Exhibit 10.1
As Amended through
June 21, 2008
AMENDED AND
RESTATED UROLOGIX, INC.
1991 STOCK
OPTION PLAN
AMENDED AND RESTATED UROLOGIX, INC.
1991 STOCK OPTION PLAN
SECTION 1. General Purpose of Plan; Definitions
.
The name of this plan is the Amended
and Restated Urologix, Inc. 1991 Stock Option Plan (the
“Plan”). The purpose of the Plan is to enable Urologix,
Inc. (the “Company”) to retain and attract executives
and other key employees, directors and consultants who contribute
to the Company’s success by their ability, ingenuity and
industry, and to enable such individuals to participate in the
long-term success and growth of the Company by giving them a
proprietary interest in the Company.
For purposes of the Plan, the
following terms shall be defined as set forth below:
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a.
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“
Board ” means the Board of Directors of the Company as
it may be comprised from time to time.
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b.
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“
Cause ” means a felony conviction of a participant or
the failure of a participant to contest prosecution for a felony,
willful misconduct, dishonesty or intentional violation of a
statute, rule or regulation, any of which, in the judgment of the
Company, is harmful to the business or reputation of the
Company.
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c.
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“
Code ” means the Internal Revenue Code of 1986, as
amended from time to time, or any successor statute.
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d.
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“
Committee ” means the Committee referred to in
Section 2 of the Plan.
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e.
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“
Consultant ” means any person, including an advisor,
engaged by the Company or a Parent Corporation or Subsidiary of the
Company to render services and who is compensated for such services
and who is not an employee of the Company or any Parent Corporation
or Subsidiary of the Company. A Non-Employee Director may serve as
a Consultant.
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f.
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“
Company ” means Urologix, Inc., a corporation
organized under the laws of the State of Minnesota (or any
successor corporation).
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g.
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“
Deferred Stock ” means an award made pursuant to
Section 8 below of the right to receive stock at the end of a
specified deferral period.
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h.
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Disability ” means permanent and total disability as
determined by the Committee.
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i.
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“
Early Retirement ” means retirement, with consent of
the Committee at the time of retirement, from active employment
with the Company and any Subsidiary or Parent Corporation of the
Company.
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j.
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“ Fair
Market Value ” of Stock on any given date shall be
determined by the Committee as follows: (a) if the Stock is
listed for trading on one of more national securities exchanges, or
is traded on the Nasdaq Stock Market, the last reported sales price
on the principal such exchange or the Nasdaq Stock Market on the
date in question, or if such Stock shall not have been traded on
such principal exchange on such date, the last reported sales price
on such principal exchange or the Nasdaq Stock Market on the first
day prior thereto on which such Stock was so traded; or (b) if
the Stock is not listed for trading on a national securities
exchange or the Nasdaq Stock Market, but is traded in the
over-the-counter market, including the Nasdaq Small Cap Market, the
closing bid price for such Stock on the date in question, or if
there is no such bid price for such Stock on such date, the closing
bid price on the first day prior thereto on which such price
existed; or (c) if neither (a) or (b) is applicable,
by any means fair and reasonable by the Committee, which
determination shall be final and binding on all parties.
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k.
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“
Incentive Stock Option ” means any Stock Option
intended to be and designated as an “Incentive Stock
Option” within the meaning of Section 422 of the
Code.
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l.
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“
Non-Employee Director ” means a “Non-Employee
Director” within the meaning of Rule 16b-3(b)(3) under the
Securities Exchange Act of 1934.
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m.
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“
Non-Qualified Stock Option ” means any Stock Option
that is not an Incentive Stock Option, and is intended to be and is
designated as a “Non-Qualified Stock
Option.”
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n.
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“
Normal Retirement ” means retirement from active
employment with the Company and any Subsidiary or Parent
Corporation of the Company on or after age 65.
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o.
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“
Outside Director ” means a member of the Board of
Directors who: (a) is not a current employee of the Company or
any member of an affiliated group which includes the Company;
(b) is not a former employee of the Company who receives
compensation for prior services (other than benefits under a
tax-qualified retirement plan) during the taxable year;
(c) has not been an officer of the Company; and (d) does
not receive remuneration from the Company, either directly or
indirectly, in any capacity other than as a director, except as
otherwise permitted under Code Section 162(m) and regulations
thereunder. For this purpose, remuneration includes any payment in
exchange for goods or services. This definition shall be further
governed by the provisions of Code Section 162(m) and
regulations promulgated thereunder.
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p.
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Parent Corporation ” means any corporation (other than
the Company) in an unbroken chain of corporations ending with the
Company if each of the corporations (other than the Company) owns
stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in the
chain.
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q.
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“
Restricted Stock ” means an award of shares of Stock
that are subject to restrictions under Section 7
below.
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r.
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“
Retirement ” means Normal Retirement or Early
Retirement.
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s.
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“
Stock ” means the Common Stock of the
Company.
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t.
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“
Stock Appreciation Right ” means the right pursuant to
an award granted under Section 6 below to surrender to the
Company all or a portion of a Stock Option in exchange for an
amount equal to the difference between (i) Fair Market Value,
as of the date such Stock Option or such portion thereof is
surrendered, of the shares of Stock covered by such Stock Option or
such portion thereof, and (ii) the aggregate exercise price of
such Stock Option or such portion thereof.
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u.
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“
Stock Option ” means any option to purchase shares of
Stock granted pursuant to Section 5 below.
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v.
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“
Subsidiary ” means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the
Company if each of the corporations (other than the last
corporation in the unbroken chain) owns stock possessing 50% or
more of the total combined voting power of all classes of stock in
one of the other corporations in the chain.
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SECTION 2. Administration .
The Plan shall be administered by
the Board of Directors or by a committee, consisting of not less
than two members of the Board of Directors, all of whom shall be
Outside Directors and Non-Employee Directors and who shall serve at
the pleasure of the Board (the “Committee”). Any or all
of the functions of the Committee specified in the Plan may be
exercised by the Board, unless the Plan specifically states
otherwise.
The Committee shall have the power
and authority to grant to eligible employees, members of the Board
of Directors or Consultants, pursuant to the terms of the Plan:
(i) Stock Options, (ii) Stock Appreciation Rights,
(iii) Restricted Stock, or (iv) Deferred Stock
awards.
In particular, the Committee shall
have the authority:
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(i)
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to select the
officers and other key employees of the Company and its
Subsidiaries and other eligible persons to whom Stock Options,
Stock Appreciation Rights, Restricted Stock and Deferred Stock
awards may from time to time be granted hereunder;
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(ii)
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to determine
whether and to what extent Incentive Stock Options, Non-Qualified
Stock Options, Stock Appreciation Rights, Restricted Stock and
Deferred Stock awards, or a combination of the foregoing, are to be
granted hereunder;
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(iii)
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to determine
the number of shares to be covered by each such award granted
hereunder;
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(iv)
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to determine
the terms and conditions, not inconsistent with the terms of the
Plan, of any award granted hereunder (including, but not limited
to, any restriction on any Stock Option or other award and/or the
shares of Stock relating thereto); provided , however, that
in the event of a merger or asset sale or other form of change of
control, the applicable provisions of Sections 5(c) and 7(c) of the
Plan shall govern the acceleration of the vesting of any Stock
option or awards;
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(v)
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to determine
whether, to what extent and under what circumstances Stock and
other amounts payable with respect to an award under this Plan
shall be deferred either automatically or at the election of the
participant.
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The Committee shall have the
authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing the Plan as it shall, from time
to time, deem advisable; to interpret the terms and provisions of
the Plan and any award issued under the Plan (and any agreements
relating thereto); and to otherwise supervise the administration of
the Plan. The Committee may delegate to executive officers of the
Company the authority to exercise the powers specified in (i),
(ii), (iii), (iv) and (v) above with respect to persons
who are not executive officers of the Company.
All decisions made by the Committee
pursuant to the provisions of the Plan shall be final and binding
on all persons, including the Company and Plan
participants.
SECTION 3. Stock Subject to Plan .
The total number of
shares of Stock reserved and available for distribution under the
Plan shall be 4,450,910 1 . Such shares may consist, in
whole or in part, of authorized and unissued shares.
1 History: This Plan originally
reserved 970,912 shares for issuance. The Board of Directors
approved an increase from 970,912 shares to 1,250,912 on
January 19, 1994, and an increase from 1,250,912 shares to
1,601,820 shares on August 19, 1994. The shareholders approved
the increase to 1,601,820 shares at a special meeting on
December 21, 1994. The Board of Directors approved an increase
from 1,601,820 shares to 2,101,820 shares on July 26, 1995,
which was approved by the Shareholders at a special meeting on
November 27, 1995. The number of shares reserved under the
Plan was again increased from 2,101,820 to 3,101,820 by the Board
of Directors on April 3, 1996 and such increase was approved
by the Shareholders at a special meeting on April 30, 1996.
Simultaneously on April 30, 1996, the Company effected a
1-for-2 Reverse Stock Split, thereby converting the number of
shares reserved to 1,550,910 as of April 30, 1996. Following
the Reverse Stock Split, the Board of Directors increased the
number of shares reserved to 1,950,910 on September 17, 1997
and the increase was approved by the shareholders on
November 19, 1997. On November 17, 1998, the Board of
Directors authorized an increase in the number of shares reserved
to 2,450,910, which increase was approved by the shareholders on
January 14, 1999. On September 12, 2000 the Board of
Directors authorized an increase in the number of shares reserved
to 2, 950,910, which increase was approved by the shareholders on
November 14, 2000. On September 11, 2001 the Board of
Directors authorized an increase in the number of shares reserved
to 3,450,910, which increase was approved by the shareholders on
November 6, 2001. On July 19, 2004 the Board of Directors
authorized an increase in the number of shares reserved to
4,450,910, which increase was approved by the shareholders on
November 9, 2004.
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Subject to paragraph (b)(iv) of
Section 6 below, if any shares that have been optioned cease
to be subject to Stock Options, or if any shares subject to any
Restricted Stock or Deferred Stock award granted hereunder are
forfeited or such award otherwise terminates without a payment
being made to the participant, such shares shall again be available
for distribution in connection with future awards under the
Plan.
In the event of any merger,
reorganization, consolidation, recapitalization, stock dividend,
other change in corporate structure affecting the Stock, or
spin-off or other distribution of assets to shareholders, such
substitution or adjustment shall be made in the aggregate number of
shares reserved for issuance under the Plan, in the number and
option price of shares subject to outstanding options granted under
the Plan, and in the number of shares subject to Restricted Stock
or Deferred Stock awards granted under the Plan as may be
determined to be appropriate by the Committee, in its sole
discretion, provided that the number of shares subject to any award
shall always be a whole number. Such adjusted option price shall
also be used to determine the amount payable by the Company upon
the exercise of any Stock Appreciation Right associated with any
Option.
SECTION 4. Eligibility .
Officers, other key employees of the
Company and Subsidiaries, members of the Board of Directors, and
Consultants who are responsible for or contribute to the
management, growth and profitability of the business of the Company
and its Subsidiaries are eligible to be granted Stock Options,
Stock Appreciation Rights, Restricted Stock or Deferred Stock
awards under the Plan. The optionees and participants under the
Plan shall be selected from time to time by the Committee, in its
sole discretion, from among those eligible, and the Committee shall
determine, in its sole discretion, the number of shares covered by
each award.
Notwithstanding the foregoing, no
person may, during any fiscal year of the Company, receive grants
of Stock Options and Stock Appreciation Rights under this Plan
which, in the aggregate, exceed 500,000 shares.
SECTION 5. Stock Options .
Any Stock Option granted under the
Plan shall be in such form as the Committee may from time to time
approve.
The Stock Options granted under the
Plan may be of two types: (i) Incentive Stock Options and
(ii) Non-Qualified Stock Options. No Incentive Stock Options
shall be granted under the Plan after August 1,
2011.
The Committee shall have the
authority to grant any optionee Incentive Stock Options,
Non-Qualified Stock Options, or both types of options (in each case
with or without Stock Appreciation Rights). To the extent that any
option does not qualify as an Incentive Stock Option, it shall
constitute a separate Non-Qualified Stock Option.
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Anything in the Plan to the contrary
notwithstanding, no term of this Plan relating to Incentive Stock
Options shall be interpreted, amended or altered, nor shall any
discretion or authority granted under the Plan be so exercised, so
as to disqualify either the Plan or any Incentive Stock Option
under Section 422 of the Code. The preceding sentence shall
not preclude any modification or amendment to an outstanding
Incentive Stock Option, whether or not such modification or
amendment results in disqualification of such Option as an
Incentive Stock Option, provided the optionee consents in writing
to the modification or amendment.
No changes that result from the
restatement of this Plan shall effect any change in any outstanding
incentive stock option that would cause such option to be modified,
extended or renewed to the extent that such change will constitute
the grant of a new option as specified in Section 424(h) of
the Code.
Options granted under the Plan shall
be subject to the following terms and conditions and shall contain
such additional terms and conditions, not inconsistent with the
terms of the Plan, as the Committee shall deem
desirable.
(a) Option Price . The option
price per share of Stock purchasable under a Stock Option shall be
determined by the Committee at the time of grant. In no event shall
the option price per share of Stock purchasable under an Incentive
Stock Option be less than 100% of such Fair Market Value. If an
employee owns or is deemed to own (by reason of the attribution
rules applicable under Section 424(d) of the Code) more than
10% of the combined voting power of all classes of stock of the
Company or any Parent Corporation or Subsidiary and an Incentive
Stock Option is granted to such employee, the option price shall be
no less than 110% of the Fair Market Value of the Stock on the date
the option is granted.
(b) Option Term . The term of
each Stock Option shall be fixed by the Committee, but no Incentive
Stock Option shall be exercisable more than ten years after the
date the option is granted. If an employee owns or is deemed to own
(by reason of the attribution rules of Section 424(d) of the
Code) more than 10% of the combined voting power of all classes of
stock of the Company or any Parent Corporation or Subsidiary and an
Incentive Stock Option is granted to such employee, the term of
such option shall be no more than five years from the date of
grant.
(c) Exercisability . Stock
Options shall be exercisable at such time or times as determined by
the Committee at or after grant. If the Committee provides, in its
discretion, that any option is exercisable only in installments,
the Committee may waive such installment exercise provisions at any
time. Notwithstanding anything contained in the Plan to the
contrary, the Committee may, in its discretion, extend or vary the
term of any Stock Option or any installment thereof, whether or not
the optionee is then employed by the Company, if such action is
deemed to be in the best interests of the Company; provided,
however, that in the event of a merger or sale of assets, or of a
Change of Control, the provisions of this section 5(c) shall govern
vesting acceleration.
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(i)
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In the event of a merger of the
Company with or into another corporation, or the sale of
substantially all of the assets of the Company, each outstanding
Option shall be assumed or an equivalent option or right shall be
substituted by the successor corporation or a Parent or Subsidiary
of the successor corporation. In the event that
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the successor corporation does not
agree to assume the Option or to substitute an equivalent option or
right, the Committee shall, in lieu of such assumption or
substitution, provide for the Optionee to have the right to
exercise the Option as to all of the Optioned Stock, including
shares as to which it would not otherwise be exercisable. If the
Committee makes an Option fully exercisable in lieu of assumption
or substitution in the event of a merger or sale of assets, the
Committee shall notify the Optionee that the Option shall be fully
exercisable for a period of fifteen (15) days from the date of
such notice, and the Option will terminate upon the expiration of
such period. For the purposes of this paragraph, the Option shall
be considered assumed if, following the merger or sale of assets,
the option or right confers the right to purchase, for each Share
of Optioned Stock subject to the Option immediately prior to the
merger or sale of assets, the consideration (whether stock, cash,
or other securities or property) received in the merger or sale of
assets by holders of Common Stock for each Share held on the
effective date of the transaction (and if holders were offered a
choice of consideration, the type of consideration chose by the
holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the merger or sale
of assets was not solely common stock of the successor corporation
or its Parent, the Committee may, with consent of the successor
corporation and the participant, provide for the consideration to
be received upon the exercise of the Option, for each Share of
Optioned Stock subjec
