EXHIBIT 10.8
PAREXEL INTERNATIONAL CORPORATION
2005 STOCK INCENTIVE PLAN
1. Purpose
The purpose of this 2005 Stock Incentive Plan (the "Plan") of PAREXEL
International Corporation, a Massachusetts 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 are expected to make
important contributions to the Company and by providing such persons with equity
ownership opportunities and performance-based incentives that are intended to
align their interests 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 receive options, stock appreciation rights, restricted
stock, restricted stock units and other stock-based awards (each, an "Award")
under the Plan. Each person who receives an Award under the Plan is 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 to the
extent that the Board's powers or authority under the Plan have been delegated
to such Committee.
4. Stock Available for Awards
(a) Number of Shares. Subject to adjustment under Section 9, Awards may be
made under the Plan for up to 1,000,000 shares of common stock, $.01 par value
per share, of the Company (the "Common Stock"). 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. Further, shares of Common
Stock tendered to the Company by a Participant to exercise an Award shall be
added to the number of shares of Common Stock available for the grant of Awards
under the Plan. However, in the case of Incentive Stock Options (as hereinafter
defined), the foregoing provisions shall be subject 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) Sub-limits. Subject to adjustment under Section 9, the following
sub-limits on the number of shares subject to Awards shall apply:
(1) Section 162(m) Per-Participant Limit. The maximum number of shares of Common
Stock with respect to which Awards may be granted to any Participant under the
Plan shall be 1,000,000 per fiscal year. For purposes of the foregoing limit,
the combination of an Option in tandem with an SAR (as each is hereafter
defined) shall be treated as a single Award. The per-Participant limit described
in this Section 4(b)(1) shall be construed and applied consistently with Section
162(m) of the Code or any successor provision thereto, and the regulations
thereunder ("Section 162(m)").
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 PAREXEL International
Corporation, any of PAREXEL International Corporations'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 or for any action taken by the Board
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pursuant to Section 10(f), including without limitation the conversion of an
Incentive Stock Option to a Nonstatutory Stock Option.
(c) Exercise Price. The Board shall establish the exercise price of each
Option and specify such exercise price in the applicable option agreement;
provided, however, that the exercise price shall be not less than 100% of the
Fair Market Value (as defined below) at the time the Option is granted.
(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; provided, however, that no Option will be granted for a term
in excess of 10 years.
(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. Shares of Common Stock subject to the Option will be
delivered by the Company following exercise either as soon as practicable or,
subject to such conditions as the Board shall specify, on a deferred basis (with
the Company's obligation to be evidenced by an instrument providing for future
delivery of the deferred shares at the time or times specified by the Board).
(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 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 Securities Exchange Act of
1934 (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 ("Fair Market Value"), provided (i) such method of
payment is then permitted under applicable law, (ii) such Common Stock, if
acquired directly from the Company, was owned by the Participant for such
minimum period of time, if any, as may be established by the Board in its
discretion and (iii) such Common Stock is not subject to any repurchase,
forfeiture, unfulfilled vesting or other similar requirements;
(4) to the extent permitted by applicable law and by the Board, 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
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(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. Substitute
Options shall not count against the overall share limit set forth in Section
4(a), except as may be required by reason of Section 422 and related provisions
of the Code.
(h) Limitation on Repricing. Unless such action is approved by the
Company's stockholders: (1) no outstanding Option granted under the Plan may be
amended to provide an exercise price per share that is lower than the
then-current exercise price per share of such outstanding Option (other than
adjustments pursuant to Section 9) and (2) the Board may not cancel any
outstanding option (whether or not granted under the Plan) and grant in
substitution therefore new Awards under the Plan covering the same or a
different number of shares of Common Stock and having an exercise price per
share lower than the then-current exercise price per share of the cancelled
option.
(i) No Reload Rights. No Option granted under the Plan shall contain any
provision entitling the optionee to the automatic grant of additional Options in
connection with any exercise of the original Option.
6. Stock Appreciation Rights.
(a) General. A Stock Appreciation Right, or SAR, is an Award entitling the
holder, upon exercise, to receive an amount in Common Stock or cash or a
combination thereof (such form to be determined by the Board) determined by
reference to appreciation, from and after the date of grant, in the fair market
value of a share of Common Stock. The date as of which such appreciation or
other measure is determined shall be the exercise date.
(b) Grants. Stock Appreciation Rights may be granted in tandem with, or
independently of, Options granted under the Plan.
(c) Exercise. Stock Appreciation Rights 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 any other documents required by the Board.
7. Restricted Stock; Restricted Stock Units.
(a) General. The Board may grant Awards entitling recipients to acquire
shares of Common Stock ("Restricted 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
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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. Instead of granting Awards for Restricted Stock, the Board may grant
Awards entitling the recipient to receive shares of Common Stock to be delivered
at the time such shares of Common Stock vest ("Restricted Stock Units")
(Restricted Stock and Restricted Stock Units are each referred to herein as a
"Restricted Stock Award").
(b) Terms and Conditions. The Board shall determine the terms and
conditions of a 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.
(d) Limitations on Vesting.
(1) Restricted Stock Awards that vest based on the passage of time alone shall
be zero percent vested prior to the first anniversary of the date of grant, no
more than 33-1/3% vested prior to the second anniversary of the date of grant,
and no more than 66-2/3% vested prior to the third anniversary of the date of
grant. Restricted Stock Awards that vest upon the passage of time and provide
for accelerated vesting based on performance shall not vest prior to the first
anniversary of the date of grant. This subsection 7(d)(1) shall not apply to (A)
Awards granted pursuant to Section 10(i) or (B) to a maximum of 50,000 shares of
Common Stock with respect to which Restricted Stock Awards may be granted.
(2) Notwithstanding any other provision of this Plan, the Board may, in its
discretion, either at the time a Restricted Stock Award is made or at any time
thereafter, waive its right to repurchase shares of Common Stock (or waive the
forfeiture thereof) or remove or modify any part or all of the restrictions
applicable to the Restricted Stock Award, provided that the Board may only
exercise such rights in extraordinary circumstances which shall include, without
limitation, death or disability of the Participant; estate planning needs of the
Participant; a merger, consolidation, sale, reorganization, recapitalization, or
change in control of the Company; or any other nonrecurring significant event
affecting the Company, a Participant or the Plan.
8. Other Stock-Based Awards.
Other Awards of shares of Common Stock, and other Awards that are valued in
whole or in part by reference to, or are otherwise based on, shares of Common
Stock or other property,
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may be granted hereunder to Participants ("Other Stock Unit Awards"), including
without limitation Awards entitling recipients to receive shares of Common Stock
to be delivered in the future. Such Other Stock Unit Awards shall also be
available as a form of payment in the settlement of other Awards granted under
the Plan or as payment in lieu of compensation to which a Participant is
otherwise entitled. Other Stock Unit Awards may be paid in shares of Common
Stock or cash, as the Board shall determine. Subject to the provisions of the
Plan, the Board shall determine the conditions of each Other Stock Unit Award,
including any purchase price applicable thereto.
9. 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 number and class of securities and exercise price per share of each
outstanding Option, (iii) the share- and per-share provisions of each Stock
Appreciation Right, (iv) the repurchase price per share subject to each
outstanding Restricted Stock Award and (v) the share- and per-share-related
provisions of each outstanding Other Stock Unit Award, shall be appropriately
adjusted by the Company (or substituted Awards may be made, if applicable) to
the extent determined by the Board.
(b) Reorganization Events.
(1) Definition. A "Reorganization Event" shall mean: (a) 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 is cancelled, (b) any
exchange of all of the Common Stock of the Company for cash, securities or other
property pursuant to a share exchange transaction or (c) any liquidation or
dissolution of the Company.
(2) Consequences of a Reorganization Event on Awards Other than Restricted Stock
Awards. In connection with a Reorganization Event, the Board shall take any one
or more of the following actions as to all or any outstanding Awards on such
terms as the Board determines: (i) provide that Awards shall be assumed, or
substantially equivalent Awards shall be substituted, by the acquiring or
succeeding corporation (or an affiliate thereof), (ii) upon written notice to a
Participant, provide that the Participant's unexercised Options or other
unexercised Awards shall become exercisable in full, and will terminate
immediately prior to the consummation of such Reorganization Event unless
exercised by the Participant within a specified period following the date of
such notice, (iii) provide that outstanding Awards shall become realizable or
deliverable, or restrictions applicable to an Award shall lapse, in whole or in
part prior to or upon such Reorganization Event, (iv) 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 surrendered in
the Reorganization Event (the "Acquisition Price"), make or provide for a cash
payment to a Participant equal to (A) the Acquisition Price times the number of
shares of Common Stock subject to the Participant's Options or other Awards (to
the extent the exercise
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price does not exceed the Acquisition Price) minus (B) the aggregate exercise
price of all such outstanding Options or other Awards, in exchange for the
termination of such Options or other Awards, (v) provide that, in connection
with a liquidation or dissolution of the Company, Awards shall convert into the
right to receive liquidation proceeds (if applicable, net of the exercise price
thereof) and (vi) any combination of the foregoing.
For purposes of clause (i) above, an Option shall be considered
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 value (as determined by the Board) to the per share
consideration received by holders of outstanding shares of Common Stock as a
result of the Reorganization Event.
To the extent all or any portion of an Option becomes exercisable
solely as a result of clause (ii) above, the Board may provide that upon
exercise of such Option the Participant shall receive shares subject to a right
of repurchase by the Company or its successor at the Option exercise price; such
repurchase right (x) shall lapse at the same rate as the Option would have
become exercisable under its terms and (y) shall not apply to any shares subject
to the Option that were exercisable under its terms without regard to clause
(ii) above.
(3) Consequences of a Reorganization Event on Restricted Stock Awards. Upon the
occurrence of a Reorganization Event other than a liquidation or dissolution of
the Company, 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. Upon the occurrence of a
Reorganization Event involving the liquidation or dissolution of the Company,
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, all restrictions and conditions on all Restricted
Stock Awards then outstanding shall automatically be deemed terminated or
satisfied.
10. General Provisions Applicable to Awards
(a) Transferability of Awards. 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 or, other than in the case
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of an Incentive Stock Option, pursuant to a qualified domestic relations order,
and, during the life of the Participant, shall be exercisable only by the
Participant; provided, however, that the Board may permit or provide in an Award
for the gratuitous transfer of the Award by the Participant to or for the
benefit of any immediate family member, family trust or family partnership
established solely for the benefit of the Participant and/or an immediate family
member thereof if, with respect to such proposed transferee, the Company would
be eligible to use a Form S-8 for the registration of the sale of the Common
Stock subject to such Award under the Securities Act of 1933, as amended;
provided, further, that the Company shall not be required to recognize any such
transfer until such time as the Participant and such permitted transferee shall,
as a condition to such transfer, deliver to the Company a written instrument in
form and substance satisfactory to the Company confirming that such transferee
shall be bound by all of the terms and conditions of the Award. References to a
Participant, to the extent relevant in the context, shall include references to
authorized transferees.
(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, or 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 Company for payment of, any taxes required by law
to be withheld in connection with an Award to such Participant. Except as the
Board may otherwise provide in an Award, for so long as 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, except as otherwise provided by the Board, 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). Shares surrendered to satisfy tax withholding requirements cannot be
subject to any repurchase, forfeiture, unfulfilled vesting or other similar
requirements. 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. Except as otherwise provided in Section 5(h), 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
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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. Except as otherwise provided in Section 7(d), 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.
(i) Performance Conditions.
(1) This Section 10(i) shall be administered by a Committee (the "Section 162(m)
Committee") approved by the Board, all of the members of which are "outside
directors" as defined by Section 162(m).
(2) Notwithstanding any other provision of the Plan, if the Section 162(m)
Committee determines, at the time a Restricted Stock Award or Other Stock Unit
Award is granted to a Participant, that such Participant is, or may be as of the
end of the tax year in which the Company would claim a tax deduction in
connection with such Award, a Covered Employee (as defined in Section 162(m)),
then the Section 162(m) Committee may provide that this Section 10(i) is
applicable to such Award.
(3) If a Restricted Stock Award or Other Stock Unit Award is subject to this
Section 10(i), then the lapsing of restrictions thereon and the distribution of
cash or Shares pursuant thereto, as applicable, shall be subject to the
achievement of one or more objective performance goals established by the
Section 162(m) Committee, which shall be based on the relative or absolute
attainment of specified levels of one or any combination of the following: (a)
earnings, (b) revenues, (c) expenses, (d) stock price, (e) achievement of
balance sheet or income statement objectives, (f) total shareholder return, (g)
cash flow, or (h) backlog, and may be absolute in their terms or measured
against or in relationship to other companies comparably, similarly or otherwise
situated. Such performance goals may be adjusted to exclude any one or more of
(i) extraordinary items, (ii) gains or losses on the dispositions of
discontinued operations, (iii) the cumulative effects of changes in accounting
principles, (iv) the writedown of any asset, and (v) charges for restructuring
and rationalization programs. Such performance goals: (i) may vary by
Participant and may be different for different Awards; (ii) may be particular to
a Participant or
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the department, branch, line of business, subsidiary or other unit in which the
Participant works and may cover such period as may be specified by the Section
162(m) Committee; and (iii) shall be set by the Section 162(m) Committee within
the time period prescribed by, and shall otherwise comply with the requirements
of, Section 162(m).
(4) Notwithstanding any provision of the Plan, with respect to any Restricted
Stock Award or Other Stock Unit Award that is subject to this Section 10(i), the
Section 162(m) Committee may adjust downwards, but not upwards, the cash or
number of Shares payable pursuant to such Award, and the Section 162(m)
Committee may not waive the achievement of the applicable performance goals
except in the case of the death or disability of the Participant.
(5) The Section 162(m) Committee shall have the power to impose such other
restrictions on Awards subject to this Section 10(i) as it may deem necessary or
appropriate to ensure that such Awards satisfy all requirements for
"performance-based compensation" within the meaning of Section 162(m)(4)(C) of
the Code, or any successor provision thereto.
11. 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 it is adopted by the Board, but no Award may be granted unless and
until the Plan has been approved by the Company's stockholders. No Awards shall
be granted under the Plan after the completion of 10 years from the earlier of
(i) the date on which the Plan was adopted by the Board or (ii) the date the
Plan was approved by the Company's stockholders, but Awards previously granted
may extend beyond that date.
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(d) Amendment of Plan. The Board may amend, suspend or terminate the Plan
or any portion thereof at any time, subject to any required stockholder approval
under any applicable legal, regulatory or listing requirement.
(e) Provisions for Foreign Participants. The Board may modify Awards or
Options granted to Participants who are foreign nationals or employed outside
the United States or establish subplans or procedures under the Plan to
recognize differences in laws, rules, regulations or customs of such foreign
jurisdictions with respect to tax, securities, currency, employee benefit or
other matters.
(f) Compliance With Code Section 409A. No Award shall provide for deferral
of compensation that does not comply with Section 409A of the Code, unless the
Board, at the time of grant, specifically provides that the Award is not
intended to comply with Section 409A of the Code.
(g) 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
Commonwealth of Massachusetts, excluding choice-of-law principles of the law of
such state that would require the application of the laws of a jurisdiction
other than such state.
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