Attached files
Exhibit 10.66
ChromaDex Corporation
2017 Equity Incentive Plan
Adopted by the Board of Directors: April 6, 2017
Approved by the Stockholders: June 20, 2017
Amended by the Board of Directors: January 21, 2018
(a) Successor to and Continuation
of Prior Plan. The Plan is
intended as the successor to and continuation of the ChromaDex
Corporation Second Amended and Restated 2007 Equity Incentive Plan,
(the “2007
Plan”). Following the
Effective Date, no additional awards may be granted under the 2007
Plan. In addition, from and after 12:01 a.m. Pacific Time
on the Effective Date, all outstanding
awards granted under the 2007 Plan and the ChromaDex, Inc. 2000
Non-Qualified Incentive Stock Option Plan (the
“2000
Plan” and together with
the 2007 Plan, the “Prior
Plans”) will remain
subject to the terms of the 2007 Plan or 2000 Plan, as
applicable; provided,
however, that the following
shares of Common Stock subject to any outstanding stock award granted under the
Prior Plans (collectively, the “Prior
Plans’ Returning
Shares”) will immediately
be added to the Share Reserve (as defined in Section 3(a)) as and
when such shares become Prior Plans’ Returning Shares and
become available for issuance pursuant to Awards granted under this
Plan: (i) any shares subject to such stock award that are
not issued because such stock award or any portion thereof expires
or otherwise terminates without all of the shares covered by such
stock award having been issued; (ii) any shares subject to such
stock award that are not issued because such stock award or any
portion thereof is settled in cash; (iii) any shares issued
pursuant to such stock award that are forfeited back to or
repurchased by the Company because of the failure to meet a
contingency or condition required for the vesting of such shares;
and (iv) any shares that are reacquired, withheld (or not issued)
to satisfy a tax withholding obligation in connection with an award
or to satisfy the purchase price or exercise price of a stock
award. All Awards granted on or after
12:01 a.m. Pacific Time on the
Effective Date will be subject to the terms of this
Plan.
(b) Eligible Award
Recipients. Employees,
Directors and Consultants are eligible to receive Awards. The
persons eligible to receive Inducement Awards are Employees who
meet the criteria set forth in Section 3(f).
(c) Available Awards.
The Plan provides for the grant of the
following types of Awards: (i) Incentive Stock Options; (ii)
Nonstatutory Stock Options; (iii) Stock Appreciation Rights; (iv)
Restricted Stock Awards; (v) Restricted Stock Unit Awards; (vi)
Performance Stock Awards; (vii) Performance Cash Awards; (viii)
Inducement Awards; and (ix) Other Stock Awards.
(d) Purpose.
The Plan, through the granting of Awards, is intended to help the
Company secure and retain the services of eligible award
recipients, provide incentives for such persons to exert maximum
efforts for the success of the Company and any Affiliate and
provide a means by which the eligible recipients may benefit from
increases in value of the Common Stock.
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2. Administration.
(a) Administration
by Board. The Board will administer the Plan. The Board may
delegate administration of the Plan to a Committee or Committees,
as provided in Section 2(c).
Notwithstanding anything to the contrary set forth herein, only an
Inducement Committee has the power to grant Inducement
Awards.
(b) Powers
of Board. The Board will have the power, subject to, and
within the limitations of, the express provisions of the
Plan:
(i) To
determine: (A) who will be granted Awards; (B) when and how each
Award will be granted; (C) what type of Award will be granted; (D)
the provisions of each Award (which need not be identical),
including when a Participant will be permitted to exercise or
otherwise receive cash or Common Stock under the Award; (E) the
number of shares of Common Stock subject to, or the cash value of,
an Award; and (F) the Fair Market Value applicable to a Stock
Award.
(ii) To
construe and interpret the Plan and Awards granted under it, and to
establish, amend and revoke rules and regulations for
administration of the Plan and Awards. The Board, in the exercise
of these powers, may correct any defect, omission or inconsistency
in the Plan or in any Award Agreement or in the written terms of a
Performance Cash Award, in a manner and to the extent it will deem
necessary or expedient to make the Plan or Award fully
effective.
(iii) To
settle all controversies regarding the Plan and Awards granted
under it.
(iv) To
accelerate, in whole or in part, the time at which an Award may be
exercised or vest (or at which cash or shares of Common Stock may
be issued).
(v) To
suspend or terminate the Plan at any time. Except as otherwise
provided in the Plan (including Section 2(b)(viii)) or an Award
Agreement, suspension or termination of the Plan will not
materially impair a Participant’s rights under an outstanding
Award without his or her written consent.
(vi) To
amend the Plan in any respect the Board deems necessary or
advisable, including, without limitation, by adopting amendments
relating to Incentive Stock Options and certain nonqualified
deferred compensation under Section 409A of the Code and/or to make
the Plan or Awards granted under the Plan compliant with the
requirements for Incentive Stock Options or exempt from or
compliant with the requirements for nonqualified deferred
compensation under Section 409A of the Code, subject to the
limitations, if any, of applicable law. If required by applicable
law or listing requirements, and except as provided in
Section 9(a) relating to Capitalization Adjustments, the
Company will seek stockholder approval of any amendment of the Plan
that (A) materially increases the number of shares of Common
Stock available for issuance under the Plan, (B) materially
expands the class of individuals eligible to receive Awards under
the Plan, (C) materially increases the benefits accruing to
Participants under the Plan, (D) materially reduces the price at
which shares of Common Stock may be issued or purchased under the
Plan, (E) materially extends the term of the Plan, or
(F) materially expands the types of Awards available for
issuance under the Plan. Except as otherwise provided in the Plan
(including Section 2(b)(viii)) or an Award Agreement, no amendment
of the Plan will materially impair a Participant’s rights
under an outstanding Award without his or her written
consent.
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(vii) To
submit any amendment to the Plan for stockholder approval,
including, but not limited to, amendments to the Plan intended to
satisfy the requirements of (A) Section 422 of the Code regarding
incentive stock options or (B) Rule 16b-3.
(viii) To
approve forms of Award Agreements for use under the Plan and to
amend the terms of any one or more outstanding Awards, including,
but not limited to, amendments to provide terms more favorable to
the Participant than previously provided in the Award Agreement,
subject to any specified limits in the Plan that are not subject to
Board discretion; provided,
however, that except as otherwise provided in the Plan
(including this Section 2(b)(viii)) or an Award Agreement, the
Board may not amend the terms of an outstanding Award if the Board,
in its sole discretion, determines that the amendment, taken as a
whole, will materially impair the Participant’s rights under
such Award without his or her written consent.
Notwithstanding the
foregoing or anything in the Plan to the contrary, unless
prohibited by applicable law, the Board may amend the terms of any
outstanding Award or the Plan, or may suspend or terminate the
Plan, without the affected Participant’s consent, (A) to
maintain the qualified status of the Award as an Incentive Stock
Option under Section 422 of the Code, (B) to change the terms of an
Incentive Stock Option, if such change results in impairment of the
Award solely because it impairs the qualified status of the Award
as an Incentive Stock Option under Section 422 of the Code,
(C) to clarify the manner of exemption from, or to bring the
Award or the Plan into compliance with, Section 409A of the Code,
or (D) to comply with other applicable laws or listing
requirements.
(ix) Generally,
to exercise such powers and to perform such acts as the Board deems
necessary or expedient to promote the best interests of the Company
and that are not in conflict with the provisions of the Plan or
Awards.
(x) To
adopt such procedures and sub-plans as are necessary or appropriate
to permit participation in the Plan by Employees, Directors or
Consultants who are foreign nationals or employed outside the
United States (provided that Board approval will not be necessary
for immaterial modifications to the Plan or any Award Agreement
that are required for compliance with the laws of the relevant
foreign jurisdiction).
(i) General. The Board may delegate some or all of the
administration of the Plan to a Committee or Committees. If
administration of the Plan is delegated to a Committee, the
Committee will have, in connection with the administration of the
Plan, the powers theretofore possessed by the Board that have been
delegated to the Committee, including the power to delegate to a
subcommittee of the Committee any of the administrative powers the
Committee is authorized to exercise (and references in this Plan to
the Board will thereafter be to the Committee or subcommittee, as
applicable). Any delegation of administrative powers will be
reflected in resolutions, not inconsistent with the provisions of
the Plan, adopted from time to time by the Board or Committee (as
applicable). The Committee may, at any time, abolish the
subcommittee and/or revest in the Committee any powers delegated to
the subcommittee. The Board may retain the authority to
concurrently administer the Plan with the Committee and may, at any
time, revest in the Board some or all of the powers previously
delegated.
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(ii) Section 162(m) and Rule 16b-3
Compliance. The Committee may
consist solely of two (2) or more Outside Directors, in accordance
with Section 162(m) of the Code, or solely of two (2) or more
Non-Employee Directors, in accordance with Rule
16b-3.
(iii) Inducement Awards.
Notwithstanding any other provision of
the Plan to the contrary, all Inducement Awards must be granted by
an Inducement Committee.
(d) Delegation
to an Officer. The Board may delegate to one (1) or more
Officers the authority to do one or both of the following: (i)
designate Employees who are not Officers to be recipients of
Options and SARs (and, to the extent permitted by applicable law,
other Stock Awards) and, to the extent permitted by applicable law,
the terms of such Awards; and (ii) determine the number of shares
of Common Stock to be subject to such Stock Awards granted to such
Employees; provided,
however, that the Board resolutions regarding such
delegation will specify the total number of shares of Common Stock
that may be subject to the Stock Awards granted by such Officer and
that such Officer may not grant a Stock Award to himself or
herself. Any such Stock Awards will be granted on the form of Award
Agreement most recently approved for use by the Committee or the
Board, unless otherwise provided in the resolutions approving the
delegation of authority. The Board may not delegate authority to an
Officer who is acting solely in the capacity of an Officer (and not
also as a Director) to determine the Fair Market Value pursuant to
Section 13(y)(iii).
(e) Effect
of Board’s Decision. All determinations,
interpretations and constructions made by the Board in good faith
will not be subject to review by any person and will be final,
binding and conclusive on all persons.
(f) Cancellation and Re-Grant of Stock
Awards. Neither the Board nor any Committee will have the
authority to (i) reduce the exercise or strike price of any
outstanding Option or SAR under the Plan or (ii) cancel any
outstanding Option or SAR that has an exercise or strike price
greater than the then-current Fair Market Value of the Common Stock
in exchange for cash or other Stock Awards under the Plan, unless
the stockholders of the Company have approved such an action within
twelve (12) months prior to such an event.
3. Shares
Subject to the Plan.
(i) Subject
to Section 9(a) relating to Capitalization Adjustments, the
aggregate number of shares of Common Stock that may be issued
pursuant to Stock Awards from and after the Effective Date will not
exceed 9,293,960 shares, which is the sum of (A) 3,000,000 new
shares, plus (B) the Prior Plans’ Returning Shares, if any,
which become available for grant under this Plan from time to time
(such aggregate number of shares described in (A) and (B) above,
the “Share
Reserve”), plus (C) 500,000 shares that may be issued
pursuant to Inducement Awards granted under Section 3(f) of the
Plan.
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(ii) For
clarity, the Share Reserve in this Section 3(a) is a limitation on
the number of shares of Common Stock that may be issued pursuant to
the Plan. Accordingly, this Section 3(a) does not limit the
granting of Stock Awards except as provided in Section 7(a). Shares
may be issued in connection with a merger or acquisition as
permitted by NASDAQ Listing Rule 5635(c) or, if applicable, NYSE
Listed Company Manual Section 303A.08, AMEX Company Guide Section
711 or other applicable rule, and such issuance will not reduce the
number of shares available for issuance under the
Plan.
(b) Reversion of Shares to the Share
Reserve. If a Stock Award or any portion thereof (i) expires
or otherwise terminates without all of the shares covered by such
Stock Award having been issued or (ii) is settled in cash (i.e.,
the Participant receives cash rather than stock), such expiration,
termination or settlement will not reduce (or otherwise offset) the
number of shares of Common Stock that may be available for issuance
under the Plan. If any shares of Common Stock issued pursuant to a
Stock Award are forfeited back to or repurchased by the Company
because of the failure to meet a contingency or condition required
to vest such shares in the Participant, then the shares that are
forfeited or repurchased will revert to and again become available
for issuance under the Plan. Any shares reacquired by the Company
in satisfaction of tax withholding obligations on a Stock Award or
as consideration for the exercise or purchase price of a Stock
Award will again become available for issuance under the Plan.
Notwithstanding the foregoing, any
Inducement Shares that become available for issuance under the Plan
pursuant to this subsection 3(b) will only become available for
issuance pursuant to Inducement Awards.
(c) Incentive Stock Option Limit. Subject to
the Share Reserve and Section 9(a) relating to Capitalization
Adjustments, the aggregate maximum number of shares of Common Stock
that may be issued pursuant to the exercise of Incentive Stock
Options will be 17,587,920 shares of Common Stock.
(d) Reserved.
(e) Limits on Grants to Non-Employee
Directors. The maximum number of
shares of Common Stock subject to Stock Awards granted under the
Plan or otherwise during any one calendar year to any Non-Employee
Director, taken together with any cash fees paid by the Company to
such Non-Employee Director during such calendar year for service on
the Board, will not exceed six hundred thousand dollars ($600,000)
in total value (calculating the value of any such Stock Awards
based on the grant date fair value of such Stock Awards for
financial reporting purposes), or, with respect to the calendar
year in which a Non-Employee Director is first appointed or elected
to the Board, nine hundred thousand dollars
($900,000).
(f) Inducement
Shares. This subsection 3(f) will apply with respect to the
shares reserved under this Plan by action of the Board (or a
committee thereof) to be used exclusively for the grant of
Inducement Awards in compliance with NASDAQ Listing Rule 5635(c)(4)
(the “Inducement
Shares”). Notwithstanding anything to the contrary in
this Plan, an Inducement Award may be granted only to an Employee
who has not previously been an Employee or a non-Employee Director
of the Company or an Affiliate, or following a bona fide period of
non-employment, as an inducement material to the individual’s
entering into employment with the Company within the meaning of
Rule 5635(c)(4) of the NASDAQ Listing Rules.
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(g) Source
of Shares. The stock issuable under the Plan will be shares
of authorized but unissued or reacquired Common Stock, including
shares repurchased by the Company on the open market or
otherwise.
4. Eligibility.
(a) Eligibility
for Specific Stock Awards. Incentive Stock Options may be
granted only to employees of the Company or a “parent
corporation” or “subsidiary corporation” thereof
(as such terms are defined in Sections 424(e) and 424(f) of the
Code). Stock Awards other than Incentive Stock Options may be
granted to Employees, Directors and Consultants; provided, however, that Stock Awards
may not be granted to Employees, Directors and Consultants who are
providing Continuous Service only to any “parent” of
the Company, as such term is defined in Rule 405, unless (i) the
stock underlying such Stock Awards is treated as “service
recipient stock” under Section 409A of the Code (for example,
because the Stock Awards are granted pursuant to a corporate
transaction such as a spin off transaction) or (ii) the Company, in
consultation with its legal counsel, has determined that such Stock
Awards are otherwise exempt from or alternatively comply with
Section 409A of the Code.
(b) Ten Percent Stockholders. A Ten Percent
Stockholder will not be granted an Incentive Stock Option unless
the exercise price of such Option is at least one hundred ten
percent (110%) of the Fair Market Value on the date of grant and
the Option is not exercisable after the expiration of five (5)
years from the date of grant.
Each
Option or SAR Agreement will be in such form and will contain such
terms and conditions as the Board deems appropriate. All Options
will be separately designated Incentive Stock Options or
Nonstatutory Stock Options at the time of grant, and, if
certificates are issued, a separate certificate or certificates
will be issued for shares of Common Stock purchased on exercise of
each type of Option. If an Option is not specifically designated as
an Incentive Stock Option, or if an Option is designated as an
Incentive Stock Option but some portion or all of the Option fails
to qualify as an Incentive Stock Option under the applicable rules,
then the Option (or portion thereof) will be a Nonstatutory Stock
Option. The terms and conditions of separate Option or SAR
Agreements need not be identical; provided, however, that each Award
Agreement will conform to (through incorporation of the provisions
hereof by reference in the applicable Award Agreement or otherwise)
the substance of each of the following provisions:
(a) Term.
Subject to the provisions of Section 4(b) regarding Ten Percent
Stockholders, no Option or SAR will be exercisable after the
expiration of ten (10) years from the date of its grant or such
shorter period specified in the Award Agreement.
(b) Exercise Price. Subject to the
provisions of Section 4(b) regarding Ten Percent Stockholders, the
exercise or strike price of each Option or SAR will be not less
than one hundred percent (100%) of the Fair Market Value of the
Common Stock subject to the Option or SAR on the date the Award is
granted. Notwithstanding the foregoing, an Option or SAR may be
granted with an exercise or strike price lower than one hundred
percent (100%) of the Fair Market Value of the Common Stock subject
to the Award if such Award is granted pursuant to an assumption of
or substitution for another option or stock appreciation right
pursuant to a Corporate Transaction and in a manner consistent with
the provisions of Section 409A of the Code and, if applicable,
Section 424(a) of the Code. Each SAR
will be denominated in shares of Common Stock
equivalents.
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(c) Purchase
Price for Options. The purchase price of Common Stock
acquired pursuant to the exercise of an Option may be paid, to the
extent permitted by applicable law and as determined by the Board
in its sole discretion, by any combination of the methods of
payment set forth below. The Board will have the authority to grant
Options that do not permit all of the following methods of payment
(or that otherwise restrict the ability to use certain methods) and
to grant Options that require the consent of the Company to use a
particular method of payment. The permitted methods of payment are
as follows:
(i) by
cash (including electronic funds transfers), check, bank draft or
money order payable to the Company;
(ii) pursuant
to a program developed under Regulation T as promulgated by the
Federal Reserve Board that, prior to the issuance of the stock
subject to the Option, results in either the receipt of cash (or
check) by the Company or the receipt of irrevocable instructions to
pay the aggregate exercise price to the Company from the sales
proceeds;
(iii) by
delivery to the Company (either by actual delivery or attestation)
of shares of Common Stock;
(iv) if
an Option is a Nonstatutory Stock Option, by a “net
exercise” arrangement pursuant to which the Company will
reduce the number of shares of Common Stock issuable upon exercise
by the largest whole number of shares with a Fair Market Value that
does not exceed the aggregate exercise price; provided, however, that the Company
will accept a cash or other payment from the Participant to the
extent of any remaining balance of the aggregate exercise price not
satisfied by such reduction in the number of whole shares to be
issued. Shares of Common Stock will no longer be subject to an
Option and will not be exercisable thereafter to the extent that
(A) shares issuable upon exercise are used to pay the exercise
price pursuant to the “net exercise,” (B) shares are
delivered to the Participant as a result of such exercise, and (C)
shares are withheld to satisfy tax withholding obligations;
or
(v) in
any other form of legal consideration that may be acceptable to the
Board and specified in the applicable Award Agreement.
(d) Exercise
and Payment of a SAR. To exercise any outstanding SAR, the
Participant must provide written notice of exercise to the Company
in compliance with the provisions of the Award Agreement evidencing
such SAR. The appreciation distribution payable on the exercise of
a SAR will be not greater than an amount equal to the excess of
(A) the aggregate Fair Market Value (on the date of the
exercise of the SAR) of a number of shares of Common Stock equal to
the number of Common Stock equivalents in which the Participant is
vested under such SAR, and with respect to which the Participant is
exercising the SAR on such date, over (B) the aggregate strike
price of the number of Common Stock equivalents with respect to
which the Participant is exercising the SAR on such date. The
appreciation distribution may be paid in Common Stock, in cash, in
any combination of the two or in any other form of consideration,
as determined by the Board and contained in the Award Agreement
evidencing such SAR.
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(e) Transferability
of Options and SARs. The Board may, in its sole discretion,
impose such limitations on the transferability of Options and SARs
as the Board will determine. In the absence of such a determination
by the Board to the contrary, the following restrictions on the
transferability of Options and SARs will apply:
(i) Restrictions
on Transfer. An Option or SAR will not be transferable,
except by will or by the laws of descent and distribution (or
pursuant to Sections 5(e)(ii) and 5(e)(iii)), and will be
exercisable during the lifetime of the Participant only by the
Participant. The Board may permit transfer of the Option or SAR in
a manner that is not prohibited by applicable tax and securities
laws. Except as explicitly provided in the Plan, neither an Option
nor a SAR may be transferred for consideration.
(ii) Domestic
Relations Orders. Subject to the approval of the Board or a
duly authorized Officer, an Option or SAR may be transferred
pursuant to the terms of a domestic relations order, official
marital settlement agreement or other divorce or separation
instrument as permitted by Treasury Regulations Section
1.421-1(b)(2). If an Option is an Incentive Stock Option, such
Option may be deemed to be a Nonstatutory Stock Option as a result
of such transfer.
(iii) Beneficiary
Designation. Subject to the approval of the Board or a duly
authorized Officer, a Participant may, by delivering written notice
to the Company, in a form approved by the Company (or the
designated broker), designate a third party who, upon the death of
the Participant, will thereafter be entitled to exercise the Option
or SAR and receive the Common Stock or other consideration
resulting from such exercise. In the absence of such a designation,
upon the death of the Participant, the executor or administrator of
the Participant’s estate will be entitled to exercise the
Option or SAR and receive the Common Stock or other consideration
resulting from such exercise. However, the Company may prohibit
designation of a beneficiary at any time, including due to any
conclusion by the Company that such designation would be
inconsistent with the provisions of applicable laws.
(f) Vesting
Generally. The total number of shares of Common Stock
subject to an Option or SAR may vest and become exercisable in
periodic installments that may or may not be equal. The Option or
SAR may be subject to such other terms and conditions on the time
or times when it may or may not be exercised (which may be based on
the satisfaction of Performance Goals or other criteria) as the
Board may deem appropriate. The vesting provisions of individual
Options or SARs may vary. The provisions of this Section 5(f) are
subject to any Option or SAR provisions governing the minimum
number of shares of Common Stock as to which an Option or SAR may
be exercised.
(g) Termination of Continuous
Service. Except as otherwise
provided in the applicable Award Agreement or other written
agreement between a Participant and the Company or an Affiliate, if
a Participant’s Continuous Service terminates (other than for
Cause and other than upon the Participant’s death or
Disability), the Participant may exercise his or her Option or SAR
(to the extent that the Participant was entitled to exercise such
Option or SAR as of the date of termination of Continuous Service),
but only within such period of time ending on the earlier of (i)
the date that is three (3) months following such termination of
Continuous Service (or such longer or shorter period specified in
the Award Agreement), and (ii) the expiration of the term of the
Option or SAR as set forth in the Award Agreement. If, after such
termination of Continuous Service, the Participant does not
exercise his or her Option or SAR (as applicable) within the
applicable time frame, the Option or SAR (as applicable) will
terminate.
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(h) Extension of Termination
Date. Except as otherwise
provided in the applicable Award Agreement or other written
agreement between a Participant and the Company or an
Affiliate, if the exercise of an Option or SAR following the
termination of a Participant’s Continuous Service (other than
for Cause and other than upon the Participant’s death or
Disability) would be prohibited at any time solely because the
issuance of shares of Common Stock would violate the registration
requirements under the Securities Act, then the Option or SAR will
terminate on the earlier of (i) the expiration of a total period of
time (that need not be consecutive) equal to the applicable
post-termination exercise period after the termination of the
Participant’s Continuous Service during which the exercise of
the Option or SAR would not be in violation of such registration
requirements, or (ii) the expiration of the term of the Option or
SAR as set forth in the applicable Award Agreement. In addition,
except as otherwise provided in the applicable Award Agreement or
other written agreement between a Participant and the Company or an
Affiliate, if the sale of any Common Stock received upon exercise
of an Option or SAR following the termination of a
Participant’s Continuous Service (other than for Cause) would
violate the Company’s insider trading policy, then the Option
or SAR will terminate on the earlier of (i) the expiration of a
total period of time (that need not be consecutive) equal to the
applicable post-termination exercise period after the termination
of the Participant’s Continuous Service during which the sale
of the Common Stock received upon exercise of the Option or SAR
would not be in violation of the Company’s insider trading
policy, or (ii) the expiration of the term of the Option or SAR as
set forth in the applicable Award Agreement.
(i) Disability of
Participant. Except as
otherwise provided in the applicable Award Agreement or other
written agreement between a Participant and the Company or an
Affiliate, if a Participant’s Continuous Service terminates
as a result of the Participant’s Disability, the Participant
may exercise his or her Option or SAR (to the extent that the
Participant was entitled to exercise such Option or SAR as of the
date of termination of Continuous Service), but only within such
period of time ending on the earlier of (i) the date that is twelve
(12) months following such termination of Continuous Service (or
such longer or shorter period specified in the Award
Agreement), and (ii) the
expiration of the term of the Option or SAR as set forth in the
Award Agreement. If, after such termination of Continuous Service,
the Participant does not exercise his or her Option or SAR (as
applicable) within the applicable time frame, the Option or SAR (as
applicable) will terminate.
(j) Death of
Participant. Except
as otherwise provided in the applicable Award Agreement or other
written agreement between a Participant and the Company or an
Affiliate, if (i) a Participant’s Continuous Service
terminates as a result of the Participant’s death, or (ii) a
Participant dies within the period (if any) specified in the Award
Agreement for exercisability after the termination of the
Participant’s Continuous Service (for a reason other than
death), then the Participant’s Option or SAR may be exercised
(to the extent that the Participant was entitled to exercise such
Option or SAR as of the date of death) by the Participant’s
estate, by a person who acquired the right to exercise the Option
or SAR by bequest or inheritance, or by a person designated to
exercise the Option or SAR upon the Participant’s death, but
only within such period of time ending on the earlier of (i) the
date that is eighteen (18) months following the date of death (or
such longer or shorter period specified in the Award Agreement),
and (ii) the expiration of the term of the Option or SAR as set
forth in the Award Agreement. If, after the Participant’s
death, the Option or SAR (as applicable) is not exercised within
the applicable time frame, the Option or SAR (as applicable) will
terminate.
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(k) Termination for Cause.
Except as explicitly provided
otherwise in the applicable Award Agreement or other individual
written agreement between a Participant and the Company or an
Affiliate, if a Participant’s Continuous Service is
terminated for Cause, the Participant’s Option or SAR will
terminate immediately upon such termination of Continuous Service,
and the Participant will be prohibited from exercising his or her
Option or SAR from and after the time of such termination of
Continuous Service.
(l) Non-Exempt
Employees. If an Option or SAR is granted to an Employee who
is a non-exempt employee for purposes of the Fair Labor Standards
Act of 1938, as amended, the Option or SAR will not be first
exercisable for any shares of Common Stock until at least
six (6) months following the date of grant of the Option or
SAR (although the Award may vest prior to such date). Consistent
with the provisions of the Worker Economic Opportunity Act, (i) if
such non-exempt employee dies or suffers a Disability, (ii) upon a
Corporate Transaction in which such Option or SAR is not assumed,
continued or substituted, (iii) upon a Change in Control, or (iv)
upon the Participant’s retirement (as such term may be
defined in the Participant’s Award Agreement, in another
written agreement between the Participant and the Company or an
Affiliate, or, if no such definition, in accordance with the
Company’s then current employment policies and guidelines),
the vested portion of any Options and SARs may be exercised earlier
than six (6) months following the date of grant. The foregoing
provision is intended to operate so that any income derived by a
non-exempt employee in connection with the exercise or vesting of
an Option or SAR will be exempt from his or her regular rate of
pay. To the extent permitted and/or required for compliance with
the Worker Economic Opportunity Act to ensure that any income
derived by a non-exempt employee in connection with the exercise,
vesting or issuance of any shares under any other Stock Award will
be exempt from the employee’s regular rate of pay, the
provisions of this Section 5(l) will apply to all Stock Awards and
are hereby incorporated by reference into such Stock Award
Agreements.
(a) Restricted Stock Awards. Each Restricted
Stock Award Agreement will be in such form and will contain such
terms and conditions as the Board deems appropriate. To the extent consistent with the Company’s
bylaws, at the Board’s election, shares of Common
Stock underlying a Restricted Stock Award may be (i) held in book
entry form subject to the Company’s instructions until any
restrictions relating to the Restricted Stock Award lapse, or
(ii) evidenced by a certificate, which certificate will be
held in such form and manner as determined by the Board. The terms
and conditions of separate Restricted Stock Award Agreements need
not be identical; provided,
however, that each Restricted Stock Award Agreement will
conform to (through incorporation of the provisions hereof by
reference in the applicable Award Agreement or otherwise) the
substance of each of the following provisions:
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(i) Consideration.
A Restricted Stock Award may be awarded in consideration for (A)
cash (including electronic funds transfers), check, bank draft or
money order payable to the Company, (B) past services to the
Company or an Affiliate, or (C) any other form of legal
consideration (including future services) that may be acceptable to
the Board, in its sole discretion, and permissible under applicable
law.
(ii) Vesting.
Shares of Common Stock awarded under a Restricted Stock Award
Agreement may be subject to forfeiture to or repurchase by the
Company in accordance with a vesting schedule to be determined by
the Board.
(iii) Termination
of Continuous Service. If a Participant’s Continuous
Service terminates, the Company may receive through a forfeiture
condition or a repurchase right any or all of the shares of Common
Stock held by the Participant that have not vested as of the date
of such termination under the terms of the Participant’s
Restricted Stock Award Agreement.
(iv) Transferability.
Rights to acquire shares of Common Stock under a Restricted Stock
Award Agreement will be transferable by the Participant only upon
such terms and conditions as are set forth in the Restricted Stock
Award Agreement, as the Board will determine in its sole
discretion, so long as Common Stock awarded under the Restricted
Stock Award Agreement remains subject to the terms of the
Restricted Stock Award Agreement.
(v) Dividends.
A Restricted Stock Award Agreement may provide that any dividends
paid on Restricted Stock will be subject to the same vesting and
forfeiture restrictions as apply to the shares subject to the
Restricted Stock Award to which they relate.
(b) Restricted Stock Unit
Awards. Each Restricted Stock
Unit Award Agreement will be in such form and will contain such
terms and conditions as the Board deems appropriate. The terms and
conditions of separate Restricted Stock Unit Award Agreements need
not be identical; provided,
however, that each Restricted
Stock Unit Award Agreement will conform to (through incorporation
of the provisions hereof by reference in the applicable
Award Agreement or otherwise) the
substance of each of the following provisions:
(i) Consideration.
At the time of grant of a Restricted
Stock Unit Award, the Board will determine the consideration, if
any, to be paid by the Participant upon delivery of each share of
Common Stock subject to the Restricted Stock Unit Award. The
consideration to be paid (if any) by the Participant for each share
of Common Stock subject to a Restricted Stock Unit Award may be
paid in any form of legal consideration that may be acceptable to
the Board, in its sole discretion, and permissible under applicable
law.
(ii) Vesting.
At the time of the grant of a
Restricted Stock Unit Award, the Board may impose such restrictions
on or conditions to the vesting of the Restricted Stock Unit Award
as it, in its sole discretion, deems
appropriate.
(iii) Payment. A Restricted Stock Unit Award may be settled by
the delivery of shares of Common Stock, their cash equivalent, any
combination thereof or in any other form of consideration, as
determined by the Board and contained in the Restricted Stock Unit
Award Agreement.
-11-
(iv) Additional Restrictions.
At the time of the grant of a
Restricted Stock Unit Award, the Board, as it deems appropriate,
may impose such restrictions or conditions that delay the delivery
of the shares of Common Stock (or their cash equivalent) subject to
the Restricted Stock Unit Award to a time after the vesting of the
Restricted Stock Unit Award.
(v) Dividend Equivalents.
Dividend equivalents may be credited
in respect of shares of Common Stock covered by a Restricted Stock
Unit Award, as determined by the Board and contained in the
Restricted Stock Unit Award Agreement. At the sole discretion of
the Board, such dividend equivalents may be converted into
additional shares of Common Stock covered by the Restricted Stock
Unit Award in such manner as determined by the Board. Any
additional shares covered by the Restricted Stock Unit Award
credited by reason of such dividend equivalents will be subject to
all of the same terms and conditions of the underlying Restricted
Stock Unit Award Agreement to which they
relate.
(vi) Termination
of Continuous Service. Except
as otherwise provided in the applicable Restricted Stock Unit Award
Agreement or other written agreement between a Participant and the
Company or an Affiliate, if a Participant’s Continuous
Service terminates, any portion of the Participant’s
Restricted Stock Unit Award that has not vested as of the
date of such termination will be
forfeited upon such termination.
(c) Performance
Awards.
(i) Performance
Stock Awards. A Performance Stock Award is a Stock Award
that is payable (including that may be granted, vest or be
exercised) contingent upon the attainment during a Performance
Period of specified Performance Goals. A Performance Stock Award
may, but need not, require the Participant’s completion of a
specified period of Continuous Service. The length of any
Performance Period, the Performance Goals to be achieved during the
Performance Period, and the measure of whether and to what degree
such Performance Goals have been attained will be conclusively
determined by the Committee (or, to the extent that an Award is not
intended to qualify as “performance-based compensation”
under Section 162(m) of the Code, the Board or the Committee), in
its sole discretion. In addition, to the extent permitted by
applicable law and the applicable Award Agreement, the Board or the
Committee may determine that cash may be used in payment of
Performance Stock Awards.
(ii) Performance
Cash Awards. A Performance Cash Award is a cash award that
is payable contingent upon the attainment during a Performance
Period of specified Performance Goals. A Performance Cash Award
may, but need not, require the Participant’s completion of a
specified period of Continuous Service. The length of any
Performance Period, the Performance Goals to be achieved during the
Performance Period, and the measure of whether and to what degree
such Performance Goals have been attained will be conclusively
determined by the Committee (or, to the extent that an Award is not
intended to qualify as “performance-based compensation”
under Section 162(m) of the Code, the Board or the Committee), in
its sole discretion. The Board or the Committee may specify the
form of payment of Performance Cash Awards, which may be cash or
other property, or may provide for a Participant to have the option
for his or her Performance Cash Award, or such portion thereof as
the Board or the Committee may specify, to be paid in whole or in
part in cash or other property.
-12-
(iii) Committee
and Board Discretion. With respect to any Performance Stock
Award or Performance Cash Award, the Committee (or, to the extent
that an Award is not intended to qualify as
“performance-based compensation” under Section 162(m)
of the Code, the Board or the Committee) retains the discretion to
(A) reduce or eliminate the compensation or economic benefit due
upon attainment of the Performance Goals on the basis of any
considerations as the Committee or Board (as applicable), in its
sole discretion, may determine and (B) define the manner of
calculating the Performance Criteria it selects to use for a
Performance Period.
(iv) Section
162(m) Compliance. With respect to any Award intended to
qualify as “performance-based compensation” under
Section 162(m) of the Code, unless otherwise permitted under
Section 162(m) of the Code, the Committee will establish the
Performance Goals applicable to, and the formula for calculating
the amount payable under, the Award no later than the earlier of
(A) the date ninety (90) days after the commencement of the
applicable Performance Period, and (B) the date on which
twenty-five percent (25%) of the Performance Period has elapsed,
and in any event at a time when the achievement of the applicable
Performance Goals remains substantially uncertain. Prior to the
payment of any compensation under an Award intended to qualify as
“performance-based compensation” under
Section 162(m) of the Code, the Committee will certify the
extent to which any Performance Goals and any other material terms
under such Award have been satisfied (other than in cases where
such Performance Goals or terms relate solely to the increase in
the value of the Common Stock).
(d) Other Stock Awards.
Other forms of Stock Awards valued in whole or in part by reference
to, or otherwise based on, Common Stock, including the appreciation
in value thereof (e.g.,
options or stock appreciation rights with an exercise price or
strike price less than one hundred percent (100%) of the Fair
Market Value of the Common Stock at the time of grant) may be
granted either alone or in addition to Stock Awards granted under
Section 5 and this Section 6. Subject to the provisions of the Plan, the
Board will have sole and complete authority to determine the
persons to whom and the time or times at which such Other Stock
Awards will be granted, the number of shares of Common Stock (or
the cash equivalent thereof) to be granted pursuant to such Other
Stock Awards and all other terms and conditions of such Other Stock
Awards.
7. Covenants
of the Company.
(a) Availability of Shares. The Company will
keep available at all times the number of shares of Common Stock
reasonably required to satisfy then-outstanding Stock
Awards.
(b) Securities
Law Compliance. The Company will seek to obtain from each
regulatory commission or agency having jurisdiction over the Plan
the authority required to grant Stock Awards and to issue and sell
shares of Common Stock upon exercise of the Stock Awards;
provided, however, that
this undertaking will not require the Company to register under the
Securities Act the Plan, any Stock Award or any Common Stock issued
or issuable pursuant to any such Stock Award. If, after reasonable
efforts and at a reasonable cost, the Company is unable to obtain
from any such regulatory commission or agency the authority that
counsel for the Company deems necessary for the lawful issuance and
sale of Common Stock under the Plan, the Company will be relieved
from any liability for failure to issue and sell Common Stock upon
exercise of such Stock Awards unless and until such authority is
obtained. A Participant will not be eligible for the grant of an
Award or the subsequent issuance of cash or Common Stock pursuant
to the Award if such grant or issuance would be in violation of any
applicable securities law.
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(c) No
Obligation to Notify or Minimize Taxes. The Company will
have no duty or obligation to any Participant to advise such holder
as to the time or manner of exercising a Stock Award. Furthermore,
the Company will have no duty or obligation to warn or otherwise
advise such holder of a pending termination or expiration of an
Award or a possible period in which the Award may not be exercised.
The Company has no duty or obligation to minimize the tax
consequences of an Award to the holder of such Award.
8. Miscellaneous.
(a) Use
of Proceeds from Sales of Common Stock. Proceeds from the
sale of shares of Common Stock issued pursuant to Stock Awards will
constitute general funds of the Company.
(b) Corporate
Action Constituting Grant of Awards. Corporate action
constituting a grant by the Company of an Award to any Participant
will be deemed completed as of the date of such corporate action,
unless otherwise determined by the Board, regardless of when the
instrument, certificate or letter evidencing the Award is
communicated to, or actually received or accepted by, the
Participant. In the event that the corporate records (e.g., Board consents, resolutions or
minutes) documenting the corporate action constituting the grant
contain terms (e.g.,
exercise price, vesting schedule or number of shares) that are
inconsistent with those in the Award Agreement or related grant
documents as a result of a clerical error in the papering of the
Award Agreement or related grant documents, the corporate records
will control and the Participant will have no legally binding right
to the incorrect term in the Award Agreement or related grant
documents.
(c) Stockholder
Rights. No Participant will be deemed to be the holder of,
or to have any of the rights of a holder with respect to, any
shares of Common Stock subject to an Award unless and until (i)
such Participant has satisfied all requirements for exercise of, or
the issuance of shares of Common Stock under, the Award pursuant to
its terms, and (ii) the issuance of the Common Stock subject to
such Award has been entered into the books and records of the
Company.
(d) No
Employment or Other Service Rights. Nothing in the Plan, any Award Agreement or any
other instrument executed thereunder or in connection with any
Award granted pursuant thereto will confer upon any
Participant any right to continue to serve the Company or an
Affiliate in the capacity in effect at the time the Award was
granted or will affect the right of the Company or an Affiliate to
terminate (i) the employment of an Employee with or without notice
and with or without cause, (ii) the service of a Consultant
pursuant to the terms of such Consultant’s agreement with the
Company or an Affiliate, or (iii) the service of a Director
pursuant to the bylaws of the Company or an Affiliate, and any
applicable provisions of the corporate law of the state in which
the Company or the Affiliate is incorporated, as the case may
be.
(e) Change
in Time Commitment. In the event a Participant’s
regular level of time commitment in the performance of his or her
services for the Company or any Affiliate is reduced (for example,
and without limitation, if the Participant is an Employee of the
Company and the Employee has a change in status from a full-time
Employee to a part-time Employee or takes an extended leave of
absence) after the date of grant of any Award to the Participant,
the Board has the right in its sole discretion to (i) make a
corresponding reduction in the number of shares or cash amount
subject to any portion of such Award that is scheduled to vest or
become payable after the date of such change in time commitment,
and (ii) in lieu of or in combination with such a reduction, extend
the vesting or payment schedule applicable to such Award. In the
event of any such reduction, the Participant will have no right
with respect to any portion of the Award that is so reduced or
extended.
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(f) Incentive
Stock Option Limitations. To the extent that the aggregate
Fair Market Value (determined at the time of grant) of Common Stock
with respect to which Incentive Stock Options are exercisable for
the first time by any Participant during any calendar year (under
all plans of the Company and any Affiliates) exceeds one hundred
thousand dollars ($100,000) (or such other limit established in the
Code) or otherwise does not comply with the rules governing
Incentive Stock Options, the Options or portions thereof that
exceed such limit (according to the order in which they were
granted) or otherwise do not comply with such rules will be treated
as Nonstatutory Stock Options, notwithstanding any contrary
provision of the applicable Option Agreement(s).
(g) Investment
Assurances. The Company may require a Participant, as a
condition of exercising or acquiring Common Stock under any Award,
(i) to give written assurances satisfactory to the Company as to
the Participant’s knowledge and experience in financial and
business matters and/or to employ a purchaser representative
reasonably satisfactory to the Company who is knowledgeable and
experienced in financial and business matters and that he or she is
capable of evaluating, alone or together with the purchaser
representative, the merits and risks of exercising the Award, and
(ii) to give written assurances satisfactory to the Company stating
that the Participant is acquiring Common Stock subject to the Award
for the Participant’s own account and not with any present
intention of selling or otherwise distributing the Common Stock.
The foregoing requirements, and any assurances given pursuant to
such requirements, will be inoperative if (A) the issuance of the
shares upon the exercise or acquisition of Common Stock under the
Stock Award has been registered under a then currently effective
registration statement under the Securities Act, or (B) as to any
particular requirement, a determination is made by counsel for the
Company that such requirement need not be met in the circumstances
under the then applicable securities laws. The Company may, upon
advice of counsel to the Company, place legends on stock
certificates issued under the Plan as such counsel deems necessary
or appropriate in order to comply with applicable securities laws,
including, but not limited to, legends restricting the transfer of
the Common Stock.
(h) Withholding Obligations. Unless prohibited by the terms of an Award
Agreement, the Company may, in its sole discretion, satisfy any
federal, state or local tax withholding obligation relating to an
Award by any of the following means or by a combination of such
means: (i) causing the Participant to tender a cash payment; (ii)
withholding shares of Common Stock from the shares of Common Stock
issued or otherwise issuable to the Participant in connection with
the Stock Award; provided, however,
that no shares of Common Stock are
withheld with a value exceeding the minimum amount of tax required
to be withheld by law (or such lesser amount as may be necessary to
avoid classification of the Stock Award as a liability for
financial accounting purposes); (iii) withholding cash from an
Award settled in cash; (iv) withholding payment from any amounts
otherwise payable to the Participant; or (v) by such other method
as may be set forth in the Award Agreement.
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(i) Electronic
Delivery. Any reference herein to a “written”
agreement or document will include any agreement or document
delivered electronically, filed publicly at www.sec.gov (or any
successor website thereto) or posted on the Company’s
intranet (or other shared electronic medium controlled by the
Company to which the Participant has access).
(j) Deferrals.
To the extent permitted by applicable law, the Board, in its sole
discretion, may determine that the delivery of Common Stock or the
payment of cash, upon the exercise, vesting or settlement of all or
a portion of any Award may be deferred and may establish programs
and procedures for deferral elections to be made by Participants.
Deferrals by Participants will be made in accordance with Section
409A of the Code. Consistent with Section 409A of the Code, the
Board may provide for distributions while a Participant is still an
employee or otherwise providing services to the Company. The Board
is authorized to make deferrals of Awards and determine when, and
in what annual percentages, Participants may receive payments,
including lump sum payments, following the Participant’s
termination of Continuous Service, and implement such other terms
and conditions consistent with the provisions of the Plan and in
accordance with applicable law.
(k) Section
409A Compliance. Unless otherwise expressly provided for in
an Award Agreement, the Plan and Award Agreements will be
interpreted to the greatest extent possible in a manner that makes
the Plan and the Awards granted hereunder exempt from Section 409A
of the Code, and, to the extent not so exempt, in compliance with
Section 409A of the Code. If the Board determines that any Award
granted hereunder is not exempt from and is therefore subject to
Section 409A of the Code, the Award Agreement evidencing such Award
will incorporate the terms and conditions necessary to avoid the
consequences specified in Section 409A(a)(1) of the Code and to the
extent an Award Agreement is silent on terms necessary for
compliance, such terms are hereby incorporated by reference into
the Award Agreement. Notwithstanding anything to the contrary in
this Plan (and unless the Award Agreement specifically provides
otherwise), if the shares of Common Stock are publicly traded, and
if a Participant holding an Award that constitutes “deferred
compensation” under Section 409A of the Code is a
“specified employee” for purposes of Section 409A of
the Code, no distribution or payment of any amount that is due
because of a “separation from service” (as defined in
Section 409A of the Code without regard to alternative definitions
thereunder) will be issued or paid before the date that is six (6)
months following the date of the Participant’s
“separation from service” or, if earlier, the date of
the Participant’s death, unless such distribution or payment
may be made in a manner that complies with Section 409A of the
Code, and any amounts so deferred will be paid in a lump sum on the
day after such six (6) month period elapses, with the balance paid
thereafter on the original schedule.
(l) Clawback/Recovery.
All Awards granted under the Plan will be subject to recoupment in
accordance with any clawback policy that the Company is required to
adopt pursuant to the listing standards of any national securities
exchange or association on which the Company’s securities are
listed or as is otherwise required by the Dodd-Frank Wall Street
Reform and Consumer Protection Act or other applicable law. In
addition, the Board may impose such other clawback, recovery or
recoupment provisions in an Award Agreement as the Board determines
necessary or appropriate, including, but not limited to, a
reacquisition right in respect of previously acquired shares of
Common Stock or other cash or property upon the occurrence of
Cause. No recovery of compensation under such a clawback policy
will be an event giving rise to a right to resign for “good
reason” or “constructive termination” (or similar
term) under any agreement with the Company.
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9. Adjustments
upon Changes in Common Stock; Other Corporate Events.
(a) Capitalization Adjustments. In the event
of a Capitalization Adjustment, the Board will appropriately and
proportionately adjust: (i) the class(es) and maximum number of
securities subject to the Plan pursuant to Section 3(a) and 3(f);
(ii) the class(es) and maximum number of securities that may be
issued pursuant to the exercise of Incentive Stock Options pursuant
to Section 3(c); (iii) the class(es) and maximum number of
securities that may be awarded to any Non-Employee Director
pursuant to Section 3(e); and (iv) the class(es) and number of
securities and price per share of stock subject to outstanding
Stock Awards. The Board will make such adjustments, and its
determination will be final, binding and conclusive.
(b) Dissolution
or Liquidation. Except as otherwise provided in the
applicable Stock Award Agreement or other written agreement between a Participant and
the Company or an Affiliate, in the event of a dissolution
or liquidation of the Company, all outstanding Stock Awards (other
than Stock Awards consisting of vested and outstanding shares of
Common Stock not subject to a forfeiture condition or the
Company’s right of repurchase) will terminate immediately
prior to the completion of such dissolution or liquidation, and the
shares of Common Stock subject to a forfeiture condition or the
Company’s right of repurchase may be reacquired or
repurchased by the Company notwithstanding the fact that the holder
of such Stock Award is providing Continuous Service; provided, however, that the Board may,
in its sole discretion, cause some or all Stock Awards to become
fully vested, exercisable and/or no longer subject to forfeiture or
repurchase (to the extent such Stock Awards have not previously
expired or terminated) before the dissolution or liquidation is
completed but contingent on its completion.
(c) Corporate
Transactions. In the event of a Corporate Transaction,
notwithstanding any other provision of the Plan, the Board may take
one or more of the following actions with respect to Stock Awards,
contingent upon the closing or consummation of the Corporate
Transaction, unless otherwise provided in the instrument evidencing
the Stock Award, in any other written agreement between the Company
or any Affiliate and the Participant or in any director
compensation policy of the Company, or unless otherwise expressly
provided by the Board at the time of grant of the Stock
Award:
(i) arrange
for the surviving corporation or acquiring corporation (or the
surviving or acquiring corporation’s parent company) to
assume or continue the Stock Award or to substitute a similar stock
award for the Stock Award (including, but not limited to, an award
to acquire the same consideration paid to the stockholders of the
Company pursuant to the Corporate Transaction);
(ii) arrange
for the assignment of any reacquisition or repurchase rights held
by the Company in respect of Common Stock issued pursuant to the
Stock Award to the surviving corporation or acquiring corporation
(or the surviving or acquiring corporation’s parent
company);
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(iii) accelerate
the vesting, in whole or in part, of the Stock Award (and, if
applicable, the time at which the Stock Award may be exercised) to
a date prior to the effective time of such Corporate Transaction as
the Board determines (or, if the Board does not determine such a
date, to the date that is five (5) days prior to the effective date
of the Corporate Transaction), with such Stock Award terminating if
not exercised (if applicable) at or prior to the effective time of
the Corporate Transaction; provided, however, that the Board may
require Participants to complete and deliver to the Company a
notice of exercise before the effective date of a Corporate
Transaction, which exercise is contingent upon the effectiveness of
such Corporate Transaction;
(iv) arrange
for the lapse, in whole or in part, of any reacquisition or
repurchase rights held by the Company with respect to the Stock
Award;
(v) cancel
or arrange for the cancellation of the Stock Award, to the extent
not vested or not exercised prior to the effective time of the
Corporate Transaction, and pay such cash consideration (including
no consideration) as the Board, in its sole discretion, may
consider appropriate; and
(vi) cancel
or arrange for the cancellation of the Stock Award, to the extent
not vested or not exercised prior to the effective time of the
Corporate Transaction, in exchange for a payment, in such form as
may be determined by the Board equal to the excess, if any, of
(A) the per share amount payable to holders of Common Stock in
connection with the Corporate Transaction, over (B) the per
share exercise price under the applicable Award. For clarity, this
payment may be zero ($0) if the value of the property is equal to
or less than the exercise price. In addition, any escrow, holdback,
earnout or similar provisions in the definitive agreement for the
Corporate Transaction may apply to such payment to the same extent
and in the same manner as such provisions apply to the holders of
Common Stock.
The
Board need not take the same action or actions with respect to all
Stock Awards or portions thereof or with respect to all
Participants. The Board may take different actions with respect to
the vested and unvested portions of a Stock Award.
In the
event of a Corporate Transaction, unless otherwise provided in the
instrument evidencing a Performance Cash Award or any other written
agreement between the Company or any Affiliate and the Participant,
or unless otherwise expressly provided by the Board, all
Performance Cash Awards outstanding under the Plan will terminate
prior to the effective time of such Corporate
Transaction.
(d) Change
in Control. A Stock Award may be subject to additional
acceleration of vesting and exercisability upon or after a Change
in Control as may be provided in the Stock Award Agreement for such
Stock Award, in any other written agreement between the Company or
any Affiliate and the Participant or in any director compensation
policy of the Company, but in the absence of such provision, no
such acceleration will occur.
10. Termination
or Suspension of the Plan.
(a) The
Board may suspend or terminate the Plan at any time. No Incentive
Stock Option may be granted after the tenth (10th)
anniversary of the earlier of (i) the Adoption Date or (ii) the
date the Plan is approved by the stockholders of the Company. No
Awards may be granted under the Plan while the Plan is suspended or
after it is terminated.
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(b) No
Impairment of Rights. Suspension or termination of the Plan
will not materially impair rights and obligations under any Award
granted while the Plan is in effect except with the written consent
of the affected Participant or as otherwise permitted in the Plan
(including Section 2(b)(viii)) or an Award Agreement.
11. Effective
Date of Plan.
This
Plan will become effective on the Effective Date.
12. Choice
of Law.
The
laws of the State of California will govern all questions
concerning the construction, validity and interpretation of this
Plan, without regard to that state’s conflict of laws
rules.
13. Definitions.
As used in the Plan, the following definitions will apply to the
capitalized terms indicated below:
(a) “Adoption
Date” means April 6, 2017, which is the date the Plan
was adopted by the Board.
(b) “Affiliate”
means, at the time of determination, any “parent” or
“subsidiary” of the Company as such terms are defined
in Rule 405. The Board will have the authority to determine the
time or times at which “parent” or
“subsidiary” status is determined within the foregoing
definition.
(c) “Award”
means a Stock Award or a Performance Cash Award.
(d) “Award
Agreement” means a written agreement between the
Company and a Participant evidencing the terms and conditions of an
Award.
(e) “Board”
means the Board of Directors of the Company.
(f) “Capital
Stock” means each and every class of common stock of
the Company, regardless of the number of votes per
share.
(g) “Capitalization
Adjustment” means any change that is made in, or other
events that occur with respect to, the Common Stock subject to the
Plan or subject to any Stock Award after the Adoption Date without
the receipt of consideration by the Company through merger,
consolidation, reorganization, recapitalization, reincorporation,
stock dividend, dividend in property other than cash, large
nonrecurring cash dividend, stock split, reverse stock split,
liquidating dividend, combination of shares, exchange of shares,
change in corporate structure or any similar equity restructuring
transaction, as that term is used in Statement of Financial
Accounting Standards Board Accounting Standards Codification Topic
718 (or any successor thereto). Notwithstanding the foregoing, the
conversion of any convertible securities of the Company will not be
treated as a Capitalization Adjustment.
-19-
(h) “Cause” will
have the meaning ascribed to such term in any written agreement
between a Participant and the Company
or an Affiliate defining such term and, in the absence of
such agreement, such term means, with respect to a Participant, the
occurrence of any of the following events: (i) such Participant has
breached his or her employment or service contract with the Company
or an Affiliate, (ii) such Participant has engaged in disloyalty to
the Company or an Affiliate, including, without limitation, fraud,
embezzlement, theft, commission of a felony or proven dishonesty,
(iii) such Participant has disclosed trade secrets or confidential
information of the Company or an Affiliate to persons not entitled
to receive such information, (iv) such Participant has breached any
written non-competition, non-solicitation, invention assignment or
confidentiality agreement between the Participant and the Company
or an Affiliate or (v) such Participant has engaged in such other
behavior detrimental to the interests of the Company or an
Affiliate as the Company determines. The determination that a
termination of the Participant’s Continuous Service is either
for Cause or without Cause will be made by the Company, in its sole
discretion. Any determination by the Company that the Continuous
Service of a Participant was terminated with or without Cause for
the purposes of outstanding Awards held by such Participant will
have no effect upon any determination of the rights or obligations
of the Company or such Participant for any other
purpose.
(i) “Change
in Control” means the occurrence, in a single
transaction or in a series of related transactions, of any one or
more of the following events:
(i) any
Exchange Act Person becomes the Owner, directly or indirectly, of
securities of the Company representing more than fifty percent
(50%) of the combined voting power of the Company’s then
outstanding securities other than by virtue of a merger,
consolidation or similar transaction. Notwithstanding the
foregoing, a Change in Control will not be deemed to occur (A) on
account of the acquisition of securities of the Company directly
from the Company, (B) on account of the acquisition of securities
of the Company by an investor, any affiliate thereof or any other
Exchange Act Person that acquires the Company’s securities in
a transaction or series of related transactions the primary purpose
of which is to obtain financing for the Company through the
issuance of equity securities, or (C) solely because the level of
Ownership held by any Exchange Act Person (the “Subject
Person”) exceeds the designated percentage threshold
of the outstanding voting securities as a result of a repurchase or
other acquisition of voting securities by the Company reducing the
number of shares outstanding, provided that if a Change in Control
would occur (but for the operation of this sentence) as a result of
the acquisition of voting securities by the Company, and after such
share acquisition, the Subject Person becomes the Owner of any
additional voting securities that, assuming the repurchase or other
acquisition had not occurred, increases the percentage of the then
outstanding voting securities Owned by the Subject Person over the
designated percentage threshold, then a Change in Control will be
deemed to occur;
(ii) there is
consummated a merger, consolidation or similar transaction
involving (directly or indirectly) the Company and, immediately
after the consummation of such merger, consolidation or similar
transaction, the stockholders of the Company immediately prior
thereto do not Own, directly or indirectly, either (A) outstanding
voting securities representing more than fifty percent (50%) of the
combined outstanding voting power of the surviving Entity in such
merger, consolidation or similar transaction or (B) more than fifty
percent (50%) of the combined outstanding voting power of the
parent of the surviving Entity in such merger, consolidation or
similar transaction, in each case in
substantially the same proportions as their Ownership of the
outstanding voting securities of the Company immediately prior to
such transaction;
-20-
(iii) there
is consummated a sale, lease, exclusive license or other
disposition of all or substantially all of the consolidated assets
of the Company and its Subsidiaries, other than a sale, lease,
license or other disposition of all or substantially all of the
consolidated assets of the Company and its Subsidiaries to an
Entity, more than fifty percent (50%) of the combined voting power
of the voting securities of which are Owned by stockholders of the
Company in substantially the same proportions as their Ownership of
the outstanding voting securities of the Company immediately prior
to such sale, lease, license or other disposition; or
(iv) individuals
who, on the Adoption Date, are members of the Board (the
“Incumbent
Board”) cease for any reason to constitute at least a
majority of the members of the Board; provided, however, that if the
appointment or election (or nomination for election) of any new
Board member was approved or recommended by a majority vote of the
members of the Incumbent Board then still in office, such new
member will, for purposes of this Plan, be considered as a member
of the Incumbent Board.
Notwithstanding the
foregoing definition or any other provision of this Plan, (A) the
term Change in Control will not include a sale of assets, merger or
other transaction effected exclusively for the purpose of changing
the domicile of the Company, and (B) the definition of Change in
Control (or any analogous term) in an individual written agreement
between a Participant and the Company
or an Affiliate will supersede the foregoing definition with
respect to Awards subject to such agreement; provided, however, that (1) if no
definition of Change in Control (or any analogous term) is set
forth in such an individual written agreement, the foregoing
definition will apply; and (2) no Change in Control (or any
analogous term) will be deemed to occur with respect to Awards
subject to such an individual written agreement without a
requirement that the Change in Control (or any analogous term)
actually occur. If required for compliance with Section 409A of the
Code, in no event will an event be deemed a Change in Control if
such event is not also a “change in the ownership of”
the Company, a “change in the effective control of” the
Company, or a “change in the ownership of a substantial
portion of the assets of” the Company, each as determined
under Treasury Regulations Section 1.409A-3(i)(5) (without regard
to any alternative definition thereunder). The Board may, in its
sole discretion and without a Participant’s consent, amend
the definition of “Change in Control” to conform to the
definition of a “change in control event” under Section
409A of the Code and the regulations thereunder.
(j) “Code”
means the Internal Revenue Code of 1986, as amended, including any
applicable regulations and guidance thereunder.
(k) “Committee”
means a committee of one (1) or more Directors to whom authority
has been delegated by the Board in accordance with Section
2(c).
(l) “Common
Stock” means the common stock of the
Company.
(m) “Company”
means ChromaDex Corporation, a Delaware corporation.
(n) “Consultant”
means any person, including an advisor, who is (i) engaged by the
Company or an Affiliate to render consulting or advisory services
and is compensated for such services, or (ii) serving as a
member of the board of directors of an Affiliate and is compensated
for such services. However, service
solely as a Director, or payment of a fee for such service, will
not cause a Director to be considered a “Consultant”
for purposes of the Plan. Notwithstanding
the foregoing, a person is treated as a Consultant under this Plan
only if a Form S-8 Registration
Statement under the Securities Act is available to register either
the offer or the sale of the Company’s securities to such
person.
-21-
(o) “Continuous
Service” means that the Participant’s service
with the Company or an Affiliate, whether as an Employee, Director
or Consultant, is not interrupted or terminated. A change in the
capacity in which the Participant renders service to the Company or
an Affiliate as an Employee, Director or Consultant or a change in
the Entity for which the Participant renders such service, provided
that there is no interruption or termination of the
Participant’s service with the Company or an Affiliate, will
not terminate a Participant’s Continuous Service;
provided, however,
that if the Entity for
which a Participant is rendering services ceases to qualify as an
Affiliate, as determined by the Board, in its sole discretion, such
Participant’s Continuous Service will be considered to have
terminated on the date such Entity ceases to qualify as an
Affiliate. For example, a change in status from an Employee of the
Company to a Consultant of an Affiliate or to a Director will not
constitute an interruption of Continuous Service. To the extent
permitted by law, the Board or the chief executive officer of the
Company, in that party’s sole discretion, may determine
whether Continuous Service will be considered interrupted in the
case of (i) any leave of absence approved by the Board or chief
executive officer, including sick leave, military leave or any
other personal leave, or (ii) transfers between the Company, an
Affiliate, or their successors. Notwithstanding the foregoing, a
leave of absence will be treated as Continuous Service for purposes
of vesting in an Award only to such extent as may be provided in
the Company’s leave of absence policy, in the written terms
of any leave of absence agreement or policy applicable to the
Participant, or as otherwise required by law.
(p) “Corporate
Transaction” means the consummation, in a single
transaction or in a series of related transactions, of any one or
more of the following events:
(i) a
sale or other
disposition of all or substantially all, as determined by the
Board, in its sole discretion, of the consolidated assets of the
Company and its Subsidiaries;
(ii) a
sale or other disposition of more than fifty percent (50%) of the
outstanding securities of the Company;
(iii) a
merger, consolidation or similar transaction following which the
Company is not the surviving corporation; or
(iv) a
merger, consolidation or similar transaction following which the
Company is the surviving corporation but the shares of Common Stock
outstanding immediately preceding the merger, consolidation or
similar transaction are converted or exchanged by virtue of the
merger, consolidation or similar transaction into other property,
whether in the form of securities, cash or otherwise.
If
required for compliance with Section 409A of the Code, in no event
will an event be deemed a Corporate Transaction if such event is
not also a “change in the ownership of” the Company, a
“change in the effective control of” the Company, or a
“change in the ownership of a substantial portion of the
assets of” the Company, each as determined under Treasury
Regulations Section 1.409A-3(i)(5) (without regard to any
alternative definition thereunder). The Board may, in its sole
discretion and without a Participant’s consent, amend the
definition of “Corporate Transaction” to conform to the
definition of a “change in control event” under Section
409A of the Code and the regulations thereunder.
-22-
(q) [Reserved.]
(r) “Director”
means a member of the Board.
(s) “Disability”
means, with respect to a Participant, the inability of such
Participant to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment that
can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve
(12) months, as provided in Sections 22(e)(3) and 409A(a)(2)(c)(i)
of the Code, and will be determined by the Board on the basis of
such medical evidence as the Board deems warranted under the
circumstances.
(t) “Effective
Date” means the effective date of this Plan document,
which is the date of the annual meeting of stockholders of the
Company held in 2017, provided that this Plan is approved by the
Company’s stockholders at such meeting.
(u) “Employee”
means any person employed by the Company or an Affiliate. However,
service solely as a Director, or payment of a fee for such
services, will not cause a Director to be considered an
“Employee” for purposes of the
Plan.
(v) “Entity”
means a corporation, partnership, limited liability company or
other entity.
(w) “Exchange
Act” means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated
thereunder.
(x) “Exchange Act
Person” means any
natural person, Entity or “group” (within the meaning
of Section 13(d) or 14(d) of the Exchange Act), except that
“Exchange Act Person” will not include (i) the Company
or any Subsidiary of the Company, (ii) any employee benefit plan of
the Company or any Subsidiary of the Company or any trustee or
other fiduciary holding securities under an employee benefit plan
of the Company or any Subsidiary of the Company, (iii) an
underwriter temporarily holding securities pursuant to an offering
of such securities, (iv) an Entity Owned, directly or indirectly,
by the stockholders of the Company in substantially the same
proportions as their Ownership of stock of the Company,
or (v) any natural person, Entity or
“group” (within the meaning of Section 13(d) or 14(d)
of the Exchange Act) that, as of the Effective Date, is the Owner,
directly or indirectly, of securities of the Company representing
more than fifty percent (50%) of the combined voting power of the
Company’s then outstanding securities.
(y) “Fair
Market Value” means, as of any date, the value of the
Common Stock determined as follows:
-23-
(i) If
the Common Stock is listed on any established stock exchange or
traded on any established market, the Fair Market Value of a share
of Common Stock will be, unless otherwise determined by the Board,
the closing sales price for such stock as quoted on such exchange
or market (or the exchange or market with the greatest volume of
trading in the Common Stock) on the date of determination, as
reported in a source the Board deems reliable.
(ii) Unless
otherwise provided by the Board, if there is no closing sales price
for the Common Stock on the date of determination, then the Fair
Market Value will be the closing sales price on the last preceding
date for which such quotation exists.
(iii) In
the absence of such markets for the Common Stock, the Fair Market
Value will be determined by the Board in good faith and in a manner
that complies with Sections 409A and 422 of the Code.
(z) “Incentive
Stock Option” means an option granted pursuant to
Section 5 that is intended to be, and
that qualifies as, an “incentive stock option” within
the meaning of Section 422 of the Code.
(aa) “Inducement
Award” means a Stock
Award, other than an Incentive Stock Option, granted pursuant to
Section 3(f) of the Plan.
(bb) “Inducement
Committee” means a Committee
consisting of the majority of the Company’s independent
directors or the Company’s independent compensation
committee, in either case in accordance with NASDAQ Listing Rule
5635(c)(4).
(cc) “Non-Employee
Director” means a Director who either (i) is
not a current employee or officer of the Company or an Affiliate,
does not receive compensation, either directly or indirectly, from
the Company or an Affiliate for services rendered as a consultant
or in any capacity other than as a Director (except for an amount
as to which disclosure would not be required under Item 404(a) of
Regulation S-K promulgated pursuant to the Securities Act
(“Regulation
S-K”)), does not possess an interest in any other
transaction for which disclosure would be required under Item
404(a) of Regulation S-K, and is not engaged in a business
relationship for which disclosure would be required pursuant to
Item 404(b) of Regulation S-K, or (ii) is otherwise considered
a “non-employee director” for purposes of Rule
16b-3.
(dd) “Nonstatutory
Stock Option” means an option granted pursuant to
Section 5 that does not qualify as an
Incentive Stock Option.
(ee) “Officer”
means a person who is an officer of the Company within the meaning
of Section 16 of the Exchange Act.
(ff) “Option”
means an Incentive Stock Option or a Nonstatutory Stock Option to
purchase shares of Common Stock granted pursuant to the
Plan.
(gg) “Option
Agreement” means a written agreement between the
Company and a holder of an
Option evidencing the terms and conditions of an Option
grant. Each Option Agreement will be subject to the terms and
conditions of the Plan.
-24-
(hh) “Other Stock
Award” means an award based in whole or in part by
reference to the Common Stock which is granted pursuant to the
terms and conditions of Section 6(d).
(ii) “Other Stock
Award Agreement” means
a written agreement between the Company and a holder of an Other
Stock Award evidencing the terms and conditions of an Other Stock
Award grant. Each Other Stock Award Agreement will be subject to
the terms and conditions of the Plan.
(jj) “Outside
Director” means a Director who either (i) is not a
current employee of the Company or an “affiliated
corporation” (within the meaning of Treasury Regulations
promulgated under Section 162(m) of the Code), is not a former
employee of the Company or an “affiliated corporation”
who receives compensation for prior services (other than benefits
under a tax-qualified retirement plan) during the taxable year, has
not been an officer of the Company or an “affiliated
corporation,” and does not receive remuneration from the
Company or an “affiliated corporation,” either directly
or indirectly, in any capacity other than as a Director, or (ii) is
otherwise considered an “outside director” for purposes
of Section 162(m) of the Code.
(kk) “Own,” “Owned,” “Owner,” “Ownership” means
a person or Entity will be deemed to “Own,” to have
“Owned,” to be the “Owner” of, or to have
acquired “Ownership” of securities if such person or
Entity, directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has or shares voting
power, which includes the power to vote or to direct the voting,
with respect to such securities.
(ll) “Participant”
means a person to whom an Award is granted pursuant to the Plan or,
if applicable, such other person who holds an outstanding
Award.
(mm) “Performance
Cash Award” means an award of cash granted pursuant to
the terms and conditions of Section 6(c)(ii).
(nn) “Performance
Criteria” means the one or more criteria that the
Board will select for purposes of establishing the Performance
Goals for a Performance Period. The Performance Criteria that will
be used to establish such Performance Goals may be based on any one
of, or combination of, the following as determined by the Board:
(i) cash flow; (ii) earnings (including gross margin, earnings
before interest and taxes, earnings before taxes, earnings before
interest, taxes, depreciation, amortization and charges for
stock-based compensation, earnings before interest, taxes,
depreciation and amortization, earnings before interest, taxes and
depreciation and net earnings); (iii) earnings per share; (iv)
growth in earnings or earnings per share; (v) stock price; (vi)
return on equity or average stockholder equity; (vii) total
stockholder return or growth in total stockholder return either
directly or in relation to a comparative group; (viii) return on
capital; (ix) return on assets or net assets; (x) revenue, growth
in revenue or return on sales; (xi) income or net income; (xii)
operating income, (xiii) net operating income or net operating
income after tax; (xiv) operating profit or net operating profit;
(xv) operating margin; (xvi) return on operating revenue or return
on operating profit; (xvii) regulatory filings; (xviii) regulatory
approvals, litigation or regulatory resolution goals; (xix) other
operational, regulatory or departmental objectives; (xx) budget
comparisons; (xxi) growth in stockholder value relative to
established indexes, or another peer group or peer group index;
(xxiii) development and implementation of strategic plans and/or
organizational restructuring goals; (xxiv) development and
implementation of risk and crisis management programs; (xxv)
improvement in workforce diversity; (xxvi) compliance requirements
and compliance relief; (xxvii) safety goals; (xxviii) productivity
goals; (xxix) workforce management and succession planning goals;
(xxx) economic value added (including typical adjustments
consistently applied from generally accepted accounting principles
required to determine economic value added performance measures);
(xxxi) measures of customer satisfaction, employee satisfaction or
staff development; (xxxii) development or marketing collaborations,
formations of joint ventures or partnerships or the completion of
other similar transactions intended to enhance the Company’s
revenue or profitability or enhance its customer base; (xxxiii)
merger and acquisitions; (xxxiv) implementation or completion of
projects or processes (including, without limitation, clinical
trial initiation, clinical trial enrollment and dates, clinical
trial results, regulatory filing submissions, regulatory filing
acceptances, regulatory or advisory committee interactions,
regulatory approvals, new and supplemental indications for existing
products, and product supply); (xxxv) initiation of phases of
clinical trials and/or studies by specific dates; (xxxvi)
acquisition of new customers, including institutional accounts;
(xxxvii) customer retention and/or repeat order rate; (xxxviii)
number of institutional customer accounts (xxxix) budget
management; (xl) improvements in sample and test processing times;
(xli) regulatory milestones; (xlii) progress of internal research
or clinical programs; (xliii) progress of partnered programs;
(xliv) partner satisfaction; (xlv) milestones related to samples
received and/or tests run; (xlvi) expansion of sales in additional
geographies or markets; (xlvii) research progress, including the
development of programs; (xlviii) submission to, or approval by, a
regulatory body (including, but not limited to the U.S. Food and
Drug Administration) of an applicable filing or a product; (xlix)
timely completion of clinical trials; (l) milestones related to
samples received and/or tests or panels run; (li) expansion of
sales in additional geographies or markets; (lii) research
progress, including the development of programs; (liii) patient
samples processed and billed; (liv) sample processing operating
metrics (including, without limitation, failure rate maximums and
reduction of repeat rates); (lv) strategic partnerships or
transactions (including in-licensing and out-licensing of
intellectual property; (lvi) and other similar criteria consistent
with the foregoing; and (lvii) other measures of performance
selected by the Board.
-25-
(oo) “Performance
Goals” means, for a Performance Period, the one or
more goals established by the Board for the Performance Period
based upon the Performance Criteria. Performance Goals may be based
on a Company-wide basis, with respect to one or more business
units, divisions, Affiliates, or business segments, and in either
absolute terms or relative to the performance of one or more
comparable companies or the performance of one or more relevant
indices. Unless specified otherwise by the Board (i) in the Award
Agreement at the time the Award is granted or (ii) in such other
document setting forth the Performance Goals at the time the
Performance Goals are established, the Board will appropriately
make adjustments in the method of calculating the attainment of
Performance Goals for a Performance Period as follows: (1) to
exclude restructuring and/or other nonrecurring charges; (2) to
exclude exchange rate effects; (3) to exclude the effects of
changes to generally accepted accounting principles; (4) to exclude
the effects of any statutory adjustments to corporate tax rates;
(5) to exclude the effects of items that are unusual in nature or
occur infrequently as determined under generally accepted
accounting principles; (6) to exclude the dilutive effects of
acquisitions or joint ventures; (7) to assume that any business
divested by the Company achieved performance objectives at targeted
levels during the balance of a Performance Period following such
divestiture; (8) to exclude the effect of any change in the
outstanding shares of common stock of the Company by reason of any
stock dividend or split, stock repurchase, reorganization,
recapitalization, merger, consolidation, spin-off, combination or
exchange of shares or other similar corporate change, or any
distributions to common stockholders other than regular cash
dividends; (9) to exclude the effects of stock based compensation
and the award of bonuses under the Company’s bonus plans;
(10) to exclude costs incurred in connection with potential
acquisitions or divestitures that are required to be expensed under
generally accepted accounting principles; and (11) to exclude the
goodwill and intangible asset impairment charges that are required
to be recorded under generally accepted accounting principles. In
addition, the Board retains the discretion to reduce or eliminate
the compensation or economic benefit due upon attainment of
Performance Goals and to define the manner of calculating the
Performance Criteria it selects to use for such Performance Period.
Partial achievement of the specified criteria may result in the
payment or vesting corresponding to the degree of achievement as
specified in the Stock Award Agreement or the written terms of a
Performance Cash Award.
-26-
(pp) “Performance
Period” means the period of time selected by the
Committee (or, to the extent that an Award is not intended to
qualify as “performance-based compensation” under
Section 162(m) of the Code, the Board or the Committee) over which
the attainment of one or more Performance Goals will be measured
for the purpose of determining a Participant’s right to and
the payment of a Performance Stock Award or a Performance Cash
Award. Performance Periods may be of varying and overlapping
duration, at the sole discretion of the Committee (or Board, if
applicable).
(qq) “Performance
Stock Award” means a Stock Award granted under the
terms and conditions of Section 6(c)(i).
(rr) “Plan”
means this ChromaDex Corporation 2017 Equity Incentive
Plan.
(ss) “Restricted
Stock Award” means an
award of shares of Common Stock which is granted pursuant to the
terms and conditions of Section 6(a).
(tt) “Restricted
Stock Award Agreement”
means a written agreement between the Company and a holder of a
Restricted Stock Award evidencing the terms and conditions of a
Restricted Stock Award grant. Each Restricted Stock Award Agreement
will be subject to the terms and conditions of the
Plan.
(uu) “Restricted
Stock Unit Award” means
a right to receive shares of Common Stock which is granted pursuant
to the terms and conditions of Section 6(b).
(vv) “Restricted
Stock Unit Award Agreement” means a
written agreement between the Company and a holder of a Restricted
Stock Unit Award evidencing the terms and conditions of a
Restricted Stock Unit Award grant. Each Restricted Stock Unit Award
Agreement will be subject to the terms and conditions of the
Plan.
(ww) “Rule
16b-3” means Rule 16b-3 promulgated under the Exchange
Act or any successor to Rule 16b-3, as in effect from time to
time.
(xx) “Rule
405” means Rule 405 promulgated under the Securities
Act.
(yy) “Securities
Act” means the Securities Act of 1933, as
amended.
-27-
(zz) “Stock
Appreciation Right” or “SAR” means
a right to receive the appreciation on Common Stock that is granted
pursuant to the terms and conditions of Section 5.
(aa) “Stock
Appreciation Right Agreement” or “SAR Agreement”
means a written agreement between the Company and a holder of a
Stock Appreciation Right evidencing the terms and conditions of a
Stock Appreciation Right grant. Each Stock Appreciation Right
Agreement will be subject to the terms and conditions of the
Plan.
(bb) “Stock
Award” means any right to
receive Common Stock granted under the Plan, including an Incentive
Stock Option, a Nonstatutory Stock Option, a Stock Appreciation
Right, a Restricted Stock Award, a Restricted Stock Unit Award, a
Performance Stock Award or any Other Stock
Award.
(cc) “Stock Award
Agreement” means a
written agreement between the Company and a Participant evidencing
the terms and conditions of a Stock Award grant. Each Stock Award
Agreement will be subject to the terms and conditions of the
Plan.
(dd) “Subsidiary”
means, with respect to the Company, (i) any corporation of which
more than fifty percent (50%) of the outstanding capital stock
having ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether, at the
time, stock of any other class or classes of such corporation will
have or might have voting power by reason of the happening of any
contingency) is at the time, directly or indirectly, Owned by the
Company, and (ii) any partnership, limited liability company or
other entity in which the Company has a direct or indirect interest
(whether in the form of voting or participation in profits or
capital contribution) of more than fifty percent
(50%).
(ee) “Ten
Percent Stockholder” means a person who Owns (or is
deemed to Own pursuant to Section 424(d) of the Code) stock
possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company or any
Affiliate.
-28-
ChromaDex Corporation
2017 Equity Incentive Plan
Form of Option Grant Notice
ChromaDex
Corporation (the “Company”)
hereby grants to Participant an Option (the “Option”) under
the ChromaDex Corporation 2017 Equity Incentive Plan (the
“Plan”) to
purchase the number of shares of Common Stock (the
“Shares”) set
forth below at the exercise price set forth below. This Option is
subject to all of the terms and conditions set forth in this Option
Grant Notice (the “Grant
Notice”), the Option Agreement (the
“Agreement”),
the Plan and the Notice of Exercise, all of which are attached
hereto and incorporated herein in their entirety. Capitalized terms
not explicitly defined in this Grant Notice but defined in the Plan
or the Agreement will have the same definitions as in the Plan or
the Agreement.
|
Participant:
|
|
|
Date of
Grant:
|
|
|
Vesting
Commencement Date:
|
|
|
Number
of Shares Subject to Option:
|
|
|
Exercise
Price (Per Share):
|
|
|
Total
Exercise Price:
|
|
|
Expiration
Date:
|
|
Exercise
Schedule:
Same as Vesting
Schedule.
Vesting Schedule:
Subject to Section
1 of the Agreement, this Option will vest as follows:
[_____________].
Payment:
By one or a
combination of the following items (as described in the
Agreement):
☐
By cash, check,
bank draft or money order payable to the Company
☐
Pursuant to a
Regulation T Program if the Shares are publicly traded
☐
By delivery of
already-owned Shares if the Shares are publicly traded
☐
If and only to the
extent this Option is a Nonstatutory Stock Option, and subject to
the Company’s consent at the time of exercise, by a
“net exercise” arrangement
Additional Terms/Acknowledgements: Participant acknowledges
receipt of, and understands and agrees to, this Grant Notice, the
Agreement, the Plan and the stock plan prospectus for the Plan.
Participant further acknowledges that as of the Date of Grant, this
Grant Notice, the Agreement and the Plan set forth the entire
understanding between Participant and the Company regarding this
Option and supersede all prior oral and written agreements,
promises and/or representations regarding this Option, with the
exception, if applicable, of (i) any written employment, offer
letter or severance agreement, or any written severance plan or
policy specifying the terms that should govern this Option, (ii)
the Company’s stock ownership guidelines, and (iii) any
compensation recovery policy that is adopted by the Company or is
otherwise required by applicable law. By accepting this Option,
Participant consents to receive this Grant Notice, the Agreement,
the Plan, the stock plan prospectus for the Plan and any other
Plan-related documents by electronic delivery and to participate in
the Plan through an on-line or electronic system established and
maintained by the Company or another third party designated by the
Company.
|
ChromaDex Corporation
By:
Signature
Title:
Date:
|
Participant:
Signature
Date:
|
1 If this is an Incentive Stock Option, it (plus
other outstanding Incentive Stock Options) cannot be first
exercisable
for more than $100,000 in value
(measured by exercise price) in any calendar year. Any excess over
$100,000 is a Nonstatutory Stock Option.
-29-
ChromaDex Corporation
2017 Equity Incentive Plan
Option Agreement
(Incentive
Stock Option or Nonstatutory Stock Option)
Pursuant to the
accompanying Option Grant Notice (the “Grant Notice”)
and this Option Agreement (the “Agreement”),
ChromaDex Corporation (the “Company”) has
granted you an Option under the ChromaDex Corporation 2017 Equity
Incentive Plan (the “Plan”) to
purchase the number of shares of Common Stock set forth in the
Grant Notice at the exercise price set forth in the Grant Notice.
This Option is granted to you effective as of the date of grant set
forth in the Grant Notice (the “Date of
Grant”). Capitalized terms not explicitly defined in
this Agreement but defined in the Plan or the Grant Notice will
have the same definitions as in the Plan or the Grant
Notice.
1. Vesting.
This Option will vest, if at all, in accordance with the vesting
schedule set forth in the Grant Notice. Vesting will cease upon the
termination of your Continuous Service.
2. Number
of Shares and Exercise Price. The number of shares of Common
Stock subject to this Option and the exercise price per share of
this Option, each as set forth in the Grant Notice, will be
adjusted for Capitalization Adjustments, if any, as provided in the
Plan.
3. Exercise
Restriction for Non-Exempt Employees. If you are an Employee
eligible for overtime compensation under the Fair Labor Standards
Act of 1938, as amended (that is, a “Non-Exempt
Employee”), then except as otherwise provided in the
Plan, you may not exercise this Option until you have completed at
least six months of Continuous Service following the Date of Grant,
even if you have already been an Employee for more than six months.
Consistent with the provisions of the Worker Economic Opportunity
Act, you may exercise this Option as to any vested portion prior to
such six-month anniversary in the case of (i) your death or
Disability, (ii) a Corporate Transaction in which this Option is
not assumed, continued or substituted, (iii) a Change in Control,
or (iv) your “retirement” (as defined in a written
agreement between you and the Company or an Affiliate, or, if no
such definition, in accordance with the Company’s then
current employment policies and guidelines).
4. Exercise
Prior to Vesting (“Early Exercise”). This Option
may not be exercised prior to vesting.
5. Method
of Payment. You must pay the full amount of the exercise
price for the shares of Common Stock you wish to purchase. You may
pay the exercise price in cash or by check, bank draft or money
order payable to the Company or in any other manner permitted by the Grant
Notice, which may include one or more of the
following:
a. Provided
that at the time of exercise the Common Stock is publicly traded,
pursuant to a program developed under Regulation T as promulgated
by the Federal Reserve Board that, prior to the issuance of Common
Stock, results in either the receipt of cash (or check) by the
Company or the receipt of irrevocable instructions to pay the
aggregate exercise price to the Company from the sales proceeds.
This manner of payment is also known as a “broker-assisted
exercise,” “same day sale,” or “sell to
cover.”
-30-
b. Provided
that at the time of exercise the Common Stock is publicly traded,
by delivery to the Company (either by actual delivery or
attestation) of already-owned shares of Common Stock that are owned
free and clear of any liens, claims, encumbrances or security
interests, with a Fair Market Value on the date of exercise
that does not exceed the aggregate
exercise price. You must pay any remaining balance of the aggregate
exercise price not satisfied by such delivery in cash or other
permitted form of payment. “Delivery” for these
purposes, in the sole discretion of the Company at the time you
exercise this Option, will include delivery to the Company of your
attestation of ownership of such shares of Common Stock in a form
approved by the Company. You may not exercise this Option by
delivery to the Company of Common Stock if doing so would violate
the provisions of any law, regulation or agreement restricting the
redemption of the Company’s stock.
c. If
this Option is a Nonstatutory Stock Option, subject to the consent
of the Company at the time of exercise, by a “net
exercise” arrangement pursuant to which the Company will
reduce the number of shares of Common Stock otherwise issuable to
you upon exercise of this Option by the largest number of whole
shares of Common Stock with a Fair Market Value on the date of
exercise that does not exceed the aggregate exercise price. You
must pay any remaining balance of the aggregate exercise price not
satisfied by such “net exercise” in cash or other
permitted form of payment. Shares of Common Stock will no longer be
outstanding under this Option and will not be exercisable
thereafter if those shares (i) are used to pay the exercise price
pursuant to a “net exercise,” (ii) are delivered to you
as a result of such exercise, or (iii) are withheld to satisfy tax
withholding obligations.
6. Whole
Shares. You may exercise this Option only for whole shares
of Common Stock.
7. Securities
Law Compliance. You may not exercise this Option unless
either (i) the shares of Common Stock issuable upon such exercise
are registered under the Securities Act or (ii) the Company has
determined that such exercise and issuance would be exempt from the
registration requirements of the Securities Act. This Option also
must comply with all other applicable laws and regulations
governing this Option, and you may not exercise this Option if the
Company determines that such exercise would not be in material
compliance with such laws and regulations (including any
restrictions on exercise required for compliance with Treasury
Regulations Section 1.401(k)-1(d)(3), if applicable).
8. Term.
You may not exercise this Option before the Date of Grant or after
the expiration of its term. The term of this Option expires,
subject to the provisions of Section 5(h) of the Plan, upon the
earliest of the following:
a. immediately
upon the termination of your Continuous Service if such termination
is for Cause;
b. three
months after the termination of your Continuous Service if such
termination is for any reason other than Cause, your Disability or
your death (except as otherwise provided in Section 8(d) below);
provided, however, that if
during any part of such three (3) month period your option is not
exercisable solely because of the condition set forth in the
section above relating to “Securities Law Compliance,”
your option will not expire until the earlier of the Expiration
Date or until it has been exercisable for an aggregate period of
three (3) months after the termination of your Continuous Service;
provided further, if during
any part of such three (3) month period, the sale of any Common
Stock received upon exercise of your option would violate the
Company’s insider trading policy, then your option will not
expire until the earlier of the Expiration Date or until it has
been exercisable for an aggregate period of three (3) months after
the termination of your Continuous Service during which the sale of
the Common Stock received upon exercise of your option would not be
in violation of the Company’s insider trading policy.
Notwithstanding the foregoing, if (i) you are a Non-Exempt
Employee, (ii) your Continuous Service terminates within six months
after the Date of Grant, and (iii) you have vested in a portion of
this Option as of the time of your termination of Continuous
Service, then this Option will not expire until the earlier of (x)
the later of (A) the date that is seven months after the Date of
Grant, and (B) the date that is three months after the termination
of your Continuous Service, and (y) the Expiration Date set forth
in the Grant Notice;
-31-
c. 12
months after the termination of your Continuous Service if such
termination is due to your Disability (except as otherwise provided
in Section 8(d) below);
d. 18
months after your death if either your Continuous Service
terminates due to your death or you die within three months after
your Continuous Service terminates for any reason other than
Cause;
e. the
Expiration Date set forth in the Grant Notice; or
f. the
day before the tenth anniversary of the Date of Grant.
If this
Option is an Incentive Stock Option, note that to obtain the
federal income tax advantages associated with an Incentive Stock
Option, the Code requires that at all times beginning on the Date
of Grant and ending on the day three months before the date of
exercise of this Option, you must be an employee of the Company or
an Affiliate, except in the event of your death or Disability. The
Company has provided for extended exercisability of this Option
under certain circumstances for your benefit but cannot guarantee
that this Option will necessarily be treated as an Incentive Stock
Option if you continue to provide services to the Company or an
Affiliate as a Consultant or Director after your employment
terminates or if you otherwise exercise this Option more than three
months after the date your employment with the Company or an
Affiliate terminates.
9. Exercise.
a. You
may exercise the vested portion of this Option during its term by
(i) (A) delivering a Notice of Exercise (in a form designated by
the Company), or (B) making the required electronic election with
the Company’s designated broker, and (ii) paying the exercise
price and any applicable withholding taxes to the Company’s
stock plan administrator, or to such other person as the Company
may designate, together with such additional documents as the
Company may then require.
-32-
b. By
exercising this Option, you agree that, as a condition to any
exercise of this Option, the Company may require you to enter into
an arrangement providing for the payment by you to the Company of
any tax withholding obligation of the Company arising by reason of
(i) the exercise of this Option, (ii) the lapse of any substantial
risk of forfeiture to which the shares of Common Stock are subject
at the time of exercise, or (iii) the disposition of shares of
Common Stock acquired upon such exercise.
c. If
this Option is an Incentive Stock Option, by exercising this
Option, you agree that you will notify the Company in writing
within 15 days after the date of any disposition of any of the
shares of Common Stock issued upon exercise of this Option that
occurs within two years after the Date of Grant or within one year
after such shares of Common Stock are transferred upon exercise of
this Option.
10. Transferability.
Except as otherwise provided in this Section 10, this Option is not
transferable, except by will or by the laws of descent and
distribution, and is exercisable during your life only by
you.
a. Certain
Trusts. Upon receiving written permission from the Board or
its duly authorized designee, you may transfer this Option to a
trust if you are considered to be the sole beneficial owner
(determined under Section 671 of the Code and applicable state law)
while this Option is held in the trust, provided that you and the
trustee enter into transfer and other agreements required by the
Company.
b. Domestic
Relations Orders. Upon receiving written permission from the
Board or its duly authorized designee, and provided that you and
the designated transferee enter into transfer and other agreements
required by the Company, you may transfer this Option pursuant to
the terms of a domestic relations order, official marital
settlement agreement or other divorce or separation instrument as
permitted by applicable law that contains the information required
by the Company to effectuate the transfer. You are encouraged to
discuss with the Company’s Legal Counsel the proposed terms
of any such transfer prior to finalizing such domestic relations
order, marital settlement agreement or other divorce or separation
instrument to help ensure the required information is contained
within the domestic relations order, marital settlement agreement
or other divorce or separation instrument. If this Option is an
Incentive Stock Option, this Option may be deemed to be a
Nonstatutory Stock Option as a result of such
transfer.
c. Beneficiary
Designation. Upon receiving written permission from the
Board or its duly authorized designee, you may, by delivering
written notice to the Company, in a form approved by the Company
and any broker designated by the Company to handle option
exercises, designate a third party who, upon your death, will
thereafter be entitled to exercise this Option and receive the
Common Stock or other consideration resulting from such exercise.
In the absence of such a designation, upon your death, the executor
or administrator of your estate will be entitled to exercise this
Option and receive, on behalf of your estate, the Common Stock or
other consideration resulting from such exercise.
11. Option
Not a Service Contract. Your Continuous Service is not for
any specified term and may be terminated by you or by the Company
or an Affiliate at any time, for any reason, with or without cause
and with or without notice. This Option is not an employment
or service contract, and nothing in this Option (including, but not
limited to, the vesting of the shares of Common Stock subject to
this Option or the issuance of such shares upon exercise of this
Option), this Agreement, the Plan or any covenant of good faith and
fair dealing that may be found implicit in this Option or Agreement
or the Plan will: (i) create or confer upon you any right or
obligation to continue in the employ or service of, or affiliation
with, the Company or an Affiliate; (ii) constitute any promise or
commitment by the Company or an Affiliate regarding the fact or
nature of future positions, future work assignments, future
compensation or any other term or condition of employment, service
or affiliation; (iii) create or confer upon you any right or
benefit under this Option unless such right or benefit has
specifically accrued under the terms of this Agreement or the Plan;
or (iv) deprive the Company of the right to terminate you at will
and without regard to any future vesting opportunity that you may
have. In addition, nothing in this Option will obligate the Company
or an Affiliate, their respective stockholders, boards of
directors, Officers or Employees to continue any relationship that
you might have as an Employee, Director or Consultant for the
Company or an Affiliate.
-33-
12. Tax
Withholding Obligations.
a. At
the time you exercise this Option, in whole or in part, and at any
time thereafter as requested by the Company, you hereby authorize
withholding from payroll and any other amounts payable to you, and
otherwise agree to make adequate provision for (including by means
of a “same day sale” pursuant to a program developed
under Regulation T as promulgated by the Federal Reserve Board to
the extent permitted by the Company), any sums required to satisfy
the federal, state, local and foreign tax withholding obligations
of the Company or any Affiliate which arise in connection with this
Option.
b. If
this Option is a Nonstatutory Stock Option, then upon your request
and subject to the consent of the Company at the time of exercise,
the Company may withhold from fully vested shares of Common Stock
otherwise issuable to you upon exercise of this Option a number of
whole shares of Common Stock with a Fair Market Value on the date
of exercise that does not exceed the minimum amount of tax required
to be withheld by law (or such other amount as may be necessary to
avoid classification of this Option as a liability for financial
accounting purposes).
c. You
may not exercise this Option unless the tax withholding obligations
of the Company and/or any Affiliate are satisfied. Accordingly, you
may not be able to exercise this Option when desired even though
this Option is vested, and the Company will have no obligation to
issue a certificate for any shares of Common Stock unless such
obligations are satisfied.
13. Tax
Consequences. The
Company has no duty or obligation to minimize the tax consequences
to you of this Option and will not be liable to you for any adverse
tax consequences to you arising in connection with this Option. You
acknowledge that this Option is exempt from Section 409A of the
Code only if the exercise price per share set forth in the Grant
Notice is at least equal to the “fair market value” per
share of the Common Stock on the Date of Grant and there is no
other impermissible deferral of compensation associated with the
Option. You are hereby advised to consult with your own personal
tax, financial and/or legal advisors regarding the tax consequences
of this Option and by accepting this Option, you have agreed that
you have done so or knowingly and voluntarily declined to do
so.
-34-
14. Notices.
Any notices provided for in this Agreement or the Plan will be
given in writing (including electronically) and will be deemed
effectively given upon receipt or, in the case of notices delivered
by mail by the Company to you, five days after deposit in the
United States mail, postage prepaid, addressed to you at the last
address you provided to the Company. The Company may, in its sole
discretion, decide to deliver any documents related to this Option
or participation in the Plan by electronic means or to request your
consent to participate in the Plan by electronic means. By
accepting this Option, you consent to receive such documents by
electronic delivery and to participate in the Plan through an
on-line or electronic system established and maintained by the
Company or another third party designated by the
Company.
15. Governing
Plan Document. This Option is subject to all the provisions
of the Plan, the provisions of which are hereby made a part of this
Option, and is further subject to all interpretations, amendments,
rules and regulations which may from time to time be promulgated
and adopted pursuant to the Plan. Except as otherwise expressly
provided in the Grant Notice or this Agreement, in the event of any
conflict between the terms in the Grant Notice or this Agreement
and the terms of the Plan, the terms of the Plan will
control.
16. Other
Documents. You hereby acknowledge receipt of and the right
to receive a document providing the information required by Rule
428(b)(1) promulgated under the Securities Act, which includes the
Plan prospectus. In addition, you acknowledge receipt of the
Company’s policy permitting certain individuals to sell
shares of Common Stock only during certain “window”
periods in effect from time to time and the Company’s insider
trading policy.
17. Effect
on Other Employee Benefit Plans. The value of this Option
will not be included as compensation, earnings, salaries, or other
similar terms used when calculating your benefits under any
employee benefit plan sponsored by the Company or any Affiliate,
except as such plan otherwise expressly provides. The Company
expressly reserves its rights to amend, modify, or terminate any of
the Company’s or any Affiliate’s employee benefit
plans.
18. Stockholder
Rights. You will not
have voting or any other rights as a stockholder of the Company
with respect to the shares of Common Stock to be issued pursuant to
this Option until such shares are issued to you. Upon such
issuance, you will obtain full voting and other rights as a
stockholder of the Company. Nothing contained in this Agreement,
and no action taken pursuant to its provisions, will create or be
construed to create a trust of any kind or a fiduciary relationship
between you and the Company or any other person.
19. Severability.
If any part of this Agreement or the Plan is declared by any court
or governmental authority to be unlawful or invalid, such
unlawfulness or invalidity will not invalidate any portion of this
Agreement or the Plan not declared to be unlawful or invalid. Any
Section of this Agreement (or part of such a Section) so declared
to be unlawful or invalid will, if possible, be construed in a
manner which will give effect to the terms of such Section or part
of a Section to the fullest extent possible while remaining lawful
and valid.
20. Amendment.
Any amendment to this Agreement must be in writing, signed by a
duly authorized representative of the Company. Notwithstanding
anything in the Plan to the contrary, the Board reserves the right
to amend this Agreement in any way it may deem necessary or
advisable to carry out the purpose of the grant as a result of any
change in applicable laws or regulations or any future law,
regulation, interpretation, ruling, or judicial
decision.
-35-
21. Clawback/Recovery/Recoupment. This
Option (and any compensation paid or shares of Common Stock issued
under this Option) will be subject to recoupment in accordance with
any clawback policy that the Company is required to adopt pursuant
to the listing standards of any national securities exchange or
association on which the Company’s securities are listed or
as is otherwise required by the Dodd-Frank Wall Street Reform and
Consumer Protection Act or other applicable law. No recovery of
compensation under such a clawback policy will be an event giving
rise to a right to resign for “good reason” or
“constructive termination” (or similar term) under any
agreement with the Company. In addition, you agree that, subject to
the requirements of applicable law, if you breach any restrictive
covenant agreement between you and the Company or any of its
Affiliates or otherwise engage in activities that constitute Cause
either while employed by, or providing service to, the Company or
any Affiliate within two years thereafter, this Option shall
terminate, and the Company may rescind any exercise of this Option
and delivery of shares of Common Stock upon such exercise, as
applicable, on such terms as the Company shall determine, including
the right to require that in the event of any rescission, (a) you
will return to the Company the shares of Common Stock received upon
the exercise of the Option or, (b) if you no longer own the shares
of Common Stock, you will pay to the Company the amount of any gain
realized or payment received as a result of any sale or other
disposition of the shares of Common Stock (or, in the event you
transfer the shares by gift or otherwise without consideration, the
Fair Market Value of the shares on the date of the breach of any
restrictive covenant agreement or activity constituting Cause), net
of the price originally paid by you for the shares of Common Stock.
You agree that payment by you will be made in such manner and on
such terms and conditions as may be required by the Company and the
Company will be entitled to set off against the amount of any such
payment any amounts otherwise owed by you to the Company or any
Affiliate.
22. Miscellaneous.
a. The
rights and obligations of the Company under this Option will be
transferable to any one or more persons or entities, and all
covenants and agreements hereunder will inure to the benefit of,
and be enforceable by, the Company’s successors and
assigns.
b. You
agree upon request to execute any further documents or instruments
necessary or desirable in the sole determination of the Company to
carry out the purposes or intent of this Option.
c. You
acknowledge and agree that you have reviewed this Option in its
entirety, have had an opportunity to obtain the advice of counsel
prior to executing and accepting this Option, and fully understand
all provisions of this Option.
d. This
Agreement will be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.
-36-
e. All
obligations of the Company under the Plan and this Agreement will
be binding on any successor to the Company, whether the existence
of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of
the business and/or assets of the Company.
* * *
This
Option Agreement will be deemed to be signed by you upon the
signing by you of the Stock Option Grant Notice to which it is
attached.
-37-
Form of Notice of Exercise
ChromaDex
Corporation
Attention:
Stock Plan Administrator
10005
Muirlands Blvd.
Suite
G
Irvine,
CA 92618
Date of Exercise:
_______________
This
constitutes notice to ChromaDex Corporation (the
“Company”)
under my stock option that I elect to purchase the below number of
shares of Common Stock of the Company (the “Shares”) for
the price set forth below.
|
Type of
option (check one):
|
Incentive
☐
|
Nonstatutory
☐
|
|
Stock
option dated:
|
_______________
|
_______________
|
|
Number
of Shares asto which option isexercised:
|
_______________
|
_______________
|
|
Certificates
to beissued in name of:
|
_______________
|
_______________
|
|
Total
exercise price:
|
$______________
|
$______________
|
|
Cash
payment deliveredherewith:
|
$______________
|
$______________
|
|
[Value
of ________ Shares delivered herewith2:
|
$______________
|
$______________]
|
|
[Value
of ________ Shares pursuant to net exercise3:
|
$______________
|
$______________]
|
|
[Regulation
T Program (cashless exercise4):
|
$______________
|
$______________]
|
By this
exercise, I agree (i) to provide such additional documents as
you may require pursuant to the terms of the ChromaDex Corporation
2017 Equity Incentive Plan, (ii) to provide for the payment by
me to you (in the manner designated by you) of your withholding
obligation, if any, relating to the exercise of this option, and
(iii) if this exercise relates to an incentive stock option,
to notify you in writing within fifteen (15) days after the date of
any disposition of any of the Shares issued upon exercise of this
option that occurs within two (2) years after the date of grant of
this option or within one (1) year after such Shares are issued
upon exercise of this option.
Very
truly yours,
-38-
ChromaDex Corporation
2017 Equity Incentive Plan
Form of Restricted Stock Award Grant Notice
ChromaDex
Corporation (the “Company”),
pursuant to its 2017 Equity Incentive Plan (the “Plan”), hereby
awards to Participant a restricted stock award covering the number
of shares of the Company’s Common Stock set forth below. The
Company acknowledges the receipt from Participant of consideration
with respect to the par value of the shares of the Company’s
Common Stock in the form of cash, past or future services rendered
to the Company by Participant or such other form of consideration
as is acceptable to the Board. The restricted stock award and the
shares of Common Stock awarded hereunder are subject to all of the
terms, conditions and restrictions as set forth herein, in the
Restricted Stock Award Agreement, the Plan, and the Prospectus, all
of which are attached hereto and incorporated herein in their
entirety. Capitalized terms not
explicitly defined herein but defined in the Plan or the Restricted
Stock Award Agreement will have the same definitions as in the Plan
or the Restricted Stock Award Agreement, as applicable. If there is
any conflict between the terms herein and the Plan, the terms of
the Plan will control.
Participant:
Date of
Grant:
Vesting
Commencement
Date:
Number of Shares
Subject to
Award:
Vesting Schedule:
The Unvested Shares
subject to this Award will vest and become Vested Shares in
accordance with the vesting schedule below (each such vesting date
specified below, a “Vesting
Date”):
Subject
to the Participant’s Continuous Service through the
applicable vesting date, [ ].
In the
event Participant’s Continuous Service terminates for any
reason, all Unvested Shares as of the date of such termination of
Continuous Service shall immediately and automatically be forfeited
and returned to the Company without any payment of consideration
therefor and without any required action by or notice to
Participant.
Additional Terms/Acknowledgements: The undersigned
Participant acknowledges receipt of, and understands and agrees to,
this Restricted Stock Award Grant Notice, the Restricted Stock
Award Agreement and the Plan. Participant acknowledges and agrees
that this Restricted Stock Award Grant Notice and the Restricted
Stock Award Agreement may not be modified, amended or revised
except as provided therein or in the Plan. Participant
further acknowledges that as of the Date of Grant, this Restricted
Stock Award Grant Notice, the Restricted Stock Award Agreement and
the Plan set forth the entire understanding between Participant and
the Company regarding the acquisition of stock in the Company and
supersede all prior oral and written agreements, promises and/or
representations on that subject with the exception of (i) equity
awards previously granted and delivered to Participant, and (ii)
any compensation recovery policy that is or may be adopted by the
Company or is otherwise required by applicable law. By accepting this restricted stock
award, Participant consents to receive such documents by electronic
delivery and to participate in the Plan through an on-line or
electronic system to the extent established and maintained by the
Company or another third party designated by the
Company.
|
ChromaDex Corporation
By:
Signature
Title:
Date:
|
Participant:
Signature
Date:
|
-39-
ChromaDex
Corporation
2017 Equity Incentive Plan
Form of Restricted Stock Award Agreement
Pursuant to the
Restricted Stock Award Grant Notice (the “Grant Notice”)
and this Restricted Stock Award Agreement (the “Agreement” and
together with the Grant Notice, the “Award”) and
its 2017 Equity Incentive Plan (as amended from time-to-time, the
“Plan”),
ChromaDex Corporation (the “Company”) has
awarded you the number of shares of the Company’s Common
Stock subject to the Award as indicated in the Grant Notice.
Capitalized terms not explicitly defined in this Agreement but
defined in the Plan will have the same definitions as in the Plan.
If there is any conflict between the
terms in this Agreement and the Plan, the terms of the Plan will
control.
The
details of your Award, in addition to those set forth in the Grant
Notice and the Plan, are as follows:
1. Vesting.
Subject to the limitations contained herein, your Award will vest
pursuant to the Vesting Schedule in the Grant Notice, provided that
vesting will cease upon the termination of your Continuous Service.
“Vested
Shares” will mean shares subject to your Award that
have vested in accordance with the Vesting Schedule and with
respect to which the forfeiture conditions and restrictions set
forth in Sections 2 and 3 have lapsed, and “Unvested
Shares” will mean shares subject to your Award that
have not vested in accordance with the Vesting Schedule that remain
subject to such risk of forfeiture and restrictions on transfer as
set forth in sections 2 and 3 of this Agreement.
2. Forfeiture
of Unvested Shares.
Except as may be expressly provided in the Grant Notice or
otherwise determined by the Board in its sole discretion, in the
event your Continuous Service terminates for any reason, all
Unvested Shares as of the date of your termination of Continuous
Service shall immediately and automatically be forfeited and
returned to the Company without any payment to you and without any
required action or notice to you. You hereby agree to take whatever
action the Company deems necessary to effectuate the
Company’s reacquisition of the Unvested Shares and the return
of such shares to the Company. Following such forfeiture and return
to the Company, the Company will become the legal and beneficial
owner of the Unvested Shares and all rights and interests in and
related to such shares, and the Company will have the right to
transfer to its own name the Unvested Shares without further action
by you.
3. Restrictions
and Conditions.
a. In
addition to any other limitation on transfer created by applicable
securities laws, you may not sell, assign, hypothecate, donate,
encumber or otherwise dispose of all or any part of the Unvested
Shares or any interest in the Unvested Shares; provided, however, that an interest in
the Unvested Shares may be transferred pursuant to a domestic
relations order as defined in the Code. In the case of Vested
Shares, you will not sell, assign, hypothecate, donate, encumber or
otherwise dispose of all or any part of the Vested Shares or any
interest in the Vested Shares except in compliance with this
Agreement, the Company’s bylaws and applicable securities
laws.
-40-
b. In
order to implement the provisions of this award, the Company may at
its election either (i) after the Date of Grant, issue a
certificate representing the shares of Common Stock subject to this
Award and place a legend on and stop transfer notice describing the
restrictions on and forfeitability of the Unvested Shares subject
to this Award, in which case the Company may retain such
certificates unless and until the Unvested Shares represented by
such certificate have vested and may cancel such certificate if and
to the extent that the Unvested Shares are forfeited and returned
to the Company or (ii) not issue any certificate representing
shares of Common Stock subject to this Award and instead document
your interest in such shares of Common Stock by registering such
shares of Common Stock with the Company’s transfer agent (or
another custodian selected by the Company) in book entry form in
your name with the applicable restrictions noted in the book-entry
system, in which case certificate(s) representing all or a
part of shares of Common Stock will not be issued unless and until
Unvested Shares become Vested Shares hereunder. The Company
may provide for delay in the issuance or delivery of Vested Shares
as it determines appropriate in order to effectuate Section 9(b) of
this Agreement.
c. Unvested
Shares, together with any other assets or securities in respect of
such Unvested Shares (e.g., dividends), shall be remitted to the
Company and subject to forfeiture and restriction on transfer
pursuant to Sections 2 and 3 of this Agreement and all other
restrictions of the Grant Notice, this Agreement and the Plan.
Subject to the provisions of Sections 2 and 3 of this Agreement,
all Vested Shares (and any other vested assets and securities
attributable thereto) shall be released by the Company within sixty
(60) days following the date of their vesting. At all times
prior to the release of the shares of Common Stock pursuant to the
foregoing sentence, the certificates or book entries representing
such shares shall remain in the Company’s possession or
control. If the Unvested Shares are to be certificated in
accordance with Section 3(b)(i), you shall deliver to the
Company a duly executed blank stock power in a form to be provided
by the Company.
4. Rights
as Stockholder.
Subject to the provisions of this Award, you will exercise all
rights and privileges of a stockholder of the Company with respect
to the shares of Common Stock subject to this award. You will be
deemed to be the holder of the shares for purposes of receiving any
dividends that may be paid with respect to such shares (which will
be subject to the same vesting and forfeiture restrictions as apply
to the shares to which they relate) and for purposes of exercising
any voting rights relating to such shares.
5. Restrictive
Legends. All certificates and/or book entries representing
the Common Stock issued under your Award will be endorsed with
appropriate legends determined by the Company in its sole
discretion (in addition to any other legend that may be required by
other agreements between you and the Company).
6. Capitalization
Adjustments. The
number of shares and/or class of securities subject to your Award
may be adjusted from time to time for Capitalization
Adjustments.
7. Securities
Law Compliance. In no
event may you be issued any shares of Common Stock under your Award
unless the shares are either then registered under the Securities
Act or, if not registered, the Company has determined that such
issuance would be exempt from the registration requirements of the
Securities Act. Your Award and the issuance of shares of Common
Stock under your Award also must comply with all other applicable
laws and regulations, and you will not receive any shares of Common
Stock under your Award if the Company determines that such receipt
would not be in material compliance with such laws and
regulations.
-41-
8. Award
not a Service Contract. Your Award is not an employment or
service contract, and nothing in your Award will be deemed to
create in any way whatsoever any obligation on your part to
continue in the employ of the Company or an Affiliate, or on the
part of the Company or an Affiliate to continue your employment. In
addition, nothing in your Award will obligate the Company or an
Affiliate, their respective stockholders, boards of directors,
Officers or Employees to continue any relationship that you might
have as a Director or Consultant for the Company or an
Affiliate.
9. Withholding
Obligations.
a. At
the time your Award is made, or at any time thereafter as requested
by the Company, you hereby authorize withholding from payroll and
any other amounts payable to you, and otherwise agree to make
adequate provision for any sums required to satisfy the federal,
state, local and foreign tax withholding obligations of the Company
or an Affiliate, if any, which arise in connection with your Award
(the “Withholding
Taxes”). The Company may, in its sole discretion,
satisfy all or any portion of the Withholding Taxes obligation
relating to your Award by any of the following means or by a
combination of such means: (i) withholding from any amounts
otherwise payable to you by the Company; (ii) causing you to tender
a cash payment; (iii) withholding shares of Common Stock from the
shares of Common Stock issued or otherwise issuable to you in
connection with the Award with a Fair Market Value equal to the
amount of such Withholding Taxes or (iv) permitting or requiring
you to enter into a “same day sale” commitment, if
applicable, with a broker-dealer that is a member of the Financial
Industry Regulatory Authority (a “FINRA Dealer”)
whereby you irrevocably elect to sell a portion of the shares
subject to your Award to satisfy the Withholding Taxes and whereby
the FINRA Dealer irrevocably commits to forward the proceeds
necessary to satisfy the Withholding Taxes directly to the Company
and/or its Affiliates; provided,
however, that the number of such shares of Common Stock
withheld may not exceed the amount necessary to satisfy the
Company’s required tax withholding obligations using the
minimum statutory withholding rates for federal, state, local and
foreign tax purposes, including payroll taxes, that are applicable
to supplemental taxable income; and provided, further, that to the extent
necessary to qualify for an exemption from application of Section
16(b) of the Exchange Act, if applicable, such share withholding
procedure will be subject to the express prior approval of the
Company’s Compensation Committee.
b. Unless
the tax withholding obligations of the Company and any Affiliate
are satisfied, the Company will have no obligation to issue a
certificate for such shares, delivery of such shares and/or release
such shares from any escrow (as applicable) provided for in this
Agreement.
c. In
the event the Company’s obligation to withhold arises prior
to the delivery or release to you of Common Stock or it is
determined after the delivery of Common Stock to you that the
amount of the Company’s withholding obligation was greater
than the amount withheld by the Company, you agree to indemnify and
hold the Company harmless from any failure by the Company to
withhold the proper amount.
-42-
10. Tax
Consequences. The Company has no duty or obligation to
minimize the tax consequences to you of this Award and shall not be
liable to you for any adverse tax consequences to you arising in
connection with this Award. You are hereby advised to consult with
your own personal tax, financial and/or legal advisors regarding
the tax consequences of this Award and by signing the Grant Notice,
you have agreed that you have done so or knowingly and voluntarily
declined to do so. You understand that you (and not the Company)
shall be responsible for your own tax liability that may arise as a
result of this investment or the transactions contemplated by this
Agreement. You agree to review with your own tax advisors the
federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. You
will rely solely on such advisors and not on any statements or
representations of the Company or any of its agents. You understand
that Section 83 of the Code taxes as ordinary income to you the
fair market value of the shares of Common Stock issued to you
pursuant to the Award as of the date any restrictions on such
shares lapse (that is, as of the date on which part or all of such
shares vest). You understand that you may elect to be taxed at the
time the Common Stock is issued to you pursuant to your Award,
rather than when and as applicable restrictions lapse, by filing an
election under Section 83(b) of the Code (an “83(b)
Election”) with the Internal Revenue Service within
thirty (30) days after the date your acquire shares of Common Stock
pursuant to your Award. Even if the fair market value of the Common
Stock at the time of grant of your Award equals the amount paid for
the Common Stock, the 83(b) Election must be made to avoid income
under Section 83(a) in the future. You understand that failure to
file such an 83(b) Election in a timely manner may result in
adverse tax consequences for you. You further understand that you
must file an additional copy of such 83(b) Election with your
federal income tax return for the calendar year in which you make
such 83(b) Election. You acknowledge that the foregoing is only a
summary of the effect of U.S. federal income taxation with respect
to issuance of the Common Stock pursuant to your Award, and does
not purport to be complete. You further acknowledge that the
Company has directed you to seek independent advice regarding the
applicable provisions of the Code, the income tax laws of any
municipality, state or foreign country in which you may reside, and
the tax consequences of your death. You assume all responsibility
for filing an 83(b) Election and paying all taxes resulting from
such election or the lapse of the restrictions on the Common Stock.
YOU ACKNOWLEDGE THAT IT IS YOUR OWN RESPONSIBILITY, AND NOT THE
COMPANY’S, TO FILE A TIMELY ELECTION UNDER SECTION 83(B) OF
THE CODE. THE COMPANY AND ITS LEGAL COUNSEL CANNOT ASSUME
RESPONSIBILITY FOR FAILURE TO FILE THE 83(B) ELECTION IN A TIMELY
MANNER UNDER ANY CIRCUMSTANCES.
11. Notices.
Any notices provided for in your Award or the Plan will be given in
writing (including electronically) and will be deemed effectively
given upon receipt or, in the case of notices delivered by the
Company to you, five days after deposit in the U.S. mail, postage
prepaid, addressed to you at the last address you provided to the
Company. The Company may, in its sole discretion, decide to deliver
any documents related to participation in the Plan and this Award
by electronic means or to request your consent to participate in
the Plan by electronic means. By accepting this Award, you consent
to receive such documents by electronic delivery and to participate
in the Plan through an on-line or electronic system established and
maintained by the Company or another third party designated by the
Company.
12. Governing Plan
Document. Your Award
is subject to all the provisions of the Plan, the provisions of
which are hereby made a part of your Award, and is further subject
to all interpretations, amendments, rules and regulations which may
from time to time be promulgated and adopted pursuant to the Plan.
In the event of any conflict between the provisions of your Award
and those of the Plan, the provisions of the Plan will control. In
addition, your Award (and any compensation paid or shares issued
under your Award) is subject to recoupment in accordance with The
Dodd–Frank Wall Street Reform and Consumer Protection Act and
any implementing regulations thereunder, any clawback policy
adopted by the Company and any compensation recovery policy
otherwise required by applicable law.
-43-
13. Other
Documents. You hereby
acknowledge receipt of and the right to receive a document
providing the information required by Rule 428(b)(1) promulgated
under the Securities Act, which includes the Plan prospectus. In
addition, you acknowledge receipt of the Company’s policy
permitting certain individuals to sell shares only during certain
“window” periods and the Company’s insider
trading policy, in effect from time to time.
14. Effect
on Other Employee Benefit Plans. The value of this Award will not be included as
compensation, earnings, salaries, or other similar terms used when
calculating your benefits under any employee benefit plan sponsored
by the Company or any Affiliate, except as such plan otherwise
expressly provides. The Company expressly reserves its rights to
amend, modify, or terminate any of the Company’s or any
Affiliate’s employee benefit plans.
15. Severability.
If all or any part of this Award or the Plan is declared by any
court or governmental authority to be unlawful or invalid, such
unlawfulness or invalidity will not invalidate any portion of this
Award or the Plan not declared to be unlawful or invalid. Any
Section of this Award (or part of such a Section) so declared to be
unlawful or invalid shall, if possible, be construed in a manner
which will give effect to the terms of such Section or part of a
Section to the fullest extent possible while remaining lawful and
valid.
16. Miscellaneous.
a. The
rights and obligations of the Company under your Award are
transferable by the Company to any one or more persons or entities,
and all covenants and agreements hereunder will inure to the
benefit of, and be enforceable by the Company’s successors
and assigns. Your rights and obligations under your Award may only
be assigned with the prior written consent of the Company and
subject to the terms and conditions of this Agreement and the
Plan.
b. You
agree upon request to execute any further documents or instruments
necessary or desirable in the sole determination of the Company to
carry out the purposes or intent of your Award.
c. You
acknowledge and agree that you have reviewed your Award in its
entirety, have had an opportunity to obtain the advice of counsel
prior to executing and accepting your Award and fully understand
all provisions of your Award.
*
*
*
This
Restricted Stock Award Agreement will be deemed to be signed by the
Company and Participant upon the signing by Participant of the
Restricted Stock Award Grant Notice to which it is attached or (to
the extent established and permitted by the Company) by acceptance
of this Award through the Company’s electronic stock plan
administration system.
-44-
ChromaDex Corporation
2017 Equity Incentive
Plan
Form of Restricted Stock Unit Award Grant Notice
ChromaDex
Corporation (the “Company”)
hereby grants to Participant a Restricted Stock Unit Award (the
“Award”) under
the ChromaDex Corporation 2017 Equity Incentive Plan (the
“Plan”) for the
number of restricted stock units (the “RSUs”) set
forth below. This Award is subject to all of the terms and
conditions set forth in this Restricted Stock Unit Award Grant
Notice (the “Grant Notice”)
and in the Restricted Stock Unit Award Agreement (the
“Agreement”)
and the Plan, both of which are attached hereto and incorporated
herein in their entirety. Capitalized terms not explicitly defined
in this Grant Notice but defined in the Plan or the Agreement will
have the same definitions as in the Plan or the
Agreement.
Participant:
Date of
Grant:
Vesting
Commencement
Date:
Number of RSUs
Subject to
Award:
Vesting Schedule:
Subject to Section
2 of the Agreement, this Award will vest as follows: [ ]. Each
installment of RSUs that vests under this Award is a
“separate payment” for purposes of Treasury Regulations
Section 1.409A-2(b)(2).
Issuance Schedule:
Subject to any
change upon a Capitalization Adjustment, one share of Common Stock
will be issued for each RSU that vests at the time set forth in
Section 6 of the
Agreement.
Additional Terms/Acknowledgements: Participant acknowledges
receipt of, and understands and agrees to, this Grant Notice, the
Agreement, the Plan and the stock plan prospectus for the Plan.
Participant further acknowledges that as of the Date of Grant, this
Grant Notice, the Agreement and the Plan set forth the entire
understanding between Participant and the Company regarding this
Award and supersede all prior oral and written agreements, promises
and/or representations regarding this Award, with the exception, if
applicable, of (i) any written employment, offer letter or
severance agreement, or any written severance plan or policy
specifying the terms that should govern this Award, (ii) the
Company’s stock ownership guidelines, and (iii) any
compensation recovery policy that is adopted by the Company or is
otherwise required by applicable law. By accepting this Award,
Participant consents to receive this Grant Notice, the Agreement,
the Plan, the stock plan prospectus for the Plan and any other
Plan-related documents by electronic delivery and to participate in
the Plan through an on-line or electronic system established and
maintained by the Company or another third party designated by the
Company.
|
ChromaDex Corporation
By:
Signature
Title:
Date:
|
Participant:
Signature
Date:
|
-45-
ChromaDex Corporation
2017 Equity Incentive Plan
Form of Restricted Stock Unit Award Agreement
Pursuant to the
accompanying Restricted Stock Unit Award Grant Notice (the
“Grant
Notice”) and this Restricted Stock Unit Award
Agreement (the “Agreement”),
ChromaDex Corporation (the “Company”) has
granted you a Restricted Stock Unit Award (the “Award”) under
the ChromaDex Corporation 2017 Equity Incentive Plan (the
“Plan”) for the
number of restricted stock units (the “Restricted Stock
Units”) set forth in the Grant Notice. This Award is
granted to you effective as of the date of grant set forth in the
Grant Notice (the “Date of
Grant”). Capitalized terms not explicitly defined in
this Agreement but defined in the Plan or the Grant Notice will
have the same definitions as in the Plan or the Grant
Notice.
1. Grant of the
Award. This Award represents your right to be issued on a
future date (as set forth in Section 6) one share of Common Stock
for each Restricted Stock Unit subject to this Award that vests in
accordance with the Grant Notice and this Agreement. This Award was
granted in consideration of your services to the Company or an
Affiliate.
2. Vesting.
This Award will vest, if at all, in accordance with the vesting
schedule set forth in the Grant Notice. Vesting will cease upon the
termination of your Continuous Service. Upon such termination of
your Continuous Service, you will forfeit (at no cost to the
Company) any Restricted Stock Units subject to this Award that have
not vested as of the date of such termination and you will have no
further right, title or interest in such Restricted Stock
Units.
a. The
number of Restricted Stock Units subject to this Award, as set
forth in the Grant Notice, will be adjusted for Capitalization
Adjustments, if any, as provided in the Plan.
b. Any
additional Restricted Stock Units and any shares of Common Stock,
cash or other property that become subject to this Award pursuant
to this Section 3 will be subject, in
a manner determined by the Board, to the same forfeiture
restrictions, restrictions on transferability, and time and manner
of issuance as applicable to the other Restricted Stock Units
subject to this Award to which they relate.
c. No
fractional shares or rights for fractional shares of Common Stock
will be created pursuant to this Section 3. Any fractional shares that may be created
by the adjustments referred to in this Section 3 will be rounded
down to the nearest whole share.
4. Securities
Law Compliance. You
will not be issued any shares of Common Stock in respect of this
Award unless either (i) such shares are registered under the
Securities Act or (ii) the Company has determined that such
issuance would be exempt from the registration requirements of the
Securities Act. This Award also must comply with all other
applicable laws and regulations governing this Award, and you will
not receive any shares of Common Stock in respect of this Award if
the Company determines that such receipt would not be in material
compliance with such laws and regulations.
-46-
5. Transferability.
Except as otherwise provided in this Section 5, this Award is not
transferable, except by will or by the laws of descent and
distribution and prior to the time that shares of Common Stock in
respect of this Award have been issued to you, you may not
transfer, pledge, sell or otherwise dispose of any portion of the
Restricted Stock Units or the shares of Common Stock in respect of
this Award. For example, you may not use any shares of Common Stock
that may be issued in respect of this Award as security for a loan,
nor may you transfer, pledge, sell or otherwise dispose of such
shares. This restriction on transfer will lapse upon issuance to
you of the shares of Common Stock in respect of this
Award.
a. Beneficiary
Designation. Upon receiving written permission from the
Board or its duly authorized designee, you may, by delivering
written notice to the Company, in a form approved by the Company
and any broker designated by the Company to effect transactions
under the Plan, designate a third party who, in the event of your
death, will thereafter be entitled to receive any distribution of
Common Stock or other consideration to which you were entitled at
the time of your death pursuant to this Agreement. In the absence
of such a designation, in the event of your death, the executor or
administrator of your estate will be entitled to receive, on behalf
of your estate, such Common Stock or other
consideration.
b. Domestic
Relations Orders. Upon receiving written permission from the
Board or its duly authorized designee, and provided that you and
the designated transferee enter into transfer and other agreements
required by the Company, you may transfer your right to receive any
distribution of Common Stock or other consideration under this
Award, pursuant to the terms of a domestic relations order,
official marital settlement agreement or other divorce or
separation instrument as permitted by applicable law that contains
the information required by the Company to effectuate the transfer.
You are encouraged to discuss with the Company’s General
Counsel the proposed terms of any such transfer prior to finalizing
such domestic relations order, marital settlement agreement or
other divorce or separation instrument to help ensure the required
information is contained within the domestic relations order,
marital settlement agreement or other divorce or separation
instrument.
a. The
issuance of any shares of Common Stock in respect of this Award is
(i) subject to satisfaction of the tax withholding obligations set
forth in Section 10 and (ii) intended to comply with Treasury
Regulations Section 1.409A-1(b)(4) and will be construed and
administered in such a manner. The form of such issuance
(e.g., a stock certificate
or electronic entry evidencing such shares) will be determined by
the Company.
b. In
the event one or more Restricted Stock Units subject to this Award
vests, the Company will issue to you, on the applicable vesting
date, one share of Common Stock for each Restricted Stock Unit that
vests on such date (and for purposes of this Agreement, such
issuance date is referred to as the “Original Issuance
Date”); provided,
however, that if the Original Issuance Date falls on a date
that is not a business day, such shares will instead be issued to
you on the next following business day.
c. Notwithstanding
the foregoing, if
(i) the Original Issuance Date does not occur (1) during an
“open window period” applicable to you, as determined
by the Company in accordance with the Company’s
then-effective policy on trading in Company securities, or (2) on a
date when you are otherwise permitted to sell shares of Common
Stock on an established stock exchange or stock market (including,
but not limited to, under a previously established 10b5-1 trading
plan entered into in compliance with the Company’s policies),
and (ii) the Board elects,
prior to the Original Issuance Date, (1) not to satisfy the
Withholding Taxes described in Section 10 by withholding shares of
Common Stock from the shares of Common Stock otherwise due, on the
Original Issuance Date, to you under this Award, (2) not to permit
you to enter into a “same day sale” commitment with a
broker-dealer pursuant to Section 10 (including, but not limited
to, a commitment under a previously established 10b5-1 trading plan
entered into in compliance with the Company’s policies) and
(3) not to permit you to pay the Withholding Taxes in cash,
then the shares
that would otherwise be issued to you on the Original Issuance Date
will not be issued on such Original Issuance Date and will instead
be issued on the first business day when you are not prohibited
from selling shares of Common Stock in the open public market, but
in no event later than December 31 of the calendar year in which
the Original Issuance Date occurs (that is, the last day of your
taxable year in which the Original Issuance Date occurs), or, if
and only if permitted in a manner that complies with Treasury
Regulations Section 1.409A-1(b)(4), no later than the date that is
the 15th day of the third calendar month of the year following the
year in which the shares of Common Stock in respect of this Award
are no longer subject to a “substantial risk of
forfeiture” within the meaning of Treasury Regulations
Section 1.409A-1(d).
-47-
7. Dividends.
You will receive no benefit or adjustment to this Award with
respect to any cash dividend, stock dividend or other distribution
except as provided in the Plan with respect to a Capitalization
Adjustment.
8. Restrictive
Legends. The shares of Common Stock issued in respect of
this Award will be endorsed with appropriate legends, if any, as
determined by the Company.
9. Award
Not a Service Contract. Your Continuous Service is not for any
specified term and may be terminated by you or by the Company or an
Affiliate at any time, for any reason, with or without cause and
with or without notice. This Award is not an employment or
service contract, and nothing in this Award (including, but not
limited to, the vesting of the Restricted Stock Units subject to
this Award or the issuance of shares of Common Stock in respect of
this Award), this Agreement, the Plan or any covenant of good faith
and fair dealing that may be found implicit in this Award or
Agreement or the Plan will: (i) create or confer upon you any
right or obligation to continue in the employ or service of, or
affiliation with, the Company or an Affiliate; (ii) constitute any
promise or commitment by the Company or an Affiliate regarding the
fact or nature of future positions, future work assignments, future
compensation or any other term or condition of employment, service
or affiliation; (iii) create or confer upon you any right or
benefit under this Award unless such right or benefit has
specifically accrued under the terms of this Agreement or the Plan;
or (iv) deprive the Company of the right to terminate you at will
and without regard to any future vesting opportunity that you may
have. In addition, nothing in this Award will obligate the Company
or an Affiliate, their respective stockholders, boards of
directors, Officers or Employees to continue any relationship that
you might have as an Employee, Director or Consultant for the
Company or an Affiliate.
-48-
a. On
or before the time you receive a distribution of any shares of
Common Stock in respect of this Award, and at any other time as
reasonably requested by the Company in accordance with applicable
tax laws, you agree to make adequate provision for any sums
required to satisfy the federal, state, local and foreign tax
withholding obligations of the Company or any Affiliate that arise
in connection with this Award (the “Withholding
Taxes”). Specifically, the Company or an Affiliate
may, in its sole discretion, satisfy all or any portion of the
Withholding Taxes relating to this Award by any of the following
means or by a combination of such means: (i) withholding from any
compensation otherwise payable to you by the Company or an
Affiliate; (ii) causing you to tender a cash payment; (iii)
permitting you to enter into a “same day sale”
commitment with a broker-dealer that is a member of the Financial
Industry Regulatory Authority (a “FINRA Dealer”)
whereby you irrevocably elect to sell a portion of the shares of
Common Stock to be issued in connection with this Award to satisfy
the Withholding Taxes and whereby the FINRA Dealer irrevocably
commits to forward the proceeds necessary to satisfy the
Withholding Taxes directly to the Company and/or its Affiliates; or
(iv) withholding shares of Common Stock from the shares of Common
Stock issued or otherwise issuable to you in connection with this
Award with a Fair Market Value (measured as of the date the shares
of Common Stock are issued to you) equal to the amount of such
Withholding Taxes; provided,
however, that the number of such shares of Common Stock so
withheld will not exceed the amount necessary to satisfy the
Company’s required tax withholding obligations using the
minimum statutory withholding rates for federal, state, local and,
if applicable, foreign tax purposes, including payroll taxes, that
are applicable to supplemental taxable income.
b. Unless
the Withholding Taxes of the Company and/or any Affiliate are
satisfied, the Company will have no obligation to issue to you any
Common Stock.
c. In
the event the Company’s obligation to withhold arises prior
to the issuance to you of Common Stock or it is determined after
the issuance of Common Stock to you that the amount of the
Company’s withholding obligation was greater than the amount
withheld by the Company, you agree to indemnify and hold the
Company harmless from any failure by the Company to withhold the
proper amount.
11. Tax
Consequences. The
Company has no duty or obligation to minimize the tax consequences
to you of this Award and will not be liable to you for any adverse
tax consequences to you arising in connection with this Award. You
are hereby advised to consult with your own personal tax, financial
and/or legal advisors regarding the tax consequences of this Award
and by accepting this Award, you have agreed that you have done so
or knowingly and voluntarily declined to do so.
12. Notices.
Any notices provided for in this Agreement or the Plan will be
given in writing (including electronically) and will be deemed
effectively given upon receipt or, in the case of notices delivered
by mail by the Company to you, five days after deposit in the
United States mail, postage prepaid, addressed to you at the last
address you provided to the Company. The Company may, in its sole
discretion, decide to deliver any documents related to this Award
or participation in the Plan by electronic means or to request your
consent to participate in the Plan by electronic means. By
accepting this Award, you consent to receive such documents by
electronic delivery and to participate in the Plan through an
on-line or electronic system established and maintained by the
Company or another third party designated by the
Company.
-49-
13. Governing
Plan Document. This
Award is subject to all the provisions of the Plan, the provisions
of which are hereby made a part of this Award, and is further
subject to all interpretations, amendments, rules and regulations
which may from time to time be promulgated and adopted pursuant to
the Plan. Except as otherwise expressly provided in the Grant
Notice or this Agreement, in the event of any conflict between the
terms in the Grant Notice or this Agreement and the terms of the
Plan, the terms of the Plan will control.
14. Other
Documents. You hereby acknowledge receipt of and the right
to receive a document providing the information required by Rule
428(b)(1) promulgated under the Securities Act, which includes the
Plan prospectus. In addition, you acknowledge receipt of the
Company’s policy permitting certain individuals to sell
shares of Common Stock only during certain “window”
periods in effect from time to time and the Company’s insider
trading policy.
15. Effect
on Other Employee Benefit Plans. The value of this Award
will not be included as compensation, earnings, salaries, or other
similar terms used when calculating your benefits under any
employee benefit plan sponsored by the Company or any Affiliate,
except as such plan otherwise expressly provides. The Company
expressly reserves its rights to amend, modify, or terminate any of
the Company’s or any Affiliate’s employee benefit
plans.
16. Stockholder
Rights. You will not
have voting or any other rights as a stockholder of the Company
with respect to the shares of Common Stock to be issued pursuant to
this Award until such shares are issued to you. Upon such issuance,
you will obtain full voting and other rights as a stockholder of
the Company. Nothing contained in this Agreement, and no action
taken pursuant to its provisions, will create or be construed to
create a trust of any kind or a fiduciary relationship between you
and the Company or any other person.
17. Severability.
If any part of this Agreement or the Plan is declared by any court
or governmental authority to be unlawful or invalid, such
unlawfulness or invalidity will not invalidate any portion of this
Agreement or the Plan not declared to be unlawful or invalid. Any
Section of this Agreement (or part of such a Section) so declared
to be unlawful or invalid will, if possible, be construed in a
manner which will give effect to the terms of such Section or part
of a Section to the fullest extent possible while remaining lawful
and valid.
18. Amendment.
Any amendment to this Agreement must be in writing, signed by a
duly authorized representative of the Company. Notwithstanding
anything in the Plan to the contrary, the Board reserves the right
to amend this Agreement in any way it may deem necessary or
advisable to carry out the purpose of the grant as a result of any
change in applicable laws or regulations or any future law,
regulation, interpretation, ruling, or judicial
decision.
19. Clawback/Recovery. This
Award (and any compensation paid or shares of Common Stock issued
under this Award) will be subject to recoupment in accordance with
any clawback policy that the Company is required to adopt pursuant
to the listing standards of any national securities exchange or
association on which the Company’s securities are listed or
as is otherwise required by the Dodd-Frank Wall Street Reform and
Consumer Protection Act or other applicable law. No recovery of
compensation under such a clawback policy will be an event giving
rise to a right to resign for “good reason” or
“constructive termination” (or similar term) under any
agreement with the Company.
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20. Unsecured
Obligation. This Award is unfunded, and as a holder of
vested Restricted Stock Units, you will be considered an unsecured
creditor of the Company with respect to the Company’s
obligation, if any, to issue shares of Common Stock or other
property pursuant to this Agreement.
21. Compliance
with Section 409A of the Code. This Award is intended to comply with
the “short-term deferral” rule set forth in Treasury
Regulations Section 1.409A-1(b)(4). However, if (i) this Award
fails to satisfy the requirements of the short-term deferral rule
and is otherwise not exempt from, and therefore deemed to be
deferred compensation subject to, Section 409A of the Code, (ii)
you are deemed by the Company at the time of your “separation
from service” (as such term is defined in Treasury
Regulations Section 1.409A-1(h) without regard to any alternative
definition thereunder) to be a “specified employee” for
purposes of Section 409A(a)(2)(B)(i) of the Code, and (iii) any of
the payments set forth herein are issuable upon such separation
from service, then to the extent delayed commencement of any
portion of such payments is required to avoid a prohibited
distribution under Section 409A(a)(2)(B)(i) of the Code and the
related adverse taxation under Section 409A of the Code, such
payments will not be provided to you prior to the earliest of (a)
the date that is six months and one day after the date of such
separation from service, (b) the date of your death, or (c) such
earlier date as permitted under Section 409A of the Code without
the imposition of adverse taxation. Upon the first business day
following the expiration of such applicable Code Section
409A(a)(2)(B)(i) period, all payments deferred pursuant to this
Section 21 will be paid in a lump sum to you, and any remaining
payments due will be paid as otherwise provided herein. Each
installment of Restricted Stock Units that vests under this Award
is a “separate payment” for purposes of Treasury
Regulations Section 1.409A-2(b)(2).
22. Miscellaneous.
a. The
rights and obligations of the Company under this Award will be
transferable to any one or more persons or entities, and all
covenants and agreements hereunder will inure to the benefit of,
and be enforceable by, the Company’s successors and
assigns.
b. You
agree upon request to execute any further documents or instruments
necessary or desirable in the sole determination of the Company to
carry out the purposes or intent of this Award.
c. You
acknowledge and agree that you have reviewed this Award in its
entirety, have had an opportunity to obtain the advice of counsel
prior to executing and accepting this Award, and fully understand
all provisions of this Award.
d. This
Agreement will be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.
e. All
obligations of the Company under the Plan and this Agreement will
be binding on any successor to the Company, whether the existence
of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of
the business and/or assets of the Company.
*
*
*
This
Restricted Stock Unit Award Agreement will be deemed to be signed
by you upon the signing by you of the Restricted Stock Unit Award
Grant Notice to which it is attached.
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