INFORMATICA CORPORATION 2009 EQUITY INCENTIVE PLAN (Effective April 28, 2009)
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INFORMATICA
CORPORATION
2009 EQUITY INCENTIVE PLAN
(Effective April 28, 2009)
Section 1
BACKGROUND
AND PURPOSE
1.1 Background and Effective
Date. The Plan permits the grant of
Nonqualified Stock Options, Incentive Stock Options, Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units,
Performance Units, and Performance Shares. The Plan is effective
as of April 28, 2009 upon approval by an affirmative vote
of the holders of a majority of the Shares that are present in
person or by proxy and entitled to vote at the 2009 Annual
Meeting of Stockholders of the Company.
1.2 Purpose of the Plan. The
Plan is intended to attract, motivate, and retain
(a) employees of the Company and its Affiliates,
(b) consultants who provide significant services to the
Company and its Affiliates, and (c) directors of the
Company who are employees of neither the Company nor any
Affiliate. The Plan also is designed to encourage stock
ownership by Participants, thereby aligning their interests with
those of the Company’s shareholders and to permit the
payment of compensation that qualifies as performance-based
compensation under Section 162(m) of the Code.
Section 2
DEFINITIONS
The following words and phrases shall have the following
meanings unless a different meaning is plainly required by the
context:
2.1 “1934 Act” means the
Securities Exchange Act of 1934, as amended. Reference to a
specific section of the 1934 Act or regulation thereunder
shall include such section or regulation, any valid regulation
promulgated under such section, and any comparable provision of
any future legislation or regulation amending, supplementing or
superseding such section or regulation.
2.2 “Affiliate” means any
corporation or any other entity (including, but not limited to,
partnerships and joint ventures) controlling, controlled by, or
under common control with the Company.
2.3 “Award” means, individually
or collectively, a grant under the Plan of Options, SARs,
Restricted Stock, Restricted Stock Units, Performance Units, or
Performance Shares.
2.4 “Award Agreement” means the
written agreement setting forth the terms and conditions
applicable to each Award granted under the Plan.
2.5 “Board” or “Board of
Directors” means the Board of Directors of the
Company.
2.6 “Change of Control” means
the occurrence of any of the following events: (a) a change
in the ownership of the Company which occurs on the date that
any one person, or more than one person acting as a group,
(“Person”) acquires ownership of the stock of the
Company that, together with the stock held by such Person,
constitutes more than 50% of the total voting power of the stock
of the Company; provided, however, that for purposes of this
subsection (a), the acquisition of additional stock by any one
Person, who is considered to own more than 50% of the total
voting power of the stock of the Company shall not be considered
a Change of Control; (b) a change in the effective control
of the Company which occurs on the date that a majority of the
members of the Board are replaced during any twelve
(12) month period by Directors whose appointment or
election is not endorsed by a majority of the members of the
Board prior to the date of the appointment or election. For
purposes of this clause (b), if any Person is considered to
effectively control the Company, the acquisition of additional
control of the Company by the same Person shall not be
considered a Change of Control; or (c) a change in the
ownership of a substantial portion of the Company’s assets
which occurs on the date that any Person acquires (or has
acquired during the twelve (12) month period ending on the
date of the most recent acquisition by such person or persons)
assets from the Company that have a total gross fair market
value equal to or more than 50% of the total gross fair market
value of all of the assets of the Company immediately prior to
such acquisition or acquisitions; provided, however, that for
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purposes of this subsection (c), gross fair market value means
the value of the assets of the Company, or the value of the
assets being disposed of, determined without regard to any
liabilities associated with such assets. For purposes of this
Section 2.6, persons will be considered to be acting as a
group if they are owners of a corporation that enters into a
merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the Company. Notwithstanding
the foregoing, a transaction will not be deemed a Change of
Control unless the transaction qualifies as a change in control
event within the meaning of Code Section 409A, as it has
been and may be amended from time to time, and any proposed or
final Treasury Regulations and Internal Revenue Service guidance
that has been promulgated or may be promulgated thereunder from
time to time.
2.7 “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
legislation or regulation amending, supplementing or superseding
such section or regulation.
2.8 “Committee” means the
committee appointed by the Board (pursuant to Section 3.1)
to administer the Plan.
2.9 “Company” means Informatica
Corporation, a Delaware corporation, or any successor thereto.
2.10 “Consultant” means any
consultant, independent contractor, or other person who provides
significant services to the Company or its Affiliates, but who
is neither an Employee nor a Director.
2.11 “Determination Date” means
the latest possible date that will not jeopardize the
qualification of an Award granted under the Plan as
“performance-based compensation” under
Section 162(m) of the Code.
2.12 “Director” means any
individual who is a member of the Board of Directors of the
Company.
2.13 “Disability” means a
permanent disability in accordance with a policy or policies
established by the Committee (in its discretion) from time to
time.
2.14 “Employee” means any
employee of the Company or of an Affiliate, whether such
employee is so employed at the time the Plan is adopted or
becomes so employed subsequent to the adoption of the Plan.
2.15 “Exchange Program” means a
program established by the Committee under which outstanding
Awards are amended to provide for a lower Exercise Price or
surrendered or cancelled in exchange for Awards with a lower
Exercise Price. Notwithstanding the preceding, the term Exchange
Program does not include any (a) action described in
Section 4.4, nor (b) transfer or other disposition
permitted under Section 12.7.
2.16 “Exercise Price” means the
price at which a Share may be purchased by a Participant
pursuant to the exercise of an Option.
2.17 “Fair Market Value” means
the closing per share selling price for Shares on Nasdaq on the
relevant date, or if there were no sales on such date, the
average of the closing sales prices on the immediately following
and preceding trading dates, in either case as reported by The
Wall Street Journal or such other source selected in the
discretion of the Committee (or its delegate). Notwithstanding
the preceding, for federal, state, and local income tax
reporting purposes, fair market value shall be determined by the
Company in accordance with uniform and nondiscriminatory
standards adopted by it from time to time.
2.18 “Fiscal Quarter” means a
fiscal quarter of the Company.
2.19 “Fiscal Year” means the
fiscal year of the Company.
2.20 “Grant Date” means, with
respect to an Award, the date that the Award was granted. The
Grant Date of an Award shall not be earlier than the date the
Award is approved by the Committee.
2.21 “Incentive Stock Option”
means an Option to purchase Shares that is designated as an
Incentive Stock Option and is intended to meet the requirements
of Section 422 of the Code.
2.22 “Nonemployee Director”
means a Director who is an employee of neither the Company nor
of any Affiliate.
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2.23 “Nonqualified Stock
Option” means an option to purchase Shares that
is not intended to be an Incentive Stock Option.
2.24 “Option” means an
Incentive Stock Option or a Nonqualified Stock Option.
2.25 “Participant” means an
Employee, Consultant, or Nonemployee Director who has an
outstanding Award.
2.26 “Performance Goals” means
the goal(s) (or combined goal(s)) determined by the Committee
(in its discretion) to be applicable to a Participant with
respect to an Award. As determined by the Committee, the
Performance Goals applicable to an Award may provide for a
targeted level or levels of achievement using one or more of the
following measures: (a) Profit, (b) Revenue, and
(c) Total Shareholder Return. The Performance Goals may
differ from Participant to Participant and from Award to Award.
Any criteria used may be measured, as applicable, (i) in
absolute terms, (ii) in relative terms (including, but not
limited to, passage of time
and/or
against another company or companies), (iii) on a per-share
basis, (iv) against the performance of the Company as a
whole or a business unit of the Company
and/or
(v) on a pre-tax or after-tax basis. Prior to the
Determination Date, the Committee shall determine whether any
element(s) or item(s) shall be included in or excluded from the
calculation of any Performance Goal with respect to any
Participants.
2.27 “Performance Period” means
any Fiscal Quarter or such longer period as determined by the
Committee in its sole discretion.
2.28 “Performance Share” means
an Award granted to a Participant pursuant to Section 9.
2.29 “Performance Unit” means
an Award granted to a Participant pursuant to Section 8.
2.30 “Period of Restriction”
means the period during which the transfer of Shares of
Restricted Stock are subject to restrictions and therefore, the
Shares are subject to a substantial risk of forfeiture. As
provided in Section 7, such restrictions may be based on
the passage of time, the achievement of target levels of
performance, or the occurrence of other events as determined by
the Committee, in its discretion.
2.31 “Plan” means the
Informatica Corporation 2009 Equity Incentive Plan, as set forth
in this instrument and as hereafter amended from time to time.
2.32 “Profit” means as to any
Performance Period, the Company’s income, determined in
accordance with generally accepted accounting principles.
2.33 “Restricted Stock” means
an Award granted to a Participant pursuant to Section 7.
2.34 “Restricted Stock Unit” or
“RSU” means an Award granted to a
Participant pursuant to Section 10.
“Revenue” means as to
any Performance Period, the Company’s net revenues
generated from third parties, determined in accordance with
generally accepted accounting principles.
2.36 “RSU Vesting Commencement
Date” means the first day of the second month
of the quarter in which the RSU was granted to a Participant
pursuant to the Plan.
2.37 “Rule 16b-3”
means
Rule 16b-3
promulgated under the 1934 Act, and any future regulation
amending, supplementing or superseding such regulation.
2.38 “Section 16 Person”
means a person who, with respect to the Shares, is subject to
Section 16 of the 1934 Act.
2.39 “Shares” means the shares
of common stock of the Company.
2.40 “Stock Appreciation Right” or
“SAR” means an Award, granted alone
or in connection with a related Option, that pursuant to
Section 6 is designated as an SAR.
2.41 “Subsidiary” means any
corporation in an unbroken chain of corporations beginning with
the Company as the corporation at the top of the chain, but only
if each of the corporations below the Company (other than the
last corporation in the unbroken chain) then owns stock
possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain.
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2.42 “Tax Obligations” means
tax and social insurance liability obligations and requirements
in connection with the Awards, including, without limitation,
(a) all federal, state, and local taxes (including the
Participant’s FICA obligation) that are required to be
withheld by the Company or the employing Affiliate, (b) the
Participant’s and, to the extent required by the Company
(or the employing Affiliate), the Company’s (or the
employing Affiliate’s) fringe benefit tax liability, if
any, associated with the grant, vesting, or sale of Shares, and
(c) any other Company (or employing Affiliate) taxes the
responsibility for which the Participant has agreed to bear with
respect to such Award (or exercise thereof or issuance of Shares
thereunder).
2.43 “Termination of Service”
means (a) in the case of an Employee, a cessation of the
employee-employer relationship between the Employee and the
Company or an Affiliate for any reason, including, but not by
way of limitation, a termination by resignation, discharge,
death, Disability, retirement, or the disaffiliation of an
Affiliate, but excluding any such termination where there is a
simultaneous reemployment by the Company or an Affiliate;
(b) in the case of a Consultant, a cessation of the service
relationship between the Consultant and the Company or an
Affiliate for any reason, including, but not by way of
limitation, a termination by resignation, discharge, death,
Disability, or the disaffiliation of an Affiliate, but excluding
any such termination where there is a simultaneous re-engagement
of the consultant by the Company or an Affiliate; and
(c) in the case of a Nonemployee Director, a cessation of
the Director’s service on the Board for any reason,
including, but not by way of limitation, a termination by
resignation, death, Disability, retirement or non-reelection to
the Board.
2.44 “Total Shareholder Return”
means as to any Performance Period, the total return (change in
share price plus reinvestment of any dividends) of a Share.
Section 3
ADMINISTRATION
3.1 The Committee. The Plan
shall be administered by the Committee. The Committee shall
consist of not less than two (2) Directors who shall be
appointed from time to time by, and shall serve at the pleasure
of, the Board of Directors. The Committee shall be comprised
solely of Directors who are (a) “outside
directors” under Section 162(m), and
(b) “non-employee directors” under
Rule 16b-3.
3.2 Authority of the
Committee. It shall be the duty of the
Committee to administer the Plan in accordance with the
Plan’s provisions. The Committee shall have all powers and
discretion necessary or appropriate to administer the Plan and
to control its operation, including, but not limited to, the
power to (a) determine which Employees, Consultants and
Directors shall be granted Awards, (b) prescribe the terms
and conditions of the Awards, (c) interpret the Plan and
the Awards, (d) adopt such procedures and subplans as are
necessary or appropriate to permit participation in the Plan by
Employees, Consultants and Directors who are foreign nationals
or employed outside of the United States, (e) adopt rules
for the administration, interpretation and application of the
Plan as are consistent therewith, (f) subject to the
provisions of Section 4.5.5. of the Plan, accelerate the
exercisability of any outstanding Awards, and
(g) interpret, amend or revoke any such rules.
Notwithstanding the preceding, the Committee shall not implement
an Exchange Program without the approval of the holders of a
majority of the Shares that are present in person or by proxy
and entitled to vote at any Annual or Special Meeting of
Stockholders of the Company.
3.3 Delegation by the
Committee. The Committee, in its sole
discretion and on such terms and conditions as it may provide,
may delegate all or any part of its authority and powers under
the Plan to one or more Directors or officers of the Company.
Notwithstanding the foregoing, with respect to Awards that are
intended to qualify as performance-based compensation under
Section 162(m) of the Code, the Committee may not delegate
its authority and powers with respect to such Awards if such
delegation would cause the Awards to fail to so qualify.
3.4 Decisions Binding. All
determinations and decisions made by the Committee, the Board,
and any delegate of the Committee pursuant to the provisions of
the Plan shall be final, conclusive, and binding on all persons,
and shall be given the maximum deference permitted by law.
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Section 4
SHARES
SUBJECT TO THE PLAN
4.1 Number of Shares. Subject
to adjustment as provided in Section 4.4, the total number
of Shares available issuance under the Plan shall not exceed
nine million (9,000,000). Shares granted under the Plan may be
either authorized but unissued Shares or treasury Shares.
4.2 Full Value Awards. Any
Shares subject to all Awards except Options and SARs shall be
counted against the numerical limits of Section 4.1 as one
and fifty two hundredths (1.52) Shares for every one
(1) Share subject thereto. Further, if Shares acquired
pursuant to any Awards of Restricted Stock, Restricted Stock
Units, Performance Units, and Performance Shares are forfeited
or repurchased by the Company and would otherwise return to the
Plan pursuant to Section 4.3, one and fifty two hundredths
(1.52) times the number of Shares so forfeited or repurchased
shall return to the Plan and shall again become available for
issuance.
4.3 Lapsed Awards. If an Award
is settled in cash, or is cancelled, terminates, expires, or
lapses for any reason, any Shares subject to such Award again
shall be available to be the subject of an Award. With respect
to Stock Appreciation Rights, all of the Shares covered by the
Award (that is, Xxxxxx actually issued pursuant to a Stock
Appreciation Right as well as the Shares that represent payment
of the exercise price and tax related to the Award) shall cease
to be available under the Plan. Shares that have actually been
issued under the Plan under any Award shall not be returned to
the Plan and shall not become available for future distribution
under the Plan. To the extent an Award under the Plan is paid
out in cash rather than Shares, such cash payment shall not
reduce the number of Shares available for issuance under the
Plan. Notwithstanding the foregoing and, subject to adjustment
provided in Section 4.4, the maximum number of Shares that
may be issued upon the exercise of Incentive Stock Options shall
equal the aggregate Share number stated in Section 4.1,
plus, to the extent allowable under Section 422 of the
Code, any Shares that become available for issuance under the
Plan under this Section 4.3. The following shares shall not
be available for future grant: (i) shares tendered in payment of
the exercise price of an option; and (ii) shares withheld by the
Company or otherwise received by the Company to satisfy tax
withholding obligations.
4.4 Adjustments in Awards and Authorized
Shares. In the event that any dividend or
other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation,
split-up,
spin-off, combination, repurchase, or exchange of Shares or
other securities of the Company, or other change in the
corporate structure of the Company affecting the Shares such
that an adjustment is determined by the Committee (in its sole
discretion) to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be
made available under the Plan, then the Committee shall, in such
manner as it may deem equitable, adjust the number and class of
Shares that may be delivered under the Plan, the number, class,
and price of Shares (or other property or cash) subject to
outstanding Awards, and the numerical limits of
Sections 5.1, 6.1, 7.1, 8.1, 9.1, 10.1 and 11.1.
Notwithstanding the preceding, the number of Shares subject to
any Award always shall be a whole number.
4.5.1 In the event of a Change of Control, each outstanding
Award shall be treated as the Committee determines, including,
without limitation, that each Award be assumed or an equivalent
option or right substituted by the successor corporation or a
parent or subsidiary of the successor corporation. The Committee
shall not be required to treat all Awards similarly in the
transaction.
4.5.2 In the event that the successor corporation does not
assume or substitute for the Award, the Participant shall fully
vest in and have the right to exercise all of his or her
outstanding Options and SARs, including Shares as to which such
Awards would not otherwise be vested or exercisable, all
restrictions on Restricted Stock and Restricted Stock Units
shall lapse, and, with respect to Awards with performance-based
vesting, all performance goals or other vesting criteria shall
be deemed achieved at 100% on-target levels and all other terms
and conditions met. In addition, if an Option or SAR is not
assumed or substituted in the event of a Change of Control, the
Committee shall notify the Participant in writing or
electronically that the Option or SAR shall be exercisable for a
period of time determined by the Committee in its sole
discretion, and the Option or SAR shall terminate upon the
expiration of such period.
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4.5.3 For the purposes of this Section 4.5, an Award
shall be considered assumed if, following the Change of Control,
the Award confers the right to purchase or receive, for each
Share subject to the Award immediately prior to the Change of
Control, the consideration (whether stock, cash, or other
securities or property) received in the Change of Control by
holders of the Shares held on the effective date of the
transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders
of a majority of the outstanding Shares); provided, however,
that if such consideration received in the Change of Control is
not solely common stock of the successor corporation or its
parent, the Committee may, with the consent of the successor
corporation, provide for the consideration to be received upon
the exercise of an Option or SAR or upon the payout of a
Restricted Stock Unit, Restricted Stock, Performance Unit or
Performance Share, for each Share subject to such Award, to be
solely common stock of the successor corporation or its parent
equal in fair market value to the per share consideration
received by holders of Shares in the Change of Control.
4.5.4 Notwithstanding anything in this Section 4.5 to
the contrary, an Award that vests, is earned or paid-out upon
the satisfaction of one or more performance goals will not be
considered assumed if the Company or its successor modifies any
of such performance goals without the Participant’s
consent; provided, however, a modification to such performance
goals only to reflect the successor corporation’s
post-Change of Control corporate structure shall not be deemed
to invalidate an otherwise valid Award assumption.
4.5.5 Further, and notwithstanding anything in this
Section 4.5 to the contrary, the provisions of this
Section 4.5 only shall apply upon the consummation of a
Change of Control, and shall not apply to a proposed or
potential Change of Control.
Section 5
STOCK
OPTIONS
5.1 Grant of Options. Subject
to the terms and provisions of the Plan, Options may be granted
to Employees, Directors and Consultants at any time and from
time to time as determined by the Committee in its sole
discretion. The Committee, in its sole discretion, shall
determine the number of Shares subject to each Option, provided
that during any Fiscal Year, no Participant shall be granted
Options (and/or SARs) covering more than a total of one million
(1,000,000) Shares. Notwithstanding the foregoing, during the
Fiscal Year in which a Participant first becomes an Employee, he
or she may be granted Options (and/or SARs) to purchase up to a
total of an additional two million (2,000,000) Shares. The
Committee may grant Incentive Stock Options, Nonqualified Stock
Options, or a combination thereof.
5.2 Award Agreement. Each
Option shall be evidenced by an Award Agreement that shall
specify the Exercise Price, the expiration date of the Option,
the number of Shares covered by the Option, any conditions to
exercise the Option, and such other terms and conditions as the
Committee, in its discretion, shall determine. The Award
Agreement shall also specify whether the Option is intended to
be an Incentive Stock Option or a Nonqualified Stock Option.
5.3 Exercise Price. Subject to
the provisions of this Section 5.3, the Exercise Price for
each Option shall be determined by the Committee in its sole
discretion.
5.3.1 Nonqualified Stock
Options. The Exercise Price of each
Nonqualified Stock option shall be determined by the Committee
in its discretion but shall be not less than one hundred percent
(100%) of the Fair Market Value of a Share on the Grant Date.
5.3.2 Incentive Stock Options. In
the case of an Incentive Stock Option, the Exercise Price shall
be not less than one hundred percent (100%) of the Fair Market
Value of a Share on the Grant Date; provided, however, that if
on the Grant Date, the Employee (together with persons whose
stock ownership is attributed to the Employee pursuant to
Section 424(d) of the Code) owns stock possessing more than
ten percent (10%) of the total combined voting power of all
classes of stock of the Company or any of its Subsidiaries, the
Exercise Price shall be not less than one hundred and ten
percent (110%) of the Fair Market Value of a Share on the Grant
Date.
5.3.3 Substitute
Options. Notwithstanding the provisions of
Section 5.3.2, in the event that the Company or an
Affiliate consummates a transaction described in
Section 424(a) of the Code (e.g., the acquisition of
property or stock from an unrelated corporation), persons who
become Employees, Nonemployee Directors or Consultants on
account of such transaction may be granted Options in
substitution for
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options granted by their former employer. If such substitute
Options are granted, the Committee, in its sole discretion and
consistent with Section 424(a) of the Code, may determine
that such substitute Options shall have an exercise price less
than one hundred percent (100%) of the Fair Market Value of the
Shares on the Grant Date.
5.4.1 Expiration Dates. Each
Option shall terminate no later than the first to occur of the
following events:
(a) The date for termination of the Option set forth in the
written Award Agreement; or
(b) The expiration of seven (7) years from the Grant
Date.
5.4.2 Death or Disability of
Participant. Subject to Section 5.4.1,
if a Participant dies or becomes disabled prior to the
expiration of his or her Options, the Committee, in its
discretion, may provide that his or her Options shall be
exercisable for up to one (1) year after the date of death.
5.4.3 Committee
Discretion. Subject to the seven
(7) limit of Sections 5.4.1, the Committee, in its
sole discretion, (a) shall provide in each Award Agreement
when each Option expires and becomes unexercisable, and
(b) may, after an Option is granted, extend the maximum
term of the Option (subject to Section 5.8.4 regarding
Incentive Stock Options).
5.5 Exercisability of
Options. Options granted under the Plan
shall be exercisable at such times and be subject to such
restrictions and conditions as the Committee shall determine in
its sole discretion. Subject to the provisions of
Section 4.5.5 of the Plan, after an Option is granted, the
Committee, in its sole discretion, may accelerate the
exercisability of the Option.
5.6 Payment. Options shall be
exercised by the Participant giving notice and following such
procedures as the Company (or its designee) may specify from
time to time. Exercise of an Option also requires that the
Participant make arrangements satisfactory to the Company for
full payment of the Exercise Price for the Shares. All exercise
notices shall be given in the form and manner specified by the
Company from time to time. The Exercise Price shall be payable
to the Company in full in cash or its equivalent. The Committee,
in its sole discretion, also may permit exercise (a) by
tendering previously acquired Shares having an aggregate Fair
Market Value at the time of exercise equal to the total Exercise
Price, or (b) by any other means which the Committee, in
its sole discretion, determines to both provide legal
consideration for the Shares, and to be consistent with the
purposes of the Plan. As soon as practicable after receipt of a
notification of exercise satisfactory to the Company and full
payment for the Shares purchased, the Company shall deliver to
the Participant (or the Participant’s designated broker),
Share certificates (which may be in book entry form)
representing such Shares.
5.7 Restrictions on Share
Transferability. The Committee may impose
such restrictions on any Shares acquired pursuant to the
exercise of an Option as it may deem advisable, including, but
not limited to, restrictions related to applicable federal
securities laws, the requirements of any national securities
exchange or system upon which Shares are then listed or traded,
or any blue sky or state securities laws.
5.8.1 Exercisability. The
aggregate Fair Market Value (determined on the Grant Date(s)) of
the Shares with respect to which Incentive Stock Options are
exercisable for the first time by any Employee during any
calendar year (under all plans of the Company and its
Subsidiaries) shall not exceed $100,000.
5.8.2 Termination of Service. No
Incentive Stock Option may be exercised more than three
(3) months after the Participant’s Termination of
Service for any reason other than Disability or death, unless
(a) the Participant dies during such three-month period,
and/or
(b) the Award Agreement or the Committee permits later
exercise (in which case the Option instead may be deemed to be a
Nonqualified Stock Option). No Incentive Stock Option may be
exercised more than one (1) year after the
Participant’s Termination of Service on account of
Disability, unless (a) the Participant dies during such
one-year period,
and/or
(b) the Award Agreement or the Committee permit later
exercise (in which case the option instead may be deemed to be a
Nonqualified Stock Option).
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5.8.3 Employees Only. Incentive
Stock Options may be granted only to persons who are employees
of the Company or a Subsidiary on the Grant Date.
5.8.4 Expiration. No Incentive
Stock Option may be exercised after the expiration of ten
(10) years from the Grant Date as required by
Section 422 of the Code; provided, however, that if the
Option is granted to an Employee who, together with persons
whose stock ownership is attributed to the Employee pursuant to
Section 424(d) of the Code, owns stock possessing more than
ten percent (10%) of the total combined voting power of all
classes of the stock of the Company or any of its Subsidiaries,
the Option may not be exercised after the expiration of five
(5) years from the Grant Date.
Section 6
STOCK
APPRECIATION RIGHTS
6.1 Grant of SARs. Subject to
the terms and conditions of the Plan, a SAR may be granted to
Employees, Directors and Consultants at any time and from time
to time as shall be determined by the Committee, in its sole
discretion.
6.1.1 Number of Shares. The
Committee shall have complete discretion to determine the number
of SARs granted to any Participant, provided that during any
Fiscal Year, no Participant shall be granted SARs (and/or
Options) covering more than a total of one million (1,000,000)
Shares. Notwithstanding the foregoing, during the Fiscal Year in
which a Participant first becomes an Employee, he or she may be
granted SARs
(and/or
Options) covering up to a total of an additional two million
(2,000,000) Shares.
6.1.2 Exercise Price and Other
Terms. The Committee, subject to the
provisions of the Plan, shall have complete discretion to
determine the terms and conditions of SARs granted under the
Plan. The Exercise Price of each SAR shall be determined by the
Committee in its discretion but shall not be less than one
hundred percent (100%) of the Fair Market Value of a Share on
the Grant Date.
6.2 SAR Agreement. Each SAR
grant shall be evidenced by an Award Agreement that shall
specify the exercise price, the term of the SAR, the conditions
of exercise, and such other terms and conditions as the
Committee, in its sole discretion, shall determine.
6.3 Expiration of SARs. An SAR
granted under the Plan shall expire upon the date determined by
the Committee, in its sole discretion, and set forth in the
Award Agreement. Notwithstanding the foregoing, the rules of
Section 5.4 also shall apply to SARs.
6.4 Payment of SAR
Amount. Upon exercise of an SAR, a
Participant shall be entitled to receive payment from the
Company in an amount determined by multiplying:
(a) The Fair Market Value of a Share on the date of
exercise (or, if so specified in the Award Agreement, on the
date immediately preceding the date of exercise) minus the
exercise price; times
(b) The number of Shares with respect to which the SAR is
exercised. At the discretion of the Committee, the payment upon
SAR exercise may be in cash, in Shares of equal value, or in
some combination thereof.
Section 7
RESTRICTED
STOCK
7.1 Grant of Restricted
Stock. Subject to the terms and
provisions of the Plan, the Committee, at any time and from time
to time, may grant Shares of Restricted Stock to Employees,
Directors and Consultants as the Committee, in its sole
discretion, shall determine. The Committee, in its sole
discretion, shall determine the number of Shares to be granted
to each Participant, provided that during any Fiscal Year, no
Participant shall receive more than a total of three hundred
thirty three thousand three hundred thirty three (333,333)
Shares of Restricted Stock (and/or Performance Shares or
Restricted Stock Units). Notwithstanding the foregoing, during
the Fiscal Year in which a Participant first becomes an
Employee, he or she may be granted up to a total of an
additional six hundred
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sixty six thousand six hundred sixty seven (666,667) Shares of
Restricted Stock (and/or Performance Shares or Restricted Stock
Units).
7.2 Restricted Stock
Agreement. Each Award of Restricted Stock
shall be evidenced by an Award Agreement that shall specify the
Period of Restriction, the number of Shares granted, and such
other terms and conditions as the Committee, in its sole
discretion, shall determine. Unless the Committee determines
otherwise, Shares of Restricted Stock shall be held by the
Company as escrow agent until the restrictions on such Shares
have lapsed.
7.3 Transferability. Except as
provided in this Section 7, Shares of Restricted Stock may
not be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated until the end of the applicable Period
of Restriction.
7.4 Other Restrictions. The
Committee, in its sole discretion, may impose such other
restrictions on Shares of Restricted Stock as it may deem
advisable or appropriate, in accordance with this
Section 7.4.
7.4.1 General Restrictions. The
Committee may set restrictions based upon continued employment
or service with the Company and its affiliates, the achievement
of specific performance objectives (Company-wide, departmental,
or individual), applicable federal or state securities laws, or
any other basis determined by the Committee in its discretion.
7.4.2 Section 162(m) Performance
Restrictions. For purposes of qualifying
grants of Restricted Stock as “performance-based
compensation” under Section 162(m) of the Code, the
Committee, in its discretion, may set restrictions based upon
the achievement of Performance Goals. The Performance Goals
shall be set by the Committee on or before the latest date
permissible to enable the Restricted Stock to qualify as
“performance-based compensation” under
Section 162(m) of the Code. In granting Restricted Stock
which is intended to qualify under Section 162(m) of the
Code, the Committee shall follow any procedures determined by it
from time to time to be necessary or appropriate to ensure
qualification of the Restricted Stock under Section 162(m)
of the Code (e.g., in determining the Performance Goals).
7.4.3 Legend on Certificates. The
Committee, in its discretion, may legend the certificates
representing Restricted Stock to give appropriate notice of such
restrictions.
7.5 Removal of
Restrictions. Except as otherwise
provided in this Section 7, Shares of Restricted Stock
covered by each Restricted Stock grant made under the Plan shall
be released from escrow as soon as practicable after the last
day of the Period of Restriction. Subject to the provisions of
Section 4.5.5. of the Plan, the Committee, in its
discretion, may accelerate the time at which any restrictions
shall lapse or be removed. After the restrictions have lapsed,
the Participant shall be entitled to have any legend or legends
under Section 7.4.3 removed from his or her Share
certificate, and the Shares shall be freely transferable by the
Participant. The Committee (in its discretion) may establish
procedures regarding the release of Shares from escrow and the
removal of legends, as necessary or appropriate to minimize
administrative burdens on the Company
7.6 Voting Rights. During the
Period of Restriction, Participants holding Shares of Restricted
Stock granted hereunder may exercise full voting rights with
respect to those Shares, unless the Committee determines
otherwise.
7.7 Dividends and Other
Distributions. During the Period of
Restriction, Participants holding Shares of Restricted Stock
shall be entitled to receive all dividends and other
distributions paid with respect to such Shares unless otherwise
provided in the Award Agreement. Any such dividends or
distribution shall be subject to the same restrictions on
transferability and forfeitability as the Shares of Restricted
Stock with respect to which they were paid, unless otherwise
provided in the Award Agreement.
7.8 Return of Restricted Stock to
Company. On the date set forth in the
Award Agreement, the Restricted Stock for which restrictions
have not lapsed shall revert to the Company and again shall
become available for grant under the Plan.
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Section 8
PERFORMANCE
UNITS
8.1 Grant of Performance
Units. Performance Units may be granted
to Employees, Directors and Consultants at any time and from
time to time, as shall be determined by the Committee, in its
sole discretion. The Committee shall have complete discretion in
determining the number of Performance Units granted to each
Participant provided that during any Fiscal Year, no Participant
shall receive Performance Units having an initial value greater
than three million dollars ($3,000,000). Notwithstanding the
foregoing, during the Fiscal Year in which a Participant first
becomes an Employee, he or she may be granted additional
Performance Shares having an initial value of up to three
million dollars ($3,000,000).
8.2 Value of Performance
Units. Each Performance Unit shall have
an initial value that is established by the Committee on or
before the Grant Date.
8.3 Performance Objectives and Other
Terms. The Committee, in its discretion,
shall set performance objectives or other vesting criteria
which, depending on the extent to which they are met, will
determine the number or value of Performance Units that will be
paid out to the Participants. Each Award of Performance Units
shall be evidenced by an Award Agreement that shall specify the
Performance Period, and such other terms and conditions as the
Committee, in its sole discretion, shall determine.
8.3.1 General Performance Objectives or Vesting
Criteria. The Committee may set performance
objectives or vesting criteria based upon the achievement of
Company-wide, departmental, or individual goals, applicable
federal or state securities laws, or any other basis determined
by the Committee in its discretion (for example, but not by way
of limitation, continuous service as an Employee, Director or
Consultant).
8.3.2 Section 162(m) Performance
Objectives. For purposes of qualifying grants
of Performance Units as “performance-based
compensation” under Section 162(m) of the Code, the
Committee, in its discretion, may determine that the performance
objectives applicable to Performance Units shall be based on the
achievement of Performance Goals. The Performance Goals shall be
set by the Committee on or before the latest date permissible to
enable the Performance Units to qualify as
“performance-based compensation” under
Section 162(m) of the Code. In granting Performance Units
that are intended to qualify under Section 162(m) of the
Code, the Committee shall follow any procedures determined by it
from time to time to be necessary or appropriate to ensure
qualification of the Performance Units under Section 162(m)
of the Code (e.g., in determining the Performance Goals).
8.4 Earning of Performance
Units. After the applicable Performance
Period has ended, the holder of Performance Units shall be
entitled to receive a payout of the number of Performance Units
earned by the Participant over the Performance Period, to be
determined as a function of the extent to which the
corresponding performance objectives have been achieved. Subject
to the provisions of Section 4.5.5 of the Plan, after the
grant of a Performance Unit, the Committee, in its sole
discretion, may reduce or waive any performance objectives for
such Performance Unit.
8.5 Form and Timing of Payment of Performance
Units. Payment of earned Performance
Units shall be made as soon as practicable after the expiration
of the applicable Performance Period. The Committee, in its sole
discretion, may pay earned Performance Units in the form of
cash, in Shares (which have an aggregate Fair Market Value equal
to the value of the earned Performance Units at the close of the
applicable Performance Period) or in a combination thereof.
8.6 Cancellation of Performance
Units. On the date set forth in the Award
Agreement, all unearned or unvested Performance Units shall be
forfeited to the Company, and again shall be available for grant
under the Plan.
Section 9
PERFORMANCE
SHARES
9.1 Grant of Performance
Shares. Performance Shares may be granted
to Employees, Directors and Consultants at any time and from
time to time, as shall be determined by the Committee, in its
sole discretion.
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The Committee shall have complete discretion in determining the
number of Performance Shares granted to each Participant,
provided that during any Fiscal Year, no Participant shall be
granted more than a total of three hundred thirty three thousand
three hundred thirty three (333,333) Performance Shares (and/or
Shares of Restricted Stock or Restricted Stock Units).
Notwithstanding the foregoing, during the Fiscal Year in which a
Participant first becomes an Employee, he or she may be granted
up to a total of an additional six hundred sixty six thousand
six hundred sixty seven (666,667) Performance Shares (and/or
Shares of Restricted Stock or Restricted Stock Units).
9.2 Value of Performance
Shares. Each Performance Share shall have
an initial value equal to the Fair Market Value of a Share on
the Grant Date.
9.3 Performance Share
Agreement. Each Award of Performance
Shares shall be evidenced by an Award Agreement that shall
specify any vesting conditions, the number of Performance Shares
granted, and such other terms and conditions as the Committee,
in its sole discretion, shall determine.
9.4 Performance Objectives and Other
Terms. The Committee, in its discretion,
shall set performance objectives or other vesting criteria
which, depending on the extent to which they are met, will
determine the number or value of Performance Shares that will be
paid out to the Participants. Each Award of Performance Shares
shall be evidenced by an Award Agreement that shall specify the
Performance Period, and such other terms and conditions as the
Committee, in its sole discretion, shall determine.
9.4.1 General Performance Objectives or Vesting
Criteria. The Committee may set performance
objectives or vesting criteria based upon the achievement of
Company-wide, departmental, or individual goals, applicable
federal or state securities laws, or any other basis determined
by the Committee in its discretion (for example, but not by way
of limitation, continuous service as an Employee, Director or
Consultant).
9.4.2 Section 162(m) Performance
Objectives. For purposes of qualifying grants
of Performance Shares as “performance-based
compensation” under Section 162(m) of the Code, the
Committee, in its discretion, may determine that the performance
objectives applicable to Performance Shares shall be based on
the achievement of Performance Goals. The Performance Goals
shall be set by the Committee on or before the latest date
permissible to enable the Performance Shares to qualify as
“performance-based compensation” under
Section 162(m) of the Code. In granting Performance Shares
that are intended to qualify under Section 162(m) of the
Code, the Committee shall follow any procedures determined by it
from time to time to be necessary or appropriate to ensure
qualification of the Performance Shares under
Section 162(m) of the Code (e.g., in determining the
Performance Goals).
9.5 Earning of Performance
Shares. After the applicable Performance
Period has ended, the holder of Performance Shares shall be
entitled to receive a payout of the number of Performance Shares
earned by the Participant over the Performance Period, to be
determined as a function of the extent to which the
corresponding performance objectives have been achieved. Subject
to the provisions of Section 4.5.5. of the Plan, after the
grant of a Performance Share, the Committee, in its sole
discretion, may reduce or waive any performance objectives for
such Performance Share.
9.6 Form and Timing of Payment of Performance
Shares. Payment of vested Performance
Shares shall be made as soon as practicable after vesting
(subject to any deferral permitted under Section 12.1). The
Committee, in its sole discretion, may pay Performance Shares in
the form of cash, in Shares or in a combination thereof.
9.7 Cancellation of Performance
Shares. On the date set forth in the
Award Agreement, all unvested Performance Shares shall be
forfeited to the Company, and except as otherwise determined by
the Committee, again shall be available for grant under the Plan.
Section 10
RESTRICTED
STOCK UNITS
10.1 Grant of RSUs. Restricted
Stock Units may be granted to Employees, Directors and
Consultants at any time and from time to time, as shall be
determined by the Committee, in its sole discretion. The
Committee shall have complete discretion in determining the
number of Restricted Stock Units granted to each Participant,
provided
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that during any Fiscal Year, no Participant shall be granted
more than a total of three hundred thirty three thousand three
hundred thirty three (333,333) Restricted Stock Units (and/or
Shares of Restricted Stock or Performance Shares).
Notwithstanding the foregoing, during the Fiscal Year in which a
Participant first becomes an Employee, he or she may be granted
up to a total of an additional six hundred sixty six thousand
six hundred sixty seven (666,667) Restricted Stock Units (and/or
Shares of Restricted Stock or Performance Shares).
10.2 Value of RSUs. Each
Restricted Stock Unit shall have an initial value equal to the
Fair Market Value of a Share on the Grant Date.
10.3 RSU Agreement. Each Award
of Restricted Stock Units shall be evidenced by an Award
Agreement that shall specify any vesting conditions, the number
of Restricted Stock Units granted, and such other terms and
conditions as the Committee, in its sole discretion, shall
determine.
10.4 Earning of RSUs. After
the applicable vesting period has ended, the holder of
Restricted Stock Units shall be entitled to receive a payout of
the number of Restricted Stock Units earned by the Participant
over the vesting period. Subject to the provisions of
Section 4.5.5. of the Plan, after the grant of a Restricted
Stock Unit, the Committee, in its sole discretion, may reduce or
waive any vesting condition for such Restricted Stock Unit.
10.5 Form and Timing of Payment of
RSUs. Payment of vested Restricted Stock
Units shall be made as soon as practicable after vesting
(subject to any deferral permitted under Section 12.1). The
Committee, in its sole discretion, may pay Restricted Stock
Units in the form of cash, in Shares or in a combination thereof.
10.6 Cancellation of RSUs. On
the date set forth in the Award Agreement, all unvested
Restricted Stock Units shall be forfeited to the Company, and
except as otherwise determined by the Committee, again shall be
available for grant under the Plan.
10.7 Section 162(m) Performance
Restrictions.
For purposes of qualifying grants of Restricted Stock Units as
“performance-based compensation” under
Section 162(m) of the Code, the Committee, in its
discretion, may set restrictions based upon the achievement of
Performance Goals. The Performance Goals shall be set by the
Committee on or before the latest date permissible to enable the
Restricted Stock Units to qualify as “performance-based
compensation” under Section 162(m) of the Code. In
granting Restricted Stock Units which are intended to qualify
under Section 162(m) of the Code, the Committee shall
follow any procedures determined by it from time to time to be
necessary or appropriate to ensure qualification of the
Restricted Stock Units under Section 162(m) of the Code
(e.g., in determining the Performance Goals).
Section 11
NON-EMPLOYEE
DIRECTOR AWARDS
The provisions of this Section 11 are applicable only to
Awards granted to Non-employee Directors.
11.1 Granting of Awards. The
Committee’s philosophy is to grant Awards to Non-employee
Directors of the same type and following the same ratio as
grants to the Company’s Section 16 officers. The types
and amounts of Awards to be granted are set out below.
11.1.1 Initial Grants. Each
Non-employee Director who first becomes a Non-employee Director
on or after the effective date of this Plan, automatically, in
accord with the Committee’s preceding grants to the
Section 16 officers, shall receive, as of the date that the
individual first is appointed or elected as a Non-employee
Director: (a) an Option to purchase sixty thousand (60,000)
Shares; (b) (x) an Option to purchase thirty thousand
(30,000) Shares and (y) an Award of ten thousand (10,000)
Restricted Stock Units; or (c) an Award of twenty thousand
(20,000) Restricted Stock Units .
11.1.2 Ongoing Grants. Each
Nonemployee Director who both is a Nonemployee Director on the
date of an Annual Meeting of Stockholders of the Company, and
has served as a Nonemployee Director for at least six
(6) months prior to such Annual Meeting automatically, in
accord with the Committee’s preceding grants to the
Section 16 officers, shall receive, as of the date of the
Annual Meeting only; (a) an Option to purchase
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twenty five thousand (25,000) Shares; (b) (x) an Option to
purchase twelve thousand five hundred (12,500) Shares and
(y) an Award of four thousand one hundred sixty seven
(4,167) Restricted Stock Units; or (c) an Award of eight
thousand three hundred thirty three (8,333) Restricted Stock
Units.
11.2 Terms of Awards.
11.2.1 Agreement. Each Award
granted pursuant to this Section 11 shall be evidenced by a
written Award Agreement between the Participant and the Company.
11.2.2 Exercise Price. The
Exercise Price for the Shares subject to each Option granted
pursuant to this Section 11 shall be one hundred percent
(100%) of the Fair Market Value of such Shares on the Grant Date.
11.2.3 Exercisability and Vesting.
(a) Each Option granted pursuant to Section 11.1.1
shall become exercisable as to thirty three percent (33%) of the
Shares on the first anniversary of the Grant Date, as to an
additional two and seventy eight one-hundredths percent (2.78%)
on each monthly thereafter until one hundred percent (100%) of
the Shares have vested.
(b) The Restricted Stock Units granted pursuant to
Section 11.1.1 shall vest as to thirty three and one third
percent
(331/3%)
of the Restricted Stock Units on each of the first anniversary,
second anniversary and third anniversary of the RSU Vesting
Commencement Date, respectively.
(c) Each Option granted pursuant to Section 11.1.2
shall become exercisable as to one hundred percent (100%) of the
Shares on the first anniversary of the Grant Date.
(d) The Restricted Stock Units granted pursuant to
Section 11.1.2 shall vest as to one hundred percent (100%)
of the Restricted Stock Units on the first anniversary of the
RSU Vesting Commencement Date.
Notwithstanding the preceding, once a Participant ceases to be a
Director, his or her Options which are not then exercisable
shall never become exercisable and shall be immediately
forfeited and all unvested Restricted Stock Units shall be
forfeited to the Company.
11.2.4 Expiration of Options. Each
Option granted pursuant to this Section 11 shall terminate
upon the first to occur of the following events:
(a) The expiration of seven (7) years from the Grant
Date; or
(b) The expiration of three (3) months from the date
of the Participant’s Termination of Service for any reason
other than the Participant’s death or Disability;
(c) The expiration of one (1) year from the date of
the Participant’s Termination of Service by reason of
Disability or death.
11.2.5 Nonqualified Stock
Options. Options granted pursuant to this
Section 11 shall be designated as Nonqualified Stock
Options.
11.2.6 Other Terms. All provisions
of the Plan not inconsistent with this Section 11 shall
apply to Awards granted to Nonemployee Directors.
11.3 Committee Discretion. The
Committee, in its sole discretion, at any time may change the
number and other terms and conditions of the Awards subject to
future grants under this Section 11.
Section 12
MISCELLANEOUS
12.1 Deferrals The Committee,
in its sole discretion, may permit a Participant to defer
receipt of the payment of cash or the delivery of Shares that
otherwise would be due to such Participant under an Award. Any
such
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deferral elections shall be subject to such rules and procedures
as shall be determined by the Committee in its sole discretion.
12.2 No Effect on Employment or
Service. Nothing in the Plan shall
interfere with or limit in any way the right of the Company or
an Affiliate to terminate any Participant’s employment or
service at any time, with or without cause. For purposes of the
Plan, transfer of employment of a Participant between the
Company and any one of its Affiliates (or between Affiliates)
shall not be deemed a Termination of Service. Employment with
the Company and its Affiliates is on an at-will basis only.
12.3 Participation. No
Employee, Director or Consultant shall have the right to be
selected to receive an Award under this Plan, or, having been so
selected, to be selected to receive a future Award.
12.4 Indemnification. Each
person who is or shall have been a member of the Committee, or
of the Board, shall be indemnified and held harmless by the
Company against and from (a) any loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by him
or her in connection with or resulting from any claim, action,
suit, or proceeding to which he or she may be a party or in
which he or she may be involved by reason of any action taken or
failure to act under the Plan or any Award Agreement, and
(b) from any and all amounts paid by him or her in
settlement thereof, with the Company’s approval, or paid by
him or her in satisfaction of any judgment in any such claim,
action, suit, or proceeding against him or her, provided he or
she shall give the Company an opportunity, at its own expense,
to handle and defend the same before he or she undertakes to
handle and defend it on his or her own behalf. The foregoing
right of indemnification shall not be exclusive of any other
rights of indemnification to which such persons may be entitled
under the Company’s Certificate of Incorporation or Bylaws,
by contract, as a matter of law, or otherwise, or under any
power that the Company may have to indemnify them or hold them
harmless.
12.5 Successors. All
obligations of the Company under the Plan, with respect to
Awards granted hereunder, shall be binding on any successor to
the Company, whether the existence of such successor is the
result of a direct or indirect purchase, merger, consolidation,
or otherwise, of all or substantially all of the business or
assets of the Company.
12.6 Beneficiary
Designations. If permitted by the
Committee, a Participant under the Plan may name a beneficiary
or beneficiaries to whom any vested but unpaid Award shall be
paid in the event of the Participant’s death. Each such
designation shall revoke all prior designations by the
Participant and shall be effective only if given in a form and
manner acceptable to the Committee. In the absence of any such
designation, any vested benefits remaining unpaid at the
Participant’s death shall be paid to the Participant’s
estate and, subject to the terms of the Plan and of the
applicable Award Agreement, any unexercised vested Award may be
exercised by the administrator or executor of the
Participant’s estate.
12.7 Limited Transferability of
Awards. No Award granted under the Plan
may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, other than by will, by the laws of
descent and distribution, or to the limited extent provided in
Section 12.6. All rights with respect to an Award granted
to a Participant shall be available during his or her lifetime
only to the Participant. Notwithstanding the foregoing, the
Participant may, in a manner specified by the Committee, if the
Committee (in its discretion) so permits, (a) transfer an
Award to a Participant’s spouse, former spouse or dependent
pursuant to a court-approved domestic relations order which
relates to the provision of child support, alimony payments or
marital property rights, and (b) transfer an Award by bona
fide gift and not for any consideration, to (i) a member or
members of the Participant’s immediate family, (ii) a
trust established for the exclusive benefit of the Participant
and/or
member(s) of the Participant’s immediate family,
(iii) a partnership, limited liability company or other
entity whose only partners or members are the Participant
and/or
member(s) of the Participant’s immediate family, or
(iv) a foundation in which the Participant an/or member(s)
of the Participant’s immediate family control the
management of the foundation’s assets. Any such transfer
shall be made in accordance with such procedures as the
Committee may specify from time to time.
12.8 No Rights as
Stockholder. No Participant (nor any
beneficiary) shall have any of the rights or privileges of a
stockholder of the Company with respect to any Shares issuable
pursuant to an Award (or exercise thereof), unless and until
certificates representing such Shares shall have been issued,
recorded on the records of the Company or its transfer agents or
registrars, and delivered to the Participant (or beneficiary).
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Section 13
AMENDMENT,
TERMINATION, AND DURATION
13.1 Amendment, Suspension, or
Termination. The Board, in its sole
discretion, may amend, suspend or terminate the Plan, or any
part thereof, at any time and for any reason. The amendment,
suspension, or termination of the Plan shall not, without the
consent of the Participant, alter or impair any rights or
obligations under any Award theretofore granted to such
Participant. No Award may be granted during any period of
suspension or after termination of the Plan.
13.2 Duration of the Plan. The
Plan shall be effective as
of ,
2009, and subject to Section 13.1 (regarding the
Board’s right to amend or terminate the Plan), shall remain
in effect thereafter. However, without further stockholder
approval, no Incentive Stock Option may be granted under the
Plan
after ,
2019.
Section 14
TAX
WITHHOLDING
14.1 Withholding
Requirements. Prior to the delivery of
any Shares or cash pursuant to an Award (or exercise thereof),
the Company shall have the power and the right to deduct or
withhold, or require a Participant to remit to the Company, an
amount sufficient to satisfy federal, state, and local taxes
(including the Participant’s FICA obligation) required to
be withheld with respect to such Award (or exercise thereof).
14.2 Withholding
Arrangements. The Committee, in its sole
discretion and pursuant to such procedures as it may specify
from time to time, may permit a Participant to satisfy such Tax
Obligations, in whole or in part by (a) electing to have
the Company withhold otherwise deliverable Shares, or
(b) delivering to the Company already-owned Shares having a
Fair Market Value equal to the amount required to be withheld or
remitted. The amount of the Tax Obligations shall be deemed to
include any amount which the Committee agrees may be withheld at
the time the election is made, not to exceed the amount
determined by using the maximum federal, state or local marginal
income tax rates applicable to the Participant or the Company,
as applicable, with respect to the Award on the date that the
amount of tax or social insurance liability to be withheld or
remitted is to be determined. The Fair Market Value of the
Shares to be withheld or delivered shall be determined as of the
date that the Tax Obligations are required to be withheld.
Section 15
LEGAL
CONSTRUCTION
15.1 Gender and Number. Except
where otherwise indicated by the context, any masculine term
used herein also shall include the feminine; the plural shall
include the singular and the singular shall include the plural.
15.2 Severability. In the
event any provision of the Plan shall be held illegal or invalid
for any reason, the illegality or invalidity shall not affect
the remaining parts of the Plan, and the Plan shall be construed
and enforced as if the illegal or invalid provision had not been
included.
15.3 Requirements of Law. The
granting of Awards and the issuance of Shares under the Plan
shall be subject to all applicable laws, rules, and regulations,
and to such approvals by any governmental agencies or national
securities exchanges as may be required.
15.4 Securities Law
Compliance. With respect to
Section 16 Persons, transactions under this Plan are
intended to qualify for the exemption provided by
Rule 16b-3.
To the extent any provision of the Plan, Award Agreement or
action by the Committee fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed
advisable or appropriate by the Committee.
15.5 Code
Section 409A. Unless otherwise
specifically determined by the Committee, the Committee shall
comply with Code Section 409A in establishing the rules and
procedures applicable to deferrals in accordance with
Section 12.1 and taking or permitting such other actions
under the terms of the Plan that otherwise would result in a
deferral of compensation subject to Code Section 409A.
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15.6 Governing Law. The Plan
and all Award Agreements shall be construed in accordance with
and governed by the laws of the State of California (with the
exception of its conflict of laws provisions).
15.7 Captions. Captions are
provided herein for convenience only, and shall not serve as a
basis for interpretation or construction of the Plan.
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