CARDIOGENESIS CORPORATION
STOCK OPTION PLAN
(AS AMENDED, MARCH 2009)
1.
Purposes of the Plan . The purposes of this Stock Plan
are:
|
|
—
|
|
to
attract and retain the best available personnel for positions of
substantial responsibility,
|
|
|
|
|
|
|
|
—
|
|
to
provide additional incentive to Employees and Consultants;
and
|
|
|
|
|
|
|
|
—
|
|
to
promote the success of the Company’s business.
|
Options granted
under the Plan may be Incentive Stock Options or Nonstatutory Stock
Options, as determined by the Administrator at the time of grant.
Stock Purchase Rights may also be granted under the
Plan.
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 legal requirements relating
to the administration of stock option plans under U. S. state
corporate laws, U. S. federal and state securities laws, the Code
and the applicable laws of any foreign country or jurisdiction
where Options or Stock Purchase Rights 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 appointed by the Board in
accordance with Sec. 4 of Plan.
(f)
“Common Stock” means the Common Stock of the
Company.
(g)
“Company” means CardioGenesis Corporation, a California
corporation formerly known as Eclipse Surgical Technologies,
Inc.
(h)
“Consultant” means any person, including an advisor,
engaged by the Company or a Parent or Subsidiary to render services
and who is compensated for such services. The term
“Consultant” shall not include Directors who are paid
only a director’s fee by the Company or who are not
compensated by the Company for their services as
Directors.
(i)
“Continuous Status as an Employee or Consultant” means
that the employment or consulting relationship with the Company,
any Parent, or Subsidiary, is not interrupted or terminated.
Continuous Status as an Employee or Consultant shall not be
considered interrupted 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. A
leave of
absence approved by the Company shall include sick leave, military
leave, or any other personal leave approved by an authorized
representative of the Company. For purposes of Incentive Stock
Options, no such leave may exceed ninety days, unless reemployment
upon expiration of such leave is guaranteed by statute or contract.
If reemployment upon expiration of a leave of absence approved by
the Company is not so guaranteed, on the 181st day of such leave
any Incentive Stock Option held by the Optionee shall cease to be
treated as an Incentive Stock Option and shall be treated for tax
purposes as a Nonstatutory Stock Option.
(j)
“Director” means a member of the Board.
(k)
“Disability” means total and permanent disability as
defined in Section 22(e)(3) of the Code.
(l)
“Employee” means any person, including Officers and
Directors, employed by the Company or any Parent or Subsidiary of
the Company. Neither service as a Director nor payment of a
director’s fee by the Company shall be sufficient to
constitute “employment” by the Company.
(m)
“Exchange Act” means the Securities Exchange Act of
1934, as amended.
(n)
“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 sale 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.
(o)
“Incentive Stock Option” means an Option intended to
qualify as an incentive stock option within the meaning of
Section 422 of the Code and the regulations promulgated
thereunder.
(p)
“Nonstatutory Stock Option” means an Option not
intended to qualify as an Incentive Stock Option.
(q)
“Notice of Grant” means a written notice evidencing
certain terms and conditions of an individual Option or Stock
Purchase Right grant. The Notice of Grant is part of the Option
Agreement.
2
(r)
“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.
(s)
“Option” means a stock option granted pursuant to the
Plan.
(t)
“Option Agreement” means a written 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.
(u)
“Option Exchange Program” means a program whereby
Outstanding options are surrendered in exchange for options with a
lower exercise price.
(v)
“Optioned Stock” means the Common Stock subject to an
Option or Stock Purchase Right.
(w)
“Optionee” means an Employee or Consultant who holds an
outstanding Option or Stock Purchase Right.
(x)
“Parent” means a “parent corporation”,
whether now or hereafter existing, as defined in Section 424(e) of
the Code.
(y)
“Plan” means this Stock Option Plan.
(z)
“Restricted Stock” means shares of Common Stock
acquired pursuant to a grant of Stock Purchase Rights under
Section 11 below.
(aa)
“Restricted Stock Purchase Agreement” means a written
agreement between the Company and the Optionee evidencing the terms
and restrictions applying to stock purchased under a Stock Purchase
Right. The Restricted Stock Purchase Agreement is subject to the
terms and conditions of the Plan and the Notice of
Grant.
(bb)
“Rule 16b-3” means Rule 16b-3 of the Exchange
Act or any successor to Rule 16b-3, as in effect when
discretion is being exercised with respect to the Plan.
(cc)
“Section 16(b)” means Section 16(b) of the
Securities Exchange Act of 1934, as amended.
(dd)
“Share” means a share of the Common Stock, as adjusted
in accordance with Section 13 of the Plan.
(ee)
“Stock Purchase Right” means the right to purchase
Common Stock pursuant to Section 11 of the Plan, as evidenced
by a Notice of Grant.
(ff)
“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 13 of the Plan, the maximum aggregate number of Shares
which may be optioned and sold under the Plan is 11,100,000 Shares.
The Shares may be authorized, but unissued, or reacquired Common
Stock. The Plan is the successor to the Company’s Dual Stock
Option Plan (the “Prior Plan”). Options granted under
the
3
Prior Plan
continue to be subject to the terms and conditions of the Prior
Plan and not the Plan unless otherwise agreed on a case by case
basis by holders of such options. No further options may be granted
under the Prior Plan. The number of Options outstanding under the
Prior Plan and the number of Shares issued upon exercise of options
granted under the Prior Plan reduces the number of Shares which may
be optioned and sold under the Plan. If an option granted under the
Prior Plan expires without being exercised, then the number of
Shares which may be optioned and sold under the Plan increases by
such number.
If an Option or
Stock Purchase Right expires or becomes unexercisable without
having been exercised in full, the unpurchased Shares which were
subject thereto shall become available for future grant or sale
under the Plan (unless the Plan has terminated); provided, however,
that Shares that have actually been issued under the Plan, whether
upon exercise of an Option or Right, shall not be returned to the
Plan and shall not become available for future distribution, under
the Plan, except that if Shares of Restricted Stock are repurchased
by the Company at their original purchase price, and the original
purchaser of such Shares did not receive any benefits of ownership
of such Shares, such Shares shall become available for future grant
under the Plan. For purposes of the preceding sentence, voting
rights shall not be considered a benefit of Share
ownership.
4.
Administration of the Plan .
(i)
Multiple Administrative Bodies . If permitted by
Rule 16b-3, the Plan may be administered by different bodies
with respect to Directors, Officers who are not Directors, and
Employees who are neither Directors nor Officers.
(ii)
Administration With Respect to Directors and Officers Subject to
Section l6(b) . With respect to Option or Stock Purchase Right
grants made to Employees who are also Officers or Directors subject
to Section 16(b) of the Exchange Act, the Plan shall be
administered by (A) the Board, if the Board may administer the
Plan in a manner complying with the rules under Rule 16b-3
relating to the disinterested administration of employee benefit
plans under which Section 16(b) exempt discretionary grants and
awards of equity securities are to be made, or (B) a committee
designated by the Board to administer the Plan, which committee
shall be constituted to comply with the rules under Rule 16b-3
relating to the disinterested administration of employee benefit
plans under which Section 16(b) exempt discretionary grants and
awards of equity securities are to be made. Once appointed, such
Committee shall continue to serve in its designated capacity until
otherwise directed by the Board. From time to time the Board may
increase the size of the Committee and appoint additional members,
remove members (with or without cause) and substitute new members,
fill vacancies (however caused), and remove all members of the
Committee and thereafter directly administer the Plan, all to the
extent permitted by the rules under Rule 16b-3 relating to the
disinterested administration of employee benefit plans under which
Section 16(b) exempt discretionary grants and awards of equity
securities are to be made.
(iii)
Administration With Respect to Other Persons . With respect
to Option or Stock Purchase Right grants made to Employees or
Consultants who are neither Directors nor Officers of the Company,
the Plan shall be administered by (A) the Board or (B) a
committee designated by the Board, which committee shall be
constituted to satisfy Applicable Laws. Once appointed, such
Committee shall serve in its designated capacity until otherwise
directed by the Board. The Board may increase the size of the
Committee and appoint additional members, remove
4
members (with
or without cause) and substitute new members, fill vacancies
(however caused), and remove all members of the Committee and
thereafter directly administer the Plan, all to the extent
permitted by Applicable Laws.
(b)
Powers of the Administrator . Subject to the provisions of
the Plan including those contained in Section 15(b) 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, in accordance
with Section 2(n) of the Plan.
(ii) to
select the Consultants and Employees to whom Options and Stock
Purchase Rights may be granted hereunder;
(iii) to
determine whether and to what extent Options and Stock Purchase
Rights or any combination thereof, are granted
hereunder;
(iv) to
determine the number of shares of Common Stock to be covered by
each Option and Stock Purchase Right 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 or Stock Purchase Rights may be
exercised (which may be based on performance criteria), any vesting
acceleration or waiver of forfeiture restrictions, and any
restriction or limitation regarding any Option or Stock Purchase
Right or the shares of Common Stock relating thereto, based in each
case on such factors as the Administrator, in its sole discretion,
shall determine;
(viii) to
construe and interpret the terms of the Plan and awards granted
pursuant to the Plan;
(ix) 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;
(x) to
modify or amend each Option or Stock Purchase Right (subject to
Section 15(d) 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;
(xi) to
authorize any person to execute on behalf of the Company any
instrument required to effect the grant of an Option or Stock
Purchase Right previously granted by the Administrator;
(xii) to
institute an Option Exchange Program; and
5
(xiii) 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 or Stock Purchase Rights.
5.
Eligibility . Nonstatutory Stock Options and Stock Purchase
Rights may be granted to Employees and Consultants. Incentive Stock
Options may be granted only to Employees. If otherwise eligible, an
Employee or Consultant who has been granted an Option or Stock
Purchase Right may be granted additional Options or Stock Purchase
Rights.
(a) Each
Option shall be designated in the written option agreement as
either an Incentive Stock Option or a Nonstatutory Stock Option.
However, notwithstanding such designation, to the extent that the
aggregate Fair Market Value of the Shares with respect to which
Incentive Stock Options are exercisable for the first time by the
Optionee during any calendar year (under all plans of the Company
and any Parent or Subsidiary) exceeds $100,000, such Options shall
be treated as Nonstatutory Stock Options. For purposes of this
Section 6(a), Incentive Stock Options shall be taken into
account in the order in which they were granted. The Fair Market
Value of the Shares shall be determined as of the time the Option
with respect to such Shares is granted. If an Option is granted
hereunder that is part Incentive Stock Option and part Nonstatutory
Stock Option due to becoming first exercisable in any calendar year
in excess of $100,000, the Incentive Stock Option portion of such
Option shall become exercisable first an such calendar year, and
the Nonstatutory Stock Option portion shall commence becoming
exercisable once the $100,000 limit has been reached.
(b) Neither
the Plan nor any Option or Stock Purchase Right shall confer upon
an Optionee any right with respect to continuing the
Optionee’s employment or consulting relationship with the
Company, nor shall they interfere in any way with the Optionees
right or the Company’s right to terminate such employment or
consulting relationship at any time, with or without
cause.
(c) The
following limitations shall apply to grants of Options to
Employees:
(i) No
Employee shall be granted, in any fiscal year of the Company,
Options to purchase more than 300,000 Shares.
(ii) In
connection with his or her initial employment, an Employee may be
granted Options to purchase up to an additional 600,000 Shares
which shall not count against the limit set forth in subsection
(i) above.
(iii) The
foregoing limitations shall be adjusted proportionately in
connection with any change in the Company’s capitalization as
described in Section 13.
(iv) If
an Option is cancelled in the same fiscal year of the Company in
which it was granted (other than in connection with a transaction
described in Section 13), the cancelled Option will be counted
against the limits set forth in Subsections (i) and
(ii) above.
6
7. Term
of Plan . The amended and restated Plan shall begin to be in
effect on April 24, 1996, and shall continue in effect until
March 31, 2015 unless terminated earlier under Section 15 of
the Plan.
8. Term
of Option . The term of each Option shall be stated in the
Notice of Grant; provided, however, that in the case of an
Incentive Stock Option, the ter
|
