Exhibit 10.2
US ONCOLOGY HOLDINGS,
INC.
AMENDED AND
RESTATED
DIRECTOR STOCK OPTION
AND
RESTRICTED STOCK AWARD
PLAN
October 1, 2009
The mission of US Oncology Holdings,
Inc., through its wholly-owned subsidiary US Oncology, Inc., is to
increase access to and advance the delivery of high-quality cancer
care in community-based settings throughout the United States. The
Company understands that it must have a highly motivated, focused
and committed board of directors to accomplish its mission and
objectives. The purposes of this Amended and Restated Director
Stock Option and Restricted Stock Award Plan (the “
Plan ”) are (i) to provide additional incentive
for securing and retaining qualified non-employee persons to serve
on the Board of Directors of the Company and (ii) to enhance
the future growth of the Company by furthering such persons’
identification with the interests of the Company and its
stockholders. It is intended that Stock Options granted under this
Plan will be Non-Qualified Stock Options.
The following definitions are
applicable to the Plan.
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(a)
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“ 1934
Act ” means the Securities Exchange Act of 1934, as
amended, or any successor statute.
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(b)
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“
Affiliate ” means, with respect to any specified
Person, a Person that directly, or indirectly through one or more
intermediaries, Controls, is Controlled by or is under common
Control with, the specified Person; provided, that, for purposes of
the definition of Third Party contained in Section XV(b)(i) of the
Plan, no portfolio company of WCAS IX (or of any other investment
partnership under common control with WCAS IX) shall be deemed to
be an Affiliate of the Company or WCAS IX unless a majority of the
outstanding voting securities of such portfolio company are owned
by WCAS IX and/or such other investment partnership.
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(c)
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“
Amendment Effective Date ” shall mean October 1,
2009, the date upon which the Amended and Restated Director Stock
Option and Restricted Stock Award Plan is adopted by the
stockholders of the Company.
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(d)
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“
Award Share ” means an Option Share or a share of
Restricted Stock (whether or not vested or subject to forfeiture or
other restrictions), regardless of whether the holder of such share
is the Participant in respect of which such Stock Option or
Restricted Stock was originally awarded under the Plan or a direct
or indirect transferee thereof.
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(e)
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“
Board ” means the Board of Directors of the
Company.
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(f)
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“
Business Day ” means a day other than a day on which
commercial banks in New York, New York or Houston, Texas are
authorized or required by law to close.
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(g)
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“
Code ” means the Internal Revenue Code of 1986, as
amended.
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(h)
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“
Committee ” means the compensation committee of the
Board (or, if there is no such committee, the Board committee
performing equivalent functions), which, from and after the date
the Company registers any class of its equity securities pursuant
to Section 12 of the 1934 Act, shall be comprised of at least
two members of the Board who are (i) “non-employee
directors” as defined under rules and regulations promulgated
under Section 16(b) of the 1934 Act and
(ii) “outside directors” as defined in
Section 162(m) of the Code. The Board shall have the power to
fill vacancies on the Committee arising by resignation, death,
removal or otherwise. The Committee may delegate ministerial tasks
to such persons as it deems appropriate.
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(i)
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“
Company ” means US Oncology Holdings, Inc., a Delaware
corporation.
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(j)
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“
Control ” (including the terms
“Controlling”, “Controlled by” and
“under common Control with”) means the possession,
direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the
ownership of voting securities, by contract or
otherwise.
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(k)
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“
Effective Date ” means October 15, 2004, the date
this Plan was originally adopted by the stockholders of the
Company.
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(l)
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“
Eligible Director ” means a person who as of any
applicable date (i) is a member of the Board, (ii) is not
an officer of the Company or any subsidiary of the Company,
(iii) is not a full-time employee of the Company or any of its
subsidiaries and (iv) is not an employee, partner or Affiliate
of Welsh, Carson, Anderson & Stowe or Morgan
Stanley & Co. Incorporated.
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(m)
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“ Fair Market Value
” means, with respect to a share of Stock on any date herein
specified, (i) if the shares of Stock are listed or admitted
for trading on a national securities exchange, the reported closing
sales price regular way, or, in case no such reported sale takes
place on such day, the average of the reported closing bid and
asked prices regular way, in either case on the principal national
securities exchange on which the shares of Stock are listed or
admitted for trading, or (ii) if the shares of Stock are not
listed or admitted for trading on a national securities exchange,
(A) the closing transaction price of the shares of Stock on
the National Association of Securities Dealers Automated Quotation
System (“ NASDAQ ”) or, in the case no such
reported transaction takes place on such day, the average of the
reported closing bid and asked prices thereof quoted on NASDAQ, or
(B) if
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the shares of Stock are not quoted
on NASDAQ, the average of the closing bid and asked prices of the
shares of Stock in the over-the-counter market, as reported by
The National Quotation Bureau, Inc., or an equivalent generally
accepted reporting service, or (iii) if on any such day the
shares of Stock are not quoted by any such organization, the fair
market value per share of Stock on such day, as determined in good
faith by the Committee. If the Fair Market Value of Stock is to be
determined as of a day other than a trading day, the Fair Market
Value of Stock for such day shall be determined as described above
on the last trading day ending prior to the date as of which the
determination is being made. If, in the discretion of the
Committee, another means of determining Fair Market Value shall be
necessary or advisable in order to comply with the requirements of
Section 162(m) of the Code or any other applicable law,
governmental regulation, or ruling of any governmental entity, then
the Committee may provide for another means of such
determination.
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(n)
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“
Option Date ” means, with respect to any Stock Option,
the date on which the Stock Option is awarded under the
Plan.
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(o)
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“
Option Share ” means any share of Stock issued upon
exercise of a Stock Option, regardless of whether the Holder of
such share is the Participant in respect of which such Stock Option
was originally issued under the Plan or a transferee
thereof.
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(p)
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“
Non-Qualified Stock Option ” means a Stock Option that
does not qualify for treatment as an Incentive Stock Option, as
defined under the Code.
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(q)
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“
Participant ” means an Eligible Director who is
granted a Stock Option or award of Restricted Stock
hereunder.
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(r)
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“
Permitted Transferees ” means a member of a
Participant’s immediate family, trusts for the benefit of the
Participant or such immediate family members, and partnerships in
which the Participant or such immediate family members are the only
partners, provided that no consideration is provided for the
transfer. Immediate family members shall include a
Participant’s spouse and descendants (children, grandchildren
and more remote descendants), and shall include step-children and
relationships arising from legal adoption.
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(s)
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“
Person ” means any natural person, corporation,
limited liability company, partnership, trust, joint stock company,
business trust, unincorporated association, joint venture,
governmental authority or other legal entity of any nature
whatsoever.
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(t)
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“
Restricted Period ” has the meaning given to it in
Article IX.
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(u)
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“
Restricted Stock ” is Stock that may be issued to
Eligible Directors, the vesting of which may be subject to a
required period of employment or service as a director, or any
other conditions established by the Committee.
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(v)
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“
Restricted Stock Agreement ” means the agreement
entered into at the time of any awards of Restricted Stock under
the Plan.
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(w)
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“
Stock ” means the common stock of the Company, par
value $0.001 per share.
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(x)
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“
Stock Option ” means the right of a Participant to
purchase Stock pursuant to a Stock Option awarded pursuant to the
provisions of the Plan.
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(y)
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“
Subsidiary ” means, during any period, any corporation
or other entity of which 50% or more of the total combined voting
power of all classes of stock (or other equity interests in the
case of an entity other than a corporation) entitled to vote is
owned, directly or indirectly, by the Company.
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(z)
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“
Terminate ” means cease to be a Director of the
Company.
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(aa)
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“
Termination of Directorship ” means the date upon
which any Participant ceases to be a Director for any reason
whatsoever. The effective date of such Termination of Directorship
shall be the actual date of such termination (by death, disability,
retirement, resignation, non-election or otherwise).
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(bb)
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“
Transfer ” means a transfer, sale, assignment, pledge,
hypothecation or other disposition (including by operation of law),
whether directly or indirectly pursuant to the creation of a
derivative security, the grant of an option or other right or the
imposition of a restriction on disposition or voting.
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(cc)
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“ US
Oncology ” means US Oncology, Inc., a Delaware
corporation.
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(dd)
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“ WCAS
IX ” shall mean Welsh, Carson, Anderson & Stowe
IX, L.P., a Delaware limited partnership.
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III.
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Grants of
Stock Options and Restricted Stock Awards
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Stock Options and Restricted Stock
will be granted only to individuals who are Eligible Directors of
the Company.
(a) Each Eligible Director on the
Effective Date shall receive on the Effective Date, without the
exercise of the discretion of any person or persons, a Stock Option
to purchase 5,000 Shares. In addition, each Eligible Director on
the Effective Date who serves on a committee of the Board or on the
Audit Committee of US Oncology, Inc. as of the Effective Date shall
receive on the Effective Date, without the exercise of the
discretion of any person or persons, a Stock Option to purchase
1,000 Shares.
(b) Each Eligible Director on the
Amendment Effective Date shall receive on the Amendment Effective
Date, upon execution of a Restricted Stock Agreement, 15,000 shares
of Restricted Stock; provided, that to the extent that such
Eligible Director was first elected to the Board during or after
2009, he or she shall receive on the later of the Amendment
Effective Date or the date of his or her election to the Board,
upon execution
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of a Restricted Stock Agreement,
25,000 shares of Restricted Stock. In addition, each Eligible
Director on the Amendment Effective Date who serves on a committee
of the Board or on the Audit Committee of US Oncology, Inc. as of
the Amendment Effective Date shall receive on the Amendment
Effective Date, upon execution of a Restricted Stock Agreement,
1,000 shares of Restricted Stock.
(c) On the date of the 2010 annual
meeting of stockholders of the Company and each annual meeting of
stockholders thereafter, each Eligible Director who is in office
after giving effect to the election of directors at such meeting
shall receive, upon execution of a Restricted Stock Agreement,
10,000 shares of Restricted Stock. At the first Board meeting
following the 2010 annual meeting of stockholders and each annual
meeting of stockholders thereafter, each Eligible Director
appointed at such meeting to any committee of the Board, or who is
a member of any committee of the Board or the Audit Committee of US
Oncology, Inc after giving effect to all appointments at such
meeting, shall receive, upon execution of a Restricted Stock
Agreement, 1,000 shares of Restricted Stock for each such committee
to which such Eligible Director is appointed.
(d) At its own discretion and under
the terms of this Plan, the Committee may from time to time grant
additional Stock Options or awards of Restricted Stock to Eligible
Directors.
(e) All Stock Options and awards of
Restricted Stock granted under the Plan shall be shall be subject
to adjustment as provided in Article VII and to the terms and
conditions set forth in Articles VIII and IX, respectively. All
Stock Options granted under the Plan shall be evidenced by a
written option agreement and all awards of Restricted Stock under
the Plan shall be evidenced by a Restricted Stock
Agreement.
(a) The Plan shall be administered
by the Committee. If for any reason there is no Committee, the
duties of the Committee shall be performed by the Board. The
Committee is authorized to interpret the Plan, to establish, amend,
and rescind any rules and regulations relating to the Plan, to
determine the terms and provisions of any agreements made pursuant
to the Plan, to modify such agreements, and to make all other
determinations that may be necessary or advisable for the
administration of the Plan; provided, that, except as expressly
provided in the Plan, the Committee may not, without the
Participant’s consent, alter the terms of any award so as to
affect adversely the Participant’s rights under the award;
and provided further, that, if any such interpretation, rule,
regulation, agreement, modification or other determination would
adversely affect the rights of WCAS IX under Article XV of the
Plan, the Committee shall not take such action without the prior
written consent of WCAS IX. Decisions of the Committee (including
decisions regarding the interpretation and application of the Plan)
shall be binding on the Company and on all Participants and other
interested parties. From and after the date the Company registers
any class of its equity securities pursuant to Section 12 of
the 1934 Act, with respect to persons subject to Section 16 of
the 1934 Act, transactions under the Plan are intended to comply
with all applicable conditions of Rule
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16b-3 or its successor rule or
statute under the 1934 Act. To the extent any provision of the Plan
or action by the Committee fails to so comply, it shall be deemed
null and void, to the extent permitted by law.
(b) The Board may, in its
discretion, delegate duties to an officer or employee or a
committee composed of officers or employees of the Company, but it
may not delegate its authority to apply and interpret this
Plan.
The term of this Plan commences on
the Effective Date and terminates on the tenth anniversary of the
Effective Date. This Plan shall remain in effect for the purposes
of administration of any Stock Option or award of Restricted Stock
granted pursuant to its provisions and no such Stock Option or
award of Restricted Stock granted during the term of this Plan
shall be adversely affected by the termination of the
Plan.
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VI.
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Shares
Reserved for Awards
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Subject to adjustments as provided
in Article VII hereof, a total of 1,000,000 shares of Stock shall
be subject to the Plan. The Stock subject to the Plan shall be and
are hereby reserved for sale for such purposes. Any of the Stock
which remain unsold and which are not subject to outstanding Stock
Options or awards of Restricted Stock at the termination of the
Plan shall cease to be reserved for the purposes of the Plan. If
any award under the Plan or any portion of the award, shall expire,
terminate or be forfeited or cancelled, or be settled in cash
pursuant to the terms of the Plan and, therefore, any such shares
are no longer distributable under the award, such shares of Stock
shall again be available for award under the Plan, subject to the
foregoing limits. Notwithstanding the foregoing, in order to comply
with Section 162(m) of the Code, the Committee shall take into
account that (1) if a Stock Option or award of Restricted
Stock is canceled, the canceled Stock Option or award of Restricted
Stock continues to be counted against the maximum number of shares
for which Stock Options or Restricted Stock may be granted to the
Participant under the Plan and (2) for purposes of
Section 162(m) of the Code, if after the grant of a Stock
Option, the Committee reduces the purchase price of the Stock
Option, the transaction is treated as a cancellation of the Stock
Option and a grant of a new Stock Option, and in such case, both
the Stock Option that is deemed to be canceled and the Stock Option
that is deemed to be granted reduce the maximum number of shares
for which Stock Options may be granted to the Participant under the
Plan.
(a) The existence of outstanding
Stock Options or awards of Restricted Stock shall not affect in any
way the right or power of the Company or its stockholders to make
or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company’s capital
structure or its business, or any merger or consolidation of the
Company, or any issue of bonds, debentures, preferred or prior
preference stock ahead of, or affecting, the Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or
any other corporate act or proceeding, whether of a similar
character or otherwise.
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(b) Adjustments to Number of Shares
Subject to the Plan. In the event of any change in the outstanding
shares of Stock of the Company by reason of any stock dividend,
split, spinoff, recapitalization, merger, consolidation,
combination, extraordinary dividend, exchange of shares or other
similar change, the aggregate number and class of shares of Company
capital stock with respect to which awards may be made under the
Plan, and the terms (including exercise price) and the number and
class of shares subject to any outstanding Stock Options or awards
of Restricted Stock shall be equitably adjusted by the
Committee.
(c) Change in Stock and Adjustments.
If, while unexercised Stock Options or awards of Restricted Stock
remain outstanding under the Plan, the Company is merged into or
consolidated with another corporation under circumstances where the
Company is not the surviving corporation or the Company is
liquidated or sells or otherwise disposes of substantially all its
assets to another corporation, the Committee may provide for the
assumption of some or all outstanding Stock Options or Restricted
Stock, or for the grant of new awards in substitution therefor, by
the acquiror or survivor or Affiliate of the acquiror or survivor,
in each case on such terms and subject to such conditions as the
Committee de
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