Exhibit 10.1
V*I CHIP CORPORATION
AMENDED 2007 STOCK OPTION AND INCENTIVE PLAN
SECTION 1. GENERAL PURPOSE OF THE PLAN: DEFINITIONS
The name of the plan is the V*I Chip Corporation 2007 Stock Option and
Incentive Plan (the "Plan"). The purpose of the Plan is to encourage and enable
the employees, directors, consultants and other key persons of V*I Chip
Corporation (the "Company") and its Subsidiaries upon whose judgment, initiative
and efforts the Company largely depends for the successful conduct of its
business to acquire a proprietary interest in the Company. It is anticipated
that providing such persons with a direct stake in the Company's welfare will
assure a closer identification of their interests with those of the Company,
thereby stimulating their efforts on the Company's behalf and strengthening
their desire to remain with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations thereunder.
"Administrator" is defined in Section 2(a).
"Award" or "Awards," except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock
Options, Restricted Stock Awards, Unrestricted Stock Awards, or any combination
of the foregoing.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Committee" means the Committee of the Board referred to in Section 2.
"Effective Date" means the date on which the Plan is approved by
stockholders as set forth in Section 13.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"Fair Market Value" of the Stock on any given date means the fair market
value of the Stock determined in good faith by the Administrator; provided,
however, that if the Stock trades on a national securities exchange, the Fair
Market Value on any given date is the closing sale price on such date or, if no
such closing sale price information is available, the average of the highest bid
and lowest asked prices for the Stock reported on such date. For any date that
is not a trading day, the Fair Market Value of the Stock for such date will be
determined by using the
closing sale price or the average of the highest bid and lowest asked prices, as
appropriate, for the immediately preceding trading day. The Administrator can
substitute a particular time of day or other measure of closing sale price if
appropriate because of changes in exchange or market procedures. Notwithstanding
the foregoing, if the date for which Fair Market Value is determined is the
first day when trading prices for the Stock are trading on a national securities
exchange, the Fair Market Value shall be the "Price to the Public" (or
equivalent) set forth on the cover page for the final prospectus relating to the
Company's Initial Public Offering, if applicable.
"Incentive Stock Option" means any Stock Option designated and qualified as
an "incentive stock option" as defined in Section 422 of the Code.
"Initial Public Offering" means the consummation of the first fully
underwritten, firm commitment public offering pursuant to an effective
registration statement under the Act covering the offer and sale by the Company
of its equity securities, or such other event as a result of or following which
the Stock shall be publicly held.
"Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Option" or "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5.
"Restricted Stock Award" means Awards granted pursuant to Section 6.
"Retirement" means the employee's termination of employment with the
Company and its Subsidiaries after attainment of the age of 62.5 years.
"Stock" means the Common Stock, par value $.01 per share, of the Company,
subject to adjustments pursuant to Section 3.
"Subsidiary" means any corporation or other entity (other than the Company)
in any unbroken chain of corporations or other entities beginning with the
Company if each of the corporations or entities (other than the last corporation
or entity in the unbroken chain) owns stock or other interests possessing 50
percent or more of the economic interest or the total combined voting power of
all classes of stock or other interests in one of the other corporations or
entities in the chain.
"Transaction" is defined in Section 3(c).
"Unrestricted Stock Award" means any Award granted pursuant to Section 7.
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SECTION 2. ADMINISTRATION OF THE PLAN: ADMINISTRATOR AUTHORITY TO SELECT
PARTICIPANTS AND DETERMINE AWARDS
(a) Administration of Plan. The Plan shall be administered by the Board or,
at the discretion of the Board, a committee of the Board comprised, except as
contemplated by Section 2(c), of not less than two directors (in either case,
the "Administrator").
(b) Powers of Administrator. The Administrator shall have the power and
authority to grant Awards consistent with the terms of the Plan, including the
power and authority:
(i) to select the individuals to whom Awards may from time to time be
granted;
(ii) to determine the time or times of grant, and the extent, if any,
of Incentive Stock Options, Non-Qualified Stock Options, Restricted Stock
Awards, Unrestricted Stock Awards or any combination of the foregoing, granted
to any one or more participants;
(iii) to determine the number of shares of Stock to be covered by any
Award;
(iv) to determine and modify from time to time the terms and
conditions, including restrictions, not inconsistent with the terms of the Plan,
of any Award, which terms and conditions may differ among individual Awards and
participants, and to approve the form of written instruments evidencing the
Awards;
(v) to accelerate at any time the exercisability or vesting of all or
any portion of any Award;
(vi) to impose any limitations on Awards granted under the Plan,
including limitations on transfers, repurchase provisions and the like and to
exercise repurchase rights or obligations;
(vii) subject to the provisions of Section 5(a)(ii), to extend at any
time the period in which Stock Options may be exercised;
(viii) to determine at any time whether, to what extent, and under
what circumstances distribution or the receipt of Stock and other amounts
payable with respect to an Award shall be deferred either automatically or at
the election of the grantee and whether and to what extent the Company shall pay
or credit amounts constituting interest (at rates determined by the
Administrator) or dividends or deemed dividends on such deferrals; and
(ix) at any time to adopt, alter and repeal such rules, guidelines and
practices for administration of the Plan and for its own acts and proceedings as
it shall deem advisable; to interpret the terms and provisions of the Plan and
any Award (including related written instruments); to make all determinations it
deems advisable for the administration of the Plan; to decide all disputes
arising in connection with the Plan; and to otherwise supervise the
administration of the Plan.
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Notwithstanding the foregoing, prior to the Initial Public Offering, no
Award shall be granted under the Plan unless the recipient of such Award has
executed and delivered a Stock Restriction Agreement in substantially the form
attached hereto as Exhibit A or such other form as the Administrator may
determine from time to time. All decisions and interpretations of the
Administrator shall be binding on all persons, including the Company and Plan
participants.
(c) Delegation of Authority to Grant Awards. The Administrator, in its
discretion, may delegate to the Chief Executive Officer of the Company all or
part of the Administrator's authority and duties with respect to the granting of
Awards at Fair Market Value to individuals who are not subject to the reporting
and other provisions of Section 16 of the Exchange Act or "covered employees"
within the meaning of Section 162(m) of the Code, and in the event of such
delegation, such Chief Executive Officer shall be deemed a one-person Committee
of the Board. Any such delegation by the Administrator shall include a
limitation as to the amount of Awards that may be granted during the period of
the delegation and shall contain guidelines as to the determination of the
exercise price of any Option, the conversion ratio or price of other Awards and
the vesting criteria. The Administrator may revoke or amend the terms of a
delegation at any time but such action shall not invalidate any prior actions of
the Administrator's delegate or delegates that were consistent with the terms of
the Plan.
(d) Indemnification. Neither the Board nor the Administrator, nor any
member of either or any delegate thereof, shall be liable for any act, omission,
interpretation, construction or determination made in good faith in connection
with the Plan, and the members of the Board and the Committee (and any delegate
thereof) shall be entitled in all cases to indemnification and reimbursement by
the Company in respect of any claim, loss, damage, judgment, settlement or
expense (including, without limitation, reasonable attorneys' fees) arising or
resulting therefrom to the fullest extent permitted by law and/or under any
directors' and officers' liability insurance coverage which may be in effect
from time to time.
SECTION 3. STOCK ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION
(a) Stock Issuable. The maximum number of shares of Stock reserved and
available for issuance under the Plan shall be 12,000,000 shares, subject to
adjustment as provided in Section 3(b). For purposes of this limitation, the
shares of Stock underlying any Awards which are forfeited, canceled, reacquired
by the Company, satisfied without the issuance of Stock or otherwise terminated
(other than by exercise) shall be added back to the shares of Stock available
for issuance under the Plan. Subject to such overall limitation, shares of Stock
may be issued up to such maximum number pursuant to any type or types of Award;
provided, however, that from and after the date on which the Company becomes
subject to the deduction limit imposed by Section 162(m) of the Code, Stock
Options with respect to no more than 4,000,000 shares of Stock may be granted to
any one individual participant during any one calendar year period. The shares
available for issuance under the Plan may be authorized but unissued shares of
Stock or shares of Stock reacquired by the Company and held in its treasury.
(b) Changes in Stock. Subject to Section 3(c) hereof, if, as a result of
any reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split or other similar change in the Company's capital
stock, the outstanding shares of Stock are
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increased or decreased or are exchanged for a different number or kind of shares
or other securities of the Company, or additional shares or new or different
shares or other securities of the Company or other non-cash assets are
distributed with respect to such shares of Stock or other securities, or, if, as
a result of any merger, consolidation or sale of all or substantially all of the
assets of the Company, the outstanding shares of Stock are converted into or
exchanged for a different number or kind of securities of the Company or any
successor entity (or a parent or subsidiary thereof), the Administrator shall
make an appropriate or proportionate adjustment in (i) the maximum number of
shares reserved for issuance under the Plan, (ii) the number of Stock Options
that can be granted to any one individual participant, (iii) the number and kind
of shares or other securities subject to any then outstanding Awards under the
Plan, (iv) the repurchase price per share subject to each outstanding Restricted
Stock Award, and (v) the exercise price and/or exchange price for each share
subject to any then outstanding Stock Options under the Plan, without changing
the aggregate exercise price (i.e., the exercise price multiplied by the number
of Stock Options) as to which such Stock Options remain exercisable. The
adjustment by the Administrator shall be final, binding and conclusive. No
fractional shares of Stock shall be issued under the Plan resulting from any
such adjustment, but the Administrator in its discretion may make a cash payment
in lieu of fractional shares.
The Administrator shall also make an appropriate or proportionate
adjustment in the number of shares subject to outstanding Awards and the
exercise price and the terms of outstanding Awards to take into consideration
material changes in accounting practices or principles, extraordinary dividends,
acquisitions or dispositions of stock or property or any other event in order to
avoid distortion in the operation of the Plan, provided that no such adjustment
shall be made in the case of an Incentive Stock Option, without the consent of
the participant, if it would constitute a modification, extension or renewal of
the Option within the meaning of Section 424(h) of the Code.
(c) Mergers and Other Transactions. In the case of and subject to the
consummation of (i) the dissolution or liquidation of the Company, (ii) the sale
of all or substantially all of the assets of the Company on a consolidated basis
to an unrelated person or entity, (iii) a merger, reorganization or
consolidation in which the holders of the Company's outstanding voting power
immediately prior to such transaction do not own a majority of the outstanding
voting power of the surviving or resulting entity immediately upon completion of
such transaction, (iv) the sale of all or a majority of the outstanding capital
stock of the Company to an unrelated person or entity or (v) any other
transaction in which the owners of the Company's outstanding voting power prior
to such transaction do not own at least a majority of the outstanding voting
power of the relevant entity immediately upon completion of the transaction (in
each case, a "Transaction"), as of the effective date of such Transaction, all
Options that are not exercisable shall become fully exercisable and all other
Awards which are not vested shall become fully vested, except as the
Administrator may otherwise specify with respect to particular Awards. Upon the
effectiveness of the Transaction, the Plan and all outstanding Options issued
hereunder shall terminate upon the effective time of any such Transaction,
unless provision is made in connection with such Transaction in the sole
discretion of the parties thereto for the assumption or continuation of Options
theretofore granted (after taking into account any acceleration hereunder) by
the successor entity, or the substitution of such Options with new Options of
the successor entity or a parent or subsidiary thereof, with such adjustment as
to the number and
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kind of shares and the per share exercise prices as such parties shall agree
(after taking into account any acceleration if any, hereunder). In the event of
such termination, each optionee shall be permitted, within a specified period of
time prior to the consummation of the Transaction as determined by the
Administrator, to exercise all outstanding Options held by such optionee which
are then exercisable or will become exercisable as of the effective time of the
Transaction; provided, however, that the exercise of Options not exercisable
prior to the Transaction shall be subject to the consummation of the
Transaction. (The treatment of Restricted Stock Award in connection with any
such transaction shall be as specified in the relevant Award agreement.)
(d) Substitute Awards. The Administrator may grant Awards under the Plan in
substitution for stock and stock based awards held by employees, directors or
other key persons of another corporation in connection with a merger or
consolidation of the employing corporation with the Company or a Subsidiary or
the acquisition by the Company or a Subsidiary of property or stock of the
employing corporation. The Administrator may direct that the substitute awards
be granted on such terms and conditions as the Administrator considers
appropriate in the circumstances. Any substitute Awards granted under the Plan
shall not count against the share limitations set forth in Section 3(a).
SECTION 4. ELIGIBILITY
Participants in the Plan will be such full or part-time officers,
employees, directors, consultants and other key persons (including prospective
employees) of the Company and its Subsidiaries who are responsible for or
contribute to the management, growth or profitability of the Company and its
Subsidiaries as are selected from time to time by the Administrator in its sole
discretion.
SECTION 5. STOCK OPTIONS
Any Stock Option granted under the Plan shall be in such form as the
Administrator may from time to time approve.
Stock Options granted under the Plan may be either Incentive Stock Options
or Non-Qualified Stock Options. Incentive Stock Options may be granted only to
employees of the Company or any Subsidiary that is a "subsidiary corporation"
within the meaning of Section 424(f) of the Code. To the extent that any Option
does not qualify as an Incentive Stock Option, it shall be deemed a
Non-Qualified Stock Option.
No Incentive Stock Option shall be granted under the Plan after the date
which is ten years from the date the Plan is approved by the Board.
(a) Terms of Stock Options. Stock Options granted under the Plan shall be
subject to the following terms and conditions and shall contain such additional
terms and conditions, not inconsistent with the terms of the Plan, as the
Administrator shall deem desirable. If the Administrator so determines, Stock
Options may be granted in lieu of cash compensation at the
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participant's election, subject to such terms and conditions as the
Administrator may establish, as well as in addition to other compensation.
(i) Exercise Price. The exercise price per share for the Stock covered
by a Stock Option shall be determined by the Administrator at the time of grant
but shall not be less than 100 percent of the Fair Market Value on the date of
grant in the case of Incentive Stock Options. If an employee owns or is deemed
to own (by reason of the attribution rules of Section 424(d) of the Code) more
than 10 percent of the combined voting power of all classes of stock of the
Company or any parent or subsidiary corporation and an Incentive Stock Option is
granted to such employee, the option price of such Incentive Stock Option shall
be not less than 110 percent of the Fair Market Value on the grant date.
(ii) Option Term. The term of each Stock Option shall be fixed by the
Administrator, but no Incentive Stock Option shall be exercisable more than ten
years after the date the option is granted. If an employee owns or is deemed to
own (by reason of the attribution rules of Section 424(d) of the Code) more than
10 percent of the combined voting power of all classes of stock of the Company
or any parent or subsidiary corporation and an Incentive Stock Option is granted
to such employee, the term of such option shall be no more than five years from
the date of grant.
(iii) Exercisability; Rights of a Stockholder. Stock Options shall
become exercisable at such time or times, whether or not in installments, as
shall be determined by the Administrator at or after the grant date. The
Administrator may at any time accelerate the exercisability of all or any
portion of any Stock Option. An optionee shall have the rights of a stockholder
only as to shares acquired upon the exercise of a Stock Option and not as to
unexercised Stock Options.
(iv) Method of Exercise. Stock Options may be exercised in whole or in
part, by giving written notice of exercise to the Company, specifying the number
of shares to be purchased. Payment of the purchase price may be made by one or
more of the following methods to the extent provided in the Option Award
agreement or as otherwise provided by the Administrator:
(A) In cash, by certified or bank check or other instrument
acceptable to the Administrator;
(B) If approved by the Administrator, through the delivery (or
attestation to the ownership) of shares of Stock that are not then subject
to restrictions under any Company plan and that have been beneficially
owned by the optionee for such period as may be required by the
Administrator or have been purchased by the participant on the open market.
Such surrendered shares shall be valued at Fair Market Value on the
exercise date;
(C) If approved by the Administrator, by the optionee delivering
to the Company a properly executed exercise notice together with
irrevocable instructions to a broker to promptly deliver to the Company
cash or a check payable and acceptable to the Company for the purchase
price; provided that in the event the optionee chooses to pay
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the purchase price as so provided, the optionee and the broker shall comply
with such procedures and enter into such agreements of indemnity and other
agreements as the Administrator shall prescribe as a condition of such
payment procedure; or
(D) By the optionee delivering to the Company a promissory note
if the Board has unanimously authorized the loan of funds to the optionee
for the purpose of enabling or assisting the optionee to effect the
exercise of his or her Stock Option.
Payment instruments will be received subject to collection. No certificates
for shares of Stock so purchased will be issued to optionee until the Company
has completed all steps required by law to be taken in connection with the
issuance and sale of the shares, including without limitation (i) receipt of a
representation from the optionee at the time of exercise of the Option that the
optionee is purchasing the shares for the optionee's own account and not with a
view to any sale or distribution thereof, (ii) the legending of any certificate
representing the shares to evidence the foregoing representations and
restrictions, and (iii) obtaining from optionee payment or provision for all
withholding taxes due as a result of the exercise of the Option. The delivery of
certificates representing the shares of Stock to be purchased pursuant to the
exercise of a Stock Option will be contingent upon receipt from the optionee (or
a purchaser acting in his or her stead in accordance with the provisions of the
Stock Option) by the Company of the full purchase price for such shares and the
fulfillment of any other requirements contained in the Option Award agreement or
applicable provisions of laws. In the event an optionee chooses to pay the
purchase price by previously-owned shares of Stock through the attestation
method, the shares of Stock transferred to the optionee upon the exercise of the
Stock Option shall be net of the number of shares attested to.
(v) Annual Limit on Incentive Stock Options. To the extent required
for "incentive stock option" treatment under Section 422 of the Code, the
aggregate Fair Market Value (determined as of the time of grant) of the shares
of Stock with respect to which Incentive Stock Options granted under this Plan
and any other plan of the Company or its parent and subsidiary corporations
become exercisable for the first time by an optionee during any calendar year
shall not exceed $100,000. To the extent that any Stock Option exceeds this
limit, it shall constitute a Non-Qualified Stock Option.
(b) Non-transferability of Options. No Stock Option shall be transferable
by the optionee otherwise than by will or by the laws of descent and
distribution and all Stock Options shall be exercisable, during the optionee's
lifetime, only by the optionee or by the optionee's legal representative or
guardian in the event of the optionee's incapacity. Notwithstanding the
foregoing, the Administrator, in its sole discretion, may provide in the Award
agreement regarding a given Option that the optionee may transfer, without
consideration for the transfer, his or her Non-Qualified Stock Options to
members of his or her immediate family, to trusts for the benefit of such family
members, or to partnerships in which such family members are the only partners,
provided that the transferee agrees in writing with the Company to be bound by
all of the terms and conditions of this Plan and the applicable Option.
(c) Termination. Except as may otherwise be provided in this Section 5(c)
or by the Administrator either in the Award agreement, or subject to Section 10
below, in writing after the Award agreement is issued, a participant's rights in
all Stock Options shall automatically
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terminate upon the participant's termination of employment with the Company and
its Subsidiaries for any reason. Notwithstanding the foregoing, the period
within which to exercise the Option shall be modified as set forth below:
(i) Termination Due to Death. If the participant's employment
terminates by reason of death, (1) any Option held by the participant, which,
but for such participant's death, would have vested and become exercisable on or
prior to the first anniversary of such termination, shall become fully
exercisable and (2) any Option exercisable at the time of such termination may
thereafter be exercised by the participant's legal representative or legatee for
a period of 12 months from the date of death or until the Expiration Date, if
earlier.
(ii) Termination Due to Disability. If the participant's employment
terminates by reason of Disability (as defined in Section 22(c)(3) of the Code),
(1) any Option held by the participant, which, but for such participant's
Disability, would have vested and become exercisable on or prior to the first
anniversary of such termination, shall become fully exercisable and (2) any
Option exercisbale at the time of such termination may thereafter be exercised
by the participant for a period of 12 months from the date of termination or
until the Expiration Date, if earlier. The death of the participant during the
12-month period provided in this Section 5(c)(ii) shall extend such period for
another 12 months from the date of death or until the Expiration Date, if
earlier.
(iii) Termination Due to Retirement. Any Stock Option held by an
optionee whose employment by the Company and its Subsidiaries is terminated by
reason of Retirement shall remain outstanding and subject to all of the terms
and conditions of the Award agreement as though such optionee's employment had
not ceased by reason of such Retirement.
(iv) Determination of Reason. The Administrator's determination of the
reason for termination of the participant's employment shall be conclusive and
binding on the participant and his or her representatives or legatees.
SECTION 6. RESTRICTED STOCK AWARDS
(a) Nature of Restricted Stock Awards. A Restricted Stock Award is an Award
pursuant to which the Company may, in its sole discretion, grant or sell, at
such purchase price as determined by the Administrator, in its sole discretion,
shares of Stock subject to such restrictions and conditions as the Administrator
may determine at the time of grant ("Restricted Stock"), which purchase price
shall be payable in cash or other form of consideration acceptable to the
Administrator. Conditions may be based on continuing employment (or other
service relationship) and/or achievement of pre-established performance goals
and objectives. The terms and conditions of each such agreement shall be
determined by the Administrator, and such terms and conditions may differ among
individual Awards and participants.
(b) Rights as a Stockholder. Upon execution of a written instrument setting
forth the Restricted Stock Award and payment of any applicable purchase price, a
participant shall have the rights of a stockholder with respect to the voting of
the Restricted Stock, subject to such conditions contained in the written
instrument evidencing the Restricted Stock Award. Unless
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the Administrator shall otherwise determine, certificates evidencing the
Restricted Stock shall remain in the possession of the Company until such
Restricted Stock is vested as provided in Section 6(d) below, and the
participant shall be required, as a condition of the grant, to deliver to the
Company a stock power endorsed in blank.
(c) Restrictions. Restricted Stock may not be sold, assigned, transferred,
pledged or otherwise encumbered or disposed of except as specifically provided
herein or in the Restricted Stock Award agreement. Except as may otherwise be
provided by the Administrator either in the Award agreement or, subject to
Section 10 below, in writing after the Award agreement is issued, if any, if a
participant's employment (or other service relationship) with the Company and
its Subsidiaries terminates for any reason, any Restricted Stock that has not
vested at the time of termination shall automatically and without any
requirement of notice to such participant from or other action by or on behalf
of, the Company be deemed to have been reacquired by the Company at the lesser
of its original purchase price or Fair Market Value (determined at the time of
termination) from such participant or such participant's legal representative
simultaneously with such termination of employment (or other service
relationship), and thereafter shall cease to represent any ownership of the
Company by the participant or rights of the grantee as a stockholder. Following
such deemed reacquisition of unvested Restricted Stock that are represented by
physical certificates, a participant shall surrender such certificates to the
Company upon request without consideration.
(d) Vesting of Restricted Stock. The Administrator at the time of grant
shall specify the date or dates and/or the attainment of pre-established
performance goals, objectives and other conditions on which Restricted Stock
shall become vested, subject to such further rights of the Company or its
assigns as may be specified in the instrument evidencing the Restricted Stock
Award.
(e) Waiver, Deferral and Reinvestment of Dividends. The Restricted Stock
Award agreement may require or permit the immediate payment, waiver, deferral or
investment of dividends paid on the Restricted Stock.
SECTION 7. UNRESTRICTED STOCK AWARDS
Grant or Sale of Unrestricted Stock. The Administrator may, in its sole
discretion, grant (or sell at such purchase price determined by the
Administrator) an Unrestricted Stock Award to any participant pursuant to which
such participant may receive shares of Stock free of any vesting restrictions
("Unrestricted Stock") under the Plan. Unrestricted Stock Awards may be granted
or sold as described in the preceding sentence in respect of past services or
other valid consideration, or in lieu of cash compensation due to such
participant.
SECTION 8. TAX WITHHOLDING
(a) Payment by Participant. Each participant shall, no later than the date
as of which the value of an Award or of any Stock or other amounts received
thereunder first becomes includable in the gross income of the participant for
Federal income tax purposes, pay to the
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Company, or make arrangements satisfactory to the Administrator regarding
payment of, any Federal, state, or local taxes of any kind required by law to be
withheld with respect to such income. The Company and its Subsidiaries shall, to
the extent permitted by law, have the right to deduct any such taxes from any
payment of any kind otherwise due to the participant. The Company's obligation
to deliver stock certificates to any participant is subject to and conditioned
on tax obligations being satisfied by the participant.
(b) Payment in Stock. Subject to approval by the Administrator, a
participant may elect to have the minimum required tax withholding obligation
satisfied, in whole or in part, by (i) authorizing the Company to withhold from
shares of Stock to be issued pursuant to any Award a number of shares with an
aggregate Fair Market Value (as of the date the withholding is effected) that
would satisfy the withholding amount due, or (ii) transferring to the Company
shares of Stock owned by the participant with a minimum aggregate Fair Market
Value (as of the date the withholding is effected) that would satisfy the
minimum withholding amount due.
SECTION 9. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer to the employment of the Company from a Subsidiary or from
the Company to a Subsidiary, or from one Subsidiary to another; or
(b) an approved leave of absence for military service or sickness, or for
any other purpose approved by the Company, if the employee's right to
re-employment is guaranteed either by a statute or by contract or under the
policy pursuant to which the leave of absence was granted or if the
Administrator otherwise so provides in writing.
SECTION 10. AMENDMENTS AND TERMINATION
The Board may, at any time, amend or discontinue the Plan and the
Administrator may, at any time, amend or cancel any outstanding Award for the
purpose of satisfying changes in law or for any other lawful purpose, but no
such action shall adversely affect rights under any outstanding Award without
the holder's consent. The Administrator may provide substitute Awards at the
same or reduced exercise or purchase price or with no exercise or purchase price
in a manner not inconsistent with the terms of the Plan, but such price, if any,
must satisfy the requirements which would apply to the substitute or amended
Award if it were then initially granted under this Plan, but no such action
shall adversely affect rights under any outstanding Award without the holder's
consent. If and to the extent determined by the Administrator to be required by
the Code to ensure that Incentive Stock Options granted under the Plan are
qualified under Section 422 of the Code or to ensure that compensation earned
under Stock Options qualifies as performance-based compensation under Section
162(m) of the Code, if and to the extent intended to so qualify, Plan amendments
shall be subject to approval by the Company stockholders entitled to vote at a
meeting of stockholders. Nothing in this Section 10 shall limit the Board's
authority to take any action permitted pursuant to Section 3(c).
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SECTION 11. STATUS OF PLAN
With respect to the portion of any Award that has not been exercised and
any payments in cash, Stock or other consideration not received by a
participant, a participant shall have no rights greater than those of a general
creditor of the Company unless the Administrator shall otherwise expressly
determine in connection with any Award or Awards. In its sole discretion, the
Administrator may authorize the creation of trusts or other arrangements to meet
the Company's obligations to deliver Stock or make payments with respect to
Awards hereunder, provided that the existence of such trusts or other
arrangements is consistent with the foregoing sentence.
SECTION 12. GENERAL PROVISIONS
(a) No Distribution; Compliance with Legal Requirements. The Administrator
may require each person acquiring Stock pursuant to an Award to represent to and
agree with the Company in writing that such person is acquiring the shares
without a view to distribution thereof.
No shares of Stock shall be issued pursuant to an Award until all
applicable securities law and other legal and stock exchange or similar
requirements have been satisfied. The Administrator may require the placing of
such stop-orders and restrictive legends on certificates for Stock and Awards as
it deems appropriate.
(b) Delivery of Stock Certificates. Stock certificates to participants
under this Plan shall be deemed delivered for all purposes when the Company or a
stock transfer agent of the Company shall have mailed such certificates in the
United States mail, addressed to the participant, at the participant's last
known address on file with the Company.
(c) Other Compensation Arrangements; No Employment Rights. Nothing
contained in this Plan shall prevent the Board from adopting other or additional
compensation arrangements, including trusts, and such arrangements may be either
generally applicable or applicable only in specific cases. The adoption of this
Plan and the grant of Awards do not confer upon any employee any right to
continued employment with the Company or any Subsidiary.
(d) Trading Restrictions. Option exercises and other Awards under the Plan
shall be subject to such Company's trading restrictions, terms and conditions,
including, without limitation, the restrictions, terms and conditions set forth
in a Stock Restriction Agreement executed and delivered pursuant to Section 2
hereof, as may be established or required by the Administrator, or in accordance
with policies set by the Administrator, from time to time.
(e) Loans to Participants. The Company shall have the authority to make
loans to participants hereunder (including to facilitate the purchase of shares)
and shall further have the authority to issue shares for promissory notes
hereunder.
(f) Designation of Beneficiary. Each participant to whom an Award has been
made under the Plan may designate a beneficiary or beneficiaries to exercise any
Award or receive any
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payment under any Award payable on or after the participant's death. Any such
designation shall be on a form provided for that purpose by the Administrator
and shall not be effective until received by the Administrator. If no
beneficiary has been designated by a deceased participant, or if the designated
beneficiaries have predeceased the participant, the beneficiary shall be the
participant's estate.
SECTION 13. EFFECTIVE DATE OF PLAN
This Plan shall become effective upon approval by the stockholders in
accordance with applicable law. Subject to such approval by the stockholders and
to the requirement that no Stock may be issued hereunder prior to such approval,
Stock Options and other Awards may be granted hereunder on and after adoption of
this Plan by the Board.
SECTION 14. GOVERNING LAW
This Plan and all Awards and actions taken thereunder shall be governed by,
and construed in accordance with, the laws of the State of Delaware, applied
without regard to conflict of law principles.
DATE APPROVED BY BOARD OF DIRECTORS: April 25, 2007
DATE APPROVED BY STOCKHOLDERS April 25, 2007
AS AMENDED ON JUNE 4, 2007
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EXHIBIT A
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