Exhibit 10.1
AXCELIS TECHNOLOGIES, INC.
2000 STOCK PLAN
Adopted by the Board of Directors and Stockholder on June 9, 2000
Amended by the Board of Directors on October 25, 2000 and
July 31, 2001 and Approved by the Stockholders on May 1, 2002 and
further amended by the Board of Directors on December 18, 2003
ARTICLE I
PURPOSE AND ADOPTION OF THE PLAN
1.01 Purpose. The purpose of the Axcelis Technologies,
Inc. 2000 Stock Plan (hereinafter referred to as the "Plan") is
to assist in attracting and retaining highly competent employees,
directors and consultants and to act as an incentive in motivating
selected employees, directors and consultants of Axcelis Technologies,
Inc. and its Subsidiaries (as defined below) to achieve long-term
corporate objectives.
1.02 Adoption and Term. The Plan has been approved by the
Board of Directors of Axcelis Technologies, Inc. and its stockholder
to be effective as of July 14, 2000 (the "Effective Date"). The Plan
shall remain in effect until May 1, 2012 (the 10th anniversary of
the last shareholder approval of the Plan) unless earlier
terminated by action of the Board.
ARTICLE II
DEFINITIONS
For the purposes of this Plan, capitalized terms shall
have the following meanings:
2.01 Award means any grant to a Participant of one or a
combination of Non-Qualified Stock Options or Incentive Stock Options
described in Article VI, Stock Appreciation Rights described in
Article VI, Restricted Shares described in Article VII and
Performance Awards described in Article VIII.
2.02 Award Agreement means a written agreement between the
Company and a Participant or a written notice from the Company to a
Participant specifically setting forth the terms and conditions of
an Award granted under the Plan.
2.03 Award Period means, with respect to an Award, the period
of time set forth in the Award Agreement during which specified target
performance goals must be achieved or other conditions set forth in
the Award Agreement must be satisfied.
2.04 Beneficiary means an individual, trust or estate who or
which, by a written designation of the Participant filed with the
Company or by operation of law, succeeds to the rights and obligations
of the Participant under the Plan and an Award Agreement upon the
Participant's death.
2.05 Board means the Board of Directors of the Company.
2.06 Change in Control means, and shall be deemed to have
occurred upon the occurrence of any one of the following events:
(a) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person")
of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 25% or more of either (i) the then
outstanding shares of common stock of the Company (the "Outstanding
Company Common Stock") or (ii) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally
in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection
(a), the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Company, (ii) any
acquisition by the Company, or (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company; or
(b) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, was approved by
a vote of at least two-thirds of the directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board; or
(c) Consummation by the Company of a reorganization,
merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Company or the acquisition
of assets of another corporation (a "Business Combination"), in
each case, unless, following such Business Combination, (i) all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly,
more than 75% of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as
the case may be, (ii) no Person (excluding any employee benefit plan
(or related trust) of the Company or such corporation resulting from
such Business Combination) beneficially owns, directly or indirectly,
25% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination or
the combined voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership existed prior
to the Business Combination and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at the time
of the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
2.07 Code means the Internal Revenue Code of 1986, as amended.
References to a section of the Code include that section and any
comparable section or sections of any future legislation that amends,
supplements or supersedes said section.
2.08 Company means Axcelis Technologies, Inc., a Delaware
corporation, and its successors.
2.09 Common Stock means Common Stock of the Company, par
value $0.001 per share.
2.10 Company Voting Securities means the combined voting power
of all outstanding securities of the Company entitled to vote generally
in the election of directors of the Company.
2.11 Date of Grant means the date designated by the Board as
the date as of which it grants an Award, which shall not be earlier
than the date on which the Board approves the granting of such Award.
2.12 Disability means a total and permanent disability such that,
due to physical or mental illness, injury or disease, a Participant is
unable to perform any services for the Company and its Subsidiaries and,
in the opinion of a qualified physician designated by the Board, such
disability will be permanent and continuous during the remainder of the
Participant's life.
2.13 Effective Date shall have the meaning given to such term
in Section 1.02.
2.14 Exchange Act means the Securities Exchange Act of 1934,
as amended.
2.15 Exercise Price means, with respect to a Stock Appreciation
Right, the amount established by the Board in the related Award Agreement
as the amount to be subtracted from the Fair Market Value on the date
of exercise in order to determine the amount of the payment to be made
to the Participant, as further described in Section 6.02(b).
2.16 Fair Market Value means, as of any applicable date, the
closing price of a share of the Common Stock on the Nasdaq National
Market System ("NMS") or, if not then authorized for trading on the
NMS but traded on a nationally recognized exchange, the closing
price of a share of the Common on such exchange or, if not then
authorized or traded on any nationally recognized exchange, the
fair market value of the Common Stock as determined in good faith
under procedures established by the Board.
2.17 Incentive Stock Option means a stock option within the
meaning of Section 422 of the Code.
2.18 Merger means any merger, reorganization, consolidation,
share exchange, transfer of assets or other transaction having similar
effect involving the Company.
2.19 Non-Employee Director means a member of the Board who is
not also a common law employee of Company. A member of the Board who
is a common law employee of the Company shall become a Non-Employee
Director as of the date he or she ceases to be an active employee of
the Company. For purposes of this Plan, a member of the Board who
receives deferred compensation or benefits, whether through a qualified
plan or other arrangement, will not be deemed to be an active employee
of the Company solely on account of the receipt of such deferred
compensation or benefits.
2.20 Non-Qualified Stock Option means a stock option which is
not an Incentive Stock Option.
2.21 Options means all Non-Qualified Stock Options and
Incentive Stock Options granted at any time under the Plan.
2.22 Participant means a person designated to receive an Award
under the Plan in accordance with Section 5.01.
2.23 Performance Awards means Awards granted in accordance
with Article VIII.
2.24 Plan means the Axcelis Technologies, Inc. 2000 Stock Plan
as described herein, as the same may be amended from time to time.
2.25 Purchase Price, with respect to Options, shall have the
meaning set forth in Section 6.01(c).
2.26 Restricted Shares means Common Stock subject to restrictions
imposed in connection with Awards granted under Article VII.
2.27 Retirement means a Participant's voluntary Termination of
Employment with the consent of the Board.
2.28 Stock Appreciation Rights means Awards granted in
accordance with Article VI.
2.29 Subsidiary means a subsidiary of the Company within the
meaning of Section 424(f) of the Code.
2.30 Termination of Employment means the voluntary or involuntary
termination of a Participant's employment with the Company or a Subsidiary
for any reason, including death, Disability, Retirement or as the result
of the divestiture of the Participant's employer or any similar transaction
in which the Participant's employer ceases to be the Company or one of its
Subsidiaries. Whether entering military or other government service shall
constitute Termination of Employment, or whether a Termination of
Employment shall occur as a result of Disability, shall be determined
in each case by the Board in its sole discretion. In the case of a Member
of the Board or consultant who is not an employee of the Company or a
Subsidiary, Termination of Employment shall mean voluntary or involuntary
termination of Board service or the consulting relationship, as the case
may be, for any reason.
ARTICLE III
ADMINISTRATION
3.01 Administration. The Plan shall be administered by the
Board, except (i) awards to Non-Employee Directors under Section 6.01(b)
shall be automatic and granted under the terms set forth for Non-Employee
Directors under the Plan without power or authority of the Board (or if
applicable a committee) to alter or amend the number, terms or conditions
of such awards and (ii) awards intended to qualify as exempt from the
limitations on deductible compensation imposed by Section 162(m) of the
Code shall be granted and administered by a committee appointed by the
Board consisting of no fewer than two members of the Board who meet each
and all requirements to serve as outside directors within the meaning of
Section 162(m) of the Code and the regulations promulgated thereunder
(the "162(m) Committee"). Except to the extent of matters reserved for
the 162(m) Committee, the Board (or its designee, as described below)
shall have exclusive and final authority in each determination,
interpretation or other action affecting the Plan and its Participants.
The Board (or its designee, as described below) shall have the sole
discretionary authority to interpret the Plan, to establish and modify
administrative rules for the Plan, to impose such conditions and
restrictions on Awards as it determines appropriate, and to take such
steps in connection with the Plan and Awards granted hereunder as it
may deem necessary or advisable. The Board may, subject to compliance
with applicable legal requirements, delegate to a person or a committee,
none of whom need be members of the Board of the Company, such of its
powers and authority under the Plan as it deems appropriate to designated
officers or employees of the Company. The Board may appoint such person
or committee to exercise any of the authority conferred upon the Board
hereunder and, if a person or committee is designated to so serve, the
term "Board" as used in this Plan shall include such committee. In the
event of any such delegation of authority or exercise of authority by a
person or committee so designated, references in the Plan to the Board
shall be deemed to refer to the delegate of the Board or such committee,
as the case may be.
ARTICLE IV
SHARES
4.01 Number of Shares Issuable. The total number of shares
initially authorized to be issued under the Plan shall be 18,500,000
shares of Common Stock. The number of shares available for issuance
under the Plan shall be subject to adjustment in accordance with
Section 9.07 and, for the purposes of granting Awards other than
Incentive Stock Options, shall be increased annually on the anniversary
of the Effective Date by the lesser of (i) five (5%) percent of the then
number of outstanding shares of Common Stock of the Company,
(ii) 5,000,000 shares or (iii) such lesser amount determined by the
Board. The shares to be offered under the Plan shall be authorized
and unissued shares of Common Stock, or issued shares of Common Stock
which will have been reacquired by the Company.
4.02 Shares Subject to Terminated Awards. Shares of Common
Stock covered by any unexercised portions of terminated Options
(including canceled Options) granted under Article VI, shares of
Common Stock forfeited as provided in Section 7.02(a) and shares
of Common Stock subject to any Award that are otherwise surrendered
by a Participant may be subject to new Awards under the Plan.
Shares of Common Stock subject to Options, or portions thereof,
that have been surrendered in connection with the exercise of Stock
Appreciation Rights shall not be available for subsequent Awards
under the Plan, but shares of Common Stock issued in payment of such
Stock Appreciation Rights shall not be charged against the number of
shares of Common Stock available for the grant of Awards hereunder.
ARTICLE V
PARTICIPATION
Participants in the Plan shall be such employees, directors
and consultants of the Company and its Subsidiaries as the Board,
in its sole discretion, may designate from time to time. The
Board's designation of a Participant in any year shall not require
the Board to designate such person to receive Awards in any other
year. The designation of a Participant to receive an Award under
one portion of the Plan does not require the Board to include such
Participant under other portions of the Plan. The Board shall
consider such factors as it deems pertinent in selecting Participants
and in determining the types and amounts of their respective Awards.
ARTICLE VI
STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
6.01 Option Awards.
(a) Grant of Options. The Board may grant, to such
Participants as the Board may select, Options entitling the
Participants to purchase shares of Common Stock from the Company
in such numbers, at such prices, and on such terms and subject to
such conditions, not inconsistent with the terms of the Plan, as
may be established by the Board. The terms of any Option granted
under the Plan shall be set forth in an Award Agreement. No
Participant may be granted an Option to purchase more than
1,250,000 shares of Common Stock in any fiscal year of the Company,
except that in his or her initial year of service, a Participant
may be granted an Option to purchase up to 1,250,000 shares of
Common Stock.
(b) Non-Employee Director Options.
(i) Annual Grants. Each person serving as a
Non-Employee Director at the commencement of the first meeting
of the Board of Directors following July 1st of each calendar
year (beginning in 2001) will be automatically granted a
Non-Qualified Stock Option on that date to purchase 15,000
shares of Common Stock of the Company. Each such option shall
be evidenced by a written Award Agreement that shall set forth
the following terms:
(1) The per share Purchase Price shall
be equal to the Fair Market Value of a share of Common Stock on
the date of grant, unless then Board determines otherwise in
accordance with Section 6.01(c);
(2) The Option shall expire on the
10th anniversary of the date of grant;
(3) The Option shall be fully vested
on the 181st day after the date of grant; and
(4) The Option shall be exercisable
in accordance with Section 6.04 of this Plan.
(ii) Initial Grants. If a member of the Board
of Directors first becomes a Non-Employee Director after the
initial public offering of the Common Stock of the Company (1)
he or she shall automatically be granted a Non-Qualified Option
to purchase up to 40,000 shares of Common Stock as of the date he
or she first becomes a Non-Employee Director subject to the terms
set forth in (1) through (4) above and (2) he or she shall be
eligible to receive an annual grant of a Non-Qualified Stock Option
as provided above in and each subsequent calendar year thereafter
as long as he or she serves as a Non-Employee Director.
(iii) Non-Exclusive. Nothing set forth in this
section shall prevent the Board from considering Non-Employee
Directors for other awards under this Plan and from making any
Awards to Non-Employee Directors.
(c) Purchase Price of Options. Subject to Section 6.01(e)
with respect to certain Incentive Stock Options, the Purchase Price
of each share of Common Stock which may be purchased upon exercise
of any Option granted under the Plan shall be determined by the
Board; provided, however, that the Purchase Price shall in all cases
be equal to or greater than the Fair Market Value on the Date of
Grant.
(d)) Designation of Options. Except as otherwise expressly
provided in the Plan, the Board may designate, at the time of the
grant of an Option, such Option as an Incentive Stock Option or a
Non-Qualified Stock Option; provided, however, that an Option may
be designated as an Incentive Stock Option only if the applicable
Participant is an employee of the Company or a Subsidiary on the
Date of Grant.
(e) Special Incentive Stock Option Rules. No Participant
may be granted Incentive Stock Options under the Plan (or any other
plans of the Company and its Subsidiaries) that would result in
Incentive Stock Options to purchase shares of Common Stock with an
aggregate Fair Market Value (measured on the Date of Grant) of more
than $100,000 first becoming exercisable by such Participant in any
one calendar year. Notwithstanding any other provision of the Plan
to the contrary, no Incentive Stock Option shall be granted to any
person who, at the time the Option is granted, owns stock (including
stock owned by application of the constructive ownership rules in
Section 424(d) of the Code) possessing more than 10% of the total
combined voting power of all classes of stock of the Company or any
Subsidiary, unless at the time the Incentive Stock Option is granted
the Option price is at least 110% of the Fair Market Value of the
Common Stock subject to the Incentive Stock Option and the Incentive
Stock Option by its terms is not exercisable for more than five (5)
years from the Date of Grant.
(f) Rights as a Shareholder. A Participant or a transferee
of an Option pursuant to Section 9.04 shall have no rights as a
shareholder with respect to the shares of Common Stock covered by an
Option until that Participant or transferee shall have become the
holder of record of any such shares, and no adjustment shall be made
with respect to any such shares of Common Stock for dividends in cash
or other property or distributions of other rights on the Common Stock
for which the record date is prior to the date on which that Participant
or transferee shall have become the holder of record of any shares
covered by such Option; provided, however, that Participants are
entitled to share adjustments to reflect capital changes under Section
9.07.
6.02 Stock Appreciation Rights.
(a) Stock Appreciation Right Awards. The Board is authorized
to grant to any Participant one or more Stock Appreciation Rights.
Such Stock Appreciation Rights may be granted either independent of
or in tandem with Options granted to the same Participant. Stock
Appreciation Rights granted in tandem with Options may be granted
simultaneously with, or, in the case of Non-Qualified Stock Options,
subsequent to, the grant to such Participant of the related Options;
provided, however, that: (i) any Option covering any share of Common
Stock shall expire and not be exercisable upon the exercise of any Stock
Appreciation Right with respect to the same share, (ii) any Stock
Appreciation Right covering any share of Common Stock shall expire
and not be exercisable upon the exercise of any Option with respect
to the same share, and (iii) an Option and a Stock Appreciation Right
covering the same share of Common Stock may not be exercised
simultaneously. Upon exercise of a Stock Appreciation Right with
respect to a share of Common Stock, the Participant shall be entitled
to receive an amount equal to the excess, if any, of (A) the Fair
Market Value of a share of Common Stock on the date of exercise over
(B) the Exercise Price of such Stock Appreciation Right established
in the Award Agreement, which amount shall be payable as provided in
Section 6.02(c).
(b) Exercise Price. The Exercise Price established for any
Stock Appreciation Right granted under this Plan shall be determined
by the Board, but in the case of Stock Appreciation Rights granted in
tandem with Options shall not be less than the Purchase Price of the
related Options. Upon exercise of Stock Appreciation Rights, the
number of shares issuable upon exercise under any related Options
shall automatically be reduced by the number of shares of Common
Stock represented by such Options which are surrendered as a result
of the exercise of such Stock Appreciation Rights.
(c) Payment of Incremental Value. Any payment that may
become due from the Company by reason of a Participant's exercise
of a Stock Appreciation Right may be paid to the Participant as
determined by the Board (i) all in cash, (ii) all in Common Stock,
or (iii) in any combination of cash and Common Stock. In the event
that all or a portion of the payment is to be made in Common Stock,
the number of shares of Common Stock to be delivered in satisfaction
of such payment shall be determined by dividing the amount of such
payment or portion thereof by the Fair Market Value on the date of
exercise . No fractional share of Common Stock shall be issued to
make any payment in respect of Stock Appreciation Rights; if any
fractional share would otherwise be issuable, the combination of
cash and Common Stock payable to a Participant shall be adjusted as
directed by the Board to avoid the issuance of any fractional share.
6.03 Terms of Stock Options and Stock Appreciation Rights.
(a) Conditions on Exercise. An Award Agreement with respect
to Options and/or Stock Appreciation Rights may contain such waiting
periods, exercise dates and restrictions on exercise (including, but
not limited to, periodic installments) as may be determined by the
Board at the time of grant.
(b) Duration of Options and Stock Appreciation Rights.
Options and Stock Appreciation Rights shall terminate after the first
to occur of the following events:
(i) Expiration of the Option or Stock Appreciation
Right as provided in the related Award Agreement; or
(ii) Termination of the Award as provided in Section
6.03(e), following the applicable Participant's Termination of
Employment; or
(iii) In the case of an Incentive Stock Option, ten
years from the Date of Grant (five years in certain cases, as
described in Section 6.01(e)) Non-Qualified Stock Options may, if so
approved by the Board, have a stated term in excess of ten years, but
such Options shall in all events be subject to termination in
accordance with clauses (i) and (ii) above); or
(iv) Solely in the case of a Stock Appreciation Right
granted in tandem with an Option, upon the expiration of the related
Option.
(c) Acceleration of Exercise Time. The Board, in its sole
discretion, shall have the right (but shall not in any case be
obligated), exercisable at any time after the Date of Grant, to permit
the exercise of any Option or Stock Appreciation Right prior to the
time such Option or Stock Appreciation Right would otherwise become
exercisable under the terms of the related Award Agreement.
(d) Extension of Exercise Time. In addition to the extensions
permitted under Section 6.03(e) in the event of Termination of
Employment, the Board, in its sole discretion, shall have the right
(but shall not in any case be obligated), exercisable on or at any
time after the Date of Grant, to permit the exercise of any Option or
Stock Appreciation Right after its expiration date described in
Section 6.03(e), subject, however, to the limitations described in
Sections 6.03(b)(i), (iii) and (iv).
(e) Exercise of Options or Stock Appreciation Rights Upon
Termination of Employment. Unless an Optionee's Award Agreement
provides otherwise, the following rules shall govern the treatment
of Options and Stock Appreciation Rights upon Termination of
Employment:
(i) Termination of Vested Options and Stock Appreciation
Rights Upon Termination of Employment.
(A) Reasons Other Than Death, Disability or
Retirement. In the event of a Participant's voluntary or involuntary
Termination of Employment for any reason other than death, Disability
or Retirement, the right of the Participant to exercise any Option or
Stock Appreciation Right shall terminate on the date of such
Termination of Employment, unless the exercise period is extended by
the Board in accordance with Section 6.03(d).
(B) Death, Disability or Retirement. In the
event of a Participant's Termination of Employment by reason of death,
Disability or Retirement, the right of the Participant to exercise
any Option or Stock Appreciation Right which he or she was entitled
to exercise upon Termination of Employment (or which became exercisable
pursuant to Section 6.03(e)(ii)) shall, unless the exercise period is
extended by the Board in accordance with Section 6.03(d), terminate
upon the earlier of (i) the later to occur of (A) first anniversary of
the date of such Termination of Employment and (B) the first anniversary
of the date of consummation of a public offering of the Common Stock
and (ii) the date of expiration of the Option determined pursuant to
Section 6.03(b)(i), (iii) or (iv).
(ii) Termination of Unvested Options or Stock
Appreciation Rights Upon Termination of Employment. Subject to Section
6.03(c), to the extent the right to exercise an Option or a Stock
Appreciation Right, or any portion thereof, has not accrued as of the
date of Termination of Employment, such right shall expire at the date
of such Termination of Employment regardless of the reason for such
Termination of Employment. Notwithstanding the foregoing, the Board,
in its sole discretion and under such terms as it deems appropriate,
may permit, for a Participant who terminates employment by reason of
Retirement and who will continue to render significant services to the
Company or one of its Subsidiaries after his or her Termination of
Employment, the continued vesting of his or her Options and Stock
Appreciation Rights during the period in which that individual
continues to render such services.
6.04 Exercise Procedures. Each Option and Stock Appreciation
Right granted under the Plan shall be exercised by written notice to
the Company which must be received by the officer or employee of the
Company designated in the Award Agreement at or before the close of
business on the expiration date of the Award. The Purchase Price of
shares purchased upon exercise of an Option granted under the Plan
shall be paid in full in cash by the Participant pursuant to the
Award Agreement; provided, however, that the Board may (but shall not
be required to) permit payment to be made by delivery to the Company
of either (a) shares of Common Stock held by the Participant for at
least six months (which may include Restricted Shares, subject to such
rules as the Board deems appropriate) or (b) any combination of cash and
Common Stock or (c) such other consideration as the Board deems
appropriate and in compliance with applicable law (including payment in
accordance with a cashless exercise program under which, if so
instructed by a Participant, shares of Common Stock may be issued
directly to the Participant's broker or dealer upon receipt of an
irrevocable written notice of exercise from the Participant). In the
event that any shares of Common Stock shall be transferred to the
Company to satisfy all or any part of the Purchase Price, the part of
the Purchase Price deemed to have been satisfied by such transfer of
shares of Common Stock shall be equal to the product derived by
multiplying the Fair Market Value as of the date of exercise times the
number of shares of Common Stock transferred to the Company. The
Participant may not transfer to the Company in satisfaction of the
Purchase Price any fractional share of Common Stock. Any part of the
Purchase Price paid in cash upon the exercise of any Option shall be
added to the general funds of the Company and may be used for any proper
corporate purpose. Unless the Board shall otherwise determine, any
shares of Common Stock transferred to the Company as payment of all or
part of the Purchase Price upon the exercise of any Option shall be
held as treasury shares.
6.05 Change in Control. Unless otherwise provided by the Board
in the applicable Award Agreement, in the event of a Change in Control,
all Options and Stock Appreciation Rights outstanding on the date of such
Change in Control shall become immediately and fully exercisable. The
provisions of this Section 6.05 shall not be applicable to any Options
or Stock Appreciation Rights granted to a Participant if any Change in
Control results from such Participant's beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of Company Voting
Securities.
ARTICLE VII
RESTRICTED SHARES
7.01 Restricted Share Awards. The Board may grant to any
Participant an Award of such number of shares of Common Stock on
such terms, conditions and restrictions, whether based on
performance standards, periods of service, retention by the
Participant of ownership of purchased or designated shares of
Common Stock or other criteria, as the Board shall establish.
The terms of any Restricted Share Award granted under this Plan
shall be set forth in an Award Agreement which shall contain
provisions determined by the Board and not inconsistent with
this Plan.
(a) Issuance of Restricted Shares. As soon as
practicable after the Date of Grant of a Restricted Share Award
by the Board, the Company shall cause to be transferred on the
books of the Company or its agent, shares of Common Stock,
registered on behalf of the Participant, evidencing the
Restricted Shares covered by the Award, subject to forfeiture to
the Company as of the Date of Grant if an Award Agreement with
respect to the Restricted Shares covered by the Award is not
duly executed by the Participant and timely returned to the Company.
All shares of Common Stock covered by Awards under this Article VII
shall be subject to the restrictions, terms and conditions contained
in the Plan and the applicable Award Agreements entered into by the
appropriate Participants. Until the lapse or release of all
restrictions applicable to an Award of Restricted Shares the share
certificates representing such Restricted Shares may be held in custody
by the Company, its designee, or, if the certificates bear a restrictive
legend, by the Participant. Upon the lapse or release of all
restrictions with respect to an Award as described in Section 7.01(d),
one or more share certificates, registered in the name of the
Participant, for an appropriate number of shares as provided in
Section 7.01(d), free of any restrictions set forth in the Plan and
the related Award Agreement shall be delivered to the Participant.
(b) Shareholder Rights. Beginning on the Date of Grant
of a Restricted Share Award and subject to execution of the related
Award Agreement as provided in Section 7.01(a), and except as otherwise
provided in such Award Agreement, the Participant shall become a
shareholder of the Company with respect to all shares subject to the
Award Agreement and shall have all of the rights of a shareholder,
including, but not limited to, the right to vote such shares and the
right to receive dividends; provided, however, that any shares of Common
Stock distributed as a dividend or otherwise with respect to any
Restricted Shares as to which the restrictions have not yet lapsed,
shall be subject to the same restrictions as such Restricted Shares and
held or restricted as provided in Section 7.01(a).
(c) Restriction on Transferability. None of the
Restricted Shares may be assigned or transferred (other than by will
or the laws of descent and distribution or to an inter vivos trust with
respect to which the Participant is treated as the owner under Sections
671 through 677 of the Code), pledged or sold prior to the lapse of the
restrictions applicable thereto.
(d) Delivery of Shares Upon Vesting. Upon expiration or
earlier termination of the forfeiture period without a forfeiture and the
satisfaction of or release from any other conditions prescribed by the
Board, or at such earlier time as provided under the provisions of
Section 7.03, the restrictions applicable to the Restricted Shares shall
lapse. As promptly as administratively feasible thereafter, subject to
the requirements of Section 9.05, the Company shall deliver to the
Participant or, in case of the Participant's death, to the Participant's
Beneficiary, one or more share certificates for the appropriate number of
shares of Common Stock, free of all such restrictions, except for any
restrictions that may be imposed by law.
7.02 Terms of Restricted Shares.
(a) Forfeiture of Restricted Shares. Subject to Sections
7.02(b) and 7.03, Restricted Shares shall be forfeited and returned to
the Company and all rights of the Participant with respect to such
Restricted Shares shall terminate unless the Participant continues in
the service of the Company or a Subsidiary as an employee until the
expiration of the forfeiture period for such Restricted Shares and
satisfies any and all other conditions set forth in the Award Agreement.
The Board shall determine the forfeiture period (which may, but need not,
lapse in installments) and any other terms and conditions applicable
with respect to any Restricted Share Award.
(b) Waiver of Forfeiture Period. Notwithstanding
anything contained in this Article VII to the contrary, the Board may,
in its sole discretion, waive the forfeiture period and any
other conditions set forth in any Award Agreement under appropriate
circumstances (including the death, Disability or Retirement of the
Participant or a material change in circumstances arising after the
date of an Award) and subject to such terms and conditions (including
forfeiture of a proportionate number of the Restricted Shares) as the
Board shall deem appropriate.
(c) Repurchase Rights. The Board may, but shall not be
required to, grant to Participants who promptly inform the Board of their
intention to elect federal income taxation under Section 83(b) of the
Code, the right to require the Company to repurchase upon their
termination of employment for any reason other than cause the shares for
which federal income tax treatment under Section 83(b) of the Code was
elected. Such repurchase right, if granted, may be exercised by the
Participant at any time after his or her termination of employment at
a price to be determined by the Board at the date of grant but in no
event greater than the fair market value of such shares at the time
federal income tax treatment under Section 83(b) of the Code was elected.
7.03 Change in Control. Unless otherwise provided by the Board
in the applicable Award Agreement, in the event of a Change in Control,
all restrictions applicable to the Restricted Share Award shall terminate
fully and the Participant shall immediately have the right to the
delivery of share certificates for such shares in accordance with
Section 7.01(d).
ARTICLE VIII
PERFORMANCE AWARDS
8.01 Performance Awards.
(a) Award Periods and Calculations of Potential Incentive
Amounts. The Board may grant Performance Awards to Participants. A
Performance Award shall consist of the right to receive a payment
(measured by the Fair Market Value of a specified number of shares of
Common Stock, increases in such Fair Market Value during the Award
Period and/or a fixed cash amount) contingent upon the extent to which
certain predetermined performance targets have been met during an Award
Period. Performance Awards may be made in conjunction with, or in addition
to, any other Awards made under this Plan. The Award Period shall be two
or more fiscal or calendar years as determined by the Board. The Board,
in its discretion and under such terms as it deems appropriate, may
permit newly eligible employees, such as those who are promoted or newly
hired, to receive Performance Awards after an Award Period has commenced.
(b) Performance Targets. The performance targets may
include such goals related to the performance of the Company and/or the
performance of a Participant as may be established by the Board in its
discretion. The performance targets established by the Board may vary for
different Award Periods and need not be the same for each Participant
receiving a Performance Award in an Award Period. The Board, in its
discretion, but only under extraordinary circumstances as determined by
the Board, may change any prior determination of performance targets for
any Award Period at any time prior to the final determination of the
value of a related Performance Award when events or transactions occur
to cause such performance targets to be an inappropriate measure of
achievement.
(c) Earning Performance Awards. The Board, on or as soon
as practicable after the Date of Grant, shall prescribe a formula to
determine the percentage of the applicable Performance Award to be earned
based upon the degree of attainment of performance targets.
(d) Payment of Earned Performance Awards. Payments of
earned Performance Awards shall be made in cash or shares of Common Stock
or a combination of cash and shares of Common Stock, in the discretion of
the Board. The Board, in its sole discretion, may provide such terms and
conditions with respect to the payment of earned Performance Awards as it
may deem desirable.
8.02 Terms of Performance Awards.
(a) Termination of Employment. Unless otherwise provided
below or in Section 8.03, in the case of a Participant's Termination of
Employment prior to the end of an Award Period, the Participant will not
have earned any Performance Awards for that Award Period.
(b) Retirement. If a Participant's Termination of
Employment is because of Retirement prior to the end of an Award Period,
the Participant will not be paid any Performance Award, unless the Board,
in its sole and exclusive discretion, determines that an Award should be
paid. In such a case, the Participant shall be entitled to receive a
pro-rata portion of his or her Award as determined under subsection (d).
(c) Death or Disability. If a Participant's Termination
of Employment is due to death or to Disability (as determined in the sole
and exclusive discretion of the Board) prior to the end of an Award Period,
the Participant or the Participant's personal representative shall be
entitled to receive a pro-rata share of his or her Award as determined
under subsection (d).
(d) Pro-Rata Payment. The amount of any payment to be
made to a Participant whose employment is terminated by Retirement, death
or Disability (under the circumstances described in subsections (b) and
(c)) will be the amount determined by multiplying (i) the amount of the
Performance Award that would have been earned through the end of the Award
Period had such employment not been terminated by (ii) a fraction, the
numerator of which is the number of whole months such Participant was
employed during the Award Period, and the denominator of which is the
total number of months of the Award Period. Any such payment made to a
Participant whose employment is terminated prior to the end of an Award
Period shall be made at the end of such Award Period, unless otherwise
determined by the Board in its sole discretion. Any partial payment
previously made or credited to a deferred account for the benefit of a
Participant in accordance with Section 8.01(d) of the Plan shall be
subtracted from the amount otherwise determined as payable as provided
in this Section 8.02(d).
(e) Other Events. Notwithstanding anything to the
contrary in this Article VIII, the Board may, in its sole and exclusive
discretion, determine to pay all or any portion of a Performance Award
to a Participant who has terminated employment prior to the end of an
Award Period under certain circumstances (including the death,
Disability or Retirement of the Participant or a material change in
circumstances arising after the Date of Grant), subject to such terms
and conditions as the Board shall deem appropriate.
8.03 Change in Control. Unless otherwise provided by the
Board in the applicable Award Agreement, in the event of a Change
in Control, all Performance Awards for all Award Periods shall
immediately become fully vested and payable to all Participants and
shall be paid to Participants within 30 days after such Change in
Control.
ARTICLE IX
TERMS APPLICABLE TO ALL AWARDS GRANTED UNDER THE PLAN
9.01 Plan Provisions Control Award Terms. The terms of the
Plan shall govern all Awards granted under the Plan, and in no event
shall the Board have the power to grant any Award under the Plan the
terms of which are contrary to any of the provisions of the Plan. In
the event any provision of any Award granted under the Plan shall
conflict with any term in the Plan as constituted on the Date of Grant
of such Award, the term in the Plan as constituted on the Date of Grant
of such Award shall control. Except as provided in Section 9.03 and
Section 9.07, the terms of any Award granted under the Plan may not be
changed after the Date of Grant of such Award so as to materially
decrease the value of the Award without the express written approval
of the holder.
9.02 Award Agreement. No person shall have any rights under
any Award granted under the Plan unless and until the Company and the
Participant to whom such Award shall have been granted shall have
executed and delivered an Award Agreement or the Participant shall
have received and acknowledged notice of the Award authorized by the
Board expressly granting the Award to such person and containing
provisions setting forth the terms of the Award.
9.03 Modification of Award After Grant. No Award granted under
the Plan to a Participant may be modified (unless such modification does
not materially decrease the value of that Award) after its Date of Grant
except by express written agreement between the Company and such
Participant, provided that any such change (a) may not be inconsistent
with the terms of the Plan, and (b) shall be approved by the Board.
9.04 Limitation on Transfer. Except as provided in Section
7.01(c) in the case of Restricted Shares, a Participant's rights and
interest under the Plan may not be assigned or transferred other than
by will or the laws of descent and distribution and, during the lifetime
of a Participant, only the Participant personally (or the Participant's
personal representative) may exercise rights under the Plan. The
Participant's Beneficiary may exercise the Participant's rights to the
extent they are exercisable under the Plan following the death of the
Participant. Notwithstanding the foregoing, the Board may grant
Non-Qualified Stock Options that are transferable, without payment of
consideration, to such persons, including, but not limited to, immediate
family members of the Participant or to trusts or partnerships for such
family members, and the Board may also amend outstanding Non-Qualified
Stock Options to provide for such transferability.
9.05 Taxes. The Company shall be entitled, if the Board deems
it necessary or desirable, to withhold (or secure payment from the
Participant in lieu of withholding) the amount of any withholding or
other tax required by law to be withheld or paid by the Company with
respect to any amount payable and/or shares issuable under such
Participant's Award or with respect to any income recognized upon a
disqualifying disposition (i.e. a disposition prior to the expiration
of the requisite holding periods) of shares received pursuant to the
exercise of an Incentive Stock Option, and the Company may defer payment
of cash or issuance of shares upon exercise or vesting of an Award unless
indemnified to its satisfaction against any liability for any such tax.
The amount of such withholding or tax payment shall be determined by the
Board and shall be payable by the Participant in cash at such time as
the Board determines; provided, however, that with the approval of the
Board, the Participant may elect to meet his or her withholding
requirement, in whole or in part, by having withheld from such Award at
the appropriate time that number of shares of Common Stock, rounded up
to the next whole share, the Fair Market Value of which is equal to the
amount of withholding taxes due.
9.06 Intentionally Omitted
9.07 Adjustments to Reflect Capital Changes.
(a) Recapitalization. The number and kind of shares
subject to outstanding Awards, the Purchase Price or Exercise Price for
such shares, the number and kind of shares available for Awards
subsequently granted under the Plan and the maximum number of shares in
respect of which Awards can be made to any Participant in any calendar
year shall be appropriately adjusted to reflect any stock dividend,
stock split, combination or exchange of shares, merger, consolidation
or other change in capitalization with a similar substantive effect
upon the Plan or the Awards granted under the Plan. The Board shall
have the power and sole discretion to determine the amount of the
adjustment to be made in each case.
(b) Merger. After any Merger in which the Company is
the surviving corporation, each Participant shall, at no additional
cost, be entitled upon any exercise of an Option or receipt of any other
Award to receive (subject to any required action by shareholders), in
lieu of the number of shares of Common Stock receivable or exercisable
pursuant to such Award prior to such Merger, the number and class of
shares or other securities to which such Participant would have been
entitled pursuant to the terms of the Merger if, at the time of the
Merger, such Participant had been the holder of record of a number of
shares of Common Stock equal to the number of shares of Common Stock
receivable or exercisable pursuant to such Award. Comparable rights
shall accrue to each Participant in the event of successive Mergers of
the character described above. In the event of a Merger in which the
Company is not the surviving corporation, the surviving, continuing,
successor or purchasing corporation, as the case may be (the "Acquiring
Corporation"), will either assume the Company's rights and obligations
under outstanding Award Agreements or substitute awards in respect of
the Acquiring Corporation's stock for outstanding Awards, provided,
however, that if the Acquiring Corporation does not assume or substitute
for such outstanding Awards, the Board shall provide prior to the Merger
that any unexercisable and/or unvested portion of the outstanding Awards
shall be immediately exercisable and vested as of a date prior to such
Merger, as the Board so determines. The exercise and/or vesting of any
Award that was permissible solely by reason of this Section 9.07(b)
shall be conditioned upon the consummation of the Merger. Any Options
which are neither assumed by the Acquiring Corporation not exercised as
of the date of the Merger shall terminate effective as of the effective
date of the Merger.
(c) Options to Purchase Shares or Stock of Acquired
Companies. After any merger in which the Company or a Subsidiary shall
be a surviving corporation, the Board may grant substituted options under
the provisions of the Plan, pursuant to Section 424 of the Code, replacing
old options granted under a plan of another party to the merger whose
shares of stock subject to the old options may no longer be issued
following the merger. The manner of application of the foregoing
provisions to such options and any appropriate adjustments shall be
determined by the Board in its sole discretion. Any such adjustments
may provide for the elimination of any fractional shares which might
otherwise become subject to any Options.
9.08 Certain Conditions on Awards. The Board may cancel any
unexpired Awards at any time the Participant is not in compliance with
any agreement between the Company and the Participant or any other
legal obligation of the Participant relating to non-competition,
confidentiality or proprietary interests and failure to comply with
such agreements or obligations prior to, or during the twelve (12)
months after, any exercise of an Option or Stock Appreciation Right
shall result in the rescission of the exercise and the difference
between the Fair Market Value on the date of exercise of the subject
shares of Common Stock and the Purchase Price or Exercise Price, as
the case may be, shall be returned to the Company by the Participant
in cash within ten (10) days after notice of the rescission has been
given to the Participant by the Company. Such notice may be given at
any time within two years of the date of exercise.
9.09 Initial Public Offering. As a condition of
participation under this Plan, each Participant shall be obligated
to cooperate with the Company and the underwriters in connection
with any public offering of the Company's securities and any
transactions relating thereto and shall execute and deliver such
agreements and documents, including without limitation, a lock-up
agreement, as may be requested by the Company or the underwriters.
The Participants' obligations under this Section 9.09 shall apply
to any shares of Common Stock issued under the Plan as well as to
any and all other securities of the Company or its successor for
which such Common Stock may be exchanged or into which such Common
Stock may be converted.
9.10 No Right to Employment. No employee or other person
shall have any claim of right to be granted an Award under the Plan.
Neither the Plan nor any action taken hereunder shall be construed as
giving any employee any right to be retained in the employ of the
Company or any of its Subsidiaries.
9.11 Awards Not Includable for Benefit Purposes. Payments
received by a Participant pursuant to the provisions of the Plan
shall not be included in the determination of benefits under any
pension, group insurance or other benefit plan applicable to the
Participant which is maintained by the Company or any of its
Subsidiaries, except as may be provided under the terms of such
plans or determined by the Board.
9.12 Governing Law. All determinations made and actions
taken pursuant to the Plan shall be governed by the internal laws
of the State of Delaware, except for its principles of conflict of
laws, and construed in accordance therewith.
9.13 No Strict Construction. No rule of strict construction
shall be implied against the Company, the Board or any other person
in the interpretation of any of the terms of the Plan, any Award
granted under the Plan or any rule or procedure established by the
Board.
9.14 Captions. The captions (i.e., all Section headings)
used in the Plan are for convenience only, do not constitute a part
of the Plan, and shall not be deemed to limit, characterize or affect
in any way any provisions of the Plan, and all provisions of the Plan
shall be construed as if no captions had been used in the Plan.
9.15 Severability. Whenever possible, each provision in the
Plan and every Award at any time granted under the Plan shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of the Plan or any Award at
any time granted under the Plan shall be held to be prohibited by
or invalid under applicable law, then (a) such provision shall be
deemed amended to accomplish the objectives of the provision as
originally written to the fullest extent permitted by law and (b)
all other provisions of the Plan, such Award and every other Award
at any time granted under the Plan shall remain in full force and
effect.
9.16 Amendment and Termination.
(a) Amendment. The Board shall have complete power
and authority to amend the Plan at any time. No termination or
amendment of the Plan may, without the consent of the Participant
to whom any Award shall theretofore have been granted under the
Plan, materially adversely affect the right of such individual
under such Award.
(b) Termination. The Board shall have the right
and the power to terminate the Plan at any time. No Award shall
be granted under the Plan after the termination of the Plan, but
the termination of the Plan shall not have any other effect and
any Award outstanding at the time of the termination of the Plan
may be exercised after termination of the Plan at any time prior
to the expiration date of such Award to the same extent such Award
would have been exercisable had the Plan not been terminated.