Exhibit 10.2
EYETECH PHARMACEUTICALS, INC.
2003 STOCK INCENTIVE PLAN
1. Purpose
The purpose of this 2003 Stock Incentive Plan (the "Plan") of Eyetech
Pharmaceuticals, Inc., a Delaware corporation (the "Company"), is to advance the
interests of the Company's stockholders by enhancing the Company's ability to
attract, retain and motivate persons who make (or are expected to make)
important contributions to the Company by providing such persons with equity
ownership opportunities and performance-based incentives and thereby better
aligning the interests of such persons with those of the Company's stockholders.
Except where the context otherwise requires, the term "Company" shall include
any of the Company's present or future parent or subsidiary corporations as
defined in Sections 424(e) or (f) of the Internal Revenue Code of 1986, as
amended, and any regulations promulgated thereunder (the "Code") and any other
business venture (including, without limitation, joint venture or limited
liability company) in which the Company has a controlling interest, as
determined by the Board of Directors of the Company (the "Board").
2. Eligibility
All of the Company's employees, officers, directors, consultants and
advisors are eligible to be granted options, restricted stock awards, or other
stock-based awards (each, an "Award") under the Plan. Each person who has been
granted an Award under the Plan shall be deemed a "Participant".
3. Administration and Delegation
(a) Administration by Board of Directors. The Plan will be
administered by the Board. The Board shall have authority to grant Awards and to
adopt, amend and repeal such administrative rules, guidelines and practices
relating to the Plan as it shall deem advisable. The Board may correct any
defect, supply any omission or reconcile any inconsistency in the Plan or any
Award in the manner and to the extent it shall deem expedient to carry the Plan
into effect and it shall be the sole and final judge of such expediency. All
decisions by the Board shall be made in the Board's sole discretion and shall be
final and binding on all persons having or claiming any interest in the Plan or
in any Award. No director or person acting pursuant to the authority delegated
by the Board shall be liable for any action or determination relating to or
under the Plan made in good faith.
(b) Appointment of Committees. To the extent permitted by
applicable law, the Board may delegate any or all of its powers under the Plan
to one or more committees or subcommittees of the Board (a "Committee"). All
references in the Plan to the "Board" shall mean the Board or a Committee of the
Board or the executive officers referred to in Section 3(c) to the extent that
the Board's powers or authority under the Plan have been delegated to such
Committee or executive officers.
(c) Delegation to Executive Officers. To the extent permitted by
applicable law, the Board may delegate to one or more executive officers of the
Company the power to grant
Awards to employees or officers of the Company or any of its present or future
subsidiary corporations and to exercise such other powers under the Plan as the
Board may determine; provided, however, that the Board shall fix the terms of
the Awards to be granted by such executive officers (including the exercise
price of such Awards, which may include a formula by which the exercise price
will be determined) and the maximum number of shares subject to Awards that the
executive officers may grant; provided further, however, that no executive
officer shall be authorized to grant Awards to any "executive officer" of the
Company (as defined by Rule 3b-7 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) or to any "officer" of the Company (as defined by
Rule 16a-1 under the Exchange Act).
4. Stock Available for Awards
(a) Number of Shares. Subject to adjustment under Section 8,
Awards may be made under the Plan for up to the number of shares of the
Company's common stock, par value $0.01 per share (the "Common Stock"), that is
equal to the sum of:
(1) 4,400,000 shares of Common Stock; plus
(2) an annual increase to be added on the first day of
each of the Company's fiscal years during the period
beginning in fiscal year 2005 and ending on the
second day of fiscal year 2013 equal to the lowest of
(i) 2,500,000 shares of Common Stock, (ii) 5% of the
outstanding shares on such date and (iii) an amount
determined by the Board.
Notwithstanding clause (2) above, in no event shall the number of
shares available under this Plan be increased as set forth in clause (2) to the
extent such increase, in addition to any other increases proposed by the Board
in the number of shares available for issuance under all other employee or
director stock plans, including, without limitation, employee stock purchase
plans, would result in the total number of shares then available for issuance
under all employee and director stock plans exceeding 30% of the outstanding
shares of the Company on the first day of the applicable fiscal year.
If any Award expires or is terminated, surrendered or canceled without
having been fully exercised or is forfeited in whole or in part (including as
the result of shares of Common Stock subject to such Award being repurchased by
the Company at the original issuance price pursuant to a contractual repurchase
right) or results in any Common Stock not being issued, the unused Common Stock
covered by such Award shall again be available for the grant of Awards under the
Plan, subject, however, in the case of Incentive Stock Options, to any
limitations under the Code. Shares issued under the Plan may consist in whole or
in part of authorized but unissued shares or treasury shares.
(b) Per-Participant Limit. Subject to adjustment under Section 8,
for Awards granted after the Common Stock is registered under the Exchange Act,
the maximum number of shares of Common Stock with respect to which Awards may be
granted to any Participant under the Plan shall be 350,000 per calendar year.
The per-Participant limit described in this Section 4(b) shall be construed and
applied consistently with Section 162(m) of the Code ("Section 162(m)").
2
5. Stock Options
(a) General. The Board may grant options to purchase Common Stock
(each, an "Option") and determine the number of shares of Common Stock to be
covered by each Option, the exercise price of each Option and the conditions and
limitations applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an Incentive Stock
Option (as hereinafter defined) shall be designated a "Nonstatutory Stock
Option".
(b) Incentive Stock Options. An Option that the Board intends to
be an "incentive stock option" as defined in Section 422 of the Code (an
"Incentive Stock Option") shall only be granted to employees of the Company, any
of the Company's present or future parent or subsidiary corporations as defined
in Sections 424(e) or (f) of the Code, and any other entities the employees of
which are eligible to receive Incentive Stock Options under the Code, and shall
be subject to and shall be construed consistently with the requirements of
Section 422 of the Code. The Company shall have no liability to a Participant,
or any other party, if an Option (or any part thereof) that is intended to be an
Incentive Stock Option is not an Incentive Stock Option.
(c) Exercise Price. The Board shall establish the exercise price
at the time each Option is granted and specify it in the applicable option
agreement.
(d) Duration of Options. Each Option shall be exercisable at such
times and subject to such terms and conditions as the Board may specify in the
applicable option agreement.
(e) Exercise of Option. Options may be exercised by delivery to
the Company of a written notice of exercise signed by the proper person or by
any other form of notice (including electronic notice) approved by the Board
together with payment in full as specified in Section 5(f) for the number of
shares for which the Option is exercised.
(f) Payment Upon Exercise. Common Stock purchased upon the
exercise of an Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the
Company;
(2) except as the Board may, in its sole discretion,
otherwise provide in an option agreement, by (i)
delivery of an irrevocable and unconditional
undertaking by a creditworthy broker to deliver
promptly to the Company sufficient funds to pay the
exercise price and any required tax withholding or
(ii) delivery by the Participant to the Company of a
copy of irrevocable and unconditional instructions to
a creditworthy broker to deliver promptly to the
Company cash or a check sufficient to pay the
exercise price and any required tax withholding;
(3) when the Common Stock is registered under the
Exchange Act, by delivery of shares of Common Stock
owned by the Participant valued at their fair market
value as determined by (or in a manner approved by)
the Board in good faith ("Fair Market Value"),
provided (i) such method of
3
payment is then permitted under applicable law and
(ii) such Common Stock, if acquired directly from the
Company, was owned by the Participant at least six
months prior to such delivery;
(4) to the extent permitted by applicable law and by the
Board, in its sole discretion by (i) delivery of a
promissory note of the Participant to the Company on
terms determined by the Board, or (ii) payment of
such other lawful consideration as the Board may
determine; or
(5) by any combination of the above permitted forms of
payment.
(g) Substitute Options. In connection with a merger or
consolidation of an entity with the Company or the acquisition by the Company of
property or stock of an entity, the Board may grant Options in substitution for
any options or other stock or stock-based awards granted by such entity or an
affiliate thereof. Substitute Options may be granted on such terms as the Board
deems appropriate in the circumstances, notwithstanding any limitations on
Options contained in the other sections of this Section 5 or in Section 2.
(h) Repricing of Options. The Board shall have the authority, at
any time and from time to time, with the consent of the affected Participants,
to amend any or all outstanding Options granted under the Plan to provide an
Option exercise price per share which may be lower or higher than the original
Option exercise price, and/or to cancel any such Options and grant in
substitution therefor other Awards, including new Options, covering the same or
different numbers of shares of Common Stock having an Option exercise price per
share which may be lower or higher than the exercise price of the canceled
Options.
6. Restricted Stock
(a) Grants. The Board may grant Awards entitling recipients to
acquire shares of Common Stock, subject to the right of the Company to
repurchase all or part of such shares at their issue price or other stated or
formula price (or to require forfeiture of such shares if issued at no cost)
from the recipient in the event that conditions specified by the Board in the
applicable Award are not satisfied prior to the end of the applicable
restriction period or periods established by the Board for such Award (each, a
"Restricted Stock Award").
(b) Terms and Conditions. The Board shall determine the terms and
conditions of any such Restricted Stock Award, including the conditions for
repurchase (or forfeiture) and the issue price, if any.
(c) Stock Certificates. Any stock certificates issued in respect
of a Restricted Stock Award shall be registered in the name of the Participant
and, unless otherwise determined by the Board, deposited by the Participant,
together with a stock power endorsed in blank, with the Company (or its
designee). At the expiration of the applicable restriction periods, the Company
(or such designee) shall deliver the certificates no longer subject to such
restrictions to the Participant or if the Participant has died, to the
beneficiary designated, in a manner determined by the Board, by a Participant to
receive amounts due or exercise rights of the Participant in the event of the
Participant's death (the "Designated Beneficiary"). In the absence of an
effective designation by a Participant, Designated Beneficiary shall mean the
Participant's estate.
4
7. Other Stock-Based Awards
The Board shall have the right to grant other Awards based upon the
Common Stock having such terms and conditions as the Board may determine,
including the grant of shares based upon certain conditions, the grant of
securities convertible into Common Stock and the grant of stock appreciation
rights.
8. Adjustments for Changes in Common Stock and Certain Other Events
(a) Changes in Capitalization. In the event of any stock split,
reverse stock split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in capitalization
or event, or any distribution to holders of Common Stock other than an ordinary
cash dividend, (i) the number and class of securities available under this Plan,
(ii) the per-Participant limit set forth in Section 4(b), (iii) the number and
class of securities and exercise price per share subject to each outstanding
Option, (iv) the repurchase price per share subject to each outstanding
Restricted Stock Award, and (v) the terms of each other outstanding Award shall
be appropriately adjusted by the Company (or substituted Awards may be made, if
applicable) to the extent the Board shall determine, in good faith, that such an
adjustment (or substitution) is necessary and appropriate. If this Section 8(a)
applies and Section 8(c) also applies to any event, Section 8(c) shall be
applicable to such event, and this Section 8(a) shall not be applicable.
(b) Liquidation or Dissolution. In the event of a proposed
liquidation or dissolution of the Company, the Board shall upon written notice
to the Participants provide that all then unexercised vested Options will (i)
become exercisable in full as of a specified time at least 10 business days
prior to the effective date of such liquidation or dissolution and (ii)
terminate effective upon such liquidation or dissolution, except to the extent
exercised before such effective date. The Board may specify the effect of a
liquidation or dissolution on any Restricted Stock Award or other Award granted
under the Plan at the time of the grant of such Award.
(c) Reorganization and Change in Control Events.
(1) Definitions.
(a) A "Reorganization Event" shall mean:
(i) any merger or consolidation of the
Company with or into another entity
as a result of which all of the
Common Stock of the Company is
converted into or exchanged for the
right to receive cash, securities
or other property; or
(ii) any exchange of all of the Common
Stock of the Company for cash,
securities or other property
pursuant to a share exchange
transaction.
(b) A "Change in Control Event" shall mean:
5
(i) the acquisition by an individual,
entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of
the Exchange Act) (a "Person") of
beneficial ownership of any capital
stock of the Company if, after such
acquisition, such Person
beneficially owns (within the
meaning of Rule 13d-3 promulgated
under the Exchange Act) 50% or more
of either (x) the then-outstanding
shares of common stock of the
Company (the "Outstanding Company
Common Stock") or (y) the combined
voting power of the
then-outstanding securities of the
Company entitled to vote generally
in the election of directors (the
"Outstanding Company Voting
Securities"); provided, however,
that for purposes of this
subsection (i), the following
acquisitions shall not constitute a
Change in Control Event: (A) any
acquisition directly from the
Company (excluding an acquisition
pursuant to the exercise,
conversion or exchange of any
security exercisable for,
convertible into or exchangeable
for common stock or voting
securities of the Company, unless
the Person exercising, converting
or exchanging such security
acquired such security directly
from the Company or an underwriter
or agent of the Company), (B) any
acquisition by any employee benefit
plan (or related trust) sponsored
or maintained by the Company or any
corporation controlled by the
Company, or (C) any acquisition by
any corporation pursuant to a
Business Combination (as defined
below) which complies with clauses
(x) and (y) of subsection (iii) of
this definition; or
(ii) such time as the Continuing
Directors (as defined below) do not
constitute a majority of the Board
(or, if applicable, the Board of
Directors of a successor
corporation to the Company), where
the term "Continuing Director"
means at any date a member of the
Board (x) who was a member of the
Board on the date of the initial
adoption of this Plan by the Board
or (y) who was nominated or elected
subsequent to such date by at least
a majority of the directors who
were Continuing Directors at the
time of such nomination or election
or whose election to the Board was
recommended or endorsed by at least
a majority of the directors who
were Continuing Directors at the
time of such nomination or
election; provided, however, that
there shall be excluded from this
clause (y) any individual whose
initial assumption of office
occurred as a result of an actual
or threatened election contest with
respect to the election or removal
of directors or other actual or
threatened solicitation of proxies
6
or consents, by or on behalf of a
person other than the Board; or
(iii) the consummation of a merger,
consolidation, reorganization,
recapitalization or share exchange
involving the Company or a sale or
other disposition of all or
substantially all of the assets of
the Company (a "Business
Combination"), unless, immediately
following such Business
Combination, each of the following
two conditions is satisfied: (x)
all or substantially all of the
individuals and entities who were
the beneficial owners of the
Outstanding Company Common Stock
and Outstanding Company Voting
Securities immediately prior to
such Business Combination
beneficially own, directly or
indirectly, more than 50% of the
then-outstanding shares of common
stock and the combined voting power
of the then-outstanding securities
entitled to vote generally in the
election of directors,
respectively, of the resulting or
acquiring corporation in such
Business Combination (which shall
include, without limitation, a
corporation which as a result of
such transaction owns the Company
or substantially all of the
Company's assets either directly or
through one or more subsidiaries)
(such resulting or acquiring
corporation is referred to herein
as the "Acquiring Corporation") in
substantially the same proportions
as their ownership of the
Outstanding Company Common Stock
and Outstanding Company Voting
Securities, respectively,
immediately prior to such Business
Combination and (y) no Person
(excluding the Acquiring
Corporation or any employee benefit
plan (or related trust) maintained
or sponsored by the Company or by
the Acquiring Corporation)
beneficially owns, directly or
indirectly, 50% or more of the
then-outstanding shares of common
stock of the Acquiring Corporation,
or of the combined voting power of
the then-outstanding securities of
such corporation entitled to vote
generally in the election of
directors (except to the extent
that such ownership existed prior
to the Business Combination).
(c) "Cause" shall mean any (i) willful failure
by the Participant, which failure is not
cured within 30 days of written notice to
the Participant from the Company, to perform
the material duties properly assigned to the
Participant by the Company, (ii) willful
misconduct by the Participant which affects
the business reputation of the Company,
(iii) material breach by the Participant of
any employment, confidentiality,
non-competition or non-solicitation
agreement with the Company, (iv) conviction
or plea of nolo
7
contendere (no contest) by the Participant
to a felony, or (v) commission by the
Participant of any act involving fraud,
theft or dishonesty with respect to the
Company's business or affairs. The
Participant shall be considered to have been
discharged for "Cause" if the Company
determines, within 30 days after the
Participant's resignation, that discharge
for Cause was warranted.
(2) Effect on Options.
(a) Reorganization Event. Upon the occurrence of
a Reorganization Event (regardless of
whether such event also constitutes a Change
in Control Event), or the execution by the
Company of any agreement with respect to a
Reorganization Event (regardless of whether
such event will result in a Change in
Control Event), the Board shall provide that
all outstanding Options shall be assumed, or
equivalent options shall be substituted, by
the acquiring or succeeding corporation (or
an affiliate thereof); provided, however,
that if such Reorganization Event also
constitutes a Change in Control Event,
except to the extent specifically provided
to the contrary in the instrument evidencing
any Option or any other agreement between a
Participant and the Company, such assumed or
substituted options shall become immediately
exercisable in full if, on or prior to the
date that is six months after the date of
the consummation of the Reorganization
Event, the Participant's employment with the
Company or the acquiring or succeeding
corporation is terminated without Cause by
the Company or the acquiring or succeeding
corporation. For purposes hereof, an Option
shall be considered to be assumed if,
following consummation of the Reorganization
Event, the Option confers the right to
purchase, for each share of Common Stock
subject to the Option immediately prior to
the consummation of the Reorganization
Event, the consideration (whether cash,
securities or other property) received as a
result of the Reorganization Event by
holders of Common Stock for each share of
Common Stock held immediately prior to the
consummation of the Reorganization Event
(and if holders were offered a choice of
consideration, the type of consideration
chosen by the holders of a majority of the
outstanding shares of Common Stock);
provided, however, that if the consideration
received as a result of the Reorganization
Event is not solely common stock of the
acquiring or succeeding corporation (or an
affiliate thereof), the Company may, with
the consent of the acquiring or succeeding
corporation, provide for the consideration
to be received upon the exercise of Options
to consist solely of common stock of the
acquiring or succeeding corporation (or an
affiliate thereof) equivalent in fair market
value to the per share consideration
received by holders of outstanding shares of
Common Stock as a result of the
Reorganization Event.
8
Notwithstanding the foregoing, if
the acquiring or succeeding corporation (or
an affiliate thereof) does not agree to
assume, or substitute for, such Options,
then the Board shall, upon written notice to
the Participants, provide that all then
unexercised Options will become exercisable
in full as of a specified time prior to the
Reorganization Event and will terminate
immediately prior to the consummation of
such Reorganization Event, except to the
extent exercised by the Participants before
the consummation of such Reorganization
Event; provided, however, that in the event
of a Reorganization Event under the terms of
which holders of Common Stock will receive
upon consummation thereof a cash payment for
each share of Common Stock surrendered
pursuant to such Reorganization Event (the
"Acquisition Price"), then the Board may
instead provide that all outstanding Options
shall terminate upon consummation of such
Reorganization Event and that each
Participant shall receive, in exchange
therefor, a cash payment equal to the amount
(if any) by which (A) the Acquisition Price
multiplied by the number of shares of Common
Stock subject to such outstanding Options
(whether or not then exercisable), exceeds
(B) the aggregate exercise price of such
Options.
(b) Change in Control Event that is not a
Reorganization Event. Upon the occurrence of
a Change in Control Event that does not also
constitute a Reorganization Event, except to
the extent specifically provided to the
contrary in the instrument evidencing any
Option or any other agreement between a
Participant and the Company, each
then-outstanding Option shall continue to
become vested in accordance with the
original vesting schedule set forth in such
Option; provided, however, that each such
Option shall become immediately exercisable
in full if, on or prior to the date that is
six months after the date of the
consummation of the Change in Control Event,
the Participant's employment with the
Company or the acquiring or succeeding
corporation is terminated without Cause by
the Company or the acquiring or succeeding
corporation.
(3) Effect on Restricted Stock Awards.
(a) Reorganization Event that is not a Change in
Control Event. Upon the occurrence of a
Reorganization Event that is not a Change in
Control Event, the repurchase and other
rights of the Company under each outstanding
Restricted Stock Award shall inure to the
benefit of the Company's successor and shall
apply to the cash, securities or other
property which the Common Stock was
converted into or exchanged for pursuant to
such Reorganization Event in the same manner
and to the same extent as they applied to
the Common Stock subject to such Restricted
Stock Award.
9
(b) Change in Control Event. Upon the occurrence
of a Change in Control Event (regardless of
whether such event also constitutes a
Reorganization Event), except to the extent
specifically provided to the contrary in the
instrument evidencing any Restricted Stock
Award or any other agreement between a
Participant and the Company, each
then-outstanding Restricted Stock Award
shall continue to become free from
conditions or restrictions in accordance
with the original schedule set forth in such
Restricted Stock Award; provided, however,
that each such Restricted Stock Award shall
immediately become free from all conditions
or restrictions if, on or prior to the date
that is six months after the date of the
consummation of the Change in Control Event,
the Participant's employment with the
Company or the acquiring or succeeding
corporation is terminated without Cause by
the Company or the acquiring or succeeding
corporation.
(4) Effect on Other Awards.
(a) Reorganization Event that is not a Change in
Control Event. The Board shall specify the
effect of a Reorganization Event that is not
a Change in Control Event on any other Award
granted under the Plan at the time of the
grant of such Award.
(b) Change in Control Event. Upon the occurrence
of a Change in Control Event (regardless of
whether such event also constitutes a
Reorganization Event), except to the extent
specifically provided to the contrary in the
instrument evidencing any other Award or any
other agreement between a Participant and
the Company, each such then-outstanding
Award shall continue to become exercisable,
realizable, vested or free from conditions
or restrictions in accordance with the
original schedule set forth in such Award;
provided, however, that each such Award
shall immediately become fully exercisable,
realizable, vested or free from conditions
or restrictions if, on or prior to the date
that is six months after the date of the
consummation of the Change in Control Event,
the Participant's employment with the
Company or the acquiring or succeeding
corporation is terminated without Cause by
the Company or the acquiring or succeeding
corporation.
9. General Provisions Applicable to Awards
(a) Transferability of Awards. Except as the Board may otherwise
determine or provide in an Award, Awards shall not be sold, assigned,
transferred, pledged or otherwise encumbered by the person to whom they are
granted, either voluntarily or by operation of law, except by will or the laws
of descent and distribution, and, during the life of the Participant, shall be
exercisable only by the Participant. References to a Participant, to the extent
relevant in the context, shall include references to authorized transferees.
10
(b) Documentation. Each Award shall be evidenced in such form
(written, electronic or otherwise) as the Board shall determine. Each Award may
contain terms and conditions in addition to those set forth in the Plan.
(c) Board Discretion. Except as otherwise provided by the Plan,
each Award may be made alone or in addition or in relation to any other Award.
The terms of each Award need not be identical, and the Board need not treat
Participants uniformly.
(d) Termination of Status. The Board shall determine the effect on
an Award of the disability, death, retirement, authorized leave of absence or
other change in the employment or other status of a Participant and the extent
to which, and the period during which, the Participant, the Participant's legal
representative, conservator, guardian or Designated Beneficiary may exercise
rights under the Award.
(e) Withholding. Each Participant shall pay to the Company, or
make provision satisfactory to the Board for payment of, any taxes required by
law to be withheld in connection with Awards to such Participant no later than
the date of the event creating the tax liability. Except as the Board may
otherwise provide in an Award, when the Common Stock is registered under the
Exchange Act, Participants may satisfy such tax obligations in whole or in part
by delivery of shares of Common Stock, including shares retained from the Award
creating the tax obligation, valued at their Fair Market Value; provided,
however, that the total tax withholding where stock is being used to satisfy
such tax obligations cannot exceed the Company's minimum statutory withholding
obligations (based on minimum statutory withholding rates for federal and state
tax purposes, including payroll taxes, that are applicable to such supplemental
taxable income). The Company may, to the extent permitted by law, deduct any
such tax obligations from any payment of any kind otherwise due to a
Participant.
(f) Amendment of Award. The Board may amend, modify or terminate
any outstanding Award, including but not limited to, substituting therefor
another Award of the same or a different type, changing the date of exercise or
realization, and converting an Incentive Stock Option to a Nonstatutory Stock
Option, provided that the Participant's consent to such action shall be required
unless the Board determines that the action, taking into account any related
action, would not materially and adversely affect the Participant.
(g) Conditions on Delivery of Stock. The Company will not be
obligated to deliver any shares of Common Stock pursuant to the Plan or to
remove restrictions from shares previously delivered under the Plan until (i)
all conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company's counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
(h) Acceleration. The Board may at any time provide that any Award
shall become immediately exercisable in full or in part, free of some or all
restrictions or conditions, or otherwise realizable in full or in part, as the
case may be.
11
(i) Deferred Delivery of Shares Issuable Pursuant to an Award. The
Board may, at the time any Award is granted, provide that, at the time Common
Stock would otherwise be delivered pursuant to the Award, the Participant shall
instead receive an instrument evidencing the right to future delivery of Common
Stock at such time or times, and on such conditions, as the Board shall specify.
The Board may at any time accelerate the time at which delivery of all or any
part of the Common Stock shall take place.
10. Miscellaneous
(a) No Right To Employment or Other Status. No person shall have
any claim or right to be granted an Award, and the grant of an Award shall not
be construed as giving a Participant the right to continued employment or any
other relationship with the Company. The Company expressly reserves the right at
any time to dismiss or otherwise terminate its relationship with a Participant
free from any liability or claim under the Plan, except as expressly provided in
the applicable Award.
(b) No Rights As Stockholder. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any rights
as a stockholder with respect to any shares of Common Stock to be distributed
with respect to an Award until becoming the record holder of such shares.
Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the
number of shares subject to such Option are adjusted as of the date of the
distribution of the dividend (rather than as of the record date for such
dividend), then an optionee who exercises an Option between the record date and
the distribution date for such stock dividend shall be entitled to receive, on
the distribution date, the stock dividend with respect to the shares of Common
Stock acquired upon such Option exercise, notwithstanding the fact that such
shares were not outstanding as of the close of business on the record date for
such stock dividend.
(c) Effective Date and Term of Plan. The Plan shall become
effective on the date on which the Securities and Exchange Commission declares
the registration statement on Form S-1 for the initial public offering of the
Company's Common Stock effective (the "Effective Date"). No Awards shall be
granted under the Plan after the completion of ten years from the earlier of (i)
the Effective Date or (ii) the date the Plan was approved by the Company's
stockholders, but Awards previously granted may extend beyond that date.
(d) Amendment of Plan. The Board may amend, suspend or terminate
the Plan or any portion thereof at any time; provided, however, that to the
extent required by Section 162(m), no Award granted to a Participant that is
intended to comply with Section 162(m) after the date of such amendment shall
become exercisable, realizable or vested, as applicable to such Award, unless
and until such amendment shall have been approved by the Company's stockholders
as required by Section 162(m) (including the vote required under Section
162(m)).
(e) Authorization of Sub-Plans. The Board may from time to time
establish one or more sub-plans under the Plan for purposes of satisfying
applicable blue sky, securities or tax laws of various jurisdictions. The Board
shall establish such sub-plans by adopting supplements to this Plan containing
(i) such limitations on the Board's discretion under the Plan as the Board deems
necessary or desirable or (ii) such additional terms and conditions not
otherwise
12
inconsistent with the Plan as the Board shall deem necessary or desirable. All
supplements adopted by the Board shall be deemed to be part of the Plan, but
each supplement shall apply only to Participants within the affected
jurisdiction and the Company shall not be required to provide copies of any
supplement to Participants in any jurisdiction which is not the subject of such
supplement.
(f) Governing Law. The provisions of the Plan and all Awards made
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware, without regard to any applicable conflicts of law.
13