AEMETIS, INC.
AMENDED AND
RESTATED 2019 STOCK PLAN
1. Purposes
of this Plan. The purposes of
this Plan are to attract and retain the best available personnel
for positions of substantial responsibility, to provide additional
incentive to Employees, Directors and Consultants and to promote
the success of the Company’s business. This Plan permits the
grant of Incentive Stock Options, Nonstatutory Stock Options, Stock
Appreciation Rights, Restricted Stock, Restricted Stock Units,
Performance Units, Performance Shares and other stock or cash
awards as the Administrator may determine.
2. Effective
Date and Term. The original
version of the Plan became effective on April 25, 2019 upon its
approval by the stockholders (the “Effective Date”). The
Plan was amended and restated by the Board as set forth herein
effective April 3, 2020, subject to approval by the Company’s
stockholders in accordance with Section 24. Unless sooner
terminated under Section 17, this Plan shall continue in effect for
a term of ten (10) years following the date that the original
version of this Plan was adopted by the Board, except with respect
to Awards then outstanding. This Plan replaces the Prior Plans for
Awards granted on or after the Effective Date. Following the
Effective Date, no further awards have been or will be granted
under the Prior Plans and any outstanding awards granted under the
Prior Plans shall continue to be subject to the terms and
conditions of the applicable Prior Plan.
3. Definitions.
As used herein, the following definitions shall apply:
(a) “2007
Plan” means the Second Amended and Restated 2007 Stock
Plan, as Amended and Restated February 19, 2015.
(b)
“Administrator” means the
Board or any of its Committees as shall be administering this Plan
in accordance with Section 4 hereof.
(c) “Applicable
Laws” means any applicable legal requirements relating
to the administration and issuance of Awards under this Plan,
including the requirements of U.S. state corporate laws, U.S.
federal and state securities laws, the Code, the requirements of
any stock exchange or quotation system on which the Common Stock is
listed or quoted and the applicable laws of any other country or
jurisdiction where Awards are, or will be, granted under this Plan.
For all purposes of this Plan, references to statutes and
regulations shall be deemed to include any amendments thereto and
any successor statutes or regulations, where necessary as
determined by the Administrator in its sole
discretion.
(d) “Award”
means, individually or collectively, a grant under this Plan of
Options, Stock Appreciation Rights, Restricted Stock, Restricted
Stock Units, Performance Units, Performance Shares and other stock
or cash awards as the Administrator may determine.
(e) “Award
Agreement” means the written or electronic agreement
setting forth the terms and provisions applicable to each Award
granted under this Plan. The Award Agreement is subject to the
terms and conditions of this Plan.
(f) “Board”
means the Board of Directors of the Company.
(g) “Change
in Control” means the occurrence of any of the
following events:
(i) A
change in the ownership of the Company which occurs on the date that any
one person, or more than one person acting as a group,
(“Person”) acquires
ownership of the stock of the Company that, together with the stock
held by such Person, constitutes more than fifty percent (50%) of
the total voting power of the stock of the Company; provided,
however, that for purposes of this subsection (i), the acquisition
of additional stock by any one Person, who is considered to own
more than fifty percent (50%) of the total voting power of the
stock of the Company will not be considered a Change in Control;
or
(ii) A
change in the ownership of a substantial portion of the
Company’s assets which occurs on the date that any Person
acquires (or has acquired during the twelve (12)-month period
ending on the date of the most recent acquisition by such person or
persons) assets from the Company that have a total gross fair
market value equal to or more than fifty percent (50%) of the total
gross fair market value of all of the assets of the Company
immediately prior to such acquisition or acquisitions; provided,
however, that for purposes of this subsection (ii), the following
will not constitute a change in the ownership of a substantial
portion of the Company’s assets: (A) a transfer to an entity
that is controlled by the Company’s stockholders immediately
after the transfer, or (B) a transfer of assets by the Company to:
(1) a stockholder of the Company (immediately before the asset
transfer) in exchange for or with respect to the Company’s
stock, (2) an entity, fifty percent (50%) or more of the total
value or voting power of which is owned, directly or indirectly, by
the Company, (3) a Person, that owns, directly or indirectly, fifty
percent (50%) or more of the total value or voting power of all the
outstanding stock of the Company, or (4) an entity, at least fifty
percent (50%) of the total value or voting power of which is owned,
directly or indirectly, by a Person described in this subsection
(ii)(B)(3). For purposes of this subsection (ii), gross fair market
value means the value of the assets of the Company, or the value of
the assets being disposed of, determined without regard to any
liabilities associated with such assets.
For
purposes of this Section 2(f), persons will be considered to be
acting as a group if they are owners of a corporation that enters
into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with the Company.
(h) “Code”
means the Internal Revenue Code of 1986, as amended, and the
applicable rulings and regulations promulgated
thereunder.
(i) “Committee”
means a committee of Directors or of other individuals satisfying
Applicable Laws appointed by the Board in accordance with Section 4
hereof.
(j) “Common
Stock” means the common stock of the Company, par
value $0.001 per share or such other class of shares or other
securities as may be applicable under Section 15 of this
Plan.
(k) “Company”
means Aemetis, Inc., a Nevada corporation, or any successor
thereto.
(l) “Consultant”
means any person who is engaged by the Company or any Parent or
Subsidiary to render consulting or advisory services to such
entity.
(m)
“Director” means a member
of the Board.
(n) “Disability”
means total and permanent disability as defined in Section 22(e)(3)
of the Code, provided that in the case of Awards other than
Incentive Stock Options, the Administrator in its discretion may
determine whether a permanent and total disability exists in
accordance with uniform and non-discriminatory standards adopted by
the Administrator from time to time.
(o) “Employee”
means any person, including Officers and Directors, employed by the
Company or any Parent or Subsidiary of the Company. Neither service
as a Director nor payment of a director’s fee by the Company
shall be sufficient to constitute “employment” by the
Company.
(p) “Exchange
Act” means the Securities Exchange Act of 1934, as
amended, and the applicable rulings and regulations promulgated
thereunder.
(q) “Exchange
Program” means a program under which (i) outstanding
Awards are surrendered or cancelled in exchange for Awards of the
same type (which may have lower exercise prices and different
terms), Awards of a different type, and/or cash, (ii) Participants
would have the opportunity to transfer any outstanding Awards to a
financial institution or other person or entity selected by the
Administrator, and/or (iii) the exercise price of an outstanding
Award is reduced. The Administrator will determine the terms and
conditions of any Exchange Program in its sole
discretion.
(r) “Fair
Market Value” means, as of any date, the value of
Common Stock determined as follows:
(i) If
the Common Stock is listed on any established stock exchange or a
national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock
Market, its Fair Market Value shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as
quoted on such exchange or system on the day of determination, as
reported in The Wall Street
Journal or such other source as the Administrator deems
reliable;
(ii) If
the Common Stock is regularly quoted by a recognized securities
dealer but selling prices are not reported, its Fair Market Value
shall be the mean between the high bid and low asked prices for the
Common Stock on the day of determination; or
(iii) In
the absence of an established market for the Common Stock, the Fair
Market Value thereof shall be determined in good faith by the
Administrator.
(s) “Fiscal
Year” means the fiscal year of the
Company.
(t) “Incentive
Stock Option” means an Option that by its terms
qualifies or is otherwise intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code.
(u) “Nonstatutory
Stock Option” means an Option not intended to qualify
as an Incentive Stock Option.
(v) “Officer”
means 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.
(w)
“Option” means a stock
option granted pursuant to Section 8 of this Plan.
(x) “Parent”
means a “parent corporation,” whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(y) “Participant”
means the holder of an outstanding Award.
(z) “Performance
Goals” will have the meaning set forth in Section 13
of this Plan.
(aa)
“Performance
Period” means any Fiscal Year of the Company or such
other period as determined by the Administrator in its sole
discretion.
(bb)
“Performance
Share” means an Award denominated in Shares which may
be earned in whole or in part upon attainment of Performance Goals
or other vesting criteria as the Administrator may determine
pursuant to Section 12.
(cc)
“Performance
Unit” means an Award which may be earned in whole or
in part upon attainment of Performance Goals or other vesting
criteria as the Administrator may determine and which may be
settled for cash, Shares or other securities or a combination of
the foregoing pursuant to Section 12.
(dd)
“Period of
Restriction” means the period during which the
transfer of Shares of Restricted Stock are subject to restrictions
and, therefore, the Shares are subject to a substantial risk of
forfeiture. Such restrictions may be based on the passage of time,
the achievement of target levels of performance, or the occurrence
of other events as determined by the Administrator.
(ee)
“Plan”
means this Amended and Restated Aemetis, Inc. 2019 Stock Plan, as
amended or restated from time to time.
(ff)
“Prior
Plans” means the 2007 Plan and the Zymetis
Plan
(gg)
“Restricted Stock” means
Shares issued pursuant to an Award of Restricted Stock under
Section 10 of this Plan, or issued pursuant to an early exercise of
an Option.
(hh)
“Restricted Stock
Unit” means a bookkeeping entry representing an amount
equal to the Fair Market Value of one Share, granted pursuant to
Section 11. Each Restricted Stock Unit represents an unfunded and
unsecured obligation of the Company.
(ii) “Rule
16b-3” means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being
exercised with respect to this Plan.
(jj)
“Section
16(b)” means Section 16(b) of the Exchange
Act.
(kk)
“Service
Provider” means an Employee, Director or
Consultant.
(ll)
“Share”
means a share of the Common Stock, as adjusted in accordance with
Section 15 below.
(mm)
“Stock Appreciation
Right” means an Award, granted alone or in connection
with an Option, that pursuant to Section 9 is designated as a Stock
Appreciation Right.
(nn)
“Subsidiary” means a
“subsidiary corporation,” whether now or hereafter
existing, as defined in Section 424(f) of the Code.
(oo)
“Zymetis
Plan” means the Zymetis, Inc. 2006 Stock Incentive
Plan.
4. Stock
Subject to this Plan.
(a) Subject
to the provisions of this Section 4 and Section 15 of this Plan,
the maximum aggregate number of Shares that may be awarded and sold
under this Plan shall not exceed 2,541,823 Shares, a portion of
which shall include the number of Shares remaining available for
grant under the Prior Plans as of the date that the original
version of this Plan was adopted by the Board. The Shares may be
authorized but unissued, or reacquired Common Stock.
(b) Automatic
Share Reserve Increase. The number of Shares available for
issuance under this Plan will be increased on the first day of each
Fiscal Year beginning with the 2021 Fiscal Year, in an amount equal
to the lesser of (i) four percent (4%) of the sum of (A) the number
of Shares outstanding on the date that the original version of this
Plan was adopted by the Board plus (B) the number of Shares
issuable pursuant to outstanding awards under the Prior Plans on
the date that the original version of this Plan was adopted by the
Board, or (ii) such number of Shares determined by the
Board.
(c) Lapsed
Awards. If an Award or an award under a Prior Plan expires
or becomes unexercisable without having been exercised in full, or,
with respect to Restricted Stock, Restricted Stock Units,
Performance Shares or Performance Units, is forfeited to or
repurchased by the Company, the unpurchased Shares (or for Awards
other than Options and Stock Appreciation Rights, the forfeited or
repurchased Shares) which were subject thereto will become
available for future grant or sale under this Plan (unless this
Plan has terminated). Upon exercise of a Stock Appreciation Right
settled in Shares, the gross number of Shares covered by the
portion of the Award so exercised will cease to be available under
this Plan. Shares that have actually been issued under this Plan
under any Award will not be returned to this Plan and will not
become available for future distribution under this Plan; provided,
however, that if unvested Shares of Restricted Stock, Restricted
Stock Units, Performance Shares or Performance Units are
repurchased by the Company or are forfeited to the Company, such
Shares will become available for future grant under this Plan.
Shares used to pay the tax and/or exercise price of an Award will
become available for future grant or sale under this Plan. To the
extent an Award under this Plan is paid out in cash rather than
Shares, such cash payment will not result in reducing the number of
Shares available for issuance under this Plan. Notwithstanding the
foregoing provisions of this Section 3(c), subject to adjustment
provided in Section 15, the maximum number of Shares that may be
issued upon the exercise of Incentive Stock Options will equal the
aggregate Share number stated in Section 3(a), plus any increase in
the aggregate Share number per Section 3(b), plus, to the extent
allowable under Section 422 of the Code, any Shares that become
available for issuance under this Plan under this Section
3(c).
5. Administration
of this Plan.
(a) Administrator.
This Plan shall be administered by the Board or a Committee
appointed by the Board, which Committee shall be constituted to
comply with Applicable Laws. Different Committees with respect to
different groups of Service Providers may administer this
Plan.
(b) Rule
16b-3. To the extent desirable to qualify transactions
hereunder as exempt under Rule 16b-3, the transactions contemplated
hereunder will be structured to satisfy the requirements for
exemption under Rule 16b-3.
(c) Powers
of the Administrator. Subject to the provisions of this Plan
and, in the case of a Committee, the specific duties delegated by
the Board to such Committee, and subject to the approval of any
relevant authorities, the Administrator shall have the authority in
its discretion:
(i) to
determine the Fair Market Value;
(ii)
to select the Service Providers to whom Awards may from time to
time be granted hereunder;
(iii)
to determine the number of Shares to be covered by each such Award
granted hereunder;
(iv)
to determine the terms and conditions of any, and to institute an
Exchange Program;
(v)
to approve forms of agreement for use under this Plan;
(vi)
to determine the terms and conditions, not inconsistent with the
terms of this Plan, of any Award granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the
time or times when Awards may be exercised (which may be based on
performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation
regarding any Award or the Common Stock relating thereto, based in
each case on such factors as the Administrator, in its sole
discretion, shall determine;
(vii)
to prescribe, amend and rescind rules and regulations relating to
this Plan, including rules and regulations relating to sub-plans
established for the purpose of satisfying applicable foreign
laws;
(viii)
to construe and interpret the terms of this Plan and Awards granted
pursuant to this Plan;
(ix)
to modify or amend each Award (subject to Section 17(c) of this
Plan); and
(x)
to make all other determinations deemed necessary or advisable for
administering this Plan.
(d) Effect
of Administrator’s Decision. All decisions,
determinations and interpretations of the Administrator shall be
final and binding on all Participants.
6. Eligibility.
Nonstatutory Stock Options, Restricted Stock, Restricted Stock
Units, Stock Appreciation Rights, Performance Units, Performance
Shares, and such other cash or stock awards as the Administrator
determines may be granted to Service Providers. Incentive Stock
Options may be granted only to Employees.
7. At-Will
Employment. Neither this Plan
nor any Award shall confer upon any Participant any right with
respect to continuing the Participant’s relationship as a
Service Provider with the Company, nor shall it interfere in any
way with his or her right or the Company’s right to terminate
such relationship at any time, with or without cause, and with or
without notice.
8. Stock
Options.
(a) Limitations.
(i) Incentive
Stock Option Limit. Each Option shall be designated in the
Award Agreement as either an Incentive Stock Option or a
Nonstatutory Stock Option. However, notwithstanding such
designation, to the extent that the aggregate Fair Market Value of
the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Participant during any
calendar year (under all plans of the Company and any Parent or
Subsidiary) exceeds $100,000, such Options shall be treated as
Nonstatutory Stock Options. For purposes of this Section 8(a),
Incentive Stock Options shall be taken into account in the order in
which they were granted. The Fair Market Value of the Shares shall
be determined as of the time the Option with respect to such Shares
is granted.
(ii) Number
of Shares. The Administrator will have complete discretion
to determine the number of Shares subject to an Option granted to
any Participant, provided that during any Fiscal Year.
(b) Term
of Option. The term of each Option shall be stated in the
Award Agreement; provided, however, that the term shall be
(i) no
more than fifteen (15) years from the date of grant thereof for the
Option that is granted to a Director and (ii) no more than ten (10)
years from the date of grant thereof for the Option that is granted
to a non-Director Service Provider. In the case of an
Incentive Stock Option granted to a Participant who, at the time
the Option is granted, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the term of the Option shall
be five (5) years from the date of grant or such shorter term as
may be provided in the Award Agreement.
(c) Option
Exercise Price and Consideration.
(i) Exercise
Price. The per share exercise price for the Shares to be
issued upon exercise of an Option shall be such price as is
determined by the Administrator, but shall be subject to the
following:
(A) In
the case of an Incentive Stock Option
a) granted
to an Employee who, at the time of grant of such Option, owns stock
representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the
exercise price shall be no less than 110% of the Fair Market Value
per Share on the date of grant; and
b) granted
to any other Employee, the per Share exercise price shall be no
less than 100% of the Fair Market Value per Share on the date of
grant.
(B) In
the case of a Nonstatutory Stock Option, the per Share exercise
price shall be no less than 100% of the Fair Market Value per Share
on the date of grant.
(ii) Notwithstanding
the foregoing provisions of this Section 6(c), Options may be
granted with a per Share exercise price of less than 100% of the
Fair Market Value per Share on the date of grant pursuant to a
transaction described in, and in a manner consistent with, Section
424(a) of the Code.
(iii) Forms
of Consideration. The consideration to be paid for the
Shares to be issued upon exercise of an Option, including the
method of payment, shall be determined by the Administrator (and,
in the case of an Incentive Stock Option, shall be determined at
the time of grant). Such consideration may consist of, without
limitation, (i) cash, (ii) check, (iii) promissory note, (iv)
surrender of other Shares which (x) shall be valued at its Fair
Market Value on the date of exercise, and (y) must be owned free
and clear of any liens, claims, encumbrances or security interests,
if accepting such Shares, in the sole discretion of the
Administrator, shall not result in any adverse accounting
consequences to the Company, (v) consideration received by the
Company under a cashless exercise program implemented by the
Company in connection with this Plan, or (vi) any combination of
the foregoing methods of payment. In making its determination as to
the type of consideration to accept, the Administrator shall
consider if acceptance of such consideration may be reasonably
expected to benefit the Company.
(d) Exercise
of Option.
(i) Procedure
for Exercise; Rights as a Stockholder. Any Option granted
hereunder shall be exercisable according to the terms hereof at
such times and under such conditions as determined by the
Administrator and set forth in the Award Agreement. An Option may
not be exercised for a fraction of a Share.
An
Option shall be deemed exercised when the Company receives: (i)
written or electronic notice of exercise (in accordance with the
Award Agreement) from the person entitled to exercise the Option,
and (ii) full payment for the Shares with respect to which the
Option is exercised (together with any applicable withholding
taxes). Full payment may consist of any consideration and method of
payment authorized by the Administrator and permitted by the Award
Agreement and this Plan. Shares issued upon exercise of an Option
shall be issued in the name of the Participant or, if requested by
the Participant, in the name of the Participant and his or her
spouse. Until the Shares are issued (as evidenced by the
appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or
receive dividends or any other rights as a stockholder shall exist
with respect to the Shares, notwithstanding the exercise of the
Option. The Company shall issue (or cause to be issued) such Shares
promptly after the Option is exercised. No adjustment will be made
for a dividend or other right for which the record date is prior to
the date the Shares are issued, except as provided in Section 15 of
this Plan.
Exercise of an
Option in any manner shall result in a decrease in the number of
Shares thereafter available for sale under the Option, by the
number of Shares as to which the Option is exercised.
(ii) Termination
of Relationship as a Service Provider. If a Participant
ceases to be a Service Provider, other than upon the
Participant’s termination as the result of the
Participant’s death or Disability, the Participant may
exercise his or her Option within such period of time as is
specified in the Award Agreement to the extent that the Option is
vested on the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Award
Agreement). In the absence of a specified time in the Award
Agreement, the Option shall remain exercisable for three (3) months
following the Participant’s termination. Unless otherwise
provided by the Administrator, if, on the date of termination, the
Participant is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall revert
to this Plan. If, after termination, the Participant does not
exercise the vested portion of his or her Option within the time
specified by the Administrator, the Option shall terminate, and the
Shares covered by such Option shall revert to this
Plan.
(iii) Disability
of Participant. If a Participant ceases to be a Service
Provider as a result of the Participant’s Disability, the
Participant may exercise his or her Option within such period of
time as is specified in the Award Agreement to the extent the
Option is vested on the date of termination (but in no event later
than the expiration of the term of such Option as set forth in the
Award Agreement). In the absence of a specified time in the Award
Agreement, the Option shall remain exercisable for twelve (12)
months following the Participant’s termination. Unless
otherwise provided by the Administrator, if, on the date of
termination, the Participant is not vested as to his or her entire
Option, the Shares covered by the unvested portion of the Option
shall revert to this Plan. If, after termination, the Participant
does not exercise the vested portion of his or her Option within
the time specified herein, the Option shall terminate, and the
Shares covered by such Option shall revert to this
Plan.
(iv) Death
of Participant. If a Participant dies while a Service
Provider, the Option may be exercised by the Participant’s
designated beneficiary within such period of time as is specified
in the Award Agreement to the extent that the Option is vested on
the date of death (but in no event may the Option be exercised
later than the expiration of the term of such Option as set forth
in the Award Agreement), provided such beneficiary has been
designated prior to Participant’s death in a form acceptable
to the Administrator. If no such beneficiary has been designated by
the Participant, then such Option may be exercised by the personal
representative of the Participant’s estate or by the
person(s) to whom the Option is transferred pursuant to the
Participant’s will or in accordance with the laws of descent
and distribution. In the absence of a specified time in the Award
Agreement, the Option shall remain exercisable for twelve (12)
months following the Participant’s termination. Unless
otherwise provided by the Administrator, if, at the time of death,
the Participant is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall
immediately revert to this Plan. If the vested portion of the
Option is not so exercised within the time specified herein, the
Option shall terminate, and the Shares covered by such Option shall
revert to this Plan.
9. Stock
Appreciation Rights.
(a) Grant
of Stock Appreciation Rights. Subject to the terms and
conditions of this Plan, a Stock Appreciation Right may be granted
to Service Providers at any time and from time to time as will be
determined by the Administrator, in its sole
discretion.
(b) Number
of Shares. The Administrator will have complete discretion
to determine the number of Stock Appreciation Rights granted to any
Participant.
(c) Exercise
Price and Other Terms. The Administrator, subject to the
provisions of this Plan, shall have complete discretion to
determine the terms and conditions of Stock Appreciation Rights
granted under this Plan, provided, however, that the exercise price
will be no less than 100% of the Fair Market Value of a Share on
the date of grant.
(d) Stock
Appreciation Right Agreement. Each Stock Appreciation Right
grant will be evidenced by an Award Agreement that will specify the
exercise price, the term of the Stock Appreciation Right, the
conditions of exercise, and such other terms and conditions as the
Administrator, in its sole discretion, will determine.
(e) Expiration
of Stock Appreciation Rights. A Stock Appreciation Right
granted under this Plan will expire on the date determined by the
Administrator, in its sole discretion, and set forth in the Award
Agreement; provided, however, that the term will be no more than
ten (10) years from the date of grant thereof. Notwithstanding the
foregoing, the rules of Section 8(d) also will apply to Stock
Appreciation Rights.
(f) Payment
of Stock Appreciation Right Amount. Upon exercise of a Stock
Appreciation Right, a Participant will be entitled to receive
payment from the Company in an amount determined by
multiplying:
(i) The
difference between the Fair Market Value of a Share on the date of
exercise over the exercise price; times
(ii) the
number of Shares with respect to which the Stock Appreciation Right
is exercised.
At the
discretion of the Administrator, the payment upon Stock
Appreciation Right exercise may be in cash, in Shares of equivalent
value, or in some combination thereof.
10. Restricted
Stock.
(a) Grant
of Restricted Stock. Subject to the terms and provisions of
this Plan, the Administrator, at any time and from time to time,
may grant Shares of Restricted Stock to Service Providers in such
amounts as the Administrator, in its sole discretion, will
determine.
(b) Restricted
Stock Agreement. Each Award of Restricted Stock will be
evidenced by an Award Agreement that will specify the Period of
Restriction, the number of Shares granted, and such other terms and
conditions as the Administrator, in its sole discretion, will
determine. Unless the Administrator determines otherwise, Shares of
Restricted Stock will be held by the Company as escrow agent until
the restrictions on such Shares have lapsed.
(c) Transferability.
Except as provided in this Section 10, Shares of Restricted Stock
may not be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated until the end of the applicable Period of
Restriction.
(d) Other
Restrictions. The Administrator, in its sole discretion, may
impose such other restrictions on Shares of Restricted Stock as it
may deem advisable or appropriate.
(e) Removal
of Restrictions. Except as otherwise provided in this
Section 10, Shares of Restricted Stock covered by each Restricted
Stock grant made under this Plan will be released from escrow as
soon as practicable after the last day of the Period of
Restriction. The Administrator, in its discretion, may accelerate
the time at which any restrictions will lapse or be
removed.
(f) Voting
Rights. During the Period of Restriction, Service Providers
holding Shares of Restricted Stock granted hereunder may exercise
full voting rights with respect to those Shares, unless the
Administrator determines otherwise.
(g) Dividends
and Other Distributions. During the Period of Restriction,
Service Providers holding Shares of Restricted Stock will be
entitled to receive all dividends and other distributions paid with
respect to such Shares unless otherwise provided in the Award
Agreement. If any such dividends or distributions are paid in
Shares, the Shares will be subject to the same restrictions on
transferability and forfeitability as the Shares of Restricted
Stock with respect to which they were paid.
(h) Return
of Restricted Stock to Company. On the date set forth in the
Award Agreement, the Restricted Stock for which restrictions have
not lapsed will revert to the Company and again will become
available for grant under this Plan.
11. Restricted
Stock Units.
(a) Grant.
Restricted Stock Units may be granted at any time and from time to
time as determined by the Administrator. Each Restricted Stock Unit
grant will be evidenced by an Award Agreement that will specify
such other terms and conditions as the Administrator, in its sole
discretion, will determine, including all terms, conditions, and
restrictions related to the grant, the number of Restricted Stock
Units and the form of payout, which, subject to Section 11(d), may
be left to the discretion of the Administrator.
(b) Vesting
Criteria and Other Terms. The Administrator will set vesting
criteria in its discretion, which, depending on the extent to which
the criteria are met, will determine the number of Restricted Stock
Units that will be paid out to the Participant. After the grant of
Restricted Stock Units, the Administrator, in its sole discretion,
may reduce or waive any restrictions for such Restricted Stock
Units. Each Award of Restricted Stock Units will be evidenced by an
Award Agreement that will specify the vesting criteria, and such
other terms and conditions as the Administrator, in its sole
discretion will determine. The Administrator, in its discretion,
may accelerate the time at which any restrictions will lapse or be
removed.
(c) Earning
Restricted Stock Units. Upon meeting the applicable vesting
criteria, the Participant will be entitled to receive a payout as
specified in the Award Agreement.
(d) Form
and Timing of Payment. Payment of earned Restricted Stock
Units will be made as soon as practicable after the date(s) set
forth in the Award Agreement. The Administrator, in its sole
discretion, may pay earned Restricted Stock Units in cash, Shares,
or a combination thereof. Shares represented by Restricted Stock
Units that are fully paid in cash again will be available for grant
under this Plan.
(e) Cancellation.
On the date set forth in the Award Agreement, all unearned
Restricted Stock Units will be forfeited to the
Company.
12. Performance
Units and Performance Shares.
(a) Grant
of Performance Units/Shares. Performance Units and
Performance Shares may be granted to Service Providers at any time
and from time to time, as will be determined by the Administrator,
in its sole discretion. The Administrator will have complete
discretion in determining the number of Performance Units/Shares
granted to each Participant provided that during any Fiscal
Year.
(b) Value
of Performance Units/Shares. Each Performance Unit will have
an initial value that is established by the Administrator on or
before the date of grant. Each Performance Share will have an
initial value equal to the Fair Market Value of a Share on the date
of grant.
(c) Performance
Objectives and Other Terms. The Administrator will set
performance objectives or other vesting provisions. The
Administrator may set vesting criteria based upon the achievement
of Company-wide, business unit, or individual goals (including, but
not limited to, continued employment), or any other basis
determined by the Administrator in its discretion. Each Award of
Performance Units/Shares will be evidenced by an Award Agreement
that will specify the Performance Period, and such other terms and
conditions as the Administrator, in its sole discretion, will
determine. The Administrator, in its sole discretion, may provide
at the time of or following the date of grant for accelerated
vesting for an Award of Performance Units/Shares.
(d) Earning
of Performance Units/Shares. After the applicable
Performance Period has ended, the holder of Performance
Units/Shares will be entitled to receive a payout of the number of
Performance Units/Shares earned by the Participant over the
Performance Period, to be determined as a function of the extent to
which the corresponding performance objectives or other vesting
provisions have been achieved. After the grant of a Performance
Unit/Share, the Administrator, in its sole discretion, may reduce
or waive any performance objectives or other vesting provisions for
such Performance Unit/Share.
(e) Form
and Timing of Payment of Performance Units/Shares. Payment
of earned Performance Units/Shares will be made as soon as
practicable after the expiration of the applicable Performance
Period. The Administrator, in its sole discretion, may pay earned
Performance Units/Shares in the form of cash, in Shares (which have
an aggregate Fair Market Value equal to the value of the earned
Performance Units/Shares at the close of the applicable Performance
Period), or in a combination thereof.
(f) Cancellation
of Performance Units/Shares. On the date set forth in the
Award Agreement, all unearned or unvested Performance Units/Shares
will be forfeited to the Company and be available for future grant
under this Plan.
13. Leaves
of Absence. Unless the
Administrator provides otherwise, vesting of Awards granted
hereunder will be suspended during any unpaid leave of absence. A
Service Provider will not cease to be an Employee in the case of
(i) any leave of absence approved by the Company, or (ii) transfers
between locations of the Company or between the Company, its
Parent, or any Subsidiary. For purposes of Incentive Stock Options,
no such leave may exceed three (3) months, unless reemployment upon
expiration of such leave is guaranteed by statute or contract. If
reemployment upon expiration of a leave of absence approved by the
Company is not so guaranteed, then six (6) months and one (1) day
following the commencement of such leave any Incentive Stock Option
held by the Participant will cease to be treated as an Incentive
Stock Option and will be treated for tax purposes as a Nonstatutory
Stock Option.
14. Transferability
of Awards. Unless determined
otherwise by the Administrator, Awards may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner
other than by will or the laws of descent and distribution, and may
be exercised during the lifetime of the Participant, only by the
Participant. If the Administrator makes an Award transferable, such
Award may only be transferred (i) by will, (ii) by the laws of
descent and distribution, (iii) to a revocable trust, or (iv) as
permitted under the Rules as to Use of Form S-8, as amended, so as
to continue to provide that the Award, and the Shares issued under
the Award, continue to comply with the requirements of the S-8
registration statement.
15. Adjustments;
Dissolution or Liquidation; Merger or Change in
Control.
(a) Adjustments.
In the event that any dividend or other distribution (whether in
the form of cash, Shares, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, split-up, spin-off, combination, repurchase,
or exchange of Shares or other securities of the Company, or other
change in the corporate structure of the Company affecting the
Shares occurs, the Administrator, in order to prevent diminution or
enlargement of the benefits or potential benefits intended to be
made available under this Plan, shall adjust the number and class
of Shares that may be delivered under this Plan and/or the number,
class, price of Shares covered by each outstanding Award, and the
numerical Share limits set forth in Sections 3, 8, 9, 10, 11, and
12. Unless otherwise determined by the Administrator, such adjusted
Award shall be subject to the same restrictions and vesting
schedule to which the underlying Award is subject.
(b) Dissolution
or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Administrator shall notify each
Participant as soon as practicable prior to the effective date of
such proposed transaction. To the extent it has not been previously
exercised, an Option or Stock Appreciation Right will terminate
immediately prior to the consummation of such proposed
action.
(c) Merger
or Change in Control. In the event of a merger of the
Company with or into another corporation, or a Change in Control,
each outstanding Award shall be assumed or an equivalent option
substituted by the successor corporation or a Parent or Subsidiary
of the successor corporation. In the event that the successor
corporation in a merger or Change in Control refuses to assume or
substitute for the Award, then the Participant will fully vest in
and have the right to exercise all of his or her outstanding
Options and Stock Appreciation Rights, including Shares as to which
such Awards would not otherwise be vested or exercisable, all
restrictions on Restricted Stock will lapse, and, with respect to
Restricted Stock Units, Performance Shares and Performance Units,
all Performance Goals or other vesting criteria will be deemed
achieved at target levels and all other terms and conditions met.
In addition, if an Option or Stock Appreciation Right is not
assumed or substituted for in the event of a Change in Control, the
Administrator will notify the Participant in writing or
electronically that the Option or Stock Appreciation Right will be
fully vested and exercisable for fifteen (15) days prior to the
effective date of the merger or Change in Control, and the Option
or Stock Appreciation Right will terminate upon the expiration of
such period.
For the
purposes of this Section 15(c), an Award will be considered assumed
if, following the Change in Control, the Award confers the right to
purchase or receive, for each Share subject to the Award
immediately prior to the Change in Control, the consideration
(whether stock, cash, or other securities or property) or, in the
case of a Stock Appreciation Right upon the exercise of which the
Administrator determines to pay cash or a Performance Share or
Performance Unit which the Administrator can determine to pay in
cash, the fair market value of the consideration received in the
merger or Change in Control by holders of Common Stock for each
Share held on the effective date of the transaction (and if holders
were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the
Change in Control is not solely common stock of the successor
corporation, the Administrator may, with the consent of the
successor corporation, provide for the consideration to be received
upon the exercise of an Option or Stock Appreciation Right or upon
the payout of a Performance Share or Performance Unit, for each
Share subject to such Award (or in the case of Performance Units,
the number of implied shares determined by dividing the value of
the Performance Units by the per share consideration received by
holders of Common Stock in the Change in Control), to be solely
common stock of the successor corporation equal in fair market
value to the per share consideration received by holders of Common
Stock in the Change in Control.
Notwithstanding
anything in this Section 15(c) to the contrary, an Award that
vests, is earned or paid-out upon the satisfaction of one or more
Performance Goals will not be considered assumed if the Company or
its successor modifies any of such Performance Goals without the
Participant’s consent; provided, however, a modification to
such Performance Goals only to reflect the successor
corporation’s post-Change in Control corporate structure will
not be deemed to invalidate an otherwise valid Award
assumption.
16. Time
of Granting Awards. The date of grant
of an Award shall, for all purposes, be the date on which the
Administrator makes the determination granting such Award, or such
later date as is determined by the Administrator. Notice of the
determination shall be given to each Service Provider to whom an
Award is so granted within a reasonable time after the date of such
grant.
17. Amendment
and Termination of this Plan.
(a) Amendment
and Termination. The Board may at any time amend, alter,
suspend, or terminate this Plan.
(b) Stockholder
Approval. The Board shall obtain stockholder approval of any
Plan amendment to the extent necessary and desirable to comply with
Applicable Laws.
(c) Effect
of Amendment or Termination. No amendment, alteration,
suspension, or termination of this Plan shall impair the rights of
any Participant, unless otherwise mutually agreed to by and between
the Participant and the Administrator, which agreement must be in
writing and signed by the Participant and the Company. Termination
of this Plan shall not affect the Administrator’s ability to
exercise the powers granted to it hereunder with respect to Awards
granted under this Plan prior to the date of such
termination.
18. Tax
Withholding.
(a) Withholding
Requirements. Prior to the delivery of any Shares or cash
pursuant to an Award (or exercise thereof), the Company will have
the power and the right to deduct or withhold, or require a
Participant to remit to the Company, an amount sufficient to
satisfy federal, state, local, foreign, or other taxes (including
the Participant’s FICA obligation) required to be withheld
with respect to such Award (or exercise thereof).
(b) Withholding
Arrangements. The Administrator, in its sole discretion and
pursuant to such procedures as it may specify from time to time,
may permit a Participant to satisfy such tax withholding
obligation, in whole or in part by (without limitation) (i) paying
cash, (ii) electing to have the Company withhold otherwise
deliverable cash or Shares having a Fair Market Value equal to the
minimum amount required to be withheld, (iii) delivering to the
Company already-owned Shares having a Fair Market Value equal to
the amount required to be withheld, or (iv) selling a sufficient
number of Shares otherwise deliverable to the Participant through
such means as the Administrator may determine in its sole
discretion (whether through a broker or otherwise) equal to the
amount required to be withheld. The amount of the withholding
requirement will be deemed to include any amount which the
Administrator agrees may be withheld at the time the election is
made, not to exceed the amount determined by using the maximum
federal, state, or local marginal income tax rates applicable to
the Participant with respect to the Award on the date that the
amount of tax to be withheld is to be determined. The Fair Market
Value of the Shares to be withheld or delivered will be determined
as of the date that the taxes are required to be
withheld.
(c) Section
409A of the Code. Notwithstanding any contrary provision in
this Plan or an Award Agreement, if any provision of this Plan or
an Award Agreement contravenes any regulations or guidance
promulgated under Section 409A of the Code or would cause an Award
to be subject to additional taxes, accelerated taxation, interest,
and/or penalties under Section 409A of the Code, such provision of
this Plan or Award Agreement may be modified by the Administrator
without the consent of the Participant in any manner the
Administrator deems reasonable or necessary. In making such
modifications the Administrator shall attempt, but shall not be
obligated, to maintain, to the maximum extent practicable, the
original intent of the applicable provision without contravening
the provisions of Section 409A of the Code. Any payments under this
Agreement that may be excluded from Section 409A either as
separation pay due to an involuntary separation from service or as
a short-term deferral will be excluded from Section 409A to the
maximum extent possible. Moreover, any discretionary authority that
the Administrator may have pursuant to this Plan shall not be
applicable to an Award that is subject to Section 409A of the Code
to the extent such discretionary authority would contravene Section
409A of the Code or the guidance promulgated thereunder. The
Company shall use commercially reasonable efforts to implement the
provisions of this Section 19(c) in good faith; provided that
neither the Company nor the Administrator nor any of the officers,
employees, managers, directors, or representatives of the Company
Group shall have any liability to Participants with respect to this
Section 19(c).
19. Recoupment.
Notwithstanding anything in this Plan to the contrary, all Awards
granted under this Plan, any payments made under this Plan and any
Shares issued upon exercise of an Option or settlement of an Award
shall be subject to clawback or recoupment as permitted or mandated
by applicable law, rules, regulations or Company policy as enacted,
adopted or modified from time to time. For the avoidance of doubt,
this provision shall apply to any gains realized upon exercise or
settlement of an Award or disposition of Shares received upon the
exercise or settlement of an Award.
20. Conditions
Upon Issuance of Shares.
(a) Legal
Compliance. Shares shall not be issued pursuant to the
exercise of an Award unless the exercise of such Award and the
issuance and delivery of such Shares shall comply with Applicable
Laws and shall be further subject to the approval of counsel for
the Company with respect to such compliance.
(b) Investment
Representations. As a condition to the exercise of an Award,
the Administrator may require the person exercising such Award to
represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is
required.
21. No
Effect on Employment or Service. Neither this Plan
nor any Award will confer upon a Participant any right with respect
to continuing the Participant’s relationship as a Service
Provider with the Company, nor will they interfere in any way with
the Participant’s right or the Company’s right to
terminate such relationship at any time, with or without cause, to
the extent permitted by Applicable Laws.
22. Inability
to Obtain Authority. The inability of
the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company’s
counsel to be necessary to the lawful issuance and sale of any
Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
23. Reservation
of Shares. The Company,
during the term of this Plan, shall at all times reserve and keep
available such number of Shares as shall be sufficient to satisfy
the requirements of this Plan.
24. Stockholder
Approval. This Plan shall
be subject to approval by the stockholders of the Company within
twelve (12) months after the date this Plan is approved by the
Board. Such stockholder approval shall be obtained in the degree
and manner required under Applicable Laws.
25. Governing
Law . The validity and
enforceability of this Plan shall be governed by and construed in
accordance with the laws of the State of California without regard
to otherwise governing principles of conflicts of law.