Amended as of July 13,
2009
1.
Purposes of the Plan . The purposes of this 2002 Stock Plan
are:
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to
attract and retain the best available personnel for positions of
substantial responsibility,
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to
provide additional incentive to Employees, Directors and
Consultants, and
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to
promote the success of the Company’s business.
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Options
granted under the Plan may be Incentive Stock Options or
Nonstatutory Stock Options, as determined by the Administrator at
the time of grant.
2.
Definitions . As used herein, the following definitions
shall apply:
(a)
“ Administrator ” means the Board or any of its
Committees as shall be administering the Plan, in accordance with
Section 4 of the Plan.
(b)
“ Applicable Laws ” means the requirements
relating to the administration of stock option plans under U. S.
state corporate laws, U.S. federal and state securities laws, the
Code, any stock exchange or quotation system on which the Common
Stock is listed or quoted and the applicable laws of any foreign
country or jurisdiction where Options are, or will be, granted
under the Plan.
(c)
“ Board ” means the Board of Directors of the
Company.
(d)
“ Change in Control ” means the occurrence of
any of the following events:
(i) Any
“person” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) becomes the “beneficial
owner” (as defined in Rule 13d-3 of the Exchange Act),
directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total voting power represented
by the Company’s then outstanding voting securities;
or
(ii) A
change in the composition of the Board occurring within a two-year
period, as a result of which fewer than a majority of the directors
are Incumbent Directors. “Incumbent Directors” will
mean directors who either (A) are directors of the Company as
of the date hereof, or (B) are elected, or nominated for
election, to the Board with the affirmative votes of at least a
majority of the Incumbent Directors at the time of such election or
nomination (but will not include an individual whose election or
nomination is in connection with an actual or threatened proxy
contest relating to the election of directors to the Company);
or
(iii) The
consummation of the sale or disposition by the Company of all or
substantially all of the Company’s assets; or
(iv) The
consummation of a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity or its parent) at least fifty percent (50%)
of the total voting power represented by the
voting
securities of the Company or such surviving entity or its parent
outstanding immediately after such merger or
consolidation.
(e)
“ Code ” means the Internal Revenue Code of
1986, as amended.
(f)
“ Committee ” means a committee of Directors
appointed by the Board in accordance with Section 4 of the
Plan.
(g)
“ Common Stock ” means the common stock of the
Company.
(h)
“ Company ” means Solectron Corporation, a
Delaware corporation.
(i)
“ Consultant ” means any natural person,
including an advisor, engaged by the Company or a Parent or
Subsidiary to render services to such entity.
(j)
“ Director ” means a member of the
Board.
(k)
“ Disability ” means total and permanent
disability as defined in Section 22(e)(3) of the
Code.
(l)
“ Employee ” means any person, including
Officers and Directors, employed by the Company or any Parent or
Subsidiary of the Company. A Service Provider shall not cease to be
an Employee in the case of (i) any leave of absence approved
by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any
successor. For purposes of Incentive Stock Options, no such leave
may exceed ninety days, unless reemployment upon expiration of such
leave is guaranteed by statute or contract. If reemployment upon
expiration of a leave of absence approved by the Company is not so
guaranteed, then three (3) months following the 91
st day of such leave, any Incentive Stock Option
held by the Optionee shall cease to be treated as an Incentive
Stock Option and shall be treated for tax purposes as a
Nonstatutory Stock Option. Neither service as a Director nor
payment of a director’s fee by the Company shall be
sufficient to constitute “employment” by the
Company.
(m)
“ Exchange Act ” means the Securities Exchange
Act of 1934, as amended.
(n)
“ Fair Market Value ” means, as of any date, the
value of Common Stock determined as follows:
(i) If
the Common Stock is listed on any established stock exchange or a
national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock
Market, its Fair Market Value shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as
quoted on such exchange or system on the day of determination, as
reported in The Wall Street Journal or such other source as
the Administrator deems reliable;
(ii) If
the Common Stock is regularly quoted by a recognized securities
dealer but selling prices are not reported, the Fair Market Value
of a Share of Common Stock shall be the mean between the high bid
and low asked prices for the Common Stock on the day of
determination, as reported in The Wall Street Journal or
such other source as the Administrator deems reliable;
(iii) In
the absence of an established market for the Common Stock, the Fair
Market Value shall be determined in good faith by the
Administrator.
(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)
“ Inside Director ” means a Director who is an
Employee.
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(q)
“ Nonstatutory Stock Option ” means an Option
not intended to qualify as an Incentive Stock Option.
(r)
“ Notice of Grant ” means a written or
electronic notice evidencing certain terms and conditions of an
individual Option grant. The Notice of Grant is part of the Option
Agreement.
(s)
“ 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.
(t)
“ Option ” means a stock option granted pursuant
to the Plan.
(u)
“ Option Agreement ” means an agreement between
the Company and an Optionee evidencing the terms and conditions of
an individual Option grant. The Option Agreement is subject to the
terms and conditions of the Plan.
(v)
“ Optioned Stock ” means the Common Stock
subject to an Option.
(w)
“ Optionee ” means the holder of an outstanding
Option granted under the Plan.
(x)
“ Outside Director ” means a Director who is not
an Employee.
(y)
“ Parent ” means a “parent
corporation,” whether now or hereafter existing, as defined
in Section 424(e) of the Code.
(z)
“ Plan ” means this 2002 Stock Plan, as amended
and restated.
(aa)
“ Rule 16b-3 ” means Rule 16b-3 of the
Exchange Act or any successor to Rule 16b-3, as in effect when
discretion is being exercised with respect to the Plan.
(bb)
“ Section 16(b) “ means Section 16(b) of
the Exchange Act.
(cc)
“ Service Provider ” means an Employee, Director
or Consultant.
(dd)
“ Share ” means a share of the Common Stock, as
adjusted in accordance with Section 14 of the Plan.
(ee)
“ Subsidiary ” means a “subsidiary
corporation”, whether now or hereafter existing, as defined
in Section 424(f) of the Code.
3. Stock
Subject to the Plan . Subject to the provisions of
Section 13 of the Plan, the maximum aggregate number of Shares
that may be optioned and sold under the Plan is 35,000,000 Shares
plus (a) any Shares which have been reserved but not issued
under the Company’s 1992 Stock Option Plan (the “1992
Plan”) as of the date of stockholder approval of this Plan
and (b) any Shares returned to the 1992 Plan as a result of
termination of options or repurchase of Shares issued under the
1992 Plan. The Shares may be authorized, but unissued, or
reacquired Common Stock.
If
an Option expires or becomes unexercisable without having been
exercised in full, the unpurchased Shares which were subject
thereto shall become available for future grant or sale under the
Plan (unless the Plan has terminated); provided , however,
that Shares that have actually been issued under the Plan shall not
be returned to the Plan and shall not become available for future
distribution under the Plan, except that if Shares of restricted
stock are repurchased by the Company at their original purchase
price, such Shares shall become available for future grant under
the Plan.
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4.
Administration of the Plan .
(i)
Multiple Administrative Bodies . Different Committees with
respect to different groups of Service Providers may administer the
Plan.
(ii)
Section 162(m) . To the extent that the Administrator
determines it to be desirable to qualify Options granted hereunder
as “performance-based compensation” within the meaning
of Section 162(m) of the Code, the Plan shall be administered by a
Committee of two or more “outside directors” within the
meaning of Section 162(m) of the Code.
(iii)
Rule 16b-3 . To the extent desirable to qualify
transactions hereunder as exempt under Rule 16b-3, the
transactions contemplated hereunder shall be structured to satisfy
the requirements for exemption under Rule 16b-3.
(iv)
Other Administration . Other than as provided above, the
Plan shall be administered by (A) the Board or (B) a
Committee, which committee shall be constituted to satisfy
Applicable Laws.
(b)
Powers of the Administrator . Subject to the provisions of
the Plan, and in the case of a Committee, subject to the specific
duties delegated by the Board to such Committee, the Administrator
shall have the authority, in its discretion:
(i) to
determine the Fair Market Value;
(ii) to
select the Service Providers to whom Options may be granted
hereunder;
(iii) to
determine the number of shares of Common Stock to be covered by
each Option granted hereunder;
(iv) to
approve forms of agreement for use under the Plan;
(v) to
determine the terms and conditions, not inconsistent with the terms
of the Plan, of any Option granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the
time or times when Options may be exercised (which may be based on
performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation
regarding any Option or the Shares relating thereto, based in each
case on such factors as the Administrator, in its sole discretion,
shall determine;
(vi) to
construe and interpret the terms of the Plan and awards granted
pursuant to the Plan;
(vii) to
establish, amend and rescind rules and regulations relating to the
Plan, including rules and regulations relating to sub-plans
established for the purpose of satisfying applicable foreign
laws;
(viii) to
modify or amend each Option (subject to Section 15(c) of the Plan),
including the discretionary authority to extend the
post-termination exercisability period of Options longer than is
otherwise provided for in the Plan;
(ix) to
allow Optionees to satisfy withholding tax obligations by electing
to have the Company withhold from the Shares to be issued upon
exercise of an Option that number of Shares having a Fair Market
Value equal to the minimum amount required to be withheld. The Fair
Market Value of the Shares to be withheld shall be determined on
the date that the amount of tax to be withheld is to be determined.
All elections by an Optionee to have Shares withheld for this
purpose shall be made in such form and under such conditions as the
Administrator may deem necessary or advisable;
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(x) to
authorize any person to execute on behalf of the Company any
instrument required to effect the grant of an Option previously
granted by the Administrator;
(xi) to
correct any defect, supply any omission, or reconcile any
inconsistency in the Plan, or in any Option Agreement, in a manner
and to the extent it shall deem necessary, all of which
determinations and interpretations made by the Administrator shall
be conclusive and binding on all Optionees, any other holders of
Options and on their legal representatives and beneficiaries;
and
(xii) except
to the extent prohibited by, or impermissible in order to obtain
treatment desired by the Administrator under, applicable law or
rule, to allocate or delegate all or any portion of its powers and
responsibilities to any one or more of its members or to any
person(s) selected by it, subject to revocation or modification by
the Administrator of such allocation or delegation.
(xiii) to
make all other determinations deemed necessary or advisable for
administering the Plan.
(c)
Effect of Administrator’s Decision . The
Administrator’s decisions, determinations and interpretations
shall be final and binding on all Optionees and any other holders
of Options.
5.
Eligibility . Nonstatutory Stock Options may be granted to
Service Providers. Incentive Stock Options may be granted only to
Employees.
(a) Each
Option shall be designated in the Option Agreement as either an
Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate
Fair Market Value of the Shares with respect to which Incentive
Stock Options are exercisable for the first time by the Optionee
during any calendar year (under all plans of the Company and any
Parent or Subsidiary) exceeds $100,000, such Options shall be
treated as Nonstatutory Stock Options. For purposes of this
Section 6(a), Incentive Stock Options shall be taken into
account in the order in which they were granted. The Fair Market
Value of the Shares shall be determined as of the time the Option
with respect to such Shares is granted.
(b) Neither
the Plan nor any Option shall confer upon an Optionee any right
with respect to continuing the Optionee’s relationship as a
Service Provider with the Company, nor shall they interfere in any
way with the Optionee’s right or the Company’s right to
terminate such relationship at any time, with or without
cause.
(c) The
following limitation shall apply to grants of Options:
(i) No
Service Provider shall be granted, in any fiscal year of the
Company, Options to purchase more than 750,000 Shares.
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