Attached files
file | filename |
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10-K - FORM 10-K - Ardea Biosciences, Inc./DE | a55456e10vk.htm |
EX-32.1 - EX-32.1 - Ardea Biosciences, Inc./DE | a55456exv32w1.htm |
EX-23.1 - EX-23.1 - Ardea Biosciences, Inc./DE | a55456exv23w1.htm |
EX-31.2 - EX-31.2 - Ardea Biosciences, Inc./DE | a55456exv31w2.htm |
EX-31.1 - EX-31.1 - Ardea Biosciences, Inc./DE | a55456exv31w1.htm |
Exhibit 10.10
ARDEA BIOSCIENCES, INC.
2004 STOCK INCENTIVE PLAN
(As Amended and Restated Effective February 10, 2006)
(As Amended December 21, 2006)
(As Amended and Restated Effective June 29, 2007)
(As Amended and Restated Effective December 16, 2009)
ARTICLE ONE
GENERAL PROVISIONS
I. PURPOSE OF THE PLAN
This 2004 Stock Incentive Plan is intended to promote the interests of Ardea Biosciences,
Inc., a Delaware corporation, by providing eligible persons in the Corporations service with the
opportunity to acquire a proprietary interest, or otherwise increase their proprietary interest, in
the Corporation as an incentive for them to remain in such service.
Capitalized terms shall have the meanings assigned to such terms in the attached Appendix or
as otherwise defined in the Plan.
II. STRUCTURE OF THE PLAN
A. The Plan shall be divided into three separate equity incentive programs:
1. the Discretionary Grant Program under which eligible persons may, at the discretion
of the Plan Administrator, be granted options to purchase shares of Common Stock or stock
appreciation rights tied to the value of such Common Stock;
2. the Stock Issuance Program under which eligible persons may, at the discretion of
the Plan Administrator, be issued shares of Common Stock pursuant to restricted stock
awards, restricted stock units or other share right awards which vest upon the completion of
a designated service period or the attainment of pre-established performance milestones, or
such shares of Common Stock may be issued through direct purchase or as a bonus for services
rendered the Corporation (or any Parent or Subsidiary); and
3. the Automatic Option Grant Program under which eligible non-Employee Board members
will automatically receive option grants at designated intervals over their period of
continued Board service.
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B. The provisions of Articles One and Five shall apply to all equity programs under the Plan
and shall govern the interests of all persons under the Plan.
III. ADMINISTRATION OF THE PLAN
A. The Board shall serve as the Plan Administrator.
B. The Plan Administrator shall have full power and authority (subject to the provisions of
the Plan) to establish such rules and regulations as it may deem appropriate for proper
administration of the Plan and to make such determinations under, and issue such interpretations
of, the provisions of the Plan and any outstanding stock options, stock appreciation rights, stock
issuances or other stock-based awards thereunder as it may deem necessary or advisable. Decisions
of the Plan Administrator shall be final and binding on all parties who have an interest in the
Plan or any stock option, stock appreciation right, stock issuance or other stock-based award
thereunder.
C. Service as the Plan Administrator shall constitute service as a Board member, and the
individuals serving in that capacity shall accordingly be entitled to full indemnification and
reimbursement as Board members for their service as Plan Administrator. No individual serving in
his or her capacity as Plan Administrator shall be liable for any act or omission made in good
faith with respect to the Plan or any stock option, stock appreciation right, stock issuance or
other stock-based award made or granted under the Plan.
IV. ELIGIBILITY
A. The persons eligible to participate in the Discretionary Grant and Stock Issuance Programs
are as follows:
1. | Employees; | ||
2. | non-Employee members of the Board or the board of directors of any Parent or Subsidiary; and | ||
3. | consultants and other independent advisors who provide services to the Corporation (or any Parent or Subsidiary). |
B. The Plan Administrator shall have full authority to determine, (i) with respect to the
grant of options or stock appreciation rights under the Discretionary Grant Program, which eligible
persons are to receive such grants, the time or times when those grants are to be made, the number
of shares to be covered by each such grant, the status of a granted option as either an Incentive
Option or a Non-Statutory Option, the time or times when each option or stock appreciation right is
to become exercisable, the vesting schedule (if any) applicable to the option or stock appreciation
right and the maximum term for which the option or stock appreciation right is to remain
outstanding and (ii) with respect to stock issuances or other stock-based awards under the Stock
Issuance Program, which eligible persons are to receive such issuances or awards, the time or times
when the issuances or awards are to be made, the number of shares subject to each such issuance or
award, the vesting schedule (if any)
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applicable to the shares which are the subject of each issuance or award and the consideration
for such shares.
C. The Plan Administrator shall have the absolute discretion either to grant options or stock
appreciation rights in accordance with the Discretionary Grant Program or to effect stock issuances
and other stock-based awards in accordance with the Stock Issuance Program.
D. The individuals who shall be eligible to participate in the Automatic Option Grant Program
shall be limited to (i) those individuals who first become non-Employee Board members on or after
the Plan Effective Date, whether through appointment by the Board or election by the Corporations
stockholders, and (ii) those individuals who continue to serve as non-Employee Board members after
the Plan Effective Date. A non-Employee Board member who has previously been an Employee shall not
be eligible to receive an option grant under the Automatic Option Grant Program at the time he or
she first becomes a non-Employee Board member, but shall be eligible to receive periodic option
grants under the Automatic Option Grant Program while he or she continues to serve as a
non-Employee Board member.
V. STOCK SUBJECT TO THE PLAN
A. The stock issuable under the Plan shall be shares of authorized but unissued or reacquired
Common Stock, including shares repurchased by the Corporation on the open market. The number of
shares of Common Stock initially reserved for issuance over the term of the Plan shall not exceed
2,050,000 shares. Such reserve shall consist of (i) the number of shares estimated to be
transferred to this Plan from the Predecessor Plan, including the shares subject to outstanding
options under the Predecessor Plan to be transferred to this Plan, upon stockholder approval of the
Plan at the 2004 Annual Meeting, (ii) plus an additional increase of approximately 1,200,000
shares.
B. The number of shares of Common Stock available for issuance under the Plan shall
automatically increase on the first trading day of January each calendar year during the term of
the Plan, beginning with calendar year 2005, by an amount equal to five percent of the sum of the
following share numbers, calculated as of the last trading day in December of the immediately
preceding calendar year: (i) the total number of shares of Common Stock outstanding on that date
and (ii) the number of shares of Common Stock into which the outstanding shares of the
Corporations preferred stock are convertible on that date. In no event shall any such annual
increase exceed 2,000,000 shares.
C. No one person participating in the Plan may receive stock options, stand-alone stock
appreciation rights, direct stock issuances (whether vested or unvested) or other stock-based
awards (whether in the form of restricted stock units or other share-right awards) for more than an
aggregate of 1,000,000 shares of Common Stock per calendar year.
D. Shares of Common Stock subject to outstanding options (including options transferred to
this Plan from the Predecessor Plan) or other awards made under the Plan shall be available for
subsequent issuance under the Plan to the extent (i) those options or awards expire or terminate
for any reason prior to the issuance of the shares of Common Stock subject to
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those options or awards or (ii) the awards are cancelled in accordance with the
exchange/repricing provisions of Article Two. Unvested shares issued under the Plan and
subsequently forfeited or repurchased by the Corporation, at a price per share not greater than the
original issue price paid per share, pursuant to the Corporations repurchase rights under the Plan
shall be added back to the number of shares of Common Stock reserved for issuance under the Plan
and shall accordingly be available for subsequent reissuance. Should the exercise price of an
option under the Plan be paid with shares of Common Stock, then the authorized reserve of Common
Stock under the Plan shall be reduced only by the net number of shares issued under the exercised
stock option. Should shares of Common Stock otherwise issuable under the Plan be withheld by the
Corporation in satisfaction of the withholding taxes incurred in connection with the exercise of an
option or stock appreciation right or the issuance of fully-vested shares under the Stock Issuance
Program, then the number of shares of Common Stock available for issuance under the Plan shall be
reduced only by the net number of shares issued under the exercised stock option or stock
appreciation right or the net number of fully-vested shares issued under the Stock Issuance
Program. Such withholding shall in effect be treated under the Plan as a cash bonus, payable
directly to the applicable taxing authorities on behalf of the individual concerned, in an amount
equal to the Fair Market Value of the withheld shares, and not as an issuance and immediate
repurchase of those shares.
E. If any change is made to the Common Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporations receipt of consideration, appropriate
adjustments shall be made by the Plan Administrator to (i) the maximum number and/or class of
securities issuable under the Plan; (ii) the maximum number and/or class of securities for which
any one person may be granted stock options, stand-alone stock appreciation rights, direct stock
issuances and other stock-based awards under the Plan per calendar year; (iii) the number and/or
class of securities for which grants are subsequently to be made under the Automatic Option Grant
Program to new and continuing non-Employee Board members for service on the Board or any Board
committee; (iv) the number and/or class of securities and the exercise or base price per share in
effect under each outstanding option or stock appreciation right under the Plan; (v) the number
and/or class of securities subject to each outstanding restricted stock unit or other stock-based
award under the Plan; (vi) the number and/or class of securities and exercise price per share in
effect under each outstanding option transferred to this Plan from the Predecessor Plan; and
(vii) the maximum number and/or class of securities by which the share reserve is to increase
automatically each calendar year pursuant to the provisions of Section V.B of this Article One.
Such adjustments to the outstanding options, stock appreciation rights or other stock-based awards
are to be effected in a manner which shall preclude the enlargement or dilution of rights and
benefits under those options, stock appreciation rights or other stock-based awards. The
adjustments determined by the Plan Administrator shall be final, binding and conclusive.
F. Outstanding awards granted pursuant to the Plan shall in no way affect the right of the
Corporation to adjust, reclassify, reorganize or otherwise change its capital or business structure
or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business
or assets.
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ARTICLE TWO
DISCRETIONARY GRANT PROGRAM
I. OPTION TERMS
Each option shall be evidenced by one or more documents in the form approved by the Plan
Administrator; provided, however, that each such document shall comply with the terms
specified below. Each document evidencing an Incentive Option shall, in addition, be subject to
the provisions of the Plan applicable to Incentive Options.
A. Exercise Price.
1. The exercise price per share shall be fixed by the Plan Administrator but shall not be less
than 100% of the Fair Market Value per share of Common Stock on the option grant date.
2. The exercise price shall become immediately due upon exercise of the option and shall,
subject to the provisions of the documents evidencing the option, be payable in one or more of the
following forms:
(i) cash or check made payable to the Corporation;
(ii) shares of Common Stock valued at Fair Market Value on the Exercise Date;
or
(iii) to the extent the option is exercised for vested shares, through a
special sale and remittance procedure pursuant to which the Optionee shall
concurrently provide irrevocable instructions to (a) a brokerage firm (reasonably
satisfactory to the Corporation for purposes of administering such procedure in
compliance with the Corporations pre-clearance/pre-notification policies) to effect
the immediate sale of the purchased shares and remit to the Corporation, out of the
sale proceeds available on the settlement date, sufficient funds to cover the
aggregate exercise price payable for the purchased shares plus all applicable income
and employment taxes required to be withheld by the Corporation by reason of such
exercise and (b) the Corporation to deliver the certificates for the purchased
shares directly to such brokerage firm in order to complete the sale.
Except to the extent such sale and remittance procedure is utilized, payment of the exercise
price for the purchased shares must be made on the Exercise Date.
B. Exercise and Term of Options. Each option shall be exercisable at such time or
times, during such period and for such number of shares as shall be determined by the Plan
Administrator and set forth in the documents evidencing the option. However, no option shall have
a term in excess of ten years measured from the option grant date.
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C. Effect of Termination of Service.
1. The following provisions shall govern the exercise of any options granted pursuant to the
Discretionary Grant Program that are outstanding at the time of the Optionees cessation of
Service:
(i) Any option outstanding at the time of the Optionees cessation of Service
shall remain exercisable for such period of time thereafter as shall be determined
by the Plan Administrator and set forth in the documents evidencing the option, but
no such option shall be exercisable after the expiration of the option term.
However, in the event an Optionee should cease Employee status by reason of
Retirement, Permanent Disability or death, any outstanding option granted to such
Optionee under the Discretionary Grant Program shall remain exercisable for the
remainder of the option term.
(ii) Any option outstanding at the time of the Optionees death and exercisable
in whole or in part at that time may be subsequently exercised by the personal
representative of the Optionees estate or by the person or persons to whom the
option is transferred pursuant to the Optionees will or the laws of inheritance or
by the Optionees designated beneficiary or beneficiaries of that option if a
beneficiary or beneficiaries are designated pursuant to Section I.F. of this Article
Two.
(iii) Should the Optionees Service be terminated for Misconduct or should the
Optionee otherwise engage in Misconduct while holding one or more outstanding
options granted under this Article Two, then all options held by the Optionee shall
terminate immediately and cease to be outstanding.
(iv) During the applicable post-Service exercise period, the option may not be
exercised in the aggregate for more than the number of vested shares for which that
option is exercisable on the Exercise Date. No additional shares shall vest under
the option following the Optionees cessation of Service, except to the extent (if
any) specifically authorized by the Plan Administrator in its sole discretion
pursuant to an express written agreement with the Optionee. Upon the expiration of
the applicable exercise period or (if earlier) upon the expiration of the option
term, the option shall terminate and cease to be outstanding for any shares for
which the option has not been exercised.
2. The Plan Administrator shall have complete discretion, exercisable either at the time an
option is granted or at any time while the option remains outstanding, to:
(i) extend the period of time for which the option is to remain exercisable
following the Optionees cessation of Service from the limited exercise period
otherwise in effect for that option to such greater period of time as the Plan
Administrator shall deem appropriate, but in no event beyond the expiration of the
option term; and
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(ii) permit the option to be exercised, during the applicable post-Service
exercise period, not only with respect to the number of vested shares of Common
Stock for which such option is exercisable at the time of the Optionees cessation
of Service but also with respect to one or more additional installments in which the
Optionee would have vested had the Optionee continued in Service.
D. Stockholder Rights. The holder of an option shall have no stockholder rights with
respect to the shares subject to the option until such person has exercised the option, paid the
exercise price and become a holder of record of Common Stock.
E. Repurchase Rights. The Plan Administrator shall have the discretion to grant
options which are exercisable for unvested shares of Common Stock. Should the Optionee cease
Service while such shares are unvested, the Corporation shall have the right to repurchase any or
all of those unvested shares at a price per share equal to the lower of (i) the exercise price paid
per share or (ii) the Fair Market Value per share of Common Stock at the time of repurchase. The
terms upon which such repurchase right shall be exercisable (including the period and procedure for
exercise and the appropriate vesting schedule for the purchased shares) shall be established by the
Plan Administrator and set forth in the document evidencing such repurchase right.
F. Limited Transferability of Options. During the lifetime of the Optionee, options
shall be exercisable only by the Optionee and shall not be assignable or transferable other than by
will or by the laws of inheritance following the Optionees death. However, the Plan Administrator
may permit an assignment, in whole or in part, during the Optionees lifetime, of a Non-Statutory
Option, if such assignment is in connection with the Optionees estate plan and is to one or more
Family Members of the Optionee or to a trust established exclusively for the Optionee and/or one or
more such Family Members or is pursuant to a domestic relations order covering the option as
marital property. The assigned portion may only be exercised by the person or persons who acquire
a proprietary interest in the option pursuant to the assignment. The terms applicable to the
assigned portion shall be the same as those in effect for the option immediately prior to such
assignment and shall be set forth in such documents issued to the assignee as the Plan
Administrator may deem appropriate. Notwithstanding the foregoing, the Optionee may also designate
one or more persons as the beneficiary or beneficiaries of his or her outstanding options under
this Article Two, and the options shall, in accordance with such designation, automatically be
transferred to such beneficiary or beneficiaries upon the Optionees death while holding those
options. Such beneficiary or beneficiaries shall take the transferred options subject to all the
terms and conditions of the applicable agreement evidencing each such transferred option, including
(without limitation) the limited time period during which the option may be exercised following the
Optionees death.
II. INCENTIVE OPTIONS
The terms specified below shall be applicable to all Incentive Options. Except as modified by
the provisions of this Section II, all the provisions of Articles One, Two and Five shall be
applicable to Incentive Options. Options which are specifically designated as Non-Statutory
Options when issued under the Plan shall not be subject to the terms of this Section II.
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A. Eligibility. Incentive Options may only be granted to Employees.
B. Dollar Limitation. The aggregate Fair Market Value of the shares of Common Stock
(determined as of the respective date or dates of grant) for which one or more options granted to
any Employee under the Plan (or any other option plan of the Corporation or any Parent or
Subsidiary) may for the first time become exercisable as Incentive Options during any one calendar
year shall not exceed the sum of $100,000.
To the extent the Employee holds two or more Incentive Options which become exercisable for
the first time in the same calendar year, the foregoing limitation on the exercisability of such
options as Incentive Options shall be applied on the basis of the order in which such options were
granted.
C. 10% Stockholder. If any Employee to whom an Incentive Option is granted is a 10%
Stockholder, then the exercise price per share shall not be less than 110% of the Fair Market Value
per share of Common Stock on the option grant date, and the option term shall not exceed five years
measured from the option grant date.
III. STOCK APPRECIATION RIGHTS
A. Authority. The Plan Administrator shall have full power and authority, exercisable
in its sole discretion, to grant stock appreciation rights in accordance with this Section III to
selected Optionees or other individuals eligible to participate in the Discretionary Grant Program.
B. Types. Three types of stock appreciation rights shall be authorized for issuance
under this Section III: (i) tandem stock appreciation rights (Tandem Rights), (ii) stand-alone
stock appreciation rights (Stand-alone Rights) and (iii) limited stock appreciation rights
(Limited Rights).
C. Tandem Rights. The following terms and conditions shall govern the grant and
exercise of Tandem Rights.
1. One or more Optionees may be granted a Tandem Right, exercisable upon such terms and
conditions as the Plan Administrator may establish, to elect between the exercise of the underlying
option for shares of Common Stock or the surrender of that option in exchange for a distribution
from the Corporation in an amount equal to the excess of (i) the Fair Market Value (on the option
surrender date) of the number of shares in which the Optionee is at the time vested under the
surrendered option (or surrendered portion thereof) over (ii) the aggregate exercise price payable
for such vested shares.
2. No such option surrender shall be effective unless it is approved by the Plan
Administrator, either at the time of the actual option surrender or at any earlier time. If the
surrender is so approved, then the distribution to which the Optionee shall accordingly become
entitled under this Section III may be made in shares of Common Stock valued at Fair Market Value
on the option surrender date, in cash, or partly in shares and partly in cash, as the Plan
Administrator shall in its sole discretion deem appropriate.
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3. If the surrender of an option is not approved by the Plan Administrator, then the Optionee
shall retain whatever rights the Optionee had under the surrendered option (or surrendered portion
thereof) on the option surrender date and may exercise such rights at any time prior to the later
of (i) five business days after the receipt of the rejection notice or (ii) the last day on which
the option is otherwise exercisable in accordance with the terms of the instrument evidencing such
option, but in no event may such rights be exercised more than ten years after the date of the
option grant.
D. Stand-Alone Rights. The following terms and conditions shall govern the grant and
exercise of Stand-alone Rights:
1. One or more individuals eligible to participate in the Discretionary Grant Program may be
granted a Stand-alone Right not tied to any underlying option under this Discretionary Grant
Program. The Stand-alone Right shall relate to a specified number of shares of Common Stock at a
specified base price and shall be exercisable upon such terms and conditions as the Plan
Administrator may establish. In no event, however, may the Stand-alone Right have a maximum term
in excess of ten years measured from the grant date. Upon exercise of the Stand-alone Right, the
holder shall be entitled to receive a distribution from the Corporation in an amount equal to the
excess of (i) the aggregate Fair Market Value (on the exercise date) of the shares of Common Stock
underlying the exercised right over (ii) the aggregate base price in effect for those shares.
2. The number of shares of Common Stock underlying each Stand-alone Right and the base price
in effect for those shares shall be determined by the Plan Administrator in its sole discretion at
the time the Stand-alone Right is granted. In no event, however, may the base price per share be
less than the Fair Market Value per underlying share of Common Stock on the grant date. In the
event outstanding Stand-alone Rights are to be assumed in connection with a Change in Control or
otherwise continued in effect, the shares of Common Stock underlying each such Stand-alone Right
shall be adjusted immediately after such Change in Control so as to apply to the number and class
of securities into which those shares of Common Stock would have been converted in consummation of
such Change in Control had those shares actually been outstanding at that time. Appropriate
adjustments to reflect such Change in Control shall also be made to the base price per share in
effect under each outstanding Stand-alone Right, provided the aggregate base price shall
remain the same. To the extent the actual holders of the Corporations outstanding Common Stock
receive cash consideration for their Common Stock in consummation of the Change in Control, the
successor corporation may, in connection with the assumption or continuation of the outstanding
Stand-alone Rights under the Discretionary Grant Program, substitute, for the securities underlying
those assumed rights, one or more shares of its own common stock with a fair market value
equivalent to the cash consideration paid per share of Common Stock in the Change in Control.
3. Stand-alone Rights shall be subject to the same transferability restrictions applicable to
Non-Statutory Options and may not be transferred during the holders lifetime, except if such
assignment is in connection with the holders estate plan and is to one or more Family Members of
the holder or to a trust established for the holder and/or one or more such Family Members or
pursuant to a domestic relations order covering the Stand-alone Right as marital property. In
addition, one or more beneficiaries may be designated for an outstanding
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Stand-alone Right in accordance with substantially the same terms and provisions as set forth
in Section I.F of this Article Two.
4. The distribution with respect to an exercised Stand-alone Right may be made in shares of
Common Stock valued at Fair Market Value on the exercise date, in cash, or partly in shares and
partly in cash, as the Plan Administrator shall in its sole discretion deem appropriate.
5. The holder of a Stand-alone Right shall have no stockholder rights with respect to the
shares subject to the Stand-alone Right unless and until such person shall have exercised the
Stand-alone Right and become a holder of record of the shares of Common Stock issued upon the
exercise of such Stand-alone Right.
E. Limited Rights. The following terms and conditions shall govern the grant and
exercise of Limited Rights:
1. One or more Section 16 Insiders may, in the Plan Administrators sole discretion, be
granted Limited Rights with respect to their outstanding options under this Article Two.
2. Upon the occurrence of a Hostile Tender-Offer, the Section 16 Insider shall have the
unconditional right (exercisable for a thirty (30)-day period following such Hostile Tender-Offer)
to surrender each option with such a Limited Right to the Corporation. The Section 16 Insider
shall in return be entitled to a cash distribution from the Corporation in an amount equal to the
excess of (i) the Tender-Offer Price of the number of shares in which the Optionee is at the time
vested under the surrendered option (or surrendered portion thereof) over (ii) the aggregate
exercise price payable for those vested shares. Such cash distribution shall be made within five
days following the option surrender date.
3. The Plan Administrator shall pre-approve, at the time such Limited Right is granted, the
subsequent exercise of that right in accordance with the terms of the grant and the provisions of
this Section III. No additional approval of the Plan Administrator or the Board shall be required
at the time of the actual option surrender and cash distribution. Any unsurrendered portion of the
option shall continue to remain outstanding and become exercisable in accordance with the terms of
the instrument evidencing such grant.
F. Post-Service Exercise. The provisions governing the exercise of Tandem,
Stand-alone and Limited Stock Appreciation Rights following the cessation of the recipients
Service shall be substantially the same as those set forth in Section I.C of this Article Two for
the options granted under the Discretionary Grant Program.
G. Net Counting. Upon the exercise of any Tandem, Stand-alone or Limited Right under
this Section III, the share reserve under Section V of Article One shall only be reduced by the net
number of shares actually issued by the Corporation upon such exercise, and not by the gross number
of shares as to which such Tandem, Stand-alone or Limited Right is exercised. Accordingly, upon the
exercise of any such stock appreciation right, the number of shares available for issuance under
the Plan shall increase by the amount by which the shares
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subject to that exercised stock appreciation right exceeds the number of shares actually
issued in connection with the exercise.
IV. CHANGE IN CONTROL/HOSTILE TAKE-OVER
A. In the event of a Change in Control, each outstanding option or stock appreciation right
under the Discretionary Grant Program shall automatically accelerate so that each such option or
stock appreciation right shall, immediately prior to the effective date of that Change in Control,
become exercisable as to all the shares of Common Stock at the time subject to such option or stock
appreciation right and may be exercised as to any or all of those shares as fully vested shares of
Common Stock. However, except as otherwise provided in Section IV.B of this Article Two, an
outstanding option or stock appreciation right shall not become exercisable on such an accelerated
basis if and to the extent: (i) such option or stock appreciation right is to be assumed by the
successor corporation (or parent thereof) or is otherwise to continue in full force and effect
pursuant to the terms of the Change in Control or (ii) such option or stock appreciation right is
to be replaced with a cash incentive program of the successor corporation which preserves the
spread existing at the time of the Change in Control on any shares as to which the option or stock
appreciation right is not otherwise at that time exercisable and provides for subsequent payout of
that spread in accordance with the same exercise/vesting schedule applicable to those shares or
(iii) the acceleration of such option or stock appreciation right is subject to other limitations
imposed by the Plan Administrator at the time of the grant.
B. Notwithstanding Section IV.A of this Article Two, the following special vesting
acceleration provisions shall be in effect for all options and stock appreciation rights granted
under the Discretionary Grant Program:
1. Each outstanding option or stock appreciation right under this Discretionary Grant
Program which is at the time held by a then current Employee shall, immediately prior to the
effective date of a Change in Control, automatically vest and become exercisable as to 50%
of the total number of unvested shares of Common Stock at the time subject to such
outstanding option or stock appreciation right, and each such option or stock appreciation
right may accordingly be exercised as to any or all of those accelerated shares as fully
vested shares of Common Stock.
2. Should an Executives Service terminate by reason of an Involuntary Termination
within 3 months before or within 13 months following a Change in Control, then each outstanding option or stock
appreciation right under this Discretionary Grant Program held by that Executive shall
immediately vest and become exercisable as to all the securities at the time subject to such
outstanding option or stock appreciation right, and each such option or stock appreciation
right may be exercised as to any or all of those securities as fully-vested shares.
3. Each outstanding option or stock appreciation right under this Discretionary Grant
Program which is at the time held by a then current non-Employee Board member shall,
immediately prior to the effective date of a Change in Control, automatically vest and
become exercisable as to all the unvested shares of Common
11
Stock at the time subject to such outstanding option or stock appreciation right, and
each such option or stock appreciation right may accordingly be exercised for any or all of
those shares as fully vested shares of Common Stock.
C. All outstanding repurchase rights under the Discretionary Grant Program shall automatically
terminate, and the shares of Common Stock subject to those terminated rights shall immediately vest
in full, in the event of a Change in Control, except to the extent: (i) those repurchase rights are
to be assigned to the successor corporation (or parent thereof) or are otherwise to continue in
full force and effect pursuant to the terms of the Change in Control or (ii) such accelerated
vesting is precluded by other limitations imposed by the Plan Administrator at the time the
repurchase right is issued.
D. Immediately following the consummation of the Change in Control, all outstanding options or
stock appreciation rights under the Discretionary Grant Program shall terminate and cease to be
outstanding, except to the extent assumed by the successor corporation (or parent thereof) or
otherwise continued in full force and effect pursuant to the terms of the Change in Control.
E. Each option which is assumed in connection with a Change in Control or otherwise continued
in effect shall be appropriately adjusted, immediately after such Change in Control, to apply to
the number and class of securities which would have been issuable to the Optionee in consummation
of such Change in Control had the option been exercised immediately prior to such Change in
Control. Appropriate adjustments to reflect such Change in Control shall also be made to (i) the
exercise price payable per share under each outstanding option, provided the aggregate
exercise price payable for such securities shall remain the same, (ii) the maximum number and/or
class of securities available for issuance over the remaining term of the Plan and (iii) the
maximum number and/or class of securities for which any one person may be granted stock options,
stand-alone stock appreciation rights, direct stock issuances and other stock-based awards under
the Plan per calendar year and (iv) the maximum number and/or class of securities by which the
share reserve is to increase automatically each calendar year. To the extent the actual holders of
the Corporations outstanding Common Stock receive cash consideration for their Common Stock in
consummation of the Change in Control, the successor corporation may, in connection with the
assumption or continuation of the outstanding options under the Discretionary Grant Program,
substitute one or more shares of its own common stock with a fair market value equivalent to the
cash consideration paid per share of Common Stock in such Change in Control.
F. The Plan Administrator shall have the discretionary authority to structure one or more
outstanding options or stock appreciation rights under the Discretionary Grant Program so that
those options or stock appreciation rights shall, immediately prior to the effective date of a
Change in Control, become exercisable as to all the shares of Common Stock at the time subject to
those options or stock appreciation rights and may be exercised as to any or all of those shares as
fully vested shares of Common Stock, whether or not those options or stock appreciation rights are
to be assumed in the Change in Control or otherwise continued in effect. In addition, the Plan
Administrator shall have the discretionary authority to structure one or more of the Corporations
repurchase rights under the Discretionary Grant Program so that those rights
12
shall immediately terminate upon the consummation of the Change in Control, and the shares
subject to those terminated rights shall thereupon vest in full.
G. The Plan Administrator shall have full power and authority to structure one or more
outstanding options or stock appreciation rights under the Discretionary Grant Program so that
those options or stock appreciation rights shall become exercisable as to all the shares of Common
Stock at the time subject to those options or stock appreciation rights in the event the Optionees
Service is subsequently terminated by reason of an Involuntary Termination within a designated
period following the effective date of a Change in Control in which those options or stock
appreciation rights do not otherwise fully accelerate. In addition, the Plan Administrator may
structure one or more of the Corporations repurchase rights so that those rights shall immediately
terminate with respect to any shares held by the Optionee at the time of such Involuntary
Termination, and the shares subject to those terminated repurchase rights shall accordingly vest in
full at that time.
H. The Plan Administrator shall have the discretionary authority to structure one or more
outstanding options or stock appreciation rights under the Discretionary Grant Program so that
those options or stock appreciation rights shall, immediately prior to the effective date of a
Hostile Take-Over, become exercisable as to all the shares of Common Stock at the time subject to
those options or stock appreciation rights and may be exercised as to any or all of those shares as
fully vested shares of Common Stock. In addition, the Plan Administrator shall have the
discretionary authority to structure one or more of the Corporations repurchase rights under the
Discretionary Grant Program so that those rights shall terminate automatically upon the
consummation of such Hostile Take-Over, and the shares subject to those terminated rights shall
thereupon vest in full. Alternatively, the Plan Administrator may condition the automatic
acceleration of one or more outstanding options or stock appreciation rights under the
Discretionary Grant Program and the termination of one or more of the Corporations outstanding
repurchase rights under such program upon the subsequent termination of the Optionees Service by
reason of an Involuntary Termination within a designated period following the effective date of
such Hostile Take-Over.
I. The portion of any Incentive Option accelerated in connection with a Change in Control or
Hostile Take-Over shall remain exercisable as an Incentive Option only to the extent the applicable
$100,000 limitation is not exceeded. To the extent such dollar limitation is exceeded, the
accelerated portion of such option shall be exercisable as a Non-Statutory Option under the Federal
tax laws.
J. Notwithstanding anything to the contrary set forth herein, any stock appreciation rights
granted under the Plan that are not exempt from the requirements of Section 409A of the Code shall
contain such provisions so that such stock appreciation rights 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 agreement evidencing such stock appreciation right. For example, such
restrictions may include, without limitation, a requirement that a stock appreciation right that is
to be paid wholly or partly in cash must be exercised and paid in accordance with a fixed
pre-determined schedule.
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V. EXCHANGE/REPRICING PROGRAMS
A. The Plan Administrator shall have the authority to effect, at any time and from time to
time, with the consent of the affected holders but without any requirement for stockholder
approval, the cancellation of any or all outstanding options or stock appreciation rights under the
Discretionary Grant Program (including outstanding options transferred from the Predecessor Plan)
and to grant in exchange one or more of the following: (i) new options or stock appreciation rights
covering the same or a different number of shares of Common Stock but with an exercise or base
price per share not less than the Fair Market Value per share of Common Stock on the new grant date
or (ii) cash or shares of Common Stock, whether vested or unvested, equal in value to the value of
the cancelled options or stock appreciation rights.
B. The Plan Administrator shall also have the authority, exercisable at any time and from time
to time, with the consent of the affected holders but without any requirement for stockholder
approval, to reduce the exercise or base price of one or more outstanding options or stock
appreciation rights to the then current Fair Market Value per share of Common Stock or issue new
options or stock appreciation rights with a lower exercise or base price in immediate cancellation
of outstanding options or stock appreciation rights with a higher exercise or base price.
ARTICLE THREE
STOCK ISSUANCE PROGRAM
I. STOCK ISSUANCE TERMS
Shares of Common Stock may be issued under the Stock Issuance Program, either as vested or
unvested shares, through direct and immediate issuances without any intervening option grants.
Each such stock issuance shall be evidenced by a Stock Issuance Agreement that complies with the
terms specified below. Shares of Common Stock may also be issued under the Stock Issuance Program
pursuant to share right awards or restricted stock units which entitle the recipients to receive
the shares underlying those awards or units upon the attainment of designated performance goals or
the satisfaction of specified Service requirements or upon the expiration of a designated time
period following the vesting of those awards or units.
A. Issue Price.
1. The issue price per share shall be fixed by the Plan Administrator, but shall not be less
than 100% of the Fair Market Value per share of Common Stock on the issuance date.
2. Shares of Common Stock may be issued under the Stock Issuance Program for any of the
following items of consideration which the Plan Administrator may deem appropriate in each
individual instance:
(i) cash or check made payable to the Corporation;
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(ii) past services rendered to the Corporation (or any Parent or Subsidiary);
or
(iii) any other valid consideration under the Delaware General Corporation Law.
B. Vesting Provisions.
1. Shares of Common Stock issued under the Stock Issuance Program may, in the discretion of
the Plan Administrator, be fully and immediately vested upon issuance or may vest in one or more
installments over the Participants period of Service or upon the attainment of specified
performance objectives. The elements of the vesting schedule applicable to any unvested shares of
Common Stock issued under the Stock Issuance Program shall be determined by the Plan Administrator
and incorporated into each Stock Issuance Agreement. Shares of Common Stock may also be issued
under the Stock Issuance Program pursuant to share right awards or restricted stock units which
entitle the recipients to receive the shares underlying those awards or units upon the attainment
of designated performance goals or the satisfaction of specified Service requirements or upon the
expiration of a designated time period following the vesting of those awards or units, including
(without limitation) a deferred distribution date following the termination of the Participants
Service. 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 Participants 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.
2. The Plan Administrator shall also have the discretionary authority, consistent with Code
Section 162(m), to structure one or more stock issuances or restricted stock unit or share right
awards so that the shares of Common Stock subject to those issuances or awards shall vest (or vest
and become issuable) upon the achievement of certain pre-established corporate performance goals
based on one or more of the following criteria: (i) return on total stockholder equity;
(ii) earnings per share of Common Stock; (iii) net income (before or after taxes); (iv) earnings
before interest, taxes, depreciation and amortization; (v) sales or revenue targets; (vi) return on
assets, capital or investment; (vii) cash flow: (viii) market share; (ix) cost reduction goals;
(x) budget comparisons; (xi) measures of customer satisfaction; (xii) any combination of, or a
specified increase in, any of the foregoing; (xiii) implementation or completion of projects or
processes strategic or critical to the Corporations business operations; (xiv) achievement of
advances in research; (xv) new product development; (xvi) development of products to pre-clinical
phase; (xvii) commencement, advancement or completion of clinical trials for a product; (xviii) FDA
or other regulatory body approval for commercialization of products; and (xix) the formation of
joint ventures, research or development collaborations, or the completion of other corporate
transactions intended to enhance the Corporations revenue or profitability or expand its customer
base. In addition, such performance goals may be based upon the attainment of specified levels of
the Corporations performance under one or more of the measures described above relative to the
performance of other entities and may also be based on the performance of any of the Corporations
business units or divisions or any Parent or
15
Subsidiary. Performance goals may include a minimum threshold level of performance below
which no award will be earned, levels of performance at which specified portions of an award will
be earned and a maximum level of performance at which an award will be fully earned.
3. Any new, substituted or additional securities or other property (including money paid other
than as a regular cash dividend) which the Participant may have the right to receive with respect
to the Participants unvested shares of Common Stock by reason of any stock dividend, stock split,
recapitalization, combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporations receipt of consideration shall be
issued subject to (i) the same vesting requirements applicable to the Participants unvested shares
of Common Stock and (ii) such escrow arrangements as the Plan Administrator shall deem appropriate.
4. The Participant shall have full stockholder rights with respect to any shares of Common
Stock issued to the Participant under the Stock Issuance Program, whether or not the Participants
interest in those shares is vested. Accordingly, the Participant shall have the right to vote such
shares and to receive any regular cash dividends paid on such shares. The Participant shall not
have any stockholder rights with respect to the shares of Common Stock subject to a restricted
stock unit or share right award until that award vests and the shares of Common Stock are actually
issued thereunder. However, dividend-equivalent units may be paid or credited, either in cash or
in actual or phantom shares of Common Stock, on outstanding restricted stock unit or share right
awards, subject to such terms and conditions as the Plan Administrator may deem appropriate.
5. Should the Participant cease to remain in Service while holding one or more unvested shares
of Common Stock issued under the Stock Issuance Program or should the performance objectives not be
attained with respect to one or more such unvested shares of Common Stock, then those shares shall
be immediately surrendered to the Corporation for cancellation, and the Participant shall have no
further stockholder rights with respect to those shares. To the extent the surrendered shares were
previously issued to the Participant for consideration paid in cash or cash equivalent, the
Corporation shall repay to the Participant the lower of (i) the cash consideration paid for the
surrendered shares or (ii) the Fair Market Value of those shares at the time of cancellation.
6. The Plan Administrator may in its discretion waive the surrender and cancellation of one or
more unvested shares of Common Stock which would otherwise occur upon the cessation of the
Participants Service or the non-attainment of the performance objectives applicable to those
shares. Any such waiver shall result in the immediate vesting of the Participants interest in the
shares of Common Stock as to which the waiver applies. Such waiver may be effected at any time,
whether before or after the Participants cessation of Service or the attainment or non-attainment
of the applicable performance objectives. However, no vesting requirements tied to the attainment
of performance objectives may be waived with respect to shares which were intended at the time of
issuance to qualify as performance-based compensation under Code Section 162(m).
7. Outstanding share right awards or restricted stock units under the Stock Issuance Program
shall automatically terminate, and no shares of Common Stock shall
16
actually be issued in satisfaction of those awards or units, if the performance goals or
Service requirements established for such awards or units are not attained or satisfied. The Plan
Administrator, however, shall have the discretionary authority to issue vested shares of Common
Stock under one or more outstanding share right awards or restricted stock units as to which the
designated performance goals or Service requirements have not been attained or satisfied. However,
no vesting requirements tied to the attainment of performance goals may be waived with respect to
awards or units which were intended, at the time those awards or units were granted, to qualify as
performance-based compensation under Code Section 162(m).
C. Compliance with Section 409A of the Code.
Notwithstanding anything to the contrary set forth herein, any restricted stock unit 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 agreement evidencing such restricted stock unit. 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 vests must be issued in accordance with a
fixed pre-determined schedule.
II. CHANGE IN CONTROL/HOSTILE TAKE-OVER
A. All of the Corporations outstanding repurchase rights under the Stock Issuance Program
shall terminate automatically, and all the shares of Common Stock subject to those terminated
rights shall immediately vest in full, in the event of any Change in Control, except to the extent
(i) those repurchase rights are to be assigned to the successor corporation (or parent thereof) or
are otherwise to continue in full force and effect pursuant to the terms of the Change in Control
or (ii) such accelerated vesting is precluded by other limitations imposed in the Stock Issuance
Agreement.
B. Each outstanding restricted stock unit or share right award assumed in connection with a
Change in Control or otherwise continued in effect shall be adjusted immediately after the
consummation of that Change in Control so as to apply to the number and class of securities into
which the shares of Common Stock subject to the award immediately prior to the Change in Control
would have been converted in consummation of such Change in Control had those shares actually been
outstanding at that time.
C. The Plan Administrator shall have the discretionary authority to structure one or more
unvested stock issuances or one or more restricted stock unit or other share right awards under the
Stock Issuance Program so that the shares of Common Stock subject to those issuances or awards
shall automatically vest (or vest and become issuable) in whole or in part immediately upon the
occurrence of a Change in Control or upon the subsequent termination of the Participants Service
by reason of an Involuntary Termination within a designated period following the effective date of
the Change in Control.
D. The Plan Administrator shall also have the discretionary authority to structure one or more
unvested stock issuances or one or more restricted stock unit or other share
17
right awards under the Stock Issuance Program so that the shares of Common Stock subject to
those issuances or awards shall automatically vest (or vest and become issuable) in whole or in
part immediately upon the occurrence of a Hostile Take-Over or upon the subsequent termination of
the Participants Service by reason of an Involuntary Termination within a designated period
following the effective date of that Hostile Take-Over.
E. The Plan Administrators authority under Paragraphs C and D of this Section II shall also
extend to any stock issuances, restricted stock units or other share right awards intended to
qualify as performance-based compensation under Code Section 162(m), even though the automatic
vesting of those issuances, units or awards pursuant to Paragraph C or D of this Section II may
result in their loss of performance-based status under Code Section 162(m).
ARTICLE FOUR
AUTOMATIC OPTION GRANT PROGRAM
I. OPTION TERMS
A. Automatic Grants. Option grants shall be made pursuant to the Automatic Option
Grant Program in effect under this Plan as follows:
Initial Grant: Each individual who is first elected or appointed as a non-Employee Board
member at any time on or after the Plan Effective Date shall automatically be granted, on the date
of such initial election or appointment, a Non-Statutory Option to purchase 25,000 shares of Common
Stock, provided that individual has not previously been an Employee.
Annual Grants:
1. On February 13, 2006, each individual serving as a non-Employee Board member on such date
shall receive an automatic option grant for 12,500 shares of Common Stock.
2. On the first trading day in January each year, beginning with the 2007 calendar year, each
individual serving as a non-Employee Board member on such grant date shall receive an automatic
option grant for 12,500 shares of Common Stock.
3. There shall be no limit on the number of such annual 12,500-share option grants any one
continuing non-Employee Board member may receive over his or her period of Board or Board committee
service, and non-Employee Board members who have previously been Employees or who have otherwise
received one or more stock option grants from the Corporation prior to the Plan Effective Date
shall be eligible to receive one or more such annual option grants over their period of continued
Board service.
18
B. Exercise Price.
1. The exercise price per share shall be equal to 100% of the Fair Market Value per share of
Common Stock on the option grant date.
2. The exercise price shall be payable in one or more of the alternative forms authorized
under the Discretionary Grant Program as set forth in Section I.A.2 of Article Two. Except to the
extent the sale and remittance procedure specified thereunder is utilized, payment of the exercise
price for the purchased shares must be made on the Exercise Date.
C. Option Term. Each option shall have a maximum term of ten years measured from the
option grant date, subject to earlier termination following the Optionees cessation of Board
and/or Board committee service.
D. Exercise and Vesting of Options. Each option shall be immediately exercisable for
any or all of the option shares. However, any unvested shares purchased under the option shall be
subject to repurchase by the Corporation, at the lower of (i) the exercise price paid per share or
(ii) the Fair Market Value per share of Common Stock at the time of repurchase, upon the Optionees
cessation of Board and/or Board committee service prior to vesting in those shares. The shares
subject to each initial 25,000-share grant shall vest, and the Corporations repurchase right shall
lapse, in a series of 36 successive equal monthly installments upon the Optionees completion of
each month of service as a Board member over the three -year period measured from the option grant
date. The shares subject to each annual option grant made to a non-Employee Board member for his
or her continued Board or Board committee service shall vest, and the Corporations repurchase
right shall lapse, in one installment upon the Optionees completion of one year of Board service
measured from the grant date. Each Prorated Committee Grant shall vest in one installment on the
first trading day in January of the year following the year in which the Pro-rated Committee Grant
was made and the Corporations right of repurchase shall lapse with respect to the shares subject
to any such Pro-rated Committee Grant on such date.
E. Limited Transferability of Options. Each option under this Article Four may be
assigned in whole or in part during the Optionees lifetime to one or more of his or her Family
Members or to a trust established exclusively for the Optionee and/or one or more such Family
Members, to the extent such assignment is in connection with the Optionees estate plan or pursuant
to a domestic relations order. The assigned portion may only be exercised by the person or persons
who acquire a proprietary interest in the option pursuant to the assignment. The terms applicable
to the assigned portion shall be the same as those in effect for the option immediately prior to
such assignment and shall be set forth in such documents issued to the assignee as the Plan
Administrator may deem appropriate. The Optionee may also designate one or more persons as the
beneficiary or beneficiaries of his or her outstanding options under this Article Four pursuant to
Section I.F. of Article Two, and the options shall, in accordance with such designation,
automatically be transferred to such beneficiary or beneficiaries upon the Optionees death while
holding those options. Such beneficiary or beneficiaries shall take the transferred options
subject to all the terms and conditions of the applicable agreement evidencing
19
each such transferred option, including (without limitation) the limited time period during
which the option may be exercised following the Optionees death.
F. Termination of Board Service. The following provisions shall govern the exercise
of any options held by the Optionee at the time the Optionee ceases to serve as a Board member:
1. The Optionee (or, in the event of Optionees death while holding the option, the
personal representative of the Optionees estate or the person or persons to whom the option
is transferred pursuant to the Optionees will or the laws of inheritance or the designated
beneficiary or beneficiaries of such option) shall have a 12-month period following the date
of such cessation of Board service in which to exercise such option. However, should the
Optionee cease Board service by reason of Retirement, Permanent Disability or death, the
option will remain exercisable for the balance of the option term.
2. During the applicable post-Board service exercise period, the option may not be
exercised in the aggregate for more than the number of vested shares of Common Stock for
which the option is exercisable at the time of the Optionees cessation of Board service.
3. Should the Optionee cease to serve as a Board member by reason of death or Permanent
Disability, then all shares at the time subject to the option shall immediately vest so that
such option may, during the remainder of the option term, be exercised for any or all of
those shares as fully vested shares of Common Stock.
4. In no event shall the option remain exercisable after the expiration of the option
term. Upon the expiration of the applicable post-Board service exercise period or (if
earlier) upon the expiration of the option term, the option shall terminate and cease to be
outstanding for any vested shares for which the option has not been exercised. However, the
option shall, immediately upon the Optionees cessation of Board service for any reason
other than death or Permanent Disability, terminate and cease to be outstanding to the
extent the option is not otherwise at that time exercisable for vested shares.
II. | CHANGE IN CONTROL/HOSTILE TAKE-OVER/HOSTILE TENDER-OFFER |
A. In the event of a Change in Control while the Optionee remains a Board member, the shares
of Common Stock at the time subject to each outstanding option held by such Optionee under this
Automatic Option Grant Program but not otherwise vested shall automatically vest in full so that
each such option shall, immediately prior to the effective date of the Change in Control, become
exercisable for all the option shares as fully vested shares of Common Stock and may be exercised
for any or all of those vested shares. Immediately following the consummation of the Change in
Control, each automatic option grant shall terminate and cease to be outstanding, except to the
extent assumed by the successor corporation
20
(or parent thereof) or otherwise continued in effect pursuant to the terms of the Change in
Control.
B. In the event of a Hostile Take-Over while the Optionee remains a Board member, the shares
of Common Stock at the time subject to each outstanding option held by such Optionee under this
Automatic Option Grant Program but not otherwise vested shall automatically vest in full so that
each such option shall, immediately prior to the effective date of the Hostile Take-Over, become
exercisable for all the option shares as fully vested shares of Common Stock and may be exercised
for any or all of those vested shares. Each such option shall remain exercisable for such fully
vested option shares until the expiration or sooner termination of the option term or the surrender
of the option in connection with a Hostile Tender-Offer.
C. All outstanding repurchase rights under this Automatic Option Grant Program shall
automatically terminate, and the shares of Common Stock subject to those terminated rights shall
immediately vest in full, in the event of any Change in Control or Hostile Take-Over.
D. Upon the occurrence of a Hostile Tender-Offer while the Optionee remains a Board member,
such Optionee shall have a 30-day period in which to surrender to the Corporation each of his or
her outstanding options under this Automatic Option Grant Program. The Optionee shall in return be
entitled to a cash distribution from the Corporation in an amount equal to the excess of (i) the
Tender-Offer Price of the shares of Common Stock at the time subject to each surrendered option
(whether or not the Optionee is otherwise at the time vested in those shares) over (ii) the
aggregate exercise price payable for such shares. Such cash distribution shall be paid within five
days following the surrender of the option to the Corporation. No approval or consent of the Board
or any Plan Administrator shall be required at the time of the actual option surrender and cash
distribution.
E. Each option which is assumed in connection with a Change in Control or otherwise continued
in effect shall be appropriately adjusted, immediately after such Change in Control, to apply to
the number and class of securities which would have been issuable to the Optionee in consummation
of such Change in Control had the option been exercised immediately prior to such Change in
Control. Appropriate adjustments shall also be made to the exercise price payable per share under
each outstanding option, provided the aggregate exercise price payable for such securities
shall remain the same. To the extent the actual holders of the Corporations outstanding Common
Stock receive cash consideration for their Common Stock in consummation of the Change in Control,
the successor corporation may, in connection with the assumption of the outstanding options under
the Automatic Option Grant Program, substitute one or more shares of its own common stock with a
fair market value equivalent to the cash consideration paid per share of Common Stock in such
Change in Control.
III. REMAINING TERMS
The remaining terms of each option granted under the Automatic Option Grant Program shall be
the same as the terms in effect for option grants made under the Discretionary Grant Program.
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ARTICLE FIVE
MISCELLANEOUS
I. TAX WITHHOLDING
A. The Corporations obligation to deliver shares of Common Stock upon the exercise of options
or stock appreciation rights or the issuance or vesting of such shares under the Plan shall be
subject to the satisfaction of all applicable income and employment tax withholding requirements.
B. The Plan Administrator may, in its discretion, provide any or all holders of Non-Statutory
Options (other than the options granted under the Automatic Option Grant Program), stock
appreciation rights, restricted stock units or any other share right awards pursuant to which
vested shares of Common Stock are to be issued under the Plan and any or all Participants to whom
vested or unvested shares of Common Stock are issued in a direct issuance under the Stock Issuance
Program with the right to use shares of Common Stock in satisfaction of all or part of the
Withholding Taxes to which such holders may become subject in connection with the exercise of their
options or stock appreciation rights, the issuance to them of vested shares or the subsequent
vesting of unvested shares issued to them. Such right may be provided to any such holder in either
or both of the following formats:
Stock Withholding: The election to have the Corporation withhold, from the shares of
Common Stock otherwise issuable upon the exercise of such Non-Statutory Option or stock
appreciation right or upon the issuance of fully-vested shares, a portion of those shares with an
aggregate Fair Market Value equal to the percentage of the Withholding Taxes (not to exceed 100%)
designated by the holder. The shares of Common Stock so withheld shall not reduce the number of
shares of Common Stock authorized for issuance under the Plan under Section V of Article One.
Stock Delivery: The election to deliver to the Corporation, at the time the
Non-Statutory Option or stock appreciation right is exercised, the vested shares are issued or the
unvested shares subsequently vest, one or more shares of Common Stock previously acquired by such
holder (other than in connection with the exercise, share issuance or share vesting triggering the
Withholding Taxes) with an aggregate Fair Market Value equal to the percentage of the Withholding
Taxes (not to exceed 100%) designated by the holder. The shares of Common Stock so delivered shall
not be added to the shares of Common Stock authorized for issuance under the Plan under Section V
of Article One.
II. ASSUMPTION OR SUBSTITUTION OF OPTIONS
A. The shares of Common Stock reserved for issuance under the Plan may, in the sole discretion
of the Plan Administrator, be used to fund one or more shares of Common Stock issuable upon the
exercise of (i) any Code Section 422 incentive stock option originally granted by a corporation or
other entity acquired by the Corporation (or any Parent or Subsidiary), whether by merger or asset
or stock sale, and assumed by the Corporation in connection with that acquisition or (ii) any
Incentive Option granted under this Plan in
22
substitution for such incentive stock option of the acquired entity. Any such assumption or
substitution of options shall not be deemed to contravene the option exercise price requirements of
Section I.A of Article Two, even if the exercise price per share of Common Stock under the assumed
or substituted option is less than 100% of the Fair Market Value per share of Common Stock on the
date such assumption or substitution is effected, provided all of the following requirements are
satisfied:
1. The excess of the aggregate Fair Market Value of the shares of Common Stock subject
to the assumed or substituted option immediately after the assumption or substitution over
the aggregate exercise price in effect for those shares is not greater than the excess of
the aggregate Fair Market Value of the shares of stock subject to the option immediately
prior to such assumption or substitution over the aggregate exercise price payable for those
shares.
2. The ratio of the exercise price to the Fair Market Value per share of Common Stock
subject to the assumed or substituted option immediately after such assumption or
substitution is no more favorable to the Optionee than the ratio of the exercise price to
the Fair Market Value per share immediately prior to such assumption or substitution.
3. The assumed or substituted option does not provide the Optionee with any additional
benefits the Optionee did not otherwise have under the option immediately prior to the
assumption or substitution.
4. In the case of a substitution, the option granted by the acquired entity must be
cancelled at the time of such substitution, and the Optionee must have no further rights
under that cancelled option.
III. SHARE ESCROW/LEGENDS
Unvested shares may, in the Plan Administrators discretion, be held in escrow by the
Corporation until the Participants interest in such shares vests or may be issued directly to the
Participant with restrictive legends on the certificates evidencing those unvested shares.
IV. EFFECTIVE DATE AND TERM OF THE PLAN
A. The Plan became effective on the Plan Effective Date, and was approved by the stockholders
at the 2004 Annual Meeting.
B. The Plan shall serve as the successor to the Predecessor Plan, and no further option grants
or stock issuances shall be made under the Predecessor Plan following the 2004 Annual Meeting. All
options outstanding under the Predecessor Plan at the time of the 2004 Annual Meeting were
transferred to the Plan and shall be treated as outstanding options under the Plan. However, each
outstanding option so transferred shall continue to be governed solely by the terms of the
documents evidencing such option, and no provision of the Plan shall be deemed to affect or
otherwise modify the rights or obligations of the holders of such transferred options with respect
to their acquisition of shares of Common Stock.
23
C. The Plan was amended and restated effective February 10, 2006 to effect the following
changes to the Automatic Option Grant Program: (i) increase the number of shares of Common Stock
subject to each annual option grant under the Automatic Option Grant Program from 10,000 shares to
12,500 shares, and for the 2006 year only, change the grant date of such annual option grant and
(ii) eliminate option grants awarded to Board members who serve as members of a Board committee.
In addition, effective February 10, 2006, the Plan was amended and restated to (i) amend the
definition of Fair Market Value and (ii) establish the Board as the Plan Administrator.
D. One or more provisions of the Plan, including (without limitation) the option/vesting
acceleration provisions of Article Two relating to Changes in Control and Hostile Take-Overs, may,
in the Plan Administrators discretion, be extended to one or more options incorporated from the
Predecessor Plan which do not otherwise contain such provisions.
E. The Plan shall terminate upon the earliest to occur of (i) March 1, 2014, (ii) the
date on which all shares available for issuance under the Plan shall have been issued as fully
vested shares or (iii) the termination of all outstanding options, stock appreciation rights,
restricted stock units and other share right awards in connection with a Change in Control. Should
the Plan terminate on March 1, 2014, then all option grants, stock appreciation rights, unvested
stock issuances, restricted stock units and other share right awards outstanding at that time shall
continue to have force and effect in accordance with the provisions of the documents evidencing
such grants, issuances or awards.
V. AMENDMENT OF THE PLAN
A. The Board shall have complete and exclusive power and authority to amend or modify the Plan
in any or all respects. However, no such amendment or modification shall adversely affect the
rights and obligations with respect to stock options, stock appreciation rights, unvested stock
issuances or other stock-based awards at the time outstanding under the Plan unless the Optionee or
the Participant consents to such amendment or modification. In addition, amendments to the Plan
will be subject to stockholder approval to the extent required under applicable law or regulation
or pursuant to the listing standards of the stock exchange on which the Common Stock is at the time
primarily traded. Notwithstanding the foregoing, subject to the limitations of applicable law, if
any, and without the affected Optionees or Participants consent, the Board may amend the terms of
any one or more options, stock appreciation rights and/or stock-based awards if necessary to bring
the awards into compliance with Section 409A of the Code and Department of Treasury regulations and
other interpretive guidance issued thereunder, including without limitation any such regulations or
other guidance that may be issued or amended after the Plan Effective Date.
B. Options and stock appreciation rights may be granted under the Discretionary Grant Program
and stock-based awards may be made under the Stock Issuance Program that in each instance involve
shares of Common Stock in excess of the number of shares then available for issuance under the
Plan, provided no shares shall actually be issued pursuant to those grants or awards until
the number of shares of Common Stock available for issuance under the Plan is sufficiently
increased either by (i) the automatic annual share increase provisions of Section V.B. of Article
One or (ii) the stockholder approval of an amendment of the Plan
24
sufficiently increasing the share reserve. If stockholder approval is required and is not
obtained within 12 months after the date the first excess grant or award made against such
contingent increase, then any options, stock appreciation rights or other stock-based awards
granted on the basis of such excess shares shall terminate and cease to be outstanding.
C. To the extent that the Board determines that any award granted under the Plan is subject to
Section 409A of the Code, the 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 and Department of Treasury regulations and other interpretive guidance issued
thereunder, including without limitation any such regulations or other guidance that may be issued
or amended after the Plan Effective Date. Notwithstanding any provision of the Plan to the
contrary, in the event that following the Plan Effective Date the Board determines that any award
may be subject to Section 409A of the Code and related Department of Treasury guidance (including
such Department of Treasury guidance as may be issued after the Effective Date), the Board may
adopt such amendments to the Plan and the applicable award agreement or adopt other policies and
procedures (including amendments, policies and procedures with retroactive effect), or take any
other actions, that the Board determines are necessary or appropriate to (i) exempt the award from
Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with
respect to the award, or (ii) comply with the requirements of Section 409A of the Code and
Department of Treasury regulations and other interpretive guidance issued thereunder, including
without limitation any such regulations or other guidance that may be issued or amended after the
Plan Effective Date.
VI. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of shares of Common Stock under
the Plan shall be used for general corporate purposes.
VII. REGULATORY APPROVALS
A. The implementation of the Plan, the granting of any stock option, stock appreciation right
or other stock-based award under the Plan and the issuance of any shares of Common Stock (i) upon
the exercise or vesting of any granted option, stock appreciation right or other stock-based award
or (ii) under the Stock Issuance Program shall be subject to the Corporations procurement of all
approvals and permits required by regulatory authorities having jurisdiction over the Plan, the
stock options granted under it and the shares of Common Stock issued pursuant to it.
B. No shares of Common Stock or other assets shall be issued or delivered under the Plan
unless and until there shall have been compliance with all applicable requirements of applicable
securities laws, including the filing and effectiveness of the Form S-8 registration statement for
the shares of Common Stock issuable under the Plan, and all applicable listing requirements of any
stock exchange on which Common Stock is then listed for trading.
25
VIII. NO EMPLOYMENT/SERVICE RIGHTS
Nothing in the Plan shall confer upon the Optionee or the Participant any right to continue in
Service for any period of specific duration or interfere with or otherwise restrict in any way the
rights of the Corporation (or any Parent or Subsidiary employing or retaining such person) or of
the Optionee or the Participant, which rights are hereby expressly reserved by each, to terminate
such persons Service at any time for any reason, with or without cause or Misconduct.
26
APPENDIX
The following definitions shall be in effect under the Plan:
A. Automatic Option Grant Program shall mean the automatic option grant program in
effect under Article Four of the Plan.
B. Board shall mean the Corporations Board of Directors.
C. Change in Control shall mean a change in ownership or control of the Corporation
effected through any of the following transactions:
1. a merger, consolidation or other reorganization approved by the
Corporations stockholders, unless securities representing more than 50% of
the total combined voting power of the voting securities of the successor
corporation are immediately thereafter beneficially owned, directly or indirectly
and in substantially the same proportion, by the persons who beneficially owned the
Corporations outstanding voting securities immediately prior to such transaction,
2. a stockholder-approved sale, transfer or other disposition of all or
substantially all of the Corporations assets, or
3. the closing of any transaction or series of related transactions pursuant to
which any person or any group of persons comprising a group within the meaning of
Rule 13d-5(b)(1) of the 1934 Act (other than the Corporation or a person that, prior
to such transaction or series of related transactions, directly or indirectly
controls, is controlled by or is under common control with, the Corporation) becomes
directly or indirectly the beneficial owner (within the meaning of Rule 13d-3 of the
1934 Act) of securities possessing (or convertible into or exercisable for
securities possessing) more than 50% of the total combined voting power of the
Corporations securities (as measured in terms of the power to vote with respect to
the election of Board members) outstanding immediately after the consummation of
such transaction or series of related transactions, whether such transaction
involves a direct issuance from the Corporation or the acquisition of outstanding
securities held by one or more of the Corporations existing stockholders.
D. Code shall mean the Internal Revenue Code of 1986, as amended.
E. Common Stock shall mean the Corporations common stock.
F. Corporation shall mean Ardea Biosciences, Inc., a Delaware corporation, and any
corporate successor to all or substantially all of the assets or voting stock of Ardea Biosciences,
Inc. which has by appropriate action assumed the Plan.
Appendix-1
G. Discretionary Grant Program shall mean the discretionary grant program in effect
under Article Two of the Plan pursuant to which stock options and stock appreciation rights may be
granted to one or more eligible individuals.
H. Employee shall mean an individual who is in the employ of the Corporation (or any
Parent or Subsidiary, whether now existing or subsequently established), subject to the control and
direction of the employer entity as to both the work to be performed and the manner and method of
performance.
I. Exercise Date shall mean the date on which the Corporation shall have received
written notice of the option exercise.
J. Executive shall mean any Employee of the Corporation who, immediately prior to the
closing of a Change in Control, holds the title of vice president or higher.
K. Fair Market Value per share of Common Stock on any relevant date shall be
determined in accordance with the following provisions:
1. If the Common Stock is at the time listed on any Stock Exchange, then the
Fair Market Value shall be the closing selling price per share of Common Stock on
the date in question on the Stock Exchange determined by the Plan Administrator to
be the primary market for the Common Stock, as such price is officially quoted in
the composite tape of transactions on such exchange and published in The Wall Street
Journal. If there is no closing selling price for the Common Stock on the date in
question, then the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
2. If the Common Stock is at the time quoted on a national or regional
securities exchange or market system (including over-the-counter markets) determined
by the Plan Administrator to be the primary market for the Common Stock, then the
Fair Market Value shall be the closing selling price per share of Common Stock on
the date in question, as such price is officially reported by such exchange or
market system. If there is no closing selling price for the Common stock on the
date in question, then the Fair Market Value shall be the closing selling price of a
share of Common Stock on the last preceding date for which such quotation exists.
3. If the Fair Market Value of the Common Stock cannot be determined in
accordance with the provisions of (i) or (ii) above, then the Fair Market Value
shall be determined in a manner prescribed by the Plan Administrator after taking
into account such factors as the Plan Administrator shall deem appropriate.
L. Family Member means, with respect to a particular Optionee or Participant, any
child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling,
niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, bother-in-law or
sister-in-law.
Appendix-2
M. Hostile Take-Over shall mean a change in ownership or control of the Corporation
effected through either of the following transactions:
1. a change in the composition of the Board over a period of 36 consecutive
months or less such that a majority of the Board members ceases, by reason of one or
more contested elections for Board membership, to be comprised of individuals who
either (A) have been Board members continuously since the beginning of such period
or (B) have been elected or nominated for election as Board members during such
period by at least a majority of the Board members described in clause (A) who were
still in office at the time the Board approved such election or nomination, or
2. a Hostile Tender-Offer.
N. Hostile Tender-Offer shall mean the acquisition, directly or indirectly, by any
person or related group of persons (other than the Corporation or a person that directly or
indirectly controls, is controlled by, or is under common control with, the Corporation) of
beneficial ownership (within the meaning of Rule 13d-3 of the 1934 Act) of securities possessing
more than 20% of the total combined voting power of the Corporations outstanding securities
pursuant to a tender or exchange offer made directly to the Corporations stockholders which the
Board does not recommend such stockholders to accept.
O. Incentive Option shall mean an option which satisfies the requirements of Code
Section 422.
P. Involuntary Termination shall mean the termination of the Service of any individual
which occurs by reason of:
1. such individuals involuntary dismissal or discharge by the Corporation (or
any Parent or Subsidiary) for reasons other than Misconduct, or
2. such individuals voluntary resignation following (A) a change in his or her
position with the Corporation (or any Parent or Subsidiary) which materially reduces
his or her duties and responsibilities or the level of management to which he or she
reports, (B) a reduction in his or her level of compensation (including base salary,
fringe benefits and target bonus under any corporate-performance based bonus or
incentive programs) by more than 15% or (C) a relocation of such individuals place
of employment by more than 50 miles, provided and only if such change,
reduction or relocation is effected by the Corporation (or any Parent or Subsidiary)
without the individuals consent.
Q. Misconduct shall mean the commission of any act of fraud, embezzlement or
dishonesty by the Optionee or Participant, any unauthorized use or disclosure by such person of
confidential information or trade secrets of the Corporation (or any Parent or Subsidiary), or any
other intentional misconduct by such person adversely affecting the business or affairs of the
Corporation (or any Parent or Subsidiary) in a material manner. The foregoing definition shall not
in any way preclude or restrict the right of the Corporation (or any Parent or Subsidiary) to
discharge or dismiss any Optionee, Participant or other person in the Service of
Appendix-3
the Corporation (or any Parent or Subsidiary) for any other acts or omissions, but such other
acts or omissions shall not be deemed, for purposes of the Plan, to constitute grounds for
termination for Misconduct.
R. 1934 Act shall mean the Securities Exchange Act of 1934, as amended.
S. Non-Statutory Option shall mean an option not intended to satisfy the requirements
of Code Section 422.
T. Optionee shall mean any person to whom an option is granted under the Discretionary
Grant Program or Automatic Option Grant Program.
U. Parent shall mean any corporation (other than the Corporation) in an unbroken chain
of corporations ending with the Corporation, provided each corporation in the unbroken chain (other
than the Corporation) owns, at the time of the determination, stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other corporations in such chain.
V. Participant shall mean any person who is issued shares of Common Stock or
restricted stock units or other stock-based awards under the Stock Issuance Program.
W. Permanent Disability or Permanently Disabled shall mean the inability of the
Optionee or the Participant to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment expected to result in death or to be of
continuous duration of 12 months or more. However, solely for purposes of the Automatic Option
Grant Program, Permanent Disability or Permanently Disabled shall mean the inability of the
non-Employee Board member to perform his or her usual duties as a Board member by reason of any
medically determinable physical or mental impairment expected to result in death or to be of
continuous duration of 12 months or more.
X. Plan shall mean the Corporations 2004 Stock Incentive Plan, as set forth in this
document.
Y. Plan Administrator shall mean the Board acting in its administrative capacity under
the Plan.
Z. Plan Effective Date shall mean the March 2, 2004 date on which the Plan was adopted
by the Board, subject to stockholder approval at the 2004 Annual Meeting.
AA. Predecessor Plan shall mean the Corporations 2000 Equity Incentive Plan in effect
immediately prior to the 2004 Annual Stockholders Meeting.
BB. Retirement shall mean the termination of Employee status after the later of (i)
the completion of five years of Service in Employee status or (ii) attainment of age 55. For
purposes of any options granted under the Automatic Option Grant Program, Retirement shall mean the
cessation of Board service after the later of (i) the completion of five years of Board service or
(ii) attainment of age 55.
Appendix-4
CC. Section 16 Insider shall mean an officer or director of the Corporation subject to
the short-swing profit liabilities of Section 16 of the 1934 Act.
DD. Service shall mean the performance of services for the Corporation (or any Parent
or Subsidiary, whether now existing or subsequently established) by a person in the capacity of an
Employee, a non-Employee member of the board of directors or a consultant or independent advisor,
except to the extent otherwise specifically provided in the documents evidencing the option grant
or stock issuance. Service shall not be deemed to cease during a period of military leave, sick
leave or other personal leave approved by the Corporation; provided, however, that for a
leave which exceeds 90 days, Service shall be deemed, for purposes of determining the period within
which any outstanding option held by the Optionee in question may be exercised as an Incentive
Option, to cease on the 91st day of such leave, unless the right of that Optionee to
return to Service following such leave is guaranteed by law or statute. Except to the extent
otherwise required by law or expressly authorized by the Plan Administrator, no Service credit
shall be given for vesting purposes for any period the Optionee or Participant is on a leave of
absence.
EE. Stock Exchange shall mean either the American Stock Exchange, the New York Stock
Exchange or the NASDAQ Stock Market LLC.
FF. Stock Issuance Agreement shall mean the agreement entered into by the Corporation
and the Participant at the time of issuance of shares of Common Stock under the Stock Issuance
Program.
GG. Stock Issuance Program shall mean the stock issuance program in effect under
Article Three of the Plan.
HH. Subsidiary shall mean any corporation (other than the Corporation) in an unbroken
chain of corporations beginning with the Corporation, provided each corporation (other than the
last corporation) in the unbroken chain owns, at the time of the determination, stock possessing
50% or more of the total combined voting power of all classes of stock in one of the other
corporations in such chain.
II. 10% Stockholder shall mean the owner of stock (as determined under Code Section
424(d)) possessing more than ten percent of the total combined voting power of all classes of stock
of the Corporation (or any Parent or Subsidiary).
JJ. Tender-Offer Price shall mean the greater of (i) the Fair Market Value per share
of Common Stock on the date the option is surrendered to the Corporation in connection with a
Hostile Tender-Offer or (ii) the highest reported price per share of Common Stock paid by the
tender offeror in effecting such Hostile Tender-Offer. However, if the surrendered option is an
Incentive Option, the Tender-Offer Price shall not exceed the clause (i) price per share.
KK. Withholding Taxes shall mean the applicable income and employment withholding
taxes to which the holder of an option or stock appreciation right or shares of Common Stock under
the Plan may become subject in connection with the grant or exercise of those options or stock
appreciation rights or the issuance or vesting of those shares.
Appendix-5