Exhibit 10.6
APPLIED OPTOELECTRONICS, INC.
AMENDED AND RESTATED
2013 EQUITY INCENTIVE PLAN
The Applied Optoelectronics, Inc. 2013 Equity Incentive Plan (the “Original Plan”) was originally approved by the Board of Directors (the “Board”) of Applied Optoelectronic, Inc. (the “Company”) on April 12, 2013 and by the Company’s stockholders on May 21, 2013. Effective as of August 20, 2013, the Company’s outstanding shares were subject to a 30:1 reverse stock split (the “Reverse Stock Split”). As of January 1st of each subsequent year, Shares have been automatically added to the Plan pursuant to Section 3(a) of the Original Plan (such Shares, the “Additional Shares”). In addition, effective as of January 1, 2017, the Board approved certain amendments to the Plan to increase tax withholding on Restricted Stock to satisfy tax obligations (the “Withholding Amendments”). The Board has approved this Amended and Restated 2013 Equity Incentive Plan effective as of January 1, 2017 to reflect the adjustments to the number of authorized Shares under the Plan resulting from (i) the Reverse Stock Split and (ii) the addition of the Additional Shares, and to incorporate the Withholding Amendments.
1. Purpose of the Plan. The purpose of the Plan is to: (i) attract and retain the best available personnel for positions of substantial responsibility, (ii) provide additional incentive to Employees, Directors and Consultants, and (iii) promote the success of the Company's business. The Plan permits the grant of Incentive Stock Options, Nonstatutory Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Units, Performance Shares, and Other Stock Based Awards. |
(a) "Administrator" means the Board or any of its Committees that shall be administering the Plan, in accordance with Section 4 of the Plan. |
(c) "Award" means, individually or collectively, a grant under the Plan of Options, SARs, Restricted Stock, Restricted Stock Units, Performance Units, Performance Shares or Other Stock Based Awards. |
(i) "Committee" means a committee of Directors or other individuals satisfying Applicable Laws appointed by the Board in accordance with Section 4 of the Plan. |
(k) "Company" means Applied Optoelectronics, Inc., a Delaware corporation, and any successor to Applied Optoelectronics, Inc. |
(l) "Consultant" means any person, including an advisor, engaged by the Company or a Parent or Subsidiary to render services to such entity. |
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(s) "Fair Market Value" means, as of any date, the value of Common Stock determined as follows: |
(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. |
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(x) "Outside Director" means an "outside director" within the meaning of Section 162(m) of the Code. |
(y) "Parent" means a "parent corporation" with respect to the Company, whether now or hereafter existing, as defined in Section 424(e) of the Code. |
(bb) "Performance Period" means the time period during which the Performance Goals or performance objectives must be met. |
(cc) "Performance Share" means Shares issued pursuant to a Performance Share Award under Section 10 of the Plan. |
(dd) "Performance Unit" means, pursuant to Section 10 of the Plan, an unfunded and unsecured promise to deliver Shares, cash or other securities equal to the value set forth in the Award Agreement. |
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(hh) "Restricted Stock" means Shares issued pursuant to a Restricted Stock Award under Section 8 or issued pursuant to the early exercise of an Option. |
(jj) "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. |
(oo) "Subsidiary" means a "subsidiary corporation" with respect to the Company, whether now or hereafter existing, as defined in Section 424(f) of the Code. |
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forfeiture or repurchase are forfeited or repurchased by the Company, the Shares allocable to the terminated portion of the Award or the forfeited or repurchased Shares shall again be available for grant under the Plan (the "Lapsed Awards"). Similarly, the shares subject to Lapsed Awards under the Prior Plans shall add to the maximum number of Shares that are available for grant under Section 3(a) of the Plan. |
(c) Share Reserve. The Company, during the term of the Plan, shall at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan. |
(i) Multiple Administrative Bodies. Different Committees with respect to different groups of Service Providers may administer the Plan. |
(iii) Rule 16b-3. If a transaction is intended to be exempt under Rule 16b-3 of the Exchange Act, it shall be structured to satisfy the requirements for exemption under Rule 16b-3. |
(iv) Other Administration. Other than as provided above, the Plan shall be administered by (A) the Board or (B) a Committee constituted to satisfy Applicable Laws. |
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(ix) prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans; |
(xii) authorize any person to execute on behalf of the Company any instrument required to effect the grant of an Award previously granted by the Administrator; |
(xiii) allow a Participant to defer the receipt of the payment of cash or the delivery of Shares that would otherwise be due to the Participant under an Award; |
(xiv) determine whether Awards shall be settled in Shares, cash or in a combination of Shares and cash; |
(xvii) establish a program whereby Service Providers designated by the Administrator can reduce compensation otherwise payable in cash in exchange for Awards under the Plan; |
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(xx) make all other determinations that the Administrator deems necessary or advisable for administering the Plan. |
The express grant in the Plan of any specific power to the Administrator shall not be construed as limiting any power or authority of the Administrator. However, the Administrator may not exercise any right or power reserved to the Board.
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Units and Other Stock Based Awards, Other Stock Based Awards granted to any Service Provider in any calendar year shall equal 600,000 Shares. Subject to Section 15 of the Plan, the maximum dollar amount that may be subject to cash awards granted to any Service Provider in any calendar year shall equal $5,000,000.
(i) 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, subject to the following: |
(2) In the case of a Nonstatutory Stock Option, the per Share exercise price shall be determined by the Administrator, but shall not be less than Fair Market Value per Share on the date of grant. |
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(iii) other Shares which meet the conditions established by the Administrator to avoid adverse accounting consequences (as determined by the Administrator); |
(iv) consideration received by the Company under a cashless exercise program implemented by the Company in connection with the Plan; |
(vii) any other consideration and method of payment for the issuance of Shares permitted by Applicable Laws. |
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specified in the Award Agreement (but in no event later than the expiration of the term of the Option as set forth in the Award Agreement). If no time for exercise of the Option on Disability is specified in the Award Agreement, the Option shall remain exercisable for 24 months following the Participant's termination for Disability. Unless otherwise provided by the Administrator, on the date of termination for Disability, the unvested portion of the Option shall revert to the Plan. If after termination for Disability, the Participant does not exercise his Option as to all of the vested Shares within the time specified by the Award Agreement, the Option shall terminate and the remaining Shares covered by such Option shall revert to the Plan. |
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(d) Payment of SAR Amount. Upon exercise of a SAR, a Participant shall be entitled to receive payment from the Company in an amount determined by multiplying: |
(i) The difference between the Fair Market Value of a Share on the date of exercise over the exercise price; times |
(iii) At the sole discretion of the Administrator, the payment upon the exercise of a SAR may be in cash, in Shares of equivalent value, or in some combination thereof. |
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or individual goals (including solely continued service), applicable federal or state securities laws, or any other basis determined by the Administrator in its sole discretion. |
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Participant, only by the Participant. If the Administrator makes an Award transferable, such Award shall contain such additional terms and conditions as the Administrator deems appropriate. |
(c) Change in Control. This Section 15(c) shall apply except to the extent otherwise provided in the Award Agreement. |
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that vests, is earned, or is paid‑out upon the satisfaction of one or more performance objectives shall not be considered assumed if the Company or its successor modifies any of the performance objectives without the Participant's consent; provided, however, a modification to performance objectives only to reflect the successor corporation's post‑Change in Control corporate structure shall not be deemed to invalidate an otherwise valid Award assumption.
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(a) Amendment and Termination. The Board may at any time amend, alter, suspend or terminate the Plan. |
(b) Stockholder Approval. The Company shall obtain stockholder approval of any Plan amendment to the extent necessary to comply with Applicable Laws. |
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later than March 15 of the calendar year following the calendar year in which such 409A Award vested or the risk of forfeiture lapsed. |
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