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Exhibit 10.5 MICRON TECHNOLOGY, INC. 1997 NONSTATUTORY STOCK OPTION
PLAN
1. Purposes
of the Plan. The purposes of this Plan are:
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to attract and retain the best available personnel for positions
of substantial responsibility,
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to provide additional incentive to Employees and Consultants,
and
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to promote the success of the Company’s business.
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Nonstatutory stock options may 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) “Affiliate” means
(i) any subsidiary or parent company of the Company, or (ii) an
entity that directly or through one or more intermediaries
controls, is controlled by or is under common control with, the
Company, as determined by the Committee.
(c) “Applicable
Laws” means the legal requirements relating to the
administration of stock option plans and the issuance of stock and
stock options under federal securities laws, Delaware corporate and
securities laws, the Code, and the applicable laws of any foreign
country or jurisdiction where options will be or are being granted
under the Plan.
(d) “Board”
means the Board of Directors of the Company.
(e) "Change in
Control" means the acquisition by any person or entity, directly,
indirectly or beneficially, acting alone or in concert, of more
than thirty-five percent (35%) of the Common Stock of the Company
outstanding at any time.
(f) “Code”
means the Internal Revenue Code of 1986, as amended. Reference to a
specific Section of the Code or regulation thereunder shall include
such Section or regulation, any valid regulation promulgated under
such Section, and any comparable provision of any future law,
legislation or regulation amending, supplementing or superseding
such Section or regulation.
(g) “Committee”
means a Committee appointed by the Board in accordance with Section
4 of the Plan.
(h) “Common
Stock” means the Common Stock of the Company.
9/22/2003 change #2(n0
(i) “Company”
means Micron Technology, Inc., a Delaware corporation.
(j) “Consultant”
means any person, including an advisor, engaged by the Company or a
parent, subsidiary or Affiliate to render services. The
term “Consultant” shall not include any person who is
also an Officer or Director of the Company.
(k) “Continuous
Status as an Employee or Consultant” means that the
employment or consulting relationship with the Company, any parent,
subsidiary, or Affiliate, 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, (ii) transfers
between locations of the Company or between the Company, its
Parent, any Subsidiary, or any successor or (iii) change in
status from either an Employee to a Consultant or a Consultant to
an Employee. 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.
(l) “Director”
means a member of the Board.
(m) “Disability”
means total and permanent disability as defined in Section 22(e)(3)
of the Code. Notwithstanding the foregoing, for any
Options that constitute a nonqualified deferred compensation plan
within the meaning of Section 409A(d) of the Code,
“Disability” has the meaning given such term in Section
409A of the Code.
(n) “Employee”
means any person, except Officers and Directors, employed by the
Company or any parent, subsidiary or Affiliate of the Company.
(o) “Fair
Market Value” of the Stock, on any date, means: (i) if the
Stock is listed or traded on any Exchange, the average closing
price for such Stock (or the closing bid, if no sales were
reported) as quoted on such Exchange (or, if more than one
Exchange, the Exchange with the greatest volume of trading in the
Stock) for such date, or if no sales or bids were reported for such
date, on the last market trading day prior to the day of
determination, as reported by Market Sweep, a service from
Interactive Data Services, Inc., or or such other source as the
Committee deems reliable; (ii) if the Stock is quoted on the
over-the-counter market or is regularly quoted by a recognized
securities dealer, but selling prices are not reported, the Fair
Market Value of the Stock shall be the mean between the high bid
and low asked prices for the Stock on such date, or if no sales or
bids were reported for such date, on the last market trading day
prior to the day of determination, as reported by Market Sweep, a
service from Interactive Data Services, Inc., or such other source
as the Committee deems reliable, or (iii) in the absence of an
established market for the Stock, the Fair Market Value shall be
determined by such other method as the Committee determines in good
faith to be reasonable and in compliance with Code Section
409A.
(p) “Notice of
Grant” means a written notice evidencing certain terms and
conditions of an individual Option grant. The Notice of
Grant is subject to the terms and conditions of the Option
Agreement. 9/22/2003 change #2(n0 2
(q) “Officer”
means a person who is an officer of the Company within the meaning
of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
(r) “Option”
means a nonstatutory stock option granted pursuant to the
Plan. Such option is not intended to qualify as an
incentive stock option within the meaning of Section 422 of the
Code and the regulations promulgated thereunder.
(s) “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.
(t) “Option
Exchange Program” means a program whereby outstanding options
are surrendered in exchange for options with a lower exercise
price.
(u) “Optioned
Stock” means the Common Stock subject to an Option.
(v) “Optionee”
means an Employee or Consultant who holds an outstanding
Option.
(w) "Plan" means this
Nonstatutory Stock Option Plan.
(x) “Share”
means a share of the Common Stock, as adjusted in accordance with
Section 12 of the Plan.
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
800,000. 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) Procedure. 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 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 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: 9/22/2003 change
#2(n0 3
(i)
to determine the Fair Market Value of the Common
Stock;
(ii) to
select the Consultants and Employees 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 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 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 (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;
(xi) 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;
(xii) to
institute an Option Exchange Program;
(xiii) 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; and
(xiv) to make all
other determinations deemed necessary or advisable for
administering the Plan. 9/22/2003 change #2(n0 4
(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 Employees and Consultants. Employees and
Consultants who are service providers to an Affiliate may be
granted Options under this Plan only if the Affiliate qualifies as
an “eligible issuer of service recipient stock” within
the meaning of §1.409A-1(b)(5)(iii)(E) of the final
regulations under Code Section 409A.
6. Limitations. Neither
the Plan nor any Option 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 Optionee’s right or the Company’s
right to terminate such employment or consulting relationship at
any time, with or without cause.
7. Term
of Plan. The Plan shall become effective upon its
adoption by the Board. It shall continue in effect until
terminated under Section 14 of the Plan.
8. Term
of Option. The term of each Option shall be stated in
the Notice of Grant.
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, but shall not be less than the Fair Market Value per
share on the date of grant of the Option.
(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. In doing
so, the Administrator may specify that an Option may not be
exercised until either the completion of a service period or the
achievement of performance criteria with respect to the Company or
the Optionee.
(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 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; 9/22/2003 change #2(n0
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(v) delivery
of
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