Exhibit 10.1
OPENWAVE SYSTEMS
INC.
AMENDED AND
RESTATED
1999 DIRECTORS’ EQUITY
COMPENSATION PLAN
as Amended and Restated effective
October 20, 2008
Termination Date:
November 30, 2014
1. Purposes of the Plan
. The purposes of this Openwave Systems Inc. Amended and
Restated 1999 Directors’ Equity Compensation Plan are to
attract and retain the best available personnel for service as
Directors of the Company, to provide additional incentive to the
Outside Directors of the Company to serve as Directors, and to
encourage their continued service on the Board.
All options granted hereunder shall
be nonstatutory stock options.
2. Definitions . As
used herein, the following definitions shall apply:
(a) “Annual
Award” means yearly granting of both the Annual
Option Award and the Annual Restricted Stock Award.
(b) “Annual Meeting of
the Stockholders” means the Company’s annual
meeting of its stockholders.
(c) “Annual Option
Award” means the annual grant of an Option to
purchase a certain number of shares granted by the Board to an
Outside Director.
(d) “Annual Restricted
Stock Award” means the annual Restricted Stock Bonus
of a certain number of shares granted by the Board to an Outside
Director.
(e)
“Award” means an Option, Stock
Appreciation Right, Restricted Stock Bonus or Restricted Stock Unit
granted under the Plan.
(f) “Award
Recipient” means an Outside Director who receives an
Award.
(g) “Base
Price” means the Fair Market Value of one Share on
the date that a Stock Appreciation Right is granted.
(h)
“Board” means the Board of Directors of
the Company.
(i) “Change of
Control” means the occurrence of any of the following
events:
(i) The sale, exchange, lease or
other disposition of all or substantially all of the assets of the
Company to a person or group of related persons (as such terms are
defined or described in Sections 3(a)(9) and 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) that will continue the business of the Company in the
future;
(ii) A merger or consolidation
involving the Company in which the voting securities of the Company
owned by the stockholders of the Company immediately prior to such
merger or consolidation do not represent, after conversion if
applicable, more than fifty percent (50%) of the total voting
power of the surviving controlling entity outstanding immediately
after such merger or consolidation; provided that any person who
(1) was a beneficial owner (within the meaning of
Rules 13d-3 and 13d-5 promulgated under the Exchange Act) of
the voting securities of the Company immediately prior to such
merger or consolidation, and (2) is a beneficial owner of more
than 20% of the securities of the Company immediately after such
merger or consolidation, shall be excluded from the list of
“stockholders of the Company immediately prior to such merger
or consolidation” for purposes of the preceding calculation);
or
(iii) The direct or indirect
acquisition of beneficial ownership of at least fifty percent
(50%) of the voting securities of the Company by a person or
group of related persons (as such terms are defined or described in
Sections 3(a)(9) and 13(d)(3) of the Exchange Act); provided, that
“person or group of related persons” shall not include
the Company, a subsidiary of the Company, or an employee benefit
plan sponsored by the Company or a subsidiary of the Company
(including any trustee of such plan acting as trustee).
(j) “Code”
means the Internal Revenue Code of 1986, as amended.
(k) “Common
Stock” means the Common Stock of the
Company.
(l)
“Company” means Openwave Systems Inc., a
Delaware corporation.
(m) “Continuous Status
as a Director” means the absence of any interruption
or termination of service as a Director. The Board, in its sole
discretion, may determine whether Continuous Service shall be
considered interrupted in the case of any leave of absence approved
by the Company, including sick leave, military leave or any other
personal leave.
(n) “Corporate
Transaction” means a dissolution or liquidation of
the Company, a sale of all or substantially all of the
Company’s assets, or a merger, consolidation or other capital
reorganization of the Company with or into another
corporation.
(o)
“Director” means a member of the
Board.
(p)
“Employee” means any person, including
any officer or Director, employed by the Company or any Parent or
Subsidiary of the Company. The payment of a director’s fee by
the Company shall not be sufficient in and of itself to constitute
“employment” by the Company.
(q) “Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
(r) “Fair Market
Value” means the value of a Share as determined in
accordance with Section 8(a) hereof.
(s) “First
Award” means the first Award granted by the Board to
a new Outside Director which shall consist of the First Option
Award and the First Restricted Option Award.
(t) “First Option
Award” means the first Option to purchase a certain
number of shares granted to an Outside Director upon his or her
election by the stockholders of appointment by the
Board.
(u) “First Restricted
Stock Award” means the first Restricted Stock Bonus
of a certain number of shares granted to an Outside Director upon
his or her election by the stockholders or appointment by the
Board.
(v)
“Option” means a stock option granted
pursuant to the Plan. All options shall be nonstatutory stock
options (i.e., options that are not intended to qualify as
incentive stock options under Section 422 of the
Code).
(w) “Optioned
Stock” means the Common Stock subject to an
Option.
(x)
“Optionee” means an Outside Director who
receives an Option.
(y) “Outside
Director” means a Director who is not an
Employee.
(z)
“Parent” means a “parent
corporation,” whether now or hereafter existing, as defined
in Section 424(e) of the Code.
(aa)
“Plan” means this Openwave Systems Inc.
Amended and Restated 1999 Directors’ Equity Compensation
Plan.
(bb) “Restricted Stock
Bonus” means a grant of Shares not requiring an
Outside Director to pay any amount of monetary
consideration.
(cc) “Restricted Stock
Bonus Recipient” means an Outside Director who
receives a Restricted Stock Bonus.
(dd) “ Restricted Stock
Unit ” means a right to receive an amount of cash
and/or Shares, as the case may be, equal to the Fair Market Value
of one Share at the time the Restricted Stock Unit
vests.
(ee) “Restricted Stock
Unit Recipient” means an Outside Director who
receives a Restricted Stock Unit.
(ff)
“Share” means a share of the Common
Stock, as adjusted in accordance with Section 14
hereof.
(gg) “Stock Appreciation
Right” means the right to receive an amount of cash
and/or Shares, as the case may be, equal to the Fair Market Value
of one Share on the day the Stock Appreciation Right is redeemed,
reduced by the Base Price applicable to such Stock Appreciation
Right.
(hh) “Stock Appreciation
Right Recipient” means an Outside Director who
receives a Stock Appreciation Right.
(ii)
“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 14 hereof,
the maximum aggregate number of Shares that are available for
Awards under the Plan is 650,000 Shares (the
“Pool” ). The Shares may be authorized, but
unissued, or reacquired Common Stock. Upon any distribution in
respect of Stock Appreciation Rights or Restricted Stock Units,
there shall be deemed to have been delivered under this Plan for
purposes of this Section 3 the number of Shares covered by the
Stock Appreciation Rights or Restricted Stock Units, regardless of
whether such distribution was paid in cash or Shares.
If an Award should expire, be
cancelled or forfeited or become unexercisable or irredeemable for
any reason without Shares being delivered thereunder (or other
payment made in lieu thereof) or the Award having been exercised in
full, the Shares that were subject thereto shall, unless the Plan
has been terminated, become available for future grant under the
Plan. Notwithstanding the foregoing, Shares subject to an Award
under the Plan may not again be made available for issuance under
the Plan if such Shares are retained by the Company upon the
vesting, exercise or redemption of an Award in order to satisfy the
exercise price for such Award or withholding taxes, if any, due in
connection with such vesting, exercise or redemption. For the
avoidance of doubt, Shares underlying (i) the unexercised
portion of an Option or Stock Appreciation Right and (ii) the
unvested portion of a Restricted Stock Bonus or Restricted Stock
Unit at the time any such Award terminates in accordance with
Sections 10, 11, 12 or 13 hereof, as applicable, shall revert to
and again be available for future grant under the Plan, unless the
Plan has been terminated. If Shares that were acquired upon
exercise of an Option or redemption of a Stock Appreciation Right,
or in connection with a Restricted Stock Bonus or Restricted Stock
Unit are subsequently repurchased by the Company, such Shares shall
not in any event be returned to the Plan and shall not become
available for future grant under the Plan.
4. Administration of and
Grants of Awards under the Plan .
(a) Administrator .
Except as otherwise required herein, the Plan shall be administered
by the Board; provided however, that the Board may by resolution
delegate to a committee of two or more members of the Board the
authority to perform any or all things that the Board is authorized
and empowered to do or perform under the Plan, and for all purposes
under this Plan, such committee shall be treated as the Board;
except to the extent that the grant or exercise of such authority
would cause any Award or
transaction to become subject to (or
lose an exemption under) the short-swing profit recovery provisions
of Section 16(b) of the Exchange Act. Notwithstanding anything
in this Section 4(a) to the contrary, any amendment to the
Plan that, in accordance with Applicable Law (as defined in
Section 17 hereof), would require stockholder approval must be
approved by the full Board.
(b) Procedure for Grants
. All grants of Awards hereunder shall be automatic and
nondiscretionary and shall be made strictly in accordance with the
following provisions:
(i) No person shall have any
discretion to select which Outside Directors shall be granted
Awards or to determine the number of Shares to be covered by Awards
granted to Outside Directors.
(ii) Each Outside Director who
becomes an Outside Director for the first time after
October 20, 2008, whether through election by the stockholders
of the Company or appointment by the Board to fill a vacancy, but
excluding a person who becomes an Outside Director solely on
account of his or her resignation or termination of employment with
the Company, shall automatically be granted, on the date that such
person becomes an Outside Director, the First Award which shall
consist of (i) the First Option Award and (ii) the First
Restricted Stock Award, in each case as determined by the Board. In
the event, however, that (i) the Board exercises its
discretion under Section 4(f) to grant Stock Appreciation
Rights in lieu of Options and/or Restricted Stock Units in lieu of
Restricted Stock Bonuses, the First Award shall instead consist of
a grant of Stock Appreciation Rights and/or Restricted Stock Units
covering the number of Shares to be issued pursuant to the First
Award.
(iii) Each Outside Director shall
automatically be eligible for a grant of an Annual Award which
shall consist of (i) an Annual Option Award and (ii) an
Annual Restricted Stock Award, in each case, on the date of the
Company’s most recently adjourned Annual Meeting of the
Stockholders provided they are an Outside Director as of such date.
The number of Shares subject to each Annual Award shall be
determined by the Board and shall be granted to each Outside
Director in accordance with the schedule set forth in Subsections
4(b)(iii)(1)-(4) hereof. For the avoidance of doubt, a person
who becomes an Outside Director solely on account of his or her
resignation or termination of employment with the Company shall be
entitled to Annual Awards pursuant to this Subsection 4(b)(iii)
based on the time such Director first becomes an Outside Director.
In the event, however, that the Board exercises its discretion
under Section 4(f) to grant Stock Appreciation Rights in lieu
of Options and/or Restricted Stock Units in lieu of Restricted
Stock Bonuses, the Annual Awards instead shall consist of a grant
of Stock Appreciation Rights and/or Restricted Stock Units, as
applicable, covering the number of Shares determined pursuant to
the schedule set forth in Subsections
4(b)(iii)(1)-(4) hereof.
(1) a person who has served less
than two full months as an Outside Director during the prior
calendar shall not be awarded any Annual Award;
(2) a person who has served at least
two full months, but less than five full months as an Outside
Director during the prior calendar year, shall be granted an Annual
Award equal to one-third of the Annual Option Award and the Annual
Restricted Stock Award, respectively;
(3) a person who has served at least
five full months, but less than eight full months as an Outside
Director during the prior calendar year, shall be granted an Annual
Award equal to two-thirds of the Annual Option Award and the Annual
Restricted Stock Award, respectively; and
(4) a person who has served at least
eight full months as an Outside Director during the prior calendar
year, shall be granted the full Annual Award.
(iv) Notwithstanding the provisions
of Subsections (ii) and (iii) hereof, in the event that a
grant would cause the number of Shares subject to outstanding
Awards plus the number of Shares previously acquired upon exercise
or redemption of, or otherwise in connection with, Awards to exceed
the Pool, then each such automatic grant shall be for that number
of Shares determined by dividing the total number of Shares
remaining available for grant by the number of Outside Directors
receiving an Award on the automatic grant date and shall be granted
in the form of both Options (or Stock Appreciation Rights) and
Restricted Stock Bonuses (or Restricted Stock Units) in the same
proportions as would otherwise have been granted on that date. Any
further grants shall then be deferred until such time, if any, as
additional Shares become available for grant under the Plan through
action of the stockholders to increase the number of Shares which
may be issued under the Plan or through cancellation, forfeiture or
expiration of Awards previously granted hereunder.
(v) Notwithstanding the provisions
of Subsections (ii) and (iii) hereof, any grant of an
Award made before the Company has obtained required stockholder
approval of the Plan in accordance with Section 20 hereof
shall be conditioned upon obtaining such stockholder approval of
the Plan in accordance with Section 20 hereof.
(vi) The terms of each Award granted
hereunder shall be as follows:
(1) each Award of Options or Stock
Appreciation Rights shall be exercisable or redeemable only while
the Outside Director remains a Director of the Company, except as
set forth in Section 9 or Section 10 hereof, as
applicable;
(2) the exercise price or Base Price
per Share of each Option or Stock Appreciation Right shall be 100%
of the Fair Market Value per Share on the date of grant of each
Award, determined in accordance with Section 8(a)
hereof;
(3) each Option or Stock
Appreciation Right, whether granted to an Outside Director as a
First Award or an Annual Award, shall vest and become exercisable
or redeemable in equal annual installments commencing on the one
year anniversary of the date of grant and ending on the three year
anniversary of the date of grant; provided, however, that such
Shares underlying the Award shall only vest as long as the Outside
Director remains in Continuous Status as a Director of the Company
on the respective vesting date;
(4) each Share subject to a
Restricted Stock Bonus and each Restricted Stock Unit, whether
granted to an Outside Director as a First Award or an Annual Award,
shall vest in equal annual installments commencing on the one year
anniversary of the date of grant and ending on the three year
anniversary of the date of grant; provided, however, that such
Shares underlying the Award shall only vest as long as the Outside
Director remains in Continuous Status as a Director of the Company
on the respective vesting date;
(5) notwithstanding Sections
4(b)(vi)(3) through (4), each Award granted to an Outside Director
shall immediately vest and, to the extent applicable, become
exercisable or redeemable upon the termination of such Outside
Director’s Continuous Status as a Director for any reason
(except upon such Outside Director’s resignation from the
Board or determination not to stand for re-election) upon the
occurrence of or within twenty-four (24) months following a
Change of Control.
(c) Powers of the Board
. Subject to the provisions and restrictions of the Plan, the
Board shall have the authority, in its discretion: (i) to
determine, upon review of relevant information and in accordance
with Section 8(a) hereof, the Fair Market Value of the Common
Stock; (ii) to determine the exercise price or Base Price per
Share of Options and Stock Appreciation Rights to be granted, which
exercise price or Base Price shall be determined in accordance with
Section 9 or Section 10 hereof, as applicable;
(iii) to interpret the Plan; (iv) to prescribe, amend and
rescind rules and regulations relating to the Plan; (v) to
authorize any person to execute on behalf of the Company any
instrument required to effectuate the grant of an Award previously
granted hereunder; and (vi) to make all other determinations
deemed necessary or advisable for the administration of the
Plan.
(d) Effect of Board’s
Decision . All decisions, determinations and
interpretations of the Board shall be final and binding on all
Award Recipients and any other holders of any Awards granted under
the Plan.
(e) Suspension or Termination
of Award . If the Chief Executive Officer or his or her
designee reasonably believes that an Award Recipient has committed
an act of misconduct, such officer may suspend the Award
Recipient’s right to vest in or exercise or redeem any Award,
or receive Shares under an Award, pending a determination by the
Board (excluding the Outside Director accused of such misconduct).
If the Board (excluding the Outside Director accused of such
misconduct) determines an Award Recipient has committed an act of
embezzlement, fraud, dishonesty, nonpayment of an obligation owed
to the Company, breach of fiduciary duty or deliberate disregard
of
the Company rules re
