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EXHIBIT 10.4
ADVANCED MICRO DEVICES, INC.
SUNNYVALE, CALIFORNIA
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1980 STOCK APPRECIATION RIGHTS PLAN
1. Purpose. The purpose of this Plan is to advance the
interests of the Corporation and its stockholders by providing means by which
the Corporation and its subsidiaries may remain competitive in the search for
and in the motivation and retention of outstanding management personnel. The
Corporation seeks to attract and retain in its employ and in the employ of its
subsidiaries management personnel of training, experience and ability, and to
furnish additional incentive to executives upon whose judgment, initiative and
efforts the successful conduct of the business of the Corporation and its
subsidiaries largely depends. It is believed that the granting of stock
appreciation rights as provided herein will assist the Company in attracting
and retaining employees of unusual competence and, by increasing their equity
interests in the Company, will provide incentive and inducement to them to use
their best efforts in the Company's behalf.
2. Definitions. The terms defined in this Section 2 shall
have the respective meanings set forth herein, unless the context otherwise
requires.
(a) Committee. The term "Committee" shall mean a
committee to which administration of the Plan has been delegated, in whole or
in part, by the Board of Directors, pursuant to Sections 3(c) or 3(d) hereof.
(b) Disinterested Director: The term
"Disinterested Director" shall mean a member of the Board of Directors of the
Company who has not, during the one year prior to service as an administrator
of the Plan, or during such service, been granted or awarded equity securities
of the Company pursuant to this Plan or any other plan of the Company or any of
its affiliates, except for options granted automatically pursuant to the
formula set forth in the Advanced Micro Devices, Inc. 1992 Stock Incentive
Plan.
(c) 1969 Plan: The term "1969 Plan" shall mean
the Corporation's 1969 Stock Option Plan as amended.
(d) 1977 Plan: The term "1977 Plan" shall mean
the Corporation's 1977 Stock Option Plan as amended.
(e) 1979 Plan: The term "1979 Plan" shall mean
the Corporation's 1979 Stock Option Plan as amended.
(f) 1982 Plan: The term "1982 Plan" shall mean
the Corporation's 1982 Stock Option Plan as amended.
(g) Stock Option Plans: The term "Stock Option
Plans" shall mean collectively the 1969 Plan, the 1977 Plan, the 1979 Plan and
the 1982 Plan.
(h) Plan: The term "Plan" or this "Plan" shall
mean this 1980 Stock Appreciation Rights Plan, as originally adopted, and, if
amended or modified as herein provided, as so amended or modified as herein
provided, as so amended or modified.
(i) Stock Appreciation Right: The term "Stock
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Appreciation Right" shall mean the right to receive, without payment to the
Corporation, cash and/or Shares equivalent in value to the Spread as defined in
Sections 4 and 5 of this Plan.
(j) Rights: The term "General Right" shall mean
a Stock Appreciation Right granted by the Committee pursuant to the provisions
of Section 4 of this Plan. The term "Limited Right" shall mean a Stock
Appreciation Right granted by the Committee pursuant to the provisions of
Section 4 of this Plan. The term "Limited Right" shall mean a Stock
Appreciation Right granted by the Committee pursuant to the provisions of
Section 5 of this Plan. The term "Right" shall mean any General Right or
Limited Right.
(k) Stock Option: The term "Stock Option" shall
mean (except as herein otherwise provided) a stock option granted under the
1969 Plan, the 1977 Plan, 1979 Plan or the 1982 Plan.
(l) Shares: The term "Shares" shall mean shares
of Common Stock of the Corporation and any shares of Stock or other securities
received as a result of the adjustments provided for in Section 7 of this Plan.
(m) Optionee: The term "Optionee" shall mean any
person to whom a Stock Option has been granted.
(n) Fair Market Value per Share: The term "Fair
Market Value per Share" shall mean as of any day (i) the closing price for
Shares on the New York Stock Exchange as reported on the Composite Tape on the
day as of which such determination is being made or, if there was no sale of
Shares reported on the Composite Tape on such day, on the most recently
preceding day on which there was such a sale, or (ii) if the Shares are not
listed or admitted to trading on the New York Stock Exchange on the day as of
which the determination is being made, the amount determined by the Committee
to be the fair market value of a Share on such day.
3. Administration.
(a) The Board of Directors (the "Board"), whose
authority shall be plenary, shall administer the Plan and may delegate part or
all of the powers designated in Section 3(b) with respect to part or all of the
Plan pursuant to Section 3(c); provided, however, that the Board of Directors
shall delegate administration of the Plan to the extent required by Section
3(d).
(b) The Board shall have the power, subject to
and within the limits of the express provisions of the Plan:
(1) To grant Rights pursuant to the
Plan.
(2) To determine from time to time
which of the eligible persons shall be granted Rights under the Plan,
the number of Shares for which each Right shall be granted, the term
of each granted Right and the time or times during the term of each
Right within which all or portions of each Right may be exercised,
(which at the discretion of the Board may be accelerated).
(3) To grant Rights in exchange for
cancellation of Rights granted earlier at different exercise prices.
(4) To prescribe the terms and
provisions of each Right granted (which need not be identical) and
the form of written instrument that shall constitute the Right
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agreement.
(5) To take appropriate action to
amend any Right hereunder; provided, however, that no such action may
be taken by the Board without the written consent of the affected
holder of the Right.
(6) To construe and interpret the
Plan and Rights granted under the Plan, and to establish, amend and
revoke rules and regulations for administration of the Plan. The
Board, in the exercise of this power, shall generally determine all
questions of policy and expediency that may arise and may correct any
defect, omission or inconsistency in the Plan or in any Right
agreement in a manner and to the extent it shall deem necessary or
expedient to make the Plan fully effective.
(7) Generally, to exercise such
powers and to perform such acts as are deemed necessary or expedient
to promote the best interests of the Company.
(c) Subject to the limits set forth below, the
Board may, by resolution, delegate its administrative powers set forth in
Section 3(b) above under either or both of the following:
(1) with respect to the participation
of or granting of Rights to an employee who is not subject to Section
16 of the Exchange Act, to a committee of one or more members of the
Board, whether or not such members of the Board are Disinterested
Directors;
(2) with respect to ministerial
matters, i.e., matters other than the selection for participation in
the Plan and substantive decisions concerning the timing, pricing,
amount or other material term of a Right, to a committee of one or
more members of the Board, whether or not such members of the Board
are Disinterested Directors, or to one or more officers of the
Company.
(d) Unless each member of the Board is a
Disinterested Director, the Board shall, by resolution, delegate administration
of the Plan with respect to the participation in the Plan of employees who are
subject to Section 16 of the Exchange Act, including its powers to select such
employees for participation in the Plan, to make substantive decisions
concerning the timing, pricing, amount or any other material term of a Right
granted to such an employee, to a committee of two or more Disinterested
Directors. Any committee to which administration of the Plan is so delegated
may also administer the Plan with respect to an employee described in Section
3(c)(1) above.
(e) Except as required by Section 3(d) above, the
Board shall have complete discretion to determine the composition, structure,
form, term and operations of any committee established to administer the Plan.
If administration is delegated to a committee, unless the Board otherwise
provides, the committee shall have, with respect to the administration of the
Plan, all of the powers and discretion theretofore possessed by the Board and
delegable to such committee, subject to any constraints which may be adopted by
the Board from time to time and which are not inconsistent with the provisions
of the Plan. The Board at any time may revest in the Board any of its
administrative powers under the Plan,
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except under circumstances where a committee is required to administer the Plan
under Section 3(d) above.
(f) The determinations of the Board or its
delegate shall be conclusive and binding on all persons having any interest in
this Plan or in any awards granted hereunder.
4. Stock Appreciation Rights - General Rights.
(a) The Committee shall have authority in its
discretion to grant a General Right to the holder of any Stock Option (the
"Related Option") with respect to all or some of the Shares covered by such
Related Option. A General Right may be granted either at the time of grant of
the Related Option or at any time thereafter during its term. A General Right
may be granted to an Optionee irrespective of whether such Optionee is being
granted or has been granted a Limited Right. Each General Right shall be
exercisable only if and to the extent that the Related Option is exercisable.
Notwithstanding the provisions of the preceding sentence, no General Right may
be exercised until the expiration of six months from the date of grant of such
General Right unless prior to the expiration of such six month period the
holder of the General Right ceases to be an employee of the Company because of
his death or physical or mental incapacity. Upon the exercise of a General
Right, the Related Option shall cease to be exercisable to the extent of the
Shares with respect to which such General Right is exercised, but the Related
Option shall be considered to have been exercised to such extent for purposes
of determining the number of Shares available for the grant of further Stock
Options pursuant to the Stock Option Plans. Upon the exercise or termination
of a Related Option, the General Right with respect to such Related Option
shall terminate to the extent of the Shares with respect to which the Related
Option is exercised or terminated.
(b) The term "Spread" as used in this Section 4
shall mean with respect to the exercise of any General Right an amount equal to
the product computed by multiplying (i) the excess of (A) the Fair Market
Value per Share on the date such General Right is exercised over (B) the
purchase price per Share at which the Related Option is exercisable by (ii) the
number of Shares with respect to which such General Right is being exercised.
(c) Upon the exercise of a General Right as
provided in Paragraph (j) of this Section 4, the holder thereof, except as
provided in Paragraph (d) of this Section 4, shall be entitled at his election
to receive either:
(i) a number of Shares equal to the quotient
computed by dividing the Spread by the Fair Market Value per Share on
the date of exercise of the General Right, provided, however, that in
lieu of fractional Shares the Corporation shall pay cash equal to the
same fraction of the Fair Market Value per Share on the date of
exercise of the General Right; or
(ii) an amount in cash equal to the Spread;
or
(iii) a combination of cash in the amount
specified in such holder's notice of exercise, and a number of Shares
calculated as provided in Clause (i) of this
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Paragraph (c), after reducing the Spread by such cash amount, plus
cash in lieu of any fractional Share as provided above.
(d) Notwithstanding the provisions of Paragraph
(c) of this Section 4, the Committee shall have sole discretion to consent to
or disapprove, in whole or in part, the election pursuant to either Clause (ii)
or (iii) of Paragraph (c) of this Section 4 of a holder of a General Right to
receive cash upon the exercise of a General Right ("Cash election"). Such
consent or disapproval may be given at any time after the Cash Election to
which it relates. If the Committee shall disapprove a Cash Election, in lieu
of paying the cash (or any portion thereof) specified in such Cash Election,
the Committee shall determine the cash, if any, to be paid pursuant to such
Cash Election and shall issue a number of Shares calculated as provided in
Clause (i) of Paragraph (c) of this Section 4, after reducing the Spread by
such cash to be paid plus cash in lieu of any fractional Share.
(e) Notwithstanding the provisions of Paragraph
(c) of this Section 4, a Cash Election may be made only during the period
beginning on the third business day following the date of release for
publication of the quarterly and annual summary statements of sales and
earnings of the Corporation and ending on the 12th business day following such
date.
(f) The Corporation intends that this Section 4
shall comply with the requirements of Rule 16b-3 (the "Rule") under the
Securities Exchange Act of 1934 during the term of this Plan. Should any
provision of this Section 4 be unnecessary to comply with the requirements of
the Rule or should any additional provisions be necessary for Section 4 to
comply with the requirements of the Rule, the Board of Directors of the
Corporation may amend this Plan to add to or modify the provisions of this Plan
accordingly.
(g) No General Right shall be transferable except
by will or by the laws of descent and distribution. During the life of a
holder of a General Right, the General Right shall be exercisable only by him
or his guardian or legal representative.
(h) A person exercising a General Right shall not
be treated as having become the registered owner of any Shares issued on such
exercise until such Shares are issued.
(i) Each General Right shall be on such terms and
conditions not inconsistent with this Plan as the Committee may determine and
shall be evidenced by a Right Agreement setting forth such terms and conditions
executed by the Corporation and the holder of the General Right.
(j) To exercise a General Right, the holder shall
(i) give written notice thereof to the Corporation in form satisfactory to the
Committee addressed to the Secretary of the Corporation specifying (A) the
number of Shares with respect to which he is exercising the General Right and
(B) the amount he elects to receive in cash, if any, and the amount he elects
to receive in Shares with respect to the exercise of the General Right; (ii)
deliver to the Corporation such written representations, warranties and
covenants as the Corporation may require under Section 8 of this Plan; and
(iii) if requested by the Corporation, deliver the Right Agreement relating to
the
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General Right being exercised and the Option Agreement for the Related Option
to the Secretary of the Corporation who shall endorse thereon a notation of
such exercise and return the Right Agreement and the Option Agreement to the
Optionee. The date of exercise of a General Right which is validly exercised
shall be deemed to be the date on which the Corporation shall have received the
instruments referred to in the first sentence of this Paragraph (j).
5. Stock Appreciation Rights - Limited Rights.
(a) The Committee shall have authority in its
discretion to grant a Limited Right to the Holder of any Stock Option (the
"Related Option") granted under the Stock Option Plans with respect to all or
some of the Shares covered by such Related Option. A Limited Right may be
granted either at the time of grant of the Related Option or at any time
thereafter during its term. A Limited Right may be granted to an Optionee
irrespective of whether such Optionee is being granted or has been granted a
General Right. A Limited Right may be exercised only during the period
beginning on the first day following the date of expiration of any Offer (as
that term is defined in Paragraph (b) of this Section 5) for Shares and ending
on the thirtieth day following such date. Each Limited Right shall be
exercisable only if and to the extent that the Related Option is exercisable.
Notwithstanding the provisions of the two immediately preceding sentences, no
Limited Right may be exercised until the expiration of six months from the date
of grant of such Limited Right. Upon the exercise of a Limited Right, the
Related Option shall cease to be exercisable to the extent of the number of
Shares with respect to which such Limited Right is exercised, but such Related
Option shall be considered to have been exercised to such extent for purposes
of determining the number of shares available for the grant of further Stock
Options pursuant to the Stock Option Plans. Upon the exercise or termination
of a Related Option, the Limited Right with respect to such Related Option
shall terminate to the extent of the number of Shares with respect to which the
Related Option is exercised or terminated.
(b) The term "Offer" as used in this Section 5
shall mean any tender offer or exchange offer for Shares, other than one made
by the Company, provided that the corporation, person or other entity making
the offer acquires Shares pursuant to such offer and following expiration or
termination of the offer the offeror owns 25% of the outstanding Shares.
(c) The term "Offer Price per Share" as used in
this Section 5 with respect to the exercise of any Limited Right shall mean the
highest price per Share paid in any Offer which Offer is in effect at any time
during the period beginning on the sixtieth day prior to the date on which such
Limited Right is exercised and ending on the date on which such Limited Right
is exercised. Any securities or property which are part or all of the
consideration paid for Shares in the Offer shall be valued in determining the
Offer Price per Share at the higher of (A) the valuation placed on such
securities or property by the corporation, person or other entity making such
Offer or (B) the valuation placed on such securities or property by the
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Committee.
(d) The term "Spread" as used in this Section 5
with respect to the exercise of any Limited Right shall mean an amount equal to
the product computed by multiplying (i) the excess of (A) the Offer Price per
Share over (B) the purchase price per Share at which the Related Option is
exercisable, by (ii) the number of Shares with respect to which such Limited
Right is being exercised.
(e) Upon the exercise of a Limited Right as
provided in Paragraph (j) of this Section 5, the holder thereof shall receive
an amount in cash equal to the Spread.
(f) Notwithstanding any other provision of this
Plan, no General Right may be exercised at a time when any Limited Right held
by the holder of such General Right may be exercised.
(g) The Corporation intends that this Section 5
shall comply with the requirements of the Rule during the term of this Plan.
Should any provision of this Section 5 be unnecessary to comply with the
requirements of the Rule or should any additional provisions be necessary for
this Section 5 to comply with the requirements of the Rule, the Board of
Directors of the Corporation may amend this Plan to add or to modify the
provisions of this Plan accordingly.
(h) No Limited Right shall be transferable except
by will or by the laws of descent and distribution. During the life of a
holder of a Limited Right, the Limited Right shall be exercisable only by him
or his guardian or legal representative.
(i) Each Limited Right shall be on such terms and
conditions not inconsistent with the Plan as the Committee may determine and
shall be evidenced by a Right Agreement setting forth such terms and conditions
executed by the Corporation and the holder of the Limited Right.
(j) To exercise a Limited Right, the holder shall
(i) give written notice thereof to the Corporation in form satisfactory to the
Committee addressed to the Secretary of the Corporation specifying the number
of Shares with respect to which he is exercising the Limited Right, and (ii) if
requested by the Corporation, deliver the Right Agreement relating to the
Limited Right being exercised and the Option Agreement for a Related Option to
the Secretary of the Corporation who shall endorse thereon a notation of such
exercise and return the Right Agreement and the Option Agreement to the
employee. The date of exercise of a Limited Right which is validly exercised
shall be deemed to be the date on which the Corporation shall have received the
instruments referred to in the first sentence of this Paragraph (j).
6. Effectiveness and Term of the Plan.
(a) This Plan shall become effective on the date
on which it is approved by the holders of outstanding shares of Common Stock of
the Corporation constituting a majority of such shares present in person or
represented by proxy and entitled to vote at a meeting of stockholders of the
Corporation duly called and held.
(b) Unless previously terminated in accordance
with Section 9 of this Plan, this Plan shall terminate on the close of business
on January 25, 1992, after which no Rights shall be
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granted under this Plan. Such termination shall not affect any Stock Options
or Rights granted prior to such termination.
7. Certain Adjustments.
(a) In the event that the Company shall pay a
stock dividend in, or split-up, combine, reclassify or substitute other
securities for, its outstanding Shares, the Committee shall forthwith take such
action, if any, as is consistent with the provisions of this Plan and as in its
judgment shall be necessary to preserve to the holders of Rights such rights as
are substantially proportionate to the rights held by them immediately prior to
such event under such Rights. Any adjustment may provide for the elimination
of any fractional Shares which might otherwise become subject to a Right.
(b) In case the Corporation is merged or
consolidated with another corporation and the Corporation is not the surviving
corporation, or all or substantially all of the assets of the Corporation are
transferred to another corporation, such action shall be taken, if any, which
in the judgment of the Committee is necessary to substitute for Shares covered
by any outstanding Right the type of securities or property of the corporation
surviving such merger or consolidation or acquiring such assets which are
issuable by reason of such merger, consolidation or transfer to the holders of
the shares of Common Stock of the Corporation.
(c) Notwithstanding and in addition to the
provisions of this Plan, the Committee shall have the authority to provide in
any Right Agreement, either at the time of grant or by amendment, that, upon
the date of a determination by the Committee that within six months next
succeeding the date of such determination there is a reasonable possibility a
public market for the Shares may cease to exist, or such Shares may fail to
remain qualified for listing on the New York Stock Exchange, any General or
Limited Right related thereto shall become fully exercisable as to all Shares
subject thereto; provided, however, that except in the case of the death or
physical or mental incapacity of the Right holder, no Right shall be
exercisable prior to the expiration of six months following (i) the date of the
grant of the Related Option, or (ii) the date on which the Right was granted,
whichever is later.
(d) In addition to the authority conferred to the
Committee in (c) hereinabove, the Committee shall also have the authority to
modify or otherwise amend any Right Agreement as it deems necessary or
appropriate, provided that the holder of the Right subject to any such Right
Agreement to be modified or amended shall have consented thereto.
8. Compliance with Law.
(a) Each employee, to permit the Corporation to
comply with the Securities Act of 1933, as amended (the "Act"), and any
applicable blue sky or state securities laws, shall represent in writing to the
Company at the time of grant of a Right and at the time of the issuance of any
Shares thereunder that he does not contemplate and shall not make any transfer
of any Shares to be acquired under Rights except in compliance with
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the Act, and he shall enter into such agreements and make such other
representations as, in the opinion of counsel to the Corporation, shall be
sufficient to enable the Corporation legally to issue the Shares. Certificates
representing Shares to be acquired under Rights shall bear such legends as
counsel for the Corporation may indicate are necessary or appropriate to
accomplish the purposes of Paragraphs (a) and (b) of this Section 8.
(b) If at any time the Committee shall determine
that the listing, registration or qualification of the Shares subject to any
Right upon any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory authority, is necessary or
desirable as a condition of, or in connection with, the granting of, or
issuance of Shares under, such Right, such Shares shall not be issued unless
such listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Committee.
(c) Where in the opinion of counsel to the
Company, the Company has or will have an obligation to withhold taxes relating
to the exercise of a Right, a Participant may elect (a "Withholding Election")
to pay his required minimum withholding tax obligation by the withholding of
Shares from the total number of Shares deliverable pursuant to the exercise
of a Right in whole or in part for Shares, or by delivering to the Company a
sufficient number of previously acquired Shares, and may elect to have
additional taxes paid by the delivery of previously acquired shares, in each
case in accordance with rules and procedures established by the Board or its
delegate. Previously owned shares delivered in payment for such taxes must
have been owned for at least six months prior to the exercise date, or may be
subject to such other conditions as the Board or its delegate may require.
The value of Shares withheld or delivered shall be the Fair Market Value per
Share on the date the exercise becomes taxable. All Withholding Elections are
subject to the approval of the Board or its delegate and must be made in
compliance with rules and procedures established by the Board or its delegate.
9. Amendment of the Plan. The Board of Directors of the
Corporation (i) may at any time and from time to time modify or amend this Plan
in any respect, except that without shareholder approval no such modification
or amendment may increase the maximum number of Shares as to which Rights may
be granted, or otherwise materially increase the benefits accruing to
participants under this Plan, and (ii) may at any time terminate this Plan.
The termination or any modification or amendment of this Plan shall not,
without the consent of any Optionee or holder of Rights involved, affect his
rights under a Stock Option or Right previously granted to him.
10. No Obligations. Neither this Plan nor the grant of any
Right shall confer any right on any employee to remain in the employ of the
Corporation or any subsidiary or restrict the right of the Corporation or any
subsidiary to terminate his employment.
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