EXHIBIT 10.1
AMKOR TECHNOLOGY, INC.
2003 NONSTATUTORY INDUCEMENT GRANT STOCK PLAN
1. Purposes of the Plan. The purposes of this Stock Plan are:
- to attract and retain the best available personnel
for positions of substantial responsibility,
- to provide additional incentive to Employees,
Directors and Consultants, and
- to promote the success of the Company's business.
Nonstatutory Stock Options and Stock Purchase Rights may be
granted under the Plan, as determined by the Administrator.
No employee is automatically entitled to participate in, or be
considered for participation in, the Plan at all or at a particular level.
Participation is one grant under the Plan and does not imply any right to
participate, or to be considered to participate in any later grant under the
Plan. Participation in the Plan does not create any right to, or expectation of,
continued employment.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" means the Board or any of its
Committees as shall be administering the Plan, in accordance with Section 4 of
the Plan.
(b) "Applicable Laws" means the requirements relating to
the administration of stock option plans under U. S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options or Stock Purchase Rights are,
or will be, granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means a committee of Directors appointed
by the Board in accordance with Section 4 of the Plan.
(f) "Common Stock" means the common stock of the Company.
(g) "Company" means Amkor Technology, Inc., a Delaware
corporation.
(h) "Consultant" means any person, including an advisor,
engaged by the Company or a Parent or Subsidiary to render services to such
entity.
(i) "Director" means a member of the Board.
(j) "Disability" means total and permanent disability as
defined in Section 22(e)(3) of the Code.
(k) "Employee" means any person employed by the Company
or any Parent or Subsidiary of the Company. An Employee shall not cease to be an
Employee in the case of (i) any leave of absence approved by the Company or (ii)
transfers between locations of the Company or between the Company, its Parent,
any Subsidiary, or any successor. Neither service as a Director nor payment of a
director's fee by the Company shall be sufficient to constitute "employment" by
the Company.
(l) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(m) "Fair Market Value" means, as of any date, the value
of Common Stock determined as follows:
(i) If the Common Stock is listed on any
established stock exchange or a national market system, including without
limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The
Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as quoted on such
exchange or system on the date of determination (unless the date of
determination is not a market trading day, in which case the Fair Market Value
shall be the closing sales price on the last market trading day prior to such
date of determination), as reported in The Wall Street Journal or such other
source as the Administrator deems reliable;
(ii) If the Common Stock is regularly quoted by a
recognized securities dealer but selling prices are not reported, the Fair
Market Value of a Share of Common Stock shall be the mean between the high bid
and low asked prices for the Common Stock on the last market trading day prior
to the day of determination, as reported in The Wall Street Journal or such
other source as the Administrator deems reliable; or
(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.
(n) "Notice of Grant" means a written or electronic
notice evidencing certain terms and conditions of an individual Option or Stock
Purchase Right grant. The Notice of Grant is part of the Option Agreement or
Restricted Stock Purchase Agreement.
(o) "Option" means a nonstatutory stock option granted
pursuant to the Plan that is not intended to qualify, or which by its terms does
not so qualify, as an incentive stock option within the meaning of Section 422
of the Code and the regulations promulgated thereunder.
(p) "Agreement" means a written or electronic agreement
between the Company and an Optionee evidencing the terms and conditions of an
individual Option grant. The Option Agreement is subject to the terms and
conditions of the Plan.
(q) "Option Exchange Program" means a program whereby
outstanding Options are surrendered or cancelled in exchange for Options of the
same type (which may have a lower exercise price or purchase price), of a
different type and/or cash.
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(r) "Optioned Stock" means the Common Stock subject to an
Option or Stock Purchase Right.
(s) "Optionee" means the holder of an outstanding Option
or Stock Purchase Right granted under the Plan.
(t) "Parent" means a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(u) "Plan" means this 2003 Nonstatutory Stock Plan.
(v) "Restricted Stock" means Shares issued pursuant to a
Stock Purchase Right or Shares of restricted stock issued pursuant to an Option.
(w) "Restricted Stock Purchase Agreement" means a written
or electronic agreement between the Company and the Optionee evidencing the
terms and restrictions applying to stock purchased under a Stock Purchase Right.
The Restricted Stock Purchase Agreement is subject to the terms and conditions
of the Plan and the Notice of Grant.
(x) "Retirement" means an Optionee's ceasing to be a
Service Provider on or after the date when the sum of (i) the Optionee's age
(rounded down to the nearest whole month), plus (ii) the number of years
(rounded down to the nearest whole month) that the Optionee has provided
services to the Company equals or is greater than seventy-five (75).
(y) "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.
(z) "Section 16(b)" means Section 16(b) of the Exchange
Act.
(aa) "Service Provider" means an Employee, Consultant or
Director.
(bb) "Share" means a share of the Common Stock, as
adjusted in accordance with Section 13 of the Plan.
(cc) "Stock Purchase Right" means the right to purchase
Common Stock pursuant to Section 11 of the Plan, as evidenced by a Notice of
Grant and Restricted Stock Purchase Agreement.
(dd) "Subsidiary" means a "subsidiary corporation",
whether now or hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of
Section 13 of the Plan, the maximum aggregate number of Shares that may be
optioned and sold under the Plan is 300,000 Shares, plus an annual increase to
be added as of January 1st of each year during the term of the Plan equal to the
lesser of (i) the number of Shares needed to restore the maximum aggregate
number of Shares which may be optioned and sold under the Plan to 300,000 or
(ii) a lesser amount determined by the Administrator. The Shares may be
authorized, but unissued, or reacquired Common Stock.
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If an Option or Stock Purchase Right expires or becomes
unexercisable without having been exercised in full, or is surrendered pursuant
to an Option Exchange Program, the unpurchased Shares which were subject thereto
shall become available for future grant or sale under the Plan (unless the Plan
has terminated); provided, however, that Shares that have actually been issued
under the Plan, whether upon exercise of an Option or Stock Purchase Right,
shall not be returned to the Plan and shall not become available for future
distribution under the Plan, except that if unvested Shares of Restricted Stock
are repurchased by the Company, such Shares shall become available for future
grant under the Plan.
4. Administration of the Plan.
(a) Procedure.
(i) Multiple Administrative Bodies. The Plan may
be administered by different Committees with respect to different groups of
Service Providers.
(ii) Rule 16b-3. To the extent desirable to
qualify transactions hereunder as exempt under Rule 16b-3, the transactions
contemplated hereunder shall be structured to satisfy the requirements for
exemption under Rule 16b-3.
(iii) Other Administration. Other than as provided
above, the Plan shall be administered by (A) the Board or (B) a Committee, which
committee shall be constituted to satisfy Applicable Laws.
(b) Powers of the Administrator. Subject to the
provisions of the Plan, and in the case of a Committee, subject to the specific
duties delegated by the Board to such Committee, the Administrator shall have
the authority, in its discretion:
(i) to determine the Fair Market Value;
(ii) to select the Employees to whom Options and
Stock Purchase Rights may be granted hereunder;
(iii) to determine the number of shares of Common
Stock to be covered by each Option and Stock Purchase Right granted hereunder;
(iv) to approve forms of agreement for use under
the Plan;
(v) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any Option or Stock Purchase Right
granted hereunder. Such terms and conditions include, but are not limited to,
the exercise price, the time or times when Options or Stock Purchase Rights may
be exercised (which may be based on performance criteria), any vesting
acceleration or waiver of forfeiture restrictions, and any restriction or
limitation regarding any Option or Stock Purchase Right or the Shares relating
thereto, based in each case on such factors as the Administrator, in its sole
discretion, shall determine;
(vi) to reduce the exercise price of any Option
or Stock Purchase Right to the then current Fair Market Value if the Fair Market
Value of the Common Stock covered by such
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Option or Stock Purchase Right shall have declined since the date the Option or
Stock Purchase Right was granted;
(vii) to institute an Option Exchange Program;
(viii) to construe and interpret the terms of the
Plan and awards granted pursuant to the Plan;
(ix) to prescribe, amend and rescind rules and
regulations relating to the Plan, including rules and regulations relating to
sub-plans established for the purpose of satisfying applicable foreign laws;
(x) to modify or amend each Option or Stock
Purchase Right (subject to Section 15(c) of the Plan), including the
discretionary authority to extend the post-termination exercisability period of
Options longer than is otherwise provided for in the Plan;
(xi) to allow Optionees to satisfy withholding
tax obligations by electing to have the Company withhold from the Shares to be
issued upon exercise of an Option or Stock Purchase Right that number of Shares
having a Fair Market Value equal to the minimum amount required to be withheld.
The Fair Market Value of the Shares to be withheld shall be determined on the
date that the amount of tax to be withheld is to be determined. All elections by
an Optionee to have Shares withheld for this purpose shall be made in such form
and under such conditions as the Administrator may deem necessary or advisable;
(xii) to authorize any person to execute on behalf
of the Company any instrument required to effect the grant of an Option or Stock
Purchase Right previously granted by the Administrator; and
(xiii) to make all other determinations deemed
necessary or advisable for administering the Plan.
(c) Effect of Administrator's Decision. The
Administrator's decisions, determinations and interpretations shall be final and
binding on all Optionees and any other holders of Options or Stock Purchase
Rights.
5. Eligibility. Options and Stock Purchase Rights may be granted
to Employees.
6. At-Will Employment. Neither the Plan nor any Option or Stock
Purchase Right shall confer upon an Optionee any right with respect to
continuing the Optionee's relationship as a Service Provider, nor shall they
interfere in any way with the Optionee's right or the Company's right to
terminate such relationship at any time, with or without cause.
7. Term of Plan. The Plan shall become effective upon its
adoption by the Board. It shall continue in effect until terminated under
Section 15 of the Plan.
8. Term of Option. The term of each Option shall be stated in the
Option Agreement.
9. Option Exercise Price and Consideration.
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(a) 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.
(b) Waiting Period and Exercise Dates. At the time an
Option is granted, the Administrator shall fix the period within which the
Option may be exercised and shall determine any conditions that must be
satisfied before the Option may be exercised.
(c) Form of Consideration. The Administrator shall
determine the acceptable form of consideration for exercising an Option,
including the method of payment. Such consideration may consist of (without
limitation):
(i) cash;
(ii) check;
(iii) promissory note;
(iv) other Shares provided Shares acquired from
the Company (directly or indirectly) (A) have been vested and owned by the
Optionee for more than six months on the date of surrender, and (B) have a Fair
Market Value on the date of surrender equal to the aggregate exercise price of
the Shares as to which said Option shall be exercised;
(v) consideration received by the Company under
a cashless exercise program implemented by the Company in connection with the
Plan;
(vi) a reduction in the amount of any Company
liability to the Optionee, including any liability attributable to the
Optionee's participation in any Company-sponsored deferred compensation program
or arrangement;
(vii) any combination of the foregoing methods of
payment; or
(viii) such other consideration and method of
payment for the issuance of Shares to the extent permitted by Applicable Laws.
10. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable according to the terms of the Plan
and at such times and under such conditions as determined by the Administrator
and set forth in the Option Agreement. Unless the Administrator provides
otherwise, vesting of Options granted hereunder shall be tolled during any
unpaid leave of absence. An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed exercised when the Company
receives: (i) written or electronic notice of exercise (in accordance with the
Option Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised, together
with any applicable withholding taxes. Full payment may consist of any
consideration and method of payment authorized by the Administrator and
permitted by the Option Agreement and the Plan. Shares issued upon exercise of
an Option shall be issued in the name of the
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Optionee or, if requested by the Optionee, in the name of the Optionee and his
or her spouse. Until the Shares are issued (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. The Company shall issue (or cause to be issued) such
Shares promptly after the Option is exercised. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the
Shares are issued, except as provided in Section 13 of the Plan.
Exercising an Option in any manner shall decrease the
number of Shares thereafter available, both for purposes of the Plan and for
sale under the Option, by the number of Shares as to which the Option is
exercised.
(b) Termination of Relationship as a Service Provider. If
an Optionee ceases to be a Service Provider, other than upon the Optionee's
death or Disability, the Optionee may exercise his or her Option within such
period of time as is specified in the Option Agreement to the extent that the
Option is vested on the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Option Agreement). In
the absence of a specified time in the Option Agreement, the Option shall remain
exercisable for three (3) months following the Optionee's termination. If, on
the date of termination, the Optionee is not vested as to his or her entire
Option, the Shares covered by the unvested portion of the Option shall revert to
the Plan. If, after termination, the Optionee does not exercise his or her
Option within the time specified by the Administrator, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(c) Disability of Optionee. If an Optionee ceases to be a
Service Provider as a result of the Optionee's Disability, the Optionee may
exercise his or her Option within such period of time as is specified in the
Option Agreement to the extent the Option is vested on the date of termination
(but in no event later than the expiration of the term of such Option as set
forth in the Option Agreement). In the absence of a specified time in the Option
Agreement, the Option shall remain exercisable for twelve (12) months following
the Optionee's termination. If, on the date of termination, the Optionee is not
vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option shall revert to the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time specified herein,
the Option shall terminate, and the Shares covered by such Option shall revert
to the Plan.
(d) Death of Optionee. If an Optionee dies while a
Service Provider, the Option may be exercised within such period of time as is
specified in the Option Agreement (but in no event later than the expiration of
the term of such Option as set forth in the Notice of Grant), by the Optionee's
estate or by a person who acquires the right to exercise the Option by bequest
or inheritance, but only to the extent that the Option is vested on the date of
death. In the absence of a specified time in the Option Agreement, the Option
shall remain exercisable for twelve (12) months following the Optionee's
termination. If, at the time of death, the Optionee is not vested as to his or
her entire Option, the Shares covered by the unvested portion of the Option
shall immediately revert to the Plan. The Option may be exercised by the
executor or administrator of the Optionee's estate or, if none, by the person(s)
entitled to exercise the Option under the Optionee's will or the laws of descent
or distribution. If the Option is not so exercised within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
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(e) Retirement of Optionee. If an Optionee ceases to be a
Service Provider as a result of the Optionee's Retirement, the Options will
continue to vest for an additional twelve (12) months following the Optionee's
termination. The Optionee will have thirty (30) days following the initial
twelve (12) month period to exercise his or her Options. If, after termination,
the Optionee does not exercise his or her Option within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(f) Buyout Provisions. The Administrator may at any time
offer to buy out for a payment in cash or Shares an Option previously granted
based on such terms and conditions as the Administrator shall establish and
communicate to the Optionee at the time that such offer is made.
11. Stock Purchase Rights.
(a) Rights to Purchase. Stock Purchase Rights may be
issued either alone, in addition to, or in tandem with other awards granted
under the Plan and/or cash awards made outside of the Plan. After the
Administrator determines that it will offer Stock Purchase Rights under the
Plan, it shall advise the offeree in writing or electronically, by means of a
Notice of Grant, of the terms, conditions and restrictions related to the offer,
including the number of Shares that the offeree shall be entitled to purchase,
the price to be paid, and the time within which the offeree must accept such
offer. The offer shall be accepted by execution of a Restricted Stock Purchase
Agreement in the form determined by the Administrator.
(b) Repurchase Option. Unless the Administrator
determines otherwise, the Restricted Stock Purchase Agreement shall grant the
Company a repurchase option exercisable upon the voluntary or involuntary
termination of the purchaser's service with the Company for any reason
(including death or Disability). Unless the Administrator provides otherwise,
the purchase price for Shares repurchased pursuant to the Restricted Stock
Purchase Agreement shall be the original price paid by the purchaser and may be
paid by cancellation of any indebtedness of the purchaser to the Company. The
repurchase option shall lapse at a rate determined by the Administrator.
(c) Other Provisions. The Restricted Stock Purchase
Agreement shall contain such other terms, provisions and conditions not
inconsistent with the Plan as may be determined by the Administrator in its sole
discretion.
(d) Rights as a Shareholder. Once the Stock Purchase
Right is exercised, the purchaser shall have the rights equivalent to those of a
shareholder, and shall be a shareholder when his or her purchase is entered upon
the records of the duly authorized transfer agent of the Company. No adjustment
will be made for a dividend or other right for which the record date is prior to
the date the Stock Purchase Right is exercised, except as provided in Section 13
of the Plan.
12. Non-Transferability of Options and Stock Purchase Rights.
Unless determined otherwise by the Administrator, an Option or Stock Purchase
Right may not be sold, pledged, assigned, hypothecated, transferred, or disposed
of in any manner other than by will or by the laws of descent or distribution
and may be exercised, during the lifetime of the Optionee, only by the Optionee.
If the Administrator makes an Option or Stock Purchase Right transferable, such
Option or Stock Purchase Right shall contain such additional terms and
conditions as the Administrator deems appropriate.
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13. Adjustments Upon Changes in Capitalization, Dissolution,
Merger or Asset Sale.
(a) Changes in Capitalization. Subject to any required
action by the shareholders of the Company, the number of shares of Common Stock
covered by each outstanding Option and Stock Purchase Right, and the number of
shares of Common Stock which have been authorized for issuance under the Plan
but as to which no Options or Stock Purchase Rights have yet been granted or
which have been returned to the Plan upon cancellation or expiration of an
Option or Stock Purchase Right, as well as the price per share of Common Stock
covered by each such outstanding Option or Stock Purchase Right, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration." Such adjustment shall be
made by the Board, whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no issuance by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of Shares subject to an Option or Stock
Purchase Right.
(b) Dissolution or Liquidation. In the event of the
proposed dissolution or liquidation of the Company, the Administrator shall
notify each Optionee as soon as practicable prior to the effective date of such
proposed transaction. The Administrator in its discretion may provide for an
Optionee to have the right to exercise his or her Option until ten (10) days
prior to such transaction as to all of the Optioned Stock covered thereby,
including Shares as to which the Option would not otherwise be exercisable. In
addition, the Administrator may provide that any Company repurchase option
applicable to any Shares purchased upon exercise of an Option or Stock Purchase
Right shall lapse as to all such Shares, provided the proposed dissolution or
liquidation takes place at the time and in the manner contemplated. To the
extent it has not been previously exercised, an Option or Stock Purchase Right
will terminate immediately prior to the consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the
Company with or into another corporation, or the sale of substantially all of
the assets of the Company, each outstanding Option and Stock Purchase Right
shall be assumed or an equivalent option or right substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation. In the event
that the successor corporation refuses to assume or substitute for the Option or
Stock Purchase Right, the Optionee shall fully vest in and have the right to
exercise the Option or Stock Purchase Right as to all of the Optioned Stock,
including Shares as to which it would not otherwise be vested or exercisable. If
an Option or Stock Purchase Right becomes fully vested and exercisable in lieu
of assumption or substitution in the event of a merger or sale of assets, the
Administrator shall notify the Optionee in writing or electronically that the
Option or Stock Purchase Right shall be fully vested and exercisable for a
period of ninety (90) days from the date of such notice, and the Option or Stock
Purchase Right shall terminate upon the expiration of such period. For the
purposes of this paragraph, the Option or Stock Purchase Right shall be
considered assumed if, following the merger or sale of assets, the option or
right confers the right to purchase or receive, for each Share of
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Optioned Stock subject to the Option or Stock Purchase Right immediately prior
to the merger or sale of assets, the consideration (whether stock, cash, or
other securities or property) received in the merger or sale of assets by
holders of Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the merger or sale of
assets is not solely common stock of the successor corporation or its Parent,
the Administrator may, with the consent of the successor corporation, provide
for the consideration to be received upon the exercise of the Option or Stock
Purchase Right, for each Share of Optioned Stock subject to the Option or Stock
Purchase Right, to be solely common stock of the successor corporation or its
Parent equal in fair market value to the per share consideration received by
holders of Common Stock in the merger or sale of assets.
14. Date of Grant. The date of grant of an Option or Stock
Purchase Right shall be, for all purposes, the date on which the Administrator
makes the determination granting such Option or Stock Purchase Right, or such
other later date as is determined by the Administrator. Notice of the
determination shall be provided to each Optionee within a reasonable time after
the date of such grant.
15. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time
amend, alter, suspend or terminate the Plan.
(b) Effect of Amendment or Termination. No amendment,
alteration, suspension or termination of the Plan shall impair the rights of any
Optionee, unless mutually agreed otherwise between the Optionee and the
Administrator, which agreement must be in writing and signed by the Optionee and
the Company. Termination of the Plan shall not affect the Administrator's
ability to exercise the powers granted to it hereunder with respect to Options
granted under the Plan prior to the date of such termination.
16. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares shall not be issued pursuant
to the exercise of an Option or Stock Purchase Right unless the exercise of such
Option or Stock Purchase Right and the issuance and delivery of such Shares
shall comply with Applicable Laws and shall be further subject to the approval
of counsel for the Company with respect to such compliance.
(b) Investment Representations. As a condition to the
exercise of an Option or Stock Purchase Right, the Company may require the
person exercising such Option or Stock Purchase Right to represent and warrant
at the time of any such exercise that the Shares are being purchased only for
investment and without any present intention to sell or distribute such Shares
if, in the opinion of counsel for the Company, such a representation is
required.
17. Inability to Obtain Authority. The inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
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18. Reservation of Shares. The Company, during the term of this
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.
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APPENDIX A
TERMS AND CONDITIONS FOR FRENCH OPTION GRANTS
The Board of Directors of Amkor Technology, Inc. (the "Company") has
established the Amkor Technology, Inc. 2003 Nonstatutory Inducement Grant Stock
Plan (the "Inducement Option Plan") to provide an incentive to eligible
employees of the Company, its parent and subsidiary companies, including its
French subsidiary, Amkor Technology Euroservices, S.A.R.L. (the "Subsidiary").
The Administration has determined that it is necessary and desirable to
establish the terms and conditions for the French Option Grants to qualify for
the favorable tax and social security treatment in France provided under
articles 217, 80 bis I and II, and 163 bis C of the French tax code for options
granted under Law n degrees 70-1322 dated December 31, 1970, now codified at
articles L 225-177 to L 225-186 notably of the French Commercial Code, to
qualifying employees who are resident in France for French tax purposes (the
"French Optionees"). The terms and conditions for French Option Grants are set
forth in this Appendix A.
Under the terms and conditions for French Option Grants, qualifying
employees will be granted only Nonstatutory Stock Options. The provisions of the
Inducement Option Plan concerning U.S. Incentive Stock Options are not
applicable to grants made hereunder.
The following terms and conditions will apply in the case of Option
grants to French residents.
1. Definitions. As used herein, the following definitions will
apply:
(a) "Applicable Laws" means the legal requirements
relating to the administration of stock option plans under French corporate,
securities, labor and tax laws.
(b) "Disability" means total and permanent disability in
accordance with Section L341-4 second and third paragraphs of the French Code de
la Securite Sociale, as certified in writing by a physician from the French
Ministry of Labor ("medecin du travail").
(c) "Employee" means (i) any person employed by the
Company or a Subsidiary in a salaried position within the meaning Applicable
Laws, who does not own more than 10% of the voting power of all classes of stock
of the Company, or any Parent or Subsidiary, and who is a resident of the
Republic of France or (ii) any person employed by the Company or a Subsidiary
who is a resident of the Republic of France for tax purposes or who performs his
or her duties in France and is subject to French income social security
contributions on his or her remuneration.
(d) "Fair Market Value" means, as of any date, the dollar
value of Common Stock determined as follows:
(i) If the Common Stock is listed on any
established stock exchange or a national market system, including without
limitation the Nasdaq National Market of the Nasdaq Stock Market, its Fair
Market Value will be the average quotation price for the last 20 trading days
preceding the date of determination for such stock (or the average closing bid
for such 20 day period, if no sales were reported) as quoted on such exchange or
system and reported in The Wall Street Journal or such other source as the
Administrator deems reliable;
(ii) If the Common Stock is quoted on the Nasdaq
Stock market (but not on the Nasdaq National Market thereof) or regularly quoted
by a recognized securities dealer but selling prices are not reported, its Fair
Market Value will be the mean between the high bid and low asked prices for the
Common Stock for the last 20 days preceding the date of determination; or
(iii) In the absence of an established market for
the Common Stock, the Fair Market Value thereof will be determined in good faith
by the Administrator.
(e) "Purchase Option" means the right to acquire Shares
that are repurchased by the Company prior to the grant of an Option.
(f) "Subscription Option" means the right to subscribe to
newly issued Shares.
(g) "Subsidiary" means any participating subsidiary of
the Company located in the Republic of France and that falls within the
definition of "subsidiary" within the meaning of Section L. 225-180 paragraph 1
of the French commercial code.
(h) "Termination" means if the Optionee is an Employee,
the last day of any statutory or contractual notice period whether worked or not
(provided, only the employer, and not the Optionee, may decide whether the
Optionee works during the notice period) and irrespective of whether the
termination of the employment agreement is due to resignation or dismissal of
the Employee for any reason whatsoever; if the Optionee is a corporate officer
as defined in Section 2 of this Appendix A, Termination means the date on which
he or she effectively leaves his or her position as a corporate officer for any
reason whatsoever.
2. Eligibility. Options granted pursuant to this Appendix A may
be granted only to Employees, the President du conseil d'administration, the
membres du directoire, the Directeur general, the directeurs generaux delegues,
the Gerant of a company with capital divided by shares; provided, however, that
the administrateurs and the membres du conseil de surveillance who are also
Employees of the Subsidiary in accordance with a valid employment agreement
pursuant to Applicable Laws may be granted Options hereunder. For the purpose of
this Appendix A, when applicable, the rules set forth for an Employee shall be
applicable to the aforementioned corporate officers.
3. Stock Subject to the Plan. The total number of Options
outstanding which may be exercised for newly issued Shares may at no time exceed
that number equal to one-third of the Company's voting stock, whether preferred
stock of the Company or Common Stock. If any Optioned Stock is to consist of
reacquired Shares, such Optioned Stock must be purchased by the Company, in the
limit of 10% of its share capital, prior to the date of the grant of the
corresponding
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new Option and must be reserved and set aside for such purposes. In addition,
the new Option must be granted within one (1) year of the acquisition of the
Shares underlying such new Option.
4. Limitations Upon Granting of Options.
(a) Declaration of Dividend; Capital Increase. To the
extent applicable to the Company, Options cannot be granted during the 20
trading days from (i) the date the Common Stock is trading on an ex-dividend
basis or (ii) a capital increase.
(b) Non-Public Information. To the extent applicable to
the Company, the Company shall not grant Options during the closed periods
required under Section L 225-177 of the French Commercial Code. As a result,
notwithstanding any other provision of the Plan, Options cannot be granted:
(i) during the ten (10) trading days preceding
and following the date on which the consolidated accounts, or, if unavailable,
the annual accounts, are made public;
(ii) during the period between the date on which
the Company's governing bodies (i.e., the Administrator and the Company's
corporate officers and directors) become aware of information which, if made
public, could have a material impact on the price of the Shares, and the date
ten (10) trading days after such information is made public.
(c) Right to Employment. Neither the Plan nor any Option
shall confer upon any Optionee any right with respect to continuing the
Optionee's employment relationship with the Company or any Subsidiary.
5. Option Price. The exercise price for the Shares to be issued
pursuant to exercise of an Option will be determined by the Administrator upon
the date of grant of the Option and stated in the Option Agreement, but in no
event will be lower than eighty percent (80%) of the Fair Market Value on the
date the Option is granted or of the average purchase price of these Shares by
the Company. The Option Price cannot be modified while the Option is
outstanding, except as required by Applicable Laws.
6. Term of Option. The term of each Option shall be as stated in
the Option Agreement; provided, however, that the maximum term of an Option
shall not exceed ten (10) years from the date of grant of the Option.
7. Exercise of Option; Restriction on Sale.
(a) Options granted hereunder may not be exercised prior
to the first anniversary date (the "Initial Exercise Date") of the date on which
the Option is granted whether or not the Option has vested prior to such time;
provided, however, that the Initial Exercise Date will be automatically adjusted
to conform with any changes under Applicable Laws so that the length of time
from the date of grant to the Initial Exercise Date when added to the length of
time in which Shares may not be disposed of after the Initial Exercise Date as
provided in Section 7(b) below, will allow for favorable tax and social security
treatment under Applicable Laws. Thereafter, Options
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may be exercised to the extent they have vested. Options granted hereunder will
vest as determined by the Administrator.
An Option will be deemed exercised when the Company
receives: (i) written or electronic notice of exercise (in accordance with the
Option Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised together
with any applicable withholding taxes and social security contributions. Full
payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan. Until the
Shares are issued (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company), no right to vote
or receive dividends or any other rights as a stockholder will exist with
respect to the Shares, notwithstanding the exercise of the Option. The Company
will issue (or cause to be issued) such Shares promptly after the Option is
exercised. No adjustment will be made for a dividend or other right for which
the record date is prior to the date the Shares are issued, except as provided
in Section 13 of the Plan.
(b) The Shares subject to an Option may not be
transferred, assigned or hypothecated in any manner otherwise than by will or by
the laws of descent or distribution before the date three (3) years from the
Initial Exercise Date, except for any events provided for in Article 91 ter of
Annex II to the French tax code; provided, however, that the duration of this
restriction on sale will be automatically adjusted to conform with any changes
to the holding period required for favorable tax and social security treatment
under Applicable Laws to the extent permitted under Applicable Laws.
(c) Termination of Employment Relationship. Upon
Termination of an Optionee's status as an Employee (other than upon the
Optionee's death or Disability), the Optionee may exercise his or her Option,
but only within thirty (30) days from the date of such Termination, and only to
the extent that the Optionee was entitled to exercise it at the date of
Termination (but in no event later than the expiration of the term of such
Option as set forth in the Option Agreement). If, at the date of Termination,
the Optionee is not entitled to exercise his or her entire Option, the Shares
covered by the unexercisable portion of the Option shall revert to the Plan. If,
after Termination, the Optionee does not exercise his or her Option within the
time specified by the Administrator, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.
(d) Disability of Optionee. Upon Termination of an
Optionee's status as an Employee terminates as a result of the Optionee's
Disability, the Optionee may exercise his or her Option at any time within
twelve (12) months from the date of such Termination, but only to the extent
that the Optionee was entitled to exercise it at the date of such Termination
(but in no event later than the expiration of the term of such Option as set
forth in the Option Agreement). If, at the date of Termination, the Optionee is
not entitled to exercise his or her entire Option, the Shares covered by the
unexercisable portion of the Option shall revert to the Plan. If, after
Termination, the Optionee does not exercise his or her Option within the time
specified herein, the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan.
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(e) Death of Optionee. Notwithstanding any provision of
the Plan or Option Agreement to the contrary and Section 7 hereof, the Option
shall be fully and immediately exercisable upon the death of an Optionee while
an Employee. Furthermore, notwithstanding any provision of the Plan or the
Option Agreement to the contrary, including the term of the Option, the Option
may be exercised at any time within twelve (12) months following the date of
death by the Optionee's estate or by a person who acquired the right to exercise
the Option by bequest or inheritance. If, after death, the Optionee's estate or
a person who acquired the right to exercise the Option by bequest or inheritance
does not exercise the Option within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall immediately revert to the
Plan.
(f) Retirement of Optionee. If an Optionee ceases to be
an Employee as the result of the Optionee's Retirement, the Option may be
exercised for twelve (12) months following the Optionee's Termination. If, at
the time of Retirement, the Optionee is not vested as to his or her entire
Option, the Shares covered by the unvested portion of the Option shall
immediately revert to the Plan. If, after Termination, the Optionee does not
exercise his or her Option within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan. If an
Optionee ceases to be an Employee as a result of the Optionee's Retirement, the
Options will continue to vest for an additional twelve (12) months following the
Optionee's Termination. The Optionee will have thirty (30) days following the
twelve (12) month period after his or her Termination to exercise his or her
Options (but in no event later than the expiration of the term of such Option as
set forth in the Option Agreement).
8. Non-Transferability of Options. An Option may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any manner other
than by will or by the laws of descent or distribution and may be exercised,
during the lifetime of the Optionee, only by the Optionee.
9. Changes in Capitalization. Notwithstanding any provisions of
the Plan and the Option Agreement to the contrary, adjustments to the exercise
price and/or the number of shares subject to an Option issued hereunder shall be
made to preclude the dilution or enlargement of benefits under the Option in the
event the Company executes one or more of the transactions listed below. With
the exception of the transactions listed below, adjustments to the exercise
price and/or the number of shares subject to the Option issued hereunder shall
not be made under any circumstance. Furthermore, even upon occurrence of one or
more of the transactions listed below, no adjustment to the kind of shares to be
granted shall be made. The transactions are as follows:
(a) an issuance of new shares for cash consideration
reserved to the Company's existing shareholders;
(b) an issuance of convertible or exchangeable bonds
reserved to the Company's existing shareholders;
(c) a capitalization of retained earnings, profits, or
issuance premiums;
(d) a distribution of reserves by payment in cash or
shares;
(e) a cancellation of shares in order to absorb losses;
and
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(f) a purchase, by the Company when listed, of its own
shares at a price higher than their then current quotation price.
An increase or decrease in the number of issued Shares
effected without receipt of consideration by the Company is not within the scope
of the prohibition of the first paragraph of this Section 9.
10. Information Statements to Optionees. The Company or its French
Parent or Subsidiary, as required under Applicable Laws, will provide to each
Optionee, with copies to the appropriate governmental entities, such statements
of information as required by the Applicable Laws.
11. Effect of Amendment or Termination. No amendment, alteration,
suspension or termination of the Plan will impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the Company.
Any favorable amendments or alterations are automatically deemed to be approved
by Optionee. Termination of the Plan will not affect the Administrator's ability
to exercise the powers granted to it hereunder with respect to Options granted
under the Plan prior to the date of such termination.
12. Reporting to the Shareholders' Meeting. The Subsidiary of the
Company, if required under Applicable Laws, will provide its shareholders with
an annual report with respect to Options granted and/or exercised by its
Employees in the financial year.
13. Interpretation. It is intended that Options granted under the
Terms and Conditions for French Option Grants shall qualify for the favorable
income tax and social security treatment applicable to stock options granted
under the French Commercial code as subsequently amended, and in accordance with
the relevant provisions set forth by French tax law and the French tax
administration. The terms of the French Plan shall be interpreted in accordance
with the relevant provisions set forth by French tax and social security laws,
as well as the French tax and social security administrations.
In the event of any conflict between the terms and conditions
for French Option Grants and the Option Plan, the terms and conditions for
French Option Grants shall control for any grants made thereunder.
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