Exhibit 10.14
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PERICOM SEMICONDUCTOR CORPORATION
2001 STOCK INCENTIVE PLAN
1. Purposes of the Plan. The purposes of this Stock Incentive Plan are to
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attract and retain the best available personnel, to provide additional incentive
to Employees, Directors and Consultants and to promote the success of the
Company's business.
2. Definitions. As used herein, the following definitions shall apply:
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(a) "Administrator" means the Board or any of the Committees appointed
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to administer the Plan.
(b) "Affiliate" and "Associate" shall have the respective meanings
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ascribed to such terms in Rule 12b-2 promulgated under the Exchange Act.
(c) "Applicable Laws" means the legal requirements relating to the
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administration of stock incentive plans, if any, under applicable provisions of
federal securities laws, state corporate and securities laws, the Code, the
rules of any applicable stock exchange or national market system, and the rules
of any foreign jurisdiction applicable to Awards granted to residents therein.
(d) "Award" means the grant of an Option, SAR, Dividend Equivalent
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Right, Restricted Stock, Performance Unit, Performance Share, or other right or
benefit under the Plan.
(e) "Award Agreement" means the written agreement evidencing the grant
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of an Award executed by the Company and the Grantee, including any amendments
thereto.
(f) "Board" means the Board of Directors of the Company.
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(g) "Cause" means, with respect to the termination by the Company or a
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Related Entity of the Grantee's Continuous Service, that such termination is for
"Cause" as such term is expressly defined in a then-effective written agreement
between the Grantee and the Company or such Related Entity, or in the absence of
such then-effective written agreement and definition, is based on, in the
determination of the Administrator, the Grantee's: (i) refusal or failure to
act in accordance with any specific, lawful direction or order of the Company or
a Related Entity; (ii) unfitness or unavailability for service or unsatisfactory
performance (other than as a result of Disability); (iii) performance of any act
or failure to perform any act in bad faith and to the detriment of the Company
or a Related Entity; (iv) dishonesty, intentional misconduct or material breach
of any agreement with the Company or a Related Entity; or (v) commission of a
crime involving dishonesty, breach of trust, or physical or emotional harm to
any person. At least 30 days prior to the termination of the Grantee's
Continuous Service pursuant to (i) or (ii) above, the Administrator shall
provide the Grantee with notice of the Company's or such Related Entity's intent
to terminate, the reason therefor, and an opportunity for the Grantee to cure
such defects in his or her service to the Company's or such Related Entity's
satisfaction. During this
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30 day (or longer) period, no Award issued to the Grantee under the Plan may be
exercised or purchased.
(h) "Change in Control" means a change in ownership or control of the
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Company effected through either of the following transactions:
(i) the direct or indirect acquisition by any person or related
group of persons (other than an acquisition from or by the Company or by a
Company-sponsored employee benefit plan or by a person that directly or
indirectly controls, is controlled by, or is under common control with, the
Company) of beneficial ownership (within the meaning of Rule 13d-3 of the
Exchange Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities pursuant to
a tender or exchange offer made directly to the Company's stockholders which a
majority of the Continuing Directors who are not Affiliates or Associates of the
offeror do not recommend such stockholders accept, or
(ii) a change in the composition of the Board over a period of
thirty-six (36) months or less such that a majority of the Board members
(rounded up to the next whole number) ceases, by reason of one or more contested
elections for Board membership, to be comprised of individuals who are
Continuing Directors.
(i) "Code" means the Internal Revenue Code of 1986, as amended.
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(j) "Committee" means any committee appointed by the Board to administer
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the Plan.
(k) "Common Stock" means the common stock of the Company.
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(l) "Company" means Pericom Semiconductor Corporation, a California
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corporation.
(m) "Consultant" means any person (other than an Employee or a Director,
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solely with respect to rendering services in such person's capacity as a
Director) who is engaged by the Company or any Related Entity to render
consulting or advisory services to the Company or such Related Entity.
(n) "Continuing Directors" means members of the Board who either (i) have
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been Board members continuously for a period of at least thirty-six (36) months
or (ii) have been Board members for less than thirty-six (36) months and were
elected or nominated for election as Board members by at least a majority of the
Board members described in clause (i) who were still in office at the time such
election or nomination was approved by the Board.
(o) "Continuous Service" means that the provision of services to the
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Company or a Related Entity in any capacity of Employee, Director or Consultant,
is not interrupted or terminated. Continuous Service shall not be considered
interrupted in the case of (i) any approved leave of absence, (ii) transfers
among the Company, any Related Entity, or any successor, in any capacity of
Employee, Director or Consultant, or (iii) any change in status as long as the
individual remains in the service of the Company or a Related Entity in any
capacity
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of Employee, Director or Consultant (except as otherwise provided in the Award
Agreement). An approved leave of absence shall include sick leave, military
leave, or any other authorized personal leave. For purposes of each Incentive
Stock Option granted under the Plan, if such leave exceeds ninety (90) days, and
reemployment upon expiration of such leave is not guaranteed by statute or
contract, then the Incentive Stock Option shall be treated as a Non-Qualified
Stock Option on the day three (3) months and one (1) day following the
expiration of such ninety (90) day period.
(p) "Corporate Transaction" means any of the following transactions:
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(i) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction the principal purpose of which is to
change the state in which the Company is incorporated;
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company (including the capital stock of
the Company's subsidiary corporations);
(iii) approval by the Company's shareholders of any plan or
proposal for the complete liquidation or dissolution of the Company;
(iv) any reverse merger in which the Company is the surviving
entity but in which securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities are
transferred to a person or persons different from those who held such securities
immediately prior to such merger; or
(v) acquisition by any person or related group of persons
(other than the Company or by a Company-sponsored employee benefit plan) of
beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of
securities possessing more than fifty percent (50%) of the total combined voting
power of the Company's outstanding securities (whether or not in a transaction
also constituting a Change in Control), but excluding any such transaction that
the Administrator determines shall not be a Corporate Transaction.
(q) "Covered Employee" means an Employee who is a "covered employee" under
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Section 162(m)(3) of the Code.
(r) "Director" means a member of the Board or the board of directors of any
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Related Entity.
(s) "Disability" means a Grantee would qualify for benefit payments under
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the long-term disability policy of the Company or the Related Entity to which
the Grantee provides services regardless of whether the Grantee is covered by
such policy. If the Company or the Related Entity to which the Grantee provides
service does not have a long-term disability plan in place, "Disability" means
that a Grantee is permanently unable to carry out the responsibilities and
functions of the position held by the Grantee by reason of any medically
determinable physical or mental impairment. A Grantee will not be considered to
have incurred a Disability unless he or she furnishes proof of such impairment
sufficient to satisfy the Administrator in its discretion.
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(t) "Dividend Equivalent Right" means a right entitling the Grantee to
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compensation measured by dividends paid with respect to Common Stock.
(u) "Employee" means any person, including an Officer or Director, who is
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an employee of the Company or any Related Entity. The payment of a director's
fee by the Company or a Related Entity shall not be sufficient to constitute
"employment" by the Company.
(v) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
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(w) "Fair Market Value" means, as of any date, the value of Common Stock
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determined as follows:
(i) Where there exists a public market for the Common Stock,
the Fair Market Value shall be (A) the closing price for a Share on the date of
grant (or, if no closing price was reported on that date, on the next trading
date on which a closing price is reported) on the stock exchange determined by
the Administrator to be the primary market for the Common Stock or the Nasdaq
National Market, whichever is applicable or (B) if the Common Stock is not
traded on any such exchange or national market system, the average of the
closing bid and asked prices of a Share on the Nasdaq Small Cap Market on the
date of grant (or, if no such prices were reported on that date, on the last
date on which such prices were reported), in each case, as reported in The Wall
Street Journal or such other source as the Administrator deems reliable; or
(ii) In the absence of an established market for the Common
Stock of the type described in (i), above, the Fair Market Value thereof shall
be determined by the Administrator in good faith.
(x) "Good Reason" means the occurrence after a Corporate Transaction,
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Change in Control or a Related Entity Disposition of any of the following events
or conditions unless consented to by the Grantee:
(i) (A) a change in the Grantee's status, title, position or
responsibilities which represents an adverse change from the Grantee's status,
title, position or responsibilities as in effect at any time within six (6)
months preceding the date of a Corporate Transaction, Change in Control or
Related Entity Disposition or at any time thereafter or (B) the assignment to
the Grantee of any duties or responsibilities which are inconsistent with the
Optionee's status, title, position or responsibilities as in effect at any time
within six (6) months preceding the date of a Corporate Transaction, Change in
Control or Related Entity Disposition or at any time thereafter;
(ii) reduction in the Grantee's base salary to a level below that
in effect at any time within six (6) months preceding the date of a Corporate
Transaction, Change in Control or Related Entity Disposition or at any time
thereafter.
(y) "Grantee" means an Employee, Director or Consultant who receives an
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Award pursuant to an Award Agreement under the Plan.
(z) "Immediate Family" means any child, stepchild, grandchild, parent,
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stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-
in-law, father-in-
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law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including
adoptive relationships, any person sharing the Grantee's household (other than a
tenant or employee), a trust in which these persons have more than fifty percent
(50%) of the beneficial interest, a foundation in which these persons (or the
Grantee) control the management of assets, and any other entity in which these
persons (or the Grantee) own more than fifty percent (50%) of the voting
interests.
(aa) "Incentive Stock Option" means an Option intended to qualify as an
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incentive stock option within the meaning of Section 422 of the Code.
(bb) "Non-Qualified Stock Option" means an Option not intended to qualify
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as an Incentive Stock Option.
(cc) "Officer" means a person who is an officer of the Company or a Related
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Entity within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(dd) "Option" means an option to purchase Shares pursuant to an Award
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Agreement granted under the Plan.
(ee) "Parent" means a "parent corporation," whether now or hereafter
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existing, as defined in Section 424(e) of the Code.
(ff) "Performance - Based Compensation" means compensation qualifying as
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"performance-based compensation" under Section 162(m) of the Code.
(gg) "Performance Shares" means Shares or an Award denominated in Shares
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which may be earned in whole or in part upon attainment of performance criteria
established by the Administrator.
(hh) "Performance Units" means an Award which may be earned in whole or in
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part upon attainment of performance criteria established by the Administrator
and which may be settled for cash, Shares or other securities or a combination
of cash, Shares or other securities as established by the Administrator.
(ii) "Plan" means this 2001 Stock Incentive Plan.
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(jj) "Related Entity" means any Parent, Subsidiary and any business,
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corporation, partnership, limited liability company or other entity in which the
Company, a Parent or a Subsidiary holds a substantial ownership interest,
directly or indirectly.
(kk) "Related Entity Disposition" means the sale, distribution or other
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disposition by the Company, a Parent or a Subsidiary of all or substantially all
of the interests of the Company, a Parent or a Subsidiary in any Related Entity
effected by a sale, merger or consolidation or other transaction involving that
Related Entity or the sale of all or substantially all of the assets of that
Related Entity, other than any Related Entity Disposition to the Company, a
Parent or a Subsidiary.
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(ll) "Restricted Stock" means Shares issued under the Plan to the
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Grantee for such consideration, if any, and subject to such restrictions on
transfer, rights of first refusal, repurchase provisions, forfeiture provisions,
and other terms and conditions as established by the Administrator.
(mm) "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act
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or any successor thereto.
(nn) "SAR" means a stock appreciation right entitling the Grantee to
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Shares or cash compensation, as established by the Administrator, measured by
appreciation in the value of Common Stock.
(oo) "Share" means a share of the Common Stock.
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(pp) "Subsidiary" means a "subsidiary corporation," whether now or
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hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan.
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(a) Subject to the provisions of Section 10, below, the maximum
aggregate number of Shares which may be issued pursuant to all Awards (including
Incentive Stock Options) is 2,250,000 Shares. The Shares to be issued pursuant
to Awards may be authorized, but unissued, or reacquired Common Stock.
(b) Any Shares covered by an Award (or portion of an Award) which is
forfeited or canceled, expires or is settled in cash, shall be deemed not to
have been issued for purposes of determining the maximum aggregate number of
Shares which may be issued under the Plan. Shares that actually have been
issued under the Plan pursuant to an Award shall not be returned to the Plan and
shall not become available for future issuance under the Plan, except that if
unvested Shares are forfeited, or repurchased by the Company at their original
purchase price, such Shares shall become available for future grant under the
Plan.
4. Administration of the Plan.
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(a) Plan Administrator.
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(i) Administration with Respect to Directors and Officers.
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With respect to grants of Awards to Directors or Employees who are also Officers
or Directors of the Company, the Plan shall be administered by (A) the Board or
(B) a Committee designated by the Board, which Committee shall be constituted in
such a manner as to satisfy the Applicable Laws and to permit such grants and
related transactions under the Plan to be exempt from Section 16(b) of the
Exchange Act in accordance with Rule 16b-3. Once appointed, such Committee shall
continue to serve in its designated capacity until otherwise directed by the
Board.
(ii) Administration With Respect to Consultants and Other
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Employees. With respect to grants of Awards to Employees or Consultants who are
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neither Directors nor Officers of the Company, the Plan shall be administered by
(A) the Board or (B) a Committee designated by the Board, which Committee shall
be constituted in such a manner as to satisfy the
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Applicable Laws. Once appointed, such Committee shall continue to serve in its
designated capacity until otherwise directed by the Board. The Board may
authorize one or more Officers to grant such Awards and may limit such authority
as the Board determines from time to time.
(iii) Administration With Respect to Covered Employees.
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Notwithstanding the foregoing, grants of Awards to any Covered Employee intended
to qualify as Performance-Based Compensation shall be made only by a Committee
(or subcommittee of a Committee) which is comprised solely of two or more
Directors eligible to serve on a committee making Awards qualifying as
Performance-Based Compensation. In the case of such Awards granted to Covered
Employees, references to the "Administrator" or to a "Committee" shall be deemed
to be references to such Committee or subcommittee.
(iv) Administration Errors. In the event an Award is
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granted in a manner inconsistent with the provisions of this subsection (a),
such Award shall be presumptively valid to the extent such awards were not
issued in error as of its grant date and to the extent permitted by the
Applicable Laws.
(b) Powers of the Administrator. Subject to Applicable Laws and the
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provisions of the Plan (including any other powers given to the Administrator
hereunder), and except as otherwise provided by the Board, the Administrator
shall have the authority, in its discretion:
(i) to select the Employees, Directors and Consultants to
whom Awards may be granted from time to time hereunder;
(ii) to determine whether and to what extent Awards are
granted hereunder;
(iii) to determine the number of Shares or the amount of
other consideration to be covered by each Award granted hereunder;
(iv) to approve forms of Award Agreements for use under
the Plan;
(v) to determine the terms and conditions of any Award
granted hereunder;
(vi) to amend the terms of any outstanding Award granted
under the Plan, provided that any amendment that would adversely affect the
Grantee's rights under an outstanding Award shall not be made without the
Grantee's written consent;
(vii) to construe and interpret the terms of the Plan and
Awards granted pursuant to the Plan, including without limitation, any notice of
Award or Award Agreement, granted pursuant to the Plan;
(viii) to establish additional terms, conditions, rules or
procedures to accommodate the rules or laws of applicable foreign jurisdictions
and to afford Grantees favorable treatment under such laws; provided, however,
that no Award shall be granted under any such additional terms, conditions,
rules or procedures with terms or conditions which are inconsistent with the
provisions of the Plan; and
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(ix) to take such other action, not inconsistent with the
terms of the Plan, as the Administrator deems appropriate.
5. Eligibility. Awards other than Incentive Stock Options may be granted to
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Employees, Directors and Consultants. Incentive Stock Options may be granted
only to Employees of the Company, a Parent or a Subsidiary. An Employee,
Director or Consultant who has been granted an Award may, if otherwise eligible,
be granted additional Awards. Awards may be granted to such Employees,
Directors or Consultants who are residing in foreign jurisdictions as the
Administrator may determine from time to time.
6. Terms and Conditions of Awards.
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(a) Type of Awards. The Administrator is authorized under the Plan to
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award any type of arrangement to an Employee, Director or Consultant that is not
inconsistent with the provisions of the Plan and that by its terms involves or
might involve the issuance of (i) Shares, (ii) an Option, a SAR or similar right
with a fixed or variable price related to the Fair Market Value of the Shares
and with an exercise or conversion privilege related to the passage of time, the
occurrence of one or more events, or the satisfaction of performance criteria or
other conditions, or (iii) any other security with the value derived from the
value of the Shares. Such awards include, without limitation, Options, SARs,
sales or bonuses of Restricted Stock, Dividend Equivalent Rights, Performance
Units or Performance Shares, and an Award may consist of one such security or
benefit, or two (2) or more of them in any combination or alternative.
(b) Designation of Award. Each Award shall be designated in the Award
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Agreement. In the case of an Option, the Option shall be designated as either
an Incentive Stock Option or a Non-Qualified Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market
Value of Shares subject to Options designated as Incentive Stock Options which
become exercisable for the first time by a Grantee during any calendar year
(under all plans of the Company or any Parent or Subsidiary) exceeds $100,000,
such excess Options, to the extent of the Shares covered thereby in excess of
the foregoing limitation, shall be treated as Non-Qualified Stock Options. For
this purpose, Incentive Stock Options shall be taken into account in the order
in which they were granted, and the Fair Market Value of the Shares shall be
determined as of the date the Option with respect to such Shares is granted.
(c) Conditions of Award. Subject to the terms of the Plan, the
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Administrator shall determine the provisions, terms, and conditions of each
Award including, but not limited to, the Award vesting schedule, repurchase
provisions, rights of first refusal, forfeiture provisions, form of payment
(cash, Shares, or other consideration) upon settlement of the Award, payment
contingencies, and satisfaction of any performance criteria. The performance
criteria established by the Administrator may be based on any one of, or
combination of, increase in share price, earnings per share, total stockholder
return, return on equity, return on assets, return on investment, net operating
income, cash flow, revenue, economic value added, personal management
objectives, or other measure of performance selected by the Administrator.
Partial achievement of the specified criteria may result in a payment or vesting
corresponding to the degree of achievement as specified in the Award Agreement.
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(d) Acquisitions and Other Transactions. The Administrator may issue
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Awards under the Plan in settlement, assumption or substitution for, outstanding
awards or obligations to grant future awards in connection with the Company or a
Related Entity acquiring another entity, an interest in another entity or an
additional interest in a Related Entity whether by merger, stock purchase, asset
purchase or other form of transaction.
(e) Deferral of Award Payment. The Administrator may establish one or
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more programs under the Plan to permit selected Grantees the opportunity to
elect to defer receipt of consideration upon exercise of an Award, satisfaction
of performance criteria, or other event that absent the election would entitle
the Grantee to payment or receipt of Shares or other consideration under an
Award. The Administrator may establish the election procedures, the timing of
such elections, the mechanisms for payments of, and accrual of interest or other
earnings, if any, on amounts, Shares or other consideration so deferred, and
such other terms, conditions, rules and procedures that the Administrator deems
advisable for the administration of any such deferral program.
(f) Award Exchange Programs. The Administrator may establish one or
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more programs under the Plan to permit selected Grantees to exchange an Award
under the Plan for one or more other types of Awards under the Plan on such
terms and conditions as determined by the Administrator from time to time.
(g) Separate Programs. The Administrator may establish one or more
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separate programs under the Plan for the purpose of issuing particular forms of
Awards to one or more classes of Grantees on such terms and conditions as
determined by the Administrator from time to time.
(h) Individual Option and SAR Limit. The maximum number of Shares with
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respect to which Options and SARs may be granted to any Grantee in any fiscal
year of the Company shall be 500,000. In connection with a Grantee's
commencement of Continuous Service, a Grantee may be granted Options and SARs
for up to an additional 250,000 Shares which shall not count against the limit
set forth in the previous sentence.] The foregoing limitation[s] shall be
adjusted proportionately in connection with any change in the Company's
capitalization pursuant to Section 10, below. To the extent required by Section
162(m) of the Code or the regulations thereunder, in applying the foregoing
limitation[s] with respect to a Grantee, if any Option or SAR is canceled, the
canceled Option or SAR shall continue to count against the maximum number of
Shares with respect to which Options and SARs may be granted to the Grantee. For
this purpose, the repricing of an Option (or in the case of a SAR, the base
amount on which the stock appreciation is calculated is reduced to reflect a
reduction in the Fair Market Value of the Common Stock) shall be treated as the
cancellation of the existing Option or SAR and the grant of a new Option or SAR.
(i) Early Exercise. The Award Agreement may, but need not, include a
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provision whereby the Grantee may elect at any time while an Employee, Director
or Consultant to exercise any part or all of the Award prior to full vesting of
the Award. Any unvested Shares received pursuant to such exercise may be
subject to a repurchase right in favor of the Company or a Related Entity or to
any other restriction the Administrator determines to be appropriate.
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(j) Term of Award. The term of each Award shall be the term stated in
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the Award Agreement, provided, however, that the term of an Incentive Stock
Option shall be no more than ten (10) years from the date of grant thereof.
However, in the case of an Incentive Stock Option granted to a Grantee who, at
the time the Option is granted, owns stock representing more than ten percent
(10%) of the voting power of all classes of stock of the Company or any Parent
or Subsidiary, the term of the Incentive Stock Option shall be five (5) years
from the date of grant thereof or such shorter term as may be provided in the
Award Agreement.
(k) Transferability of Awards. Incentive Stock Options may not be
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sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner
other than by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Grantee, only by the Grantee; provided,
however, that the Grantee may designate a beneficiary of the Grantee's Incentive
Stock Option in the event of the Grantee's death on a beneficiary designation
form provided by the Administrator. Other Awards may be transferred by gift or
through a domestic relations order to members of the Grantee's Immediate Family
to the extent provided in the Award Agreement or in the manner and to the extent
determined by the Administrator.
(l) Time of Granting Awards. The date of grant of an Award shall for
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all purposes be the date on which the Administrator makes the determination to
grant such Award, or such other date as is determined by the Administrator.
Notice of the grant determination shall be given to each Employee, Director or
Consultant to whom an Award is so granted within a reasonable time after the
date of such grant.
7. Award Exercise or Purchase Price, Consideration and Taxes.
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(a) Exercise or Purchase Price. The exercise or purchase price, if
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any, for an Award shall be as follows:
(i) In the case of an Incentive Stock Option:
(A) granted to an Employee who, at the time of the
grant of such Incentive Stock Option owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the per Share exercise price shall be not less than one
hundred ten percent (110%) of the Fair Market Value per Share on the date of
grant; or
(B) granted to any Employee other than an Employee
described in the preceding paragraph, the per Share exercise price shall be not
less than one hundred percent (100%) of the Fair Market Value per Share on the
date of grant.
(ii) In the case of a Non-Qualified Stock Option, the per
Share exercise price shall be not less than eighty-five percent (85%) of the
Fair Market Value per Share on the date of grant.
(iii) In the case of Awards intended to qualify as
Performance-Based Compensation, the exercise or purchase price, if any, shall be
not less than one hundred percent (100%) of the Fair Market Value per Share on
the date of grant.
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(iv) In the case of other Awards, such price as is determined
by the Administrator.
(v) Notwithstanding the foregoing provisions of this Section
7(a), in the case of an Award issued pursuant to Section 6(d), above, the
exercise or purchase price for the Award shall be determined in accordance with
the principles of Section 424(a) of the Code.
(b) Consideration. Subject to Applicable Laws, the consideration to be
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paid for the Shares to be issued upon exercise or purchase of an Award including
the method of payment, shall be determined by the Administrator (and, in the
case of an Incentive Stock Option, shall be determined at the time of grant).
In addition to any other types of consideration the Administrator may
determine, the Administrator is authorized to accept as consideration for Shares
issued under the Plan the following:
(i) cash;
(ii) check;
(iii) delivery of Grantee's promissory note with such recourse,
interest, security, and redemption provisions as the Administrator determines as
appropriate;
(iv) surrender of Shares or delivery of a properly executed
form of attestation of ownership of Shares as the Administrator may require
(including withholding of Shares otherwise deliverable upon exercise of the
Award) which have a Fair Market Value on the date of surrender or attestation
equal to the aggregate exercise price of the Shares as to which said Award shall
be exercised (but only to the extent that such exercise of the Award would not
result in an accounting compensation charge with respect to the Shares used to
pay the exercise price unless otherwise determined by the Administrator);
(v) with respect to Options, payment through a broker-dealer
sale and remittance procedure pursuant to which the Grantee (A) shall provide
written instructions to a Company designated brokerage firm to effect the
immediate sale of some or all of the purchased Shares and remit to the Company,
out of the sale proceeds available on the settlement date, sufficient funds to
cover the aggregate exercise price payable for the purchased Shares and (B)
shall provide written directives to the Company to deliver the certificates for
the purchased Shares directly to such brokerage firm in order to complete the
sale transaction; or
(vi) any combination of the foregoing methods of payment.
(c) Taxes. No Shares shall be delivered under the Plan to any Grantee or
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other person until such Grantee or other person has made arrangements acceptable
to the Administrator for the satisfaction of any foreign, federal, state, or
local income and employment tax withholding obligations, including, without
limitation, obligations incident to the receipt of Shares or the disqualifying
disposition of Shares received on exercise of an Incentive Stock Option. Upon
exercise of an Award, the Company shall withhold or collect from Grantee an
amount sufficient to satisfy such tax obligations.
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8. Exercise of Award.
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(a) Procedure for Exercise; Rights as a Stockholder.
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(i) Any Award granted hereunder shall be exercisable
at such times and under such conditions as determined by the Administrator under
the terms of the Plan and specified in the Award Agreement.
(ii) An Award shall be deemed to be exercised when
written notice of such exercise has been given to the Company in accordance with
the terms of the Award by the person entitled to exercise the Award and full
payment for the Shares with respect to which the Award is exercised, including,
to the extent selected, use of the broker-dealer sale and remittance procedure
to pay the purchase price as provided in Section 7(b)(v). Until the issuance (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the stock certificate evidencing
such Shares, no right to vote or receive dividends or any other rights as a
stockholder shall exist with respect to Shares subject to an Award,
notwithstanding the exercise of an Option or other Award. The Company shall
issue (or cause to be issued) such stock certificate promptly upon exercise of
the Award. No adjustment will be made for a dividend or other right for which
the record date is prior to the date the stock certificate is issued, except as
provided in the Award Agreement or Section 10, below.
(b) Exercise of Award Following Termination of Continuous
-----------------------------------------------------
Service.
- -------
(i) An Award may not be exercised after the
termination date of such Award set forth in the Award Agreement and may be
exercised following the termination of a Grantee's Continuous Service only to
the extent provided in the Award Agreement.
(ii) Where the Award Agreement permits a Grantee to
exercise an Award following the termination of the Grantee's Continuous Service
for a specified period, the Award shall terminate to the extent not exercised on
the last day of the specified period or the last day of the original term of the
Award, whichever occurs first.
(iii) Any Award designated as an Incentive Stock Option
to the extent not exercised within the time permitted by law for the exercise of
Incentive Stock Options following the termination of a Grantee's Continuous
Service shall convert automatically to a Non-Qualified Stock Option and
thereafter shall be exercisable as such to the extent exercisable by its terms
for the period specified in the Award Agreement.
9. Conditions Upon Issuance of Shares.
----------------------------------
(a) Shares shall not be issued pursuant to the exercise of an
Award unless the exercise of such Award and the issuance and delivery of such
Shares pursuant thereto shall comply with all Applicable Laws, and shall be
further subject to the approval of counsel for the Company with respect to such
compliance.
(b) As a condition to the exercise of an Award, the Company may
require the person exercising such Award to represent and warrant at the time of
any such exercise that the Shares are being purchased only for investment and
without any present intention to sell or
12
distribute such Shares if, in the opinion of counsel for the Company, such a
representation is required by any Applicable Laws.
10. Adjustments Upon Changes in Capitalization. Subject to any required
------------------------------------------
action by the stockholders of the Company, the number of Shares covered by each
outstanding Award, and the number of Shares which have been authorized for
issuance under the Plan but as to which no Awards have yet been granted or which
have been returned to the Plan, the exercise or purchase price of each such
outstanding Award, the maximum number of Shares with respect to which Options
and SARs may be granted to any Grantee in any fiscal year of the Company, as
well as any other terms that the Administrator determines require adjustment
shall be proportionately adjusted for (i) any increase or decrease in the number
of issued Shares resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Shares, or similar event
affecting the Shares, (ii) any other increase or decrease in the number of
issued Shares effected without receipt of consideration by the Company, or (iii)
as the Administrator may determine in its discretion, any other transaction with
respect to Common Stock to which Section 424(a) of the Code applies or any
similar transaction; provided, however that conversion of any convertible
securities of the Company shall not be deemed to have been "effected without
receipt of consideration." Such adjustment shall be made by the Administrator
and its determination shall be final, binding and conclusive. Except as the
Administrator determines, no issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason hereof shall be made with respect to, the
number or price of Shares subject to an Award.
11. Corporate Transactions/Changes in Control/Related Entity Dispositions.
---------------------------------------------------------------------
Except as may be provided in an Award Agreement:
(a) In the event of any Corporate Transaction, each Award which
is at the time outstanding under the Plan automatically shall become fully
vested and exercisable and be released from any restrictions on transfer (other
than transfer restrictions applicable to Options) and repurchase or forfeiture
rights, immediately prior to the specified effective date of such Corporate
Transaction, for all of the Shares at the time represented by such Award.
Effective upon the consummation of the Corporate Transaction, all outstanding
Awards under the Plan shall terminate. However, all such Awards shall not
terminate if the Awards are, in connection with the Corporate Transaction,
assumed by the successor corporation or Parent thereof. In addition, an
outstanding Award under the Plan shall not so fully vest and be exercisable and
released from such limitations if and to the extent: (i) such Award is, in
connection with the Corporate Transaction, either assumed by the successor
corporation or Parent thereof or replaced with a comparable Award with respect
to shares of the capital stock of the successor corporation or Parent thereof or
(ii) such Award is to be replaced with a cash incentive program of the successor
corporation which preserves the compensation element of such Award existing at
the time of the Corporate Transaction and provides for subsequent payout in
accordance with the same vesting schedule applicable to such Award; provided,
however, that such Award (if assumed), the replacement Award (if replaced), or
the cash incentive program automatically shall become fully vested, exercisable
and payable and be released from any restrictions on transfer (other than
transfer restrictions applicable to Options) and repurchase or forfeiture rights
immediately upon termination of the Grantee's Continuous Service (substituting
the successor employer corporation for "Company or Related Entity" for the
definition of "Continuous
13
Service") if such Continuous Service is terminated by the successor company
without Cause or voluntarily by the Grantee with Good Reason within twelve (12)
months of the Corporate Transaction. The determination of Award comparability
above shall be made by the Administrator.
(b) Following a Change in Control (other than a Change in Control
which also is a Corporate Transaction) and upon the termination of the
Continuous Service of a Grantee if such Continuous Service is terminated by the
Company or Related Entity without Cause or voluntarily by the Grantee with Good
Reason within twelve (12) months of a Change in Control, such Grantee shall be
treated as if such Grantee had one additional year of employment with the
Company for purposes of vesting, exercisability, restrictions on transfer (other
than transfer restrictions applicable to Options) and repurchase or forfeiture
rights.
(c) Effective upon the consummation of a Related Entity Disposition,
for purposes of the Plan and all Awards, the Continuous Service of each Grantee
who is at the time engaged primarily in service to the Related Entity involved
in such Related Entity Disposition shall be deemed to terminate and each Award
of such Grantee which is at the time outstanding under the Plan automatically
shall become fully vested and exercisable and be released from any restrictions
on transfer (other than transfer restrictions applicable to Options) and
repurchase or forfeiture rights for all of the Shares at the time represented by
such Award and be exercisable in accordance with the terms of the Award
Agreement evidencing such Award. However, such Continuous Service shall be not
be deemed to terminate if such Award is, in connection with the Related Entity
Disposition, assumed by the successor entity or its Parent. In addition, such
Continuous Service shall not be deemed to terminate and an outstanding Award
under the Plan shall not so fully vest and be exercisable and released from such
limitations if and to the extent: (i) such Award is, in connection with the
Related Entity Disposition, either to be assumed by the successor entity or its
parent or to be replaced with a comparable Award with respect to interests in
the successor entity or its parent or (ii) such Award is to be replaced with a
cash incentive program of the successor entity which preserves the compensation
element of such Award existing at the time of the Related Entity Disposition and
provides for subsequent payout in accordance with the same vesting schedule
applicable to such Award; provided, however, that such Award (if assumed), the
replacement Award (if replaced), or the cash incentive program automatically
shall become fully vested, exercisable and payable and be released from any
restrictions on transfer (other than transfer restrictions applicable to
Options) and repurchase or forfeiture rights immediately upon termination of the
Grantee's Continuous Service (substituting the successor employer entity for
"Company or Related Entity" for the definition of "Continuous Service") if such
Continuous Service is terminated by the successor entity without Cause or
voluntarily by the Grantee with Good Reason within twelve (12) months of the
Related Entity Disposition. The determination of Award comparability above
shall be made by the Administrator.]
(d) The portion of any Incentive Stock Option accelerated under this
Section 11 in connection with a Corporate Transaction, Change in Control or
Related Entity Disposition shall remain exercisable as an Incentive Stock Option
under the Code only to the extent the $100,000 dollar limitation of Section
422(d) of the Code is not exceeded. To the extent such dollar limitation is
exceeded, the accelerated excess portion of such Option shall be exercisable as
a Non-Qualified Stock Option.
14
12. Effective Date and Term of Plan. The Plan shall become effective upon
-------------------------------
the earlier to occur of its adoption by the Board or its approval by the
stockholders of the Company. It shall continue in effect for a term of ten (10)
years unless sooner terminated. Subject to Section 17, below, and Applicable
Laws, Awards may be granted under the Plan upon its becoming effective.
13. Amendment, Suspension or Termination of the Plan.
------------------------------------------------
(a) The Board may at any time amend, suspend or terminate the
Plan. To the extent necessary to comply with Applicable Laws, the Company shall
obtain stockholder approval of any Plan amendment in such a manner and to such a
degree as required.
(b) No Award may be granted during any suspension of the Plan or
after termination of the Plan.
(c) Any amendment, suspension or termination of the Plan
(including termination of the Plan under Section 12, above) shall not affect
Awards already granted, and such Awards shall remain in full force and effect as
if the Plan had not been amended, suspended or terminated, unless mutually
agreed otherwise between the Grantee and the Administrator, which agreement must
be in writing and signed by the Grantee and the Company.
14. Reservation of Shares.
---------------------
(a) The Company, during the term of the Plan, will at all times
reserve and keep available such number of Shares as shall be sufficient to
satisfy the requirements of the Plan.
(b) The inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares hereunder,
shall relieve the Company of any liability in respect of the failure to issue or
sell such Shares as to which such requisite authority shall not have been
obtained.
15. No Effect on Terms of Employment/Consulting Relationship. The Plan
--------------------------------------------------------
shall not confer upon any Grantee any right with respect to the Grantee's
Continuous Service, nor shall it interfere in any way with his or her right or
the Company's right to terminate the Grantee's Continuous Service at any time,
with or without cause.
16. No Effect on Retirement and Other Benefit Plans. Except as
-----------------------------------------------
specifically provided in a retirement or other benefit plan of the Company or a
Related Entity, Awards shall not be deemed compensation for purposes of
computing benefits or contributions under any retirement plan of the Company or
a Related Entity, and shall not affect any benefits under any other benefit plan
of any kind or any benefit plan subsequently instituted under which the
availability or amount of benefits is related to level of compensation. The Plan
is not a "Retirement Plan" or "Welfare Plan" under the Employee Retirement
Income Security Act of 1974, as amended.
17. Stockholder Approval. The grant of Incentive Stock Options under the
--------------------
Plan shall be subject to approval by the stockholders of the Company within
twelve (12) months before or after the date the Plan is adopted excluding
Incentive Stock Options issued in substitution for
15
outstanding Incentive Stock Options pursuant to Section 424(a) of the Code. Such
stockholder approval shall be obtained in the degree and manner required under
Applicable Laws. The Administrator may grant Incentive Stock Options under the
Plan prior to approval by the stockholders, but until such approval is obtained,
no such Incentive Stock Option shall be exercisable. In the event that
stockholder approval is not obtained within the twelve (12) month period
provided above, all Incentive Stock Options previously granted under the Plan
shall be exercisable as Non-Qualified Stock Options.
16
Notice of Grant of Stock Options Pericom Semiconductor Corp.
and Option Agreement ID: 77-0254621
2380 Bering Drive
San Jose, CA 95131
________________________________________________________________________________
Name Option Number:
Address Plan:
Address ID:
City, State Zip
________________________________________________________________________________
Effective _________, you have been granted a(n) Incentive Stock Option to buy
________ shares of Pericom Semiconductor Corp. (the Company) stock at $_______
per share.
The total option price of the shares granted is $___________.
Shares in each period will become fully vested on the date shown.
Shares Vest Type Full Vest Expiration
------ --------- --------- ----------
________________________________________________________________________________
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Company's Stock Option Plan as amended and the Option Agreement, all of
which are attached and made a part of this document.
________________________________________________________________________________
________________________________ ________________________________________
Pericom Semiconductor Corp. Date
________________________________ ________________________________________
Optionee Date
Date: ___________________
Time: ___________________
17
Notice of Grant of Stock Options
and Option Agreement continued
Definitions:
- -----------
1. Date of Award is the effective date as stated in the Notice of Grant of
Stock Options and Option Agreement (the "Notice").
2. Expiration Date is the date on the Notice under the column heading
"Expiration."
3. Post-Termination Exercise Period is three (3) months.
Vesting Schedule:
- ----------------
Subject to Grantee's Continuous Service and other limitations set forth in
this Notice, the Plan and the Option Agreement, the Option may be exercised, in
whole or in part, in accordance with the schedule on page 1 of this Notice.
During any authorized leave of absence, the vesting of the Option as
provided in this schedule shall cease after the leave of absence exceeds a
period of ninety (90) days. Vesting of the Option shall resume upon the
Grantee's termination of the leave of absence and return to service to the
Company or a Related Entity.
In the event of the Grantee's change in status from Employee to Consultant
or from an Employee whose customary employment is 20 hours or more per week to
an Employee whose customary employment is fewer than 20 hours per week, vesting
of the Option shall continue only to the extent determined by the Administrator
as of such change in status.
In the event of termination of the Grantee's Continuous Service for Cause,
the Grantee's right to exercise the Option shall terminate concurrently with the
termination of the Grantee's Continuous Service.
IN WITNESS WHEREOF, the Company and the Grantee have executed this Notice
and agree that the Option is to be governed by the terms and conditions of this
Notice, the Plan, and the Option Agreement.
Pericom Semiconductor Corporation,
a California corporation
By: _________________________________
Title:_______________________________
18
Notice of Grant of Stock Options
and Option Agreement continued
THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE SHARES SUBJECT TO THE OPTION SHALL
VEST, IF AT ALL, ONLY DURING THE PERIOD OF THE GRANTEE'S CONTINUOUS SERVICE (NOT
THROUGH THE ACT OF BEING HIRED, BEING GRANTED THE OPTION OR ACQUIRING SHARES
HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS
NOTICE, THE OPTION AGREEMENT, OR THE PLAN SHALL CONFER UPON THE GRANTEE ANY
RIGHT WITH RESPECT TO FUTURE AWARDS OR CONTINUATION OF GRANTEE'S CONTINUOUS
SERVICE, NOR SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE'S RIGHT OR THE RIGHT
OF THE GRANTEE'S EMPLOYER TO TERMINATE GRANTEE'S CONTINUOUS SERVICE, WITH OR
WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE. THE GRANTEE ACKNOWLEDGES THAT UNLESS
THE GRANTEE HAS A WRITTEN EMPLOYMENT AGREEMENT WITH THE COMPANY TO THE CONTRARY,
GRANTEE'S STATUS IS AT WILL.
The Grantee acknowledges receipt of a copy of the Plan and the Option
Agreement, and represents that he or she is familiar with the terms and
provisions thereof, and hereby accepts the Option subject to all of the terms
and provisions hereof and thereof. The Grantee has reviewed this Notice, the
Plan, and the Option Agreement in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Notice, and fully
understands all provisions of this Notice, the Plan and the Option Agreement.
The Grantee hereby agrees that all disputes arising out of or relating to this
Notice, the Plan and the Option Agreement shall be resolved in accordance with
Section 13 of the Option Agreement. The Grantee further agrees to notify the
Company upon any change in the residence address indicated in this Notice.
Dated: ______________________ Signed: ______________________________________
19
Award Number: __________
PERICOM SEMICONDUCTOR CORPORATION
2001 STOCK INCENTIVE PLAN
STOCK OPTION AWARD AGREEMENT
----------------------------
Grant of Option. Pericom Semiconductor Corporation., a
---------------
California corporation (the "Company"), hereby grants to the Grantee
(the "Grantee") named in the Notice of Stock Option Award (the
"Notice"), an option (the "Option") to purchase the Total Number of
Shares of Common Stock subject to the Option (the "Shares") set
forth in the Notice, at the Exercise Price per Share set forth in
the Notice (the "Exercise Price") subject to the terms and
provisions of the Notice, this Stock Option Award Agreement (the
"Option Agreement") and the Company's 2001 Stock Incentive Plan, as
amended from time to time (the "Plan"), which are incorporated
herein by reference. Unless otherwise defined herein, the terms
defined in the Plan shall have the same defined mean ings in this
Option Agreement.
If designated in the Notice as an Incentive Stock Option, the Option is
intended to qualify as an Incentive Stock Option as defined in Section 422 of
the Code. However, notwithstanding such designation, to the extent that the
aggregate Fair Market Value of Shares subject to Options designated as Incentive
Stock Options which become exercisable for the first time by the Grantee during
any calendar year (under all plans of the Company or any Parent or Subsidiary)
exceeds $100,000, such excess Options, to the extent of the Shares covered
thereby in excess of the foregoing limitation, shall be treated as Non-Qualified
Stock Options. For this purpose, Incentive Stock Options shall be taken into
account in the order in which they were granted, and the Fair Market Value of
the Shares shall be determined as of the date the Option with respect to such
Shares is awarded.
Exercise of Option.
------------------
Right to Exercise. The Option shall be exercisable during its term in
-----------------
accordance with the Vesting Schedule set out in the Notice and with the
applicable provisions of the Plan and this Option Agreement. The Option shall
be subject to the provisions of Section 11 of the Plan relating to the
exercisability or termination of the Option in the event of a Corporate
Transaction, Change in Control or Related Entity Disposition. No partial
exercise of the Option may be for less than the lesser of five percent (5%) of
the total number of Shares subject to the Option or the remaining number of
Shares subject to the Option. In no event shall the Company issue fractional
Shares.
Method of Exercise. The Option shall be exercisable only by delivery
------------------
of an Exercise Notice (attached as Exhibit A) which shall state the election to
exercise the Option, the whole number of Shares in respect of which the Option
is being exercised, such other representations and agreements as to the holder's
investment intent with respect to such Shares
1
and such other provisions as may be required by the Administrator. The Exercise
Notice shall be signed by the Grantee and shall be delivered in person, by
certified mail, or by such other method as determined from time to time by the
Administrator to the Company accompanied by payment of the Exercise Price. The
Option shall be deemed to be exercised upon receipt by the Company of such
written notice accompanied by the Exercise Price, which, to the extent selected,
shall be deemed to be satisfied by use of the broker-dealer sale and remittance
procedure to pay the Exercise Price provided in Section 3(d), below.
Taxes. No Shares will be delivered to the Grantee or other person
-----
pursuant to the exercise of the Option until the Grantee or other person has
made arrangements acceptable to the Administrator for the satisfaction of
applicable income tax, employment tax, and social security tax withholding
obligations, including, without limitation, obligations incident to the receipt
of Shares or the disqualifying disposition of Shares received on exercise of an
Incentive Stock Option. Upon exercise of the Option, the Company or the
Grantee's employer may offset or withhold (from any amount owed by the Company
or the Grantee's employer to the Grantee) or collect from the Grantee or other
person an amount sufficient to satisfy such tax obligations and/or the
employer's withholding obligations.
Method of Payment. Payment of the Exercise Price shall be by any
-----------------
of the following, or a combination thereof, at the election of the
Grantee; provided, however, that such exercise method does not then
violate any Applicable Law:
cash;
check;
surrender of Shares or delivery of a properly executed form of
attestation of ownership of Shares as the Administrator may require (including
withholding of Shares otherwise deliverable upon exercise of the Option) which
have a Fair Market Value on the date of surrender or attestation equal to the
aggregate Exercise Price of the Shares as to which the Option is being exercised
(but only to the extent that such exercise of the Option would not result in an
accounting compensation charge with respect to the Shares used to pay the
exercise price);
payment through a broker-dealer sale and remittance procedure pursuant
to which the Grantee (i) shall provide written instructions to a Company
designated brokerage firm to effect the immediate sale of some or all of the
purchased Shares and remit to the Company, out of the sale proceeds available on
the settlement date, sufficient funds to cover the aggregate exercise price
payable for the purchased Shares and (ii) shall provide written directives to
the Company to deliver the certificates for the purchased Shares directly to
such brokerage firm in order to complete the sale transaction; or
any other method acceptable to the Administrator in its sole
discretion
Restrictions on Exercise. The Option may not be exercised if the
------------------------
issuance of the Shares subject to the Option upon such exercise would
constitute a violation of any Applicable Laws. In addition, the
Option, if an Incentive Stock
2
Option, may not be exercised until such time as the Plan has been
approved by the stockholders of the Company.
Termination or Change of Continuous Service. In the event the
-------------------------------------------
Grantee's Continuous Service terminates, other than for Cause, the
Grantee may, to the extent otherwise so entitled at the date of such
termination (the "Termination Date"), exercise the Option during the
Post-Termination Exercise Period. In the event of termination of the
Grantee's Continuous Service for Cause, the Grantee's right to
exercise the Option shall, except as otherwise determined by the
Administrator, terminate concurrently with the termination of the
Grantee's Continuous Service. In no event shall the Option be
exercised later than the Expiration Date set forth in the Notice. In
the event of the Grantee's change in status from Employee, Director or
Consultant to any other status of Employee, Director or Consultant,
the Option shall remain in effect and, except to the extent otherwise
determined by the Administrator, continue to vest; provided, however,
that with respect to any Incentive Stock Option that shall remain in
effect after a change in status from Employee to Director or
Consultant, such Incentive Stock Option shall cease to be treated as
an Incentive Stock Option and shall be treated as a Non-Qualified
Stock Option on the day three (3) months and one (1) day following
such change in status. Except as provided in Sections 6 and 7 below,
to the extent that the Grantee is not entitled to exercise the Option
on the Termination Date, or if the Grantee does not exercise the
Option within the Post-Termination Exercise Period, the Option shall
terminate.
Disability of Grantee. In the event the Grantee's Continuous Service
---------------------
terminates as a result of his or her Disability, the Grantee may, but only
within twelve (12) months from the Termination Date (and in no event later than
the Expiration Date), exercise the Option to the extent he or she was otherwise
entitled to exercise it on the Termination Date; provided, however, that if such
Disability is not a "disability" as such term is defined in Section 22(e)(3) of
the Code and the Option is an Incentive Stock Option, such Incentive Stock
Option shall cease to be treated as an Incentive Stock Option and shall be
treated as a Non-Qualified Stock Option on the day three (3) months and one (1)
day following the Termination Date. To the extent that the Grantee is not
entitled to exercise the Option on the Termination Date, or if the Grantee does
not exercise the Option to the extent so entitled within the time specified
herein, the Option shall terminate.
Death of Grantee. In the event of the termination of the
----------------
Grantee's Continuous Service as a result of his or her death, or in
the event of the Grantee's death during the Post-Termination Exercise
Period or during the twelve (12) month period following the Grantee's
termination of Continuous Service as a result of his or her
Disability, the Grantee's estate, or a person who acquired the right
to exercise the Option by bequest or inheritance, may exercise the
Option, but only to the extent the Grantee could exercise the Option
at the date of termination, within twelve (12) months from the date of
death (but in no event later than the Expiration Date). To the extent
that the Grantee is not entitled to exercise the Option on the date of
death, or if the Option is not exercised to the extent so entitled
within the time specified herein, the Option shall terminate.
3
Transferability of Option. The Option, if an Incentive Stock
-------------------------
Option, may not be transferred in any manner other than by will or by
the laws of descent and distribution and may be exercised during the
lifetime of the Grantee only by the Grantee; provided, however, that
the Grantee may designate a beneficiary of the Grantee's Incentive
Stock Option in the event of the Grantee's death on a beneficiary
designation form provided by the Administrator. The Option, if a Non-
Qualified Stock Option may be transferred to any person by will and by
the laws of descent and distribution. Non-Qualified Stock Options
also may be transferred during the lifetime of the Grantee by gift and
pursuant to a domestic relations order to members of the Grantee's
Immediate Family to the extent and in the manner determined by the
Administrator. The terms of the Option shall be binding upon the
executors, administrators, heirs, successors and transferees of the
Grantee.
Term of Option. The Option may be exercised no later than the
--------------
Expiration Date set forth in the Notice or such earlier date as
otherwise provided herein.
Tax Consequences. Set forth below is a brief summary as of the
----------------
date of this Option Agreement of some of the federal tax consequences
of exercise of the Option and disposition of the Shares. THIS SUMMARY
IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE
SUBJECT TO CHANGE. THE GRANTEE SHOULD CONSULT A TAX ADVISER BEFORE
EXERCISING THE OPTION OR DISPOSING OF THE SHARES.
Exercise of Incentive Stock Option. If the Option qualifies as an
----------------------------------
Incentive Stock Option, there will be no regular federal income tax liability
upon the exercise of the Option, although the excess, if any, of the Fair Market
Value of the Shares on the date of exercise over the Exercise Price will be
treated as income for purposes of the alternative minimum tax for federal tax
purposes and may subject the Grantee to the alternative minimum tax in the year
of exercise.
Exercise of Incentive Stock Option Following Disability. If the
-------------------------------------------------------
Grantee's Continuous Service terminates as a result of Disability that is not
total and permanent disability as defined in Section 22(e)(3) of the Code, to
the extent permitted on the date of termination, the Grantee must exercise an
Incentive Stock Option within three (3) months of such termination for the
Incentive Stock Option to be qualified as an Incentive Stock Option.
Exercise of Non-Qualified Stock Option. On exercise of a Non-
--------------------------------------
Qualified Stock Option, the Grantee will be treated as having received
compensation income (taxable at ordinary income tax rates) equal to the excess,
if any, of the Fair Market Value of the Shares on the date of exercise over the
Exercise Price. If the Grantee is an Employee or a former Employee, the Company
will be required to withhold from the Grantee's compensation or collect from the
Grantee and pay to the applicable taxing authorities an amount in cash equal to
a percentage of this compensation income at the time of exercise, and may refuse
to honor the exercise and refuse to deliver Shares if such withholding amounts
are not delivered at the time of exercise.
4
Disposition of Shares. In the case of a Non-Qualified Stock Option,
---------------------
if Shares are held for more than one year, any gain realized on disposition of
the Shares will be treated as long-term capital gain for federal income tax
purposes and subject to tax at a maximum rate of 20%. In the case of an
Incentive Stock Option, if Shares transferred pursuant to the Option are held
for more than one year after receipt of the Shares and are disposed more than
two years after the Date of Award, any gain realized on disposition of the
Shares also will be treated as capital gain for federal income tax purposes and
subject to the same tax rates and holding periods that apply to Shares acquired
upon exercise of a Non-Qualified Stock Option. If Shares purchased under an
Incentive Stock Option are disposed of prior to the expiration of such one-year
or two-year periods, any gain realized on such disposition will be treated as
compensation income (taxable at ordinary income rates) to the extent of the
difference between the Exercise Price and the lesser of (i) the Fair Market
Value of the Shares on the date of exercise, or (ii) the sale price of the
Shares.
Entire Agreement: Governing Law. The Notice, the Plan and this
-------------------------------
Option Agreement constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede in their entirety
all prior undertakings and agreements of the Company and the Grantee
with respect to the subject matter hereof, and may not be modified
adversely to the Grantee's interest except by means of a writing
signed by the Company and the Grantee. Nothing in the Notice, the
Plan and this Option Agreement (except as expressly provided therein)
is intended to confer any rights or remedies on any persons other than
the parties. The Notice, the Plan and this Option Agreement are to be
construed in accordance with and governed by the internal laws of the
State of California (as permitted by Section 1646.5 of the California
Civil Code, or any similar successor provision) without giving effect
to any choice of law rule that would cause the application of the laws
of any jurisdiction other than the internal laws of the State of
California to the rights and duties of the parties. Should any
provision of the Notice, the Plan or this Option Agreement be
determined by a court of law to be illegal or unenforceable, such
provision shall be enforced to the fullest extent allowed by law and
the other provisions shall nevertheless remain effective and shall
remain enforceable.
Headings. The captions used in the Notice and this Option
--------
Agreement are inserted for convenience and shall not be deemed a part
of the Option for construction or interpretation.
Dispute Resolution The provisions of this Section 13 shall be
------------------
the exclusive means of resolving disputes arising out of or relating
to the Notice, the Plan and this Option Agreement. The Company, the
Grantee, and the Grantee's assignees pursuant to Section 8 (the
"parties") shall attempt in good faith to resolve any disputes arising
out of or relating to the Notice, the Plan and this Option Agreement
by negotiation between individuals who have authority to settle the
controversy. Negotiations shall be commenced by either party by
notice of a written statement of the party's position and the name and
title of the individual who will represent the party. Within thirty
(30) days of the written notification, the parties shall meet at a
mutually acceptable time and place, and
5
thereafter as often as they reasonably deem necessary, to resolve the
dispute. If the dispute has not been resolved by negotiation, the
parties agree that any suit, action, or proceeding arising out of or
relating to the Notice, the Plan or this Option Agreement shall be
brought in the United States District Court for the Northern District
of California located in the city of San Jose, California (or should
such court lack jurisdiction to hear such action, suit or proceeding,
in a California state court in the County of Santa Clara) and that the
parties shall submit to the jurisdiction of such court. The parties
irrevocably waive, to the fullest extent permitted by law, any
objection the party may have to the laying of venue for any such suit,
action or proceeding brought in such court. THE PARTIES ALSO EXPRESSLY
WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH
SUIT, ACTION OR PROCEEDING. If any one or more provisions of this
Section 13 shall for any reason be held invalid or unenforceable, it
is the specific intent of the parties that such provisions shall be
modified to the minimum extent necessary to make it or its application
valid and enforceable.
Notices. Any notice required or permitted hereunder shall be
-------
given in writing and shall be deemed effectively given upon personal
delivery or upon deposit in the United States mail by certified mail
(if the parties are within the United States) or upon deposit for
delivery by an internationally recognized express mail courier service
(for international delivery of notice), with postage and fees prepaid,
addressed to the other party at its address as shown beneath its
signature in the Notice, or to such other address as such party may
designate in writing from time to time to the other party.
6
EXHIBIT A
---------
PERICOM SEMICONDUCTOR CORPORATION
2001 STOCK INCENTIVE PLAN
EXERCISE NOTICE
---------------
Pericom Semiconductor Corporation
2380 Bering Drive
San Jose, CA 95131
Attention: Secretary
Exercise of Option. Effective as of today, ______________, ___
------------------
the undersigned (the "Grantee") hereby elects to exercise the
Grantee's option to purchase ___________ shares of the Common Stock
(the "Shares") of Pericom Semiconductor Corporation (the "Company")
under and pursuant to the Company's 2001 Stock Incentive Plan, as
amended from time to time (the "Plan") and the [ ] Incentive [ ]
Non-Qualified Stock Option Award Agreement (the "Option Agreement")
and Notice of Grant of Stock Options and Option Agreement (the
"Notice") dated ______________, ________. Unless otherwise defined
herein, the terms defined in the Plan shall have the same defined
meanings in this Exercise Notice.
Representations of the Grantee. The Grantee acknowledges that
------------------------------
the Grantee has received, read and understood the Notice, the Plan,
and the Option Agreement and agrees to abide by and be bound by their
terms and conditions.
Rights as Stockholder. Until the stock certificate evidencing
---------------------
such Shares is issued (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as
a stockholder shall exist with respect to the Shares, notwithstanding
the exercise of the Option. The Company shall issue (or cause to be
issued) such stock certificate promptly after the Option is exercised.
No adjustment will be made for a dividend or other right for which the
record date is prior to the date the stock certificate is issued,
except as provided in Section 10 of the Plan.
Delivery of Payment. The Grantee herewith delivers to the
-------------------
Company the full Exercise Price for the Shares, which, to the extent
selected, shall be deemed to be satisfied by use of the broker-dealer
sale and remittance procedure to pay the Exercise Price provided in
Section 3(d) of the Option Agreement.
Tax Consultation. The Grantee understands that the Grantee may
----------------
suffer adverse tax consequences as a result of the Grantee's purchase
or disposition of
7
the Shares. The Grantee represents that the Grantee has consulted with
any tax consultants the Grantee deems advisable in connection with the
purchase or disposition of the Shares and that the Grantee is not
relying on the Company for any tax advice
Taxes. The Grantee agrees to satisfy all applicable federal,
-----
state and local income and employment tax withholding obligations and
herewith delivers to the Company the full amount of such obligations
or has made arrangements acceptable to the Company to satisfy such
obligations. In the case of an Incentive Stock Option, the Grantee
also agrees, as partial consideration for the designation of the
Option as an Incentive Stock Option, to notify the Company in writing
within thirty (30) days of any disposition of any shares acquired by
exercise of the Option if such disposition occurs within two (2) years
from the Date of Award or within one (1) year from the date the Shares
were transferred to the Grantee. If the Company is required to
satisfy any federal, state or local income or employment tax
withholding obligations as a result of such an early disposition, the
Grantee agrees to satisfy the amount of such withholding in a manner
that the Administrator prescribes.
Successors and Assigns. The Company may assign any of its rights
----------------------
under this Exercise Notice to single or multiple assignees, and this
agreement shall inure to the benefit of the successors and assigns of
the Company. This Exercise Notice shall be binding upon the Grantee
and his or her heirs, executors, administrators, successors and
assigns.
Headings. The captions used in this Exercise Notice are
--------
inserted for convenience and shall not be deemed a part of this
agreement for construction or interpretation.
Dispute Resolution. The provisions of Section 13 of the Option
------------------
Agreement shall be the exclusive means of resolving disputes arising
out of or relating to this Exercise Notice.
Governing Law; Severability. This Exercise Notice is to be
---------------------------
construed in accordance with and governed by the internal laws of the
State of California (as permitted by Section 1646.5 of the California
Civil Code, or any similar successor provision) without giving effect
to any choice of law rule that would cause the application of the laws
of any jurisdiction other than the internal laws of the State of
California to the rights and duties of the parties. Should any
provision of this Exercise Notice be determined by a court of law to
be illegal or unenforceable, such provision shall be enforced to the
fullest extent allowed by law and the other provisions shall
nevertheless remain effective and shall remain enforceable.
Notices. Any notice required or permitted hereunder shall be
-------
given in writing and shall be deemed effectively given upon personal
delivery or upon deposit in the United States mail by certified mail,
(if the parties are within the United States) or upon deposit for
delivery by an internationally recognized
8
express mail courier service (for international delivery of notice)
with postage and fees prepaid, addressed to the other party at its
address as shown below beneath its signature, or to such other address
as such party may designate in writing from time to time to the other
party.
Further Instruments. The parties agree to execute such further
-------------------
instruments and to take such further action as may be reasonably
necessary to carry out the purposes and intent of this agreement.
Entire Agreement. The Notice, the Plan, and the Option Agreement
----------------
are incorporated herein by reference, and together with this Exercise
Notice constitute the entire agreement of the parties with respect to
the subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and the Grantee with
respect to the subject matter hereof, and may not be modified
adversely to the Grantee's interest except by means of a writing
signed by the Company and the Grantee. Nothing in the Notice, the
Plan, the Option Agreement and this Exercise Notice (except as
expressly provided therein) is intended to confer any rights or
remedies on any persons other than the parties.
Submitted by: Accepted by:
GRANTEE: Pericom Semiconductor Corporation
By:___________________________________
________________________________ Title:________________________________
(Signature)
Address: Address:
- ------- -------
________________________________ 2380 Bering Drive
________________________________ San Jose, CA 95131
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