Exhibit 10.1
SERENA SOFTWARE,
INC.
AMENDED AND
RESTATED
2006 STOCK INCENTIVE
PLAN
1. Purpose of the
Plan.
The purpose of the Plan is to aid
the Company and its Affiliates in recruiting and retaining service
providers of outstanding ability and to motivate such persons to
exert their best efforts on behalf of the Company and its
Affiliates by providing incentives through the granting of Stock
Awards. The Company expects that it will benefit from the added
interest that such persons will have in the welfare of the Company
as a result of their proprietary interest in the
Company.
2. Definitions.
(a) Affiliate . Affiliate means, (i) with respect to the
Company, any entity directly, or indirectly through one or more
intermediaries, controlling or controlled by (but not under common
control with) the Company, and (ii) with respect to SLP any
entity or “group” (as such terms are defined in
Sections 13(d)(3) or 14(d)(2) of the Exchange Act) directly, or
indirectly through one or more intermediaries, controlling or
controlled by or under common control with SLP, respectively, but
excluding the Company and the Company’s Subsidiaries and
other Affiliates that the Company controls. Solely with respect to
the granting of any Incentive Stock Options, Affiliate of the
Company 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) Beneficial Owner . The term “beneficial owner” shall
have the meaning given to such term in Rule 13d-3 and Rule 13d-5
under the Exchange Act (or any successor rules thereto).
(c) Board . Board means the Board of Directors of the
Company.
(d) Cause . Cause means any of the following:
(i) a Participant’s willful and continued
failure to perform his or her material duties with respect to the
Company or its Affiliates, which continues beyond 10 business days
after a written demand for substantial performance specifying such
failure(s) is received by the Participant from the Company (the
“Cure Period”); or
(ii) the willful or intentional engaging by a
Participant in conduct that causes material and demonstrable
injury, monetarily or otherwise, to the Company or SLP (taking into
account their respective Affiliates); or
(iii) a Participant’s conviction for, or a plea
of nolo contendre to, the commission of a felony; or
(iv) any material breach by a Participant of his or
her employment or service agreement with the Company or any of its
Affiliates or of any applicable policy of the Company or any of its
Affiliates, which breach is not cured pursuant to the terms of such
agreement or policy and which breach causes a demonstrable injury,
monetarily or otherwise, to the Company, SLP or their respective
Affiliates.
Notwithstanding the foregoing or any other
provision of this Plan, the definition of Cause (or any analogous
term) in an individual written agreement between the Company or any
Affiliate and the Participant shall supersede the foregoing
definition with respect to Stock Awards subject to such agreement
(it being understood, however, that if no definition of Cause or
any analogous term is set forth in such an individual written
agreement, the foregoing definition shall apply).
(e) Change in Control . Change in Control means the occurrence, in a
single transaction or in a series of related transactions, of any
one or more of the following events:
(i) the sale, exchange, lease or other disposition,
in one or a series of related transactions, of all or substantially
all, of the consolidated assets of the Company to any
“person” or “group” (as such terms are
defined in Sections 13(d)(3) or 14(d)(2) of the Exchange Act) other
than one or more of the Permitted Holders or any controlled
Affiliates of the Permitted Holders; or
(ii) any person or group, other than one or more of
the Permitted Holders or any controlled Affiliate of the Permitted
Holders, is or becomes the Beneficial Owner, directly or
indirectly, of more than 50% of the total voting power of the
voting stock of the Company (or any entity which controls the
Company or which is a successor to all or substantially all of the
assets of the Company), including by way of merger, consolidation,
tender or exchange offer or otherwise; or
(iii) either a merger or consolidation of the Company
into another Person which is not one or more of the Permitted
Holders or a controlled Affiliate of the Permitted Holders if the
stockholders of the Common Stock of the Company immediately prior
to such transaction do not Own a majority of the outstanding common
stock of the surviving company or its parent immediately after the
transaction in substantially the same proportions relative to each
other as immediately prior to such transaction;
if and only if such event listed in
(i) through (iii) above results in the inability of SLP
and its Affiliates to elect a majority of the Board of the Company
or the resulting successor or controlling entity.
Notwithstanding the foregoing or any
other provision of this Plan, the definition of Change in Control
(or any analogous term) in an individual written agreement between
the Company or any Affiliate and the Participant shall supersede
the foregoing definition with respect to Stock Awards subject to
such agreement (it being understood, however, that if no definition
of Change in Control or any analogous term is set forth in such an
individual written agreement, the foregoing definition shall
apply). !
(f) Closing . Closing means the date on which Spyglass
Merger Corp., a Delaware corporation, merged with and into the
Company pursuant to that certain Agreement and Plan of Merger by
and between Spyglass Merger Corp. and the Company, dated as of
November 11, 2005, as such agreement may be amended from time
to time.
(g) Code .
Code means the Internal Revenue Code of 1986, as amended from time
to time.
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(h) Committee . Committee means a committee of one or more
members of the Board appointed by the Board in accordance with
Section 3(c).
(i) Common Stock . Common Stock means the common stock, par value
$0.01 per share, of the Company.
(j) Company . Company means Serena Software, Inc. a Delaware
corporation.
(k) Consultant . Consultant means any person engaged by the
Company, a Subsidiary, or an Affiliate to render consulting or
advisory services and who is compensated for such services. For the
purposes of determining eligibility to participate in the Plan, the
term Consultant shall be clarified pursuant to the provisions of
Section 5(d).
(l) Continuous Service . Continuous Service means that the
Participant’s service with the Company, a Subsidiary or an
Affiliate in his or her capacity as an Employee, Director, or
Consultant, as applicable, is not interrupted or terminated. 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 only to such extent as may be provided in the
Company’s leave of absence policy or in the written terms of
the Participant’s leave of absence.
(m) Covered Employee . 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.
(n) Director . Director means a member of the Board of
Directors of the Company.
(o) Disability . Disability means (i) before the Listing
Date, the inability of a person, in the opinion of a qualified
physician acceptable to the Company, to perform the major duties of
that person’s position with the Company or an Affiliate of
the Company because of the sickness or injury of the person and
(ii) after the Listing Date, the permanent and total
disability of a person within the meaning of Section 22(e)(3)
of the Code.
(p) Effective Date . Effective Date means the date the Board
approves the Plan.
(q) Employee . Employee means any person employed by the
Company or an Affiliate. 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.
(r) Entity . Entity means a corporation, partnership,
limited liability company or other entity.
(s) Exchange Act . Exchange Act means the Securities Exchange Act
of 1934 and the rules and regulations promulgated thereunder, as
each may be amended from time to time.
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(t) Fair Market Value . Fair Market Value means, as of any date, the
value of a share of Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or traded on the Nasdaq National Market or the
Nasdaq SmallCap 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 the Common Stock) on the last market trading day prior
to the day of determination, as reported in The Wall Street
Journal or such other source as the Board deems
reliable.
(ii) In the absence of such markets for the Common
Stock, the Fair Market Value shall be determined in good faith by
the Board.
(iii) Prior to the Listing Date, the value of the
Common Stock shall be determined in a manner consistent with
Section 260.140.50 of Title 10 of the California Code of
Regulations or any successor thereto.
(iv) Notwithstanding the foregoing, the value of the
Common Stock shall at all times be determined in a manner
consistent with the regulations pursuant to Section 409A of
the Code, as they may be amended from time to time.
For the avoidance of doubt, it is
understood that the Fair Market Value of the Common Stock
immediately after the Closing shall be $5.00 per share.
(u) Good Reason . Good Reason means:
(i) any reduction in the Participant’s base
salary or the Participant’s annual incentive compensation
opportunity (other than a general reduction, not to exceed 10%, in
base salary or annual incentive compensation opportunities that
affects all members of senior management proportionately);
or
(ii) any of (A) a substantial reduction in the
Participant’s duties, responsibilities or title or
(B) if the Participant was employed by the Company or an
Affiliate immediately prior to the Closing, the assignment of any
duties or responsibilities at any time following the Closing that
are materially inconsistent with Participant’s position or
positions immediately prior to the Closing ( provided ,
however , that with respect to clause (A) or
(B) above, neither of (I) a change in Participant’s
title or reporting relationships, nor (II) an adjustment in the
nature of Participant’s duties and responsibilities that does
not reduce Participant’s overall management responsibility
shall be considered Good Reason), in either case during the 6-month
period immediately following a merger, consolidation, tender offer,
or other purchase or sale of a business that involves the Company;
or
(iii) a transfer of the Participant’s primary
workplace by more than thirty-five (35) miles from the
Participant’s then existing primary workplace; or
(iv) failure of any successor to the business of the
Company to assume the Company’s obligations under any
applicable employment agreement.
Notwithstanding the foregoing,
(i) the Participant’s written agreement to any of the
above shall cause the event not to constitute “Good
Reason” and (ii) the definition of Good Reason (or any
analogous term) in an individual written agreement between the
Company or any Affiliate and the Participant shall supersede the
foregoing definition with respect to Stock Awards subject to such
agreement (it being understood, however, that if no definition of
Good Reason or any analogous term is set forth in such an
individual written agreement, the foregoing definition shall
apply).
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(v) Incentive Stock Option . Incentive Stock Option means an option to
acquire Common Stock intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder, as amended from time to
time.
(w) Listing Date . Listing Date means the first date upon which
any security of the Company is listed (or approved for listing)
upon notice of issuance on any securities exchange or designated
(or approved for designation) upon notice of issuance as a national
market security on an interdealer quotation system if such
securities exchange or interdealer quotation system has been
certified in accordance with the provisions of
Section 25100(o) of the California Corporate Securities Law of
1968.
(x) Management Stockholders Agreement
. Management Stockholders Agreement
means the management stockholders agreement, dated as of
March 7, 2006, entered into among the Company, SLP and various
other holders of equity interests in the Company, as such agreement
may be amended from time to time.
(y) Non-Employee Director . 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 under the federal securities laws
(“Regulation 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.
(z) Nonstatutory Stock Option
. Nonstatutory Stock Option means an
option to acquire Common Stock not intended to qualify as an
Incentive Stock Option.
(aa) Officer . Officer means (i) before the Listing
Date, any person designated by the Company as an officer and
(ii) on and after the Listing Date, 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.
(bb) Option . Option means an Incentive Stock Option or
Nonstatutory Stock Option granted pursuant to the Plan.
(cc) Option Agreement . 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.
(dd) Optionholder . 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.
(ee) Outside Director . 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
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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.
(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. For
the purposes of determining the limitations applicable to Incentive
Stock Options, this term shall include (i) for an individual
for whom such limitation is being determined, such individual shall
be considered as owning the stock owned, directly or indirectly, by
or for his brothers and sisters (whether by the whole or half
blood), spouse, ancestors and lineal descendants; and
(ii) with respect to stock owned, directly or indirectly, by
or for a corporation, partnership, estate or trust, shall be
considered as being owned proportionately by or for its
shareholders, partners or beneficiaries.
(gg) Participant . 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.
(hh) Performance-Based Award . Performance-Based Award means a Stock Award
granted pursuant to the provisions of Section 7(d)
hereof.
(ii) Permitted Holder . Permitted Holder means, as of the date of
determination, SLP or any investment fund that is an Affiliate of
SLP.
(jj) Permitted Transferee . Permitted Transferee means any person to whom
a Stock Award or share of Common Stock is transferred pursuant to
the provisions of Sections 12(a) and/or 12(c) of this
Plan.
(kk) Person . The term “person” shall have the
meaning ascribed to such term by 13(d) or 14(d) of the Securities
Act (or any successor section thereto).
(ll) Plan .
Plan means this Serena Software, Inc. Amended and Restated 2006
Stock Incentive Plan.
(mm) Restricted Stock Purchase Award
. Restricted Stock Purchase Award
means the right to acquire shares of the Company’s Common
Stock upon the payment of the agreed-upon monetary consideration,
if any, subject to the provisions of Subsection 7(a) of the
Plan.
(nn) Restricted Stock Unit . Restricted Stock Unit means the right to
receive one (1) share of the Company’s Common Stock at
the time the Restricted Stock Unit vests, subject to the provisions
of Subsection 7(b) of the Plan.
(oo) Rule 16b-3 . 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.
(pp) Securities Act . Securities Act means the Securities Act of
1933 and the rules and regulations promulgated thereunder, as each
may be amended from time to time.
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(qq) SLP .
SLP means Silver Lake Partners II, L.P., a Delaware limited
partnership.
(rr) Stock Appreciation Right . Stock Appreciation Right means a stock
appreciation right granted pursuant to and subject to the provision
of Subsection 7(c) of the Plan.
(ss) Stock Award . Stock Award means any right granted under the
Plan, including, but not limited to: (i) Options (including
Incentive Stock Options and Nonstatutory Stock Options),
(ii) Restricted Stock Purchase Awards, (iii) Restricted
Stock Units, and (iv) Stock Appreciation Rights.
(tt) Stock Award Agreement . 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.
Each Stock Award Agreement shall be subject to the terms and
conditions of the Plan.
(uu) Subsidiary . 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 entity 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%).
(vv) Ten Percent Stockholder . 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.
3. Administration.
(a) Administration by Board. The Board shall administer the Plan unless and
until the Board delegates administration to a Committee, as
provided in Section 3(d).
(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; 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) To amend the Plan or a Stock Award as provided
in Sections 15.
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(iv) To terminate or suspend the Plan as provided in
Section 16.
(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 that are not in conflict
with the provisions of the Plan.
(c) International Stock Awards
. With respect to Participants who
reside or work outside the United States of America and who are not
(and are not expected to be) Covered Employees, the Board may, in
its sole discretion, amend the terms of the Plan and/or Stock
Awards with respect to such Participants in order to conform such
terms with the requirements of local law and/or to make such
changes as are necessary or beneficial to the Company, its
Affiliates and/or the Participants.
(d) 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
some or all of the administration of the Plan. The Board or the
Committee may delegate to one or more Officers of the Company the
authority to grant Stock Awards under this Plan to Participants who
are not Officers in accordance with the requirements of the
Delaware General Corporation Law and/or other applicable
law.
(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
Award 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. The Board or the Committee may
delegate to one or more Officers of the Company the authority to
grant Stock Awards under this Plan to Participants who are not
Officers in accordance with the requirements of the Delaware
General Corporation Law and/or other applicable law.
(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.
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4. Shares Subject to the Plan.
(a) Shares Reserved for Issuance Under the
Plan . 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 thirteen million
five hundred fifteen thousand five hundred thirty-six
(13,515,536) shares of Common Stock, reduced by the number of
shares of Common Stock either (i) issued or (ii) subject
to the terms of a Stock Award granted under an international stock
incentive plan adopted by the Company, if any. To the extent that a
distribution pursuant to a Stock Award is made in cash, the share
reserve shall be reduced by the number of shares of Common Stock
bearing a value equal to the amount of the cash distribution as of
the time that such amount was determined. The maximum number of
shares of Common Stock that may be issued pursuant to Incentive
Stock Options shall be thirteen million five hundred fifteen
thousand five hundred thirty-six (13,515,536) shares of Common
Stock.
(b) Reversion of Shares to the Share
Reserve . If any Stock
Award (or stock award granted under an international stock
incentive plan, if any, adopted by the Company covered under
Subsection 4(a) above) shall for any reason (i) expire, be
cancelled or otherwise terminate, in whole or in part, without
having been exercised or redeemed in full, (ii) be reacquired
by the Company prior to vesting, or (iii) be repurchased by
the Company prior to vesting, the shares of Common Stock not
acquired under such Stock Award shall revert to and again become
available for issuance under the Plan; provided, however, that such
shares of Common Stock shall not be available for issuance pursuant
to the exercise of Incentive Stock Options.
(c) Source of Shares . The shares of Common Stock subject to the Plan
may be unissued shares or reacquired shares.
(d) Share Reserve Limitation . Prior to the Listing Date and to the extent
then required by Section 260.140.45 of Title 10 of the
California Code of Regulations or any successor thereto
(“Section 260.140.45”), the total number of shares of
Common Stock issuable upon exercise of all outstanding Options and
the total number of shares of Common Stock provided for under any
stock bonus or similar or other plan or award of the Company shall
not exceed thirty percent (30%) (or such higher percentage
limitation as may be approved by the stockholders of the Company
pursuant to Section 260.140.45) of the then outstanding shares
of Common Stock of the Company as calculated in accordance with the
conditions and exclusions of Section 260.140.45.
5. Eligibility.
(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
subject, however, to the limitations in Sections 5(c) and
(d) hereof.
(b) Ten Percent Stockholders .
(i) A Ten Percent Stockholder shall not be granted
an Incentive Stock Option unless the exercise price of such 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 Option is
not exercisable after the expiration of five (5) years from
the date of grant.
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(ii) Prior to the Listing Date, a Ten Percent
Stockholder shall not be granted a Nonstatutory Stock Option unless
the exercise price of such Option is at least (i) one hundred
ten percent (110%) of the Fair Market Value of the Common
Stock at the date of grant or (ii) such lower percentage of
the Fair Market Value of the Common Stock at the date of grant as
is required or permitted by Section 260.140.41 of Title 10 of
the California Code of Regulations or any successor thereto at the
time of the grant of the Option.
(iii) Prior to the Listing Date, a Ten Percent
Stockholder shall not be granted any other form of Stock Award
unless the grant complies with the requirements of
Section 260.140.42 of Title 10 of the California Code of
Regulations or any successor thereto at the time of the grant of
the Stock Award.
(c) Section 162(m) Limitation
. Subject to the provisions of
Section 11(a) relating to adjustments upon changes in the
shares of Common Stock, no Employee shall be eligible to be granted
Options and other Stock Awards covering more than ten million
(10,000,000) shares of Common Stock during any calendar year.
This Section 5(c) shall not apply prior to the Listing Date
and, following the Listing Date, this Section 5(c) shall not
apply until (i) the earliest of: (1) the first material
modification of the Plan (including any increase in the number of
shares of Common Stock reserved for issuance under the Plan in
accordance with Section 4); (2) the issuance of all of
the shares of Common Stock reserved for issuance under the Plan;
(3) the expiration of the Plan; or (4) the first meeting
of stockholders at which Directors are to be elected that occurs
after the close of the third calendar year following the calendar
year in which occurred the first registration of an equity security
under Section 12 of the Exchange Act; or (ii) such other
date required by Section 162(m) of the Code and the rules and
regulations promulgated thereunder.
(d) Consultants .
(i) Prior to the Listing Date, a Consultant shall
not be eligible for the grant of a Stock Award if, at the time of
grant, either the offer or the sale of the Company’s
securities to such Consultant is not exempt under Rule 701 of the
Securities Act (“Rule 701”) unless the Company
determines that such grant need not comply with the requirements of
Rule 701 and will satisfy another exemption under the Securities
Act, as well as comply with the securities laws of all other
relevant jurisdictions.
(ii) From and after the Listing Date, 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 (1) 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
(2) that such grant complies with the securities laws of all
other relevant jurisdictions.
6. Option
Provisions.
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
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Options or Nonstatutory Stock Options at the
time of grant, and, if certificates are issued, a separate
certificate or certificates shall 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
Section 5(
