Attached files
file | filename |
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10-K - FORM 10-K - Cardiac Science CORP | v55247e10vk.htm |
EX-31.1 - EX-31.1 - Cardiac Science CORP | v55247exv31w1.htm |
EX-21.1 - EX-21.1 - Cardiac Science CORP | v55247exv21w1.htm |
EX-23.1 - EX-23.1 - Cardiac Science CORP | v55247exv23w1.htm |
EX-32.1 - EX-32.1 - Cardiac Science CORP | v55247exv32w1.htm |
EX-32.2 - EX-32.2 - Cardiac Science CORP | v55247exv32w2.htm |
EX-31.2 - EX-31.2 - Cardiac Science CORP | v55247exv31w2.htm |
EX-10.20 - EX-10.20 - Cardiac Science CORP | v55247exv10w20.htm |
EX-10.13 - EX-10.13 - Cardiac Science CORP | v55247exv10w13.htm |
EX-10.17 - EX-10.17 - Cardiac Science CORP | v55247exv10w17.htm |
EX-10.22 - EX-10.22 - Cardiac Science CORP | v55247exv10w22.htm |
EX-10.5 - EX-10.5 - Cardiac Science CORP | v55247exv10w5.htm |
Exhibit 10.4
CARDIAC SCIENCE CORPORATION
2002 STOCK INCENTIVE PLAN
SECTION 1. PURPOSE
The purpose of the Cardiac Science Corporation 2002 Stock Incentive Plan (the Plan) is to
enhance the long-term shareholder value of Cardiac Science Corporation, a Delaware corporation (the
Company), by offering opportunities to selected persons to participate in the Companys growth
and success, and to encourage them to remain in the service of the Company or a Related Company (as
defined in Section 2) and to acquire and maintain stock ownership in the Company.
SECTION 2. DEFINITIONS
In the Plan:
Award means any Option or Stock Award.
Board means the Board of Directors of the Company.
Cause, unless otherwise defined in the instrument evidencing the Award or in a written
employment or services agreement between the Company or a Related Company and the Participant,
means dishonesty, fraud, misconduct, unauthorized use or disclosure of confidential information or
trade secrets, or conviction or confession of a crime punishable by law (except minor violations),
in each case as determined by the Plan Administrator, and its determination shall be conclusive and
binding.
Code means the Internal Revenue Code of 1986, as amended from time to time.
Common Stock means the common stock, par value $0.001 per share, of the Company.
Company Transaction, unless otherwise defined in the instrument evidencing the Award or in a
written employment or services agreement between the Participant and the Company or a Related
Company, means consummation of either
(a) a merger or consolidation of the Company with or into any other company, entity or person
or
(b) a sale, lease, exchange or other transfer in one transaction or a series of related
transactions undertaken with a common purpose of all or substantially all the Companys then
outstanding securities or all or substantially all the Companys assets;
provided, however, that a Company Transaction shall not include a Related Party Transaction.
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Disability unless otherwise defined by the Plan Administrator or in the instrument
evidencing the Award or in a written employment or services agreement between the Participant and
the Company or a Related Company, means a mental or physical impairment of the Participant that is
expected to result in death or that has lasted or is expected to last for a continuous period of 12
months or more and that causes the Participant to be unable, in the opinion of the Plan
Administrator, to perform his or her duties for the Company or a Related Company and to be engaged
in any substantial gainful activity.
Early Retirement means Termination of Service prior to Retirement on terms and conditions
approved by the Plan Administrator.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Fair Market Value means the per share value of the Common Stock as established in good faith
by the Plan Administrator or, if the Common Stock is (a) listed on the Nasdaq National Market, the
closing sales price for the Common Stock as reported by that market for regular session trading for
a single trading day, or (b) listed on the New York Stock Exchange or the American Stock Exchange,
the closing sales price for the Common Stock as such price is officially quoted in the composite
tape of transactions on such exchange for regular session trading for a single trading day. If
there is no such reported price for the Common Stock for the date in question, then such price on
the last preceding date for which such price exists shall be determinative of Fair Market Value.
Grant Date means the date on which the Plan Administrator completes the corporate action
authorizing the grant of an Award or such later date specified by the Plan Administrator provided
that conditions to the exercisability or vesting of Awards shall not defer the Grant Date.
Incentive Stock Option means an Option granted with the intention that it qualify as an
incentive stock option as that term is defined in Section 422 of the Code.
Nonqualified Stock Option means an Option other than an Incentive Stock Option.
Option means the right to purchase Common Stock granted under Section 7.
Option Expiration Date has the meaning set forth in Section 7.6.
Option Term has the meaning set forth in Section 7.3.
Participant means the person to whom an Award is granted.
Plan Administrator has the meaning set forth in Section 3.1.
Related Company means any entity that, directly or indirectly, is in control of or is
controlled by, the Company.
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Related Party Transaction means (a) a merger or consolidation of the Company in which the
holders of the outstanding voting securities of the Company immediately prior to the merger or
consolidation hold at least a majority of the outstanding voting securities of the Successor
Company immediately after the merger or consolidation; (b) a sale, lease, exchange or other
transfer of the Companys assets to a majority-owned subsidiary company; (c) a transaction
undertaken for the principal purpose of restructuring the capital of the Company, including but not
limited to, reincorporating the Company in a different jurisdiction or creating a holding company;
or (d) a corporate dissolution or liquidation.
Retirement, unless otherwise defined by the Plan Administrator from time to time for
purposes of the Plan, means Termination of Service on or after the date the individual reaches
normal retirement age as that term is defined in Section 411(a)(8) of the Code.
Securities Act means the Securities Act of 1933, as amended.
Stock Award means an Award of shares of Common Stock or units denominated in Common Stock
granted under Section 9, the rights of ownership of which may be subject to restrictions prescribed
by the Plan Administrator.
Successor Company means the surviving company, the successor company or its parent, as
applicable, in connection with a Company Transaction.
Termination of Service means a termination of employment or service relationship with the
Company or a Related Company for any reason, whether voluntary or involuntary, including death,
Disability, Early Retirement or Retirement, as determined by the Plan Administrator in its sole
discretion. Any question as to whether and when there has been a Termination of Service for the
purposes of an Award and the cause of such Termination of Service shall be determined by the Plan
Administrator and its determination shall be final. Transfer of the Participants employment or
service relationship between Related Companies, or between the Company and any Related Company,
shall not be considered a Termination of Service for purposes of an Award, but unless the Plan
Administrator determines otherwise, a Termination of Service shall be deemed to occur if the
Participants employment or service relationship is with an entity that has ceased to be a Related
Company.
Vesting Commencement Date means the Grant Date or such other date selected by the Plan
Administrator as the date from which the Option begins to vest for purposes of Section 7.4.
SECTION 3. ADMINISTRATION
3.1 Plan Administrator
The Plan shall be administered by the Board and/or a committee or committees (which term
includes subcommittees) appointed by, and consisting of two or more members
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of, the Board (a Plan
Administrator). If and so long as the Common Stock is registered under Section 12(b) or 12(g) of
the Exchange Act, the Board shall consider in selecting the members of any committee acting as Plan
Administrator, with respect to any persons subject or likely to become subject to Section 16 of the
Exchange Act, the provisions regarding (a) outside directors as contemplated by Section 162(m) of
the Code and (b) nonemployee directors as contemplated by Rule 16b-3 under the Exchange Act.
Notwithstanding the foregoing, the Board may delegate the responsibility for administering the Plan
with respect to designated classes of eligible persons to different committees consisting of one or
more members of the Board, subject to such limitations as the Board deems appropriate. Committee
members shall serve for such term as the Board may determine, subject to removal by the Board at
any time. To the extent consistent with applicable law, the Board may authorize one or more
officers of the Company to grant Awards to designated classes of eligible persons, within the
limits specifically prescribed by the Board.
3.2 Administration and Interpretation by Plan Administrator
Except for the terms and conditions explicitly set forth in the Plan, the Plan Administrator
shall have exclusive authority, in its discretion, to determine all matters relating to Awards
under the Plan, including selecting the persons to be granted Awards, determining the type of
Awards, the number of shares of Common Stock subject to an Award, and all terms, conditions,
restrictions and limitations, if any, of an Award, and approving the forms of agreement for use
under the Plan. The Plan Administrator shall also have exclusive authority to interpret the Plan
and the terms of any instrument evidencing the Award and may from time to time adopt and change
rules and regulations of general application for the Plans administration. The Plan
Administrators interpretation of the Plan and its rules and regulations, and all actions taken and
determinations made by the Plan Administrator pursuant to the Plan, shall be conclusive and binding
on all parties involved or affected. The Plan Administrator may delegate ministerial duties to
such of the Companys officers as it so determines. For purposes of determining the effect on an
Award of a Company-approved leave of absence or a Participants working less than full time, the
human resources director or other person performing that function may be deemed the Plan
Administrator.
SECTION 4. STOCK SUBJECT TO THE PLAN
4.1 Authorized Number of Shares
Subject to adjustment from time to time as provided in Section 12.1, the maximum number of
shares of Common Stock available for issuance under the Plan shall be:
(a) 87,709 shares; plus
(b) an annual increase to be added as of the first day of each fiscal year of the Company
equal to the least of (i) 526,260 shares and (ii) 3% of the outstanding Common Stock of
the Company as of the end of the Companys immediately preceding fiscal year on a
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fully diluted basis (assuming exercise of all outstanding options and warrants and conversion of all
outstanding convertible securities) and (iii) a lesser amount determined by the Board; provided
that any shares from any such increases in previous years that are not actually issued shall
continue to be available for issuance under the Plan; plus
(c) any authorized shares (i) not issued or subject to outstanding awards under the Companys
1998 Equity Incentive Plan (the Prior Plan) on the date the initial registration of the Common
Stock under 12(b) or 12(g) of the Exchange Act first becomes effective and (ii) any shares subject
to outstanding awards under the Prior Plan on such date that thereafter cease to be subject to such
awards (other than by reason of exercise or settlement of the awards to the extent they are
exercised for or settled in vested and nonforfeitable shares), up to an aggregate maximum of
1,132,570 shares.
Shares issued under the Plan shall be drawn from authorized and unissued shares or shares now
held or subsequently acquired by the Company.
4.2 Reuse of Shares
Any shares of Common Stock that have been made subject to an Award that are not issued under
the Plan upon exercise or settlement of the Award shall again be available for issuance in
connection with future grants of Awards under the Plan. In addition, if shares issued under the
Plan are reacquired by the Company pursuant to any forfeiture provision, such shares shall again be
available for the purposes of the Plan. Notwithstanding the foregoing, the maximum number of
shares that may be issued upon the exercise of Incentive Stock Options shall equal the aggregate
share number stated in Section 4.1, subject to adjustment from time to time as provided in Section
12.1.
SECTION 5. ELIGIBILITY
An Award may be granted to any officer, director or employee of the Company or a Related
Company that the Plan Administrator from time to time selects. An Award may also be granted to any
consultant, advisor or independent contractor who provides services to the Company or any Related
Company, so long as such Participant (a) renders bona fide services that are not in connection with
the offer and sale of the Companys securities in a capital-raising transaction and (b) does not
directly or indirectly promote or maintain a market for the Companys securities.
SECTION 6. AWARDS
6.1 Form and Grant of Awards
The Plan Administrator shall have the authority, in its sole discretion, to determine the type
or types of Awards to be granted under the Plan. Awards may be granted singly or in combination.
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6.2 Settlement of Awards
The Company may settle Awards through the delivery of shares of Common Stock, the granting of
replacement Awards or any combination thereof as the Plan Administrator shall determine. Any Award
settlement may be subject to such conditions, restrictions and contingencies as the Plan
Administrator shall determine. The Plan Administrator may permit or require the deferral of any
Award payment, subject to such rules and procedures as it may establish, which may include
provisions for the payment or crediting of interest, or dividend equivalents, including converting
such credits into deferred stock equivalents.
6.3 Acquired Company Awards
Notwithstanding anything in the Plan to the contrary, the Plan Administrator may grant Awards
under the Plan in substitution for awards issued under other plans, or assume under the Plan awards
issued under other plans, if the other plans are or were plans of other acquired entities
(Acquired Entities) (or the parent of an Acquired Entity) and the new Award is substituted, or
the old award is assumed, by reason of a merger, consolidation, acquisition of property or stock,
reorganization or liquidation (the Acquisition Transaction). In the event that a written
agreement pursuant to which the Acquisition Transaction is completed is approved by the Board and
said agreement sets forth the terms and conditions of the substitution for or assumption of
outstanding awards of the Acquired Entity, said terms and conditions shall be deemed to be the
action of the Plan Administrator without any further action by the Plan Administrator, except as
may be required for compliance with Rule 16b-3 under the Exchange Act, and the persons holding such
awards shall be deemed to be Participants.
SECTION 7. AWARDS OF OPTIONS
7.1 Grant of Options
The Plan Administrator shall have the authority, in its sole discretion, to grant Options
designated as Incentive Stock Options or as Nonqualified Stock Options.
7.2 Option Exercise Price
The exercise price for shares purchased under an Option shall be as determined by the Plan
Administrator, but shall not be less than the minimum exercise price required by Section 8.3 with
respect to Incentive Stock Options.
7.3 Term of Options
Subject to earlier termination in accordance with the terms of the Plan and the instrument
evidencing the Option, the maximum term of an Option (the Option Term) shall be as established
for that Option by the Plan Administrator or, if not so established, shall be ten years from the
Grant Date. For Incentive Stock Options, the Option Term shall be as specified in Section 8.4.
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7.4 Exercise of Options
The Plan Administrator shall establish and set forth in each instrument that evidences an
Option the time at which, or the installments in which, the Option shall vest and become
exercisable, any of which provisions may be waived or modified by the Plan Administrator at any
time. If not so established in the instrument evidencing the Option, the Option shall vest and
become exercisable according to the following schedule, which may be waived or modified by the Plan
Administrator at any time:
Period of Participants Continuous
Employment or Service With the Company
or Its Related Companies From the Vesting
Commencement Date
|
Portion of Total Option That Is Vested and Exercisable | |||
After twelve (12) months
|
1/4th | |||
Each additional one-month period of
continuous service completed thereafter
|
An additional 1/36th of the remaining shares | |||
After four (4) years
|
100% |
The Plan Administrator, in its sole discretion, may adjust the vesting schedule of an Option
held by a Participant who works less than full time as that term is defined by the Plan
Administrator or who takes a Company-approved leave of absence.
To the extent an Option has vested and become exercisable, the Option may be exercised in
whole or from time to time in part by delivery to the Company of a written stock option exercise
agreement or notice, in a form and in accordance with procedures established by the Plan
Administrator, setting forth the number of shares with respect to which the Option is being
exercised, the restrictions imposed on the shares purchased under such exercise agreement, if any,
and such representations and agreements as may be required by
the Plan Administrator, accompanied by payment in full as described in Section 7.5. An Option
may be exercised only for whole shares and may not be exercised for less than a reasonable number
of shares at any one time, as determined by the Plan Administrator.
7.5 Payment of Exercise Price
The exercise price for shares purchased under an Option shall be paid in full to the Company
by delivery of consideration equal to the product of the Option exercise price and the number of
shares purchased. Such consideration must be paid before the Company will issue the shares being
purchased and must be in a form or a combination of forms acceptable to the Plan Administrator for
that purchase, which forms may include:
(a) cash;
(b) check;
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(c) tendering (either actually or, if the Common Stock is registered under Section 12(b) or
12(g) of the Exchange Act, by attestation) shares of Common Stock already owned by the Participant
for at least six months (or any shorter period necessary to avoid a charge to the Companys
earnings for financial reporting purposes) that on the day prior to the exercise date have a Fair
Market Value equal to the aggregate exercise price of the shares being purchased under the Option;
(d) if the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act,
delivery of a properly executed exercise notice, together with irrevocable instructions to a
brokerage firm designated by the Company to deliver promptly to the Company the aggregate amount of
sale or loan proceeds to pay the Option exercise price and any withholding tax obligations that may
arise in connection with the exercise, all in accordance with the regulations of the Federal
Reserve Board; or
(e) such other consideration as the Plan Administrator may permit.
In addition, to assist a Participant (including a Participant who is an officer or a director
of the Company) in acquiring shares of Common Stock pursuant to an Award granted under the Plan,
the Plan Administrator, in its sole discretion, may authorize, either at the Grant Date or at any
time before the acquisition of Common Stock pursuant to the Award, (i) the payment by a Participant
of the purchase price of the Common Stock by a promissory note or (ii) the guarantee by the Company
of a loan obtained by the Participant from a third party. Such notes or loans must be full
recourse to the extent necessary to avoid charges to the Companys earnings for financial reporting
purposes and bear a marked rate of interest. Subject to the foregoing, the Plan Administrator
shall in its sole discretion specify the terms of any loans or loan guarantees, including the
interest rate and terms of and security for repayment.
7.6 Post-Termination Exercises
The Plan Administrator shall establish and set forth in each instrument that evidences an
Option whether the Option shall continue to be exercisable, and the terms and conditions of such
exercise, if a Participant ceases to be employed by, or to provide services to, the Company or a
Related Company, which provisions may be waived or modified by the Plan Administrator at any time.
If not so established in the instrument evidencing the Option, the Option shall be exercisable
according to the following terms and conditions, which may be waived or modified by the Plan
Administrator at any time:
(a) Any portion of an Option that is not vested and exercisable on the date of a Participants
Termination of Service shall expire on such date.
(b) Any portion of an Option that is vested and exercisable on the date of a Participants
Termination of Service shall expire on the earliest to occur of
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(i) if the Participants Termination of Service occurs for reasons other than Cause,
Disability or death, the date which is three months after such Termination of Service;
(ii) if the Participants Termination of Service occurs by reason of Disability or death, the
one-year anniversary of such Termination of Service; and
(iii) the last day of the Option Term (the Option Expiration Date).
Notwithstanding the foregoing, if a Participant dies after his or her Termination of Service
but while an Option is otherwise exercisable, the portion of the Option that is vested and
exercisable on the date of such Termination of Service shall expire upon the earlier to occur of
(y) the Option Expiration Date and (z) the one-year anniversary of the date of death, unless the
Plan Administrator determines otherwise.
Also notwithstanding the foregoing, in case a Participants Termination of Service occurs for
Cause, all Options granted to the Participant shall automatically expire upon first notification to
the Participant of such termination, unless the Plan Administrator determines otherwise. If a
Participants employment or service relationship with the Company is suspended pending an
investigation of whether the Participant shall be terminated for Cause, all the Participants
rights under any Option shall likewise be suspended during the period of investigation. If any
facts that would constitute termination for Cause are discovered after a Participants Termination
of Service, any Option then held by the Participant may be immediately terminated by the Plan
Administrator, in its sole discretion.
(c) A Participants change in status from an employee to a consultant, advisor or independent
contractor or a change in status from a consultant, advisor or independent contractor to an
employee, shall not be considered a Termination of Service for purposes of this Section 7.
(d) The effect of a Company-approved leave of absence on the application of this Section 7
shall be determined by the Plan Administrator, in its sole discretion.
SECTION 8. INCENTIVE STOCK OPTION LIMITATIONS
Notwithstanding any other provisions of the Plan, and to the extent required by Section 422 of
the Code, Incentive Stock Options shall be subject to the following additional terms and
conditions:
8.1 Dollar Limitation
To the extent the aggregate Fair Market Value (determined as of the Grant Date) of Common
Stock with respect to which a Participants Incentive Stock Options become exercisable for the
first time during any calendar year (under the Plan and all other stock option plans of the Company
and its parent and subsidiary corporations) exceeds $100,000, such portion in excess of $100,000
shall be treated as a Nonqualified Stock Option. In the
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event the Participant holds two or more
such Options that become exercisable for the first time in the same calendar year, such limitation
shall be applied on the basis of the order in which such Options are granted.
8.2 Eligible Employees
Individuals who are not employees of the Company or one of its parent or subsidiary
corporations may not be granted Incentive Stock Options.
8.3 Exercise Price
The exercise price of an Incentive Stock Option shall be at least 100% of the Fair Market
Value of the Common Stock on the Grant Date, and in the case of an Incentive Stock Option granted
to a Participant who owns more than 10% of the total combined voting power of all classes of the
stock of the Company or of its parent or subsidiary corporations (a Ten Percent Shareholder),
shall not be less than 110% of the Fair Market Value of the Common Stock on the Grant Date. The
determination of more than 10% ownership shall be made in accordance with Section 422 of the Code.
8.4 Option Term
Subject to earlier termination in accordance with the terms of the Plan and the instrument
evidencing the Option, the Option Term of an Incentive Stock Option shall not exceed ten years, and
in the case of an Incentive Stock Option granted to a Ten Percent Shareholder, shall not exceed
five years.
8.5 Exercisability
An Option designated as an Incentive Stock Option shall cease to qualify for favorable tax
treatment as an Incentive Stock Option to the extent it is exercised (if permitted by the terms of
the Option) (a) more than three months after the date of a Participants Termination of Service if
termination was for reasons other than death or Disability, (b) more than one year after the date
of a Participants Termination of Service if termination was by reason of Disability, or (c) after
the Participant has been on leave of absence for more than 90 days, unless the Participants
reemployment rights are guaranteed by statute or contract.
8.6 Taxation of Incentive Stock Options
In order to obtain certain tax benefits afforded to Incentive Stock Options under Section 422
of the Code, the Participant must hold the shares acquired upon the exercise of an Incentive Stock
Option for two years after the Grant Date and one year after the date of exercise.
A Participant may be subject to the alternative minimum tax at the time of exercise of an
Incentive Stock Option. The Participant shall give the Company prompt notice of any
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disposition of shares acquired on the exercise of an Incentive Stock Option prior to the expiration of such
holding periods.
8.7 Promissory Notes
The amount of any promissory note delivered pursuant to Section 7.5 in connection with an
Incentive Stock Option shall bear interest at a rate specified by the Plan Administrator, but in no
case less than the rate required to avoid imputation of interest (taking into account any
exceptions to the imputed interest rules) for federal income tax purposes.
8.8 Code Definitions
For the purposes of this Section 8, parent corporation and subsidiary corporation shall
have the meanings attributed to those terms for purposes of Section 422 of the Code.
SECTION 9. STOCK AWARDS
9.1 Grant of Stock Awards
The Plan Administrator is authorized to make Awards of Common Stock or Awards denominated in
units of Common Stock on such terms and conditions and subject to such repurchase or forfeiture
restrictions, if any (which may be based on continuous service with the Company or the achievement
of performance goals, where such goals may be stated in absolute terms or relative to comparison
companies), as the Plan Administrator shall determine, in its sole discretion, which terms,
conditions and restrictions shall be set forth in
the instrument evidencing the Award. The terms, conditions and restrictions that the Plan
Administrator shall have the power to determine shall include, without limitation, the manner in
which shares subject to Stock Awards are held during the periods they are subject to restrictions
and the circumstances under which repurchase or forfeiture of the Stock Award shall occur by reason
of a Participants Termination of Service.
9.2 Issuance of Shares
Upon the satisfaction of any terms, conditions and restrictions prescribed in respect to a
Stock Award, or upon a Participants release from any terms, conditions and restrictions of a Stock
Award, as determined by the Plan Administrator, the Company shall release, as soon as practicable,
to the Participant or, in the case of the Participants death, to the personal representative of
the Participants estate or as the appropriate court directs, the appropriate number of shares of
Common Stock.
9.3 Waiver of Restrictions
Notwithstanding any other provisions of the Plan, the Plan Administrator may, in its sole
discretion, waive the repurchase or forfeiture period and any other terms, conditions or
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restrictions on any Stock Award under such circumstances and subject to such terms and conditions
as the Plan Administrator shall deem appropriate.
SECTION 10. WITHHOLDING
The Company may require the Participant to pay to the Company the amount of any taxes that the
Company is required by applicable federal, state, local or foreign law to withhold with respect to
the grant, vesting or exercise of an Award. The Company shall not be required to issue any shares
of Common Stock under the Plan until such obligations are satisfied.
The Plan Administrator may permit or require a Participant to satisfy all or part of his or
her tax withholding obligations by (a) paying cash to the Company, (b) having the Company withhold
from any cash amounts otherwise due or to become due from the Company to the Participant, or (c)
having the Company withhold a number of shares of Common Stock that would otherwise be issued to
the Participant (or become vested in the case of Stock Awards) having a value equal to the tax
withholding obligations, or (d) surrendering a number of shares of Common Stock the Participant
already owns having a value equal to the tax withholding obligations. The value of the shares so
withheld may not exceed the employers minimum required tax withholding rate, and the value of the
shares so tendered may not exceed such rate to the extent the Participant has owned the tendered
shares for less than six months if such limitation is necessary to avoid a charge to the Company
for financial reporting purposes.
SECTION 11. ASSIGNABILITY
No Award or interest in an Award may be assigned, pledged or transferred by the Participant or
made subject to attachment or similar proceedings otherwise than by will or by the applicable laws
of descent and distribution, except to the extent a Participant designates a beneficiary on a
Company-approved form who may exercise the Award or receive payment under the Award after the
Participants death. During a Participants lifetime, an Award may be exercised only by the
Participant. Notwithstanding the foregoing and to the extent permitted by Section 422 of the Code,
the Plan Administrator, in its sole discretion, may permit a Participant to assign or transfer an
Award; provided, however, that an Award so assigned or transferred shall be subject to all the
terms and conditions of the Plan and those contained in the instrument evidencing the Award.
SECTION 12. ADJUSTMENTS
12.1 Adjustment of Shares
In the event, at any time or from time to time after board approval of the Plan, a stock
dividend, stock split, spin-off, combination or exchange of shares, recapitalization, merger,
consolidation, distribution to shareholders other than a normal cash dividend, or other change in
the Companys corporate or capital structure results in (a) the outstanding shares of
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Common Stock,
or any securities exchanged therefor or received in their place, being exchanged for a different
number or kind of securities of the Company or of any other company or (b) new, different or
additional securities of the Company or of any other company being received by the holders of
shares of Common Stock of the Company, then the Plan Administrator shall make proportional
adjustments in (i) the maximum number and kind of securities subject to the Plan and issuable as
Incentive Stock Options as set forth in Section 4 and (ii) the number and kind of securities that
are subject to any outstanding Award and the per share price of such securities, without any change
in the aggregate price to be paid therefor. The determination by the Plan Administrator as to the
terms of any of the foregoing adjustments shall be conclusive and binding. Notwithstanding the
foregoing, a dissolution or liquidation of the Company or a Company Transaction shall not be
governed by this Section 12.1 but shall be governed by Sections 12.2 and 12.3, respectively.
12.2 Dissolution or Liquidation
To the extent not previously exercised or settled, and unless otherwise determined by the Plan
Administrator in its sole discretion, Options and Stock Awards denominated in units shall terminate
immediately prior to the dissolution or liquidation of the Company. To the extent a forfeiture
provision or repurchase right applicable to an Award has not been waived by the Plan Administrator,
the Award shall be forfeited immediately prior to the consummation of the dissolution or
liquidation.
12.3 Company Transaction
12.3.1 Options
In the event of a Company Transaction, except as otherwise provided in the instrument
evidencing an Option or in a written employment or services agreement between a Participant and the
Company or a Related Company,
(a) Except as provided in subsection (b) below, each outstanding Option shall be assumed or an
equivalent option or right substituted by the Successor Company.
(b) If in connection with a Company Transaction the Successor Company refuses to assume or
substitute for an Option, then each such outstanding Option shall become fully vested and
exercisable with respect to 100% of the unvested portion of the Option. In such case, the Plan
Administrator shall notify the Participant in writing or electronically that the unvested portion
of the Option specified above shall be fully vested and exercisable for a specified time period.
At the expiration of the time period, the Option shall terminate, provided that the Company
Transaction has occurred.
(c) For the purposes of this Section 12.3, the Option shall be considered assumed or
substituted for if following the Company Transaction the option or right confers the right to
purchase or receive, for each share of Common Stock subject to the Option immediately prior to the
Company Transaction, the consideration (whether stock, cash, or other securities
13
or property)
received in the Company Transaction by holders of Common Stock for each share held on the effective
date of the transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares); provided, however,
that if such consideration received in the Company Transaction is not solely common stock of the
Successor Company, the Plan Administrator may, with the consent of the Successor Company, provide
for the consideration to be received upon the exercise of the Option, for each share of Common
Stock subject thereto, to be solely common stock of the Successor Company substantially equal in
fair market value to the per share consideration received by holders of Common Stock in the Company
Transaction. The determination of such substantial equality of value of consideration shall be
made by the Plan Administrator, and its determination shall be conclusive and binding.
(d) All Options shall terminate and cease to remain outstanding immediately following the
Company Transaction, except to the extent assumed by the Successor Company.
12.3.2 Stock Awards
In the event of a Company Transaction, except as otherwise provided in the instrument
evidencing the Award and unless otherwise provided in a written employment or services agreement
between a Participant and the Company or a Related Company, the vesting of shares subject to Stock
Awards shall accelerate, and the forfeiture provisions to
which such shares are subject shall lapse, if and to the same extent that the vesting of
outstanding Options accelerates in connection with the Company Transaction. If unvested Options
are to be assumed or substituted by a Successor Company without acceleration upon the occurrence of
a Company Transaction, the repurchase or forfeiture provisions to which such Stock Awards are
subject shall continue with respect to shares of the Successor Company that may be issued in
exchange for such shares.
12.4 Further Adjustment of Awards
Subject to Sections 12.2 and 12.3, the Plan Administrator shall have the discretion,
exercisable at any time before a sale, merger, consolidation, reorganization, liquidation,
dissolution or change of control of the Company, as defined by the Plan Administrator, to take such
further action as it determines to be necessary or advisable with respect to Awards. Such
authorized action may include (but shall not be limited to) establishing, amending or waiving the
type, terms, conditions or duration of, or restrictions on, Awards so as to provide for earlier,
later, extended or additional time for exercise, lifting restrictions and other modifications, and
the Plan Administrator may take such actions with respect to all Participants, to certain
categories of Participants or only to individual Participants. The Plan Administrator may take
such action before or after granting Awards to which the action relates and before or after any
public announcement with respect to such sale, merger, consolidation, reorganization, liquidation,
dissolution or change of control that is the reason for such action.
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12.5 Limitations
The grant of Awards shall in no way affect the Companys right 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.
12.6 Fractional Shares
In the event of any adjustment in the number of shares covered by any Award, each such Award
shall cover only the number of full shares resulting from such adjustment.
SECTION 13. [RESERVED]
SECTION 14. AMENDMENT AND TERMINATION
14.1 Amendment, Suspension or Termination of Plan
The Board may amend, suspend or terminate the Plan or any portion of the Plan at any time and
in such respects as it shall deem advisable; provided, however, that to the extent required for
compliance with Section 422 of the Code or any applicable law or regulation,
shareholder approval shall be required for any amendment that would (a) increase the total
number of shares available for issuance under the Plan, (b) modify the class of employees eligible
to receive Options, or (c) otherwise require shareholder approval under any applicable law or
regulation. Any amendment made to the Plan that would constitute a modification to Incentive
Stock Options outstanding on the date of such amendment shall not, without the consent of the
Participant, be applicable to such outstanding Incentive Stock Options but shall have prospective
effect only.
14.2 Term of Plan
Unless sooner terminated as provided herein, the Plan shall terminate ten years after the
earlier of the Plans adoption by the Board and approval by the shareholders.
14.3 Consent of Participant
The suspension, amendment or termination of the Plan or a portion thereof or the amendment of
an outstanding Award shall not, without the Participants consent, materially adversely affect any
rights under any Award theretofore granted to the Participant under the Plan. Any change or
adjustment to an outstanding Incentive Stock Option shall not, without the consent of the
Participant, be made in a manner so as to constitute a modification that would cause such
Incentive Stock Option to fail to continue to qualify as an Incentive Stock Option.
Notwithstanding the foregoing, any adjustments made pursuant to Sections 12.1 through 12.3 shall
not be subject to these restrictions.
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SECTION 15. GENERAL
15.1 Evidence of Awards
Awards granted under the Plan shall be evidenced by a written instrument that shall contain
such terms, conditions, limitations and restrictions as the Plan Administrator shall deem advisable
and that are not inconsistent with the Plan.
15.2 No Individual Rights
Nothing in the Plan or any Award granted under the Plan shall be deemed to constitute an
employment contract or confer or be deemed to confer on any Participant any right to continue in
the employ of, or to continue any other relationship with, the Company or any Related Company or
limit in any way the right of the Company or any Related Company to terminate a Participants
employment or other relationship at any time, with or without Cause.
15.3 Issuance of Shares
Notwithstanding any other provision of the Plan, the Company shall have no obligation to issue
or deliver any shares of Common Stock under the Plan or make any other
distribution of benefits under the Plan unless, in the opinion of the Companys counsel, such
issuance, delivery or distribution would comply with all applicable laws (including, without
limitation, the requirements of the Securities Act or the laws of any state or foreign
jurisdiction), and the applicable requirements of any securities exchange or similar entity.
The Company shall be under no obligation to any Participant to register for offering or resale
or to qualify for exemption under the Securities Act, or to register or qualify under the laws of
any state or foreign jurisdiction, any shares of Common Stock, security or interest in a security
paid or issued under, or created by, the Plan, or to continue in effect any such registrations or
qualifications if made. The Company may issue certificates for shares with such legends and
subject to such restrictions on transfer and stop-transfer instructions as counsel for the Company
deems necessary or desirable for compliance by the Company with federal, state and foreign
securities laws.
To the extent the Plan or any instrument evidencing an Award provides for issuance of stock
certificates to reflect the issuance of shares of Common Stock, the issuance may be effected on a
noncertificated basis, to the extent not prohibited by applicable law or the applicable rules of
any stock exchange.
15.4 No Rights as a Shareholder
No Option or Stock Award denominated in units shall entitle the Participant to any cash
dividend, voting or other right of a shareholder unless and until the date of issuance under the
Plan of the shares that are the subject of such Award.
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15.5 Compliance With Laws and Regulations
Notwithstanding anything in the Plan to the contrary, the Plan Administrator, in its sole
discretion, may bifurcate the Plan so as to restrict, limit or condition the use of any provision
of the Plan to Participants who are officers or directors subject to Section 16 of the Exchange Act
without so restricting, limiting or conditioning the Plan with respect to other Participants.
Additionally, in interpreting and applying the provisions of the Plan, any Option granted as an
Incentive Stock Option pursuant to the Plan shall, to the extent permitted by law, be construed as
an incentive stock option within the meaning of Section 422 of the Code.
15.6 Participants in Other Countries
The Plan Administrator shall have the authority to adopt such modifications, procedures and
subplans as may be necessary or desirable to comply with provisions of the laws of other countries
in which the Company or any Related Company may operate to ensure the viability of the benefits
from Awards granted to Participants employed in such countries and to meet the objectives of the
Plan.
15.7 No Trust or Fund
The Plan is intended to constitute an unfunded plan. Nothing contained herein shall require
the Company to segregate any monies or other property, or shares of Common Stock, or to create any
trusts, or to make any special deposits for any immediate or deferred amounts payable to any
Participant, and no Participant shall have any rights that are greater than those of a general
unsecured creditor of the Company.
15.8 Severability
If any provision of the Plan or any Award is determined to be invalid, illegal or
unenforceable in any jurisdiction, or as to any person, or would disqualify the Plan or any Award
under any law deemed applicable by the Plan Administrator, such provision shall be construed or
deemed amended to conform to applicable laws, or, if it cannot be so construed or deemed amended
without, in the Plan Administrators determination, materially altering the intent of the Plan or
the Award, such provision shall be stricken as to such jurisdiction, person or Award, and the
remainder of the Plan and any such Award shall remain in full force and effect.
15.9 Choice of Law
The Plan and all determinations made and actions taken pursuant hereto, to the extent not
otherwise governed by the laws of the United States, shall be governed by the laws of the state of
California without giving effect to principles of conflicts of law.
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SECTION 16. EFFECTIVE DATE
The effective date is the date on which the Plan is adopted by the Board. If the shareholders
of the Company do not approve the Plan within 12 months after the Boards adoption of the Plan, any
Incentive Stock Options granted under the Plan will be treated as Nonqualified Stock Options.
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PLAN ADOPTION AND AMENDMENTS/ADJUSTMENTS
SUMMARY PAGE
SUMMARY PAGE
Date of Board | Section/Effect | Date of Shareholder | ||||
Action | Action | of Amendment | Approval | |||
February 21, 2002
|
Initial Plan Adoption | February 21, 2002 | ||||
September 1, 2005
|
Amendment of Plan | Plan amended effective at effective time of the assumption of the Plan by Cardiac Science Corporation to reflect the assumption and eliminate inoperative provisions | Not required |