Exhibit 10.1
EMCORE CORPORATION
AMENDED AND RESTATED 2000
STOCK OPTION PLAN
Revised April 30,
2009
1. Purposes . The purposes
of the EMCORE Corporation 2000 Stock Option Plan are to give
officers and other employees, consultants and non-employee
directors of the Company and its Affiliates an opportunity to
acquire shares of Stock, to provide an incentive for such
employees, consultants and directors to continue to promote the
best interests of the Company and its Affiliates and enhance its
long-term performance and to provide an incentive for such
employees, consultants and directors to join or remain with the
Company and its Affiliates. Toward these objectives, the Committee
may grant Options to such employees, directors and consultants, all
pursuant to the terms and conditions of the Plan.
2. Definitions . As used in
the Plan, the following capitalized terms shall have the meanings
set forth below:
(a) “ Affiliate ” -
other than the Company, (i) any corporation or limited liability
company in an unbroken chain of corporations or limited liability
companies ending with the Company if each corporation or limited
liability company owns stock or membership interests (as
applicable) possessing more than fifty percent (50%) of the total
combined voting power of all classes of stock in one of the other
corporations or limited liability companies in such chain; (ii) any
corporation, trade or business (including, without limitation, a
partnership or limited liability company) which is more than fifty
percent (50%) controlled (whether by ownership of stock, assets or
an equivalent ownership interest or voting interest) by the Company
or one of its Affiliates; or (iii) any other entity, approved by
the Committee as an Affiliate under the Plan, in which the Company
or any of its Affiliates has a material equity interest.
(b) “ Agreement ” - a
written stock option award agreement evidencing an Option, as
described in Section 3(e).
(c) “ Award Limit ” -
300,000 shares of Stock (as adjusted in accordance with Section
10).
(d) “ Beneficial Ownership
” - (including correlative terms) shall have the same meaning
given such term in Rule 13d-3 promulgated under the Exchange
Act.
(e) “ Board ” - the
Board of Directors of the Company.
(f) “ Change in Control
” - the occurrence of any of the following:
(i) an
acquisition in one transaction or a series of related transactions
(other than directly from the Company or pursuant to Options
granted under the Plan or other similar awards granted by the
Company) of any Voting Securities by any Person, immediately after
which such Person has Beneficial Ownership of fifty percent (50%)
or more of the combined voting power of the Company’s then
outstanding Voting Securities; provided , however ,
in determining whether a Change in Control has occurred pursuant to
this Section 2(f), Voting Securities which are acquired in a
Non-Control Acquisition shall not constitute an acquisition that
would cause a Change in Control;
(ii) the
individuals who, immediately prior to the Effective Date, are
members of the Board (the “ Incumbent Board ”),
cease for any reason to constitute at least a majority of the
members of the Board; provided , however , that if
the election, or nomination for election, by the Company’s
common stockholders, of any new director was approved by a vote of
at least a majority of the Incumbent Board, such new director
shall, for purposes of the Plan, be considered as a member of the
Incumbent Board; provided further , however , that no
individual shall be considered a member of the Incumbent Board if
such individual initially assumed office as a result of either an
actual or threatened “Election Contest” (as described
in Rule 14a-11 promulgated under the Exchange Act) or other actual
or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board (a “ Proxy Contest
”) including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(iii) the consummation of:
(A) a merger, consolidation or reorganization involving the
Company unless :
(1) the stockholders of the Company, immediately before such
merger, consolidation or reorganization, own, directly or
indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined
voting power of the outstanding voting securities of the
corporation resulting from such merger or consolidation or
reorganization (the “ Surviving Corporation ”)
in substantially the same proportion as their ownership of the
Voting Securities immediately before such merger, consolidation or
reorganization,
(2) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for
such merger, consolidation or reorganization constitute at least a
majority of the members of the board of directors of the Surviving
Corporation, or a corporation Beneficially Owning, directly or
indirectly, a majority of the voting securities of the Surviving
Corporation, and
(3) no Person, other than (i) the Company, (ii) any
Related Entity (as defined in Section 2(p)), (iii) any employee
benefit plan (or any trust forming a part thereof) that,
immediately prior to such merger, consolidation or reorganization,
was maintained by the Company, the Surviving Corporation, or any
Related Entity or (iv) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or
reorganization had Beneficial Ownership of fifty percent (50%) or
more of the then outstanding Voting Securities, owns, together with
its Affiliates, Beneficial Ownership of fifty percent (50%) or more
of the combined voting power of the Surviving Corporation’s
then outstanding voting securities (a transaction described in
clauses (1) through (3) above is referred to herein as a “
Non-Control Transaction ”);
(B) a
complete liquidation or dissolution of the Company; or
(C) an agreement for the sale or
other disposition of all or substantially all of the assets or
business of the Company to any Person (other than a transfer to a
Related Entity or the distribution to the Company’s
stockholders of the stock of a Related Entity or any other
assets).
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the “
Subject Person ”) acquired Beneficial Ownership of
fifty percent (50%) or more of the combined voting power of the
then outstanding Voting Securities as a result of the acquisition
of Voting Securities by the Company which, by reducing the number
of Voting Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of
Voting Securities by the Company, and (1) before such share
acquisition by the Company the Subject Person becomes the
Beneficial Owner of any new or additional Voting Securities in a
related transaction or (2) after such share acquisition by the
Company the Subject Person becomes the Beneficial Owner of any new
or additional Voting Securities which in either case increases the
percentage of the then outstanding Voting Securities Beneficially
Owned by the Subject Person, then a Change in Control shall be
deemed to occur. Solely for purposes of this Section 2(f), (x)
“Affiliate” shall mean, with respect to any Person, any
other Person that, directly or indirectly, controls, is controlled
by, or is under common control with, such Person; (y) any
“Relative” (for this purpose, “Relative”
means a spouse, child, parent, parent of spouse, sibling or
grandchild) of an individual shall be deemed to be an Affiliate of
such individual for this purpose; and (z) neither the Company nor
any Person controlled by the Company shall be deemed to be an
Affiliate of any holder of Common Stock.
(g) “ Code ” - the
Internal Revenue Code of 1986, as it may be amended from time to
time, including regulations and rules thereunder and successor
provisions and regulations and rules thereto.
(h) “ Committee ” - the
Compensation Committee of the Board, or such other Board committee
as may be designated by the Board to administer the
Plan.
(i) “ Company ” - EMCORE
Corporation, a New Jersey corporation, or any successor
entity.
(j) “ Disqualified Option
” - the meaning given such term in Section 10(d).
(k) “ Disqualifying
Disposition ” - the meaning given such term in Section
10(d).
(l) “ Effective Date ” -
the date on which the Plan is effective, as determined pursuant to
Section 15.
(m) “ Exchange Act ” -
the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
(n) “ Fair Market Value
” - of a share of Stock as of a given date shall be: (i) if
the Stock is listed or admitted to trading on an established stock
exchange (including, for this purpose, the Nasdaq National Market),
the mean of the highest and lowest sale prices for a share of Stock
on the composite tape or in Nasdaq National Market trading as
reported in The Wall Street Journal (or, if not so reported,
such other nationally recognized reporting source as the Committee
shall select) for such date, or, if no such prices are reported for
such date, the most recent day for which such prices are available
shall be used; (ii) if the Stock is not then listed or admitted to
trading on such a stock exchange, the mean of the closing
representative bid and asked prices for the Stock on such date as
reported by the Nasdaq Small Cap Market or, if not so reported, by
the OTC Bulletin Board (or any successor or similar quotation
system regularly reporting the market value of the Stock in the
over-the-counter market), or, if no such prices are reported for
such date, the most recent day for which such prices are available
shall be used; or (iii) in the event neither of the valuation
methods provided for in clauses (i) and (ii) above are practicable,
the fair market value of a share of Stock determined by such other
reasonable valuation method as the Committee shall, in its
discretion, select and apply in good faith as of the given date;
provided , however , that for purposes of paragraphs
(a) and (h) of Section 6, such fair market value shall be
determined subject to Section 422(c)(7) of the Code.
(o) “ ISO ” or “
Incentive Stock Option ” - a right to purchase Stock
granted to an Optionee under the Plan in accordance with the terms
and conditions set forth in Section 6 and which conforms to the
applicable provisions of Section 422 of the Code.
(p) “ Non-Control Acquisition
” - an acquisition by (i) an employee benefit plan (or a
trust forming a part thereof) maintained by (A) the Company or (B)
any corporation or other Person of which a majority of its voting
power or its voting equity securities or equity interest is owned,
directly or indirectly, by the Company (a “ Related
Entity ”), (ii) the Company or any Related Entity, (iii)
any of Thomas Russell, The AER Trust 1997, Robert Louis-Dreyfus,
Gallium Enterprises, Inc. and Reuben Richards or (iv) any Person in
connection with a Non-Control Transaction.
(q) “ Notice ” - written
notice actually received by the Company at its executive offices on
the day of such receipt, if received on or before 1:30 p.m., on a
day when the Company’s executive offices are open for
business, or, if received after such time, such notice shall be
deemed received on the next such day, which notice may be delivered
in person to the Company’s Secretary or sent by facsimile to
the Company at (732) 271-9686, or sent by certified or registered
mail or overnight courier, prepaid, addressed to the Company at 394
Elizabeth Avenue, Somerset, New Jersey 08873, Attention:
Secretary.
(r) “ Option ” - a right
to purchase Stock granted to an Optionee under the Plan in
accordance with the terms and conditions set forth in Section 6.
Options may be either ISOs or stock options other than
ISOs.
(s) “ Optionee ” - an
individual who is eligible, pursuant to Section 5, and who has been
selected, pursuant to Section 3(c), to participate in the Plan, and
who holds an outstanding Option granted to such individual under
the Plan in accordance with the terms and conditions set forth in
Section 6.
(t) “ Person ” -
“person” as such term is used for purposes of Section
13(d) or 14(d) of the Exchange Act, including, without limitation,
any individual, corporation, limited liability company,
partnership, trust, unincorporated organization, government or any
agency or political subdivision thereof, or any other entity or any
group of Persons.
(u) “ Plan ” - this
EMCORE Corporation 2000 Stock Option Plan.
(v) “ Predecessor Plan ”
- the Company’s 1995 Incentive and Non-Statutory Stock Option
Plan.
(w) “ Securities Act ” -
the Securities Act of 1933, as it may be amended from time to time,
including the regulations and rules promulgated thereunder and
successor provisions and regulations and rules thereto.
(x) “ Stock ” - the
common stock of the Company, without par value.
(y) “ Subsidiary ” - any
present or future corporation which is or would be a
“subsidiary corporation” of the Company as the term is
defined in Section 424(f) of the Code.
(z) “ Voting Securities
” - all the outstanding voting securities of the Company
entitled to vote generally in the election of the Board.
3. Administration of the
Plan .
(a) The Committee shall have exclusive authority
to operate, manage and administer the Plan in accordance with its
terms and conditions. Notwithstanding the foregoing, in its
absolute discretion, the Board may at any time and from time to
time exercise any and all rights, duties and responsibilities of
the Committee under the Plan, including, but not limited to,
establishing procedures to be followed by the Committee, but
excluding matters which under any applicable law, regulation or
rule, including, without limitation, any exemptive rule under
Section 16 of the Exchange Act (including Rule 16b-3, or any
successor rule, as the same may be amended from time to time) or
Section 162(m) of the Code, are required to be determined in the
sole discretion of the Committee. If and to the extent that no
Committee exists which has the authority to administer the Plan,
the functions of the Committee shall be exercised by the
Board.
(b) The Committee shall be appointed from
time to time by the Board, and the Committee shall consist of not
less than three members of the Board. Appointment of Committee
members shall be effective upon their acceptance of such
appointment. Committee members may be removed by the Board at any
time either with or without cause, and such members may resign at
any time by delivering notice thereof to the Board. Any vacancy on
the Committee, whether due to action of the Board or any other
reason, shall be filled by the Board.
(c) The Committee shall have full authority
to grant, pursuant to the terms of the Plan, Options to those
individuals who are eligible to receive Options under the Plan. In
particular, the Committee shall have discretionary authority, in
accordance with the terms of the Plan, to: determine eligibility
for participation in the Plan; select, from time to time, from
among those eligible, the employees, directors and consultants to
whom Options shall be granted under the Plan, which selection may
be based upon information furnished to the Committee by the
Company’s or an Affiliate’s management; determine
whether an Option shall take the form of an ISO or an Option other
than an ISO; determine the number of shares of Stock to be included
in any Option and the periods for which Options will be
outstanding; establish and administer any terms, conditions,
performance criteria, restrictions, limitations, forfeiture,
vesting or exercise schedule, and other provisions of or relating
to any Option; grant waivers of terms, conditions, restrictions and
limitations under the Plan or applicable to any Option, or
accelerate the vesting or exercisability of any Option; amend or
adjust the terms and conditions of any outstanding Option and/or
adjust the number and/or class of shares of Stock subject to any
outstanding Option; at any time and from time to time after the
granting of an Option, specify such additional terms, conditions
and restrictions with respect to any such Option as may be deemed
necessary or appropriate to ensure compliance with any and all
applicable laws or rules, including, but not limited to, terms,
restrictions and conditions for compliance with applicable
securities laws, regarding an Optionee’s exercise of Options
by tendering shares of Stock or under any “cashless
exercise” program established by the Committee, and methods
of withholding or providing for the payment of required taxes; and,
to the extent permitted under the applicable Agreement, permit the
transfer of an Option or the exercise of an Option by one other
than the Optionee who received the grant of such Option (other than
any such a transfer or exercise which would cause any ISO to fail
to qualify as an “incentive stock option” under Section
422 of the Code).
(d) The Committee shall have all authority
that may be necessary or helpful to enable it to discharge its
responsibilities with respect to the Plan. Without limiting the
generality of the foregoing sentence or Section 3(a), and in
addition to the powers otherwise expressly designated to the
Committee in the Plan, the Committee shall have the exclusive right
and discretionary authority to interpret the Plan and the
Agreements; construe any ambiguous provision of the Plan and/or the
Agreements and decide all questions concerning eligibility for and
the amount of Options granted under the Plan. The Committee may
establish, amend, waive and/or rescind rules and regulations and
administrative guidelines for carrying out the Plan and may correct
any errors, supply any omissions or reconcile any inconsistencies
in the Plan and/or any Agreement or any other instrument relating
to any Options. The Committee shall have the authority to adopt
such procedures and subplans and grant Options on such terms and
conditions as the Committee determines necessary or appropriate to
permit participation in the Plan by individuals otherwise eligible
to so participate who are foreign nationals or employed outside of
the United States, or otherwise to conform to applicable
requirements or practices of jurisdictions outside of the United
States; and take any and all such other actions it deems necessary
or advisable for the proper operation and/or administration of the
Plan. The Committee shall have full discretionary authority in all
matters related to the discharge of its responsibilities and the
exercise of its authority under the Plan. Decisions and actions by
the Committee with respect to the Plan and any Agreement shall be
final, conclusive and binding on all persons having or claiming to
have any right or interest in or under the Plan and/or any
Agreement.
(e) Each Option shall be evidenced by an
Agreement, which shall be executed by the Company and the Optionee
to whom such Option has been granted, unless the Agreement provides
otherwise; two or more Options granted to a single Optionee may,
however, be combined in a single Agreement. An Agreement shall not
be a precondition to the granting of an Option; no person shall
have any rights under any Option, however, unless and until the
Optionee to whom the Option shall have been granted (i) shall have
executed and delivered to the Company an Agreement or other
instrument evidencing the Option, unless such Agreement provides
otherwise, and (ii) has otherwise complied with the applicable
terms and conditions of the Option. The Committee shall prescribe
the form of all Agreements, and, subject to the terms and
conditions of the Plan, shall determine the content of all
Agreements. Any Agreement may be supplemented or amended in writing
from time to time as approved by the Committee; provided
that the terms and conditions of any such Agreement as supplemented
or amended are not inconsistent with the provisions of the
Plan.
(f) A majority of the members of the entire
Committee shall constitute a quorum and the actions of a majority
of the members of the Committee in attendance at a meeting at which
a quorum is present, or actions by a written instrument signed by
all members of the Committee, shall be the actions of the
Committee.
(g) The Committee may consult with counsel
who may be counsel to the Company. The Committee may, with the
approval of the Board, employ such other attorneys and/or
consultants, accountants, appraisers, brokers and other persons as
it deems necessary or appropriate. In accordance with Section 12,
the Committee shall not incur any liability for any action taken in
good faith in reliance upon the advice of such counsel or other
persons.
(h) In serving on the Committee, the
members thereof shall be entitled to indemnification as directors
of the Company, and to any limitation of liability and
reimbursement as directors with respect to their services as
members of the Committee.
(i) Except to the extent prohibited by
applicable law, including, without limitation, the requirements
applicable under Section 162(m) of the Code to any Option intended
to be “qualified performance-based compensation,” or
the requirements for any Option granted to an officer or director
to be covered by any exemptive rule under Section 16 of the
Exchange Act (including Rule 16b-3, or any successor rule, as the
same may be amended from time to time), or the applicable rules of
a stock exchange, the Committee may, in its discretion, allocate
all or any portion of its responsibilities and powers under this
Section 3 to any one or more of its members and/or delegate all or
any part of its responsibilities and powers under this Section 3 to
any person or persons selected by it; provided ,
however , that the Committee may not delegate its authority
to correct errors, omissions or inconsistencies in the Plan. Any
such authority delegated or allocated by the Committee under this
paragraph (i) of Section 3 shall be exercised in accordance with
the terms and conditions of the Plan and any rules, regulations or
administrative guidelines that may from time to time be established
by the Committee, and any such allocation or delegation may be
revoked by the Committee at any time.
4. Shares of Stock Subject to the
Plan .
(a) The shares of stock subject to Options
granted under the Plan shall be shares of Stock. Such shares of
Stock subject to the Plan may be either authorized and unissued
shares (which will not be subject to preemptive rights) or
previously issued shares acquired by the Company or any Subsidiary.
The total number of shares of Stock that may be delivered pursuant
to Options granted under the Plan is 15,850,000, plus any shares of
Stock subject to a stock option granted under the Predecessor Plan
which for any reason expires or is terminated or canceled without
having been fully exercised by delivery of shares of Stock;
provided , however , that the total number of shares
of Stock that may be delivered pursuant to Incentive Stock Options
under the Plan is 15,850,000, without application of paragraph (d)
of this Section 4.
(b) Notwithstanding any of the foregoing
limitations set forth in this Section 4, the numbers of shares of
Stock specified in this Section 4 shall be adjusted as provided in
Section 10.
(c) Any shares of Stock subject to an
Option which for any reason expires or is terminated or canceled
without having been fully exercised by delivery of shares of Stock
may again be granted pursuant to an Option under the Plan, subject
to the limitations of this Section 4.
(d) If the option exercise price of an
Option granted under the Plan or a stock option granted under the
Predecessor Plan is paid by tendering to the Company shares of
Stock already owned by the holder of such option (or such holder
and his or her spouse jointly), only the number of shares of Stock
issued net of the shares of Stock so tendered shall be deemed
delivered
