Exhibit 10.1
HALOZYME THERAPEAUTICS, INC.
2005 OUTSIDE DIRECTORS' STOCK PLAN
1. ESTABLISHMENT, PURPOSE AND TERM OF PLAN.
1.1 ESTABLISHMENT. The Halozyme Therapeautics, Inc. 2005 Outside
Directors' Stock Plan (the "PLAN") is adopted by the Board of Directors as of
June 29, 2005 (the "EFFECTIVE DATE").
1.2 PURPOSE. The purpose of the Plan is to advance the interests of
the Company and its stockholders by providing an incentive to attract, retain
and reward persons performing services as Outside Directors of the Company and
by motivating such persons to contribute to the growth and profitability of the
Company. The Plan seeks to achieve this purpose by providing Awards in the form
of Options and Restricted Stock.
1.3 TERM OF PLAN. The Plan shall continue in effect until terminated
by the Board or the date on which all of the shares of Stock available for
issuance under the Plan have been issued and all restrictions on such shares
under the terms of the Plan and the agreements evidencing Awards granted under
the Plan have lapsed. However, all Awards shall be granted, if at all, within
ten (10) years from the Effective Date.
2. DEFINITIONS AND CONSTRUCTION.
2.1 DEFINITIONS. Whenever used herein, the following terms shall
have their respective meanings set forth below:
(a) "AWARD" means any Option or Restricted Stock granted under
the Plan.
(b) "AWARD AGREEMENT" means a written agreement between the
Company and a Participant setting forth the terms, conditions and restrictions
of the Award granted to the Participant. An Award Agreement may be an "Option
Agreement" or a "Restricted Stock Agreement."
(c) "BOARD" means the Board of Directors of the Company. If
one or more Committees have been appointed by the Board to administer the Plan,
"BOARD" also means such Committee(s).
(d) "CHANGE IN CONTROL" means, unless such term or an
equivalent term is otherwise defined with respect to an Award by the
Participant's Award Agreement or written contract of employment or service, the
occurrence of any of the following:
(i) an Ownership Change Event or a series of related
Ownership Change Events (collectively, a "TRANSACTION") in which the
shareholders of the
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Company immediately before the Transaction do not retain immediately after the
Transaction, in substantially the same proportions as their ownership of shares
of the Company's voting stock immediately before the Transaction, direct or
indirect beneficial ownership of more than fifty percent (50%) of the total
combined voting power of the outstanding voting securities of the Company or, in
the case of an Ownership Change Event described in Section 2.1(p)(iii), the
entity to which the assets of the Company were transferred (the "TRANSFEREE"),
as the case may be; or
(ii) the liquidation or dissolution of the Company.
For purposes of the preceding sentence, indirect beneficial ownership shall
include, without limitation, an interest resulting from ownership of the voting
securities of one or more corporations or other business entities which own the
Company or the Transferee, as the case may be, either directly or through one or
more subsidiary corporations or other business entities. The Board shall have
the right to determine whether multiple sales or exchanges of the voting
securities of the Company or multiple Ownership Change Events are related, and
its determination shall be final, binding and conclusive.
(e) "CODE" means the Internal Revenue Code of 1986, as
amended, and any applicable regulations promulgated thereunder.
(f) "COMMITTEE" means the compensation committee or other
committee of one or members of the Board duly appointed to administer the Plan
and having such powers as shall be specified by the Board. Unless the powers of
the Committee have been specifically limited, the Committee shall have all of
the powers of the Board granted herein, including, without limitation, the power
to amend or terminate the Plan at any time, subject to the terms of the Plan and
any applicable limitations imposed by law.
(g) "COMPANY" means Halozyme Therapeautics, Inc. a Nevada
corporation, or any successor corporation thereto.
(h) "CONSULTANT" means a person engaged to provide consulting
or advisory services (other than as an Employee or a Director) to a
Participating Company.
(i) "DIRECTOR" means a member of the Board or of the board of
directors of any other Parent Corporation or Subsidiary Corporation.
(j) "DISABILITY" means the permanent and total disability of
the Participant within the meaning of Section 22(e)(3) of the Code.
(k) "EMPLOYEE" means any person treated as an employee
(including an officer of the Company or a Director who is also treated as an
employee) in the records of a Participating Company; provided, however, that
neither service as a Director nor payment of a director's fee shall be
sufficient to constitute employment for purposes of the Plan.
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(l) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
(m) "FAIR MARKET VALUE" means, as of any date, the value of a
share of Stock or other property as determined by the Board, in its discretion,
or by the Company, in its discretion, if such determination is expressly
allocated to the Company herein, subject to the following:
(i) If, on such date, the Stock is listed on a national
or regional securities exchange or market system, the Fair Market Value of a
share of Stock shall be the closing price of a share of Stock (or the closing
bid price of a share of Stock if the Stock is so quoted instead) as quoted on
the American Stock Exchange or such other national or regional securities
exchange or market system constituting the primary market for the Stock, as
reported in The Wall Street Journal or such other source as the Company deems
reliable. If the relevant date does not fall on a day on which the Stock has
traded on such securities exchange or market system, the date on which the Fair
Market Value shall be established shall be the last day on which the Stock was
so traded prior to the relevant date, or such other appropriate day as shall be
determined by the Board, in its discretion.
(ii) Notwithstanding the foregoing, the Board may, in
its discretion, determine the Fair Market Value on the basis of the opening,
closing, high, low or average sale price of a share of Stock or the actual sale
price of a share of Stock received by a Participant, on such date, the preceding
trading day or the next succeeding trading day or an average determined over a
period of trading days. The Board may vary its method of determination of the
Fair Market Value as provided in this Section for different purposes under the
Plan.
(iii) If, on such date, the Stock is not listed on a
national or regional securities exchange or market system, the Fair Market Value
of a share of Stock shall be as determined by the Board in good faith without
regard to any restriction other than a restriction which, by its terms, will
never lapse.
(n) "OPTION" means a right to purchase Stock (subject to
adjustment as provided in Section 4.2) pursuant to the terms and conditions of
the Plan. Each Option shall be a nonstatutory stock option; that is, an option
not intended to qualify as an incentive stock option within the meaning of
Section 422(b) of the Code.
(o) "OUTSIDE DIRECTOR" means a Director of the Company who is
not an Employee or Consultant and who has not been an Employee or Consultant
during the preceding twelve months.
(p) "OWNERSHIP CHANGE EVENT" means the occurrence of any of
the following with respect to the Company: (i) the direct or indirect sale or
exchange in a single or series of related transactions by the shareholders of
the Company of more than fifty percent (50%) of the voting stock of the Company;
(ii) a merger or consolidation in which the Company
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is a party; or (iii) the sale, exchange, or transfer of all or substantially all
of the assets of the Company.
(q) "PARENT CORPORATION" means any present or future "parent
corporation" of the Company, as defined in Section 424(e) of the Code.
(r) "PARTICIPANT" means a person who has been granted one or
more Awards.
(s) "PARTICIPATING COMPANY" means the Company or any Parent
Corporation or Subsidiary Corporation.
(t) "PARTICIPATING COMPANY GROUP" means, at any point in time,
all corporations collectively which are then Participating Companies.
(u) "RESTRICTED STOCK" means Stock granted to a Participant
pursuant to Section 7 of the Plan.
(v) "RULE 16b-3" means Rule 16b-3 under the Exchange Act, as
amended from time to time, or any successor rule or regulation.
(w) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
(x) "SERVICE" means a Participant's employment or service with
the Participating Company Group, whether in the capacity of an Employee, a
Director, or a Consultant. A Participant's Service shall not be deemed to have
terminated merely because of a change in the capacity in which the Participant
renders Service to the Participating Company Group or a change in the
Participating Company for which the Participant renders such Service, provided
that there is no interruption or termination of the Participant's Service.
Furthermore, a Participant's Service shall not be deemed to have terminated if
the Participant takes any military leave, sick leave, or other bona fide leave
of absence approved by the Company. Notwithstanding the foregoing, unless
otherwise designated by the Company or required by law, a leave of absence shall
not be treated as Service for purposes of determining vesting under a
Participant's Award Agreement. A Participant's Service shall be deemed to have
terminated either upon an actual termination of Service or upon the corporation
for which the Participant performs Service ceasing to be a Participating
Company. Subject to the foregoing, the Company, in its discretion, shall
determine whether a Participant's Service has terminated and the effective date
of such termination.
(y) "STOCK" means the common stock of the Company, as adjusted
from time to time in accordance with Section 4.2.
(z) "SUBSIDIARY CORPORATION" means any present or future
"subsidiary corporation" of the Company, as defined in Section 424(f) of the
Code.
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(aa) "VESTING CONDITIONS" mean those conditions established in
accordance with Section 7 of the Plan prior to the satisfaction of which shares
of Restricted Stock remain subject to forfeiture to the Company upon the
Participant's termination of Service.
2.2 CONSTRUCTION. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation of any
provision of the Plan. Except when otherwise indicated by the context, the
singular shall include the plural and the plural shall include the singular. Use
of the term "or" is not intended to be exclusive, unless the context clearly
requires otherwise.
3. ADMINISTRATION.
3.1 ADMINISTRATION BY THE BOARD. The Plan shall be administered by
the Board. At any time that any class of equity security of the Company is
registered pursuant to Section 12 of the Exchange Act, the Plan shall be
administered in compliance with the requirements, if any, of Rule 16b-3. All
questions of interpretation of the Plan or of any Award shall be determined by
the Board, and such determinations shall be final and binding upon all persons
having an interest in the Plan or such Award.
3.2 AUTHORITY OF OFFICERS. Any officer of the Company shall have the
authority to act on behalf of the Company with respect to any matter, right,
obligation, determination or election which is the responsibility of or which is
allocated to the Company herein, provided the officer has apparent authority
with respect to such matter, right, obligation, determination or election.
3.3 POWERS OF THE BOARD. In addition to any other powers set forth
in the Plan and subject to the provisions of the Plan, the Board shall have the
full and final power and authority, in its discretion:
(a) to determine the Fair Market Value of shares of Stock or
other property;
(b) to determine the terms, conditions and restrictions
applicable to each Award (which need not be identical) and any shares acquired
pursuant thereto, including, without limitation, (i) the exercise or purchase
price of shares purchased pursuant to any Award, (ii) the method of payment for
shares purchased pursuant to any Award, (iii) the method for satisfaction of any
tax withholding obligation arising in connection with Award, including by the
withholding or delivery of shares of Stock, (iv) the timing, terms and
conditions of the exercisability or vesting of any Award or any shares acquired
pursuant thereto, (v) the time of the expiration of any Award, (vi) the effect
of the Participant's termination of Service on any of the foregoing, and (vii)
all other terms, conditions and restrictions applicable to any Award or shares
acquired pursuant thereto not inconsistent with the terms of the Plan;
(c) to approve one or more forms of Award Agreement;
(d) to amend, modify, extend, cancel or renew any Award or to
waive any restrictions or conditions applicable to any Award or any shares
acquired pursuant thereto;
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(e) to accelerate, continue, extend or defer the
exercisability or vesting of any Award or any shares acquired pursuant thereto,
including with respect to the period following a Participant's termination of
Service;
(f) to prescribe, amend or rescind rules, guidelines and
policies relating to the plan, or to adopt sub-plans or supplements to, or
alternative versions of, the Plan, including, without limitation, as the Board
deems necessary or desirable to comply with the laws or regulations of or to
accommodate the tax policy, accounting principles or custom of, foreign
jurisdictions whose citizens may be granted Awards; and
(g) to correct any defect, supply any omission or reconcile
any inconsistency in the Plan or any Award Agreement and to make all other
determinations and take such other actions with respect to the Plan or any Award
as the Board may deem advisable to the extent not inconsistent with the
provisions of the Plan or applicable law.
3.4 INDEMNIFICATION. In addition to such other rights of
indemnification as they may have as members of the Board or Officers or
employees of the Company, members of the Board and any Officers or employees of
the Company to whom authority to act for the Board or the Company is delegated
shall be indemnified by the Company against all reasonable expenses, including
attorneys' fees, actually and necessarily incurred in connection with the
defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan, or any right
granted hereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Company) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such person is liable for gross
negligence, bad faith or intentional misconduct in duties; provided, however,
that within sixty (60) days after the institution of such action, suit or
proceeding, such person shall offer to the Company, in writing, the opportunity
at its own expense to handle and defend the same.
4. SHARES SUBJECT TO PLAN.
4.1 MAXIMUM NUMBER OF SHARES ISSUABLE. Subject to adjustment as
provided in Section 4.2, the maximum aggregate number of shares of Stock that
may be issued under the Plan shall be five hundred thousand (500,000) and shall
consist of authorized but unissued or reacquired shares of Stock or any
combination thereof. If an outstanding Award for any reason expires or is
terminated or canceled without having been exercised or settled in full, or if
shares of Stock acquired pursuant to an Award subject to forfeiture are
forfeited, the shares of Stock allocable to the unexercised portion of such
Award or such forfeiture shall again be available for issuance under the Plan.
Shares of Stock shall not be deemed to have been issued pursuant to the Plan to
the extent such shares are withheld in satisfaction of tax withholding
obligations pursuant to Section 11. If the exercise price of an Option is paid
by tender to the Company, or attestation to the ownership, of shares of Stock
owned by the Participant, the number of shares available for issuance under the
Plan shall be reduced by the net number of shares for which the Option is
exercised.
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4.2 ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. Subject to any
required action by the stockholders of the Company, in the event of any change
in the Stock effected without receipt of consideration by the Company, whether
through merger, consolidation, reorganization, reincorporation,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split, split-up, split-off, spin-off, combination of shares, exchange of shares,
or similar change in the capital structure of the Company, or in the event of
payment of a dividend or distribution to the stockholders of the Company in a
form other than Stock (excepting normal cash dividends) that has a material
effect on the Fair Market Value of shares of Stock, appropriate adjustments
shall be made in the number and kind of shares subject to the Plan and to any
outstanding Awards, and in the exercise per share under any outstanding Award in
order to prevent dilution or enlargement of Participants' rights under the Plan.
For purposes of the foregoing, conversion of any convertible securities of the
Company shall not be treated as "effected without receipt of consideration by
the Company." Any fractional share resulting from an adjustment pursuant to this
Section 4.2 shall be rounded down to the nearest whole number, and in no event
may the exercise or purchase price under any Award be decreased to an amount
less than the par value, if any, of the stock subject to such Award. The
adjustments determined by the Board pursuant to this Section 4.2 shall be final,
binding and conclusive.
5. ELIGIBILITY.
Awards shall be granted only to those persons who, at the time of
grant, are serving as Outside Directors.
6. TERMS AND CONDITIONS OF OPTIONS.
Options shall be evidenced by Award Agreements specifying the number
of shares of Stock subject to the Award, in such form as the Board shall from
time to time establish. No Option Award or purported Option Award shall be a
valid and binding obligation of the Company unless evidenced by a fully executed
Award Agreement. Award Agreements evidencing Options may incorporate all or any
of the terms of the Plan by reference and shall comply with and be subject to
the following terms and conditions:
6.1 AUTOMATIC GRANT. Subject to the execution by an Outside Director
of an appropriate Award Agreement, Options shall be granted automatically and
without further action of the Board, as follows:
(a) INITIAL OPTION. Each person who first becomes an Outside
Director on or after the Effective Date shall be granted, on the date such
person first becomes an Outside Director, an Option to purchase ten thousand
(10,000) shares of Stock (an "INITIAL OPTION").
(b) ANNUAL OPTION. Immediately following each annual meeting
of the stockholders of the Company which occurs on or after the Effective Date
(an "ANNUAL MEETING"), each Outside Director shall automatically be granted an
Option to purchase ten thousand (10,000) shares of Stock (an "ANNUAL
OPTION"); provided, however, that an Outside Director
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who has not served on the Board for six (6) full months prior to the date of
such Board meeting shall not be granted an Annual Option; provided, further,
that no Annual Option shall be granted under the Plan prior to the Company
receiving stockholder approval of the Plan.
(c) RIGHT TO DECLINE OPTION. Notwithstanding the foregoing,
any person may elect not to receive an Option by delivering written notice of
such election to the Board no later than the day prior to the date such Option
would otherwise be granted. A person so declining an Option shall receive no
payment or other consideration in lieu of such declined Option. A person who has
declined an Option may revoke such election by delivering written notice of such
revocation to the Board no later than the day prior to the date such Option
would be granted pursuant to Section 6.1(a) or (b), as the case may be.
6.2 EXERCISE PRICE. The exercise price per share of Stock subject to
an Option shall be the Fair Market Value of a share of Stock on the date of
grant of the Option. Notwithstanding the foregoing, an Option may be granted
with an exercise price lower than the minimum exercise price set forth above if
such Option is granted pursuant to an assumption or substitution for another
option in a manner qualifying under the provisions of Section 424(a) of the
Code.
6.3 EXERCISABILITY AND TERM OF OPTIONS. Except as otherwise provided
in the Plan or in the Award Agreement evidencing an Option and provided that the
Participant's Service has not terminated prior to the relevant date, each Option
shall vest and become exercisable as follows:
(a) INITIAL OPTION. The Initial Option shall vest and become
exercisable with respect to the total number of shares subject thereto on the
later of: (a) the six month anniversary of the date of grant or (b) the date of
the first Annual Meeting following the grant of the Initial Option, provided,
however, that the terms of any Initial Option granted prior to stockholder
approval of the Plan shall provide that such Initial Option shall not become
exercisable until the Company receives stockholder approval of the Plan.
(b) ANNUAL OPTION. The Annual Option shall vest and become
exercisable with respect to the total number of shares subject thereto on the
date immediately preceding the date of the Annual Meeting following the date of
grant.
(c) TERM OF OPTION. Unless earlier terminated in accordance
with the terms of the Plan or the Award Agreement evidencing an Option, each
Option shall terminate and cease to be exercisable on the tenth (10th)
anniversary of the date of grant of the Option.
6.4 PAYMENT OF EXERCISE PRICE.
(a) FORMS OF CONSIDERATION AUTHORIZED. Except as otherwise
provided below, payment of the exercise price for the number of shares of Stock
being purchased pursuant to any Option shall be made (i) in cash, by check or
cash equivalent, (ii) by tender to the Company, or attestation to the ownership,
of shares of Stock owned by the Participant having a Fair Market Value not less
than the exercise price, (iii) by delivery of a properly executed
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notice of exercise together with irrevocable instructions to a broker providing
for the assignment to the Company of the proceeds of a sale or loan with respect
to some or all of the shares being acquired upon the exercise of the Option
(including, without limitation, through an exercise complying with the
provisions of Regulation T as promulgated from time to time by the Board of
Governors of the Federal Reserve System) (a "CASHLESS EXERCISE"), (iv) by such
other consideration as may be approved by the Board from time to time to the
extent permitted by applicable law, or (v) by any combination thereof. The Board
may at any time or from time to time, by approval of or by amendment to the
standard forms of Award Agreement described in Section 8, or by other means,
grant Options which do not permit all of the foregoing forms of consideration to
be used in payment of the exercise price or which otherwise restrict one or more
forms of consideration.
(b) LIMITATIONS ON FORMS OF CONSIDERATION.
(i) TENDER OF STOCK. Notwithstanding the foregoing, an
Option may not be exercised by tender to the Company, or attestation to the
ownership, of shares of Stock to the extent such tender or attestation would
constitute a violation of the provisions of any law, regulation or agreement
restricting the redemption of the Company's stock. Unless otherwise provided by
the Board, an Option may not be exercised by tender to the Company, or
attestation to the ownership, of shares of Stock unless such shares either have
been owned by the Participant for more than six (6) months (and not used for
another Option exercise by attestation during such period) or were not acquired,
directly or indirectly, from the Company.
(ii) CASHLESS EXERCISE. The Company reserves, at any and
all times, the right, in the Company's sole and absolute discretion, to
establish, decline to approve or terminate any program or procedures for the
exercise of Options by means of a Cashless Exercise, including with respect to
one or more Participants specified by the Company notwithstanding that such
program or procedures may be available to other Participants.
6.5 EFFECT OF TERMINATION OF SERVICE.
(a) OPTION EXERCISABILITY. Subject to earlier termination of
the Option as otherwise provided herein and unless otherwise provided by the
Board in the grant of an Option and set forth in the Award Agreement, an Option
shall be exercisable after a Participant's termination of Service only during
the applicable time period determined in accordance with this Section 6.5 and
thereafter shall terminate:
(i) DISABILITY. If the Participant's Service terminates
because of the Disability of the Participant, the Option, to the extent
unexercised and exercisable on the date on which the Participant's Service
terminated, may be exercised by the Participant (or the Participant's guardian
or legal representative) at any time prior to the expiration of twelve (12)
months after the date on which the Participant's Service terminated, but in any
event no later than the date of expiration of the Option's term as set forth in
the Award Agreement evidencing such Option (the "OPTION EXPIRATION DATE").
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(ii) DEATH. If the Participant's Service terminates
because of the death of the Participant, the Option, to the extent unexercised
and exercisable on the date on which the Participant's Service terminated, may
be exercised by the Participant's legal representative or other person who
acquired the right to exercise the Option by reason of the Participant's death
at any time prior to the expiration of twelve (12) months after the date on
which the Participant's Service terminated, but in any event no later than the
Option Expiration Date. The Participant's Service shall be deemed to have
terminated on account of death if the Participant dies within three (3) months
after the Participant's termination of Service.
(iii) OTHER TERMINATION OF SERVICE. If the Participant's
Service terminates for any reason, except Disability or death, the Option, to
the extent unexercised and exercisable by the Participant on the date on which
the Participant's Service terminated, may be exercised by the Participant at any
time prior to the expiration of three (3) months after the date on which the
Participant's Service terminated, but in any event no later than the Option
Expiration Date.
(b) EXTENSION IF EXERCISE PREVENTED BY LAW. Notwithstanding
the foregoing, if the exercise of an Option within the applicable time periods
set forth in Section 6.5(a) is prevented by the provisions of Section 10 below,
the Option shall remain exercisable until three (3) months after the date the
Participant is notified by the Company that the Option is exercisable, but in
any event no later than the Option Expiration Date.
(c) EXTENSION IF PARTICIPANT SUBJECT TO SECTION 16(b).
Notwithstanding the foregoing, if a sale within the applicable time periods set
forth in Section 6.5(a) of shares acquired upon the exercise of the Option would
subject the Participant to suit under Section 16(b) of the Exchange Act, the
Option shall remain exercisable until the earliest to occur of (i) the tenth
(10th) day following the date on which a sale of such shares by the Participant
would no longer be subject to such suit, (ii) the one hundred and ninetieth
(190th) day after the Participant's termination of Service, or (iii) the Option
Expiration Date.
6.6 TRANSFERABILITY OF OPTIONS. During the lifetime of the
Participant, an Option shall be exercisable only by the Participant or the
Participant's guardian or legal representative. Prior to the issuance of shares
of Stock upon the exercise of an Option, the Option shall not be subject in any
manner to anticipation, alienation, sale, exchange, transfer, assignment,
pledge, encumbrance, or garnishment by creditors of the Participant or the
Participant's beneficiary, except transfer by will or by the laws of descent and
distribution. Notwithstanding the foregoing, to the extent permitted by the
Board, in its discretion, and set forth in the Award Agreement evidencing such
Option, an Option shall be assignable or transferable subject to the applicable
limitations, if any, described in the General Instructions to Form S-8
Registration Statement under the Securities Act.
7. TERMS AND CONDITIONS OF RESTRICTED STOCK AWARDS.
Restricted Stock Awards shall be evidenced by Award Agreements
specifying the number of shares of Stock subject to the Award, in such form as
the Board shall from time to time establish. No Restricted Stock Award or
purported Restricted Stock Award shall be a valid
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and binding obligation of the Company unless evidenced by a fully executed Award
Agreement. Award Agreements evidencing Restricted Stock may incorporate all or
any of the terms of the Plan by reference and shall comply with and be subject
to the following terms and conditions:
7.1 AUTOMATIC GRANT. Subject to the execution by an Outside Director
of an appropriate Award Agreement, Restricted Stock Awards shall be granted
automatically and without further action of the Board, as follows:
(a) INITIAL RESTRICTED STOCK AWARD. Each person who first
becomes an Outside Director on or after the Effective Date shall be granted on
the date such person first becomes an Outside Director a Restricted Stock Award
for fifteen thousand (15,000) shares of Stock (an "INITIAL STOCK AWARD");
provided, however, that any person who first becomes an Outside Director prior
to the stockholders of the Company approving the Plan will not be granted an
Initial Stock Award until the date that the Company receives such stockholder
approval.
(b) ANNUAL RESTRICTED STOCK AWARD. Immediately after any
Annual Meeting following the Effective Date, each Outside Director shall
automatically be granted a Restricted Stock Award for fifteen thousand (15,000)
shares of Stock (an "ANNUAL STOCK AWARD"); provided, however, that an Outside
Director who has not served on the Board for six (6) full months prior to the
date of such Board meeting shall not be granted an Annual Stock Award; provided,
further, that no Annual Stock Award shall be granted under the Plan prior to the
Company receiving stockholder approval of the Plan.
(c) RIGHT TO DECLINE RESTRICTED STOCK AWARD. Notwithstanding
the foregoing, any person may elect not to receive a Restricted Stock Award by
delivering written notice of such election to the Board no later than the day
prior to the date such Restricted Stock would otherwise be granted. A person so
declining a Restricted Stock Award shall receive no payment or other
consideration in lieu of such declined Restricted Stock. A person who has
declined a Restricted Stock Award may revoke such election by delivering written
notice of such revocation to the Board no later than the day prior to the date
such Restricted Stock would be granted pursuant to Section 7.1(a) or (b), as the
case may be.
7.2 PURCHASE PRICE. No monetary payment (other than applicable tax
withholding, if any) shall be required as a condition of receiving shares of
Restricted Stock, the consideration for which shall be services actually
rendered to a Participating Company or for its benefit. Notwithstanding the
foregoing, if required by applicable law, the Participant shall furnish
consideration in the form of cash or past services rendered to a Participating
Company or for its benefit having a value not less than the par value of the
shares of Restricted Stock subject to such Award.
7.3 VESTING CONDITIONS AND RESTRICTIONS ON TRANSFER. Except as
otherwise provided in the Plan or in the Award Agreement evidencing a Restricted
Stock Award and provided that the Participant's Service has not terminated prior
to the relevant date, each Restricted Stock Award shall be subject to the
Vesting Conditions as follows:
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(a) INITIAL STOCK AWARD. The Initial Stock Award shall vest
and no longer be subject to forfeiture with respect to the total number of
shares subject thereto on the later of: (a) the first day that Participant may
trade Company stock in compliance with the Company's Insider Trading Policy that
occurs after the six month anniversary of the date of grant or (b) the first day
that Participant may trade Company stock in compliance with the Company's
Insider Trading Policy that occurs after the date of the first Annual Meeting
following the grant of the Initial Stock Award; provided, however, that if the
Initial Stock Award for an Outside Director is delayed pending stockholder
approval of the Plan pursuant to Section 7.1(a) above, such Initial Stock Award
shall vest and no longer be subject to forfeiture with respect to the total
number of shares subject thereto on the later of: (y) the first day that
Participant may trade Company stock in compliance with the Company's Insider
Trading Policy that occurs after the six month anniversary of the Outside
Director joining the Board or (z) the first day that Participant may trade
Company stock in compliance with the Company's Insider Trading Policy that
occurs after the date of the first Annual Meeting following the date that the
Outside Director joined the Board.
(b) ANNUAL STOCK AWARD: The Annual Stock Award shall vest and
no longer be subject to forfeiture with respect to the total number of shares
subject thereto on the first day that Participant may trade Company stock in
compliance with the Company's Insider Trading Policy that occurs after the date
immediately preceding the date of the Annual Meeting following the date of
grant.
At any time the shares acquired pursuant to a Restricted Stock Award remain
subject to Vesting Conditions, such shares may not be sold, exchanged,
transferred, pledged, assigned or otherwise disposed of other than pursuant to
an Ownership Change Event or as provided in Section 7.6 below. Upon request by
the Company, each Participant shall execute any agreement evidencing such
transfer restrictions prior to the receipt of shares of Restricted Stock
hereunder and shall promptly present to the Company any and all certificates
representing shares of Restricted Stock acquired hereunder for the placement on
such certificates of appropriate legends evidencing any such transfer
restrictions.
7.4 VOTING RIGHTS; DIVIDENDS AND DISTRIBUTIONS. Except as provided
in this Section, Section 7.3 and any Award Agreement, during the period in which
shares subject to a Restricted Stock Award are subject to Vesting Conditions,
the Participant shall have all of the rights of a stockholder of the Company
holding shares of Stock, including the right to vote such shares and to receive
all dividends and other distributions paid with respect to such shares. However,
in the event of a dividend or distribution paid in shares of Stock or any other
adjustment made upon a change in the capital structure of the Company as
described in Section 4.2, then any and all new, substituted or additional
securities or other property (other than normal cash dividends) to which the
Participant is entitled by reason of the Participant's Restricted Stock Award
shall be immediately subject to the same Vesting Conditions as the shares
subject to the Restricted Stock Award with respect to which such dividends or
distributions were paid or adjustments were made.
7.5 EFFECT OF TERMINATION OF SERVICE. Unless otherwise provided by
the Board in the grant of a Restricted Stock Award and set forth in the Award
Agreement, if a
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Participant's Service terminates for any reason, whether voluntary or
involuntary (including the Participant's death or Disability), then the
Participant shall forfeit to the Company any shares acquired by the Participant
pursuant to a Restricted Stock Award which remain subject to Vesting Conditions
as of the date of the Participant's termination of Service.
7.6 NONTRANSFERABILITY OF RESTRICTED STOCK AWARD RIGHTS. Prior to
the issuance of shares of Stock pursuant to a Restricted Stock Award, rights to
acquire such shares shall not be subject in any manner to anticipation,
alienation, sale, exchange, transfer, assignment, pledge, encumbrance or
garnishment by creditors of the Participant or the Participant's beneficiary,
except transfer by will or the laws of descent and distribution.
8. STANDARD FORMS OF AWARD AGREEMENT.
8.1 AWARD AGREEMENT. Each Award shall comply with and be subject to
the terms and conditions set forth in the appropriate form of Award Agreement
approved by the Board and as amended from time to time. Any Award Agreement may
consist of an appropriate form of Notice of Grant and a form of Agreement
incorporated therein by reference, or such other form or forms as the Board may
approve from time to time.
8.2 AUTHORITY TO VARY TERMS. The Board shall have the authority from
time to time to vary the terms of any standard form of Award Agreement either in
connection with the grant or amendment of an individual Award or in connection
with the authorization of a new standard form or forms; provided, however, that
the terms and conditions of any such new, revised or amended standard form or
forms of Award Agreement are not inconsistent with the terms of the Plan.
9. CHANGE IN CONTROL.
9.1 EFFECT OF CHANGE IN CONTROL ON OPTIONS.
(a) ACCELERATED VESTING. Notwithstanding any other provision
of the Plan to the contrary, in the event of a Change in Control, each Option
held by a Participant whose Service has not terminated prior to the date of such
Change in Control shall become immediately exercisable and vested in full as of
such date, subject to the consummation of the Change in Control.
(b) ASSUMPTION OR SUBSTITUTION. In the event of a Change in
Control, the surviving, continuing, successor, or purchasing entity or parent
thereof, as the case may be (the "ACQUIROR"), may, without the consent of any
Participant, either assume the Company's rights and obligations under
outstanding Options or substitute for outstanding Options substantially
equivalent options for the Acquiror's stock. Any Options which are not assumed
by the Acquiror in connection with the Change in Control nor exercised as of the
time of consummation of the Change in Control shall terminate and cease to be
outstanding effective as of the time of consummation of the Change in Control.
(c) CASH-OUT OF OPTIONS. The Board may, in its sole discretion
and without the consent of any Participant, determine that, upon the occurrence
of a Change in
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Control, each or any Option outstanding immediately prior to the Change in
Control shall be canceled in exchange for a payment with respect to each vested
share of Stock subject to such canceled Option in (i) cash, (ii) stock of the
Company or of a corporation or other business entity a party to the Change in
Control, or (iii) other property which, in any such case, shall be in an amount
having a Fair Market Value equal to the excess of the Fair Market Value of the
consideration to be paid per share of Stock in the Change in Control over the
exercise price per share under such Option (the "SPREAD "). In the event such
determination is made by the Board, the Spread (reduced by applicable
withholding taxes, if any) shall be paid to Participants in respect of their
canceled Options as soon as practicable following the date of the Change in
Control.
9.2 EFFECT OF CHANGE IN CONTROL ON RESTRICTED STOCK AWARDS. The
Board may, in its discretion, provide in any Award Agreement evidencing a
Restricted Stock Award that, in the event of a Change in Control, the lapsing of
any Vesting Conditions applicable to the shares subject to the Restricted Stock
Award held by a Participant whose Service has not terminated prior to such date
shall be accelerated effective immediately prior to the consummation of the
Change in Control to such extent as specified in such Award Agreement. Any
acceleration of the lapsing of any Vesting Conditions that was permissible
solely by reason of this Section 9.2 and the provisions of such Award Agreement
shall be conditioned upon the consummation of the Change in Control.
10. COMPLIANCE WITH SECURITIES LAW.
The grant of Awards and the issuance of shares of Stock pursuant to
any Award shall be subject to compliance with all applicable requirements of
federal, state and foreign law with respect to such securities and the
requirements of any stock exchange or market system upon which the Stock may
then be listed. In addition, no Award may be exercised or shares issued pursuant
to an Award unless (i) a registration statement under the Securities Act shall
at the time of such exercise or issuance be in effect with respect to the shares
issuable pursuant to the Award or (ii) in the opinion of legal counsel to the
Company, the shares issuable pursuant to the Award may be issued in accordance
with the terms of an applicable exemption from the registration requirements of
the Securities Act. The inability of the Company to obtain from any regulatory
body having jurisdiction the authority, if any, deemed by the Company's legal
counsel to be necessary to the lawful issuance and sale of any shares hereunder
shall relieve the Company of any liability in respect of the failure to issue or
sell such shares as to which such requisite authority shall not have been
obtained. As a condition to issuance of any Stock, the Company may require the
Participant to satisfy any qualifications that may be necessary or appropriate,
to evidence compliance with any applicable law or regulation and to make any
representation or warranty with respect thereto as may be requested by the
Company.
11. TAX WITHHOLDING.
11.1 TAX WITHHOLDING IN GENERAL. The Company shall have the right to
deduct from any and all payments made under the Plan, or to require the
Participant, through payroll withholding, cash payment or otherwise, including
by means of a Cashless Exercise of an Option, to make adequate provision for,
the federal, state, local and foreign taxes, if any,
14
required by law to be withheld by the Participating Company Group with respect
to an Award or the shares acquired pursuant thereto. The Company shall have no
obligation to deliver shares of Stock, to release shares of Stock from an escrow
established pursuant to an Award Agreement, or to make any payment in cash under
the Plan until the Participating Company Group's tax withholding obligations
have been satisfied by the Participant.
11.2 WITHHOLDING IN SHARES. The Company shall have the right, but
not the obligation, to deduct from the shares of Stock issuable to a Participant
upon the exercise or settlement of an Award, or to accept from the Participant
the tender of, a number of whole shares of Stock having a Fair Market Value, as
determined by the Company, equal to all or any part of the tax withholding
obligations of the Participating Company Group. The Fair Market Value of any
shares of Stock withheld or tendered to satisfy any such tax withholding
obligations shall not exceed the amount determined by the applicable minimum
statutory withholding rates.
12. TERMINATION OR AMENDMENT OF PLAN.
The Board may amend, suspend or terminate the Plan at any time.
However, without the approval of the Company's stockholders, there shall be (a)
no increase in the maximum aggregate number of shares of Stock that may be
issued under the Plan (except by operation of the provisions of Section 4.2) and
(b) no other amendment of the Plan that would require approval of the Company's
stockholders under any applicable law, regulation or rule. No amendment,
suspension or termination of the Plan shall affect any then outstanding Award
unless expressly provided by the Board. In any event, no amendment, suspension
or termination of the Plan may adversely affect any then outstanding Award
without the consent of the Participant unless necessary to comply with any
applicable law, regulation or rule.
13. MISCELLANEOUS PROVISIONS.
13.1 REPURCHASE RIGHTS. Shares issued under the Plan may be subject
to one or more repurchase options, or other conditions and restrictions as
determined by the Board in its discretion at the time the Award is granted. The
Company shall have the right to assign at any time any repurchase right it may
have, whether or not such right is then exercisable, to one or more persons as
may be selected by the Company. Upon request by the Company, each Participant
shall execute any agreement evidencing such transfer restrictions prior to the
receipt of shares of Stock hereunder and shall promptly present to the Company
any and all certificates representing shares of Stock acquired hereunder for the
placement on such certificates of appropriate legends evidencing any such
transfer restrictions.
13.2 PROVISION OF INFORMATION. Each Participant shall be given
access to information concerning the Company equivalent to that information
generally made available to the Company's common stockholders.
13.3 RIGHTS AS OUTSIDE DIRECTOR. No person, even though eligible
pursuant to Section 5, shall have a right to be selected as a Participant, or,
having been so selected, to be selected again as a Participant. Nothing in the
Plan or any Award granted under the Plan shall
15
confer on any Participant a right to remain an Outside Director, or interfere
with or limit in any way any right of a Participating Company to terminate the
Participant's Service at any time.
13.4 FRACTIONAL SHARES. The Company shall not be required to issue
fractional shares upon the exercise or settlement of any Award.
13.5 BENEFICIARY DESIGNATION. Subject to local laws and procedures,
each Participant may file with the Company a written designation of a
beneficiary who is to receive any benefit under the Plan to which the
Participant is entitled in the event of such Participant's death before he or
she receives any or all of such benefit. Each designation will revoke all prior
designations by the same Participant, shall be in a form prescribed by the
Company, and will be effective only when filed by the Participant in writing
with the Company during the Participant's lifetime. If a married Participant
designates a beneficiary other than the Participant's spouse, the effectiveness
of such designation may be subject to the consent of the Participant's spouse.
If a Participant dies without an effective designation of a beneficiary who is
living at the time of the Participant's death, the Company will pay any
remaining unpaid benefits to the Participant's legal representative.
13.6 RIGHTS AS A STOCKHOLDER. A Participant shall have no rights as
a stockholder with respect to any shares covered by an Award until the date of
the issuance of such shares (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company). No
adjustment shall be made for dividends, distributions or other rights for which
the record date is prior to the date such shares are issued, except as provided
in Section 4.2 or another provision of the Plan.
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PLAN HISTORY
June 29, 2005 Board adopts 2005 Outside Directors Stock Plan ("Plan")
effective as of the Effective Date, with an initial reserve
of 500,000 shares.
__________, 2006 Stockholders approve Plan at annual meeting.