AMENDMENT NO. 1 TO AVIZA, INC. 2003 EQUITYINCENTIVE PLAN
Exhibit 10.5
AMENDMENT NO. 1
TO
AVIZA, INC.
2003 EQUITY INCENTIVE PLAN
Pursuant to the authority reserved to the Board of Directors (the “Board”) of Aviza, Inc., formerly Aviza Technology, Inc. (the “Company”), a corporation organized under the laws of State of Delaware, under Section 15 of the Company’s 2003 Equity Incentive Plan (the “Plan”), the Board hereby amends the Plan as follows.
1. Effective as of December 15, 2006, Section 2 of the Plan is hereby amended to incorporate a new definition following the definition of “Employee,” re-lettering each subsequent definition accordingly, to read in its entirety as follows:
“(l) “Equity Restructuring” shall mean a non-reciprocal transaction between the Company and its stockholders, such as a stock dividend, stock split, spin-off, rights offering or recapitalization through a large, nonrecurring cash dividend, that affects the shares of Stock (or other securities of the Company) or the share price of Stock (or other securities) and causes a change in the per share value of the Stock underlying outstanding Awards.”
2. Effective as of December 15, 2006, Section 13(a) of the Plan is hereby amended to read in its entirety as follows:
“(a) In the event of any combination or exchange of shares, merger, consolidation or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other change affecting the shares of Stock or the share price of the Stock other than an Equity Restructuring, the Committee shall make such proportionate adjustments, if any, as the Committee in its discretion may deem appropriate to reflect such change with respect to (i) the aggregate number and kind of shares that may be issued under the Plan (including, but not limited to, adjustments of the limitations in Sections 3 and 6(c)); (ii) the terms and conditions of any outstanding awards (including, without limitation, any applicable performance targets or criteria with respect thereto); and (iii) the grant or exercise price per share for any outstanding awards under the Plan. Any adjustment affecting an award intended as “qualified performance-based compensation” as described in Section 162(m)(4)(C) of the Code shall be made consistent with the requirements of Section 162(m) of the Code.”
3. Effective as of December 15, 2006, Section 13 of the Plan is hereby amended to incorporate a new subsection (c) following the existing subsection (b) to read in its entirety as follows, with each subsequent subsection re-lettered accordingly:
“(c) In connection with the occurrence of any Equity Restructuring, and notwithstanding anything to the contrary in Section 13(a):
(i) The number and type of securities subject to each outstanding award and the exercise price or grant price thereof, if applicable, will be proportionately adjusted. The adjustments provided under this Section 13(b)(i) shall
be nondiscretionary and shall be final and binding on the affected Holder and the Company.
(ii) The Administrator shall make such proportionate adjustments, if any, as the Administrator in its discretion may deem appropriate to reflect such Equity Restructuring with respect to the aggregate number and kind of shares that may be issued under the Plan (including, but not limited to, adjustments of the limitations in Sections 3 and 6(c)).”
4. Notwithstanding anything in this Amendment No. 1 to the Plan to the contrary, this Amendment No. 1 to the Plan shall not apply to, and instead Sections 13(a) and 13(b) of the Plan shall apply to, any award to which the adoption of this Amendment No. 1 to the Plan by the Board would (A) result in a penalty tax under Section 409A of the Code and the Department of Treasury proposed and final regulations and guidance thereunder or (B) cause any Incentive Stock Option to fail to qualify as an “incentive stock option” under Section 422 of the Code.
