EXHIBIT
10.1
2008 STOCK OPTION AND AWARD PLAN
APPROVED BY BOARD ON: May 9, 2008
APPROVED BY STOCKHOLDERS:
, 2008
TERMINATION DATE: May 9, 2018
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(a)
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Plan Adoption. This Plan was adopted by the Board on
the Adoption Date to be effective as provided in Section 11 on
the Effective Date.
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(b)
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Eligible Award Recipients. The persons eligible to
receive Awards are Employees, Directors and
Consultants.
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(c)
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Available Awards. The Plan provides for the grant of
the following Awards: (i) Incentive Stock Options,
(ii) Nonstatutory Stock Options, (iii) Restricted Stock
Awards, (iv) Restricted Stock Unit Awards, (v) Stock
Appreciation Rights, (vi) Performance Stock Awards,
(vii) Performance Cash Awards, and (viii) Other Stock
Awards.
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(d)
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General Purpose. The Company, by means of the Plan,
seeks to secure and retain the services of the group of persons
eligible to receive Awards as set forth in Section 1(b), to
provide incentives for such persons to exert maximum efforts for
the success of the Company and any Affiliate and to provide a means
by which such eligible recipients may be given an opportunity to
benefit from increases in value of the Common Stock through the
granting of Stock Awards.
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(a)
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Administration by Board. The Board shall administer
the Plan unless and until the Board delegates administration of the
Plan to a Committee or Committees, as provided in
Section 2(c).
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(b)
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Powers of Board. The Board shall have the power,
subject to, and within the limitations of, the express provisions
of the Plan:
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(i)
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To
determine from time to time (A) which of the persons eligible
under the Plan shall be granted Awards; (B) when and how each
Award shall be granted; (C) what type or combination of types
of Award shall be granted; (D) the provisions of each Award
granted (which need not be identical), including the time or times
when a person shall be permitted to receive cash or Common Stock
pursuant to a Stock Award; and (E) the number of shares of
Common Stock with respect to which a Stock Award shall be granted
to each such person.
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(ii)
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To
construe and interpret the Plan and 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 or in the written terms of a Performance Cash
Award, in a manner and to the extent it shall deem necessary or
expedient to make the Plan or Award fully effective.
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(iii)
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To
settle all controversies regarding the Plan and Awards granted
under it.
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(iv)
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To
accelerate the time at which a Stock Award may first be exercised
or the time during which an Award or any part thereof will vest in
accordance with the Plan, notwithstanding the provisions in the
Award stating the time at which it may first be exercised or the
time during which it will vest.
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(v)
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To
suspend or terminate the Plan at any time. Suspension or
termination of the Plan shall not impair rights and obligations
under any Stock Award granted while the Plan is in effect except
with the written consent of the affected Participant.
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(vi)
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To
amend the Plan in any respect the Board deems necessary or
advisable, including, without limitation, relating to Incentive
Stock Options and certain nonqualified deferred compensation under
409A of the Code and/or to bring the Plan or Stock Awards granted
under the Plan into compliance therewith, subject to the
limitations, if any, of applicable law. However, except as provided
in Section 9(a) relating to Capitalization Adjustments,
stockholder approval shall be required for any amendment of the
Plan that either (i) materially increases the number of shares
of Common Stock available for issuance under the Plan,
(ii) materially expands the class of individuals eligible to
receive Awards under the Plan, (iii) materially increases the
benefits accruing to Participants under the Plan or materially
reduces the price at which shares of Common Stock may be issued or
purchased under the Plan, (iv) materially extends the term of
the Plan, or (v) expands the types of Awards available for
issuance under the Plan, but only to the extent required by
applicable law or listing requirements. Except as provided herein,
rights under any Award granted before amendment of the Plan shall
not be impaired by any amendment of the Plan unless (i) the
Company requests the consent of the affected Participant, and
(ii) such Participant consents in writing.
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(vii)
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To
submit any amendment to the Plan for stockholder approval,
including, but not limited to, amendments to the Plan intended to
satisfy the requirements of (i) Section 162(m) of the
Code and the regulations thereunder regarding the exclusion of
performance-based compensation from the limit on corporate
deductibility of compensation paid to Covered Employees,
(ii) Section 422 of the Code regarding Incentive Stock
Options or (iii) Rule 16b-3.
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(viii)
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To
approve forms of Award Agreements for use under the Plan and to
amend the terms of any one or more Awards, including, but not
limited to, amendments to provide terms more favorable than
previously provided in the Award Agreement, subject to any
specified limits in the Plan that are not subject to Board
discretion; provided however, that, the rights under any Award
shall not be impaired by any such amendment unless (i) the
Company requests the consent of the affected Participant, and
(ii) such Participant consents in writing. Notwithstanding the
foregoing, subject to the limitations of applicable law, if any,
and without the affected Participant’s consent, the Board may
amend the terms of any one or more Awards if necessary to maintain
the qualified status of the Award as an Incentive Stock Option or
to bring the Award into compliance with Code Section 409A and
the related guidance thereunder.
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(ix)
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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
and that are not in conflict with the provisions of the Plan or
Awards.
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(x)
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To
adopt such procedures and sub-plans as are necessary or appropriate
to permit participation in the Plan by Employees, Directors or
Consultants who are foreign nationals or employed outside the
United States.
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(c)
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Delegation to Committee.
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(i)
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General.
The Board may delegate some or all of the administration of the
Plan to a Committee or Committees. If administration of the Plan is
delegated to a Committee, the Committee shall have, in connection
with the administration of the Plan, the powers theretofore
possessed by the Board that have been delegated
to the Committee, including the power to delegate to a subcommittee
of the Committee 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 retain the authority to concurrently administer the Plan
with the Committee and may, at any time, revest in the Board some
or all of the powers previously delegated.
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(ii)
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Section 162(m)
and Rule 16b-3 Compliance. In the sole discretion of the
Board, the Committee may consist solely of two or more Outside
Directors, in accordance with Section 162(m) of the Code, or
solely of two or more Non-Employee Directors, in accordance with
Rule 16b-3. In addition, the Board or the Committee, in its
sole discretion, may (A) delegate to a Committee of Directors
who need not be Outside Directors the authority to grant Awards to
eligible persons who are either (I) 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
(II) not persons with respect to whom the Company wishes to
comply with Section 162(m) of the Code, or (B) delegate
to a Committee of Directors who need not be Non-Employee Directors
the authority to grant Stock Awards to eligible persons who are not
then subject to Section 16 of the Exchange Act.
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(d)
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Delegation to an Officer. The Board may delegate to
one or more Officers the authority to do one or both of the
following (i) designate Employees who are not Officers to be
recipients of Options (and, to the extent permitted by applicable
law, other Stock Awards) and the terms thereof, and
(ii) determine the number of shares of Common Stock to be
subject to such Stock Awards granted to such Employees; provided,
however, that the Board resolutions regarding such delegation shall
specify the total number of shares of Common Stock that may be
subject to the Stock Awards granted by such Officer and that such
Officer may not grant a Stock Award to himself or herself.
Notwithstanding anything to the contrary in this Section 2(d),
the Board may not delegate to an Officer authority to determine the
Fair Market Value of the Common Stock pursuant to
Section 13(v)(ii) below.
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(e)
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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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(f)
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Cancellation and Re-Grant of Stock Awards. Neither the
Board nor any Committee shall have the authority to:
(i) reprice any outstanding Stock Awards under the Plan, or
(ii) cancel and re-grant any outstanding Stock Awards under
the Plan, unless the stockholders of the Company have approved such
an action within twelve (12) months prior to such an
event.
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(g)
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Arbitration. Any dispute or claim concerning any Stock
Awards granted (or not granted) pursuant to the Plan or any
disputes or claims relating to or arising out of the Plan shall be
fully, finally and exclusively resolved by binding and confidential
arbitration conducted pursuant to the Commercial Arbitration Rules
of the American Arbitration Association in Orange County,
California. The Company and the Participant shall each pay 50% of
the arbitration fees. In addition to any other relief, the
arbitrator may award to the prevailing party recovery of its
attorneys’ fees and costs. By accepting a Stock Award,
Participants and the Company waive their respective rights to have
any such disputes or claims tried by a judge or jury.
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3.
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Shares Subject to the Plan.
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(a)
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Share Reserve. Subject to the provisions of
Section 9(a) relating to Capitalization Adjustments, the
aggregate number of shares of Common Stock that may be issued
pursuant to Stock Awards after the Effective Date shall consist of
the sum of (i) Twelve Million (12,000,000) shares to be approved by
the stockholders at the 2008 Annual Meeting as part of the approval
of this Plan and (ii) the number of shares added to the reserve
pursuant to Section 3(b) (the “Share
Reserve” ). For clarity, the limitation in this
subsection 3(a) is a limitation in the number of shares of the
Company’s common stock that may be issued pursuant to the
Plan. Accordingly, this subsection 3(a) does not limit the
granting of Stock Awards except as provided in
subsection 7(a). Shares may be issued in connection with a
merger or acquisition as permitted by NASD
Rule 4350(i)(1)(A)(iii) or, if applicable, NYSE Listed
Company Manual Section 303A.08, or AMEX
Company Guide Section 711 and such issuance shall not reduce
the number of shares available for issuance under the Plan.
Furthermore, if a Stock Award (i) expires or otherwise
terminates without having been exercised in full or (ii) is
settled in cash (i.e., the holder of the Stock Award receives cash
rather than stock), such expiration, termination or settlement
shall not reduce (or otherwise offset) the number of shares of the
Company’s common stock that may be issued pursuant to the
Plan.
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(b)
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Additions to the Share Reserve. The share reserve
under the Plan also shall be increased from time to time by a
number of shares equal to the number of shares of Common Stock that
(i) are issuable pursuant to options or stock awards
outstanding as of the Effective Date of the Plan.
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(c)
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Reversion of Shares to the Share Reserve. If any
shares of common stock issued pursuant to a Stock Award are
forfeited back to the Company because of the failure to meet a
contingency or condition required to vest such shares in the
Participant, then the shares which are forfeited shall revert to
and again become available for issuance under the Plan. Also, any
shares reacquired by the Company pursuant to subsection 8(g)
or as consideration for the exercise of an Option shall again
become available for issuance under the Plan. Notwithstanding the
provisions of this subsection 3(c), any such shares shall not
be subsequently issued pursuant to the exercise of Incentive Stock
Options.
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(d)
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Incentive Stock Option Limit. Notwithstanding anything
to the contrary in this Section 3(d), subject to the
provisions of Section 9(a) relating to Capitalization
Adjustments the aggregate maximum number of shares of Common Stock
that may be issued pursuant to the exercise of Incentive Stock
Options shall be the number of shares of Common Stock in the Share
Reserve.
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(e)
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Section 162(m) Limitation on Annual Grants . Subject to
the provisions of Section 9(a) relating to
Capitalization Adjustments, at such time as the Company may be
subject to the applicable provisions of Section 162(m) of the
Code, no Employee shall be eligible to be granted during any
calendar year Stock Awards whose value is determined by reference
to an increase over an exercise or strike price of at least one
hundred percent (100%) of the Fair Market Value of the Common Stock
on the date the Stock Award is granted covering more than One
Million (1,000,000) shares of Common Stock.
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(f)
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Source of Shares. The stock issuable under the Plan
shall be shares of authorized but unissued or reacquired Common
Stock, including shares repurchased by the Company on the market or
otherwise.
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(a)
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Eligibility for Specific Stock Awards. Incentive Stock
Options may be granted only to employees of the Company or a parent
corporation or subsidiary corporation (as such terms are defined in
Code Sections 424(e) and (f)). Stock Awards other than
Incentive Stock Options may be granted to Employees, Directors and
Consultants.
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(b)
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Ten Percent Stockholders. 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 on 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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(c)
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Consultants . A Consultant shall not be eligible for the
grant of a Stock Award only 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, because the Consultant is not a natural
person, or because of any other rule governing the use of
Form S-8.
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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 shall be issued for shares of Common Stock
purchased on exercise of each type of Option. If an Option is
not specifically designated as an Incentive Stock Option, then
the Option shall be a Nonstatutory Stock Option. The
provisions of separate Options need not be identical;
provided, however, that each Option Agreement shall include
(through incorporation of provisions hereof by reference in
the Option Agreement or otherwise) the substance of each of
the following provisions:
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(a)
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Term. Subject to the provisions of Section 4(b)
regarding Ten Percent Stockholders, no Option shall be exercisable
after the expiration of ten (10) years from the date of its
grant or such shorter period specified in the Option
Agreement.
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(b)
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Exercise Price. Subject to the provisions of
Section 4(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 one hundred percent (100%) of the Fair Market Value of the
Common Stock subject to the Option if such Option is granted
pursuant to an assumption or substitution for another option in a
manner consistent with the provisions of Section 424(a) of the
Code (whether or not such options are Incentive Stock
Options).
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(c)
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Consideration. The purchase price of Common Stock
acquired pursuant to the exercise of an Option shall be paid, to
the extent permitted by applicable law and as determined by the
Board in its sole discretion, by any combination of the methods of
payment set forth below. The Board shall have the authority to
grant Options that do not permit all of the following methods of
payment (or otherwise restrict the ability to use certain methods)
and to grant Options that require the consent of the Company to
utilize a particular method of payment. The methods of payment
permitted by this Section 5(c) are:
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(i)
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by
cash, check, bank draft or money order payable to the
Company;
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(ii)
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pursuant
to a program developed under Regulation T as promulgated by
the Federal Reserve Board that, prior to the issuance of the stock
subject to the Option, 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;
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(iii)
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by
delivery to the Company (either by actual delivery or attestation)
of shares of Common Stock;
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(iv)
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by
a “net exercise” arrangement pursuant to which the
Company will reduce the number of shares of Common Stock issued
upon exercise by the largest whole number of shares with a Fair
Market Value that does not exceed the aggregate exercise price;
provided, however, that the Company shall accept a cash or other
payment from the Participant to the extent of any remaining balance
of the aggregate exercise price not satisfied by such reduction in
the number of whole shares to be issued; provided, further, that
shares of Common Stock will no longer be outstanding under an
Option and will not be exercisable thereafter to the extent that
(A) shares are used to pay the exercise price pursuant to the
“net exercise,” (B) shares are delivered to the
Participant as a result of such exercise, and (C) shares are
withheld to satisfy tax withholding
obligations; or
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(v)
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in
any other form of legal consideration that may be acceptable to the
Board.
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(d)
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Transferability of Options. The Board may, in its sole
discretion, impose such limitations on the transferability of
Options as the Board shall determine. In the absence of such a
determination by the Board to the contrary, the following
restrictions on the transferability of Options shall
apply:
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(ii)
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Domestic
Relations Orders. Notwithstanding the foregoing, an Option may be
transferred pursuant to a domestic relations order, provided,
however, that an Incentive Stock Option may be deemed to be a
Nonqualified Stock Option as a result of such
transfer.
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(iii)
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Beneficiary
Designation. Notwithstanding the foregoing, the Optionholder may,
by delivering written notice to the Company, in a form provided by
or otherwise 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.
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(e)
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Vesting Generally. The total number of shares of
Common Stock subject to an Option may vest and therefore become
exercisable in periodic installments that may or may not be equal.
The Option may be subject to such other terms and conditions on the
time or times when it may or may not be exercised (which may be
based on the satisfaction of Performance Goals or other criteria)
as the Board may deem appropriate. The vesting provisions of
individual Options may vary. The provisions of this
Section 5(e) 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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(f)
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Termination of Continuous Service. Unless explicitly
provided otherwise in the applicable Option Agreement or other
agreement between the Optionholder and the Company, in the event
that an Optionholder’s Continuous Service terminates (other
than for Cause or 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 of Continuous Service) 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 of Continuous Service, the
Optionholder does not exercise his or her Option within the time
specified herein or in the Option Agreement (as applicable), the
Option shall terminate.
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(g)
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Disability of Optionholder. Unless
explicitly provided otherwise in the applicable Option Agreement or
other agreement between the Optionholder and the Company, 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
of Continuous Service), but only within such period of time ending
on the earlier of (i) the date twelve (12) months
following such termination of 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 of Continuous Service, the
Optionholder does not exercise his or her Option within the time
specified herein or in the Option Agreement (as applicable), the
Option shall terminate.
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(h)
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Death of Optionholder. Unless explicitly provided otherwise
in the applicable Option Agreement or other agreement between the
Optionholder and the Company, in the event that (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, but only within the period ending
on the earlier of (i) the date twelve (12) months
following the date of death (or such longer or shorter period
specified in the Option Agreement), or (ii) the expiration of
the term of such Option as set forth in the Option Agreement. If,
after the Optionholder’s death, the Option is not exercised
within the time specified herein or in the Option Agreement (as
applicable), the Option shall terminate.
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(i)
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Extension of Termination Date. Unless explicitly
provided otherwise in the applicable Option Agreement or other
agreement between the Optionholder and the Company, if the exercise
of the Option following the termination of the Optionholder’s
Continuous Service (other than for Cause) 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 a period equal to the post-termination exercise
period described in Section 5(f), 5(g) or 5(h) above 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, or (ii) the expiration of the term
of the Option as set forth in the Option Agreement. In addition,
unless otherwise provided in an Optionholder’s Option
Agreement, if the sale of the Common Stock received upon exercise
of an Option following the termination of the Optionholder’s
Continuous Service (other than for Cause) would violate the
Company’s insider trading policy, then the Option shall
terminate on the earlier of (i) the expiration of a period
equal to the post-termination exercise period described in
Section 5(f), 5(g) or 5(h) above after the termination of the
Optionholder’s Continuous Service during which the exercise
of the Option would not be in violation of the Company’s
insider trading policy, (ii) the 15th day of the third
month after the date on which the Option would cease to be
exercisable but for this Section 5(i), or such longer period
as would not cause the Option to become subject to
Section 409A(a)(1) of the Code; or (iii) the expiration
of the term of the Option as set forth in the Option
Agreement.
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(j)
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Termination for Cause. Unless explicitly provided
otherwise in an Optionholder’s Option Agreement or other
agreement between the Optionholder and the Company, in the event
that an Optionholder’s Continuous Service is terminated for
Cause, the Option shall terminate upon the termination date of such
Optionholder’s Continuous Service, and the Optionholder shall
be prohibited from exercising his or her Option from and after the
time of such termination of Continuous Service.
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(k)
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Non-Exempt Employees. No Option granted to an Employee
that is a non-exempt employee for purposes of the Fair Labor
Standards Act shall be first exercisable for any shares of Common
Stock until at least six months following the date of grant of the
Option. The foregoing provision is intended to operate so that any
income derived by a non-exempt employee in connection with the
exercise or vesting of an Option will be exempt from his or her
regular rate of pay.
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6.
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Provisions of Stock Awards other than Options.
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(a)
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Restricted Stock Awards. Each Restricted Stock Award
Agreement shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. To the extent
consistent with the Company’s Bylaws, 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 Restricted Stock 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 Restricted Stock Award Agreements may change from
time to time, and the terms and conditions of separate Restricted
Stock Award Agreements need not be identical, provided, however,
that each Restricted Stock Award Agreement shall include (through
incorporation of provisions hereof by reference in the agreement or
otherwise) the substance of each of the following
provisions:
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(i)
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Consideration.
A Restricted Stock Award may be awarded in consideration for
(A) past or future services actually rendered to the Company
or an Affiliate, or (B) any other form of legal consideration
that may be acceptable to the Board in its sole discretion and
permissible under applicable law.
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(ii)
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Vesting.
Shares of Common Stock awarded under the Restricted Stock Award
Agreement may be subject to forfeiture to the Company in accordance
with a vesting schedule to be determined by the Board.
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(iii)
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Termination
of Participant’s Continuous Service. In the event a
Participant’s Continuous Service terminates, the Company may
receive via 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 Restricted Stock Award Agreement.
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(iv)
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Transferability.
Rights to acquire shares of Common Stock under the Restricted Stock
Award Agreement shall be transferable by the Participant only upon
such terms and conditions as are set forth in the Restricted Stock
Award Agreement, as the Board shall determine in its sole
discretion, so long as Common Stock awarded under the Restricted
Stock Award Agreement remains subject to the terms of the
Restricted Stock Award Agreement.
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(b)
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Restricted Stock Unit Awards. Each Restricted Stock
Unit Award Agreement shall be in such form and shall contain such
terms and conditions as the Board shall deem appropriate. The terms
and conditions of Restricted Stock Unit Award Agreements may change
from time to time, and the terms and conditions of separate
Restricted Stock Unit Award Agreements need not be identical,
provided, however, that each Restricted Stock Unit Award Agreement
shall include (through incorporation of the provisions hereof by
reference in the Agreement or otherwise) the substance of each of
the following provisions:
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(i)
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Consideration.
At the time of grant of a Restricted Stock Unit Award, the Board
will determine the consideration, if any, to be paid by the
Participant upon delivery of each share of Common Stock subject to
the Restricted Stock Unit Award. The consideration to be paid (if
any) by the Participant for each share of Common Stock subject to a
Restricted Stock Unit Award may be paid in any form of legal
consideration that may be acceptable to the Board in its sole
discretion and permissible under applicable law.
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(ii)
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Vesting.
At the time of the grant of a Restricted Stock Unit Award, the
Board may impose such restrictions or conditions to the vesting of
the Restricted Stock Unit Award as it, in its sole discretion,
deems appropriate.
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(iii)
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Payment.
A Restricted Stock Unit Award may be settled by the delivery of
shares of Common Stock, their cash equivalent, any combination
thereof or in any other form of consideration, as determined by the
Board and contained in the Restricted Stock Unit Award
Agreement.
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(iv)
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Additional
Restrictions. At the time of the grant of a Restricted Stock Unit
Award, the Board, as it deems appropriate, may impose such
restrictions or conditions that delay the delivery of the shares of
Common Stock (or their cash equivalent) subject to a Restricted
Stock Unit Award to a time after the vesting of such Restricted
Stock Unit Award.
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(v)
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Dividend
Equivalents. Dividend equivalents may be credited in respect of
shares of Common Stock covered by a Restricted Stock Unit Award, as
determined by the Board and contained in the Restricted Stock Unit
Award Agreement. At the sole discretion of the Board, such dividend
equivalents may be converted into additional shares of Common Stock
covered by the Restricted Stock Unit Award in such manner as
determined by the Board. Any additional shares covered by the
Restricted Stock Unit Award credited by reason of such dividend
equivalents will be subject to all the terms and conditions of the
underlying Restricted Stock Unit Award Agreement to which they
relate.
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(vi)
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Termination
of Participant’s Continuous Service. Except as otherwise
provided in the applicable Restricted Stock Unit Award Agreement,
such portion of the Restricted Stock Unit Award that has not vested
will be forfeited upon the Participant’s termination of
Continuous Service.
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(vii)
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Compliance
with Section 409A of the Code. Notwithstanding anything to the
contrary set forth herein, any Restricted Stock Unit Award granted
under the Plan that is not exempt from the requirements of
Section 409A of the Code shall contain such provisions so that
such Restricted Stock Unit Award will comply with the requirements
of Section 409A of the Code. Such restrictions, if any, shall
be determined by the Board and contained in the Restricted Stock
Unit Award Agreement evidencing such Restricted Stock Unit Award.
For example, such restrictions may include, without limitation, a
requirement that any Common Stock that is to be issued in a year
following the year in which the Restricted Stock Unit Award vests
must be issued in accordance with a fixed pre-determined
schedule.
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(c)
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Stock Appreciation Rights. Each Stock Appreciation
Right Agreement shall be in such form and shall contain such terms
and conditions as the Board shall deem appropriate. Stock
Appreciation Rights may be granted as stand-alone Stock Awards or
in tandem with other Stock Awards. The terms and conditions of
Stock Appreciation Right Agreements may change from time to time,
and the terms and conditions of separate Stock Appreciation Right
Agreements need not be identical; provided, however, that each
Stock Appreciation Right Agreement shall include (through
incorporation of the provisions hereof by reference in the
Agreement or otherwise) the substance of each of the following
provisions:
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(i)
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Term.
No Stock Appreciation Right shall be exercisable after the
expiration of ten (10) years from the date of its grant or
such shorter period specified in the Stock Appreciation Right
Agreement.
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(ii)
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Strike
Price. Each Stock Appreciation Right will be denominated in shares
of Common Stock equivalents. The strike price of each Stock
Appreciation Right shall not be less than one hundred percent
(100%) of the Fair Market Value of the Common Stock equivalents
subject to the Stock Appreciation Right on the date of
grant.
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(iii)
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Calculation
of Appreciation. The appreciation distribution payable on the
exercise of a Stock Appreciation Right will be not greater than an
amount equal to the excess of (A) the aggregate Fair Market
Value (on the date of the exercise of the Stock Appreciation Right)
of a number of shares of Common Stock equal to the number of share
of Common Stock equivalents in which the Participant is vested
under such Stock Appreciation Right, and with respect to which the
Participant is exercising the Stock Appreciation Right on such
date, over (B) the strike price that will be determined by the
Board at the time of grant of the Stock Appreciation
Right.
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(iv)
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Vesting.
At the time of the grant of a Stock Appreciation Right, the Board
may impose such restrictions or conditions to the vesting of such
Stock Appreciation Right as it, in its sole discretion, deems
appropriate.
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(v)
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Exercise.
To exercise any outstanding Stock Appreciation Right, the
Participant must provide written notice of exercise to the Company
in compliance with the provisions of the Stock Appreciation Right
Agreement evidencing such Stock Appreciation Right.
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(vi)
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Payment.
The appreciation distribution in respect to a Stock Appreciation
Right may be paid in Common Stock, in cash, in any combination of
the two or in any other form of consideration, as determined by the
Board and contained in the Stock Appreciation Right Agreement
evidencing such Stock Appreciation Right.
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(vii)
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Termination
of Continuous Service. In the event that a Participant’s
Continuous Service terminates (other than for Cause), the
Participant may exercise his or her Stock Appreciation Right (to
the extent that the Participant was entitled to exercise such Stock
Appreciation Right as of the date of termination) but only within
such period of time ending on the earlier of (A) the date
three (3) months following the termination of the
Participant’s Continuous Service (or such longer or shorter
period specified in the Stock Appreciation Right Agreement), or
(B) the expiration of the term of the Stock Appreciation Right
as set forth in the Stock Appreciation Right Agreement. If, after
termination, the Participant does not exercise
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