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Exhibit 10.30
COR THERAPEUTICS, INC.
1991 EQUITY INCENTIVE PLAN
(ADOPTED BY BOARD OF DIRECTORS MAY 14, 1991)
(AMENDED JANUARY 21, 1994)
(AMENDED JANUARY 6, 1995)
(AMENDED JANUARY 19, 1996)
(AMENDED JANUARY 24, 1997)
1. PURPOSE.
(a) The purpose of the 1991 Equity Incentive Plan (the
"Plan") is to provide a means by which employees, directors and consultants of
COR Therapeutics, Inc., a Delaware corporation (the "Company"), and its
Affiliates, as defined in subparagraph 1(b), may be given an opportunity to
benefit from increases in value of the stock of the Company through the
granting of (i) incentive stock options, (ii) nonqualified stock options, (iii)
stock bonuses, and (iv) rights to purchase restricted stock, all as defined
below.
(b) "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company, as those terms are
defined in Sections 424(e) and (f), respectively, of the Internal Revenue Code
of 1986, as amended (the "Code").
(c) "Covered Executive" as used in the Plan means each
employee of or consultant to the Company or an Affiliate subject to Section 16
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), with
respect to the Company or an Affiliate.
(d) The Company, by means of the Plan, seeks to retain
the services of persons now employed by or serving as consultants to the
Company, to secure and retain the services of persons capable of filling such
positions, and to provide incentives for such persons to exert maximum efforts
for the success of the Company.
(e) The Company intends that the rights issued under the
Plan ("Stock Awards") shall, in the discretion of the Board of Directors of the
Company (the "Board") or any committee to which responsibility for
administration of the Plan has been delegated pursuant to subparagraph 2(c), be
either (i) stock options granted pursuant to paragraph 5 hereof, including
incentive stock options as that term is used in Section 422 of the Code
("Incentive Stock Options"), or options which do not qualify as Incentive Stock
Options ("Nonqualified Stock Options") (together hereinafter referred to as
"Options"), or (ii) stock bonuses or rights to purchase restricted stock
granted pursuant to paragraph 6 hereof.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board unless
and until the Board delegates administration to a committee, as provided in
subparagraph 2(c).
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(b) The Board shall have the power, subject to, and
within the limitations of, the express provisions of the Plan:
(1) To determine from time to time which of the
persons eligible under the Plan shall be granted Stock Awards; when and how
Stock Awards shall be granted; whether a Stock Award will be an Incentive Stock
Option, a Nonqualified Stock Option, a stock bonus, a right to purchase
restricted stock, or a combination of the foregoing; the provisions of each
Stock Award granted (which need not be identical), including the time or times
when a person shall be permitted to purchase or receive stock pursuant to a
Stock Award; and the number of shares with respect to which Stock Awards shall
be granted to each such person.
(2) To construe and interpret the Plan and Stock
Awards granted under it, and to establish, amend and revoke rules and
regulations for its administration. The Board, in the exercise of this power,
may correct any defect, omission or inconsistency in the Plan or in any Stock
Award, in a manner and to the extent it shall deem necessary or expedient to
make the Plan fully effective.
(3) To amend the Plan as provided in paragraph 13.
(4) Generally, to exercise such powers and to
perform such acts as the Board deems necessary or expedient to promote the best
interests of the Company.
(c) The Board may delegate administration of the Plan to
a committee composed of two (2) or more members of the Board (the "Committee"),
all of the members of which Committee may (but need not) be, in the discretion
of the Board, non-employee directors and/or outside directors. If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore
possessed by the Board, subject, however, to such resolutions, not inconsistent
with the provisions of the Plan, as may be adopted from time to time by the
Board. Notwithstanding any provision in this paragraph 2 to the contrary, the
Board or the Committee may delegate to a committee of one or more members of
the Board the authority to grant options to eligible persons who are not then
Covered Executives.
(d) (1) The term "non-employee director", as used in
this Plan, shall mean a member of the Board who either (i) is not a current
employee or officer of the Company or its parent or subsidiary, does not
receive compensation (directly or indirectly) from the Company or its parent or
subsidiary for services rendered as a consultant or in any capacity other than
as a director (except for an amount as to which disclosure would not be
required under Item 404(a) of Regulation S-K ("Regulation S-K") promulgated
pursuant to the Securities Act of 1933 (the "Securities Act")), does not
possess an interest in any other transaction as to which disclosure would be
required under Item 404(a) of Regulation S-K, and is not engaged in a business
relationship as to which disclosure would be required under Item 404(b) of
Regulation S-K; or (ii) is otherwise considered a "non-employee director" for
purposes of Rule 16b-3 promulgated under the Exchange Act.
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(2) The term "outside director", as used in this
Plan shall mean a director who either (i) is not a current employee of the
Company or an "affiliated corporation", is not a former employee of the Company
or an affiliated corporation receiving compensation for prior services (other
than benefits under a tax qualified pension plan), was not an officer of the
Company or an affiliated corporation at any time, and is not currently
receiving compensation for personal services in any capacity other than as a
director, or (ii) is otherwise considered an "outside director" for purposes of
Section 162(m) of the Code.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 11 relating to
adjustments upon changes in stock, the stock that may be issued pursuant to
Stock Awards granted under the Plan shall not exceed in the aggregate four
million eight hundred thousand (4,800,000) shares of the Company's $0.0001 par
value common stock (the "Common Stock"). If any Stock Award granted under the
Plan shall for any reason expire or otherwise terminate without having been
exercised in full, the Common Stock not acquired under such Stock Award shall
again become available for the Plan. Shares repurchased by the Company
pursuant to any repurchase rights reserved by the Company pursuant to the Plan
shall not be available for subsequent issuance under the Plan.
(b) The Common Stock subject to the Plan may be unissued
shares or reacquired shares, bought on the market or otherwise.
4. ELIGIBILITY.
(a) Incentive Stock Options may be granted only to
employees (including officers) of the Company or its Affiliates. A director of
the Company shall not be eligible to receive Incentive Stock Options unless
such director is also an employee of the Company or any Affiliate. Stock
Awards other than Incentive Stock Options may be granted only to employees
(including officers), directors of and consultants to the Company or any
Affiliate.
(b) No person shall be eligible for the grant of an
Incentive Stock Option under the Plan if, at the time of grant, such persons
owns (or is deemed to own pursuant to Section 424(d) of the Code) stock
possessing more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or of any of its Affiliates unless the
exercise price of such Incentive Stock Option is at least one hundred and ten
percent (110%) of the fair market value of the Common Stock at the date of
grant and the Incentive Stock Option is not exercisable after the expiration of
five (5) years from the date of grant.
(c) No person shall be eligible to be granted Stock
Awards under the Plan covering more than five hundred thousand (500,000) shares
of the Company's Common Stock in any calendar year.
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5. TERMS OF STOCK OPTIONS.
Each Option shall be in such form and shall contain such terms
and conditions as the Board or the Committee shall deem appropriate. The
provisions of separate Options need not be identical, but each Option shall
include (through incorporation of provisions hereof by reference in the Option
or otherwise) the substance of each of the following provisions:
(a) No Option shall be exercisable after the expiration
of ten (10) years from the date it was granted.
(b) The exercise price of each Incentive Stock Option
shall be not less than one hundred percent (100%) of the fair market value of
the Common Stock subject to the Option on the date the Option is granted. The
exercise price of each Nonqualified Stock Option shall be not less than one
hundred percent (100%) of the fair market value of the Common Stock subject to
the Option on the date the Option is granted.
(c) The purchase price of Common Stock acquired pursuant
to an Option shall be paid, to the extent permitted by applicable statutes and
regulations, either: (i) in cash at the time the Option is exercised; or (ii)
at the discretion of the Board or the Committee, either at the time of grant or
exercise of the Option (A) by delivery to the Company of shares of Common Stock
of the Company that have been held for the period required to avoid a charge to
the Company's reported earnings and valued at the fair market value on the date
of exercise, (B) according to a deferred payment or other arrangement (which
may include, without limiting the generality of the foregoing, the use of other
Common Stock of the Company) with the person to whom the Option is granted or
to whom the Option is transferred pursuant to subparagraph 5(d), or (C) in any
other form of legal consideration that may be acceptable to the Board or the
Committee in their discretion.
In the case of any deferred payment arrangement, interest shall be
payable at least annually and shall be charged at not less than the minimum
rate of interest necessary to avoid the treatment as interest, under any
applicable provisions of the Code, of any amounts other than amounts stated to
be interest under the deferred payment arrangement.
(d) An Incentive Stock Option shall not be transferable
except by will or by the laws of descent and distribution, and shall be
exercisable during the lifetime of the optionee to whom the Option is granted
only by such optionee. A Nonqualified Stock Option may be transferable to the
extent provided in the Option Agreement; provided, however, that if the Option
Agreement does not specifically provide for transferability, then such
Nonqualified Stock Option shall not be transferable except by will or by the
laws of descent and distribution or pursuant to a domestic relations order.
Notwithstanding the foregoing, the person to whom the Option is granted may, by
delivering written notice to the Company, in a form satisfactory to the
Company, designate a third party who, in the event of the death of the
Optionee, shall thereafter be entitled to exercise the Option.
(e) The total number of shares of Common Stock subject to
an Option may, but need not, be allotted in periodic installments (which may,
but need not, be equal). From
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time to time during each of such installment periods, the Option may become
exercisable ("vest") with respect to some or all of the shares allotted to that
period, and may be exercised with respect to some or all of the shares allotted
to such period and/or any prior period as to which the Option was not fully
exercised. During the remainder of the term of the Option (if its term extends
beyond the end of the installment periods), the Option may be exercised from
time to time with respect to any shares then remaining subject to the Option.
The provisions of this subparagraph 5(e) are subject to any Option provisions
governing the minimum number of shares as to which an Option may be exercised.
(f) The Company may require any optionee, or any person
to whom an Option is transferred under subparagraph 5(d), as a condition of
exercising any such Option: (i) to give written assurances satisfactory to the
Company as to the optionee's knowledge and experience in financial and business
matters and/or to employ a purchaser representative who has such knowledge and
experience in financial and business matters, and that he or she is capable of
evaluating, alone or together with the purchaser's representative, the merits
and risks of exercising the Option; and (ii) to give written assurances
satisfactory to the Company stating that such person is acquiring the Common
Stock subject to the Option for such person's own account and not with any
present intention of selling or otherwise distributing the Common Stock. These
requirements, and any assurances given pursuant to such requirements, shall be
inoperative if: (x) the issuance of the shares upon the exercise of the Option
has been registered under a then currently effective registration statement
under the Securities Act; or (y) as to any particular requirement, a
determination is made by counsel for the Company that such requirement need not
be met in the circumstances under the then applicable securities law.
(g) An Option shall terminate three (3) months after
termination of the optionee's employment or relationship as a consultant or
director with the Company or an Affiliate, unless: (i) such termination is due
to such person's permanent and total disability, within the meaning of Section
422(c)(6) of the Code, in which case the Option may, but need not, provide that
it may be exercised at any time within one (1) year following such termination
of employment or relationship as a consultant or director; (ii) the optionee
dies while in the employ of or while serving as a consultant or director to the
Company or an Affiliate, or within not more than three (3) months after
termination of such employment or relationship as a consultant or director, in
which case the Option may, but need not, provide that it may be exercised at
any time within eighteen (18) months following the death of the optionee by the
person or persons to whom the optionee's rights under such Option pass by will
or by the laws of descent and distribution; or (iii) the Option by its term
specifies either (A) that it shall terminate sooner than three (3) months after
termination of the optionee's employment or relationship as a consultant or
director with the Company or an Affiliate; or (B) that it may be exercised more
than three (3) months after termination of the optionee's employment or
relationship as a consultant or director with the Company or an Affiliate.
This subparagraph 5(g) shall not be construed to extend the term of any Option
or to permit anyone to exercise the Option after expiration of its term, nor
shall it be construed to increase the number of shares as to which any Option
is exercisable from the amount exercisable on the date of termination of the
optionee's employment or relationship as a consultant or director.
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(h) The Option may, but need not, include a provision
whereby the optionee may elect at any time during the term of his or her
employment or relationship as a consultant or director with the Company or any
Affiliate to exercise the Option as to any part or all of the shares subject to
the Option prior to the stated vesting dates of the Option. Any shares so
purchased from any unvested installment or Option may be subject to a
repurchase right in favor of the Company or to any other restriction the Board
or the Committee determines to be appropriate.
(i) To the extent provided by the terms of an Option,
each optionee may satisfy, in whole or in part, any federal, state or local tax
withholding obligation relating to the exercise of such Option by any of the
following means or by a combination of such means: (i) tendering a cash
payment; (ii) authorizing the Company to withhold from the shares of the Common
Stock otherwise issuable to the optionee as a result of the exercise of the
Option a number of shares having a fair market value less than or equal to the
amount of the withholding tax obligation; or (iii) delivering to the Company
owned and unencumbered shares of the Common Stock having a fair market value
less than or equal to the amount of the withholding tax obligation.
6. TERMS OF STOCK BONUSES AND PURCHASES OF RESTRICTED STOCK.
Each stock bonus or restricted stock purchase agreement shall
be in such form and shall contain such terms and conditions as the Board or the
Committee shall deem appropriate. The terms and conditions of stock bonus or
restricted stock purchase agreements may change from time to time, and the
terms and conditions of separate agreements need not be identical, but each
stock bonus or restricted stock purchase agreement shall include (through
incorporation of provisions hereof by reference in the agreement or otherwise)
the substance of each of the following provisions as appropriate:
(a) The purchase price under each stock purchase
agreement shall be such amount as the Board or Committee shall determine and
designate in such agreement. Notwithstanding the foregoing, the Board or the
Committee may determine that eligible participants in the Plan may be awarded
stock pursuant to a stock bonus agreement in consideration for past services
actually rendered to the Company or for its benefit.
(b) No rights under a stock bonus or restricted stock
purchase agreement shall be transferable except by will or by the laws of
descent and distribution so long as stock awarded under such agreement remains
subject to the terms of the agreement.
(c) The purchase price of stock acquired pursuant to a
stock purchase agreement shall be paid either: (i) in cash at the time of
purchase; (ii) at the discretion of the Board or the Committee, according to a
deferred payment or other arrangement with the person to whom the Common Stock
is sold; or (iii) in any other form of legal consideration that may be
acceptable to the Board or the Committee in their discretion.
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(d) Shares of Common Stock sold or awarded under the Plan
may, but need not, be subject to a repurchase option in favor of the Company in
accordance with a vesting schedule to be determined by the Board or the
Committee.
(e) In the event a person ceases to be an employee of or
ceases to serve as a director of or consultant to the Company or an Affiliate,
the Company may repurchase or otherwise reacquire any or all of the shares of
Common Stock held by that person which have not vested as of the date of
termination under the terms of the stock bonus or restricted stock purchase
agreement between the Company and such person.
7. CANCELLATION AND RE-GRANT OF OPTIONS.
(a) The Board or the Committee shall have the authority
to effect, at any time and from time to time, with the consent of the affected
holders of Options, (i) the repricing of any outstanding Options under the Plan
and/or (ii) the cancellation of any outstanding Options and the grant in
substitution therefor of new Options under the Plan covering the same or
different numbers of shares of Common Stock, but having an exercise price per
share not less than one hundred percent (100%) of the fair market
value or, in the case of a 10% stockholder (as defined in subparagraph 4(b),
not less than one hundred and ten percent (110%) of the fair market value) per
share of Common Stock on the new grant date.
(b) Shares subject to an option canceled under this
Section 7 shall continue to be counted against the maximum award of options
permitted to be granted to any person pursuant to subsection 4(c) of the Plan.
The repricing of an option under this Section 7, resulting in a reduction of
the exercise price, shall be deemed to be a cancellation of the original option
and the grant of a substitute option; in the event of such repricing, both the
original and the substituted options shall be counted against the maximum
awards of options permitted to be granted to any person pursuant to subsection
4(c) of the Plan. The provisions of this subsection 7(b) shall be applicable
only to the extent required by Section 162(m) of the Code.
8. COVENANTS OF THE COMPANY.
(a) During the terms of the Stock Awards granted under
the Plan, the Company shall keep available at all times the number of shares of
Common Stock required to satisfy such Stock Awards up to the number of shares
of Common Stock authorized under the Plan.
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may be
required to issue and sell shares of Common Stock under the Stock Awards
granted under the Plan; provided, however, that this undertaking shall not
require the Company to register under the Securities Act either the Plan, any
Stock Award granted under the Plan or any Common Stock issued or issuable
pursuant to any such Stock Award. If, after reasonable efforts, the Company is
unable to obtain from any such regulatory commission or agency the authority
that counsel for the Company deems necessary for the lawful issuance and sale
of Common Stock under the Plan, the
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Company shall be relieved from any liability for failure to issue and sell
Common Stock upon exercise of such Stock Awards unless and until such authority
is obtained.
9. USE OF PROCEEDS FROM COMMON STOCK.
Proceeds from the sale of Common Stock pursuant to Stock
Awards granted under the Plan shall constitute general funds of the Company.
10. MISCELLANEOUS.
(a) The Board or Committee shall have the power to
accelerate the time during which a Stock Award may be exercised or the time
during which a Stock Award or any part thereof will vest, notwithstanding the
provisions in the Stock Award stating the time during which it may be exercised
or the time during which it will vest.
(b) Neither an optionee, Option holder nor any person to
whom an Option is transferred under the provisions of the Plan shall be deemed
to be the holder of, or to have any of the rights of a holder with respect to,
any shares subject to such Option unless and until such person has satisfied
all requirements for exercise of the Option pursuant to its terms.
(c) Nothing in the Plan or any instrument executed or
Stock Award granted pursuant thereto shall confer upon any eligible employee,
consultant, director, optionee or holder of Stock Awards under the Plan any
right to continue in the employ of the Company or any Affiliate or to continue
acting as a consultant or director or shall affect the right of the Company or
any Affiliate to terminate the employment or consulting relationship or
directorship of any eligible employee, consultant, director, optionee or holder
of Stock Awards under the Plan with or without cause. In the event that a
holder of Stock Awards under the Plan is permitted or otherwise entitled to
take a leave of absence, the Company shall have the unilateral right to (i)
determine whether such leave of absence will be treated as a termination of
employment or relationship as consultant or director for purposes hereof, and
(ii) suspend or otherwise delay the time or times at which exercisability or
vesting would otherwise occur with respect to any outstanding Stock Awards, or
related repurchase rights thereunder, under the Plan.
(d) To the extent that the aggregate fair market value
(determined at the time of grant) of stock with respect to which incentive
stock options (as defined in the Code) are exercisable for the first time by
any optionee during any calendar year under all plans of the Company and its
Affiliates exceeds one hundred thousand dollars ($100,000), the options or
portions thereof which exceed such limit (according to the order in which they
were granted) shall be treated as Nonqualified Stock Options.
11. ADJUSTMENTS UPON CHANGES IN COMMON STOCK.
If any change is made in the Common Stock subject to the Plan,
or subject to any Stock Award granted under the Plan (through merger,
consolidation, reorganization, recapitalization, stock dividend, dividend in
property other than cash, stock split, liquidating dividend, combination of
shares, exchange of shares, change in corporate structure or
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otherwise), the Plan and outstanding Stock Awards will be appropriately
adjusted in the class(es) and maximum number of shares subject to the Plan and
the class(es) and number of shares and price per share of stock subject to
outstanding Stock Awards.
12. CHANGE OF CONTROL.
(a) Notwithstanding anything to the contrary in this
Plan, in the event of a Change of Control (as hereinafter defined), then, at
the sole discretion of the Board and to the extent permitted by applicable law:
(i) any surviving corporation shall assume the rights and obligations of the
Company under any Stock Awards outstanding under the Plan or shall substitute
similar Stock Awards for those outstanding under the Plan; (ii) the time during
which such Stock Awards become vested or may be exercised shall be accelerated
and any outstanding unexercised rights under any Stock Awards terminated if not
exercised prior to such event; or (iii) such Stock Awards shall continue in
full force and effect.
(b) For purposes of the Plan, a "Change of Control" shall
be deemed to have occurred at any of the following times:
(i) Upon the acquisition (other than from the
Company) by any person, entity or "group," within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act (excluding, for this purpose, the
Company or its affiliates, or any employee benefit plan of the Company or its
affiliates which acquires beneficial ownership of voting securities of the
Company), of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of fifty percent (50%) or more of either the then
outstanding shares of common stock or the combined voting power of the
Company's then outstanding voting securities entitled to vote generally in the
election of directors; or
(ii) At the time individuals who, as of May 14,
1991, constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board, provided that any person becoming
a director subsequent to May 14, 1991, whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of office is
in connection with an actual or threatened election contest relating to the
election of the Directors of the Company, as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) shall be, for purposes of
the Plan, considered as though such person were a member of the Incumbent
Board; or
(iii) Immediately prior to the consummation by the
Company of a reorganization, merger, consolidation, (in each case, with respect
to which persons who were the stockholders of the Company immediately prior to
such reorganization, merger or consolidation do not, immediately thereafter,
own more than fifty percent (50%) of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities) or a liquidation or
dissolution of the Company or of the sale of all or substantially all of the
assets of the Company; or
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(iv) The occurrence of any other event which the
Incumbent Board in its sole discretion determines constitutes a Change of
Control.
13. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may
amend the Plan. However, except as provided in paragraph 11 relating to
adjustments upon changes in the Common Stock, no amendment shall be effective
unless approved by the stockholders of the Company to the extent stockholder
approval is necessary for the Plan to satisfy the requirements of Section 422
of the Code, Rule 16b-3 under the Exchange Act or any Nasdaq or securities
exchange listing requirements.
(b) The Board may in its sole discretion submit any other
amendment to the Plan for stockholder approval, including, but not limited to,
amendments to the Plan intended to satisfy the requirements of Section 162(m)
of the Code and the regulations promulgated thereunder regarding the exclusion
of performance-based compensation from the limit on corporate deductibility of
compensation paid to certain executive officers.
(c) It is expressly contemplated that the Board may amend
the Plan in any respect the Board deems necessary or advisable to provide
optionees with the maximum benefits provided or to be provided under the
provisions of the Code and the regulations promulgated thereunder relating to
employee Incentive Stock Options and/or to bring the Plan and/or Options
granted under it into compliance therewith.
(d) Rights and obligations under any Stock Award granted
before amendment of the Plan shall not be altered or impaired by any amendment
of the Plan, unless: (i) the Company requests the consent of the person to
whom the Stock Award was granted; and (ii) such person consents in writing.
14. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any
time. Unless sooner terminated, the Plan shall terminate on May 13, 2001. No
Stock Awards may be granted under the Plan while the Plan is suspended or after
it is terminated.
(b) Rights and obligations under any Stock Awards granted
while the Plan is in effect shall not be altered or impaired by suspension or
termination of the Plan, except with the consent of the person to whom the
Stock Award was granted.
15. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board,
but no Stock Awards granted under the Plan shall be exercised unless and until
the Plan has been approved by the stockholders of the Company and, if required,
an appropriate permit has been issued by the Commissioner of Corporations of
the State of California.
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