Exhibit 4.7
CHOLESTECH CORPORATION
1999
NONSTATUTORY STOCK OPTION PLAN
(AS AMENDED EFFECTIVE JUNE 2001)
1. Purposes of the Plan. The
purposes of this Nonstatutory Stock Option Plan are:
• to attract and retain the best available
personnel for positions of substantial responsibility,
• to provide additional incentive to Employees,
Directors and Consultants, and
• to promote the success of the Company’s
business.
Options granted under the Plan will
be Nonstatutory Stock Options.
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) “Code”
means the Internal Revenue Code of 1986, as amended.
(e) “Committee”
means a committee of Directors appointed by the Board in accordance
with Section 4 of the Plan.
(f) “Common
Stock” means the Common Stock of the Company.
(g) “Company”
means Cholestech Corporation, a California corporation.
(h) “Consultant”
means any person, including an advisor, engaged by the Company or a
Parent or Subsidiary to render services to such entity.
(i) “Director”
means a member of the Board.
(j) “Disability”
means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(k) “Employee”
means any person, including Officers, 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. Neither service as a Director nor payment of a
director’s fee by the Company shall be sufficient to
constitute “employment” by the Company.
(l) “Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
(m) “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 for the last market
trading day prior to the time 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 last
market trading day prior to 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.
(n) “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.
(o) “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.
(p) “Option”
means a nonstatutory stock option granted pursuant to the Plan,
that is not intended to qualify as an incentive stock option within
the meaning of Section 422 of the Code and the regulations
promulgated thereunder.
(q) “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.
(r) “Option
Exchange Program” means a program whereby outstanding options
are surrendered in exchange for options with a lower
exercise price.
(s) “Optioned
Stock” means the Common Stock subject to an Option.
(t) “Optionee”
means the holder of an outstanding Option granted under the
Plan.
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(u) “Parent”
means a “parent corporation,” whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(v) “Plan”
means this 1999 Nonstatutory Stock Option Plan.
(w) “Service
Provider” means an Employee, Consultant or Director.
(x) “Share”
means a share of the Common Stock, as adjusted in accordance with
Section 12 of the Plan.
(y) “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 12 of the Plan, the
maximum aggregate number of Shares which may be optioned and sold
under the Plan is one million five hundred thousand (1,500,000)
Shares. The Shares may be authorized, but unissued, or reacquired
Common Stock.
If an Option expires or becomes
unexercisable without having been exercised in full, or is
surrendered pursuant to an Option Exchange Program, the unpurchased
Shares which were subject thereto shall become available for future
grant or sale under the Plan (unless the Plan has
terminated).
4. Administration of the
Plan.
(a) Administration.
The Plan shall be administered by (i) the Board or (ii) 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 of the Common Stock;
(ii) to
select the Service Providers to whom Options may be granted
hereunder;
(iii) to
determine whether and to what extent Options are granted
hereunder;
(iv) to
determine the number of shares of Common Stock to be covered by
each Option granted hereunder;
(v) to
approve forms of agreement for use under the Plan;
(vi) to
determine the terms and conditions, not inconsistent with the terms
of the Plan, of any award 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
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restrictions, and any restriction or limitation regarding any
Option or the shares of Common Stock relating thereto, based in
each case on such factors as the Administrator, in its sole
discretion, shall determine;
(vii) to
reduce the exercise price of any Option to the then current Fair
Market Value if the Fair Market Value of the Common Stock covered
by such Option shall have declined since the date the Option was
granted;
(viii) to
institute an Option Exchange Program;
(ix) to
construe and interpret the terms of the Plan and awards granted
pursuant to the Plan;
(x) to
prescribe, amend and rescind rules and regulations relating to the
Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax
treatment under foreign tax laws;
(xi) to
modify or amend each Option (subject to Section 14(b) 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;
(xii) 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;
(xiii) to
determine the terms and restrictions applicable to Options;
(xiv) 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 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; and
(xv) 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. Options may be
granted to Service Providers; provided, however, that Options may
not be granted to Officers and Directors, except in connection with
an Officer’s or Director’s initial service to the
Company.
6. Limitation. 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.
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7. Term of Plan. The Plan shall
become effective upon its adoption by the Board. It shall continue
in effect for ten (10) years, unless sooner
terminated under Section 14 of the Plan.
8. Term of Option. The term of
each Option shall be stated in the Option Agreement.
9. Option Exercise Price and
Consideration.
(a) Exercise
Price. The per share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be determined by the
Administrator.
(b) Waiting
Period and Exercise Dates. At the time an Option is granted, the
Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions which must be
satisfied before the Option may be exercised.
(c) Form
of Consideration. The Administrator shall determine the acceptable
form of consideration for exercising an Option, including the
method of payment. Such consideration may consist entirely
of:
(i) cash;
(ii) check;
(iii) promissory
note;
(iv) other
Shares which (A) in the case of Shares acquired upon exercise
of an option, have been owned by the Optionee for more than six
months on the date of surrender, and (B) have a Fair Market
Value on the date of surrender equal to the aggregate exercise
price of the Shares as to which said Option shall be
exercised;
(v) consideration
received by the Company under a cashless exercise program
implemented by the Company in connection with the Plan;
(vi) a
reduction in the amount of any Company liability to the Optionee,
including any liability attributable to the Optionee’s
participation in any Company-sponsored deferred compensation
program or arrangement;
(vii) such
other consideration and method of payment for the issuance of
Shares to the extent permitted by Applicable Laws; or
(viii) any
combination of the foregoing methods of payment.
10. Exercise of Option.
(a) Procedure
for Exercise; Rights as a Shareholder. Any Option granted hereunder
shall be exercisable according to the terms of the Plan and at such
times and under such conditions as determined by the Administrator
and set forth in the Option Agreement. An Option may not be
exercised for a fraction of a Share.
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An Option shall be deemed exercised
when the Company receives: (i) written or electronic notice of
exercise (in accordance with the Option Agreement) from the person
entitled to exercise the Option, and (ii) full payment for the
Shares with respect to which the Option is exercised. Full payment
may consist of any consideration and method of payment authorized
by the Administrator and permitted by the Option Agreement and the
Plan. Shares issued upon exercise of an Option shall be issued in
the name of the Optionee or, if requested by the Optionee, in the
name of the Optionee and his or her spouse. Until the Shares are
issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), no
right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. The Company shall issue
(or cause to be issued) such Shares promptly after the Option is
exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the Shares are
issued, except as provided in Section 12 of the Plan.
Exercising an Option in any manner
shall decrease the number of Shares thereafter available, both for
purposes of the Plan and for sale under the Option, by the number
of Shares as to which the Option is exercised.
(b) Termination
of Relationship as a Service Provider. If an Optionee ceases to be
a Service Provider, other than upon the Optionee’s death or
Disability, the Optionee may exercise his or her Option, but only
within such period of time as is specified in the Option Agreement,
and only to the extent that the Option is vested on the date of
termination (but in no event later than the expiration of the term
of such Option as set forth in the Option Agreement). In the
absence of a specified time in the Option Agreement, the Option
shall remain exercisable for three (3) months following the
Optionee&rsq
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