KAYAK SOFTWARE CORPORATION 2004 STOCK INCENTIVE PLAN KAYAK SOFTWARECORPORATION 2004 STOCK INCENTIVE PLAN
Exhibit 10.1
KAYAK SOFTWARE CORPORATION
2004 STOCK INCENTIVE PLAN
KAYAK SOFTWARE CORPORATION
2004 STOCK INCENTIVE PLAN
| 1. | ESTABLISHMENT AND PURPOSE. |
The Kayak Software Corporation 2004 Stock Incentive Plan (the “Plan”) is established by Kayak Software Corporation, a Delaware corporation (the “Company”), to attract, retain and reward persons eligible to participate in the Plan; motivate Participants to achieve long-term Company goals; and further align Participants’ interests with those of the Company’s stockholders. The Plan is adopted as of March 23, 2004 (the “Effective Date”), subject to approval by the Company’s stockholders within 12 months after such adoption date. Unless the Plan is discontinued earlier by the Board as provided herein, no Award shall be granted hereunder on or after the date 10 years after the Effective Date.
Certain terms used herein are defined as set forth in Section 9.
| 2. | ADMINISTRATION; ELIGIBILITY. |
The Plan shall be administered by a Committee; provided, however, that, if at any time no Committee shall be in office, the Plan shall be administered by the Board. The Plan may be administered by different Committees with respect to different groups of Eligible Individuals. As used herein, the term “Administrator” means the Board or any of its Committees as shall be administering the Plan.
The Administrator shall have plenary authority to grant Awards pursuant to the terms of the Plan to Eligible Individuals. Participation shall be limited to such persons as are selected by the Administrator. Awards may be granted as alternatives to, in exchange or substitution for, or replacement of, other Awards outstanding under the Plan or awards outstanding under any other plan or arrangement of the Company or a Subsidiary (including a plan or arrangement of a business or entity, all or a portion of which is acquired by the Company or a Subsidiary). The provisions of Awards need not be the same with respect to each Participant.
Among other things, the Administrator shall have the authority, subject to the terms of the Plan:
| (a) | to select the Eligible Individuals to whom Awards may from time to time be granted; |
| (b) | to determine whether and to what extent Stock Options, Stock Awards or any combination thereof are to be granted hereunder; |
| (c) | to determine the number of shares of Stock to be covered by each Award granted hereunder; |
| (d) | to approve forms of agreement for use under the Plan; |
| (e) | to determine the terms and conditions, not inconsistent with the terms of this Plan, of any Award granted hereunder (including, but not limited to, the option price, any vesting restriction or limitation, any vesting acceleration or forfeiture waiver and any right of repurchase, right of first refusal or other transfer restriction regarding any Award and the shares of Stock relating thereto, based on such factors or criteria as the Administrator shall determine); |
| (f) | subject to Section 7(a), to modify, amend or adjust the terms and conditions of any Award, at any time or from time to time, including, but not limited to, with respect to (i) performance goals and targets applicable to performance-based Awards pursuant to the terms of the Plan and (ii) extension of the post-termination exercisability period of Stock Options; |
| (g) | to determine to what extent and under what circumstances Stock and other amounts payable with respect to an Award shall be deferred; |
| (h) | to determine the Fair Market Value; and |
| (i) | to determine the type and amount of consideration to be received by the Company for any Stock Award issued under Section 5. |
The Administrator shall have the authority to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall, from time to time, deem advisable, to interpret the terms and provisions of the Plan and any Award issued under the Plan (and any agreement relating thereto) and to otherwise supervise the administration of the Plan.
Except to the extent prohibited by applicable law, the Administrator may allocate all or any portion of its responsibilities and powers to any one or more of its members and may delegate all or any portion of its responsibilities and powers to any other person or persons selected by it. Any such allocation or delegation may be revoked by the Administrator at any time. The Administrator may authorize any one or more of their members or any officer of the Company to execute and deliver documents on behalf of the Administrator.
Any determination made by the Administrator or pursuant to delegated authority pursuant to the provisions of the Plan with respect to any Award shall be made in the sole discretion of the Administrator or such delegate at the time of the grant of the Award or, unless in contravention of any express term of the Plan, at any time thereafter. All decisions made by the Administrator or any appropriately delegated officer pursuant to the provisions of the Plan shall be final and binding on all persons, including the Company and Participants.
No member of the Administrator, and no officer of the Company, shall be liable for any action taken or omitted to be taken by such individual or by any other member of the Administrator or officer of the Company in connection with the performance of duties under this Plan, except for such individual’s own willful misconduct or as expressly provided by law.
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| 3. | STOCK SUBJECT TO PLAN. |
Subject to adjustment as provided in this Section 3, the aggregate number of shares of Stock which may be delivered under the Plan shall not exceed 2,180,000 shares.
To the extent any shares of Stock covered by an Award are not delivered to a Participant or beneficiary thereof because the Award expires, is forfeited, canceled or otherwise terminated, or the shares of Stock are not delivered because the Award is settled in cash or used to satisfy the applicable tax withholding obligation, such shares of Stock shall not be deemed to have been delivered for purposes of determining the maximum number of shares of Stock available for delivery under the Plan.
In the event of any Stock dividend, Stock split, combination or exchange of shares of Stock, recapitalization or other change in the capital structure of the Company, corporate separation or division of the Company (including, but not limited to, a split-up, spin-off, split-off or distribution to Company stockholders other than a normal cash dividend), sale by the Company of all or a substantial portion of its assets (measured on either a stand-alone or consolidated basis), reorganization, rights offering, partial or complete liquidation, or any other corporate transaction, Company share offering or other event involving the Company and having an effect similar to any of the foregoing, the Administrator may make such substitution or adjustments in the (A) number and kind of shares that may be delivered under the Plan, (B) number and kind of shares subject to outstanding Awards, (C) exercise price of outstanding Stock Options and (D) other characteristics or terms of the Awards as it may determine appropriate in its sole discretion to equitably reflect such corporate transaction, share offering or other event; provided, however, that the number of shares subject to any Award shall always be a whole number.
| 4. | STOCK OPTIONS. |
Stock Options may be granted alone or in addition to other Awards granted under the Plan and may be of two types: Incentive Stock Options and Non-Qualified Stock Options. Any Stock Option granted under the Plan shall be in such form as the Administrator may from time to time approve.
The Administrator shall have the authority to grant any Participant Incentive Stock Options, Non-Qualified Stock Options or both types of Stock Options. Incentive Stock Options may be granted only to employees of the Company and its Subsidiaries. To the extent that any Stock Option is not designated as an Incentive Stock Option or, even if so designated, does not qualify as an Incentive Stock Option, it shall constitute a Non-Qualified Stock Option. Incentive Stock Options may be granted only within 10 years from the date the Plan is adopted, or the date the Plan is approved by the Company’s stockholders, whichever is earlier.
Stock Options shall be evidenced by option agreements, each in a form approved by the Administrator. An option agreement shall indicate on its face whether it is intended to be an agreement for an Incentive Stock Option or a Non-Qualified Stock Option. The grant of a Stock Option shall occur as of the date the Administrator determines.
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Anything in the Plan to the contrary notwithstanding, no term of the Plan relating to Incentive Stock Options shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be exercised, so as to disqualify the Plan under Section 422 of the Code or, without the consent of the Optionee affected, to disqualify any Incentive Stock Option under Section 422 of the Code.
To the extent that the aggregate Fair Market Value (as determined on the date of grant) of Stock with respect to which Incentive Stock Options are exercisable for the first time by a Participant during any calendar year (under all plans of the Company and its Affiliates) exceeds $100,000, such Stock Options or portions thereof that exceed such limit (according to the order in which they were granted) shall be treated as Non-Qualified Stock Options.
Stock Options granted under this Section 4 shall be subject to the following terms and conditions and shall contain such additional terms and conditions as the Administrator shall deem desirable:
| (a) | Exercise Price. The exercise price per share of Stock purchasable under a Stock Option shall be determined by the Administrator. If the Stock Option is intended to qualify as an Incentive Stock Option, the exercise price per share shall be not less than the Fair Market Value per share on the date the Stock Option is granted, or if granted to an individual who is a Ten Percent Holder, not less than 110% of such Fair Market Value per share. |
| (b) | Option Term. The term of each Stock Option shall be fixed by the Administrator, but no Incentive Stock Option shall be exercisable more than 10 years (or five years in the case of an individual who is a Ten Percent Holder) after the date the Incentive Stock Option is granted. |
| (c) | Exercisability. Except as otherwise provided herein, Stock Options shall be exercisable at such time or times, and subject to such terms and conditions, as shall be determined by the Administrator; provided, however, that unless otherwise approved by unanimous consent of the Board, each Stock Option shall be exercisable and vest (i) with respect to 25% of the shares of Stock subject thereto, one year after the date of grant of such Stock Option and (ii) with respect to the remaining shares of Stock subject thereto, in 36 equal monthly installments on the first day of each month during the three years thereafter. If any Stock Option is exercisable only in installments, the Administrator may at any time waive such installment exercise provisions, in whole or in part, based on such factors as the Administrator may determine. In addition, the Administrator may at any time, in whole or in part, accelerate the exercisability of any Stock Option. |
| (d) | Method of Exercise. Subject to the provisions of this Section 4, Stock Options may be exercised, in whole or in part, at any time during the option term by giving written notice of exercise to the Company specifying the number of shares of Stock subject to the Stock Option to be purchased. |
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The option price of any Stock Option shall be paid in full in cash (by certified or bank check or such other instrument as the Company may accept) or by such other method of payment as is approved by the Administrator, in its discretion; provided, however, a form of payment shall not be permitted to the extent it would cause the Company to recognize a compensation expense (or additional compensation expense) with respect to the Stock Option for financial reporting purposes.
No shares of Stock shall be issued upon exercise of a Stock Option until full payment therefor has been made. Upon exercise of a Stock Option (or a portion thereof), the Company shall have a reasonable time to issue the Stock for which the Stock Option has been exercised, and the Optionee shall not be treated as a stockholder for any purposes whatsoever prior to such issuance. No adjustment shall be made for cash dividends or other rights for which the record date is prior to the date such Stock is recorded as issued and transferred in the Company’s official stockholder records, except as otherwise provided herein or in the applicable option agreement.
| (e) | Transferability of Stock Options. Except as otherwise provided in the applicable option agreement, a Non-Qualified Stock Option shall not be transferable except by will or the laws of descent and distribution. An Incentive Stock Option shall not be transferable except by will or the laws of descent and distribution. A Stock Option shall be exercisable, during the Optionee’s lifetime, only by the Optionee or a Representative, it being understood that the terms “holder” and “Optionee” include any Representative. Notwithstanding the foregoing, references herein to the termination of an Optionee’s employment or provision of services shall mean the termination of employment or provision of services of the person to whom the Stock Option was originally granted. |
| (f) | Termination by Death or Disability. Unless otherwise provided in the applicable option agreement, if an Optionee’s employment or provision of services terminates by reason of death or Disability, any Stock Option held by such Optionee may thereafter be exercised, to the extent exercisable at the time of such termination, or on such accelerated basis as the Administrator may determine, for a period of one year from the date of such death or Disability or until the expiration of the stated term of such Stock Option, whichever period is shorter. In the event of termination of employment or provision of services due to death or Disability, if an Incentive Stock Option is exercised after the expiration of the exercise periods that apply for purposes of Section 422 of the Code, such Stock Option will thereafter be treated as a Non-Qualified Stock Option. |
| (g) | Other Termination. Unless otherwise provided in the applicable option agreement, if an Optionee’s employment or provision of services terminates for any reason other than death or Disability, any Stock Option held by such Optionee |
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| shall thereupon terminate; provided, however, that, if such termination of employment or provision of services is by the Company without Cause or by the Optionee for Good Reason, such Stock Option, to the extent exercisable at the time of such termination, or on such accelerated basis as the Administrator may determine, may be exercised for the lesser of 90 days from the date of such termination of employment or provision of services or the remainder of such Stock Option’s term, and provided, further, that if the Optionee dies within such period, any unexercised Stock Option held by such Optionee shall, notwithstanding the expiration of such period, continue to be exercisable to the extent to which it was exercisable at the time of death for a period of one year from the date of such death or until the expiration of the stated term of such Stock Option, whichever period is shorter. In the event of termination of employment or provision of services for any reason other than death or Disability, if an Incentive Stock Option is exercised after the expiration of the exercise periods that apply for purposes of Section 422 of the Code, such Stock Option will thereafter be treated as a Non-Qualified Stock Option. |
| (h) | Exception to Termination. Notwithstanding anything in this Plan to the contrary, if an Optionee’s employment by, or provision of services to, the Company or an Affiliate ceases as a result of a transfer of such Optionee from the Company to an Affiliate, or from an Affiliate to the Company, such transfer will not be a termination of employment or provision of services for purposes of this Plan, unless expressly determined otherwise by the Administrator. A termination of employment or provision of services shall occur for an Optionee who is employed by, or provides services to, an Affiliate of the Company if the Affiliate shall cease to be an Affiliate and the Optionee shall not immediately thereafter be employed by, or provide services to, the Company or an Affiliate. |
| (i) | Participant Loans. Except as otherwise prohibited by applicable law, the Administrator may in its discretion authorize the Company to: |
| (i) | lend to an Optionee an amount equal to such portion of the exercise price of a Stock Option as the Administrator may determine; or |
| (ii) | guarantee a loan obtained by an Optionee from a third-party for the purpose of tendering such exercise price. |
The terms and conditions of any loan or guarantee, including the term, interest rate, whether the loan is with recourse against the Optionee and any security interest thereunder, shall be determined by the Administrator, except that no extension of credit or guarantee shall obligate the Company for an amount to exceed the lesser of (i) the aggregate Fair Market Value on the date of exercise, less the par value, of the shares of Stock to be purchased upon the exercise of the Stock Option, and (ii) the amount permitted under applicable laws or the regulations and rules of the Federal Reserve Board and any other governmental agency having jurisdiction.
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| 5. | STOCK AWARDS OTHER THAN OPTIONS. |
Stock Awards may be directly issued under the Plan (without any intervening options), subject to such terms, conditions, performance requirements, restrictions, forfeiture provisions, contingencies and limitations as the Administrator shall determine; provided, however, that unless otherwise approved by unanimous consent of the Board, each Stock Award shall vest (i) with respect to 25% of the shares of Stock subject thereto, one year after the date of grant of such Stock Award and (ii) with respect to the remaining shares of Stock subject thereto, in 36 equal monthly installments on the first day of each month during the three years thereafter. To the extent approved by unanimous consent of the Board in accordance with the foregoing sentence, Stock Awards may be issued that are fully and immediately vested upon issuance, that vest in one or more installments over the Participant’s period of employment or other service to the Company or upon the attainment of specified performance objectives, or that entitle the Participant to receive a specified number of vested shares of Stock upon the attainment of one or more performance goals or service requirements established by the Administrator.
Shares representing a Stock Award shall be evidenced in such manner as the Administrator may deem appropriate, including book-entry registration or issuance of one or more certificates (which may bear appropriate legends referring to the terms, conditions and restrictions applicable to such Award). The Administrator may require that any such certificates be held in custody by the Company until any restrictions thereon shall have lapsed and that the Participant deliver a stock power, endorsed in blank, relating to the Stock covered by such Award.
A Stock Award may be issued in exchange for any consideration which the Administrator may deem appropriate in each individual instance, including, without limitation:
| (i) | cash or cash equivalents; |
| (ii) | past services rendered to the Company or any Affiliate; or |
| (iii) | future services to be rendered to the Company or any Affiliate (provided that, in such case, the par value of the stock subject to such Stock Award shall be paid in cash or cash equivalents, unless the Administrator provides otherwise). |
A Stock Award that is subject to restrictions on transfer and/or forfeiture provisions may be referred to as an award of “Restricted Stock” or “Restricted Stock Units.”
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| 6. | CHANGE IN CONTROL PROVISIONS. |
| (a) | Impact of Event. Notwithstanding any other provision of the Plan to the contrary, in the event of a Change in Control: |
| (i) | (A) 50% of all Stock Options held by each Optionee that are outstanding as of the date such Change in Control is determined to have occurred and not then exercisable and vested shall become fully exercisable and vested as of such date and (B) the remaining outstanding Stock Options held by such Optionee to the extent not exercisable and vested shall become fully exercisable (x) upon such Optionee’s employment or provision of services being terminated by the Company without Cause or by the Optionee for Good Reason or upon such Optionee’s position, duties, authority or responsibilities, taken as a whole and other than on an isolated, temporary basis, being materially diminished, in either case within one year after the date such Change of Control is determined to have occurred, or (y) upon the date such Change in Control is determined to have occurred if such termination or dimunition occurs within 60 days prior to the date on which such Change of Control is determined to have occurred and such Optionee reasonably demonstrates that such termination or dimunition was at the request of a third party that took actions to effect the Change of Control or otherwise arose in connection with or anticipation of such Change of Control; |
| (ii) | (A) The restrictions applicable to 50% of all outstanding Stock Awards held by each Participant shall lapse, and the Stock relating to such Awards shall become free of all restrictions and become fully vested and transferable, as of the date such Change in Control is determined to have occurred, and (B) the restrictions applicable to the remaining outstanding Stock Awards held by such Participant shall lapse, and the Stock relating such Awards shall become fully vested and transferable, (x) upon such Participant’s employment or provision of services being terminated by the Company without Cause or by the Participant for Good Reason or upon such Participant’s position, duties, authority or responsibilities, taken as a whole and other than on an isolated, temporary basis, being materially diminished, in either case within one year after the date such Change of Control is determined to have occurred, or (y) upon the date such Change in Control is determined to have occurred if such termination or dimunition occurs within 60 days prior to the date on which such Change of Control is determined to have occurred and such Participant reasonably demonstrates that such termination or dimunition was at the request of a third party that took actions to effect the Change of Control or otherwise arose in connection with or anticipation of the Change of Control; |
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| (iii) | (A) All outstanding repurchase rights of the Company with respect to 50% of all outstanding Awards held by each Participant shall terminate as of the date such Change in Control is determined to have occurred, and (B) all outstanding repurchase rights of the Company with respect to the remaining outstanding Awards held by such Participant shall terminate (x) upon such Participant’s employment or provision of services being terminated by the Company without Cause or by the Participant for Good Reason or upon such Participant’s position, duties, authority or responsibilities, taken as a whole and other than on an isolated, temporary basis, being materially diminished, in either case within one year after the date such Change of Control is determined to have occurred, or (y) upon the date such Change in Control is determined to have occurred if such termination or dimunition occurs within 60 days prior to the date on which the Change of Control is determined to have occurred and such Participant reasonably demonstrates that such termination or dimunition was at the request of a third party that took actions to effect the Change of Control or otherwise arose in connection with or anticipation of the Change of Control; and |
| (iv) | (A) Outstanding Awards shall be subject to any agreement of merger or reorganization that effects such Change in Control, which agreement shall provide for: |
| (w) | The continuation of the outstanding Awards by the Company, if the Company is a surviving corporation; |
| (x) | The assumption of the outstanding Awards by the surviving corporation or its parent or subsidiary; |
| (y) | The substitution by the surviving corporation or its parent or subsidiary of equivalent awards for the outstanding Awards; or |
| (z) | Settlement of each share of Stock subject to an outstanding Award for the Change in Control Price (less, to the extent applicable, the per share exercise price) or, to the extent applicable, if the per share exercise price equals or exceeds the Change in Control Price, the outstanding Award shall terminate and be canceled; or |
| (B) | In the absence of any agreement of merger or reorganization effecting such Change in Control, each share of Stock subject to an outstanding Award shall be settled for the Change in Control Price (less, to the extent applicable, the per share exercise price). |
| (b) | Definition of Change in Control. For purposes of the Plan, a “Change in Control” shall mean the occurrence of (i) a Major Transaction after which holders of the |
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| Company’s securities before the Major Transaction do not beneficially own, directly or indirectly, at least 50% of the combined voting power of the then-outstanding securities of the surviving entity entitled to vote generally in the election of directors immediately after the consummation of the Major Transaction or (ii) a single transaction or a series of transactions pursuant to which any person (within the meaning of Section 13(d) or Section 14(d)(2) of the Exchange Act), excluding any employee benefit plan sponsored by the Company and any affiliates (as defined in Rule 144 under the Securities Act) of the Company prior to such transaction or transactions, acquires the beneficial ownership, directly or indirectly, of a least 50% of the combined voting power of the then-outstanding securities of the Company or the surviving entity, as the case may be, entitled to vote generally in the election of directors immediately after the consummation of the transaction or transactions, except that any acquisitions of securities directly from the Company shall be disregarded for purposes of this clause. |
| (c) | Change in Control Price. For purposes of the Plan, “Change in Control Price” means the highest of (i) the highest reported sales price, regular way, of a share of Stock in any transaction reported on the principal securities exchange or market on which such shares are listed during the 60-day period prior to and including the date of a Change in Control, (ii) if the Change in Control is the result of a tender or exchange offer or a Major Transaction, the highest price per share of Stock paid in such tender or exchange offer or Major Transaction, and (iii) the Fair Market Value of a share of Stock upon the Change in Control. To the extent that the consideration paid in any such transaction described above consists all or in part of securities or other non-cash consideration, the value of such securities or other non-cash consideration shall be determined in the sole discretion of the Board. |
| 7. | MISCELLANEOUS. |
| (a) | Amendment. The Board may amend, alter, or discontinue the Plan, but no amendment, alteration or discontinuation shall be made that would adversely affect the rights of a Participant under an Award theretofore granted without the Participant’s consent, except such an amendment (i) made to avoid an expense charge to the Company or an Affiliate, or (ii) made to permit the Company or an Affiliate a deduction under the Code. No such amendment shall be made without the approval of the Company’s stockholders to the extent such approval is required by law, agreement or the rules of any stock exchange or market on which the Stock is listed. |
The Administrator may amend the terms of any Stock Option or other Award theretofore granted, prospectively or retroactively, but no such amendment shall adversely affect the rights of the holder thereof without the holder’s consent.
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| (b) | Unfunded Status of Plan. It is intended that this Plan be an “unfunded” plan for incentive and deferred compensation. The Administrator may authorize the creation of trusts or other arrangements to meet the obligations created under this Plan to deliver Stock or make payments, provided that, unless the Administrator otherwise determines, the existence of such trusts or other arrangements is consistent with the “unfunded” status of this Plan. |
| (c) | General Provisions. |
| (i) | The Administrator may require each person purchasing or receiving shares pursuant to an Award to represent to and agree with the Company in writing that such person is acquiring the shares without a view to the distribution thereof. The certificates for such shares may include any legend that the Administrator deems appropriate to reflect any restrictions on transfer. |
All certificates for shares of Stock or other securities delivered under the Plan shall be subject to such stock transfer orders and other restrictions as the Administrator may deem advisable under the rules, regulations and other requirements of the Commission, any stock exchange or market on which the Stock or other such securities is then listed and any applicable Federal or state securities law, and the Administrator may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
| (ii) | Nothing contained in the Plan shall prevent the Company or any Affiliate from adopting other or additional compensation arrangements for its employees. |
| (iii) | The adoption of the Plan shall not confer upon any employee, director, consultant or advisor any right to continued employment, directorship or service, nor shall it interfere in any way with the right of the Company or any Subsidiary or Affiliate to terminate the employment or service of any employee, consultant or advisor at any time. |
| (iv) | No later than the date as of which an amount first becomes includible in the gross income of the Participant for Federal income tax purposes with respect to any Award under the Plan, the Participant shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, any Federal, state, local or foreign taxes of any kind required by law to be withheld with respect to such amount. Unless otherwise determined by the Administrator, withholding obligations may be settled with Stock, including Stock that is part of the Award that gives rise to the withholding requirement. The obligations of the Company under the Plan shall be conditional on such payment or arrangements, and |
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| the Company, its Subsidiaries and its Affiliates shall, to the extent permitted by law, have the right to deduct any such taxes from any payment otherwise due to the Participant. The Administrator may establish such procedures as it deems appropriate for the settlement of withholding obligations with Stock. |
| (v) | The Administrator shall establish such procedures as it deems appropriate for a Participant to designate a beneficiary to whom any amounts payable in the event of the Participant’s death are to be paid. |
| (vi) | Any amounts owed to the Company or an Affiliate by the Participant of whatever nature may be offset by the Company from the value of any shares of Stock, cash or other thing of value under this Plan or an agreement to be transferred to the Participant, and no shares of Stock, cash or other thing of value under this Plan or an agreement shall be transferred unless and until all disputes between the Company and the Participant have been fully and finally resolved and the Participant has waived all claims to such against the Company or an Affiliate. |
| (vii) | The grant of an Award shall in no way affect the right of the Company to adjust, reclassify, reorganize or otherwise change its capital or business structure or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets. |
| (viii) | If any payment or right accruing to a Participant under this Plan (without the application of this Section (7)(c)(viii)), either alone or together with other payments or rights accruing to the Participant from the Company or an Affiliate (“Total Payments”) would constitute a “parachute payment” (as defined in Section 280G of the Code and regulations thereunder), such payment or right shall be reduced to the largest amount or greatest right that will result in no portion of the amount payable or right accruing under this Plan being subject to an excise tax under Section 4999 of the Code or being disallowed as a deduction under Section 280G of the Code; provided, however, that the foregoing shall not apply to the extent provided otherwise in an Award or in the event the Participant is party to an agreement with the Company or an Affiliate that explicitly provides for an alternate treatment of payments or rights that would constitute “parachute payments.” The determination of whether any reduction in the rights or payments under this Plan is to apply shall be made by the Administrator in good faith after consultation with the Participant, and such determination shall be conclusive and binding on the Participant. The Participant shall cooperate in good faith with the Administrator in making such determination and providing the necessary information for this purpose. The foregoing provisions of this Section 7(c)(viii) shall |
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| apply with respect to any person only if, after reduction for any applicable Federal excise tax imposed by Section 4999 of the Code and Federal income tax imposed by the Code, the Total Payments accruing to such person would be less than the amount of the Total Payments as reduced, if applicable, under the foregoing provisions of this Plan and after reduction for only Federal income taxes. |
| (ix) | To the extent that the Administrator determines that the restrictions imposed by the Plan preclude the achievement of the material purposes of the Awards in jurisdictions outside the United States, the Administrator in its discretion may modify those restrictions as it determines to be necessary or appropriate to conform to applicable requirements or practices of jurisdictions outside of the United States. |
| (x) | The headings contained in this Plan are for reference purposes only and shall not affect the meaning or interpretation of this Plan. |
| (xi) | If any provision of this Plan shall for any reason be held to be invalid or unenforceable, such invalidity or unenforceability shall not effect any other provision hereby, and this Plan shall be construed as if such invalid or unenforceable provision were omitted. |
| (xii) | This Plan shall inure to the benefit of and be binding upon each successor and assign of the Company. All obligations imposed upon a Participant, and all rights granted to the Company, hereunder and under any agreement representing an Award hereunder shall be binding upon the Participant’s Representatives. |
| (xiii) | This Plan and each agreement granting an Award constitute the entire agreement with respect to the subject matter hereof and thereof, provided that in the event of any inconsistency between this Plan and such agreement, the terms and conditions of the Plan shall control. |
| (xiv) | In the event there is an effective registration statement under the Securities Act pursuant to which shares of Stock shall be offered for sale in an underwritten offering, a Participant shall not, during the period requested by the underwriters managing the registered public offering, effect any public sale or distribution of shares of Stock received, directly or indirectly, as an Award or pursuant to the exercise or settlement of an Award. |
| (xv) | Except as required by Federal or state securities laws, none of the Company, an Affiliate or the Administrator shall have any duty or obligation to disclose affirmatively to a record or beneficial holder of Stock or an Award, and such holder shall have no right to be advised of, |
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| any material information regarding the Company or any Affiliate at any time prior to, upon or in connection with receipt or the exercise of an Award or the Company’s purchase of Stock or an Award from such holder in accordance with the terms hereof. |
| (xvi) | This Plan, and all Awards, agreements and actions hereunder, shall be governed by, and construed in accordance with, the laws of the State of Delaware (other than its law respecting choice of law). |
| 8. | DEFERRAL OF AWARDS. |
The Administrator (in its sole discretion) may permit a Participant to:
| (a) | have cash that otherwise would be paid to such Participant as a result of the settlement of a Stock Award credited to a deferred compensation account established for such Participant by the Administrator as an entry on the Company’s books; |
| (b) | have Stock that otherwise would be delivered to such Participant as a result of the exercise of a Stock Option converted into an equal number of Stock units; or |
| (c) | have Stock that otherwise would be delivered to such Participant as a result of the exercise of a Stock Option or the settlement of a Stock Award converted into amounts credited to a deferred compensation account established for such Participant by the Administrator as an entry on the Company’s books. Such amounts shall be determined by reference to the Fair Market Value of the Stock as of the date on which they otherwise would have been delivered to such Participant. |
A deferred compensation account established under this Section 8 may be credited with interest or other forms of investment return, as determined by the Administrator. A Participant for whom such an account is established shall have no rights other than those of a general creditor of the Company. Such an account shall represent an unfunded and unsecured obligation of the Company and shall be subject to the terms and conditions of the applicable agreement between such Participant and the Company. If the deferral or conversion of awards is permitted or required, the Administrator (in its sole discretion) may establish rules, procedures and forms pertaining to such awards, including (without limitation) the settlement of deferred compensation accounts established under this Section 8.
| 9. | DEFINITIONS. |
For purposes of this Plan, the following terms are defined as set forth below:
| (a) | “Affiliate” means a corporation or other entity controlled by the Company and designated by the Administrator as such. |
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| (b) | “Award” means a Stock Option or Stock Award. |
| (c) | “Board” means the Board of Directors of the Company. |
| (d) | “Cause” means, with respect to the Participant, any one or more of the following: (i) failure or refusal to perform his or her reasonably assigned duties to the Company; (ii) material breach of any employment agreement, any consulting or services agreement, any non-disclosure or non-competition agreement or any other agreement between the Participant and the Company relating to the Participant’s employment or provision of services; (iii) embezzlement, misappropriation of assets or property (tangible or intangible) of the Company; (iv) gross negligence, misconduct, neglect of duties, theft, dishonesty or fraud with respect to the Company, or breach of fiduciary duty to the Company; or (v) the indictment or conviction of a felony, or any crime involving moral turpitude, including a plea of guilty or nolo contendre. Notwithstanding the foregoing, if the Participant and the Company or the Affiliate have entered into an employment, consulting or services agreement that defines the term “Cause” (or a similar term), such definition shall govern for purposes of determining whether such Participant has been terminated for Cause for purposes of this Plan. The determination of Cause shall be made by the Administrator, in its sole discretion. |
| (e) | “Code” means the Internal Revenue Code of 1986, as amended from time to time, and any successor thereto. |
| (f) | “Commission” means the Securities and Exchange Commission or any successor agency. |
| (g) | “Committee” means a committee of Directors appointed by the Board to administer this Plan. With respect to Options granted after the Company has securities registered under Section 12 of the Exchange Act, if any, insofar as the Committee is responsible for granting Options to Participants hereunder, it shall consist solely of two or more directors, each of whom is a “Non-Employee Director” within the meaning of Rule 16b-3 under the Exchange Act, each of whom is also an “outside director” under Section 162(m) of the Code and each of whom is also an “independent director” under the rules of the securities exchange or market on which the Stock is listed. |
| (h) | “Director” means a member of the Board. |
| (i) | “Disability” means any physical incapacity or mental incompetence (i) as a result of which the Participant is unable to perform the essential functions of his or her job or duties for an aggregate of 90 days, whether or not consecutive, during any 180-day period and the Company determines in good faith that such incapacity or incompetence is likely to continue for at least the next 30 days, and (ii) which cannot be reasonably accommodated by the Company without undue hardship. |
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| Notwithstanding the foregoing, if the Participant and the Company or an Affiliate have entered into an employment, consulting or services agreement which defines the term “Disability” (or a similar term), such definition shall govern for purposes of determining whether such Participant suffers a Disability for purposes of this Plan. The determination of Disability shall be made by the Administrator, in its sole discretion. The determination of Disability for purposes of this Plan shall not be construed to be an admission of disability for any other purpose. |
| (j) | “Eligible Individual” means any officer, employee or director of the Company or a Subsidiary or Affiliate, or any consultant or advisor providing services to the Company or a Subsidiary or Affiliate. |
| (k) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor thereto. |
| (l) | “Fair Market Value” means, as of any given date, the fair market value of the Stock as determined by the Administrator or under procedures established by the Administrator. Unless otherwise determined by the Administrator, if the Stock is listed on a stock exchange or market, the Fair Market Value per share shall be the closing sales price per share of the Stock on the principal stock exchange or market on which the Stock is then listed on the date as of which such value is being determined or the last previous day on which a sale was reported. |
| (m) | “Family Member” means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law of a Participant (including adoptive relationships); any person sharing the Participant’s household (other than a tenant or employee); any trust in which the Participant and any of these persons have all of the beneficial interest; any foundation in which the Participant and any of these persons control the management of the assets; any corporation, partnership, limited liability company or other entity in which the Participant and any of these other persons are the direct and beneficial owners of all of the equity interests (provided the Participant and these other persons agree in writing to remain the direct and beneficial owners of all such equity interests); and any personal representative of the Participant upon the Participant’s death for purposes of administration of the Participant’s estate or upon the Participant’s incompetency for purposes of the protection and management of the assets of the Participant. |
| (n) | “Good Reason” means (i) mutual written agreement by the Participant and the Board that Good Reason exists; (ii) a material violation by the Company of its employment, consulting or services agreement with the Participant that continues uncured for a period of thirty (30) days after notice thereof by the Participant; (iii) with respect to a Participant who is an executive officer, demotion of the |
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| Participant, without his or her prior consent, to a position that does not include significant managerial responsibilities; (iv) reduction in the Participant’s base salary, other than in connection with, and substantially proportionate to, a general salary reduction program that applies to the Company’s similar class of officers or employees; or (v) a relocation of the Company that requires the Participant to commute to an office that is more than sixty miles away from his or her then current place of employment. Notwithstanding the foregoing, if the Participant and the Company or the Affiliate have entered into an employment, consulting or services agreement that defines the term “Good Reason” (or a similar term), such definition shall govern for purposes of determining whether such Participant has been terminated for Good Reason for purposes of this Plan. The determination of Good Reason shall be made by the Administrator, in its sole discretion. |
| (o) | “Incentive Stock Option” means any Stock Option intended to be and designated as an “incentive stock option” within the meaning of Section 422 of the Code. |
| (p) | “Major Transaction” means (x) a merger (or reverse merger), consolidation or other similar business combination in which outstanding shares of Stock are exchanged for cash, securities, and/or other property of another entity, or (y) the sale and lease of all or substantially all of the Company’s assets to another person or entity. |
| (q) | “Non-Employee Director” means a Director who is not an officer or employee of the Company. |
| (r) | “Non-Qualified Stock Option” means any Stock Option that is not an Incentive Stock Option. |
| (s) | “Optionee” means a person who holds a Stock Option. |
| (t) | “Participant” means a person granted an Award. |
| (u) | “Representative” means (i) the person or entity acting as the executor or administrator of a Participant’s estate pursuant to the last will and testament of a Participant or pursuant to the laws of the jurisdiction in which the Participant had his or her primary residence at the date of the Participant’s death; (ii) the person or entity acting as the guardian or temporary guardian of a Participant; (iii) the person or entity which is the beneficiary of the Participant upon or following the Participant’s death; or (iv) any person to whom a Stock Option has been transferred in accordance with Section 4(e) of this Plan; provided that only one of the foregoing shall be the Representative at any point in time as determined under applicable law and recognized by the Administrator. |
| (v) | “Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor thereto. |
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| (w) | “Stock” means common stock, par value $.001 per share, of the Company. |
| (x) | “Stock Award” means an Award, other than a Stock Option, made in Stock or denominated in shares of Stock. |
| (y) | “Stock Option” means an option granted under Section 4. |
| (z) | “Subsidiary” means any company during any period in which it is a “subsidiary corporation” (as such term is defined in Section 424(f) of the Code) with respect to the Company. |
| (aa) | “Ten Percent Holder” means an individual who owns, or is deemed to own, stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or of any parent or subsidiary corporation of the Company, determined pursuant to the rules applicable to Section 422(b)(6) of the Code. |
In addition, certain other capitalized terms used herein have the definitions ascribed to them in the first places in which they are used.
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