EXHIBIT 10.2
VISX, INCORPORATED
1993 FLEXIBLE STOCK INCENTIVE PLAN
(as amended and restated November 9, 2004)
1. Establishment, Purpose, and Definitions.
(a) There is hereby adopted the 1993 Flexible Stock Incentive
Plan (the "Plan") of VISX, INCORPORATED (the "Company").
(b) The purpose of the Plan is to provide a means whereby
eligible individuals (as defined in paragraph 4, below) can acquire Common Stock
of the Company (the "Stock"). The Plan provides employees (including officers
and directors who are employees) of the Company and of its Affiliates an
opportunity to purchase shares of Stock pursuant to options which may qualify as
incentive stock options (referred to as "incentive stock options") under Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"), and
employees, officers, directors, independent contractors, and consultants of the
Company and of its Affiliates an opportunity to purchase shares of Stock
pursuant to options which are not described in Sections 422 or 423 of the Code
(referred to as "nonqualified stock options"). The Plan also provides for the
sale or bonus of Stock to eligible individuals in connection with the
performance of services for the Company or its Affiliates. Finally, the Plan
authorizes the grant of stock appreciation rights ("SARs"), either separately or
in tandem with stock options, entitling holders to cash compensation measured by
appreciation in the value of the Stock.
(c) The term "Affiliates" as used in the Plan means parent or
subsidiary corporations, as defined in Sections 424(e) and (f) of the Code (but
substituting "the Company" for "employer corporation"), including parents or
subsidiaries which become such after adoption of the Plan.
2. Administration of the Plan.
(a) The Plan shall be administered by the Board of Directors
of the Company (the "Board"). The Board may delegate the responsibility for
administering the Plan to a committee, under such terms and conditions as the
Board shall determine (the "Committee"). The Committee shall consist of two or
more members of the Board or such lesser number of members of the Board as
permitted by Rule 16b-3 promulgated under the Securities Exchange Act of 1934,
as amended ("Rule 16b-3"). None of the members of the Committee shall receive,
while serving on the Committee, or during the one-year period preceding
appointment to the Committee, a grant or award of equity securities tinder (i)
the Plan or (ii) any other plan of the Company or its affiliates under which the
participants are entitled to acquire Stock (including restricted Stock), stock
options, stock bonuses, related rights or stock appreciation rights of the
Company or any of its affiliates, other than pursuant to transactions in any
such other plan which do not disqualify a director from being a disinterested
person under Rule 16b-3. The limitations set forth in this Section 2(a) shall
automatically incorporate any additional requirements that may in the future be
necessary for the
Plan to comply with Rule 16b-3. Members of the Committee shall serve at the
pleasure of the Board. The Committee shall select one of its members as
chairman, and shall hold meetings at such times and places as it may determine.
A majority of the Committee shall constitute a quorum and acts of the Committee
at which a quorum is present or acts reduced to or approved in owriting by all
the members of the Committee, shall be the valid acts of the Committee. If the
Board does not delegate administration of the Plan to the Committee, then each
reference in this Plan to "the Committee" shall be construed to refer to the
Board.
(b) The Committee shall determine which eligible individuals
(as defined in paragraph 4, below) shall be granted options under the Plan, the
timing of such grants, the terms thereof (including any restrictions on the
Stock), and the number of shares subject to such options.
(c) The Committee may amend the terms of any outstanding
option granted under this Plan, but any amendment which would adversely affect
the Optionee's rights under an outstanding option shall not be made without the
Optionee's written consent The Committee may, with the Optionee's written
consent cancel any outstanding stock option or accept any outstanding stock
option in exchange for a new option.
(d) The Committee shall also determine which eligible
individuals (as defined in paragraph 4, below) shall be issued Stock or SARs
under the Plan, the timing of such grants, the terms thereof (including any
restrictions), and the number of shares or SARs to be granted. The Stock shall
be issued for such consideration (if any) as the Committee deems appropriate.
Stock issued subject to restrictions shall be evidenced by a written agreement
(the "Restricted Stock Purchase Agreement" or the "Restricted Stock Bonus
Agreement"). The Committee may amend any Restricted Stock Purchase Agreement but
any amendment which would adversely affect the stockholder's rights to the Stock
shall not be made without his or her written consent
(e) The Committee shall have the sole authority, in its
absolute discretion, to adopt amend, and rescind such rules and regulations as,
in its opinion, may be advisable for the administration of the Plan, to construe
and interpret the Plan, the rules and the regulations, and the instruments
evidencing options or Stock granted under the Plan and to make all other
determinations deemed necessary or advisable for the administration of the Plan.
All decisions, determinations, and interpretations of the Committee shall be
binding on all participants.
3. Stock Subject to the Plan.
(a) An aggregate of not more than 1,000,000 shares of Stock
shall be available for the grant of stock options or the issuance of Stock under
the Plan, If an option is surrendered (except surrender for shares of Stock) or
for any other reason ceases to be exercisable in whole or in part the shares
which were subject to such option but as to which the option had not been
exercised shall continue to be available under the Plan. Any Stock which the
Company retains upon exercise of an option in order to satisfy the exercise
price for such option or any withholding taxes due with respect to such option
exercise shall be treated as issued to the optionee and shall thereafter not be
available under the Plan.
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(b) If there is any change in the Stock subject to the Plan,
an Option Agreement/ a Restricted Stock Purchase Agreement, a Restricted Stock
Bonus Agreement or a SAR Agreement through merger, consolidation,
reorganization, recapitalization, reincorporation, stock split, stock dividend
(in excess of two percent), or other change in the corporate structure of the
Company, the Committee shall make appropriate adjustments in order to preserve
but not to increase the benefits to the individual, including adjustments to the
aggregate number, kind of shares and price, per share subject to the Plan, the
Option Agreement the Restricted Stock Purchase Agreement the Restricted Stock
Bonus Agreement or the SAR Agreement
4. Eligible Individuals.
(a) Individuals who shall be eligible to have granted to them
the options, Stock, or SARs provided for by the Plan shall be such employees,
officers, directors, independent contractors and consultants of the Company or
an Affiliate as the Committee, in its discretion, shall designate from time to
time. Notwithstanding the foregoing, only employees of the Company or an
Affiliate (including officers and directors who are bona fide employees) shall
be eligible to receive incentive stock options.
(b) Sections 4(b)-(g) herein shall become effective at the
earlier of the following dates: (1) immediately after the close of the Annual
Meeting of the Company's Stockholders to be held in 1994, or (2) when the number
of shares available for the grant of options under the VEX, Incorporated 1990
Stock Option Plan is insufficient to grant to non-employee members of the Board
the Automatic Options provided in that Plan. At the first Annual Meeting of the
Company's Stockholders that takes place after the effective date of this
provision, and on the date of each subsequent Annual Meeting, each individual
who is elected or reelected at such Annual Meeting to serve as a non-employee
member of the Board (including any individual who may have already received one
or more automatic option grants under the Plan) shall automatically be granted
an option under the Plan to purchase an additional 2,000 shares of the Company's
Common Stock (subject to adjustment under paragraph 3(b)) upon the terms and
conditions specified below. In addition, any individual who (i) after the
effective date of this provision is elected to serve as a non-employee member of
the Board at a time other than an Annual Meeting of the Company's Stockholders
and (ii) has not previously received an automatic option grant under this
Section shall upon assumption of such office automatically be granted an option
under the Plan to purchase 2,000 shares of the Company's Common Stock (subject
to adjustment under paragraph 3(b)) upon the terms and conditions specified
below. A non-employee member of the Board for the purposes of this Section is an
individual who, at the time of his assumption of office as a director, is not an
employee of the Company or its Subsidiaries.
(c) The option price per share of the Automatic Option shall
be equal to one hundred percent (100%) of the average of the fair market value
of one share of the Company's Common Stock for the ten (10) trading days
preceding the Automatic Option grant date.
(d) The Automatic Option shall have a maximum term of ten (10)
years measured from the Automatic Option grant date and shall be exercisable for
all or any part of the covered shares immediately upon the expiration of six (6)
months after the date the option is granted.
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(e) The shares purchased under the option will be subject to
repurchase by the Company at the original exercise price in the event the
Optionee ceases to be a member of the Board. The repurchase right however, will
lapse, and the Optionee will vest in the shares purchasable under the option/ in
a series of five (5) equal annual installments, beginning one year after the
Automatic Option grant date, provided the optionee continues to serve as a
member of the Board. In addition/ the Company's repurchase right shall lapse in
its entirety should one or more of the following events occur while the optionee
is a member of the Board: (1) the optionee's death, (2) the optionee's permanent
disability, (3) a stockholder-approved Corporate Transaction as defined in
Section 15, or (4) a Change in Control. A Change in Control shall be deemed to
occur:
(i) if any "person," as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), other than the Company, a subsidiary of the Company or a
Company employee benefit plan, including any trustee of such plan acting as
trustee, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing twenty percent (20%) or more of the combined voting power of the
Company's then outstanding securities entitled to vote generally in the election
of directors; or
(ii) if the stockholders of the Company approve a
merger or consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the stockholders
of the Company approve an agreement for the sale or disposition by the Company
of all or substantially all the Company's assets; or
(iii) upon a change in the composition of the Board
of Directors of the Company, as a result of which fewer than a majority of the
directors are Incumbent Directors. "Incumbent Directors" shall mean directors
who either (A) are directors of the Company as of the date this amendment to the
Plan is approved by the Board of Directors, or (B) are elected, or nominated for
election, to the Board of Directors of the Company with the affirmative votes of
at least a majority of the Incumbent Directors and whose election or nomination
was not in connection with any transaction described in (i) or (ii) above or in
connection with an actual or threatened proxy contest relating to the election
of directors of the Company.
(f) In the event of a Change in Control/the optionee shall
have the right, exercisable during the thirty (30)-day period following the
Change in Control/ to surrender each Automatic Option which has been outstanding
under the Plan for at least six (6) months in exchange for a cash payment from
the Company in an amount equal to the excess of (i) the fair market value (on
the date of such surrender) of the shares of Common Stock purchasable under the
surrendered option, over (ii) the aggregate option price payable for such
shares. For purposes of this Section, the fair market value per share of Common
Stock subject to the surrendered option shall be deemed to be equal to the
greater of (a) the fair market value per share on the date of such surrender/ as
determined by the Committee, or (b) the highest reported price per share paid by
the acquiring entity in effecting the Change in Control.
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(g) Except for the Automatic Option grants under this Section/
those non-employee members of the Board who serve on the Committee shall not be
eligible to receive any additional option grants under this Plan or any other
stock plan of the Company or its subsidiaries. At any time mat the number of
non-employee members of the Board serving on the Committee is not sufficient to
comply with Rule 16b-3 under the Securities Exchange Act of 1934, one or more
additional members of the Board shall be designated to serve on the Committee
beginning on the date on which each such member is first "disinterested" as
defined in Rule 16b-3. The designated Board member or members shall be
ineligible for option grants, other than Automatic Options under this Section.
5. The Option Price. The exercise price of the Stock covered by each
incentive stock option shall be not less than the per share fair market value of
such Stock on the date the option is granted. The exercise price of the Stock
covered by each nonqualified stock option other than Automatic Options shall be
as determined by the Committee. Notwithstanding the foregoing, in the case of an
incentive stock option granted to a person possessing more than ten percent of
the combined voting power of the Company or an Affiliate, the exercise price
shall be not less than 110 percent of the fair market value of the Stock on the
date the option is granted. The exercise price of an option shall be subject to
adjustment to the extent provided in paragraph 3(b), above.
6. Terms and Conditions of Options.
(a) Each option granted pursuant to the Plan will be evidenced
by a written Stock Option Agreement executed by the Company and the person to
whom such option is granted.
(b) The Committee shall determine the term of each option/
other than Automatic Options, granted under the Plan; provided, however, that
the term of an incentive stock option shall not be for more than 10 years and
that; in the case of an incentive stock option granted to a person possessing
more than ten percent of the combined voting power of the Company or an
Affiliate, the term shall be for no more than five years.
(c) In the case of incentive stock options/ the aggregate fair
market value (determined as of the time such option is granted) of the Stock
with respect to which incentive stock options are exercisable for the first time
by an eligible employee in any calendar year (under this Plan and any other
plans of the Company or its Affiliates) shall not exceed $100,000.
(d) The Stock Option Agreement may contain such other terms,
provisions and conditions consistent with this plan as the Committee may
determine. If an option or any part thereof is intended to qualify as an
incentive stock option, the Stock Option Agreement shall contain those terms and
conditions which are necessary to so qualify it.
7. Terms and Conditions of Stock Purchases and Bonuses.
(a) Each sale or grant of stock pursuant to the Plan will be
evidenced by a written Restricted Stock Purchase Agreement or Restricted Stock
Bonus Agreement executed by the Company and the person to whom such stock is
sold or granted.
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(b) The Restricted Stock Purchase Agreement or Restricted
Stock Bonus Agreement may contain such other terms, provisions and conditions
consistent with this plan as the Committee may determine/ including not by way
of limitation, restrictions on transfer, forfeiture provisions, repurchase
provisions and vesting provisions.
8. Terms and Conditions of SARs. The Committee may, under such terms
and conditions as it deems appropriate, authorize the issuance of SARs evidenced
by a written SAR agreement (which, in the case of tandem options/ may be part of
the option agreement to which the SAR relates) executed by the Company and the
person to whom such SAR is granted. The SAR agreement may contain such terms,
provisions and conditions consistent with this Plan as the Committee may
determine.
9. Use of Proceeds. Cash proceeds realized from the issuance of Stock
under the Plan shall constitute general funds of the Company.
10. Amendment, Suspension, or Termination of the Plan.
(a) The Board may at any time amend, suspend or terminate the
Plan as it deems advisable; provided that such amendment suspension or
termination complies with all applicable requirements of state and federal law,
including any applicable requirement mat the Plan or an amendment to the Plan be
approved by the Company's stockholders, and provided further that, except as
provided in paragraph 3(b), above, the Board shall in no event amend the Plan in
the following respects without the consent of stockholders then sufficient to
approve the Plan in the first instance:
(i) To increase the maximum number of shares subject
to incentive stock options issued under the Plan; or
(ii) To change the designation or class of persons
eligible to receive incentive stock options under the Plan.
(b) No option may be granted nor any Stock issued under the
Plan during any suspension or after the termination of the Plan, and no
amendment suspension or termination of the Plan shall, without the affected
individual's consent, alter or impair any rights or obligations under any option
previously granted under the Plan. The Plan shall terminate with respect to the
grant of incentive stock options on February 2, 2003, unless previously
terminated by the Board pursuant to this paragraph 10.
11. Assignability. Each option granted pursuant to this Plan shall/
during Optionee's lifetime, be exercisable only by him, and neither the option
nor any right hereunder shall be transferable by Optionee by operation of law or
otherwise other than by will or the laws of descent and distribution. Stock
subject to a Restricted Stock Purchase Agreement or a Restricted Stock Bonus
Agreement shall be transferable only as provided in such Agreement
12. Payment Upon Exercise of Options. Payment of the purchase price
upon exercise of any option granted under this Plan shall be made in cash;
provided, however, that the Committee, in its sole discretion, may permit an
Optionee to pay the option price in whole or in part (i) with shares
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of Stock owned by the Optionee; (ii) by delivery on a form prescribed by the
Committee of an irrevocable direction to a securities broker approved by the
Committee to sell shares and deliver all or a portion of the proceeds to the
Company in payment for the Stock; (iii) by delivery of the Optionee's promissory
note with such recourse, interest, security, and redemption provisions as the
Committee in its discretion determines appropriate; or (iv) in any combination
of the foregoing. Any Stock used to exercise options shall be valued at its fair
market value on the date of the exercise of the option. In addition, the
Committee, in its sole discretion, may authorize the surrender by an Optionee of
all or part of an unexercised option and authorize a payment in consideration
thereof of an amount equal to the difference between the aggregate fair market
value of the Stock subject to such option and the aggregate option price of such
Stock. In the Committee's discretion, such payment may be made in cash, shares
of Stock with a fair market value on the date of surrender equal to the payment
amount, or some combination thereof.
13. Withholding Taxes. No Stock shall be granted or sold under the Plan
to any participant, and no SAR may be exercised, until the participant has made
arrangements acceptable to the Committee for the satisfaction of federal, state
and local income and employment tax withholding obligations, including without
limitation obligations incident to the receipt of Stock under the Plan, the
lapsing of restrictions applicable to such Stock, the failure to satisfy the
conditions for treatment as incentive stock options under applicable tax law, or
the receipt of cash payments. Upon exercise of a stock option or lapsing of
restriction on stock issued under the Plan, the Company shall withhold from the
Optionee or, at the Committee's discretion, require the Stockholder to surrender
shares of the Company's Stock sufficient to satisfy federal, state and local
income and employment tax withholding obligations.
14. Restrictions on Transfer of Shares. The Stock acquired pursuant to
the Plan shall be subject to such restrictions and agreements regarding sale,
assignment, encumbrances, or other transfer as are in effect among the
stockholders of the Company at the time such Stock is acquired, as well as to
such other restrictions as the Committee shall deem advisable.
15. Corporate Transaction.
(a) For purposes of this Section 15, a "Corporate Transaction"
shall include any of the following stockholder-approved transactions to which
the Company is a party:
(i) a merger or consolidation in which the Company is
not the surviving entity, except for a transaction the principal purpose of
which is to change the state of the Company's incorporation;
(ii) the sale, transfer or other disposition of all
or substantially all of the assets of the Company in liquidation or dissolution
of the Company; or
(iii) any reverse merger in which the Company is the
surviving entity but in which securities assessing more than fifty percent (50%)
of the total combined voting power of the Company's outstanding securities are
transferred to holders different from those who held such securities immediately
prior to such merger.
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(b) Subject to Section 17, in the event of any Corporate
Transaction, any option, restricted stock or SAR shall vest in its entirety and
become exercisable, or with respect to restricted stock be released from
restrictions on transfer and repurchase rights, immediately prior to the
specified effective date of the Corporate Transaction unless assumed by the
successor corporation or its parent company pursuant to options, restricted
stock agreements or SARs providing substantially equal value and having
substantially equivalent provisions as the options/ restricted stock agreements
or SARs granted pursuant to this Plan. This section 15(b) shall not apply to
Automatic Options or to restricted stock purchased by the exercise of Automatic
Options, both of which are governed by Section 4(e) in the event of a Corporate
Transaction.
16. Stockholder Approval. This Plan shall only become effective with
regard to incentive stock options upon its approval by a majority of the
stockholders voting (in person or by proxy) at a stockholders' meeting held
within 12 months of the Board's adoption of the Plan. The Committee may grant
incentive stock options under the Plan prior to the stockholders' meeting, but
until stockholder approval of the Plan is obtained, no incentive stock option
shall be exercisable.
17. Change in Control. In the event of a Change in Control, any option,
restricted stock, or SAR shall vest in its entirety and become exercisable, or
with respect to restricted stock, be released from the restrictions on transfer
and repurchase rights. This Section 17 shall not apply to Automatic Options or
to restricted stock purchased by the exercise of Automatic Options, both of
which are governed by the terms and conditions in Section 4(e) in the event of a
Change in Control.
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