DIGENE CORPORATION AMENDMENT TO THE AMENDED AND RESTATED 1999 INCENTIVE PLAN

EX-10.13.(A) 5 w24840exv10w13wxay.htm EX-10.13.(A) exv10w13wxay

EXHIBIT 10.13(a)
EXHIBIT A

DIGENE CORPORATION
AMENDMENT TO THE AMENDED AND RESTATED 1999 INCENTIVE PLAN

Equity Incentive Awards to Employees Working in France

Purpose of this Amendment.

The purpose of this Amendment (the “French Sub-Plan”) to the Amended and Restated 1999 Incentive Plan, as amended (the “Plan”) of Digene Corporation (the “Company”), is to enable the Company to grant to Employees, working in France, either temporarily or permanently and employed by either the Company or any Subsidiary, or working for the Company or any Subsidiary and residing in France (the “French Employees”), Stock Options and Restricted Stock Unit Awards under the Plan in a manner consistent with applicable law. Without limiting the foregoing, as of and after the date this French Sub-Plan, as amended, is adopted and approved by the Committee, the Stock Options and Restricted Stock Unit awards granted to French Employees under this French Sub-Plan are intended to qualify under Sections L. 225-177 to L. 225-186 of the French commercial code to benefit from both preferential tax treatment and an exemption from social charges.

Unless otherwise defined herein, the capitalized terms used in this French Sub-Plan shall have the meanings set forth in the Plan.

In the event of a conflict between the provisions of the Plan and this French Sub-Plan with respect to Awards granted to any French Employee, the provisions of this French Sub-Plan shall control. Except as amended by this French Sub-Plan, the Plan shall continue in full force and effect.

Provisions Specific to Awards to French Employees.

(a)

Eligible Participants.

(i) The Participants eligible to receive Stock Option Awards and Restricted Stock Unit Awards under this French Sub-Plan include the French Employees, including any director or manager having a management function in France for the Company or any Subsidiary organized under French law; provided, however, that if any such Participant is subject to U.S. federal tax laws at the time of the proposed Award, such Participant shall not be eligible for Awards under this French Sub-Plan at such time. No other Participants under the Plan or independent contractors or consultants to the Company or any of its Subsidiaries are eligible to receive Stock Option Awards or Restricted Stock Unit Awards under this French Sub-Plan.

(ii) Neither Stock Options nor Restricted Stock Unit Awards shall be granted under this French Sub-Plan to any French Employee who holds shares representing 10% or more of the Company’s outstanding common stock at the time of the Award.

(b) Eligible Subsidiary. In the event of any future change to the definition of Subsidiary under the Plan, French Employees who receive Stock Options issued by the Company or Restricted Stock Units awarded by the Company must be employed by a company with sufficiently close capital links to the Company, therefore, at least 10% of the French Employee’s

employer company’s capital must be held, directly or indirectly, by the Company (or the employer company must directly or indirectly hold at least 10% of the Company’s capital) or at least 50% of the employer’s company capital must be held, directly or indirectly, by a company which holds, directly or indirectly, at least 50% of the Company’s capital.

(i) The exercise price at the time of the grant of any Stock Option granted to a French Employee under this French Sub-Plan shall be the Fair Market Value on the Date of Grant. If such exercise price is no less than 80% of the average Fair Market Value of the Common Stock during the 20 trading days preceding the Award, or 80% of the average repurchase price of the shares of Common Stock held by the Company (if the Company elects to grant Stock Options based on authorized and issued shares reacquired by the Company and allocated to cover the Stock Option Award to a French Employee), then such Award will be “qualified” for French law purposes under this French Sub-Plan.

(ii) Notwithstanding any other provision of the Plan, including, without limitation, Section 4.3 (Changes) and Section 6.4(j) (Merger and Other Fundamental Transactions), the exercise price of any Stock Option granted to a French Employee under this French Sub-Plan is fixed as of the date of grant and shall be adjusted only upon the occurrence of an event specified under the French commercial code (Section L. 225-181).

(d) Restrictions on Granting of Awards. Notwithstanding any other provision of the Plan or applicable law, no Stock Option Awards or Restricted Stock Unit Awards shall be made to any French Employee under this French Sub-Plan:

(i) within twenty (20) trading days following a distribution of dividends or a capital increase of the Company (with trading days meaning trading on the principal stock exchange on which the Company’s Common Stock is then listed);

(ii) during the ten (10) trading days preceding and following the filing, with the U.S. Securities and Exchange Commission, of the Company’s Annual Report on Form 10-K or any Quarterly Report on Form 10-Q (or any successor form to either the Form 10-K or Form 10-Q); or

(iii) during a period starting on the date that the Company becomes aware of information which could have a significant impact on the Company’s Common Stock price and ending ten (10) trading days after this information has been made public in compliance with applicable law. The Committee shall have the authority to make the determination called for by this Section 2(d)(iii) at the time of any applicable Award.

(e) Holding Period. Each Stock Option Award to a French Employee under this French Sub-Plan shall provide that either: (i) the Stock Options shall not begin to vest until the date four (4) years after the Date of Grant; or (ii) the Optionee shall be entitled to exercise all or a portion of the Stock Option Award in accordance with the vesting schedule, but shall not be entitled to sell the underlying Common Stock until at least four (4) years after the Date of Grant. Each Restricted Stock Unit Award to a French Employee under this French Sub-Plan shall provide:

(1) a minimum vesting schedule of two (2) years after the Date of Grant; and (2) a mandatory two (2) year holding period on the Shares received on the vesting date.

(f) Death or Disability of French Employee. In the event of the death of a French Employee with outstanding Stock Options at the time of his or her death, the Stock Options may be exercised at any time during a maximum six (6) month period following the date of the French Employee’s death by the French Employee’s estate or by a person who acquired the right to exercise the Stock Option by request or inheritance, but only to the extent that the French Employee was entitled to exercise the Stock Options at the date of death or would have been entitled to exercise the Stock Options during the said maximum six (6) month period. If the successors do not exercise the Stock Options granted to such French Employee during such six-month period, the successors’ rights in respect of such Stock Options shall lapse in total without any formality and the shares of Common Stock underlying such Stock Options shall revert to the Plan. This provision specifically alters the provisions of Section 6.4(f) (Death) of the Plan as related to Stock Option Awards to French Employees under this French Sub-Plan.

In the event of the Disability of a French Employee prior to the vesting of any Restricted Stock Unit Award, the forfeiture restrictions shall lapse as set forth in Section 8.2(d) of the Plan; provided, that the Company shall retain the certificate representing the then-vested Shares for the benefit of the French Employee until at least two full years have elapsed since the Date of Grant; and the French Employee must thereafter comply with the additional two-year holding period described in Paragraph 2(e) of this French Sub-Plan, after delivery of the certificate from the Company, with respect to any such Restricted Stock Unit Awards. This provision specifically alters the provision of Section 8.2(d) (Termination of Employment) of the Plan as related to Restricted Stock Unit Awards to French Employees under this French Sub-Plan.

(g) Size of Award. No more than one-third of the Company’s outstanding Common Stock may be subject to Stock Options Awards and Restricted Stock Unit Awards under this French Sub-Plan at any time during the term of the Plan.

(h) Restrictions on Requirement to Hold Common Stock after Exercise. The Committee shall not grant a Stock Option, or amend an existing Stock Option Award, to any French Employee under this French Sub-Plan that requires the French Employee to hold the shares of Common Stock for more than three (3) years after exercise of the Stock Option Award.

Approval of this French Sub-Plan.

This French Sub-Plan, as amended, was approved and adopted by the Committee on July 26, 2006 in accordance with the provisions of Sections 3.2 (Awards) and 9.1 (Termination or Amendment of the Plan) of the Plan.

As revised by the Compensation Committee by unanimous written consent, dated March 2, 2005, to add Exhibit A to provide for additional restrictions and requirements related to the issuance of stock option awards to eligible French Employees.

As revised by the Compensation Committee at its meeting on July 26, 2006, to amend and restate this Exhibit A — Equity Incentive Awards to Employees Working in France to add restricted stock units to the types of awards that can be granted to eligible French Employees.