EXHIBIT 10.3
NANOMETRICS
INCORPORATED
2002 NONSTATUTORY STOCK OPTION
PLAN
(as amended and restated on
March 7, 2007)
1.
Purposes of the Plan . The purposes of this Nonstatutory
Stock Option 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
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to promote the success of the
Company’s business.
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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 Nanometrics Incorporated, a Delaware 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 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
Global Market, the Nasdaq Select Market or the Nasdaq Capital
Market, its Fair Market Value shall be the closing sales price for
such stock (or if the closing sales price was reported on that
date, as applicable, on the last trading date such closing sales
price was reported) as quoted on such exchange or system, on the
date 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 date of determination
(or, if no bids and asks were reported on that date, as applicable,
on the last trading date such bids and asks were reported);
or
(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.
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(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.
(u) “Parent”
means a “parent corporation,” whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(v) “Plan”
means this 2002 Nonstatutory Stock Option Plan.
(w) “Service
Provider” means an Employee including an Officer, 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 two
hundred thousand (1,200,000) 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;
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(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
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;
and
(xiv) 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 notwithstanding anything to the contrary
contained in the Plan, Options may not be granted to Officers and
Directors.
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
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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.
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
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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.
An Option shall be deemed exercised
when the Company receives: 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’s termination. If, on
the date of termination, the Optionee is not vested as to his or
her entire Option, the Shares covered by the unvested portion of
the Option shall revert to the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time
specified by the Administrator, the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.
(c)
Disability of Optionee . If an Optionee ceases to be a
Service Provider as a result of the Optionee’s Disability,
such Optionee, such Optionee’s sp
