SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the Securities Exchange Act of
1934
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Definitive
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Soliciting
Material Pursuant to § 240.14a-12
Procera
Networks, Inc.
(Name of
Registrant as Specified In Its Charter)
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PROCERA
NETWORKS, INC.
100
Cooper Court
Los
Gatos, California 95032
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
To
Be Held On December 16, 2009
Dear
Stockholder
:
You are
cordially invited to attend the Annual Meeting of Stockholders of Procera
Networks, Inc., a Nevada corporation (the “
Company
”). The
meeting will be held on Wednesday, December 16, 2009 at 9:30 a.m. local time at
the Company’s principal executive offices located at 100 Cooper Court, Los
Gatos, California 95032 for the following purposes:
1.
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To
elect the Company’s Board of Directors (the “
Board
”)
nominees, James F. Brear, Thomas Saponas, Scott McClendon, Mary Losty and
Staffan Hillberg, to the Board to serve until the 2010 Annual Meeting of
Stockholders of the Company and their successors are duly elected and
qualified.
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2.
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To
approve an amendment to the Company’s 2007 Equity Incentive Plan (the
“
Plan
”)
to increase the number of shares of common stock that may be issued under
the Plan by 2,000,000 shares.
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3.
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To
ratify the selection by the Audit Committee of the Board of PMB Helin
Donovan, LLP as independent registered public accounting firm of the
Company for its fiscal year ending December 31,
2009.
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4.
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To
conduct any other business properly brought before the
meeting.
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These
items of business are more fully described in the Proxy Statement accompanying
this Notice.
The
record date for the Annual Meeting is November 9, 2009. Only
stockholders of record at the close of business on that date may vote at the
meeting or any adjournment thereof.
Important
Notice Regarding the Availability of Proxy Materials for the Stockholders’
Meeting
to
Be Held on Wednesday, December 16, 2009 at 9:30 a.m.
at
100 Cooper Court, Los Gatos, California 95032.
The proxy statement and annual report
to stockholders are available at
http://www.proceranetworks.com/annual
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By
Order of the Board
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/s/ Charles Constanti
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Charles
Constanti
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Chief
Financial Officer and Secretary
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Los
Gatos, California
November
20
,
2009
You
are cordially invited to attend the meeting in person. Whether or not
you expect to attend the meeting, please complete, date, sign and return the
enclosed proxy as promptly as possible in order to ensure your representation at
the meeting. A return envelope (which is postage prepaid if mailed in
the United States) has been provided for your convenience. Even if
you have voted by proxy, you may still vote in person if you attend the
meeting. Please note, however, that if your shares are held of record
by a broker, bank or other nominee and you wish to vote at the meeting, you must
obtain a proxy issued in your name from that record holder.
PROCERA
NETWORKS, INC.
100
Cooper Court
Los
Gatos, California 95032
PROXY
STATEMENT
FOR
THE 2009 ANNUAL MEETING OF STOCKHOLDERS
December
16, 2009
QUESTIONS
AND ANSWERS ABOUT THESE PROXY MATERIALS AND VOTING
Why
am I receiving these materials?
We have
sent you these proxy materials because the Board of Directors (the “
Board
”) of
Procera Networks, Inc. (sometimes referred to as the “
Company
”
or “
Procera
”)
is soliciting your proxy to vote at the 2009 Annual Meeting of Stockholders,
including at any adjournments or postponements of the meeting. You
are invited to attend the annual meeting to vote on the proposals described in
this proxy statement. However, you do not need to attend the meeting
to vote your shares. Instead, you may simply complete, sign and
return the enclosed proxy card.
The
Company intends to mail these proxy materials on or about November 20, 2009 to
all stockholders of record entitled to vote at the annual meeting.
How
do I attend the annual meeting?
The
meeting will be held on Wednesday, December 16, 2009 at 9:30 a.m. local time at
the Company’s principal executive offices located at 100 Cooper Court, Los
Gatos, California 95032
.
Information
on how to vote in person at the annual meeting is discussed below.
Who
can vote at the annual meeting?
Only
stockholders of record at the close of business on November 9, 2009 will be
entitled to vote at the annual meeting. On this record date, there
were 94,082,724 shares of common stock outstanding and entitled to
vote.
Stockholder
of Record: Shares Registered in Your Name
If on
November 9, 2009 your shares were registered directly in your name with
Procera’s transfer agent, Pacific Stock Transfer Company, then you are a
stockholder of record. As a stockholder of record, you may vote in
person at the meeting or vote by proxy. Whether or not you plan to
attend the meeting, we urge you to fill out and return the enclosed proxy card
to ensure your vote is counted.
Beneficial
Owner: Shares Registered in the Name of a Broker or Bank
If on
November 9, 2009
your
shares were held, not in your name, but rather in an account at a brokerage
firm, bank, dealer, or other similar organization, then you are the beneficial
owner of shares held in “street name” and these proxy materials are
being forwarded to you
by that organization. The organization holding your account is
considered to be the stockholder of record for purposes of voting at the annual
meeting. As a beneficial owner, you have the right to direct your
broker or other agent regarding how to vote the shares in your
account. You are also invited to attend the annual
meeting. However, since you are not the stockholder
of record, you may not
vote your shares in person at the meeting unless you request and obtain a valid
proxy from your broker or other agent.
What
am I voting on?
There are
three matters scheduled for a vote:
·
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Election
of five directors;
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·
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Amendment
of the Company’s 2007 Equity Incentive Plan (the “
Plan
”)
to increase the number of shares of common stock that may be issued under
the Plan by 2,000,000 shares; and
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·
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Ratification
of selection by the Audit Committee of the
Board
of PMB Helin Donovan, LLP as independent registered public accounting firm
of the Company for its fiscal year ending December 31,
2009.
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What
if another matter is properly brought before the meeting?
The Board
knows of no other matters that will be presented for consideration at the Annual
Meeting. If any other matters are properly brought before the
meeting, it is the intention of the persons named in the accompanying proxy to
vote on those matters in accordance with their best judgment.
How
do I vote?
You may
either vote “For” all the nominees to the Board or you may “Withhold” your vote
for any nominee you specify. For each of the other matters to be
voted on, you may vote “For” or “Against” or abstain from voting. The
procedures for voting are fairly simple:
Stockholder
of Record: Shares Registered in Your Name
If you
are a stockholder of record, you may vote in person at the annual meeting
or
vote by proxy
using the enclosed proxy card. Whether or not you plan to attend the
meeting, we urge you to vote by proxy to ensure your vote is
counted. You may still attend the meeting and vote in person even if
you have already voted by proxy.
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To
vote in person, come to the annual meeting and we will give you a ballot
when you arrive.
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Ø
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To
vote using the proxy card, simply complete, sign and date the enclosed
proxy card and return it promptly in the envelope provided. If
you return your signed proxy card to us before the annual meeting, we will
vote your shares as you direct.
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Beneficial
Owner: Shares Registered in the Name of Broker or Bank
If you
are a beneficial owner of shares registered in the name of your broker, bank, or
other agent, you should have received a proxy card and voting instructions with
these proxy materials
from that organization
rather than from Procera. Simply complete and mail the proxy card to
ensure that your vote is counted. To vote in person at the annual
meeting, you must obtain a valid proxy from your broker, bank, or other
agent. Follow the instructions from your broker or bank included with
these proxy materials, or contact your broker or bank to request a proxy
form.
How
many votes do I have?
On each
matter to be voted upon, you have one vote for each share of common stock you
own as of November 9, 2009.
What
if I return a proxy card or otherwise vote but do not make specific
choices?
If you
return a signed and dated proxy card without marking voting selections, your
shares will be voted, as applicable, “For” the election of all five nominees for
director, “For” the amendment to the Plan to increase the number of shares of
common stock that may be issued under the Plan by 2,000,000 shares and “For” the
ratification of PMB Helin Donovan, LLP as independent registered public
accounting firm of the Company for its fiscal year ending December 31,
2009. If any other matter is properly presented at the meeting, your
proxyholder (one of the individuals named on your proxy card) will vote your
shares using his or her best judgment.
Who
is paying for this proxy solicitation?
We will
pay for the entire cost of soliciting proxies. In addition to these
proxy materials, our directors and employees may also solicit proxies in person,
by telephone, or by other means of communication. Directors and
employees will not be paid any additional compensation for soliciting
proxies. We may also reimburse brokerage firms, banks and other
agents for the cost of forwarding proxy materials to beneficial
owners.
What
does it mean if I receive more than one set of proxy materials?
If you
receive more than one set of proxy materials, your shares may be registered in
more than one name or in different accounts. Please follow the voting
instructions on the proxy cards in the proxy materials to ensure that all of
your shares are voted.
Can
I change my vote after submitting my proxy?
Yes. You
can revoke your proxy at any time before the final vote at the
meeting. If you are the record holder of your shares, you may revoke
your proxy in any one of the following ways:
Ø
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You
may submit another properly completed proxy card with a later
date.
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Ø
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You
may send a timely written notice that you are revoking your proxy to
Procera’s Secretary at 100 Cooper Court, Los Gatos, California
95032.
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Ø
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You
may attend the annual meeting and vote in person. Simply
attending the meeting will not, by itself, revoke your
proxy.
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Your most
current proxy card is the one that is counted.
If your
shares are held by your broker or bank as a nominee or agent, you should follow
the instructions provided by your broker or bank.
When
are stockholder proposals due for next year’s annual meeting?
To be
considered for inclusion in next year’s proxy materials your proposal must be
submitted in writing and received by July 23, 2010, to Procera’s Secretary at
100 Cooper Court, Los Gatos, California 95032. If you wish to bring a
matter before the stockholders at next year’s annual meeting and you do not
notify Procera before October 6, 2010
,
for all proxies we
receive, the proxyholders will have discretionary authority to vote on the
matter, including discretionary authority to vote in opposition to the
matter. You are advised that if Procera’s annual meeting
next year is advanced or delayed by more than 30 days from the anniversary date
of this year’s annual meeting,
the due dates
for stockholder proposals may change. You are also advised to review Procera’s
bylaws, which contain additional requirements about advance notice of
stockholder proposals and director nominations.
How
are votes counted?
Votes
will be counted by the inspector of election appointed for the meeting, who will
separately count “For, “Withhold,” abstentions and broker non-votes and, with
respect to proposals other than the election of directors, “Against”
votes. Abstentions will be counted towards the vote total for each
proposal, and will have the same effect as “Against” votes. Broker
non-votes have no effect and will not be counted towards the vote total for any
proposal.
What
are “broker non-votes”?
Broker
non-votes occur when a beneficial owner of shares held in “street name” does not
give instructions to the broker or nominee holding the shares
as to how to vote on
matters deemed “non-routine.” Generally, if shares are held in street name, the
beneficial owner of the shares is entitled to give voting instructions to the
broker or nominee holding the shares. If the beneficial owner does
not provide voting instructions, the broker or nominee
can still vote the
shares with respect to matters that are considered to be “routine,” but not with
respect to “non-routine” matters.
How
many votes are needed to approve each proposal?
Ø
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For
the election of directors, the five nominees receiving the most “For”
votes (from the holders of votes of shares present in person or
represented by proxy and entitled to vote on the election of directors)
will be elected. Only votes “For” or “Withheld” will affect the
outcome.
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Ø
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To
be approved, Proposal No. 2, amendment of the Plan to increase the number
of shares of common stock that may be issued under the Plan by 2,000,000
shares, must receive “For” votes from the holders of a majority of shares
present and entitled to vote
either in person
or by proxy. If you
“Abstain” from
voting, it will have the same effect as an “Against”
vote. Broker non-votes will have no
effect.
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Ø
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To
be approved, Proposal No. 3, ratification of PMB Helin Donovan, LLP as
independent registered public accounting firm of the Company for its
fiscal year ending December 31, 2009, must receive “For” votes from the
holders of a majority of shares present and entitled to vote
either in person
or by proxy. If you
“Abstain” from
voting, it will have the same effect as an “Against”
vote. Broker non-votes will have no
effect.
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What
is the quorum requirement?
A quorum
of stockholders is necessary to hold a valid meeting. A quorum will
be present if stockholders
holding
at least a majority of
the outstanding shares entitled to vote are present at the meeting in person or
represented by proxy. On the record date, there were 94,082,724
shares
outstanding
and entitled to vote. Thus, the holders of 47,041,363 shares must be present in
person or represented by proxy at the meeting to have a quorum.
Your
shares will be counted towards the quorum only if you submit a valid proxy (or
one is submitted on your behalf by your broker, bank or other nominee) or if you
vote in person at the meeting. Abstentions and broker non-votes will
be counted towards the quorum requirement. If there is no quorum, the
holders of a majority of shares present at the meeting in person or represented
by proxy may adjourn the meeting to another date.
How
can I find out the results of the voting at the annual meeting?
Preliminary
voting results will be announced at the annual meeting. Final voting
results will be published in our annual report on Form 10-K for the fiscal year
ending December 31, 2009.
Proposal
1
Election
Of Directors
Procera’s
Board of Directors will consist of five directors after the 2009 Annual
Meeting. There are five nominees for director this
year. Each director to be elected and qualified will hold office
until the next annual meeting of stockholders and until his or her successor is
elected, or, if sooner, until the director’s death, resignation or
removal. Each of the nominees listed below is currently a director of
the Company who was previously elected by the stockholders.
It is the Company’s
policy to invite directors to attend the Annual Meeting. All
of
the directors attended the 2008 Annual Meeting of Stockholders.
Directors
are elected by a plurality of the votes of the holders of shares present in
person or represented by proxy and entitled to vote on the election of
directors. The five nominees receiving the highest number of
affirmative votes will be elected.
Shares
represented by executed proxies will be voted, if authority to do so is not
withheld, for the election of the five nominees named below. If any
nominee becomes unavailable for election as a result of an unexpected
occurrence, your shares will be voted for the election of a substitute nominee
proposed by Procera. Each person nominated for election has agreed to
serve if elected. The Company’s management has no reason to believe
that any nominee will be unable to serve.
Nominees,
Directors and Executive Officers
The
following is a brief biography of each nominee for director, as well as the
directors and executive officers of the Company as of September 30,
2009.
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Principal
Occupation/Position Held With the Company
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Scott
McClendon*
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70
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Chairman
of the Board and Director
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James
F. Brear*
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44
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President,
Chief Executive Officer and Director
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Todd
Abbott
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50
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Director
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Staffan
Hillberg*
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45
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Director
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Mary
Losty*
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50
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Director
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Thomas
Saponas*
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60
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Director
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Charles
Constanti
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46
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Chief
Financial Officer, Treasurer and
Secretary
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* Nominee
for director
DIRECTORS
AND NOMINEES FOR DIRECTOR
Mr. Scott McClendon
has served
as a member of our Board of Directors since March 2004 and as Chairman of the
Board since November 2007. He is currently a member of the Audit and
Compensation Committees. Mr. McClendon has been the Chairman of the
Board for Overland Storage (NASDAQ: OVRL) since March 2001. He also served as
Overland's interim CEO from November 2006 to August 2007 and its President and
CEO from October 1991 to March 2001, and was an officer and employee until June
2001. Prior to his tenure with Overland, he was employed by Hewlett Packard
Company, a global manufacturer of computing, communications and measurement
products and services, for over 32 years in various positions in
engineering, manufacturing, sales and marketing. He last served as the General
Manager of the San Diego Technical Graphics Division and Site Manager of Hewlett
Packard in San Diego, California. Mr. McClendon is a director of
SpaceDev, Inc., an aerospace development company.
Mr. McClendon holds a BSEE and MSEE from Stanford
University.
Mr. James F. Brear
has served
as a member of our Board of Directors and as our Chief Executive Officer and
President since February 2008. He also served as our interim Chief
Financial Officer from April 2009 to May 2009. He is an industry
veteran with more than 18 years of experience in the networking industry, and
leads Procera Networks to further the company’s position as the leader in
managing and monetizing the world’s most complex networks. Most recently, Mr.
Brear served as vice president of worldwide sales and support for Bivio
Networks, a maker of deep packet inspection platform
technology. Under his leadership, the company rapidly expanded
its worldwide sales presence, resulting in sales to a number of global Tier 1
service providers, government agencies, and Global OEMs. Prior to Bivio, Mr.
Brear was vice president of worldwide sales for Tasman Networks (acquired by
Nortel), a maker of converged WAN solutions for enterprise branch offices and
service providers. Earlier in his career, Mr. Brear was the
vice president of worldwide sales for Force10 Networks, where he was responsible
for taking the company from a pre-revenue start-up to the industry leader in
switch routers for high performance Gigabit and 10 Gigabit Ethernet. In
addition, he spent five years with Cisco Systems where he held senior management
positions in Europe and North America with responsibility for delivering more
than $750M in annual revenues selling into the world’s largest service
providers. Previously, Mr. Brear held a variety of sales
management positions at both IBM and Sprint Communications. Mr.
Brear holds a Bachelor of Arts degree from the University of California at
Berkeley.
Mr. Todd Abbott
has
served as a member of our Board of Directors since May 2008. He is currently SVP
of Sales and President of Field Operations for Avaya Inc. He most recently
served as EVP of Sales, Marketing and Customer Service at Seagate Technology,
where he led three units of its hard drive business. Prior to that, Mr. Abbott
was SVP of Worldwide Sales at Symbol Technologies, a provider of enterprise
mobility solutions. Previously, he spent almost nine years with Cisco where he
held various senior management positions, his last position there as EMEA Group
VP of Service Provider Sales. He also led sales teams in APAC, where he helped
build the business by more than 60 percent year-over-year, and when overseeing
EMEA, he directed a team of 800 to increasing business in the region to more
than $2 billion. Mr. Abbott also served in various sales and sales management
positions during his 13 years at IBM.
Mr. Staffan Hillberg
has
served as a member of our Board of Directors since January 2007. He
is currently a member of our Nominating and Compensation
committees. Mr. Hillberg is currently the CEO of Wood & Hill
Investment AB, a private equity group based in Sweden. Earlier he held the
position of Managing Partner at the MVI Group, one of the largest and oldest
business angel networks in Europe with over 175 million Euros invested in 75
companies internationally. While at MVI he oversaw a number of
successful exits among them, two IPO's in 2006 on the AIM exchange in London as
well as an IPO on the Swiss Stock Exchange. Prior to MVI he ran a
local venture capital company as well as co-founded and was the CEO of the
computer security company AppGate with operations in Europe and the USA, raising
US$20M from ABN Amro, Deutsche Telecom and GE Equity. Before this he was
responsible for the online activities of the Bonnier Group, the largest media
group in Scandinavia, spearheading their internet activities and heading up
their sponsorship of MIT Media Lab. Earlier he was the QuickTime Product Manager
at Apple in Cupertino and before this Multimedia Evangelist with Apple Computer
Europe in Paris, France. He has extensive experience as an investor
and business angel having been involved in the listing of two companies in
Sweden, Mirror Image and Digital Illusions, where the latter was acquired by
Electronic Arts. Mr. Hillberg attended the M.Sc. program at Chalmers University
of Technology in Sweden and has an MBA from INSEAD in France.
Ms. Mary Losty
has served as a
member of our Board of Directors since March 2007. She is currently a
member of the Audit and Nominating and Corporate Governance
Committees. Ms. Losty is currently the General Partner at Cornwall
Asset Management, LLC, a portfolio management firm located in Baltimore,
Maryland, where she is responsible for the firm's investment in numerous
companies. Ms. Losty's prior experience includes working as a
portfolio manager at Duggan & Associates and as an equity research analyst
at M. Kimelman & Company. Prior to that she worked as an
investment banker at Morgan Stanley and Co., and for several years prior to that
she was the top aide to James R. Schlesinger, a five-time U.S. cabinet
secretary. Ms. Losty received both her B.S. and Juris Doctorate
degrees from Georgetown University, the latter with magna cum laude
distinction. She is a member of the American Bar Association and a
commissioner for Cambridge, Maryland's Planning and Zoning
Commission. Ms. Losty also sits on the board of directors of the
American Board of the United Nations University for Peace, an institution which
enjoys the exclusive status of being sanctioned by all 192 member states of the
United Nations.
Ms. Thomas Saponas
has served
as a member of our Board of Directors since April 2004. He is
currently a member of the Audit and Compensation committees. Mr. Saponas served
as the Senior Vice President and Chief Technology Officer of Agilent
Technologies, Inc. (NYSE: A) from August 1999 until he retired in October 2003.
Prior to being named Chief Technology Officer, from June 1998 to April 1999, Mr.
Saponas was Vice President and General Manager of Hewlett-Packard's Electronic
Instruments Group. Mr. Saponas has held a number of positions since the time he
joined Hewlett-Packard. Mr. Saponas served as General Manager of the Lake
Stevens Division from August 1997 to June 1998 and General Manager of the
Colorado Springs Division from August 1989 to August 1997. In 1986, he was a
White House Fellow in Washington, D.C. Mr. Saponas has a BSEE/CS (Electrical
Engineering and Computer Science) and an MSEE from the University of Colorado.
Mr. Saponas is a director of nGimat, a nanotechnology company, a director of
Time Domain, an ultra wideband communications company, and a director of
Keithley Instruments (NYSE: KEI), an electronic instruments
company.
EXECUTIVE
OFFICERS
Mr. James F.
Brear.
Please see information regarding Mr. Brear
above.
Mr. Charles Constanti
has
served as our Chief Financial Officer and Principal Financial Officer since May
2009, and as our Treasurer and Secretary since July 2009. Mr.
Constanti was formerly the vice president and CFO of Netopia, Inc., a
telecommunications equipment and software company, from April 2005 until its
acquisition in February 2007 by Motorola, Inc., following which and through
until May 8, 2009 Mr. Constanti held a senior finance position with
Motorola. From May 2001 to April 2005, Mr. Constanti was the vice
president and corporate controller of Quantum Corporation, for which he had
previously served in different accounting and finance positions since January
1997. Prior to that, Mr. Constanti held various finance positions at
Bank of America Corporation for 8 years, including vice president positions in
accounting policy and corporate general accounting. Mr. Constanti was an auditor
for PricewaterhouseCoopers for several years and is a certified public
accountant. He earned a B.S. in Accounting from Binghamton University in
1985.
The
Board Of Directors Recommends
A
Vote In Favor Of Each Named Nominee.
information
regarding the board of directors and corporate governance
Independence
of The Board of Directors
As
required under the NYSE Amex listing standards, at least a majority of the
members of a listed company’s Board of Directors must qualify as “independent,”
as affirmatively determined by the Board of Directors. The Board
consults with the Company’s counsel to ensure that the Board’s determinations
are consistent with relevant securities and other laws and regulations regarding
the definition of “independent,” including those set forth in pertinent listing
standards of NYSE Amex, as in effect from time to time.
Consistent
with these considerations, after review of all relevant identified transactions
or relationships between each director, or any of his or her family members, and
the Company, its senior management and its independent auditors, the Board has
affirmatively determined that the following five directors are independent
directors within the meaning of the applicable NYSE Amex
listing
standards: Mr. McClendon, Mr. Abbott, Mr. Hillberg, Ms. Losty and Mr.
Saponas. In addition to transactions required to be disclosed under
U.S. Securities and Exchange Commission (“
SEC
”)
rules, the Board considered certain other relationships in making its
independence determinations, and determined in each case that such other
relationships did not impair the director’s ability to exercise independent
judgment on our behalf. Specifically, the Board considered the following
information:
Mary
Losty
: In November 2006, Mary Losty purchased shares of
our equity securities in a private placement financing and was granted warrants
associated with this financing. Ms. Losty was appointed to the Board
in March 2007.
Thomas Saponas
: On
September 16, 2008, the Company closed a private placement sale of 5,244,666
shares of its common stock prices of $1.10 and $1.17. Thomas Saponas,
a director of the Company invested $1 million in this private placement at a
price of $1.17 per share.
Mr.
Brear, the Company’s President and Chief Executive Officer, is not
an
independent director by
virtue of his employment with the Company.
Meetings
of The Board of Directors
The Board
of Directors met 21 times during the last fiscal year. All directors
except Staffan Hillberg attended at least 75% of the aggregate number of
meetings of the Board and of the committees on which they served, held during
the portion of the last fiscal year for which they were directors or committee
members, respectively.
Information
Regarding Committees of the Board of Directors
The Board
has three committees:
an
Audit Committee, a Compensation Committee and a Nominating and Corporate
Governance Committee. The following table provides membership and
meeting information for the fiscal year ended December 31, 2008 for each of the
Board committees:
|
|
Audit
|
|
Compensation
|
|
Nominating
and Corporate Governance
|
|
Scott
McClendon
|
|
|
X*
|
|
|
X
|
|
|
|
|
James
F. Brear
|
|
|
|
|
|
|
|
|
|
|
Todd
Abbott
|
|
|
|
|
|
|
|
|
|
|
Staffan
Hillberg
|
|
|
|
|
|
X
|
|
|
X
|
|
Mary
Losty
|
|
|
X
|
|
|
|
|
|
X*
|
|
Thomas
Saponas
|
|
|
X
|
|
|
X*
|
|
|
|
|
Total
meetings in fiscal 2008
|
|
|
9
|
|
|
5
|
|
|
1
|
|
* Committee
Chairperson
Below is
a description of each committee of the Board of Directors. Each of
the committees has authority to engage legal counsel or other experts or
consultants, as it deems appropriate to carry out its responsibilities.
The
Board of Directors has determined that, except as specifically described below,
each member of each committee meets the applicable NYSE Amex rules and
regulations regarding “independence” and that each member is free of any
relationship that would impair his or her individual exercise of independent
judgment with regard to the Company.
Audit
Committee
The Audit
Committee of the Board of Directors was established by the Board in accordance
with Section 3(a)(58)(A) of the Securities Exchange Act of 1934, as amended (the
“
Exchange
Act
”), to oversee the Company’s corporate accounting and financial
reporting processes and audits of its financial statements. For this
purpose, the Audit Committee performs several functions. The Audit
Committee reviews, acts on and reports to the Board of Directors regarding
various auditing and accounting matters, including the selection of our
independent auditors, the monitoring of the rotation of the partners of the
independent auditors, the review of our financial statements, the scope of the
annual audits, fees to be paid to the auditors, the performance of our
independent auditors and our accounting practices. The Audit
Committee is composed of three directors: Mr. McClendon, Ms. Losty and Mr.
Saponas.
The
Audit Committee met 9 times during the fiscal year ended December 31,
2008. The Audit Committee has adopted a written charter that is
available to stockholders
on the Company’s website
at
http://www.proceranetworks.com/images/documents-2009-11-11/audit-committee.pdf.
The Board
of Directors reviews the NYSE Amex listing standards definition of independence
for Audit Committee members on an annual
basis
and has determined that all members of the Company’s Audit Committee are
independent (as independence is currently defined in the NYSE Amex listing
standards).
The
Board of Directors currently does not have an “audit committee financial expert”
as defined by the applicable SEC rules. The Board of Directors has
found it difficult to identify and recruit an individual with the correct skill
set, industry knowledge and professional background to serve the Company in this
role. At this time, we believe that retaining an independent director
for the purpose of qualifying as an “audit committee financial expert” would be
overly costly and may not be warranted given our stage of development, although
we continue to assess opportunities to do so.
Report
of the Audit Committee of the Board of Directors
1
The Audit
Committee has reviewed and discussed the audited financial statements for the
fiscal year ended December 31, 2008
with management
of the Company. The Audit Committee has discussed with the
independent registered public accounting firm the matters required to be
discussed by Statement of Auditing Standards No. 61, as amended, “Communication
with Audit Committees” (Codification of Statements on Auditing Standards, AU
Section 380), as adopted by the Public Company Accounting Oversight Board
(“
PCAOB
”). The
Audit Committee has also received the written disclosures and the letter from
the independent registered public accounting firm required by applicable
requirements of the PCAOB regarding the independent accountants’ communications
with the audit committee concerning independence, and has discussed with the
independent registered public accounting firm the accounting firm’s
independence. Based on the foregoing, the Audit Committee has
recommended to the Board of Directors that the audited financial statements be
included in the Company’s Annual Report on Form 10-K for the fiscal
year ended December 31, 2008.
|
Mr.
Scott McClendon
|
|
Ms.
Mary Losty
|
|
Mr.
Thomas Saponas
|
Compensation
Committee
The
Compensation Committee is composed of three directors: Messrs. McClendon,
Hillberg and Saponas. All members of the Company’s Compensation
Committee are independent (as independence is currently defined in the NYSE Amex
listing standards.
The Compensation
Committee met 5
times
during the fiscal year ended December 31, 2008.
The Compensation
Committee has adopted a written charter that is available to stockholders on the
Company’s website at
http://www.proceranetworks.com/images/documents-2009-11-11/compensation-committee.pdf
The
Compensation Committee of the Board of Directors acts on behalf of the Board to
review, recommend for adoption and oversee the Company’s compensation strategy,
policies, plans and programs, including:
|
·
|
determining
the salaries and incentive compensation of our officers and providing
recommendations for the salaries and incentive compensation of our other
employees; and
|
|
·
|
administering
our stock option plan.
|
______________________
1
|
The
material in this report is not “soliciting material,” is not deemed
“filed” with the Commission and is not to be incorporated by reference in
any filing of the Company under the Securities Act or the Exchange Act,
whether made before or after the date hereof and irrespective of any
general incorporation language in any such
filing.
|
Each
year, the Compensation Committee reviews with management the Company’s
Compensation Discussion and Analysis and considers whether to recommend that it
be included in
proxy statements
and other filings.
Compensation Committee Processes and
Procedures
Typically,
the Compensation Committee is expected to meet at least 2 times annually and
with greater frequency if necessary. The agenda for each meeting is
usually developed by the Chair of the Compensation Committee, in consultation
with the Chief Executive Officer. The Compensation Committee meets regularly in
executive session. However, from time to time, various members of
management and other employees as well as outside advisors or consultants may be
invited by the Compensation Committee to make presentations, provide financial
or other background information or advice or otherwise participate in
Compensation Committee meetings. The charter of the
Compensation Committee grants the Compensation Committee full access to all
books, records, facilities and personnel of the Company, as well as authority to
obtain, at the expense of the Company, advice and assistance from internal and
external legal, accounting or other advisors and consultants and other external
resources that the Compensation Committee considers necessary or appropriate in
the performance of its duties. In particular, the Compensation
Committee has the sole authority to retain compensation consultants to assist in
its evaluation of executive and director compensation, including the authority
to approve the consultant’s reasonable fees and other retention
terms.
Under its
charter, the Compensation Committee may form, and delegate authority to,
subcommittees, as appropriate.
Historically,
the Compensation Committee has made adjustments to annual compensation,
determined bonus objectives and made equity awards at one or more meetings held
during or leading up to the first quarter of the year. However, the
Compensation Committee also considers matters related to individual
compensation, such as compensation for new executive hires, as well as
high-level strategic issues, such as the efficacy of the Company’s compensation
strategy, potential modifications to that strategy and new trends, plans or
approaches to compensation, at various meetings throughout the
year. Generally, the Compensation Committee’s process comprises two
related elements: the determination of compensation levels and the establishment
of performance objectives for the current year. For executives other
than the Chief Executive Officer, the Compensation Committee solicits and
considers evaluations and recommendations submitted to the Committee by the
Chief Executive Officer. In the case of the Chief Executive Officer, the
evaluation of his performance is conducted by the Compensation Committee, which
determines any adjustments to his compensation as well as awards to be
granted. For all executives and directors, as part of its
deliberations, the Compensation Committee may review and consider, as
appropriate, materials such as financial reports and projections, operational
data, tax and accounting information, tally sheets that set forth the total
compensation that may become payable to executives in various hypothetical
scenarios, executive and director stock ownership information, company stock
performance data, analyses of historical executive compensation levels and
current Company-wide compensation levels, and recommendations of the
Compensation Committee’s compensation consultant, including analyses of
executive and director compensation paid at other companies identified by the
consultant. The Compensation Committee reviews, discusses and
assesses its own performance at least annually. The Compensation
Committee also periodically reviews and assesses the adequacy of its charter,
including its role and responsibilities as outlined in its charter, and
recommends any proposed changes to the Board of Directors for its
consideration.
Compensation
Committee Interlocks and Insider Participation
Our
Compensation Committee is currently composed of three non-employee
directors: Messrs. McClendon, Hillberg and
Saponas. None of the aforementioned individuals was, during
fiscal 2008, an officer or employee of Procera, was formerly an officer of
Procera or had any relationship requiring disclosure by Procera under Item 404
of regulation S-K. No interlocking relationship exists between any of
our executive officers or Compensation Committee members, on the one hand, and
the executive officers or compensation committee members of any other entity, on
the other hand, nor has any such interlocking relationship existed in the
past.
Compensation
Committee Report
2
The
Compensation Committee has reviewed and discussed with management the
Compensation Discussion and Analysis (“
CD&A
”)
required by Item 402(b) of Regulation S-K contained in this proxy
statement. Based on this review and discussion, the Compensation
Committee has recommended to the Board of Directors that the CD&A be
included in this proxy statement
.
|
Mr.
Thomas Saponas
|
|
Mr.
Scott McClendon
|
|
Mr.
Staffan Hillberg
|
Nominating
and Corporate Governance Committee
The
Nominating and Corporate Governance Committee of the Board of Directors is
responsible for identifying, reviewing and evaluating candidates to serve as
directors of the Company (consistent with criteria approved by the Board of
Directors), reviewing and evaluating incumbent directors, recommending to the
Board of Directors for selection candidates for election to the Board of
Directors, making recommendations to the Board of Directors regarding the
membership of the committees of the Board of Directors, assessing the
performance of the Board of Directors, and developing a set of corporate
governance principles for the Company. The Nominating and Corporate
Governance Committee is composed of two directors: Mr. Hillberg and
Ms. Losty. All members of the Nominating and Corporate Governance
Committee are independent (as independence is currently defined in the NYSE Amex
listing standards). The Nominating and Corporate Governance Committee met 1 time
during the fiscal year ended December 31, 2008. The Nominating and Corporate
Governance Committee has adopted a written charter that is available to
stockholders on the Company’s website at
http://www.proceranetworks.com/images/documents-2009-11-11/nominating-committee.pdf.
The
Nominating and Corporate Governance Committee believes that candidates for
director should have certain minimum qualifications, including the ability to
read and understand basic financial statements, being over 21 years of age and
having the highest personal integrity and ethics. The Nominating and
Corporate Governance Committee also intends to consider such factors as
possessing relevant expertise upon which to be able to offer advice and guidance
to management, having sufficient time to devote to the affairs of the Company,
demonstrated excellence in his or her field, having the ability to exercise
sound business judgment and having the commitment to rigorously represent the
long-term interests of the Company’s stockholders. However, the
Nominating and Corporate Governance Committee retains the right to modify these
qualifications from time to time. Candidates for Director nominees
are reviewed in the context of the current composition of the Board, the
operating requirements of the Company and the long-term interests of
stockholders. In conducting this assessment, the Nominating and
Corporate Governance Committee considers diversity, age, skills, and such other
factors as it deems appropriate given the current needs of the Board and the
Company, to maintain a balance of knowledge, experience and
capability. In the case of incumbent directors whose terms of office
are set to expire, the Nominating and Corporate Governance Committee reviews
these directors’ overall service to the Company during their terms, including
the number of meetings attended, level of participation, quality of performance,
and any other relationships and transactions that might impair the directors’
independence. In the case of new director candidates, the Nominating
and Corporate Governance Committee also determines whether the nominee is
independent for NYSE Amex purposes, which determination is based upon applicable
NYSE Amex listing standards, applicable SEC rules and regulations and the advice
of counsel, if necessary. The Nominating and Corporate Governance
Committee then uses its network of contacts to compile a list of potential
candidates, but may also engage, if it deems appropriate, a professional search
firm. The Nominating and Corporate Governance Committee conducts any
appropriate and necessary inquiries into the backgrounds and qualifications of
possible candidates after considering the function and needs of the
Board. The Nominating and Corporate Governance Committee meets to
discuss and consider the candidates’ qualifications and then selects a nominee
for recommendation to the Board by majority vote.
______________________
2
|
The
material in this report is not “soliciting material,” is furnished to, but
not deemed “filed” with, the Commission and is not deemed to be
incorporated by reference in any filing of the Company under the
Securities Act or the Exchange Act.
|
The
Nominating and Corporate Governance Committee will consider director candidates
recommended by stockholders. The Nominating and Corporate Governance
Committee does not intend to alter the manner in which it evaluates candidates,
including the minimum criteria set forth above, based on whether or not the
candidate was recommended by a stockholder. Stockholders who wish to recommend
individuals for consideration by the Nominating and Corporate Governance
Committee to become nominees for election to the Board of Directors may do so by
delivering a written recommendation to the Nominating and Corporate Governance
Committee at the following address: 100 Cooper Court, Los Gatos, California
95032, at least 45 days prior to the anniversary date of the mailing of the
Company’s proxy statement for the last Annual Meeting of
Stockholders. Submissions must include the full name of the proposed
nominee, a description of the proposed nominee’s business experience for at
least the previous five years, complete biographical information, a description
of the proposed nominee’s qualifications as a director and a representation that
the nominating stockholder is a beneficial or record holder of the Company’s
stock and has been a holder for at least one year. Any such
submission must be accompanied by the written consent of the proposed nominee to
be named as a nominee and to serve as a director if elected.
Stockholder
Communications With The Board Of Directors
Historically,
the Company has not provided a formal process related to stockholder
communications with the Board of Directors. Nevertheless, every
effort has been made to ensure that the views of stockholders are heard by the
Board of Directors or individual directors, as applicable, and that appropriate
responses are provided to stockholders in a timely manner. We believe
our responsiveness to stockholder communications to the Board of Directors has
been excellent. In order to communicate with the Board of Directors
as a whole, with non-management directors or with specified individual
directors, correspondence may be directed to the Company’s Secretary at 100
Cooper Court, Los Gatos, California 95032.
Code
Of Ethics
The
Company has adopted the Procera Networks, Inc. Code of Conduct and Ethics that
applies to all officers, directors and employees. The Code of Conduct
and Ethics is available on our website at
http://www.proceranetworks.com/images/documents-2009-11-11/code-of-ethics.pdf.
If
the Company makes any substantive amendments to the Code of Conduct and Ethics
or grants any waiver from a provision of the Code to any executive officer or
director, the Company will promptly disclose the nature of the amendment or
waiver on its website.
Proposal
2
Amendment
of 2007 Equity Incentive Plan
On
November 13, 2009, our Board approved amendments to the Procera Networks, Inc.
2007 Equity Incentive Plan (the “
2007
Plan
”), subject to approval by our stockholders. The 2007 Plan
was originally adopted by the Board on October 17, 2007 and was originally
approved by the stockholders on January 30, 2008. In addition to
updating the 2007 Plan for clarity, ease of administration, and compliance with
recent developments in applicable laws, we have amended the 2007 Plan to provide
for, and submit for your consideration, the following key amendment as
incorporated in the 2007 Plan:
|
·
|
An
increase in the number of shares of common stock that may be issued under
the 2007 Plan of 2,000,000 shares. These additional shares will
increase the total shares of common stock reserved for issuance under the
2007 Plan to an aggregate of 14,389,520 shares, all of which may be issued
pursuant to the exercise of incentive stock
options.
|
In this
Proposal 2, stockholders are requested to approve the amended 2007 Plan (the
“
Amended
2007 Plan
”). The affirmative vote of the holders of a majority
of the shares present in person or represented by proxy and entitled to vote at
the Annual Meeting will be required to approve the adoption of the Amended 2007
Plan. Abstentions will be counted toward the tabulation of votes cast
on proposals presented to the stockholders and will have the same effect as
negative votes. Broker non-votes are counted toward a quorum, but are
not counted for any purpose in determining whether this matter has been
approved.
The
Board Of Directors Recommends
A Vote In
Favor Of Proposal 2
.
Why
You Should Vote for the Amended 2007 Plan
Stock
Options Are an Important Part of Our Compensation Philosophy
We
strongly believe that the approval of the Amended 2007 Plan is critical to our
ongoing effort to build stockholder value. We
believe that equity compensation provides a strong incentive for employees to
work to grow the business and is most attractive to employees who share the
entrepreneurial sprit that has made our Company a success.
The
Amended 2007 Plan Contains Compensation and Governance Best
Practices
We have
included provisions in the Amended 2007 Plan that are designed to protect our
stockholders’ interests and to reflect corporate governance best practices
including:
|
·
|
Continued broad-based
eligibility for equity awards.
We grant stock
options to substantially all of our employees. By doing so, we link
employee interests with stockholder interests throughout the organization
and motivate our employees to act as owners of the
business.
|
|
·
|
Stockholder approval is
required for additional shares
. The Amended
2007 Plan does not contain an annual “evergreen” provision. The Amended
2007 Plan authorizes a fixed number of shares, so that stockholder
approval is required to issue any additional
shares.
|
|
·
|
No discount stock options or
stock appreciation rights.
All stock options and stock appreciation
rights are intended to have an exercise price equal to or greater than the
fair market value of our common stock on the date the stock option or
stock appreciation right is
granted.
|
|
·
|
Submission of Amended
2007 Plan amendments to
stockholders
. The Amended 2007 Plan requires
stockholder approval for material amendments to the Amended 2007 Plan,
including materially increasing the benefits accrued to participants under
the Amended 2007 Plan; materially increasing the number of securities
which may be issued under the Amended 2007 Plan; materially expanding the
class of individuals eligible to participate in the Amended 2007 Plan; or
materially extending the term of the Amended 2007
Plan.
|
Description
of the Amended 2007 Equity Incentive Plan
The
principal features of the Amended 2007 Plan are outlined below. This
summary is qualified in its entirety by reference to the complete text of the
Amended 2007 Plan. Stockholders are urged to read the actual text of
the Amended 2007 Plan in its entirety, which is appended to this proxy statement
as Appendix A.
Types
of Awards
The
Amended 2007 Plan provides for the following types of awards: incentive stock
options, nonstatutory stock options, restricted stock awards, restricted stock
unit awards, stock appreciation rights, performance stock awards, performance
cash awards, and other stock-based awards. We refer to these stock
awards in this Proposal collectively as the stock awards or awards.
Eligibility
Awards
may be granted under the Amended 2007 Plan to our employees, directors and
consultants. Only our employees may receive incentive stock
options. As of November 9, 2009, approximately 56 employees
(including our officers), consultants, and non-employee directors were eligible
to participate in the Amended 2007 Plan.
Administration
Our
Board, or a committee of the Board, may administer the Amended 2007
Plan. A committee may consist of two or more “non-employee directors”
within the meaning of Rule 16b-3 of the Exchange Act, or of two or more “outside
directors” within the meaning of Section 162(m) of the Internal Revenue Code of
1986, as amended (the “
Code
”). The
Amended 2007 Plan also permits delegation to our officers of the ability to make
limited grants of stock options to employees. The Board has delegated
administration of the Amended 2007 Plan to the Compensation
Committee.
As
administrator of the Amended 2007 Plan, the Board has the authority to
implement, construe and interpret its provisions. Among other things,
the Board has the power to determine award recipients and the terms of awards
including the exercise price, the number of shares subject to each award, the
exercisability of stock awards and the form of consideration payable at
exercise. The Board has the power to approve forms of award
agreements, and to adopt procedures and sub-plans to permit employees, directors
or consultants who are foreign nationals or employed outside the United States
to participate in the Amended 2007 Plan. The Board also has the
authority under the Amended 2007 Plan to reduce the exercise price of any
outstanding stock option and/or to cancel and re-grant any outstanding stock
option to reduce the exercise price of the option.
Stock
Subject to the Amended 2007 Plan
We are
asking to add 2,000,000 new shares to the Amended 2007
Plan. Therefore, if this Proposal 2 is approved, and subject to
adjustment upon certain changes in capitalization, the aggregate number of
shares of our common stock that may be issued pursuant to stock awards under the
Amended 2007 Plan shall not exceed 7,000,000 shares of common stock, plus an
additional number of shares in an amount not to exceed 7,389,520 comprised of:
(i) that number of shares subject to our 2003 Stock Option Plan and our 2004
Stock Option Plan (together, the Prior Plans) that were available for future
grants as of the date the Amended 2007 Plan was originally adopted by the Board
(that is, as of October 17, 2007) plus (ii) the number of shares subject to
outstanding stock awards issued under the Prior Plans that return to the share
reserve from time to time following the date the Amended 2007 Plan was
originally adopted by the Board. The shares of common
stock subject to stock awards granted under the Amended 2007 Plan that expire,
are forfeited because of a failure to vest, or otherwise terminate without being
exercised in full will return to the Amended 2007 Plan and be available for
issuance under the Amended 2007 Plan.
As of
November 9, 2009, options to purchase approximately 7,335,723 shares of common
stock were outstanding under the Amended 2007 Plan and approximately 3,885,518
shares remained available for future awards under the Amended 2007
Plan.
Terms
of Options
A stock
option is the right to purchase shares of our common stock at a fixed exercise
price for a fixed period of time. Stock option grants may be
incentive stock options or nonstatutory stock options; however, no more than
14,389,520 shares of common stock may be issued under the Amended 2007 Plan
pursuant to the exercise of incentive stock options. Each option is
evidenced by a stock option agreement. The Board determines the terms
of a stock option including the exercise price, the form of consideration paid
on exercise, the vesting schedule, restrictions on transfer and the
term. The exercise price of a stock option may not be less than 100%
of the fair market value of the stock subject to the option on the date of grant
(for incentive stock option 110% if the optionee is a 10%
holder). The term of an option will not be longer than ten (10) years
and may be subject to restrictions on transfer. When exercised, the
exercise price may be paid in cash, check, pursuant to a broker-assisted
cashless exercise, by delivery of other shares of common stock, by a “net
exercise” arrangement, or by other means acceptable to the Board.
Options
generally terminate three (3) months after termination of an optionee’s service
or as set forth in the option agreement. As set forth in the Amended
2007 Plan, the optionee will have longer to exercise when termination is due to
disability or death. No option may be exercised beyond the expiration
of its term.
Terms
of Restricted Stock Awards
Restricted
stock awards are awards of shares of our common stock that vest in accordance
with terms and conditions established by the Board. Each restricted
stock award is evidenced by an award agreement that sets forth the terms and
conditions of the award. The Board sets the terms of the restricted
stock awards including the size of the restricted stock award, the price to be
paid by the recipient, the vesting schedule, and any performance criteria that
may be required for the stock to vest. The award may vest based on
continued employment and/or the achievement of performance goals. If
a participant’s service terminates before the restricted stock is fully vested,
all of the unvested shares will be forfeited by the participant unless otherwise
provided in the restricted stock award agreement.
Terms
of Restricted Stock Unit Awards
A
restricted stock unit is a right to receive stock or cash equal to the value of
a share of stock at the end of a set period. No stock is issued at
the time of grant. Each restricted stock unit award is evidenced by
an agreement that sets forth the terms and conditions of the
award. The Board sets of the terms of the restricted stock unit award
including the size of the restricted stock unit award, the consideration to be
paid by the recipient, the vesting schedule, and any performance
criteria. When a participant’s service terminates, the unvested
portion of the restricted stock unit award will be forfeited unless otherwise
provided in the restricted stock unit award agreement.
Terms
of Stock Appreciation Rights
A stock
appreciation right, or SAR, is the right to receive the appreciation in the fair
market value of our common stock between the date of grant and the exercise date
for the number of shares of our common stock that are
exercised. Stock appreciation rights may be granted as stand-alone
stock awards or in tandem with other stock awards. When a SAR is
exercised, the holder is entitled to an amount equal to the difference between
(a) the fair market value of a share of our common stock on the date the SAR was
granted and (b) the fair market value of a share of our common stock on the date
the SAR is exercised. We may pay the amount of the appreciation in
cash or shares of our common stock or a combination of both. Each
stock appreciation right is evidenced by an agreement specifying the exercise
price, vesting schedule, number of shares granted, and the other terms of the
SAR. When a participant’s service terminates, the unvested portion of
the SAR will be forfeited unless otherwise provided in the award
agreement.
Terms
of Performance Based Stock Awards
Performance Stock
Awards
. A performance stock award may be granted, may vest, or
may be exercised upon achievement of pre-determined performance
goals. A performance stock award may require the completion of a
specified period of continuous service. The length of any performance
period, the performance goals to be achieved during the performance period, and
the measure of whether and to what degree such performance goals have been
attained will be determined by the Board. In addition, to the extent
permitted by applicable law and the award agreement, the Board may determine
that cash may be used in payment of performance stock awards.
Performance Cash
Awards
. A performance cash award is a cash award that is paid
upon the achievement of performance goals during a performance
period. A performance cash award may also require the completion of a
specified period of continuous service. The length of any performance
period, the performance goals to be achieved during the performance period, and
the measure of whether and to what degree such performance goals have been
attained will be conclusively determined by the Board. The Board may
determine that common stock authorized under the Amended 2007 Plan may be used
in payment of performance cash awards, including additional shares in excess of
the performance cash award as an inducement to hold shares of common
stock.
Performance
Criteria
. Performance-based stock and cash awards may be made
subject to one or more of the following criteria: (i) earnings per
share; (ii) earnings before interest, taxes and depreciation;
(iii) earnings before interest, taxes, depreciation and amortization
(EBITDA); (iv) total stockholder return; (v) return on
equity; (vi) return on assets, investment, or capital employed;
(vii) operating margin; (viii) gross margin;
(ix) operating income; (x) net income (before or after
taxes); (xi) net operating income; (xii) net operating
income after tax; (xiii) pre- and after-tax income;
(xiv) pre-tax profit; (xv) operating cash flow;
(xvi) sales or revenue targets; (xvii) orders and revenue;
(xviii) increases in revenue or product revenue;
(xix) expenses and cost reduction goals; (xx) improvement
in or attainment of expense levels; (xxi) improvement in or
attainment of working capital levels; (xxii) economic value added (or
an equivalent metric); (xxiii) market share; (xxiv) cash
flow; (xxv) cash flow per share; (xxvi) share price
performance; (xxvii) debt reduction;
(xxviii) implementation or completion of projects or processes;
(xxix) customer satisfaction; (xxx) stockholders’ equity;
(xxxi) quality measures; and (xxxii) to the extent that an
award is not intended to comply with Section 162(m) of the Code,
other measures of performance selected by the Board.
Terms
of Other Stock Awards
The Board
may grant other incentive awards that are based in whole or in part by reference
to the value of Procera Network, Inc.’s common stock. Subject to the
provisions of the Amended 2007 Plan, the Board has the authority to determine
the persons to whom and the dates on which such other stock awards will be
granted, the number of shares of common stock (or cash equivalents) to be
subject to each award, and other terms and conditions of such
awards. Such awards may be granted either alone or in addition to
other stock awards granted under the Amended 2007 Plan.
Changes
to Capital Structure
In the
event of certain changes in the capitalization of the Company, including through
merger, consolidation, reorganization, recapitalization, stock dividend,
dividend in property other than cash, stock split, liquidating dividend,
combination of shares, exchange of shares, change in corporate structure, or
otherwise, the Board will appropriately and proportionately adjust: (a) the
class(es) and maximum number of securities subject to the Amended 2007 Plan, (b)
the class(es) and maximum number of securities that may be issued pursuant to
the exercise of incentive stock options, (c) the class(es) and maximum number of
securities that may be awarded to any person pursuant to performance stock
awards and other stock-based awards intended to satisfy the requirements of
Section 162(m) of the Code (such as options and stock appreciation rights), and
(d) the class(es) and number of securities and price per share of stock subject
to outstanding stock awards.
Corporate
Transactions; Changes in Control
In the
event of a corporate transaction or a change of control, the Board shall take
one or more of the following actions: (1) arrange for the surviving company to
assume, or continue outstanding awards or provide substitute awards, (2)
accelerate the vesting of outstanding awards, (3) provide for the cancellation
of outstanding awards or (4) provide for a cash payment in settlement of such
award.
Duration,
Suspension, Termination, and Amendment
The Board
may amend, suspend or terminate the Amended 2007 Plan at any
time. The Amended 2007 Plan is scheduled to terminate on October 16,
2017, which date is ten years from the date the Board adopted the Amended 2007
Plan. No awards may be granted under the Amended 2007 Plan while the
Amended 2007 Plan is suspended or after it is terminated.
Tax
Withholding
The Board
may require a participant to satisfy any federal, state, local, or foreign tax
withholding obligation relating to a stock award by (a) causing the participant
to tender a cash payment; (b) withholding shares of common stock from the shares
of common stock issued or otherwise issuable to the participant in connection
with the award; (iii) withholding cash from an award settled in cash or from
other amounts payable to the participant; or (iv) by other method set forth in
the award agreement.
Federal
Income Tax Information
The
following is a summary of the principal United States federal income taxation
consequences to participants and Procera Networks, Inc. with respect to
participation in the Amended 2007 Plan. This summary is not exhaustive, and does
not discuss state, local or foreign tax laws.
Incentive
Stock Options
An
optionee who is granted an incentive stock option generally does not recognize
taxable income at the time the option is granted or upon its exercise, although
the exercise is an adjustment item for alternative minimum tax purposes and may
subject the optionee to the alternative minimum tax. Upon a
disposition of the shares more than two years after grant of the option and more
than one year after exercise of the option, any gain or loss is treated as
long-term capital gain or loss. If these holding periods are not
satisfied, the optionee recognizes ordinary income at the time of disposition
equal to the difference between the exercise price and the lower of
(i) the fair market value of the shares at the date of the option
exercise or (ii) the sale price of the shares. Any gain or
loss recognized on such a premature disposition of the shares in excess of the
amount treated as ordinary income is treated as long-term or short-term capital
gain or loss, depending on the holding period. Unless limited by
Section 162(m) of the Code, we are generally entitled to a deduction
in the same amount as the ordinary income recognized by the
optionee.
Nonstatutory
Stock Options
No
taxable income is generally recognized by an optionee upon the grant of a
nonstatutory stock option. Upon exercise, the optionee will generally
recognize ordinary income equal to the excess of the fair market value of the
purchased shares on the exercise date over the exercise price paid for those
shares. Generally, we will be entitled to an income tax deduction in
the tax year in which the optionee recognizes the ordinary
income. When the optionee disposes of shares granted as a
nonstatutory stock option, any difference between the sale price and fair market
value of the shares on the exercise date, is treated as long-term or short-term
capital gain or loss, depending on the holding period.
Restricted
Stock Awards
A
participant acquiring restricted stock generally will recognize ordinary income
equal to the difference between the fair market value of the shares on the
“determination date” (as defined below) and their purchase price, if
any. If the participant is an employee, such ordinary income
generally is subject to withholding of income and employment
taxes. The “determination date” is the date on which the participant
acquires the shares unless they are subject to a substantial risk of forfeiture
and are not transferable, in which case the determination date is the earlier of
(i) the date on which the shares become transferable or
(ii) the date on which the shares are no longer subject to a
substantial risk of forfeiture. If the determination date is after
the date on which the participant acquires the shares, the participant may
elect, pursuant to Section 83(b) of the Code, to have the date of
acquisition be the determination date by filing an election with the Internal
Revenue Service no later than 30 days after the date the shares are
acquired. Upon the sale of shares acquired pursuant to a restricted
stock award, any gain or loss, based on the difference between the sale price
and the fair market value on the determination date, will be taxed as capital
gain or loss. Such gain or loss will be long-term or short-term
depending on whether the stock was held for more than one year. We
will be entitled (subject to the requirement of reasonableness, the provisions
of Section 162(m) of the Code, and the satisfaction of a tax reporting
obligation) to a corresponding income tax deduction in the year in which such
ordinary income is recognized by the participant.
Restricted Stock
Units
.
No
taxable income is recognized upon receipt of a restricted stock unit
award. In general, the participant will recognize ordinary income in
the year in which the shares subject to that unit vest and are actually issued
to the participant in an amount equal to the fair market value of the shares on
the date of issuance. We will be entitled (subject to the requirement
of reasonableness, the provisions of Section 162(m) of the Code, and the
satisfaction of a tax reporting obligation) to an income tax deduction equal to
the amount of ordinary income recognized by the participant at the time the
shares are issued. In general, the deduction will be allowed for the
taxable year in which such ordinary income is recognized by the
participant.
Performance
Awards.
A
participant generally will recognize no income upon the grant of a performance
awards. Upon the settlement of cash awards, participants normally
will recognize ordinary income in the year of receipt in an amount equal to the
cash received. If the participant receives shares of restricted
stock, the participant generally will be taxed in the same manner as described
above for restricted stock or restricted stock units, as
applicable. If the participant is an employee, such ordinary income
generally is subject to withholding of income and employment
taxes. Upon the sale of any shares received, any gain or loss, based
on the difference between the sale price and income previously recognized on the
shares, will be taxed as capital gain or loss. We generally will be
entitled to a deduction equal to the amount of ordinary income recognized by the
participant, except to the extent such deduction is limited by applicable
provisions of the Code.
Stock
Appreciation Rights
No
taxable income is reportable when a stock appreciation right is granted to a
participant. Upon exercise, the participant will recognize ordinary
income in an amount equal to the amount of cash received and the fair market
value of any shares received. Generally, Procera Networks, Inc. will
be entitled to an income tax deduction in the year in which the ordinary income
is recognized by the participant. Any additional gain or loss
recognized upon any later disposition of the shares would be capital gain or
loss.
Section
162(m)
Section
162(m) of the Code denies a deduction to any publicly-held corporation for
compensation paid to certain “covered employees” in a taxable year to the extent
that compensation paid to a covered employee exceeds $1 million. It
is possible that compensation attributable to Amended 2007 Plan awards, when
combined with all other types of compensation received by a covered employee
from us, may cause this limitation to be exceeded in any given
year. However, certain kinds of compensation, including qualified
“performance-based compensation,” are disregarded for purposes of the deduction
limitation if certain steps are taken by the corporation.
In order
to preserve, to the greatest extent possible, our tax deductions on stock and
cash awards granted under the Amended 2007 Plan, Section 162(m) of the Code
requires that our stockholders approve certain limitations on these
awards. Therefore, the Amended 2007 Plan provides that no person may
be granted stock awards whose value is determined by reference to an increase
over an exercise or strike price of at least one hundred percent (100%) of the
fair market value of the common stock on the date of grant (such as options and
stock appreciation rights) covering more than 1,500,000
shares of common stock
during any calendar year. In addition, no person may be granted
performance stock awards covering more than 750,000 shares of common stock
during any calendar year. Finally, no person may be granted
performance cash awards with a value exceeding $1,000,000 during any calendar
year. All of these share limits are subject to adjustment upon
certain changes in capitalization.
New
Plan Benefits
We cannot
currently determine the benefits or number of shares subject to awards that may
be granted in the future to executive officers, directors and employees under
the Amended 2007 Plan. The following table sets forth information
about awards granted under the 2007 Plan in fiscal year 2008 to the Named
Executive Officers, all current executive officers as a group, all non-employee
directors as a group, and all non-executive employees and consultants (including
all current officers who are not executive officers) as a group (approximately 8
people). On November 9, 2009, the last reported sales price of our
common stock was $0.59.
2007
Plan
|
Name
|
|
Weighted Average Exercise Price
($)
|
|
|
Number of Shares Subject to
Awards
|
|
James
Brear
|
|
|
1.41
|
|
|
|
2,250,000
|
|
Thomas
Williams
|
|
|
--
|
|
|
|
--
|
|
Paul
Eovino
|
|
|
--
|
|
|
|
--
|
|
David
Stepner
|
|
|
0.00
|
|
|
|
300,000
|
|
Todd
Abbott
|
|
|
1.07
|
|
|
|
16,481
|
|
Staffan
Hillberg
|
|
|
1.20
|
|
|
|
38,720
|
|
Mary
Losty
|
|
|
1.23
|
|
|
|
15,000
|
|
Scott
McClendon
|
|
|
1.23
|
|
|
|
15,000
|
|
Thomas
Saponas
|
|
|
1.21
|
|
|
|
43,217
|
|
Executive
Group
|
|
|
1.24
|
|
|
|
2,550,000
|
|
Non-Executive
Director Group
|
|
|
1.20
|
|
|
|
128,418
|
|
Non-Executive
Officer Employee Group
|
|
|
1.22
|
|
|
|
2,720,000
|
|
Equity
Compensation Plan Information
The
following table provides certain information as of November 9, 2009 with respect
to all of our equity compensation plans in effect on that date.
|
|
Number
of Securities to be Issued Upon Exercise of Outstanding Options, Warrants
and Rights (a)
|
|
|
Weighted
Average Exercise Price of Outstanding Options, Warrants and Rights
(b)
|
|
|
Number
of Securities Remaining Available for Future Issuance Under Equity
Compensation Plans (Excluding Securities Reflected in Column (a))
(c)
|
|
Equity
compensation plans approved by stockholders
|
|
|
7,335,723
|
(1)
|
|
$
|
1.12
|
|
|
|
3,885,518
|
(2)
|
Equity
compensation plans not approved by stockholders
(3)
(4)
|
|
|
3,660,021
|
|
|
$
|
1.03
|
|
|
|
--
|
|
Total:
|
|
|
10,995,744
|
|
|
$
|
1.09
|
|
|
|
3,885,518
|
|
(1)
|
Includes
unexercised options issued pursuant to our 2007 Equity Incentive
Plan.
|
(2)
|
Includes
unissued options available pursuant to our 2007 Equity Incentive
Plan.
|
(3)
|
Includes
(i) 151,268 shares subject to a warrant granted on December 20, 2002 to a
financial advisor for consulting services rendered with an exercise price
of $0.01 and an expiration date of June 19,
2009.
|
(ii)
|
100,000
shares subject to a warrant granted on February 23, 2005 to an individual
for sales services rendered with an exercise price of $1.78 and an
expiration date of February 23,
2010.
|
(iii)
|
10,000
shares subject to a warrant granted on April 13, 2005 to an individual for
financing services rendered with an exercise price of $1.86 and an
expiration date of April 13, 2009.
|
(iv)
|
75,000
shares subject to a warrant granted on June 14, 2005 to an individual for
financing services rendered with an exercise price of $1.42 and an
expiration date of June 14, 2009.
|
(v)
|
1,038,875
shares subject to a warrant granted on February 28, 2006 to a group of
placement agents for fees associated with our February 2006 private
placement financing with an exercise price of $0.40 and an expiration date
of November 30, 2011.
|
(vi)
|
360,000
shares subject to a warrant granted on August 2, 2006 to an individual for
investor relations services rendered with an exercise price of $1.40 and
an expiration date of August 2,
2009.
|
(vii)
|
1,380,000
shares subject to a warrant granted on November 30, 2006 to a group of
placement agents for fees associated with our November 2006 private
placement financing with an exercise price of $1.50 and an expiration date
of November 30, 2011.
|
(viii)
|
15,000
shares subject to a warrant granted on January 24, 2007 to an individual
for recruitment services rendered with an exercise price of $2.14 and an
expiration date of January 23,
2010.
|
(ix)
|
100,000
shares subject to a warrant granted on January 24, 2007 to an individual
for sales services rendered with an exercise price of $2.14 and an
expiration date of January 23,
2010.
|
(x)
|
199,988
shares subject to a warrant granted on July 16, 2007 to a group of
placement agents for fees associated with our July 2007 private placement
financing with an exercise price of $2.00 and an expiration date of July
17, 2012.
|
(xi)
|
70,000
shares subject to a warrant granted on July 31, 2007 to an individual for
institutional investor relations services rendered with an exercise price
of $1.12 and an expiration date of July 31,
2010.
|
(xii)
|
50,000
shares subject to a warrant granted on May 13, 2008 to an individual for
marketing services rendered with an exercise price of $0.83 and an
expiration date of June 30,
2009.
|
(xiii)
|
40,000
shares subject to a warrant granted on May 13, 2008 to an individual for
marketing services rendered with an exercise price of $2.00 and an
expiration date of June 30, 2009.
|
(xiv)
|
100,000
shares subject to a warrant granted on June 30, 2008 to an individual for
development services rendered with an exercise price of $0.49 and an
expiration date of September 17,
2009.
|
(xv)
|
65,000
shares subject to a warrant granted on June 30, 2008 to an individual for
development services rendered with an exercise price of $0.49 and an
expiration date of August 15, 2009.
|
(xvi)
|
17,759
shares subject to a warrant granted on September 16, 2008 to a group of
placement agents for fees associated with our August 2008 private
placement financing with an exercise price of $1.75 and an expiration date
of September 15, 2011.
|
(4)
|
Includes
(i) 72,727 common shares granted on January 24, 2007 for financing
services rendered with a fair market value of $1.65 per
share.
|
(ii)
|
165,000
common shares granted on February 8, 2005 for investor relations services
to be provided with a fair market value of $0.51 per
share.
|
(iii)
|
825,000
common shares granted on November 30, 2005 for investor relations services
to be provided with a fair market value of $0.70 per
share
|
(iv)
|
247,500
common shares granted on May 2, 2007 for investor relations services to be
provided with a fair market value of $2.47 per
share.
|
(v)
|
11,000
common shares granted on October 11, 2004 for sales services rendered with
a fair market value of $0.92.
|
(vi)
|
9,741
common shares granted on December 11, 2007 for executive recruiting
services rendered with a fair market value of $3.08 per
share.
|
(vii)
|
17,850
common shares granted on March 12, 2008 for executive recruiting services
rendered with a fair market value of $1.40 per
share.
|
(viii)
|
490,000
common shares granted on June 27, 2008 for investor relations services to
be provided with a fair market value of $1.40 per
share.
|
(ix)
|
17,241
common shares granted on March 21, 2008 for financing services rendered
with a fair market value of $1.45 per
share.
|
Required
Vote and Board of Directors Recommendation
Approval
of Proposal 2 requires the affirmative vote of a majority of the shares present
or represented by proxy and entitled to vote at the annual
meeting. Abstentions will be counted toward the tabulation of votes
cast on the proposal and will have the same effect as “Against”
votes. Broker non-votes will have no effect on the outcome of the
vote.
Our Board
of Directors believes that approval of Proposal 2 is in our best interests and
the best interests of our stockholders for the reasons stated
above.
Proposal
3
Ratification
of Selection of Independent Registered Public Accounting Firm
The Audit
Committee of the Board of Directors has selected PMB Helin Donovan, LLP as the
Company’s independent registered public accounting firm for the fiscal year
ending December 31, 2009 and has further directed that management submit the
selection of independent registered public accounting firm for ratification by
the stockholders at the annual meeting. PMB Helin Donovan, LLP
has audited the
Company’s financial statements since December 31,
2006. Representatives of
PMB Helin Donovan,
LLP
are expected to
be present at the Annual Meeting. They will have an opportunity to
make a statement if they so desire and will be available to respond to
appropriate questions.
Neither
the Company’s Bylaws nor other governing documents or law require stockholder
ratification of the selection of PMB Helin Donovan, LLP
as the Company’s
independent registered public accounting firm. However, the Audit
Committee of the Board is submitting the selection of PMB Helin Donovan,
LLP
to the
stockholders for ratification as a matter of good corporate
practice. If the stockholders fail to ratify the selection, the Audit
Committee of the Board will reconsider whether or not to retain that
firm. Even if the selection is ratified, the Audit Committee of the
Board in its discretion may direct the appointment of different independent
auditors at any time during the year if they determine that such a change would
be in the best interests of the Company and its stockholders.
The
Company engaged additional expert services in support of the preparation of our
financial statements for the year ended January 1, 2006 and January 2,
2005. The audit of the subsidiary in Sweden was performed by another
PCAOB registered audit firm, Ohrlings PriceWaterhouseCoopers (“
PWC
”). PWC’s
efforts were directed by PMB Helin Donovan, LLP and PMB Helin Donovan, LLP
placed reliance on representations made by PWC. The Company also
engaged a PCAOB registered audit and tax firm for accounting services associated
with tax accounting issues and related footnotes required in connection with
statutory and regulatory filings
The
affirmative vote of the holders of a majority of the shares present in person or
represented by proxy and entitled to vote at the annual meeting will be required
to ratify the selection of PMB Helin Donovan, LLP. Abstentions will
be counted toward the tabulation of votes cast on proposals presented to the
stockholders and will have the same effect as negative votes. Broker
non-votes are counted towards a quorum, but are not counted for any purpose in
determining whether this matter has been approved.
Principal
Accountant Fees and Services
In
connection with the audit of the 2008 financial statements, the Company entered
into an engagement agreement with PMB Helin Donovan, LLP,
which sets forth
the terms by which PMB Helin Donovan, LLP
will
perform audit services for the Company. That agreement is subject to
alternative dispute resolution procedures and an exclusion of punitive
damages.
The
following table represents aggregate fees billed to the Company for the fiscal
years ended December 31, 2007 and December 31, 2008, by PMB Helin Donovan, LLP,
the Company’s principal accountant.
|
|
Fiscal
Year Ended
|
|
|
|
(in
thousands)
|
|
|
|
|
|
|
|
|
Audit
Fees (1)
|
|
$
|
261,865
|
|
|
$
|
186,391
|
|
Audit-Related
Fees (2)
|
|
|
59,073
|
|
|
|
65,380
|
|
Tax
Fees (3)
|
|
|
66,349
|
|
|
|
85,154
|
|
All
Other Fees (4)
|
|
|
26,257
|
|
|
|
50,134
|
|
Total
Fees
|
|
$
|
413,544
|
|
|
$
|
387,059
|
|
(1)
|
Includes
fees for the audit of the annual financial statements included in our Form
10-K and the review of interim financial statements included on Forms 10-Q
by our principal accounting firms and the annual review of Sarbanes-Oxley
404 implementation. Of the audit fees in 2008, approximately
$247 thousand was related to services provided by PMB Helin Donovan and
$15 thousand was related to services provided by Burr Pilger Meyer, our
predecessor audit firm. Of the audit fees in 2007,
approximately $158,000 was related to services provided by PMB Helin
Donovan, $16 thousand was related to quarterly evaluation of 123R expenses
and $7,000 was related to services provided by Burr Pilger
Meyer.
|
(2)
|
Includes
fees for expert services provided primarily by PWC in Sweden in support of
the review and audit of our Swedish subsidiary and review of interim
financial statements.
|
(3)
|
Includes
fees for the preparation of statutory and regulatory filings associated
with tax accounting, footnotes and returns. These services were
provided by Mohler, Nixon Williams, LLP in the US and PWC in Sweden during
2008 and 2007.
|
(4)
|
Includes
fees for the preparation and review of our SB-2 Registration, S-8
Registration, Proxy statement, 8-K’s as
required.
|
All fees
described above were approved by the Audit Committee.
Pre-Approval Policies and
Procedures
.
The Audit
Committee has adopted a policy that all services for audit, audit-related, taxes
and any other non-audit services to be performed by our independent registered
public accounting firm must be pre-approved by the Audit Committee. Our company
policy is that all such services must be approved prior to the commencement of
the engagement. The Audit Committee is also required to pre-approve the
estimated fees for such services, as well as any subsequent changes to the terms
of the engagement. The Audit Committee has delegated the authority (within
specified limits) to the chair of the Audit Committee to pre-approve such
services if it is not practical to wait until the next Audit Committee meeting
to seek such approval. The Audit Committee chair is required to report to the
Audit Committee at the following Audit Committee meeting any such services
approved by the chair under such delegation.
The Audit
Committee will only approve those services that would not impair the
independence of the independent registered public accounting firm and which are
consistent with the rules of the SEC and the Public Company Accounting Oversight
Board.
Under
this policy, the Audit Committee meets at least annually to review and where
appropriate approve the audit and non-audit services to be performed by the
Company’s independent registered public accounting firm. Any subsequent requests
to have the independent registered public accounting firm perform additional
services must be submitted in writing to the Audit Committee by our chief
financial officer, together with the independent registered public accounting
firm, which written request must include an affirmation from each that the
requested services are consistent with the SEC and Public Company Accounting
Oversight Board’s rules on auditor independence.
All fees
paid to PMB Helin Donovan for 2008 and 2007 were pre-approved by our Audit
Committee.
The
Board Of Directors Recommends
A Vote In
Favor Of Proposal 3
.
Security
Ownership of
Certain
Beneficial Owners and Management
The
following table sets forth certain information regarding the ownership of the
Company’s common stock as of October 31, 2009 by: (i) each director and nominee
for director; (ii) each of the executive officers named in the Summary
Compensation Table; (iii) all executive officers and directors of the Company as
a group; and (iv) all those known by the Company to be beneficial owners of more
than five percent of its common stock.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Scott
McClendon (3)
|
|
|
323,280
|
|
|
|
*
|
|
James
F. Brear (4)
|
|
|
1,019,791
|
|
|
|
1.08
|
%
|
Todd
Abbott (5)
|
|
|
64,506
|
|
|
|
*
|
|
Staffan
Hillberg (6)
|
|
|
141,990
|
|
|
|
*
|
|
Mary
Losty (7)
|
|
|
1,938,531
|
|
|
|
2.06
|
%
|
Thomas
Saponas (8)
|
|
|
1,196,373
|
|
|
|
1.26
|
%
|
Thomas
Williams (9)**
|
|
|
1,028,353
|
|
|
|
1.09
|
%
|
Paul
Eovino (10)***
|
|
|
281,251
|
|
|
|
*
|
|
All
executive officers and directors as a group (8 persons)
(11)
|
|
|
5,994,075
|
|
|
|
6.00
|
%
|
___________________________
**
|
Effective
December 31, 2008, Mr. Williams retired from the
Company.
|
***
|
Effective
April 8, 2009, Mr. Eovino resigned from the positions of interim Chief
Financial Officer and Principal Accounting Officer of the
Company.
|
(1)
|
This
table is based upon information supplied by officers and directors. Unless
otherwise indicated in the footnotes to this table and subject to
community property laws where applicable, the Company believes that each
of the stockholders named in this table has sole voting and investment
power with respect to the shares indicated as beneficially
owned. Applicable percentages are based on 94,082,724 shares
outstanding on
October
31
, 2009, adjusted as required by rules promulgated by the
SEC. Beneficial ownership is determined in accordance with the
rules of the SEC and includes voting or investment power with respect to
the securities. Common shares subject to options that are currently
exercisable or exercisable within 60 days of
October 31
, 2009 are
deemed to be outstanding and to be beneficially owned by the person or
group holding such options or warrants for the purpose of computing the
percentage ownership of such person or group but are not treated as
outstanding for the purpose of computing the percentage ownership of any
other person or group. Unless otherwise indicated by footnote,
the persons named in the table have sole voting and sole investment power
with respect to all common shares shown as beneficially owned by them,
subject to applicable community property
laws.
|
(2)
|
The
address of each of the directors and officers listed above is c/o Procera
Networks, Inc. 100 Cooper Court, Los Gatos, California
95032.
|
(3)
|
Shares
beneficially owned by Scott McClendon include non-qualified options to
purchase 231,852 shares of our common stock that are exercisable in whole
or in part within 60 days of
October 31
, 2009 and
91,428 of common stock purchased in open market
transactions.
|
(4)
|
Shares
beneficially owned by James F. Brear include incentive stock options to
acquire 1,019,791 shares of our common stock that are exercisable in whole
or in part within 60 days of
October 31
,
2009.
|
(5)
|
Shares
beneficially owned by Todd Abbott include non-qualified options to
purchase 64,506 shares of our common stock that are exercisable in whole
or in part within 60 days of
October 31
,
2009.
|
(6)
|
Shares
beneficially owned by Staffan Hillberg include non-qualified options to
purchase 141,990 shares of our common stock that are exercisable in whole
or in part within 60 days of
October 31
,
2009.
|
(7)
|
Shares
beneficially owned by Mary Losty include 1,500,000 shares of our common
stock acquired through purchase in our November 2006 private placement
sale, warrants to purchase 300,000 shares of our common stock that are
exercisable in whole or in part within 60 days of
October 31
, 2009, 10,500
shares of common stock purchased in open market transactions, and
non-qualified options to purchase 128,031 shares of our common stock that
are exercisable in whole or in part with 60 days of
October 31
,
2009.
|
(8)
|
Shares
beneficially owned by Thomas Saponas include 854,700 shares of common
stock acquired in our September 2008 private placement sale, 108,667
shares of common stock purchased in open market transactions and
non-qualified options to purchase 233,006 shares of our common stock that
are exercisable in whole or in part within 60 days of
October 31
,
2009.
|
(9)
|
Shares
beneficially owned by Thomas Williams include 100,000 shares of our common
stock acquired through the purchase of founders shares and non-qualified
stock options to acquire 928,353 shares of our common stock which may be
exercised within 60 days of
October 31
,
2009.
|
(10)
|
Shares
beneficially owned by Paul Eovino include non-qualified options to
purchase 281,251 shares of our common stock that are exercisable in whole
or in part within 60 days of
October 31
,
2009.
|
(11)
|
Shares
beneficially owned by the directors and executive officers as a group
include 854,700 shares of common stock acquired in our September 2008
private placement sale, 1,500,000 shares of our common stock acquired
through purchase in our November 2006 private placement sale, 100,000
shares of our common stock acquired through the purchase of founders
shares, warrants to purchase 300,000 shares of our common stock that are
exercisable in whole or in part within 60 days of
October 31
, 2009, 210,595
shares of common stock purchased in open market transactions, incentive
stock options to acquire 1,019,791 shares of our common stock that are
exercisable in whole or in part within 60 days of
October 31
, 2009 and
non-qualified options to purchase 2,033,989 shares of our common stock
that are exercisable in whole or in part within 60 days of
October 31
,
2009.
|
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Exchange Act requires the Company’s directors and executive
officers, and persons who own more than ten percent of a registered class of the
Company’s equity securities, to file with the SEC initial reports of ownership
and reports of changes in ownership of common stock and other equity securities
of the Company. Officers, directors and greater than ten percent
stockholders are required by SEC regulation to furnish the Company with copies
of all Section 16(a) forms they file.
To the
Company’s knowledge, based solely on a review of the copies of such reports
furnished to the Company and written representations that no other reports were
required, during the fiscal year ended December 31, 2008, all Section 16(a)
filing requirements applicable to its officers, directors and greater than ten
percent beneficial owners were complied with; except that Form 4 reports,
covering an aggregate of 19 transactions, were filed late by Todd Abbott (1),
James Brear (1), Staffan Hillberg (3), Mary Losty (4), Scott McClendon (5), Sven
Nowicki (1) and Thomas Saponas, and each of Todd Abbott and James Brear file
late Form 3 reports.
Executive
Compensation
Compensation
Discussion and Analysis
Overview
of Compensation Program
The goal
of our executive compensation program is to provide a structure of incentives
and rewards that will drive behavior and performance in a way that builds long
term value for our stockholders. In support of this goal
we have implemented compensation and benefit programs that are designed
to:
|
•
|
Align
the interests of management and
stockholders;
|
|
•
|
Enable
the recruitment and retention of high quality executives;
and
|
|
•
|
Provide
fair and reasonable levels of
compensation
|
Compensation
Objectives
The
following are the principal objectives of our compensation
programs:
Performance
– We strive to maintain a performance-oriented culture. Each of our compensation
elements are designed to encourage performance improvement of our executive
officers. We expect our executive officers to perform to high standards of
competence.
Alignment
with stockholders – We set our goals based on the business milestones that we
believe are most likely to drive long term stockholder value and by tying
significant elements of executive compensation to our business
success. Cash bonuses are designed to acknowledge short
term goal accomplishment while over the long term, executive officers expect to
benefit directly from increases in the value of our common stock through equity
participation, primarily stock options.
Recruiting
and retention – Building an outstanding organization and delivering excellence
in all aspects of our performance requires that we hire, and retain, high
quality executives. We believe that an
environment in which employees are able to have an enjoyable, challenging and
rewarding work experience is critical to our ability to recruit and retain the
right people. A crucial aspect of that environment is the
structure of incentives and rewards that are embedded in the compensation
structure. We strive to keep this structure competitive
so that qualified people are motivated to join our team and to continue to grow
and succeed at Procera.
Fair and
reasonable compensation – We strive to make our compensation programs fair in
relation to other executives within the organization and in relation to
comparable positions in other companies. We set compensation levels that are
reasonable in terms of our overall financial and competitive condition as a
company and that reflect the experience, skills and level of responsibility of
the executive. We utilize executive compensation resources to aid in
benchmarking all components of our executive compensation levels to outside
market conditions.
Compensation
Process
The
Compensation Committee of the Board of Directors operates under a board-approved
charter. This charter specifies the principal
responsibilities of the committee as follows: (i) to review and approve the
overall compensation strategy (including performance goals, compensation plans,
programs and policies, employment and similar agreements with executive
officers); (ii) to determine the compensation and terms of employment of the
chief executive officer and the other executive officers; (iii) to administer
and to recommend adoption, change or termination of plans, including option
plans, bonus plans, deferred compensation plans, pension plans and (iv) to
establish appropriate insurance for the directors and
officers. The Committee consists of three directors, each
of whom satisfies the independence requirements of the American Stock Exchange
Company Guide as well as applicable SEC and IRS regulations.
The
performance of each of our executive officers is evaluated annually at the end
of the calendar year. The chief executive officer’s performance is evaluated by
the Compensation Committee and the performance of the other executive officers
is evaluated by the chief executive officer and reviewed with the Compensation
Committee. The factors taken into account in the evaluation of performance
include the extent to which pre-established goals and business plans were
accomplished and the extent to which the executive demonstrated leadership,
creativity, teamwork and commitment, and embodied our company
values. Other factors that are considered in making
compensation determinations are the experience, skill level and level of
responsibility of the executive and competitive market
conditions.
All
options or restricted stock awards granted to executive officers and directors
must be approved by either the Compensation Committee or the Board of
Directors. At the time of hire, options and/or restricted
stock awards are granted effective on the employment start date for the
executive. Generally, we assess all of our executive
officers on an annual basis for potential additional stock option
grants. These annual awards are approved by the
Compensation Committee or by the Board of Directors.
Our
compensation committee considers relevant market data in setting the
compensation for our executive Officers. During 2008 the
compensation committee selected Radford Surveys and Consulting to provide
competitive data for establishing officer and director
compensation. Radford was selected because of their
experience and number of companies surveyed. They also
showed considerable experience with Silicon Valley high technology
companies. A broad survey was used of companies with
similar revenue, headcount and market
capitalization. Specific comparable companies were not
used as the resources required for selecting and conducting a narrow survey were
not justified by the total compensation budget and stage of development of
Procera.
Compensation
Elements
General –
We have implemented specific compensation elements to address our objectives
including base salary, equity participation, benefits and a cash bonus
plan. These elements combine short term and longer term
incentives and rewards in meeting our executive compensation goals.
Market
Compensation Data – Our Compensation Committee considers relevant market data in
setting the compensation for our executive
Officers. During 2008, the Compensation Committee
selected Radford Surveys and Consulting to provide competitive data for
establishing officer and director compensation. Radford
was selected because of their experience and quantity of companies
surveyed. They also showed considerable experience with
Silicon Valley high technology companies. A broad survey
was used of companies with similar revenue, headcount and market
capitalization. Specific comparable companies were not
used as the resources required for selecting and conducting a narrow survey were
not justified by the total compensation budget and stage of development of the
company.
Base
Salary – In determining base salaries for our executive officers, we benchmark
each of our executive positions using data compiled by Radford. The
specific report used was the Radford July 2008 Executive Survey, which included
124 technology companies with revenues below $100 million for
2008. This survey was further subdivided into categories
of companies, with revenues expected to be under $10 million, $10 - $49.9
million and over $50 million. The companies in these subgroups were not
identified by name. After consideration of all data, our compensation
committee elected to target compensation at the $10 - $49.9 million subgroup as
our targeted revenue run rate at the end of 2008 was expected to be in that
range. The $10 - $49.9 million category was further broken down into six
percentile subgroups representing the average salary within a given
percentile. These companies were also not identified by
name. Since our expected revenue target was at the low range of the
subgroup, the compensation targets were defined by comparison to survey
respondents between the 25th and 50th percentile. We obtained
detailed compensation data for executive positions similar to the positions at
our company for this revenue subgroup percentile. The compensation
elements developed by this comparison method included targeted basic salary,
incentive bonus and equity components for the calendar year 2008. We
use the 50th percentile as a general benchmark for salary
levels. However, many factors affect the determination of the salary
level for individual executives, including performance, experience, skill,
responsibilities and competitive market factors. In general, we seek
to provide a fair, reasonable and competitive level of base salary.
Cash
Bonus – While we believe that the provision of short-term cash incentives is
important to aligning the interests of executive officers and stockholders, and
to the rewarding of performance, we also take into account the overall financial
situation of the company. The cash bonuses
for 2008 were all entirely discretionary awards recommended by the compensation
committed based on the committee’s assessment of executive officers’ performance
and accomplishments during the year with input from the Chief Executive Officer
and were not based on pre-determined or specific corporate or individual
performance targets. The primary achievements, as considered by the
Compensation Committee in awarding the discretionary bonuses, were our merger
with Netintact, our increase in revenue between 2006 and 2007,
financing achievements and cost control and employee
retention. The committee has recommended target cash
bonus incentives for 2009 based on the survey conducted in
2008. The chief executive officer will
receive an initial bonus of 50% of his annual base salary after his first six
months of his employment with the Company and is eligible for a discretionary
performance bonus of up to 80% for the remainder of 2009. For 2009,
the other executive officers are each eligible for a total target bonus of up to
80% of base salary.
Equity
Incentive – We utilize stock options as the primary method of equity
participation for our executive officers. Equity awards are made for reward and
recognition of long term contribution to the
shareholders. We determine option grants by reference to
our own capitalization structure, the Radford Surveys and to internally
generated benchmarks that we have established to determine appropriate levels of
stock option grants for our employees. Because of the
long term nature of this incentive, the awards were evaluated over a multiyear
period. The committee determined that all of the officers
had significant recent awards either as hiring incentives or retention awards in
2006 or 2007 except the former CEO. As a result the
committee recommended only the CEO received an equity award in the form of stock
options in 2007.
Benefits
– We provide a competitive range of health and other benefit programs to our
executive officers. These are provided on the same basis
to executive officers and all employees. These include
health and dental insurance, life and disability insurance, and a 401(k)
plan.
Relocation
– When necessary and appropriate, upon the hire of new executives, we may pay
additional amounts in reimbursement of relocation costs and/or as additional
compensation to assist with the high cost of housing in the San Francisco Bay
Area.
Severance
and Change of Control – Under provisions of our Chief Executive Officer’s
employment agreement, in the event of a termination of employment for reasons
other than cause, he is entitled to receive salary payments and continuation of
certain healthcare benefits for six months together with his initial bonus, if
not yet paid, all bonuses awarded during the prior calendar year, if not yet
paid, and a pro-rated bonus for the calendar year in which his employment is
terminated. In the event of an actual or constructive
termination of employment of our chief executive officer, or certain of our
other executive officers as described below under “Employment, Severance,
Separation and Change of Control Agreements,” other than for cause, within
twelve months after a change of control of the company, the unvested portion of
any equity awards granted will immediately become fully
vested. We entered into these arrangements to attract and
retain the service of our executive officers. Under provisions
of our former chief executive officer’s retirement agreement, he is entitled to
receive salary payments and continuation of certain healthcare benefits for the
18 month period ending April 2009.
Section
162(m) Treatment Regarding Performance-Based Equity Awards
Under
Section 162(m) of the Internal Revenue Code of 1986, as amended, a public
company is generally denied deductions for compensation paid to the chief
executive officer and the next four most highly compensated executive officers
to the extent the compensation for any such individual exceeds one million
dollars for the taxable year. Our executive compensation programs are designed
to preserve the deductibility of compensation payable to executive officers,
although deductibility will be only one among a number of factors considered in
determining appropriate levels or types of compensation.
Components
of Director Compensation
Directors
who are also Procera’s employees received no additional compensation for serving
on the Board during 2008. Procera reimbursed non-employee
directors for all travel and other expenses incurred in connection with
attending meetings of the Board of Directors. In
addition, directors were awarded options to purchase 12,500 shares of common
stock at current market price for each quarter of service
provided. The 2008 option awards were based on an option
methodology established in 2004.
As a
result of the data from the Radford Surveys & Consulting, the Compensation
Committee developed a more comprehensive methodology of compensating
non-employee directors for 2009. The 2009 compensation
plan includes elements which recognize increased responsibilities for committee
participation and general board meeting demands and combine elements of
compensation for meeting attendance, committee participation as well as equity
incentives.
Summary
Compensation Table
The
following table shows for the fiscal years ended December 31, 2008, 2007 and
2006, compensation awarded to or paid to, or earned by, the Company’s Chief
Executive Officer, Chief Financial Officer and its three other most highly
compensated executive officers at December 31, 2008 and one additional
individual that served as an executive officer during the fiscal year ended
December 31, 2008 but was no longer serving at December 31, 2008 (the “
Named Executive
Officers
”).
Summary
Compensation Table for Fiscal 2008
Name
and Principal Position
|
|
Year
|
|
Salary($)
|
|
|
Bonus($)
|
|
|
Stock
Awards
(1)
($)
|
|
|
Option
Awards
(1)
($)
|
|
|
All
Other Compensation ($)
|
|
|
Total
($)
|
|
(a)
|
|
(b)
|
|
(c)
|
|
|
(d)
|
|
|
(e)
|
|
|
(f)
|
|
|
(i)
|
|
|
(j)
|
|
James
F. Brear,
|
|
2008
|
|
$
|
217,273
|
|
|
$
|
125,000
|
|
|
|
--
|
|
|
$
|
445,023
|
|
|
|
--
|
|
|
$
|
787,296
|
|
President
and Chief Executive Officer
(2)
|
|
2007
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
|
|
2006
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
Thomas
Williams
(3)
,
|
|
2008
|
|
$
|
202,917
|
|
|
|
--
|
|
|
|
--
|
|
|
$
|
270,609
|
|
|
$
|
48,613
|
(4)
|
|
$
|
473,526
|
|
Former
Interim Chief Executive Officer and Former Chief Financial
Officer
|
|
2007
|
|
|
181,458
|
|
|
$
|
25,000
|
|
|
|
--
|
|
|
|
177,120
|
|
|
|
--
|
|
|
|
383,578
|
|
|
|
2006
|
|
|
126,154
|
(5)
|
|
|
--
|
|
|
|
--
|
|
|
|
95,407
|
|
|
|
--
|
|
|
|
221,561
|
|
David
Stepner,
|
|
2008
|
|
$
|
120,914
|
(6)
|
|
|
--
|
|
|
|
--
|
|
|
$
|
152,956
|
|
|
|
--
|
|
|
$
|
273,870
|
|
Retired
Chief Operating Officer
|
|
2007
|
|
|
98,333
|
(7)
|
|
|
--
|
|
|
$
|
304,893
|
|
|
|
96,223
|
|
|
|
--
|
|
|
|
499,449
|
|
|
|
2006
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
Paul
Eovino,
|
|
2008
|
|
$
|
150,000
|
|
|
$
|
10,000
|
|
|
|
--
|
|
|
$
|
162,533
|
|
|
|
--
|
|
|
$
|
322,533
|
|
Former
Vice President of Finance and Former Principal Accounting
Officer
|
|
2007
|
|
|
138,588
|
|
|
|
15,000
|
|
|
|
--
|
|
|
|
162,089
|
|
|
|
--
|
|
|
|
315,677
|
|
|
|
2006
|
|
|
15,000
|
(8)
|
|
|
--
|
|
|
|
--
|
|
|
|
27,533
|
|
|
|
--
|
|
|
|
42,533
|
|
(1)
The amounts in
this column reflect the dollar amount recognized for financial statement
reporting purposes for the fiscal years ended December 31, 2008, 2007 and 2006,
in accordance with Statement of Financial Accounting Standards No. 123R (SFAS
123R). Pursuant to SEC rules, the amounts shown exclude the impact of
estimated forfeitures related to service-based vesting
conditions. These amounts reflect the company’s accounting expense
for these awards, and do not correspond to the actual value that will be
recognized by the named executives.
(2)
Because Mr.
Brear was not a named executive officer in 2006 or 2007, SEC rules do not
require his compensation for those years to be reported. Mr. Brear’s
salary is shown for the partial year February 6, 2008 through December 31,
2008.
(3)
Retired December 31, 2008.
(4) Mr.
Williams received a one year extension on the term of a warrant in March
2008.
(5) For
the partial year March 20, 2006 through December 31, 2006.
(6) For
the partial year January 1, 2008 through October 1, 2008.
(7) For
the partial year May 7, 2007 through December 31, 2007.
(8) For
the partial year October 1, 2006 through December 31, 2006 as a part time
employee.
Grants
of Plan-Based Awards
The
following table shows for the fiscal year ended December 31, 2008, certain
information regarding grants of plan-based awards to the Named Executive
Officers:
Grants
of Plan-Based Awards in Fiscal 2008
Name
|
|
Grant
Date
|
|
All
Other Stock Awards: Number of Shares of Stock or Units (#)
|
|
|
All
Other Option Awards: Number of Securities Underlying Options
(#)
|
|
|
Exercise
or Base Price of Option Awards ($/Sh)
|
|
|
Grant
Date Fair Value of Stock and Option Awards
(1)
($)
|
|
(a)
|
|
(b)
|
|
(i)
|
|
|
(j)
|
|
|
(k)
|
|
|
(l)
|
|
James
F. Brear
|
|
02/12/08
|
|
|
2,250,000
|
|
|
|
--
|
|
|
$
|
1.41
|
|
|
$
|
2,214,450
|
|
(1)
Represents the full grant date fair value of each individual equity award (on a
grant-by-grant basis) as computed under SFAS 123R.
Discussion
of Summary Compensation and Grants of Plan-Based Awards Table
Our
executive compensation policies and practices, pursuant to which the
compensation set forth in the Summary Compensation Table and the Grants of
Plan-Based Awards table was paid or awarded, are described above under
“Compensation Discussion and Analysis.” A summary of certain material terms of
our compensation plans and arrangements is set forth below.
Employment,
Severance, Separation and Change of Control Agreements
We have
entered into the following employment arrangements with each of the Named
Executive Officers reflected in the Summary Compensation Table.
James F.
Brear
On February 11, 2008, the Company entered
into an executive employment agreement with James F. Brear, as Chief Executive
Officer, President and a member of the Company’s Board of
Directors. Pursuant to this agreement, Mr. Brear will
receive an annual base salary of $240,000, subject to annual review and
increases at the discretion of the Board of
Directors. Mr. Brear will receive an initial bonus of 50%
of his annual base salary after his first six months of employment with the
Company provided he remains an active employee through that
time. In addition, Mr. Brear is eligible for an annual
discretionary performance bonus equal to 80% of his annual base salary as
determined by the Board of Directors; provided, however, that for calendar year
2008, the annual bonus shall be prorated over the time between the end of the
first six months of Mr. Brear’s employment and the end of calendar year
2008.
The
Company also granted Mr. Brear an option to purchase 2,250,000 shares of the
Company’s common stock, which will vest over four years, with 25% of the shares
vesting on the one year anniversary of Mr. Brear’s first day of employment with
the Company and the remaining shares vesting in 36 equal monthly installments
thereafter.
Under the
Employment Agreement, either the Company or Mr. Brear may terminate his
employment at any time. If the Company terminates Mr.
Brear’s employment without cause or Mr. Brear terminates his employment with
good reason, the Company will be obligated to pay Mr. Brear severance equal to
six months at his then current base salary, the maintenance of health insurance
coverage for Mr. Brear and his eligible dependents for a period of six months,
the full amount of his Initial Bonus if it has not previously been paid, the
full amount of any Annual Bonus awarded for the completed calendar preceding
termination if not already paid, and a pro-rated Annual Bonus for the calendar
year in which his employment terminates. Finally, if the
Company terminates Mr. Brear’s employment without cause or Mr. Brear terminates
his employment with good reason within twelve months after a change in control,
the unvested portion of any equity awards granted to Mr. Brear prior to his
termination will immediately become fully vested.
Thomas H.
Williams
On December 31, 2008, Mr. Williams retired as
Procera’s Chief Financial Officer, Secretary and Treasurer. Procera
entered into a separation agreement pursuant to which Mr. Williams may consult
for the Company after December 31, 2008 at an hourly rate of $150; 50 percent of
Mr. Williams’ remaining unvested stock options on December 31, 2008 were vested
immediately and his vested options may be exercised through December 31,
2010.
David
Stepner
On October 1, 2008, Dr. Stepner resigned as Procera’s
Chief Operating Officer. In connection with Dr. Stepner’s separation,
on September 12, 2008 Procera entered into a separation and consulting agreement
with Dr. Stepner. Under the agreement, Dr. Stepner will provide
consulting services to Procera on an as-needed basis, up to a maximum of 50
hours per month at a rate of $100 per hour, through until December 31,
2008. In addition, pursuant to the separation and consulting
agreement and the May 21, 2007 employment agreement between Procera and Dr.
Stepner, the remaining 150,000 unvested shares of restricted stock previously
awarded to Dr. Stepner will continue to vest during the consulting period, with
such shares vesting in full on October 21, 2008.
Paul Eovino
On April 8, 2009, Mr. Eovino resigned from the positions of interim Chief
Financial Officer and Principal Accounting Officer of Procera, and continued as
an employee of Procera until April 20, 2009. Procera entered into a
separation agreement with Mr. Eovino pursuant to which Procera paid Mr. Eovino
severance in the amount of $719.70 and offered to extend, upon delivery of a
written request prior to June 15, 2009, the exercise period for Mr. Eovino’s
options to purchase common stock that were fully vested as of April 20,
2009. Mr. Eovino delivered a written request to Procera’s Chief
Executive Officer for such extension of the exercise period for his vested
options.
Potential Payouts upon Termination or
Change of Control
Other
than the provisions of the executive severance benefits to which our Named
Executive Officers would be entitled to at the end of our fiscal year ending
December 31, 2008 as set forth above, the Company has no liabilities under
termination or change of control conditions. We do not have a formal
policy to determine executive severance benefits. Each executive
severance arrangement is negotiated on an individual basis.
Under the
terms of option agreements with our named executive officers, the value of
equity award acceleration, in the event of a change of control of Procera, as of
December 31, 2008, is valued at $489,574 for Mr. Brear, $162,533 for Paul Eovino
and $270,609 for Thomas H. Williams. The amounts computed by
person assume the termination was effective as of December 31, 2008 and that all
eligibility requirements under the equity award agreement were
met. The values represent the portion of the stock option that is
assumed to be accelerated, calculated using a Black-Scholes option valuation
method without taking into effect estimated forfeiture.
Outstanding
Equity Awards at Fiscal year –end.
The
following table shows for the fiscal year ended December 31, 2008, certain
information regarding outstanding equity awards at fiscal year end for the Named
Executive Officers
.
Outstanding
Equity Awards At December 31, 2008
|
|
|
|
|
Option
Awards
|
|
Stock
Awards
|
|
Name
|
|
|
|
|
Number
of Securities Underlying Unexercised Options (#)
Exercisable
|
|
|
Number
of Securities Underlying Unexercised Options (#)
Unexercisable
|
|
|
Option
Exercise Price ($)
|
|
Option
Expiration Date
|
|
Number
of Shares or Units of Stock That Have Not Vested (#)
|
|
|
Market
Value of Shares or Units of Stock That Have Not Vested ($)
|
|
James
F. Brear
|
|
(1)
|
|
|
|
--
|
|
|
|
2,250,000
|
|
|
|
1.41
|
|
02/11/2018
|
|
|
--
|
|
|
|
--
|
|
Thomas
Williams
|
|
(2)
|
|
|
|
10,000
|
|
|
|
--
|
|
|
|
1.86
|
|
04/12/2009
|
|
|
--
|
|
|
|
--
|
|
|
|
(3)
|
|
|
|
75,000
|
|
|
|
--
|
|
|
|
1.42
|
|
06/13/2009
|
|
|
--
|
|
|
|
--
|
|
|
|
(4)
|
|
|
|
16,000
|
|
|
|
--
|
|
|
|
1.67
|
|
04/19/2015
|
|
|
--
|
|
|
|
--
|
|
|
|
(5)
|
|
|
|
16,000
|
|
|
|
--
|
|
|
|
3.35
|
|
03/08/2014
|
|
|
--
|
|
|
|
--
|
|
|
|
(6)
|
|
|
|
379,
687
|
|
|
|
--
|
|
|
|
0.69
|
|
12/31/2010
|
|
|
--
|
|
|
|
--
|
|
|
|
(7)
|
|
|
|
666,666
|
|
|
|
--
|
|
|
|
0.52
|
|
12/31/2010
|
|
|
--
|
|
|
|
--
|
|
Paul
Eovino
|
|
(8)
|
|
|
|
135,417
|
|
|
|
114,583
|
|
|
|
1.52
|
|
10/29/2016
|
|
|
--
|
|
|
|
--
|
|
|
|
(9)
|
|
|
|
109,375
|
|
|
|
140,625
|
|
|
|
1.52
|
|
10/29/2016
|
|
|
--
|
|
|
|
--
|
|
David
Stepner
|
|
|
|
|
|
--
|
|
|
|
--
|
|
|
|
--
|
|
--
|
|
|
--
|
|
|
|
--
|
|
(1) The
option vests as to ¼ of the shares on the first anniversary of the vesting
commencement date of February 12, 2008 and 1/48 per month thereafter until fully
vested.
(2) The
warrant vests 100% on the date of grant of April 13, 2005. A one year
extension of the expiration date was approved by the board of directors on March
19, 2008.
(3) The
warrant vests as to 1/2 of the shares on October 14, 2005 and 1/2 on February
28, 2006. A one year extension of the expiration date was approved by
the Board of Directors on March 19, 2008.
(4) The
option vests as to 1/4 of the shares on March 31, 2005 and 1/4 quarterly
thereafter until fully vested.
(5) The
option vests as to 1/4 of the shares on March 31, 2004 and 1/4 quarterly
thereafter until fully vested.
(6) The
option vests as to 1/4 of the shares on the first anniversary of the date of
hire of March 20, 2006 and 1/48 per month thereafter until fully
vested. On November 11, 2008 the Board of Directors granted the
acceleration of 1/2 of the unvested options as of December 31, 2008 and
cancelled the remaining unvested options.
(7) The
option vests as to 1/3 of the shares on the date of grant of August 11. 2006 and
1/36th per month thereafter until fully vested. On November 11, 2008
the Board of Directors granted the acceleration of 1/2 of the unvested options
as of December 31, 2008 and cancelled the remaining unvested
options.
(8) The
option vests as to 1/4 of the shares on the first anniversary of the date of
hire of October 30, 2006 and 1/48 per month thereafter until fully
vested.
(9) The
option vests as to 1/4 of the shares on the first anniversary of the date of
full time employment of March 1, 2007 and 1/48 per month thereafter until fully
vested.
2008
Option Exercises
There
were no options exercised by any named executive officer during the fiscal year
ended December 31, 2008. We do not have any stock appreciation rights plans in
effect and we have no long-term incentive plans, as those terms are defined in
SEC regulations. During the fiscal year ended December 31, 2008, we did not
adjust or amend the exercise price of stock options awarded to the named
executive officers. We have no defined benefit or actuarial plans covering any
named executive officer.
As a
result of the data from the Radford Surveys & Consulting, the Compensation
Committee developed a more comprehensive methodology of compensating
non-employee directors for 2008. The 2008 compensation plan includes
elements which recognize increased responsibilities for committee participation
and general board meeting demands and combine elements of compensation for
meeting attendance, committee participation as well as equity
incentives.
Directors
who are also Procera’s employees receive no additional compensation for serving
on the Board during 2008. Beginning in fiscal year 2008, each of our
non-employee directors receives an annual retainer of $10,000. The
chair of each of the Audit, Compensation and Nominating/Governance Committees
receive an additional annual retainer of $5,000, $2,500 and $2,500,
respectively. In addition, the Compensation Committee approved an
additional annual retainer of $10,000 for our Chairman of the
Board. All annual cash compensation amounts are earned on a quarterly
basis. Each director also receives $1,000 for attending each Board of
Directors or Committee meeting in person or $500 for attending
telephonically. Each non-employee director may make the annual
election to forego the cash compensation payable to non-employee directors and
to instead receive an additional option grant, equivalent in value to such cash
compensation. Each of our non-employee directors also receives a grant of option
to purchase 3,750 shares of our common stock each quarter at the fair market
value on the first day of each quarter.
Procera
also reimbursed non-employee directors for all travel and other expenses
incurred in connection with attending meetings of the Board of
Directors.
The
compensation plan for 2009 has no changes from the 2008 plan. In
2009, all current non-employee directors have elected to forego all cash
compensation amounts in-lieu of equivalent option grants.
The
following table shows for the fiscal year ended December 31, 2008 certain
information with respect to the compensation of all non-employee directors of
the Company:
Director
Compensation for Fiscal 2008
Name
|
|
Fees
Earned or Paid in Cash ($)
|
|
|
Option Awards ($)
(1)
(2)
|
|
|
All
Other Compensation ($)
|
|
|
Total
($)
|
|
Scott
McClendon
|
|
|
39,500
|
|
|
|
28,392
|
|
|
|
--
|
|
|
|
67,892
|
|
Todd
Abbott
|
|
|
--
|
|
|
|
22,476
|
|
|
|
--
|
|
|
|
22,476
|
|
Staffan
Hillberg
(3)
|
|
|
--
|
|
|
|
45,142
|
|
|
|
9,000
|
|
|
|
54,142
|
|
Mary
Losty
|
|
|
25,500
|
|
|
|
23,767
|
|
|
|
--
|
|
|
|
49,267
|
|
Thomas
Saponas
|
|
|
--
|
|
|
|
52,766
|
|
|
|
--
|
|
|
|
52,766
|
|
(1) The
amounts in this column reflect the dollar amount recognized for financial
statement reporting purposes for the fiscal year ended December 31, 2008, in
accordance with SFAS 123R. This expense is determined by computing
the fair value of each option on the grant date in accordance with SFAS 123R and
recognizing that amount as expense ratably over the option vesting term and
accordingly may include a portion of 2007 options granted in previous years that
vest in 2008. Assumptions used in the calculation of these amounts
are included herein in the notes to our audited financial statements for the
fiscal year ended December 31, 2008.
(2) The
following options were outstanding as of December 31, 2008; Mr. Saponas 162,217
shares; Mr. McClendon 134,000 shares; Ms. Losty 65,000 shares; Mr. Hillberg
88,720 shares; Mr. Abbott 16,481 shares.
(3) As
the Chairman of the Board of the company’s wholly owned Swedish subsidiary, Mr.
Hillberg receives $9,000 in annual compensation.
Stock
Option Plans
In August
2003, October 2004 and October 2007, our Board of Directors and stockholders
adopted the 2003 Stock Option Plan (the “
2003
Plan
”), 2004 Stock Option Plan, as amended (the “
2004
Plan
”), and 2007 Equity Incentive Plan (the “
2007
Plan
,” and with the 2003 Plan and the 2004 Plan, the “
Plans
”),
respectively. The number of shares available for awards under the 2003 Plan, the
2004 Plan and the 2007 Plan is 2,500,000, 5,000,000 and 5,000,000,
respectively. Subject to stockholder approval of the amendment of the
2007 Plan, the number of shares available for awards under the 2007 Plan, as
amended, will be 7,000,000. The following description of our Plans is
a summary and qualified in our entirety by the text of the Plans. The purpose of
the Plans is to enhance our profitability and stockholder value by enabling us
to offer stock based incentives to employees, directors and consultants. The
Plans authorize the grant of options and other equity incentives to purchase
shares of our common stock to employees, directors and consultants. Under the
Plans, we may grant incentive stock options within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended, and non-qualified stock options.
Incentive stock options may only be granted to our employees.
The
number of shares available for awards under the Plans is 12,500,000. Subject to
stockholder approval of the amendment of the 2007 Plan, the number of shares
available for awards under the 2007 Plan, as amended, will be 14,389,520. As of
December 31, 2008, 3,558,447 shares were available for future grants. The
options under the Plans vest over varying lengths of time pursuant to various
option agreements that we have entered into with the grantees of such options.
The Plans are administered by the Board of Directors. Subject to the provisions
of the Plans, the Board of Directors has authority to determine the employees,
directors and consultants who are to be awarded options and the terms of such
awards, including the number of shares subject to such option, the fair market
value of the common stock subject to options, the exercise price per share and
other terms.
Incentive
stock options must have an exercise price equal to at least 100% of the fair
market value of a share on the date of the award and generally cannot have a
duration of more than 10 years. If the grant is to a stockholder holding more
than 10% of our voting stock, the exercise price must be at least 110% of the
fair market value on the date of grant. Terms and conditions of awards are set
forth in written agreements between us and the respective option holders. Awards
under the Plans may not be made after the tenth anniversary of the date of our
adoption but awards granted before that date may extend beyond that
date.
Optionees
have no rights as stockholders with respect to shares subject to option prior to
the issuance of shares pursuant to the exercise thereof. An option becomes
exercisable at such time and for such amounts as determined by the Board of
Directors. An optionee may exercise a part of the option from the date that part
first becomes exercisable until the option expires. The purchase price for
shares to be issued to an employee upon his exercise of an option is determined
by the Board of Directors on the date the option is granted. The Plans provide
for adjustment as to the number and kinds of shares covered by the outstanding
options and the option price therefore to give effect to any stock dividend,
stock split, stock combination or other reorganization.
EQUITY
COMPENSATION PLAN INFORMATION
At
December 31, 2008, we had three equity incentive plans under which equity
securities are or have been authorized for issuance to our employees,
consultants or directors: the 2003 Stock Option Plan, the Amended 2004 Stock
Option Plan and the 2007 Equity Incentive Plan. These plans have been
approved by our stockholders. From time to time we issue
special stock options to employees, directors and service providers, inducement
grants and warrants to purchase common shares, which have not been approved by
stockholders. The following table sets forth information as of December 31,
2008:
|
|
Number
of Securities to be Issued Upon Exercise of Outstanding Options, Warrants
and Rights (a)
|
|
|
Weighted
Average Exercise Price of Outstanding Options, Warrants and Rights
(b)
|
|
|
Number
of Securities Remaining Available for Future Issuance Under Equity
Compensation Plans (Excluding Securities Reflected in Column (a))
(c)
|
|
Equity
compensation plans approved by stockholders
|
|
|
7,988,274
|
(1)
|
|
$
|
0.91
|
|
|
|
3,558,448
|
(2)
|
Equity
compensation plans not approved by stockholders
(3)
(4)
|
|
|
5,589,366
|
|
|
$
|
1.13
|
|
|
|
--
|
|
Total:
|
|
|
13,577,640
|
|
|
$
|
1.00
|
|
|
|
3,558,448
|
|
_______________
(1)
|
Includes
unexercised options issued pursuant to our 2007 Equity Incentive
Plan.
|
(2)
|
Includes
unissued options available pursuant to our 2007 Equity Incentive
Plan.
|
(3)
|
Includes
(i) 151,268 shares subject to a warrant granted on December 20, 2002 to a
financial advisor for consulting services rendered with an exercise price
of $0.01 and an expiration date of June 19,
2009.
|
(ii)
|
100,000
shares subject to a warrant granted on February 23, 2005 to an individual
for sales services rendered with an exercise price of $1.78 and an
expiration date of February 23,
2010.
|
(iii)
|
10,000
shares subject to a warrant granted on April 13, 2005 to an individual for
financing services rendered with an exercise price of $1.86 and an
expiration date of April 13, 2009.
|
(iv)
|
75,000
shares subject to a warrant granted on June 14, 2005 to an individual for
financing services rendered with an exercise price of $1.42 and an
expiration date of June 14, 2009.
|
(v)
|
1,038,875
shares subject to a warrant granted on February 28, 2006 to a group of
placement agents for fees associated with our February 2006 private
placement financing with an exercise price of $0.40 and an expiration date
of November 30, 2011.
|
(vi)
|
360,000
shares subject to a warrant granted on August 2, 2006 to an individual for
investor relations services rendered with an exercise price of $1.40 and
an expiration date of August 2,
2009.
|
(vii)
|
1,380,000
shares subject to a warrant granted on November 30, 2006 to a group of
placement agents for fees associated with our November 2006 private
placement financing with an exercise price of $1.50 and an expiration date
of November 30, 2011.
|
(viii)
|
15,000
shares subject to a warrant granted on January 24, 2007 to an individual
for recruitment services rendered with an exercise price of $2.14 and an
expiration date of January 23,
2010.
|
(ix)
|
100,000
shares subject to a warrant granted on January 24, 2007 to an individual
for sales services rendered with an exercise price of $2.14 and an
expiration date of January 23,
2010.
|
(x)
|
199,988
shares subject to a warrant granted on July 16, 2007 to a group of
placement agents for fees associated with our July 2007 private placement
financing with an exercise price of $2.00 and an expiration date of July
17, 2012.
|
(xi)
|
70,000
shares subject to a warrant granted on July 31, 2007 to an individual for
institutional investor relations services rendered with an exercise price
of $1.12 and an expiration date of July 31,
2010.
|
(xii)
|
50,000
shares subject to a warrant granted on May 13, 2008 to an individual for
marketing services rendered with an exercise price of $0.83 and an
expiration date of June 30,
2009.
|
(xiii)
|
40,000
shares subject to a warrant granted on May 13, 2008 to an individual for
marketing services rendered with an exercise price of $2.00 and an
expiration date of June 30, 2009.
|
(xiv)
|
100,000
shares subject to a warrant granted on June 30, 2008 to an individual for
development services rendered with an exercise price of $0.49 and an
expiration date of September 17,
2009.
|
(xv)
|
65,000
shares subject to a warrant granted on June 30, 2008 to an individual for
development services rendered with an exercise price of $0.49 and an
expiration date of August 15, 2009.
|
(xvi)
|
17,759
shares subject to a warrant granted on September 16, 2008 to a group of
placement agents for fees associated with our August 2008 private
placement financing with an exercise price of $1.75 and an expiration date
of September 15, 2011.
|
(4)
|
Includes
(i) 72,727 common shares granted on January 24, 2007 for financing
services rendered with a fair market value of $1.65 per
share.
|
(ii)
|
165,000
common shares granted on February 8, 2005 for investor relations services
to be provided with a fair market value of $0.51 per
share.
|
(iii)
|
825,000
common shares granted on November 30, 2005 for investor relations services
to be provided with a fair market value of $0.70 per
share
|
(iv)
|
247,500
common shares granted on May 2, 2007 for investor relations services to be
provided with a fair market value of $2.47 per
share.
|
(v)
|
11,000
common shares granted on October 11, 2004 for sales services rendered with
a fair market value of $0.92.
|
(vi)
|
9,741
common shares granted on December 11, 2007 for executive recruiting
services rendered with a fair market value of $3.08 per
share.
|
(vii)
|
17,850
common shares granted on March 12, 2008 for executive recruiting services
rendered with a fair market value of $1.40 per
share.
|
(viii)
|
490,000
common shares granted on June 27, 2008 for investor relations services to
be provided with a fair market value of $1.40 per
share.
|
(ix)
|
17,241
common shares granted on March 21, 2008 for financing services rendered
with a fair market value of $1.45 per
share.
|
Transactions
With Related Persons
RELATED-PERSON
TRANSACTIONS POLICY AND PROCEDURES
It is our
practice and policy to comply with all applicable laws, rules and regulations
regarding related-person transactions, including the Sarbanes-Oxley Act of 2002.
A related-person is any executive officer, director, or more than 5% stockholder
of the Company, including any of their immediate family members, and any entity
owned or controlled by such persons. Under its charter, our Audit Committee is
charged with reviewing and approving all related-person transactions as required
by NYSE Amex rules. In considering related-person transactions, the Audit
Committee takes into account the relevant available facts and circumstances. In
the event a director has an interest in the proposed transaction, the director
must recuse himself or herself form the deliberations and approval.
CERTAIN
RELATED-PERSON TRANSACTIONS
Since
January 1, 2008, there has not been nor are there currently proposed any
transactions or series of similar transactions to which we were or are to be a
party in which the amount involved exceeds $120,000 and in which any director,
executive officer, holder of more than 5% of our common stock or any member of
the immediate family of any of the foregoing persons had or will have a direct
or indirect material interest, other than the following
transactions:
Employment
Agreements
Information
on our executives employment agreements is located under the caption,
“Employment, Severance, Separation and Change of Control Agreements”
above.
Director
and Officer Indemnification Agreements
In
addition to the indemnification provisions contained in our restated certificate
of incorporation and bylaws, we generally enter into separate indemnification
agreements with our directors and officers. These agreements require
us, among other things, to indemnify the director or officer against specified
expenses and liabilities, such as attorneys’ fees, judgments, fines and
settlements, paid by the individual in connection with any action, suit or
proceeding arising out of the individual’s status or service as our director or
officer, other than liabilities arising from willful misconduct or conduct that
is knowingly fraudulent or deliberately dishonest, and to advance expenses
incurred by the individual in connection with any proceeding against the
individual with respect to which the individual may be entitled to
indemnification by us. We also intend to enter into these agreements
with our future directors and executive officers.
Company
Policy Regarding Related Party Transactions
It is our
policy that the Audit Committee approve or ratify transactions involving
directors, executive officers or principal stockholders or members of their
immediate families or entities controlled by any of them or in which they have a
substantial ownership interest in which the amount involved exceeds $120,000 and
that are otherwise reportable under SEC disclosure rules. Such
transactions include employment of immediate family members of any director or
executive officer. Management advises the Audit Committee on a
regular basis of any such transaction that is proposed to be entered into or
continued and seeks approval. The company has not yet adopted a
written related-persons transaction policy.
HOUSEHOLDING
OF PROXY MATERIALS
The SEC
has adopted rules that permit companies and intermediaries (e.g., brokers) to
satisfy the delivery requirements for proxy statements and annual reports with
respect to two or more stockholders sharing the same address by delivering a
single proxy statement addressed to those stockholders. This process,
which is commonly referred to as “householding,” potentially means extra
convenience for stockholders and cost savings for companies.
This
year, a number of brokers with account holders who are Procera Networks, inc.
stockholders will be “householding” our proxy materials. A single
proxy statement will be delivered to multiple stockholders sharing an address
unless contrary instructions have been received from the affected
stockholders. Once you have received notice from your broker that
they will be “householding” communications to your address, “householding” will
continue until you are notified otherwise or until you revoke your
consent. If, at any time, you no longer wish to participate in
“householding” and would prefer to receive a separate proxy statement and annual
report, please notify your broker. Direct your written request to
Procera Networks, Inc., Secretary at 100 Cooper Court Los Gatos, California
95032, at (408) 890-7036. Stockholders who currently receive multiple
copies of the proxy statement at their addresses and would like to request
“householding” of their communications should contact their
brokers.
Other
Matters
A copy of
the Company’s Annual Report to the Securities and Exchange Commission on Form
10-K for the fiscal year ended December 31, 2008 is available without charge
upon written request to: Secretary, 100 Cooper Court Los Gatos, California
95032.
The Board
of Directors knows of no other matters that will be presented for consideration
at the Annual Meeting. If any other matters are properly brought
before the meeting, it is the intention of the persons named in the accompanying
proxy to vote on such matters in accordance with their best
judgment.
|
By
Order of the Board of Directors
|
|
|
|
|
|
/s/ Charles Constanti
|
|
|
|
|
|
|
|
|
Charles
Constanti
|
|
|
Chief
Financial Officer and Secretary
|
|
November
20, 2009
Procera
Networks, Inc.
2007
Equity Incentive Plan
Approved
by the Board: October 17, 2007
Approved
by the Stockholders: January 30, 2008
Termination
Date: October 16, 2017
Amended:
November 13, 2009
Approved
by the Stockholders: [__________] (the “Amendment Date”)
1.
General.
(a)
Successor and Continuation of Prior
Plans.
The Plan is intended as the successor to and
continuation of the Procera Networks, Inc. 2003 Stock Option Plan and 2004 Stock
Option Plan, as amended (the “
Prior
Plans
”). Following the Effective Date, no additional stock
awards shall be granted under the Prior Plans. Any shares remaining
available for future awards under the Prior Plans as of the Effective Date (the
“
Prior Plan
Available Reserve
”) shall become available for issuance pursuant to
Awards granted hereunder. From and after the Effective Date, any
shares subject to outstanding stock awards granted under the Prior Plans that
expire or terminate for any reason prior to exercise or settlement (the “
Returning
Shares
”) shall become available for issuance pursuant to Awards granted
hereunder. From and after the Effective Date, all outstanding stock
awards granted under the Prior Plans shall remain subject to the terms of the
Prior Plans with respect to which they were originally granted and shares
issuable under such awards shall be issued from such Prior Plans. All Awards
granted subsequent to the effective date of this Plan shall be subject to the
terms of this Plan.
(b)
Eligible Award
Recipients.
The persons eligible to receive Awards are
Employees, Directors and Consultants.
(c)
Available
Awards.
The Plan provides for the grant of the following
Awards: (i) Incentive Stock Options, (ii) Nonstatutory Stock Options, (iii)
Restricted Stock Awards, (iv) Restricted Stock Unit Awards, (v) Stock
Appreciation Rights, (vi) Performance Stock Awards, (vii) Performance Cash
Awards and (viii) Other Stock Awards.
(d)
Purpose.
The
Company, by means of the Plan, seeks to secure and retain the services of the
group of persons eligible to receive Awards as set forth in Section 1(b), to
provide incentives for such persons to exert maximum efforts for the success of
the Company and any Affiliate, and to provide a means by which such eligible
recipients may be given an opportunity to benefit from increases in value of the
Common Stock through the granting of Stock Awards.
2.
Administration.
(a)
Administration by
Board.
The Board shall administer the Plan unless and until
the Board delegates administration of the Plan to a Committee or Committees, as
provided in Section 2(c).
(b)
Powers of
Board.
The Board shall have the power, subject to, and within
the limitations of, the express provisions of the Plan:
(i)
To
determine from time to time (A) which of the persons eligible under the Plan
shall be granted Awards; (B) when and how each Award shall be granted; (C) what
type or combination of types of Awards shall be granted; (D) the provisions of
each Award granted (which need not be identical), including the time or times
when a person shall be permitted to receive cash or Common Stock pursuant to an
Award; (E) the number of shares of Common Stock with respect to which a Stock
Award shall be granted to each such person; and (F) the Fair Market Value
applicable to a Stock Award.
(ii)
To
construe and interpret the Plan and Awards granted under it, and to establish,
amend and revoke rules and regulations for its administration. The
Board, in the exercise of this power, may correct any defect, omission or
inconsistency in the Plan or in any Stock Award Agreement or in the written
terms of a Performance Cash Award, in a manner and to the extent it shall deem
necessary or expedient to make the Plan or Award fully effective.
(iii)
To
settle all controversies regarding the Plan and Awards granted under
it.
(iv)
To
accelerate the time at which a Stock Award may first be exercised or the time
during which an Award or any part thereof will vest in accordance with the Plan,
notwithstanding the provisions in the Award stating the time at which it may
first be exercised or the time during which it will vest.
(v)
To
effect, at any time and from time to time, with the consent of any adversely
affected Participant, (1) the reduction of the exercise price of any outstanding
Option or the strike price of any outstanding Stock Appreciation Right; (2) the
cancellation of any outstanding Option or Stock Appreciation Right and the grant
in substitution therefor of (a) a new Option or Stock Appreciation Right under
the Plan or another equity plan of the Company covering the same or different
number of shares of Common Stock, (b) a Restricted Stock Award, (c) a Restricted
Stock Unit Award, (d) an Other Stock Award, (e) cash, and/or (f) other valuable
consideration as determined by the Board in its sole discretion; or (3) any
other action that is treated as a repricing under generally accepted accounting
principles.
(vi)
To
suspend or terminate the Plan at any time. Suspension or termination
of the Plan shall not impair rights and obligations under any Award granted
while the Plan is in effect except with the written consent of the affected
Participant.
(vii)
To amend
the Plan in any respect the Board deems necessary or advisable, including,
without limitation, relating to Incentive Stock Options and certain nonqualified
deferred compensation under Section 409A of the Code and/or to bring the Plan or
Awards granted under the Plan into compliance therewith, subject to the
limitations, if any, of applicable law. However, except as provided in Section
9(a) relating to Capitalization Adjustments, stockholder approval shall be
required for any amendment of the Plan that either (i) materially increases the
number of shares of Common Stock available for issuance under the Plan, (ii)
materially expands the class of individuals eligible to receive Awards under the
Plan, (iii) materially increases the benefits accruing to Participants under the
Plan or materially reduces the price at which shares of Common Stock may be
issued or purchased under the Plan, (iv) materially extends the term of the
Plan, or (v) expands the types of Awards available for issuance under the Plan,
but in each of (i) through (v) only to the extent required by applicable law or
listing requirements. Except as provided above, rights under any Award granted
before amendment of the Plan shall not be impaired by any amendment of the Plan
unless (i) the Company requests the consent of the affected Participant, and
(ii) such Participant consents in writing.
(viii)
To submit any
amendment to the Plan for stockholder approval, including, but not limited to,
material amendments to the Plan intended to satisfy the requirements of (i)
Section 162(m) of the Code and the regulations thereunder regarding the
exclusion of performance-based compensation from the limit on corporate
deductibility of compensation paid to Covered Employees, (ii) Section 422 of the
Code regarding Incentive Stock Options, or (iii) Rule 16b-3.
(ix)
To
approve forms of Award Agreements for use under the Plan and to amend the terms
of any one or more Awards, including, but not limited to, amendments to provide
terms more favorable than previously provided in the Award Agreement, subject to
any specified limits in the Plan that are not subject to Board discretion;
provided however,
that, the
rights under any Award shall not be impaired by any such amendment unless (i)
the Company requests the consent of the affected Participant, and (ii) such
Participant consents in writing. Notwithstanding the foregoing,
subject to the limitations of applicable law, if any, and without the affected
Participant’s consent, the Board may amend the terms of any one or more Awards,
or correct any clerical errors, if necessary to maintain the qualified status of
the Stock Award as an Incentive Stock Option or to bring the Award into
compliance with Section 409A of the Code and the related guidance
thereunder.
(x)
Generally, to exercise such powers and to perform such acts as
the Board deems necessary or expedient to promote the best interests of the
Company and that are not in conflict with the provisions of the Plan or
Awards.
(xi)
To
adopt such procedures and sub-plans as are necessary or appropriate to permit
participation in the Plan by Employees, Directors or Consultants who are foreign
nationals or employed outside the United States.
(c)
Delegation to Committee.
(i)
General.
The Board
may delegate some or all of the administration of the Plan to a Committee or
Committees. If administration is delegated to a Committee, the
Committee shall have, in connection with the administration of the Plan, the
powers theretofore possessed by the Board that have been delegated to the
Committee, including the power to delegate to a subcommittee of the Committee
any of the administrative powers the Committee is authorized to exercise (and
references in the Plan to the Board shall thereafter be to the Committee or
subcommittee), subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the
Board. The Board may retain the authority to concurrently administer
the Plan with the Committee and may, at any time, revest in the Board some or
all of the powers previously delegated.
(ii)
Section 162(m) and Rule 16b-3
Compliance.
In the sole discretion of the Board, the Committee
may consist solely of two or more Outside Directors, in accordance with Section
162(m) of the Code, and/or solely of two or more Non-Employee Directors, in
accordance with Rule 16b-3. In addition, the Board or the Committee,
in its sole discretion, may (A) delegate to a Committee who need not be Outside
Directors the authority to grant Awards to eligible persons who are either (I)
not then Covered Employees and are not expected to be Covered Employees at the
time of recognition of income resulting from such Award, or (II) not persons
with respect to whom the Company wishes to comply with Section 162(m) of the
Code, and/or (B) delegate to a Committee who need not be Non-Employee Directors
the authority to grant Awards to eligible persons who are not then subject to
Section 16 of the Exchange Act.
(d)
Delegation to
Officers.
The Board may delegate to one or more Officers the
authority to do one or both of the following (i) designate Officers and
Employees of the Company or any of its Subsidiaries to be recipients of Options
(and, to the extent permitted by applicable law, other Awards) and the terms
thereof, and (ii) determine the number of shares of Common Stock to be subject
to such Stock Awards granted to such Officers and Employees;
provided, however,
that the
Board resolutions regarding such delegation shall specify the total number of
shares of Common Stock that may be subject to the Stock Awards granted by such
Officers and that such Officer may not grant a Stock Award to himself or
herself. Notwithstanding anything to the contrary in this Section
2(d), the Board may not delegate to an Officer authority to determine the Fair
Market Value of the Common Stock pursuant to Section 13(x)(ii)
below.
(e)
Effect of Board’s Decision.
All determinations, interpretations and constructions made by the Board in good
faith shall not be subject to review by any person and shall be final, binding
and conclusive on all persons.
3.
Shares
Subject to the Plan.
(a)
Share Reserve
. Subject to the
provisions of Section 9(a) relating to Capitalization Adjustments, the aggregate
number of shares of common stock of the Company that may be issued pursuant to
Stock Awards under the Plan shall not exceed 7,000,000 shares of Common Stock,
plus an additional number of shares in an amount not to exceed 7,389,520,
comprised of: (i) that number of shares subject to the Prior Plan Available
Reserve plus (ii) the Returning Shares (as such shares become available from
time to time). Shares may be issued in connection with a merger or
acquisition as permitted by NASD Rule 4350(i)(1)(A)(iii) or, if applicable, NYSE
Listed Company Manual Section 303A.08, or AMEX Company Guide Section 711 and
such issuance shall not reduce the number of shares available for issuance under
the Plan.
(b)
Reversion of Shares to the Share
Reserve
. If any (i) Stock Award shall for any reason expire or
otherwise terminate, in whole or in part, without having been exercised in full,
(ii) shares of Common Stock issued to a Participant pursuant to a Stock Award
are forfeited back to or repurchased by the Company because of the failure to
meet a contingency or condition required for the vesting of such shares, (iii)
Stock Award is settled in cash, or (iv) shares of Common Stock are cancelled in
accordance with the cancellation and regrant provisions of Section 3(b)(v), then
the shares of Common Stock not issued under such Stock Award, or forfeited to or
repurchased by the Company, shall revert to and again become available for
issuance under the Plan. If any shares subject to a Stock Award are
not delivered to a Participant because such shares are withheld for the payment
of taxes or the Stock Award is exercised through a reduction of shares subject
to the Stock Award (i.e., “net exercised”) or an appreciation distribution in
respect of a Stock Appreciation right is paid in shares of Common Stock, the
number of shares subject to the Stock Award that are not delivered to the
Participant shall remain available for subsequent issuance under the
Plan. If the exercise price of any Stock Award is satisfied by
tendering shares of Common Stock held by the Participant (either by actual
delivery or attestation), then the number of shares so tendered shall remain
available for issuance under the Plan.
(c)
Incentive Stock Option
Limit.
Notwithstanding anything to the contrary in this
Section 3(c), subject to the provisions of Section 9(a) relating to
Capitalization Adjustments the aggregate maximum number of shares of Common
Stock that may be issued pursuant to the exercise of Incentive Stock Options
shall be 14,389,520 shares of Common Stock.
(d)
Source of
Shares.
The stock issuable under the Plan shall be shares of
authorized but unissued or reacquired Common Stock, including shares repurchased
by the Company on the open market.
4.
Eligibility.
(a)
Eligibility for Specific Stock
Awards
. Incentive Stock Options may be granted only to
employees of the Company or a “parent corporation” or “subsidiary corporation”
thereof (as such terms are defined in Sections 424(e) and 424(f) of the
Code). Stock Awards other than Incentive Stock Options may be granted
to Employees, Directors and Consultants;
provided, however
,
Nonstatutory Stock Options and SARs may not be granted to Employees, Directors
and Consultants who are providing Continuous Service only to any “parent” of the
Company, as such term is defined in Rule 405, unless the stock underlying such
Stock Awards is treated as “service recipient stock” under Section 409A of the
Code because the Stock Awards are granted pursuant to a corporate transaction
(such as a spin off transaction) or unless such Stock Awards comply with the
distribution requirements of Section 409A of the Code.
(b)
Ten Percent
Stockholders.
A Ten Percent Stockholder shall not be granted
an Incentive Stock Option unless the exercise price of such Option is at least
one hundred ten percent (110%) of the Fair Market Value of the Common Stock on
the date of grant and the Option is not exercisable after the expiration of five
(5) years from the date of grant.
(c)
Section 162(m)
Limitation
. Subject to the provisions of Section 9(a) relating
to Capitalization Adjustments, at such time as the Company may be subject to the
applicable provisions of Section 162(m) of the Code, no Employee shall be
eligible to be granted during any calendar year Stock Awards whose value is
determined by reference to an increase over an exercise or strike price of at
least one hundred percent (100%) of the Fair Market Value of the Common Stock on
the date the Stock Award is granted covering more than 1,500,000 shares of
Common Stock.
(d)
Consultants.
A
Consultant shall be eligible for the grant of a Stock Award only if, at the time
of grant, (i) a Form S-8 Registration Statement under the Securities Act or a
successor or similar form under the Securities Act (“
Form S-8
”)
is available to register either the offer or the sale of the Company’s
securities to such Consultant because of the nature of the services that the
Consultant is providing to the Company, because the Consultant is a natural
person, or because of any other rule governing the use of Form S-8, (ii) such
grant complies with the requirements of Rule 701 of the Securities Act, or (iii)
the Company determines that such grant will otherwise comply with the securities
laws of all relevant jurisdictions.
5.
Option
Provisions.
Each
Option shall be in such form and shall contain such terms and conditions as the
Board shall deem appropriate. All Options shall be separately
designated Incentive Stock Options or Nonstatutory Stock Options at the time of
grant, and, if certificates are issued, a separate certificate or certificates
shall be issued for shares of Common Stock purchased on exercise of each type of
Option. If an Option is not specifically designated as an Incentive
Stock Option, then the Option shall be a Nonstatutory Stock
Option. The provisions of separate Options need not be identical;
provided, however
, that
each Option Agreement shall conform to (through incorporation of provisions
hereof by reference in the Option Agreement or otherwise) the substance of each
of the following provisions:
(a)
Term.
Subject to
the provisions of Section 4(b) regarding Ten Percent Stockholders, no Option
shall be exercisable after the expiration of ten (10) years from the date of its
grant or such shorter period specified in the Option Agreement.
(b)
Exercise
Price.
Subject to the provisions of Section 4(b) regarding Ten
Percent Stockholders, and notwithstanding anything in the Option Agreement to
the contrary, the exercise price of each Option shall be not less than one
hundred percent (100%) of the Fair Market Value of the Common Stock subject to
the Option on the date the Option is granted. Notwithstanding the
foregoing, an Option may be granted with an exercise price lower than one
hundred percent (100%) of the Fair Market Value of the Common Stock subject to
the Option if such Option is granted pursuant to an assumption or substitution
for another option in a manner consistent with the provisions of Sections 409A
and 424(a) of the Code (whether or not such options are Incentive Stock
Options).
(c)
Consideration.
The
purchase price of Common Stock acquired pursuant to the exercise of an Option
shall be paid, to the extent permitted by applicable law and as determined by
the Board in its sole discretion, by any combination of the methods of payment
set forth below. The Board shall have the authority to grant Options that do not
permit all of the following methods of payment (or otherwise restrict the
ability to use certain methods) and to grant Options that require the consent of
the Company to utilize a particular method of payment. The methods of
payment permitted by this Section 5(c) are:
(i)
by cash, check, bank draft or money order payable to the
Company;
(ii)
pursuant
to a program developed under Regulation T as promulgated by the Federal Reserve
Board that, prior to the issuance of the stock subject to the Option, results in
either the receipt of cash (or check) by the Company or the receipt of
irrevocable instructions to pay the aggregate exercise price to the Company from
the sales proceeds;
(iii)
by
delivery to the Company (either by actual delivery or attestation) of shares of
Common Stock;
(iv)
if
the option is a Nonstatutory Stock Option, by a “net exercise” arrangement
pursuant to which the Company will reduce the number of shares of Common Stock
issuable upon exercise by the largest whole number of shares with a Fair Market
Value that does not exceed the aggregate exercise price;
provided, however,
that the
Company shall accept a cash or other permitted payment from the Participant to
the extent of any remaining balance of the aggregate exercise price not
satisfied by such reduction in the number of whole shares to be issued;
provided, further,
that
shares of Common Stock will no longer be outstanding under an Option and will
not be exercisable thereafter to the extent that (A) shares are used to pay the
exercise price pursuant to the “net exercise,” (B) shares are delivered to the
Participant as a result of such exercise, and (C) shares are withheld to satisfy
tax withholding obligations; or
(v)
in
any other form of legal consideration that may be acceptable to the Board in its
sole discretion and permissible under applicable law.
(d)
Transferability of
Options.
The Board may, in its sole discretion, impose such
limitations on the transferability of Options as the Board shall
determine. If the Board determines that an Option will be
transferable, the Option will contain such additional terms and conditions as
the Board deems appropriate. In the absence of such a determination
by the Board to the contrary, the following restrictions on the transferability
of Options shall apply:
(i)
Restrictions on
Transfer.
An Option shall not be transferable except by will
or by the laws of descent and distribution and shall be exercisable during the
lifetime of the Optionholder only by the Optionholder;
provided, however
, that the
Board may, in its sole discretion, permit transfer of the Option in a manner
that is consistent with applicable tax and securities laws upon the
Optionholder’s request.
(ii)
Domestic Relations
Orders.
Notwithstanding the foregoing, an Option may be
transferred pursuant to a domestic relations order,
provided, however,
that if an
Option is an Incentive Stock Option, such Option may be deemed to be a
Nonstatutory Stock Option as a result of such transfer.
(iii)
Beneficiary Designation.
Notwithstanding the foregoing, the Optionholder may, by delivering written
notice to the Company, in a form provided by or otherwise satisfactory to the
Company and any broker designated by the Company to effect Option exercises,
designate a third party who, in the event of the death of the Optionholder,
shall thereafter be entitled to exercise the Option. In the absence
of such a designation, the executor or administrator of the Optionholder’s
estate shall be entitled to exercise the Option.
(e)
Vesting of Options
Generally.
The total number of shares of Common Stock subject
to an Option may vest and therefore become exercisable in periodic installments
that may or may not be equal. The Option may be subject to such other
terms and conditions on the time or times when it may or may not be exercised
(which may be based on the satisfaction of Performance Goals or other criteria)
as the Board may deem appropriate. The vesting provisions of
individual Options may vary. The provisions of this Section 5(e) are
subject to any Option provisions governing the minimum number of shares of
Common Stock as to which an Option may be exercised.
(f)
Termination of
Continuous Service.
Except as otherwise provided in the
applicable Option Agreement or other agreement between the Optionholder and the
Company, in the event that an Optionholder’s Continuous Service terminates
(other than for Cause or upon the Optionholder’s death or Disability), the
Optionholder may exercise his or her Option (to the extent that the Optionholder
was entitled to exercise such Option as of the date of termination of Continuous
Service) but only within such period of time ending on the date three (3) months
following the termination of the Optionholder’s Continuous Service, or (ii) the
expiration of the term of the Option as set forth in the Option
Agreement. If, after termination of Continuous Service, the
Optionholder does not exercise his or her Option within the time specified
herein or in the Option Agreement (as applicable), the Option shall
terminate.
(g)
Extension of Termination
Date.
For Options granted after the Amendment Date, if the
exercise of the Option following the termination of the Optionholder’s
Continuous Service (other than for Cause or upon the Optionholder’s death or
Disability) would be prohibited at any time solely because the issuance of
shares of Common Stock would violate the registration requirements under the
Securities Act, then the Option shall terminate on the earlier of (i) the
expiration of a period of three (3) months after the termination of the
Optionholder’s Continuous Service during which the exercise of the Option would
not be in violation of such registration requirements, or (ii) the expiration of
the term of the Option as set forth in the Option Agreement. In
addition, for Options granted after the Amendment Date, unless otherwise
provided in a Participant’s Award Agreement, if the sale of any Common Stock
received upon exercise of an Option following the termination of the
Participant’s Continuous Service (other than for Cause) would violate the
Company’s insider trading policy, then the Option shall terminate on the earlier
of (i) the expiration of a period equal to the applicable post-termination
exercise period after the termination of the Participant’s Continuous Service
during which the exercise of the Option would not be in violation of the
Company’s insider trading policy, or (ii) the expiration of the term of the
Option as set forth in the applicable Award Agreement.
(h)
Disability of
Optionholder.
In the event that an Optionholder’s Continuous
Service terminates as a result of the Optionholder’s Disability, the
Optionholder may exercise his or her Option (to the extent that the Optionholder
was entitled to exercise such Option as of the date of termination of Continuous
Service), but only within such period of time ending on the earlier of (i) the
date twelve (12) months following such termination of Continuous Service (or
such longer or shorter period specified in the Option Agreement), or (ii) the
expiration of the term of the Option as set forth in the Option
Agreement. If, after termination of Continuous Service, the
Optionholder does not exercise his or her Option within the time specified
herein or in the Option Agreement (as applicable), the Option shall
terminate.
(i)
Death of
Optionholder.
In the event that (i) an Optionholder’s
Continuous Service terminates as a result of the Optionholder’s death, or (ii)
the Optionholder dies within the period (if any) specified in the Option
Agreement after the termination of the Optionholder’s Continuous Service for a
reason other than death, then the Option may be exercised (to the extent the
Optionholder was entitled to exercise such Option as of the date of death) by
the Optionholder’s estate, by a person who acquired the right to exercise the
Option by bequest or inheritance or by a person designated to exercise the
option upon the Optionholder’s death, but only within the period ending on the
earlier of (i) the date eighteen (18) months following the date of death (or
such longer or shorter period specified in the Option Agreement); or (ii) the
expiration of the term of such Option as set forth in the Option
Agreement. If, after the Optionholder’s death, the Option is not
exercised within the time specified herein or in the Option Agreement (as
applicable), the Option shall terminate.
(j)
Termination for
Cause.
Except as otherwise explicitly provided in an
Optionholder’s Option Agreement, in the event that an Optionholder’s Continuous
Service is terminated for Cause, the Option shall terminate immediately and
cease to remain outstanding.
(k)
Non-Exempt
Employees
. No Option granted to an Employee who is a
non-exempt employee for purposes of the Fair Labor Standards Act of 1938, as
amended, shall be first exercisable for any shares of Common Stock until at
least six months following the date of grant of the
Option. Notwithstanding the foregoing, consistent with the provisions
of the Worker Economic Opportunity Act, (i) in the event of the Optionholder’s
death or Disability, (ii) upon a Corporate Transaction in which such Option is
not assumed, continued, or substituted, (iii) upon a Change in Control, or (iv)
upon the Optionholder’s retirement (as such term may be defined in the
Optionholder’s Option Agreement or in another applicable agreement or in
accordance with the Company's then current employment policies and guidelines),
any such vested Options may be exercised earlier than six months following the
date of grant. The foregoing provision is intended to operate so that
any income derived by a non-exempt employee in connection with the exercise or
vesting of an Option will be exempt from his or her regular rate of
pay.
6.
Provisions of Stock Awards
other than Options.
(a)
Restricted Stock
Awards.
Each Restricted Stock Award Agreement shall be in such
form and shall contain such terms and conditions as the Board shall deem
appropriate. To the extent consistent with the Company’s Bylaws, at
the Board’s election, shares of Common Stock may be (x) held in book entry form
subject to the Company’s instructions until any restrictions relating to the
Restricted Stock Award lapse; or (y) evidenced by a certificate, which
certificate shall be held in such form and manner as determined by the
Board. The terms and conditions of Restricted Stock Award Agreements
may change from time to time, and the terms and conditions of separate
Restricted Stock Award Agreements need not be identical,
provided, however
, that each
Restricted Stock Award Agreement shall conform to (through incorporation of the
provisions hereof by reference in the agreement or otherwise) the substance of
each of the following provisions:
(i)
Consideration.
A
Restricted Stock Award may be awarded in consideration for (A) cash, check, bank
draft or money order payable to the Company; (B) past or future services
actually or to be rendered to the Company or an Affiliate; or (C) any other form
of legal consideration that may be acceptable to the Board in its sole
discretion and permissible under applicable law.
(ii)
Vesting
. Shares of
Common Stock awarded under a Restricted Stock Award Agreement may be subject to
forfeiture to the Company in accordance with a vesting schedule to be determined
by the Board.
(iii)
Termination of Participant’s
Continuous Service.
In the event a Participant’s Continuous
Service terminates, the Company may receive via a forfeiture condition or a
repurchase right, any or all of the shares of Common Stock held by the
Participant which have not vested as of the date of termination of Continuous
Service under the terms of the Restricted Stock Award Agreement.
(iv)
Transferability.
Rights
to acquire shares of Common Stock under the Restricted Stock Award Agreement
shall be transferable by the Participant only upon such terms and conditions as
are set forth in the Restricted Stock Award Agreement, as the Board shall
determine in its sole discretion, so long as Common Stock awarded under the
Restricted Stock Award Agreement remains subject to the terms of the Restricted
Stock Award Agreement.
(b)
Restricted Stock Unit
Awards.
Each Restricted Stock Unit Award Agreement shall be in
such form and shall contain such terms and conditions as the Board shall deem
appropriate. The terms and conditions of Restricted Stock Unit Award
Agreements may change from time to time, and the terms and conditions of
separate Restricted Stock Unit Award Agreements need not be identical,
provided, however,
that each
Restricted Stock Unit Award Agreement shall conform to (through incorporation of
the provisions hereof by reference in the agreement or otherwise) the substance
of each of the following provisions:
(i)
Consideration.
At
the time of grant of a Restricted Stock Unit Award, the Board will determine the
consideration, if any, to be paid by the Participant upon delivery of each share
of Common Stock subject to the Restricted Stock Unit Award. The consideration to
be paid (if any) by the Participant for each share of Common Stock subject to a
Restricted Stock Unit Award may be paid in any form of legal consideration that
may be acceptable to the Board in its sole discretion and permissible under
applicable law.
(ii)
Vesting.
At the
time of the grant of a Restricted Stock Unit Award, the Board may impose such
restrictions or conditions to the vesting of the Restricted Stock Unit Award as
it, in its sole discretion, deems appropriate.
(iii)
Payment
. A
Restricted Stock Unit Award may be settled by the delivery of shares of Common
Stock, their cash equivalent, any combination thereof or in any other form of
consideration, as determined by the Board and contained in the Restricted Stock
Unit Award Agreement.
(iv)
Additional
Restrictions.
At the time of the grant of a Restricted Stock
Unit Award, the Board, as it deems appropriate, may impose such restrictions or
conditions that delay the delivery of the shares of Common Stock (or their cash
equivalent) subject to a Restricted Stock Unit Award to a time after the vesting
of such Restricted Stock Unit Award.
(v)
Dividend
Equivalents.
Dividend equivalents may be credited in respect
of shares of Common Stock covered by a Restricted Stock Unit Award, as
determined by the Board and contained in the Restricted Stock Unit Award
Agreement. At the sole discretion of the Board, such dividend
equivalents may be converted into additional shares of Common Stock covered by
the Restricted Stock Unit Award in such manner as determined by the
Board. Any additional shares covered by the Restricted Stock Unit
Award credited by reason of such dividend equivalents will be subject to all the
terms and conditions of the underlying Restricted Stock Unit Award Agreement to
which they relate.
(vi)
Termination of Participant’s
Continuous Service.
Except as otherwise provided in the
applicable Restricted Stock Unit Award Agreement, such portion of the Restricted
Stock Unit Award that has not vested will be forfeited upon the Participant’s
termination of Continuous Service.
(vii)
Compliance with Section 409A of the
Code.
Notwithstanding anything to the contrary set forth
herein, any Restricted Stock Unit Award granted under the Plan that is not
exempt from the requirements of Section 409A of the Code shall contain such
provisions so that such Restricted Stock Unit Award will comply with the
requirements of Section 409A of the Code. Such restrictions, if any,
shall be determined by the Board and contained in the Restricted Stock Unit
Award Agreement evidencing such Restricted Stock Unit Award. For
example, such restrictions may include, without limitation, a requirement that
any Common Stock that is to be issued in a year following the year in which the
Restricted Stock Unit Award vests must be issued in accordance with a fixed
pre-determined schedule.
(c)
Stock Appreciation
Rights.
Each Stock Appreciation Right Agreement shall be in
such form and shall contain such terms and conditions as the Board shall deem
appropriate. Stock Appreciation Rights may be granted as stand-alone
Stock Awards or in tandem with other Stock Awards. The terms and
conditions of Stock Appreciation Right Agreements may change from time to time,
and the terms and conditions of separate Stock Appreciation Right Agreements
need not be identical;
provided, however
, that each
Stock Appreciation Right Agreement shall conform to (through incorporation of
the provisions hereof by reference in the agreement or otherwise) the substance
of each of the following provisions:
(i)
Term.
No Stock
Appreciation Right shall be exercisable after the expiration of ten (10) years
from the date of its grant or such shorter period specified in the Stock
Appreciation Right Agreement.
(ii)
Strike Price.
Each Stock
Appreciation Right will be denominated in shares of Common Stock
equivalents. Notwithstanding anything in the applicable Stock Award
Agreement to the contrary, the strike price of each Stock Appreciation Right
shall not be less than one hundred percent (100%) of the Fair Market Value of
the Common Stock equivalents subject to the Stock Appreciation Right on the date
of grant.
(iii)
Calculation of
Appreciation.
The appreciation distribution payable on the
exercise of a Stock Appreciation Right will be not greater than an amount equal
to the excess of (A) the aggregate Fair Market Value (on the date of the
exercise of the Stock Appreciation Right) of a number of shares of Common Stock
equal to the number of share of Common Stock equivalents in which the
Participant is vested under such Stock Appreciation Right, and with respect to
which the Participant is exercising the Stock Appreciation Right on such date,
over (B) the aggregate strike price of the Common Stock equivalents being
exercised.
(iv)
Vesting.
At the
time of the grant of a Stock Appreciation Right, the Board may impose such
restrictions or conditions to the vesting of such Stock Appreciation Right as
it, in its sole discretion, deems appropriate.
(v)
Exercise.
To
exercise any outstanding Stock Appreciation Right, the Participant must provide
written notice of exercise to the Company in compliance with the provisions of
the Stock Appreciation Right Agreement evidencing such Stock Appreciation
Right.
(vi)
Payment
. The
appreciation distribution in respect of a Stock Appreciation Right may be paid
in Common Stock, in cash, in any combination of the two or in any other form of
consideration, as determined by the Board and set forth in the Stock
Appreciation Right Agreement evidencing such Stock Appreciation
Right.
(vii)
Termination of Continuous
Service.
In the event that a Participant’s Continuous Service
terminates (other than for Cause), the Participant may exercise his or her Stock
Appreciation Right (to the extent that the Participant was entitled to exercise
such Stock Appreciation Right as of the date of termination of Continuous
Service) but only within such period of time ending on the earlier of (A) the
date three (3) months following the termination of the Participant’s Continuous
Service (or such longer or shorter period specified in the Stock Appreciation
Right Agreement), or (B) the expiration of the term of the Stock Appreciation
Right as set forth in the Stock Appreciation Right Agreement. If,
after termination of Continuous Service, the Participant does not exercise his
or her Stock Appreciation Right within the time specified herein or in the Stock
Appreciation Right Agreement (as applicable), the Stock Appreciation Right shall
terminate.
(viii)
Termination for
Cause.
Except as explicitly provided otherwise in an
Participant’s Stock Appreciation Right Agreement, in the event that a
Participant’s Continuous Service is terminated for Cause, the Stock Appreciation
Right shall terminate upon the termination date of such Participant’s Continuous
Service, and the Participant shall be prohibited from exercising his or her
Stock Appreciation Right from and after the time of such termination of
Continuous Service.
(ix)
Extension of Termination
Date
. If the exercise of the Stock Appreciation Right
following the termination of the Participant’s Continuous Service would either
(A) be prohibited at any time solely because the issuance of shares of Common
Stock would violate the registration requirements under the Securities Act, or
(B) subject the Participant to short-swing liability under Section 16(b) of the
Exchange Act, then the Stock Appreciation Right shall terminate on the earlier
of (x) the expiration of a period of ninety (90) days after the termination of
the Participant’s Continuous Service during which the exercise of the Stock
Appreciation Right would not be in violation of such registration requirements
and would not subject the Participant to short-swing liability under Section
16(b) of the Exchange Act, or (y) the expiration of the term of the Stock
Appreciation Right as set forth in the Stock Appreciation Right
Agreement.
(d)
Performance Awards.
(i)
Performance Stock
Awards
. A Performance Stock Award is either a Restricted Stock
Award or Restricted Stock Unit Award that may be granted or may vest based upon
the attainment during a Performance Period of certain Performance
Goals. A Performance Stock Award may, but need not, require the
completion of a specified period of Continuous Service. The length of any
Performance Period, the Performance Goals to be achieved during the Performance
Period, and the measure of whether and to what degree such Performance Goals
have been attained shall be conclusively determined by the Committee in its sole
discretion. The maximum Performance Stock Award that may be granted
in a calendar year to any Participant pursuant to this Section 6(d)(i) shall not
exceed the value of 750,000 shares of Common Stock (as determined at the time of
grant). In addition, to the extent permitted by applicable law and
the applicable Award Agreement, the Board may determine that cash may be used in
payment of Performance Stock Awards.
(ii)
Performance Cash
Awards
. A Performance Cash Award is a cash award granted
pursuant to this Section 6(d)(ii) that is paid upon the attainment during a
Performance Period of certain Performance Goals. A Performance Cash
Award may also require the completion of a specified period of Continuous
Service. The length of any Performance Period, the Performance Goals
to be achieved during the Performance Period, and the measure of whether and to
what degree such Performance Goals have been attained shall be conclusively
determined by the Committee in its sole discretion. The maximum
Performance Cash Award that may be granted to a Participant in a calendar year
and made subject to the future attainment of one or more Performance Goals shall
not exceed $1,000,000. The Board may provide for or, subject to such
terms and conditions as the Board may specify, may permit a Participant to elect
for, the payment of any Performance Cash Award to be deferred to a specified
date or event. The Committee may specify the form of payment of
Performance Cash Awards, which may be cash or other property, or may provide for
a Participant to have the option for his or her Performance Cash Award, or such
portion thereof as the Board may specify, to be paid in whole or in part in cash
or other property. In addition, to the extent permitted by applicable
law and the applicable Award Agreement, the Board may determine that Common
Stock authorized under this Plan may be used in payment of Performance Cash
Awards, including additional shares in excess of the Performance Cash Award as
an inducement to hold shares of Common Stock.
(iii)
Section 162(m)
Compliance
. Unless otherwise permitted in compliance with the
requirements of Section 162(m) of the Code with respect to an Award intended to
qualify as “performance-based compensation” thereunder, the Committee shall
establish the Performance Goals applicable to, and the formula for calculating
the amount payable under, the Award no later than the earlier of (a) the date
ninety (90) days after the commencement of the applicable Performance Period, or
(b) the date on which twenty-five percent (25%) of the Performance Period has
elapsed, and in any event at a time when the achievement of the applicable
Performance Goals remains substantially uncertain. Prior to the
payment of any compensation under an Award intended to qualify as
“performance-based compensation” under Section 162(m) of the Code, the Committee
shall certify the extent to which any Performance Goals and any other material
terms under such Award have been satisfied (other than in cases where such
relate solely to the increase in the value of the Common Stock). Notwithstanding
satisfaction of any completion of any Performance Goals, to the extent specified
at the time of grant of an Award to “covered employees” within the meaning of
Section 162(m) of the Code, the number of shares of Common Stock, Options, cash
or other benefits granted, issued, retainable and/or vested under an Award on
account of satisfaction of such Performance Goals may be reduced by the
Committee on the basis of such further considerations as the Committee, in its
sole discretion, shall determine.
(e)
Other Stock
Awards
. Other forms of Stock Awards valued in whole or in part
by reference to, or otherwise based on, Common Stock (“
Other Stock
Awards
”) may be granted either alone or in addition to Stock Awards
provided for under Section 5 and the preceding provisions of this Section
6. Such Other Stock Awards will be subject to a written Award
Agreement between the Company and a holder of an Other Stock Award evidencing
the terms and conditions of an Other Stock Award, and each Other Stock Award
shall be subject to the terms and conditions of the Plan. Subject to the
provisions of the Plan, the Board shall have sole and complete authority to
determine the persons to whom and the time or times at which such Other Stock
Awards will be granted, the number of shares of Common Stock (or the cash
equivalent thereof) to be granted pursuant to such Other Stock Awards and all
other terms and conditions of such Other Stock Awards.
7.
Covenants of the
Company.
(a)
Availability of
Shares.
During the terms of the Awards, the Company shall keep
available at all times the number of shares of Common Stock required to satisfy
such Awards.
(b)
Securities Law
Compliance.
The Company shall seek to obtain from each
regulatory commission or agency having jurisdiction over the Plan such authority
as may be required to grant Stock Awards and to issue and sell shares of Common
Stock upon exercise of the Stock Awards;
provided, however,
that this
undertaking shall not require the Company to register under the Securities Act
the Plan, any Award or any Common Stock issued or issuable pursuant to any such
Award. If, after reasonable efforts, the Company is unable to obtain
from any such regulatory commission or agency the authority that counsel for the
Company deems necessary for the lawful issuance and sale of Common Stock under
the Plan, the Company shall be relieved from any liability for failure to issue
and sell Common Stock upon exercise of such Awards or make payments of cash or
other property in settlement of Awards unless and until such authority is
obtained. A Participant shall not be eligible for the grant of a
Stock Award or the subsequent issuance of Common Stock pursuant to the Stock
Award if such grant or issuance would be in violation of any applicable
securities laws.
(c)
No Obligation to
Notify.
The Company shall have no duty or obligation to any
holder of an Award to advise such holder as to the time or manner of exercising
or settling such Award. Furthermore, the Company shall have no duty
or obligation to warn or otherwise advise such holder of a pending termination
or expiration of an Award or a possible period in which the Award may not be
exercised or settled. The Company has no duty or obligation to
minimize the tax consequences of an Award to the holder of such
Award.
8.
Miscellaneous.
(a)
Use of
Proceeds.
Proceeds from the sale of shares of Common Stock
pursuant to Stock Awards shall constitute general funds of the
Company.
(b)
Corporate Action Constituting Grant
of Awards.
Corporate action constituting a grant by the
Company of an Award to any Participant shall be deemed completed as of the date
of such corporate action, unless otherwise determined by the Board, regardless
of when the instrument, certificate, or letter evidencing the Award is
communicated to, or actually received or accepted by, the
Participant. If the Board determines that the terms of an Award do
not reflect the appropriate exercise, strike or purchase price on the
appropriate date of grant in accordance with the requirements of the Plan, the
terms of the Award shall be automatically corrected to reflect the appropriate
price or other terms provided for under the Plan, as determined by the Board,
without the need for consent of the Participant;
provided, however
, that no
such correction shall result in a direct or indirect reduction in the exercise
price or strike price of the Award.
(c)
Stockholder
Rights.
No Participant shall be deemed to be the holder of, or
to have any of the rights of a holder with respect to, any shares of Common
Stock subject to an Award unless and until (i) such Participant has satisfied
all requirements for exercise or settlement of the Award pursuant to its terms,
and (ii) the issuance of the Common Stock pursuant to such exercise or
settlement has been entered into the books and records of the
Company.
(d)
No Employment or Other Service
Rights.
Nothing in the Plan, any Award Agreement or other
instrument executed thereunder or in connection with any Award granted pursuant
to the Plan shall confer upon any Participant any right to continue to serve the
Company or an Affiliate in the capacity in effect at the time the Award was
granted or shall affect the right of the Company or an Affiliate to terminate
(i) the employment of an Employee with or without notice and with or without
cause, (ii) the service of a Consultant pursuant to the terms of such
Consultant’s agreement with the Company or an Affiliate, or (iii) the service of
a Director pursuant to the Bylaws of the Company or an Affiliate, and any
applicable provisions of the corporate law of the state in which the Company or
the Affiliate is incorporated, as the case may be.
(e)
Incentive Stock Option $100,000
Limitation.
To the extent that the aggregate Fair Market Value
(determined at the time of grant) of Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by any Optionholder
during any calendar year (under all plans of the Company and any Affiliates)
exceeds one hundred thousand dollars ($100,000), the Options or portions thereof
that exceed such limit (according to the order in which they were granted) shall
be treated as Nonstatutory Stock Options, notwithstanding any contrary provision
of the applicable Option Agreement(s) or any Board or Committee resolutions
related thereto.
(f)
Investment
Assurances.
The Company may require a Participant, as a
condition of exercising or acquiring Common Stock under any Award, (i) to give
written assurances satisfactory to the Company as to the Participant’s knowledge
and experience in financial and business matters and/or to employ a purchaser
representative reasonably satisfactory to the Company who is knowledgeable and
experienced in financial and business matters and that he or she is capable of
evaluating, alone or together with the purchaser representative, the merits and
risks of exercising the Stock Award; and (ii) to give written assurances
satisfactory to the Company stating that the Participant is acquiring Common
Stock subject to the Award for the Participant’s own account and not with any
present intention of selling or otherwise distributing the Common
Stock. The foregoing requirements, and any assurances given pursuant
to such requirements, shall be inoperative if (x) the issuance of the shares
upon the exercise or acquisition of Common Stock under the Award has been
registered under a then currently effective registration statement under the
Securities Act, or (y) as to any particular requirement, a determination is made
by counsel for the Company that such requirement need not be met in the
circumstances under the then applicable securities laws. The Company
may, upon advice of counsel to the Company, place legends on stock certificates
issued under the Plan as such counsel deems necessary or appropriate in order to
comply with applicable securities laws, including, but not limited to, legends
restricting the transfer of the Common Stock.
(g)
Withholding
Obligations.
Unless prohibited by the terms of an Award
Agreement, the Company may, in its sole discretion, satisfy any federal, state
or local tax withholding obligation relating to an Award by any of the following
means (in addition to the Company’s right to withhold from any compensation paid
to the Participant by the Company) or by a combination of such means: (i)
causing the Participant to tender a cash payment; (ii) withholding
shares of Common Stock from the shares of Common Stock issued or otherwise
issuable to the Participant in connection with the Award;
provided, however
, that no
shares of Common Stock are withheld with a value exceeding the minimum amount of
tax required to be withheld by law (or such lower amount as may be necessary to
avoid classification of the Stock Award as a liability for financial accounting
purposes); (iii) withholding cash from an Award settled in cash; (iv)
withholding payment from any amounts otherwise payable to the Participant; or
(v) by such other method as may be set forth in the Award
Agreement.
(h)
Electronic
Delivery
. Any reference herein to a “written” agreement or
document shall include any agreement or document delivered electronically or
posted on the Company’s intranet.
(i)
Deferrals.
To the
extent permitted by applicable law, the Board, in its sole discretion, may
determine that the delivery of Common Stock or the payment of cash, upon the
exercise, vesting or settlement of all or a portion of any Award may be deferred
and may establish programs and procedures for deferral elections to be made by
Participants. Deferrals by Participants will be made in accordance
with Section 409A of the Code. Consistent with Section 409A of the Code, the
Board may provide for distributions while a Participant is still an
employee. The Board is authorized to make deferrals of Awards and
determine when, and in what annual percentages, Participants may receive
payments, including lump sum payments, following the Participant’s termination
of employment or retirement, and implement such other terms and conditions
consistent with the provisions of the Plan and in accordance with applicable
law.
(j)
Compliance with
Section 409A.
To the extent that the Board determines that any
Award granted hereunder is subject to Section 409A of the Code, the Award
Agreement evidencing such Award shall incorporate the terms and conditions
necessary to avoid the consequences specified in Section 409A(a)(1) of the
Code. To the extent applicable, the Plan and Award Agreements shall
be interpreted in accordance with Section 409A of the
Code. Notwithstanding anything to the contrary in this Plan (and
unless the Award Agreement specifically provides otherwise), if the shares of
Common Stock are publicly traded and a Participant holding an Award that
constitutes “deferred compensation” under Section 409A of the Code is a
“specified employee” for purposes of Section 409A of the Code, no distribution
or payment of any amount shall be made upon a “separation from service” before a
date that is six (6) months following the date of such Participant’s “separation
from service” (as defined in Section 409A of the Code without regard to
alternative definitions thereunder) or, if earlier, the date of the
Participant’s death.
(k)
Notwithstanding
anything to the contrary contained herein, neither the Company nor any of its
Affiliates shall not be responsible for, or required to reimburse or otherwise
make any participant whole for, any tax or penalty imposed on, or losses
incurred by, any Participant that arises in connection with the potential or
actual application of Section 409A to any Award granted hereunder.
9.
Adjustments upon Changes in
Common Stock; Other Corporate Events.
(a)
Capitalization
Adjustments
. In the event of a Capitalization Adjustment, in
order to prevent diminution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, the Board shall appropriately and
proportionately adjust: (i) the class(es) and maximum number of securities
subject to the Plan pursuant to Section 3(a); (ii) the class(es) and maximum
number of securities that may be issued pursuant to the exercise of Incentive
Stock Options pursuant to Section 3(c); (iii) the class(es) and maximum number
of securities that may be awarded to any person pursuant to Section 4(c) and
6(d)(i); and (iv) the class(es) and number of securities and price per share of
stock subject to outstanding Awards. The Board shall make such
adjustments, and its determination shall be final, binding and
conclusive.
(b)
Dissolution or
Liquidation
. Except as otherwise provided in a Stock Award
Agreement, in the event of a dissolution or liquidation of the Company, all
outstanding Stock Awards (other than Stock Awards consisting of vested and
outstanding shares of Common Stock not subject to a forfeiture condition or the
Company’s right of repurchase) shall terminate immediately prior to the
completion of such dissolution or liquidation, and the shares of Common Stock
subject to the Company’s repurchase rights or subject to a forfeiture condition
may be repurchased or reaquired by the Company notwithstanding the fact that the
holder of such Stock Award is providing Continuous Service,
provided, however,
that the
Board may, in its sole discretion, cause some or all Stock Awards to become
fully vested, exercisable and/or no longer subject to repurchase or forfeiture
(to the extent such Stock Awards have not previously expired or terminated)
before the dissolution or liquidation is completed but contingent on its
completion. All other Awards that are not Stock Awards shall be
treated in accordance with the applicable Award Agreements.
(c)
Corporate Transaction.
The following provisions shall apply to Awards in the event
of a Corporate Transaction unless otherwise provided in the Award Agreement or
any other applicable written agreement between the Company or any Affiliate and
the holder of the Award, or unless otherwise expressly provided by the Board at
the time of grant of an Award. Except as otherwise stated in the
Award Agreement, in the event of a Corporate Transaction, then, notwithstanding
any other provision of the Plan, the Board shall take one or more of the
following actions with respect to Awards, contingent upon the closing or
completion of the Corporate Transaction:
(i)
arrange
for the surviving corporation or acquiring corporation (or the surviving or
acquiring corporation’s parent company) to assume or continue the Award or to
substitute a similar award for the Award (including, but not limited to, an
award to acquire the same consideration paid to the stockholders of the Company
pursuant to the Corporate Transaction);
(ii)
arrange
for the assignment of any reacquisition or repurchase rights held by the Company
in respect of Common Stock issued pursuant to the Award to the surviving
corporation or acquiring corporation (or the surviving or acquiring
corporation’s parent company);
(iii)
accelerate
the vesting of the Award (and, if applicable, the time at which the Award may be
exercised or settled) to a date prior to the effective time of such Corporate
Transaction as the Board shall determine (or, if the Board shall not determine
such a date, to the date that is five (5) days prior to the effective date of
the Corporate Transaction), with such Award terminating if not exercised (if
applicable) at or prior to the effective time of the Corporate
Transaction;
(iv)
arrange
for the lapse of any reacquisition or repurchase rights held by the Company with
respect to the Award;
(v)
cancel or arrange for the cancellation of the
Award, to the extent not vested or not exercised or settled prior to the
effective time of the Corporate Transaction, in exchange for such cash
consideration, if any, as the Board, in its sole discretion, may consider
appropriate; and
(vi)
the
payment, in such form as may be determined by the Board equal to the excess, if
any, of (A) the value of the property the holder of the Award would have
received upon the exercise or settlement of the Award, over (B) any exercise or
purchase price payable by such holder in connection with such exercise or
settlement.
The Board
need not take the same action with respect to all Awards or with respect to all
Participants.
(d)
Change in
Control.
An Award may be subject to additional acceleration of
vesting and exercisability upon or after a Change in Control as may be provided
in the Award Agreement for such Award or as may be provided in any applicable
written agreement between the Company or any Affiliate and the
Participant. An Award may vest as to all or any portion of the cash
or shares subject to the Award (i) immediately upon the occurrence of a Change
in Control, whether or not such Award is assumed, continued, or substituted by a
surviving or acquiring entity in the Change in Control, or (ii) in the event a
Participant’s Continuous Service is terminated, actually or constructively,
within a designated period following the occurrence of a Change in
Control. In the absence of such provisions, no such acceleration
shall occur.
10.
Termination or Suspension of
the Plan.
(a)
Plan Term.
The
Board may suspend or terminate the Plan at any time. Unless
terminated sooner, the Plan shall terminate on the day before the tenth (10th)
anniversary of the earlier of (i) the date the Plan is adopted by the Board, or
(ii) the date the Plan is approved by the stockholders of the
Company. No Awards may be granted under the Plan while the Plan is
suspended or after it is terminated.
(b)
No Impairment of
Rights.
Suspension or termination of the Plan shall not impair
rights and obligations under any Award granted while the Plan is in effect
except with the written consent of the affected Participant.
11.
Effective Date of
Plan.
The Plan
shall become effective on the date it is first approved by the Board, but no
Stock Award shall be exercised (or, in the case of a Restricted Stock Award,
Restricted Stock Unit Award, Performance Stock Award, or Other Stock Award shall
be granted and no Performance Cash Award shall be settled) unless and until the
Plan has been approved by the Stockholders of the Company, which approval shall
be within twelve (12) months before or after the date the Plan is adopted by the
Board.
12.
Choice of
Law.
The law
of the State of California shall govern all questions concerning the
construction, validity and interpretation of this Plan, without regard to that
state’s conflict of laws rules.
13.
Definitions.
As used
in the Plan, the following definitions shall apply to the capitalized terms
indicated below:
(a)
“
Affiliate
”
means, at the time of determination, any “parent” or “subsidiary” of the Company
as such terms are defined in Rule 405 of the Securities Act. The
Board shall have the authority to determine the time or times at which “parent”
or “subsidiary” status is determined within the foregoing
definition.
(b)
“
Annual
Meeting
” means the annual meeting of the stockholders of the
Company.
(c)
“
Award
”
means a Stock Award or a Performance Cash Award.
(d)
“
Award
Agreement
” means a Stock Award Agreement or the written terms of a
Performance Cash Award. Each Award Agreement shall be subject to the terms and
conditions of the Plan.
(e)
“
Board
”
means the Board of Directors of the Company.
(f)
“
Capitalization
Adjustment
” means any change that is made in, or other events that occur
with respect to, the Common Stock subject to the Plan or subject to any Stock
Award after the Effective Date without the receipt of consideration by the
Company through merger, consolidation, reorganization, recapitalization,
reincorporation, stock dividend, dividend in property other than cash, stock
split, liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or any similar equity restructuring transaction not
involving the receipt of consideration by the Company. Notwithstanding the
foregoing, the conversion of any convertible securities of the Company shall not
be treated as a transaction “without the receipt of consideration” by the
Company.
(g)
“
Cause
”
means
with respect to a Participant, the occurrence of any of the following
events: (i) such Participant’s commission of any felony or any crime
involving fraud, dishonesty or moral turpitude under the laws of the United
States or any state thereof; (ii) such Participant’s attempted commission of, or
participation in, a fraud or act of dishonesty against the Company; (iii) such
Participant’s intentional, material violation of any contract or agreement
between the Participant and the Company or of any statutory duty owed to the
Company; (iv) such Participant’s unauthorized use or disclosure of
the Company’s confidential information or trade secrets; or (v) such
Participant’s gross misconduct. The determination that a termination of the
Participant’s Continuous Service is either for Cause or without Cause shall be
made by the Company in its sole discretion. Any determination by the
Company that the Continuous Service of a Participant was terminated with or
without Cause for the purposes of outstanding Awards held by such Participant
shall have no effect upon any determination of the rights or obligations of the
Company or such Participant for any other purpose.
Notwithstanding
the foregoing or any other provision of this Plan, the definition of Cause (or
any analogous term) in an individual written agreement between the Company or
any Affiliate and the Participant shall supersede the foregoing definition with
respect to Awards subject to such agreement; provided, however, that if no
definition of Cause or any analogous term is set forth in such an individual
written agreement, the foregoing definition shall apply.
(h)
“
Change in
Control
” means the occurrence, in a single transaction or in a series of
related transactions, of any one or more of the following events:
(i)
any
Exchange Act Person becomes the Owner, directly or indirectly, of securities of
the Company representing more than fifty percent (50%) of the combined voting
power of the Company’s then outstanding securities other than by virtue of a
merger, consolidation or similar transaction. Notwithstanding the
foregoing, a Change in Control shall not be deemed to occur (A) on account of
the acquisition of securities of the Company by an investor, any affiliate
thereof or any other Exchange Act Person from the Company in a transaction or
series of related transactions the primary purpose of which is to obtain
financing for the Company through the issuance of equity securities or (B)
solely because the level of Ownership held by any Exchange Act Person (the
“
Subject
Person
”) exceeds the designated percentage threshold of the outstanding
voting securities as a result of a repurchase or other acquisition of voting
securities by the Company reducing the number of shares outstanding, provided
that if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of voting securities by the Company, and after
such share acquisition, the Subject Person becomes the Owner of any additional
voting securities that, assuming the repurchase or other acquisition had not
occurred, increases the percentage of the then outstanding voting securities
Owned by the Subject Person over the designated percentage threshold, then a
Change in Control shall be deemed to occur;
(ii)
there
is consummated a merger, consolidation or similar transaction involving
(directly or indirectly) the Company and, immediately after the consummation of
such merger, consolidation or similar transaction, the stockholders of the
Company immediately prior thereto do not Own, directly or indirectly, either (A)
outstanding voting securities representing more than fifty percent (50%) of the
combined outstanding voting power of the surviving Entity in such merger,
consolidation or similar transaction or (B) more than fifty percent (50%) of the
combined outstanding voting power of the parent of the surviving Entity in such
merger, consolidation or similar transaction, in each case in substantially the
same proportions as their Ownership of the outstanding voting securities of the
Company immediately prior to such transaction; or
(iii)
there
is consummated a sale, lease, exclusive license or other disposition of all or
substantially all of the consolidated assets of the Company and its
Subsidiaries, other than a sale, lease, license or other disposition of all or
substantially all of the consolidated assets of the Company and its Subsidiaries
to an Entity, more than fifty percent (50%) of the combined voting power of the
voting securities of which are Owned by stockholders of the Company in
substantially the same proportions as their Ownership of the outstanding voting
securities of the Company immediately prior to such sale, lease, license or
other disposition.
For
avoidance of doubt, the term Change in Control shall not include a sale of
assets, merger or other transaction effected exclusively for the purpose of
changing the domicile of the Company.
Notwithstanding
the foregoing or any other provision of the Plan, the definition of Change in
Control (or any analogous term) in an individual written agreement between the
Company or any Affiliate and the Participant shall supersede the foregoing
definition with respect to Awards subject to such agreement;
provided, however,
that if no
definition of Change in Control or any analogous term is set forth in such an
individual written agreement, the foregoing definition shall apply.
(i)
“
Code
”
means the Internal Revenue Code of 1986, as amended.
(j)
“
Committee
”
means a committee of one (1) or more Directors to whom authority has been
delegated by the Board in accordance with Section 2(c).
(k)
“
Common
Stock
” means the common stock of the Company.
(l)
“
Company
”
means Procera Networks, Inc., a Nevada corporation.
(m)
“
Consultant
”
means any person, including an advisor, who is (i) engaged by the Company or an
Affiliate to render consulting or advisory services and is compensated for such
services, or (ii) serving as a member of the board of directors of an Affiliate
and is compensated for such services. However, service solely as a
Director, or payment of a fee for such service, shall not cause a Director to be
considered a “Consultant” for purposes of the Plan. Notwithstanding
the foregoing, a person is treated as a Consultant under this Plan only if a
Form S-8 Registration Statement under the Securities Act is available to
register either the offer or the sale of the Company’s securities to such
person.
(n)
“
Continuous
Service
” means that the Participant’s service with the Company or an
Affiliate, whether as an Employee, Director or Consultant, is not interrupted or
terminated. A change in the capacity in which the Participant renders
service to the Company or an Affiliate as an Employee, Consultant or Director or
a change in the entity for which the Participant renders such service, provided
that there is no interruption or termination of the Participant’s service with
the Company or an Affiliate, shall not, by itself, terminate a Participant’s
Continuous Service;
provided,
however
, if the Entity for which a Participant is rendering services
ceases to qualify as an “Affiliate,” as determined by the Board in its sole
discretion, such Participant’s Continuous Service shall be considered to have
terminated on the date such Entity ceases to qualify as an
Affiliate. To the extent a Participant, upon a change in capacity of
service, ceases to provide service at a rate of more than 20% of his or her rate
of service (immediately prior to the change in capacity), such Participant may
be deemed to have suffered a termination of Continuous Service. To the extent
permitted by law, the Board or the chief executive officer of the Company, in
that party’s sole discretion, may determine whether Continuous Service shall be
considered interrupted in the case of: (i) any leave of absence approved by the
Board of the chief executive officer of the Company, including sick leave,
military leave or any other personal leave; or (ii) transfers between the
Company, an Affiliate, or their successors. Notwithstanding the
foregoing, and except as otherwise required by applicable law or as otherwise
determined by the Company, a leave of absence shall be treated as Continuous
Service for purposes of vesting in a Stock Award only to such extent as may be
provided in the Company’s leave of absence policy, in the written terms of any
leave of absence agreement or policy applicable to the Participant, or as
otherwise required by law.
(o)
“
Corporate
Transaction
” means the occurrence, in a single transaction or in a series
of related transactions, of any one or more of the following
events:
(i)
the consummation of a sale
or other disposition of
all or substantially all, as determined by the Board in its sole discretion, of
the consolidated assets of the Company and its Subsidiaries;
(ii)
the consummation of a sale or other disposition of
at least ninety percent (90%) of the outstanding securities of the
Company;
(iii)
the
consummation of a merger, consolidation or similar transaction following which
the Company is not the surviving corporation; or
(iv)
the
consummation of a merger, consolidation or similar transaction following which
the Company is the surviving corporation but the shares of Common Stock
outstanding immediately preceding the merger, consolidation or similar
transaction are converted or exchanged by virtue of the merger, consolidation or
similar transaction into other property, whether in the form of securities, cash
or otherwise.
(p)
“
Covered
Employee
” shall have the meaning provided in Section 162(m)(3) of the
Code and the regulations promulgated thereunder.
(q)
“
Director
”
means a member of the Board.
(r)
“
Disability
”
means, with respect to a Participant, the inability of such
Participant to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months, as provided in Section 22(e)(3) and 409A(a)(2)(c)(i) of the
Code.
(s)
“
Effective
Date
” means the effective date of the Plan as set forth in Section
11.
(t)
“
Employee
”
means any person employed by the Company or an Affiliate. However,
service solely as a Director, or payment of a fee for such services, shall not
cause a Director to be considered an “Employee” for purposes of the
Plan.
(u)
“
Entity
”
means a corporation, partnership, limited liability company or other
entity.
(v)
“
Exchange
Act
” means the Securities Exchange Act of 1934, as amended.
(w)
“
Exchange Act
Person
”
means
any natural person, Entity or “group” (within the meaning of Section 13(d) or
14(d) of the Exchange Act), except that “Exchange Act Person” shall not include
(i) the Company or any Subsidiary of the Company, (ii) any employee benefit plan
of the Company or any Subsidiary of the Company or any trustee or other
fiduciary holding securities under an employee benefit plan of the Company or
any Subsidiary of the Company, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, (iv) an Entity Owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their Ownership of stock of the Company; or (v) any natural
person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the
Exchange Act) that, as of the Effective Date, is the Owner, directly or
indirectly, of securities of the Company representing more than fifty percent
(50%) of the combined voting power of the Company’s then outstanding
securities.
(x)
“
Fair Market
Value
” means, as of any date, the value of the Common Stock determined as
follows:
(i)
If
the Common Stock is listed on any established stock exchange or traded on any
established market, the Fair Market Value of a share of Common Stock shall be
the closing sales price for such stock as quoted on such exchange or market (or
the exchange or market with the greatest volume of trading in the Common Stock)
on the date of determination, as reported in a source the Board deems
reliable.
(ii)
Unless otherwise provided by the Board, if there is no closing
sales price for the Common Stock on the date of determination, then the Fair
Market Value shall be the closing selling price on the last preceding date for
which such quotation exists.
(iii)
In
the absence of such markets for the Common Stock, the Fair Market Value shall be
determined by the Board in good faith and in a manner that complies with
Sections 409A and 422 of the Code.
(y)
“
Incentive Stock
Option
” means an Option which qualifies as an “incentive stock option”
within the meaning of Section 422 of the Code and the regulations promulgated
thereunder.
(z)
“
Non-Employee
Director
”
means a Director who
either (i) is not a current employee or officer of the Company or an Affiliate,
does not receive compensation, either directly or indirectly, from the Company
or an Affiliate for services rendered as a consultant or in any capacity other
than as a Director (except for an amount as to which disclosure would not be
required under Item 404(a) of Regulation S-K promulgated pursuant to the
Securities Act (“
Regulation
S-K
”)), does not possess an interest in any other transaction for which
disclosure would be required under Item 404(a) of Regulation S-K, and is not
engaged in a business relationship for which disclosure would be required
pursuant to Item 404(b) of Regulation S-K; or (ii) is otherwise considered a
“non-employee director” for purposes of Rule 16b-3.
(aa)
“
Nonstatutory
Stock Option
” means an Option that does not qualify as an Incentive Stock
Option.
(bb)
“
Officer
”
means any person designated by the Company as an officer; provided, however,
that at any time that any class of the equity securities of the Company is
registered pursuant to Section 12 of the Exchange Act, “Officer” shall mean a
person who is an officer of the Company within the meaning of Section 16 of the
Exchange Act and the rules and regulations promulgated thereunder.
(cc)
“
Option
”
means an Incentive Stock Option or a Nonstatutory Stock Option to purchase
shares of Common Stock granted pursuant to the Plan.
(dd)
“
Option
Agreement
” means a written agreement between the Company and an
Optionholder evidencing the terms and conditions of an Option
grant. Each Option Agreement shall be subject to the terms and
conditions of the Plan.
(ee)
“
Optionholder
”
means a person to whom an Option is granted pursuant to the Plan or, if
applicable, such other person who holds an outstanding Option.
(ff)
“
Other Stock
Award
” means an award based in whole or in part by reference to the
Common Stock which is granted pursuant to the terms and conditions of Section
6(d).
(gg)
“
Outside
Director
” means a Director who either (i) is not a current employee of
the Company or an “affiliated corporation” (within the meaning of Treasury
Regulations promulgated under Section 162(m) of the Code), is not a former
employee of the Company or an “affiliated corporation” who receives compensation
for prior services (other than benefits under a tax-qualified retirement plan)
during the taxable year, has not been an officer of the Company or an
“affiliated corporation,” and does not receive remuneration from the Company or
an “affiliated corporation,” either directly or indirectly, in any capacity
other than as a Director, or (ii) is otherwise considered an “outside director”
for purposes of Section 162(m) of the Code.
(hh)
“
Own
,”
“
Owned
,”
“
Owner
,”
“
Ownership
”
A person or Entity shall
be deemed to “Own,” to have “Owned,” to be the “Owner” of, or to have acquired
“Ownership” of securities if such person or Entity, directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise, has
or shares voting power, which includes the power to vote or to direct the
voting, with respect to such securities.
(ii)
“
Participant
”
means a person to whom an Award is granted pursuant to the Plan or, if
applicable, such other person who holds an outstanding Award.
(jj)
“
Performance
Criteria
” means the one or more criteria that the Board shall select for
purposes of establishing the Performance Goals for a Performance
Period. The Performance Criteria that shall be used to establish such
Performance Goals may be based on any one of, or combination of, on a U.S.
generally accepted accounting standards or non-generally accepted accounting
standards basis, the following: (i) earnings per share; (ii) earnings before
interest, taxes and depreciation; (iii) earnings before interest, taxes,
depreciation and amortization (EBITDA); (iv) total stockholder return; (v)
return on equity; (vi) return on assets, investment, or capital employed; (vii)
operating margin; (viii) gross margin; (ix) operating income; (x) net income
(before or after taxes); (xi) net operating income; (xii) net operating income
after tax; (xiii) pre- and after-tax income; (xiv) pre-tax profit; (xv)
operating cash flow; (xvi) sales or revenue targets; (xvii) orders and revenue;
(xviii) increases in revenue or product revenue; (xix) expenses and cost
reduction goals; (xx) improvement in or attainment of expense levels; (xxi)
improvement in or attainment of working capital levels; (xxii) economic value
added (or an equivalent metric); (xxiii) market share; (xxiv) cash flow; (xxv)
cash flow per share; (xxvi) share price performance; (xxvii) debt reduction;
(xxviii) implementation or completion of projects or processes; (xxix) customer
satisfaction; (xxx) stockholders’ equity; (xxxi) quality measures; and (xxxii)
to the extent that a Stock Award is not intended to comply with Section 162(m)
of the Code, other measures of performance selected by the
Board. Partial achievement of the specified criteria may result in
the payment or vesting corresponding to the degree of achievement as specified
in the Award Agreement. The Board shall, in its sole discretion,
define the manner of calculating the Performance Criteria it selects to use for
such Performance Period.
(kk)
“
Performance
Goals
” means, for a Performance Period, the one or more goals established
by the Board for the Performance Period based upon the satisfaction of the
Performance Criteria. Performance Goals may be based on a
Company-wide basis, with respect to one or more business units, divisions,
Affiliates, or business segments, and in either absolute terms or relative to
the performance of one or more comparable companies or the performance of one or
more relevant indices. Unless specified otherwise by the Board (i) in
the Award Agreement at the time the Award is granted or (ii) in such other
document setting forth the Performance Goals at the time the Performance Goals
are established, the Board shall appropriately make adjustments in the method of
calculating the attainment of Performance Goals for a Performance Period as
follows: (i) to exclude restructuring and/or other nonrecurring charges; (ii) to
exclude exchange rate effects, as applicable, for non-U.S. dollar denominated
net sales and operating earnings; (iii) to exclude the effects of changes to
generally accepted accounting standards required by the Financial Accounting
Standards Board; (iv) to exclude the effects of any statutory adjustments to
corporate tax rates; and (v) to exclude the effects of any “extraordinary items”
as determined under generally accepted accounting principles. In
addition, the Board retains the discretion to reduce or eliminate the
compensation or economic benefit due upon attainment of Performance
Goals.
(ll)
“
Performance
Period
” means one or more periods of time, which may be of varying and
overlapping duration, as the Committee may select, over which the attainment of
one or more Performance Goals will be measured for the purpose of determining a
Participant’s right to and the payment of a Performance Stock Award or a
Performance Cash Award.
(mm)
“
Performance Stock
Award
” means a Restricted Stock Award or Restricted Stock Unit Award
which is granted pursuant to the terms and conditions of Section
6(d)(i).
(nn)
“
Plan
”
means this Procera Networks, Inc. 2007 Equity Incentive Plan.
(oo)
“
Prior
Plans
” means the Company’s 2003 Stock Option Plan and 2004 Stock Option
Plan, as in effect immediately prior to the Effective Date.
(pp)
“
Restricted Stock
Award
” means an award of shares of Common Stock which is granted pursuant
to the terms and conditions of Section 6(a).
(qq)
“
Restricted Stock
Award Agreement
” means a written agreement between the Company and a
holder of a Restricted Stock Award evidencing the terms and conditions of a
Restricted Stock Award grant. Each Restricted Stock Award Agreement
shall be subject to the terms and conditions of the Plan.
(rr)
“
Restricted Stock
Unit Award
”
means
a right to receive shares of Common Stock which is granted pursuant to the terms
and conditions of Section 6(b).
(ss)
“
Restricted Stock
Unit Award Agreement
” means a written agreement between the Company and a
holder of a Restricted Stock Unit Award evidencing the terms and conditions of a
Restricted Stock Unit Award grant. Each Restricted Stock Unit Award
Agreement shall be subject to the terms and conditions of the Plan.
(tt)
“
Rule
16b-3
” means Rule 16b-3 promulgated under the Exchange Act or any
successor to Rule 16b-3, as in effect from time to time.
(uu)
“
Securities
Act
” means the Securities Act of 1933, as amended.
(vv)
“
Stock
Appreciation Right
” means a right to receive the appreciation on Common
Stock that is granted pursuant to the terms and conditions of Section
6(c).
(ww)
“
Stock
Appreciation Right Agreement
” means a written agreement between the
Company and a holder of a Stock Appreciation Right evidencing the terms and
conditions of a Stock Appreciation Right grant. Each Stock
Appreciation Right Agreement shall be subject to the terms and conditions of the
Plan.
(xx)
“
Stock
Award
” means any right to receive Common Stock granted under the Plan,
including an Option, a Restricted Stock Award, a Restricted Stock Unit Award, a
Stock Appreciation Right, a Performance Stock Award, or Other Stock
Award.
(yy)
“
Stock Award
Agreement
” means a written agreement between the Company and a
Participant evidencing the terms and conditions of a Stock Award
grant. Each Stock Award Agreement shall be subject to the terms and
conditions of the Plan.
(zz)
“
Subsidiary
”
means, with respect to the Company, (i) any corporation of which more than fifty
percent (50%) of the outstanding capital stock having ordinary voting power to
elect a majority of the board of directors of such corporation (irrespective of
whether, at the time, stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time, directly or indirectly, Owned by the Company, and
(ii) any partnership, limited liability company or other entity in which the
Company has a direct or indirect interest (whether in the form of voting or
participation in profits or capital contribution) of more than fifty percent
(50%) .
(aaa)
“
Ten
Percent Stockholder
” means a person who Owns (or is deemed to Own
pursuant to Section 424(d) of the Code) stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or any Affiliate.
23
PROCERA
NETWORKS, INC.
100
COOPER COURT, SUITE C
LOS
GATOS, CA 95032
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|
VOTE
BY INTERNET - www.proxyvote.com
Use
the Internet to transmit your voting instructions and for electronic
delivery of information up until 11:59 P.M. Eastern Time the day before
the cut-off date or meeting date. Have your proxy card in hand when you
access the web site and follow the instructions to obtain your records and
to create an electronic voting instruction form.
Electronic
Delivery of Future PROXY MATERIALS
If
you would like to reduce the costs incurred by our company in mailing
proxy materials, you can consent to receiving all future proxy statements,
proxy cards and annual reports electronically via e-mail or the Internet.
To sign up for electronic delivery, please follow the instructions above
to vote using the Internet and, when prompted, indicate that you agree to
receive or access proxy materials electronically in future
years.
VOTE
BY PHONE - 1-800-690-6903
Use
any touch-tone telephone to transmit your voting instructions up until
11:59 P.M. Eastern Time the day before the cut-off date or meeting date.
Have your proxy card in hand when you call and then follow the
instructions.
VOTE
BY MAIL
Mark,
sign and date your proxy card and return it in the postage-paid envelope
we have provided or return it to Vote Processing, c/o Broadridge, 51
Mercedes Way, Edgewood, NY 11717.
|
TO
VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
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|
KEEP
THIS PORTION FOR YOUR RECORDS
|
|
|
DETACH
AND RETURN THIS PORTION ONLY
|
THIS
PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
|
For
All
|
Withhold
All
|
For
All
Except
|
To
withhold authority to vote for any individual nominee(s), mark “For All
Except” and write the number(s) of the nominee(s) on the line
below.
|
|
The
Board of Directors recommends that you vote FOR the
following:
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o
|
o
|
o
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1.
|
Election
of Directors
Nominees
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01
|
Scott
McClendon
|
02
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James
F. Brear
|
03
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Staffan
Hillberg
|
04
|
Mary
Losty
|
05
|
Thomas
Saponas
|
The
Board of Directors recommends you vote FOR the following
proposal(s):
|
For
|
Against
|
Abstain
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2
|
To
approve an amendment to the Company’s 2007 Equity Incentive Plan to
increase the number of shares of common stock that may
be
issued under the Plan by 2,000,000 shares.
|
o
|
o
|
o
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3
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To
ratify selection of PMB Helin Donovan, LLP as the independent auditors of
the Company for its fiscal year ending December 31, 2009.
|
o
|
o
|
o
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For
address change/comments, mark here.
(see
reverse for instructions)
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|
o
|
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Please
sign exactly as your name(s) appear(s) hereon. When signing as attorney,
executor, administrator, or other fiduciary, please give full title as
such. Joint owners should each sign personally. All holders must sign. If
a corporation or partnership, please sign in full corporate or partnership
name, by authorized officer.
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Signature
[PLEASE SIGN WITHIN BOX]
|
Date
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Signature
(Joint Owners)
|
Date
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Important Notice Regarding the
Availability of Proxy Materials for the Annual Meeting:
The Notice &
Proxy Statement, Form 10-K is/are available at
www.proxyvote.com
.
|
PROCERA
NETWORKS, INC.
Annual
Meeting of Stockholders
December
16, 2009 9:30 AM
This
proxy is solicited by the Board of Directors
By
signing the proxy, you revoke all prior proxies and appoint James Brear and
Charles Constanti, and each of them, proxies with full power of substitution, to
vote your shares of record at the close of business on November 9, 2009 on the
matters shown on the reverse side and any other matters which may come before
the Annual Meeting and all adjournments.
This
proxy, when properly executed, will be voted in the manner directed herein. If
no such direction is made, this proxy will be voted in accordance with the Board
of Directors' recommendations.
(If you
noted any Address Changes and/or Comments above, please mark corresponding box
on the reverse side.)
Continued
and to be signed on reverse side
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