreement, as the Board shall determine in its sole discretion, so
long as Common Stock awarded under the Stock Bonus Award Agreement
remains subject to the terms of the Stock Bonus Award Agreement.
Notwithstanding the foregoing, in no event may a right to acquire
shares of Common Stock under a Stock Bonus Award be sold, pledged,
assigned, hypothecated, transferred, or disposed of for
consideration.
(b) Stock Purchase Awards .
Each Stock Purchase Award Agreement shall be in such form and shall
contain such terms and conditions as the Board shall deem
appropriate. At the Board’s election, shares of Common Stock
may be (i) held in book entry form subject to the
Company’s instructions until any restrictions relating to the
Stock Purchase Award lapse; or (ii) evidenced by a
certificate, which certificate shall be held in such form and
manner as determined by the Board. The terms and conditions of
Stock Purchase Award Agreements may change from time to time, and
the terms and conditions of separate Stock Purchase Award
Agreements need not be identical, provided, however, that each
Stock Purchase Award Agreement shall include
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(through incorporation of the provisions hereof
by reference in the agreement or otherwise) the substance of each
of the following provisions:
(i) Purchase Price . At the
time of the grant of a Stock Purchase Award, the Board will
determine the price to be paid by the Participant for each share
subject to the Stock Purchase Award. To the extent required by
applicable law, the price to be paid by the Participant for each
share of the Stock Purchase Award will not be less than the par
value of a share of Common Stock.
(ii) Consideration . At the
time of the grant of a Stock Purchase Award, the Board will
determine the consideration permissible for the payment of the
purchase price of the Stock Purchase Award. The purchase price of
Common Stock acquired pursuant to the Stock Purchase Award shall be
paid either: (i) in cash at the time of purchase, (ii) at
the discretion of the Board, according to a deferred payment or
other similar arrangement with the Participant (to the extent
permissible under Section 13(k) of the Exchange Act); or
(ii) in any other form of legal consideration that may be
acceptable to the Board and permissible under the Delaware General
Corporation Law; provided, however, that to the extent prohibited
by applicable law, payment of the Common Stock’s par value
shall not be made by deferred payment.
(iii) Vesting . Shares of
Common Stock acquired under a Stock Purchase Award may be subject
to a share repurchase right or option in favor of the Company in
accordance with a vesting schedule to be determined by the
Board.
(iv) Termination of
Participant’s Continuous Service . In the event that a
Participant’s Continuous Service terminates, the Company
shall have the right, but not the obligation, to repurchase or
otherwise reacquire, any or all of the shares of Common Stock held
by the Participant that have not vested as of the date of
termination under the terms of the Stock Purchase Award Agreement.
At the Board’s election, the repurchase right may be at the
least of: (i) the Fair Market Value on the relevant date or
(ii) the Participant’s original cost. The Company shall
not be required to exercise its repurchase option until at least
six (6) months (or such longer or shorter period of time
required to avoid a charge to earnings for financial accounting
purposes) have elapsed following the purchase of the restricted
stock unless otherwise determined by the Board or provided in the
Stock Purchase Award Agreement.
(v) Transferability . Rights
to purchase or receive shares of Common Stock granted under a Stock
Purchase Award shall be transferable by the Participant only upon
such terms and conditions as are set forth in the Stock Purchase
Award Agreement, as the Board shall determine in its sole
discretion, and so long as Common Stock awarded under the Stock
Purchase Award remains subject to the terms of the Stock Purchase
Award Agreement. Notwithstanding the foregoing, in no event may a
right to purchase or receive shares of Common Stock granted under a
Stock Purchase Award be sold, pledged, assigned, hypothecated,
transferred, or disposed of for consideration.
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8.
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Covenants
of the Company .
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(a) Availability of Shares .
During the terms of the Stock Awards, the Company shall keep
available at all times the number of shares of Common Stock
required to satisfy such Stock Awards.
(b) Securities Law Compliance
. The Company shall seek to obtain from each regulatory commission
or agency having jurisdiction over the Plan such authority as may
be required to grant Stock Awards and to issue and sell shares of
Common Stock upon exercise of the Stock Awards; provided, however,
that this undertaking shall not require the Company to register
under the Securities Act the Plan, any Stock Award or any Common
Stock issued or issuable pursuant to any such Stock Award. If,
after reasonable efforts, the Company is unable to obtain from any
such regulatory commission or agency the authority which counsel
for the Company deems necessary for the lawful issuance and sale of
Common Stock under the Plan, the Company shall be relieved from any
liability for failure to issue and sell Common Stock upon exercise
of such Stock Awards unless and until such authority is
obtained.
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9.
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Use of
Proceeds from Stock .
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Proceeds from the sale of Common
Stock pursuant to Stock Awards shall constitute general funds of
the Company.
(a) Acceleration of
Exercisability and Vesting . The Board shall have the power to
accelerate the time at which a Stock Award may first be exercised
or the time during which a Stock Award or any part thereof will
vest in accordance with the Plan, notwithstanding the provisions in
the Stock Award stating the time at which it may first be exercised
or the time during which it will vest.
(b) Stockholder Rights . No
Participant shall be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares of Common Stock
subject to such Stock Award unless and until such Participant has
satisfied all requirements for exercise of the Stock Award pursuant
to its terms.
(c) No Employment or other
Service Rights . Nothing in the Plan or any instrument executed
or Stock Award granted pursuant thereto shall confer upon any
Participant any right to continue to serve the Company or an
Affiliate in the capacity in effect at the time the Stock Award was
granted or shall affect the right of the Company or an Affiliate to
terminate (i) the employment of an Employee with or without
notice and with or without cause, (ii) the service of a
Consultant pursuant to the terms of such Consultant’s
agreement with the Company or an Affiliate or (iii) the
service of a Director pursuant to the Bylaws of the Company or an
Affiliate, and any applicable provisions of the corporate law of
the state in which the Company or the Affiliate is incorporated, as
the case may be.
(d) Incentive Stock Option
$100,000 Limitation . To the extent that the aggregate Fair
Market Value (determined at the time of grant) of Common Stock with
respect to which Incentive Stock Options are exercisable for the
first time by any Optionholder during any
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calendar year (under all plans of the Company
and its Affiliates) exceeds one hundred thousand dollars
($100,000), the Options or portions thereof which exceed such limit
(according to the order in which they were granted) shall be
treated as Nonstatutory Stock Options.
(e) Investment Assurances .
The Company may require a Participant, as a condition of exercising
or acquiring Common Stock under any Stock Award, (i) to give
written assurances satisfactory to the Company as to the
Participant’s knowledge and experience in financial and
business matters and/or to employ a purchaser representative
reasonably satisfactory to the Company who is knowledgeable and
experienced in financial and business matters and that he or she is
capable of evaluating, alone or together with the purchaser
representative, the merits and risks of exercising the Stock Award;
and (ii) to give written assurances satisfactory to the
Company stating that the Participant is acquiring Common Stock
subject to the Stock Award for the Participant’s own account
and not with any present intention of selling or otherwise
distributing the Common Stock. The foregoing requirements, and any
assurances given pursuant to such requirements, shall be
inoperative if (1) the issuance of the shares of Common Stock
upon the exercise or acquisition of Common Stock under the Stock
Award has been registered under a then currently effective
registration statement under the Securities Act or (2) as to
any particular requirement, a determination is made by counsel for
the Company that such requirement need not be met in the
circumstances under the then applicable securities laws. The
Company may, upon advice of counsel to the Company, place legends
on stock certificates issued under the Plan as such counsel deems
necessary or appropriate in order to comply with applicable
securities laws, including, but not limited to, legends restricting
the transfer of the Common Stock.
(f) Withholding Obligations .
To the extent provided by the terms of a Stock Award Agreement, the
Participant may satisfy any federal, state or local tax withholding
obligation relating to the exercise or acquisition of Common Stock
under a Stock Award by any of the following means (in addition to
the Company’s right to withhold from any compensation paid to
the Participant by the Company) or by a combination of such means:
(i) tendering a cash payment; (ii) authorizing the
Company to withhold shares of Common Stock from the shares of
Common Stock otherwise issuable to the Participant as a result of
the exercise or acquisition of Common Stock under the Stock Award,
provided, however, that no shares of Common Stock are withheld with
a value exceeding the minimum amount of tax required to be withheld
by law; or (iii) delivering to the Company owned and
unencumbered shares of Common Stock of the Company that have been
held for more than six (6) months (or such longer or shorter
period of time required to avoid a charge to the Company’s
earnings for financial accounting purposes).
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11.
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Adjustments upon Changes in Stock
.
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(a) Capitalization
Adjustments . If any change is made in the Common Stock subject
to the Plan, or subject to any Stock Award, without the receipt of
consideration by the Company (through merger, consolidation,
reorganization, recapitalization, reincorporation, stock dividend,
dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in
corporate structure or other transaction not involving the receipt
of consideration by the Company), the Plan will be appropriately
adjusted in the class(es) and maximum number of securities subject
to the Plan pursuant to subsection 4(a), the maximum aggregate
number of securities that may be issued pursuant to the exercise of
Incentive Stock
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Options under subsection 4(d), the maximum
number of securities subject to award to any person pursuant to
subsection 5(c), and the outstanding Stock Awards will be
appropriately adjusted in the class(es) and number of securities
and price per share of Common Stock subject to such outstanding
Stock Awards. The Board shall make such adjustments, and its
determination shall be
