Exhibit 99.1
ENDOLOGIX, INC.
2006 STOCK INCENTIVE PLAN
(AS AMENDED, BY RESOLUTION ADOPTED BY THE BOARD OF DIRECTORS ON APRIL
9, 2008 AND BY STOCKHOLDER
APPROVAL ON MAY 22, 2008)
The 2006 STOCK INCENTIVE PLAN (the Plan) is hereby established and adopted this 31st day of
March, 2006 (the Effective Date) by Endologix, Inc., a Delaware Corporation (the Company).
ARTICLE 1.
PURPOSES OF THE PLAN
1.1 Purposes.
The purposes of the Plan are (a) to enhance the Companys ability to attract
and retain the services of qualified employees, officers, directors, consultants and other service
providers upon whose judgment, initiative and efforts the successful conduct and development of the
Companys business largely depends, and (b) to provide additional incentives to such persons or
entities to devote their utmost effort and skill to the advancement and betterment of the Company,
by providing them an opportunity to participate in the ownership of the Company and thereby have an
interest in the success and increased value of the Company.
ARTICLE 2.
DEFINITIONS
For purposes of this Plan, the following terms shall have the meanings indicated:
2.1 Administrator.
Administrator means the Board or, if the Board delegates responsibility
for any matter to the Committee, the term Administrator shall mean the Committee.
2.2 Affiliated Company.
Affiliated Company means:
(a)
with respect to Incentive Options, any parent corporation or subsidiary corporation of
the Company, whether now existing or hereafter created or acquired, as those terms are defined in
Sections 424(e) and 424(f) of the Code, respectively; and
(b)
with respect to Awards other than Incentive Options, any entity described in paragraph (a)
of this Section 2.2 above, plus any other corporation, limited liability company (LLC),
partnership or joint venture, whether now existing or hereafter created or acquired, with respect
to which the Company beneficially owns more than fifty percent (50%) of: (1) the total combined
voting power of all outstanding voting securities or (2) the capital or profits interests of an
LLC, partnership or joint venture.
2.3 Award.
Award means an Option, a Restricted Stock award, a Stock Appreciation Right
award, a Dividend Equivalents award, a Stock Payment award or a Restricted Stock Unit award granted
to a Participant pursuant to the Plan.
2.4 Award Agreement.
Award Agreement means a written or electronic agreement entered into
between the Company and a Participant setting forth the terms and conditions of an Award granted to
a Participant.
2.5 Board.
Board means the Board of Directors of the Company.
2.6 Change in Control.
Change in Control shall mean:
(a)
The acquisition, directly or indirectly, in one transaction or a series of related
transactions, by any person or group (within the meaning of Section 13(d)(3) of the Exchange Act)
of the beneficial ownership of securities of the Company possessing more than fifty percent (50%)
of the total combined voting power of all outstanding securities of the Company;
(b)
A merger or consolidation in which the Company is not the surviving entity, except for a
transaction in which the holders of the outstanding voting securities of the Company immediately
prior to such merger or consolidation hold as a result of holding Company securities prior to such
transaction, in the aggregate, securities possessing more than fifty percent (50%) of the total
combined voting power of all outstanding voting securities of the surviving entity (or the parent
of the surviving entity) immediately after such merger or consolidation;
(c)
A reverse merger in which the Company is the surviving entity but in which the holders of
the outstanding voting securities of the Company immediately prior to such merger hold, in the
aggregate, securities possessing less than fifty percent (50%) of the total combined voting power
of all outstanding voting securities of the Company or of the acquiring entity immediately after
such merger;
(d)
The sale, transfer or other disposition (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company, except for a transaction in
which the holders of the outstanding voting securities of the Company immediately prior to such
transaction(s) receive as a distribution with respect to securities of the Company, in the
aggregate, securities possessing more than fifty percent (50%) of the total combined voting power
of all outstanding voting securities of the acquiring entity immediately after such transaction(s);
or
(e)
The approval by the stockholders of a plan or proposal for the liquidation or dissolution
of the Company.
2.7 Code.
Code means the Internal Revenue Code of 1986, as amended from time to time.
2.8 Committee.
Committee means a committee of two or more members of the Board appointed to
administer the Plan, as set forth in Section 10.1 hereof.
2.9 Common Stock.
Common Stock means the Common Stock of the Company, subject to adjustment
pursuant to Section 4.2 hereof.
2.10 Covered Employee.
Covered Employee means the Chief Executive Officer of the Company
(or the individual acting in a similar capacity) and the four (4) other individuals that are the
highest compensated executive officers of the Company for the relevant taxable year for whom total
compensation is required to be reported to stockholders under the Exchange Act.
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2.11 Disability.
Disability means permanent and total disability as defined in
Section 22(e)(3) of the Code. The Administrators determination of a Disability or the absence
thereof shall be conclusive and binding on all interested parties.
2.12 Dividend Equivalent
. Dividend Equivalent means a right to receive payments equivalent
to the amount of dividends paid by the Company to holders of shares of Common Stock with respect to
the number of Dividend Equivalents held by the Participant. The Dividend Equivalent may provide for
payment in Common Stock or in cash, or a fixed combination of Common Stock or cash, or the
Administrator may reserve the right to determine the manner of payment at the time the Dividend
Equivalent is payable. Dividend Equivalents may be granted only in connection with a grant of
Restricted Stock Units and shall be subject to the vesting conditions that govern Restricted Stock
Units as set forth in the applicable Restricted Stock Award Agreement.
2.13 DRO.
DRO means a domestic relations order as defined in the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended, or the regulations thereunder.
2.14 Effective Date.
Effective Date means the date on which the Plan was originally adopted
by the Board, as set forth on the first page hereof.
2.15 Exchange Act.
Exchange Act means the Securities and Exchange Act of 1934, as amended.
2.16 Exercise Price.
Exercise Price means the purchase price per share of Common Stock
payable upon exercise of an Option.
2.17 Fair Market Value.
Fair Market Value on any given date means the value of one share of
Common Stock, determined as follows:
(a)
If the Common Stock is then listed or admitted to trading on a Nasdaq market system or a
stock exchange which reports closing sale prices, the Fair Market Value shall be the closing sale
price on the date of valuation on such Nasdaq market system or principal stock exchange on which
the Common Stock is then listed or admitted to trading, or, if no closing sale price is quoted on
such day, then the Fair Market Value shall be the closing sale price of the Common Stock on such
Nasdaq market system or such exchange on the next preceding day on which a closing sale price is
reported.
(b)
If the Common Stock is not then listed or admitted to trading on a Nasdaq market system or
a stock exchange which reports closing sale prices, the Fair Market Value shall be the average of
the closing bid and asked prices of the Common Stock in the over-the-counter market on the date of
valuation.
(c)
If neither (a) nor (b) is applicable as of the date of valuation, then the Fair Market
Value shall be determined by the Administrator in good faith using any reasonable method of
evaluation, which determination shall be conclusive and binding on all interested parties.
2.18 Incentive Option.
Incentive Option means any Option designated and qualified as an
incentive stock option as defined in Section 422 of the Code.
2.19 Incentive Option Agreement.
Incentive Option Agreement means an Option Agreement with
respect to an Incentive Option.
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2.20 NASD Dealer.
NASD Dealer means a broker-dealer that is a member of the National
Association of Securities Dealers, Inc.
2.21 Non-Employee Director.
Non-Employee Director shall have the meaning given in Section
5.11 below.
2.22 Nonqualified Option.
Nonqualified Option means any Option that is not an Incentive
Option. To the extent that any Option designated as an Incentive Option fails in whole or in part
to qualify as an Incentive Option, including, without limitation, for failure to meet the
limitations applicable to a 10% Stockholder or because it exceeds the annual limit provided for in
Section 5.7 below, it shall to that extent constitute a Nonqualified Option.
2.23 Nonqualified Option Agreement.
Nonqualified Option Agreement means an Option Agreement
with respect to a Nonqualified Option.
2.24 Option.
Option means any option to purchase Common Stock granted pursuant to the Plan.
2.25 Option Agreement.
Option Agreement means the written agreement entered into between
the Company and the Optionee with respect to an Option granted under the Plan.
2.26 Optionee.
Optionee means any Participant who holds an Option.
2.27 Participant.
Participant means an individual or entity that holds an Option, Stock
Appreciation Right, shares of Stock, Restricted Stock, Restricted Stock Units, Stock Payment or
Dividend Equivalents under the Plan.
2.28 Performance Criteria.
Performance Criteria means one or more of the following as
established by the Administrator, which may be stated as a target percentage or dollar amount, a
percentage increase over a base period percentage or dollar amount or the occurrence of a specific
event or events:
(a)
Sales;
(b)
Operating income;
(c)
Pre-tax income;
(d)
Earnings before interest, taxes, depreciation and amortization;
(e)
Earnings per share of Common Stock on a fully-diluted basis;
(f)
Consolidated net income of the Company divided by the average consolidated common
stockholders equity;
(g)
Cash and cash equivalents derived from either (i) net cash flow from operations, or (ii)
net cash flow from operations, financings and investing activities;
(h)
Adjusted operating cash flow return on income;
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(i)
Cost containment or reduction;
(j)
The percentage increase in the market price of the Common Stock over a stated period;
(k)
Return on assets;
(l)
New Company product introductions;
(m)
Obtaining regulatory approvals for new or existing products; and
(n)
Individual business objectives.
2.29 Purchase Price.
Purchase Price means the purchase price payable to purchase a share of
Restricted Stock, or a Restricted Stock Unit, which, in the sole discretion of the Administrator,
may be zero (0), subject to limitations under applicable law.
2.30 Repurchase Right.
Repurchase Right means the right of the Company to repurchase either
unvested shares of Restricted Stock pursuant to Section 6.6 or to cancel unvested Restricted Stock
Units pursuant to Section 7.6.
2.31 Restricted Stock.
Restricted Stock means shares of Common Stock issued pursuant to
Article 6 hereof, subject to any restrictions and conditions as are established pursuant to such
Article 6.
2.32 Restricted Stock Award.
Restricted Stock Award means either the issuance of Restricted
Stock or the grant of Restricted Stock Units or Dividend Equivalents under the Plan.
2.33 Restricted Stock Award Agreement.
Restricted Stock Award Agreement means the written
agreement entered into between the Company and a Participant evidencing the issuance of Restricted
Stock or the grant of Restricted Stock Units or Dividend Equivalents under the Plan.
2.34 Restricted Stock Unit.
Restricted Stock Unit means the right to receive one share of
Common Stock issued pursuant to Article 7 hereof, subject to any restrictions and conditions as are
established pursuant to such Article 7.
2.35 Service Provider.
Service Provider means a consultant or other person or entity the
Administrator authorizes to become a Participant in the Plan and who provides services to (i) the
Company, (ii) an Affiliated Company, or (iii) any other business venture designated by the
Administrator in which the Company or an Affiliated Company has a significant ownership interest.
2.36 Stock Appreciation Right
.
Stock Appreciation Right
means a contractual right granted
to a Participant under Article 8 hereof entitling such Participant to receive a payment
representing the difference between the base price per share of the right and the Fair Market Value
of a share of Common Stock, payable either in cash or in shares of the Companys Common Stock, at
such time, and subject to such conditions, as are set forth in this Plan and the applicable Stock
Appreciation Rights Award agreement.
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2.37 Stock Appreciation Rights Holder
. Stock Appreciation Rights Holder means any
Participant who holds a Stock Appreciation Right.
2.38 Stock Payment.
Stock Payment means a payment in the form of shares of Common Stock.
2.39 10% Stockholder.
10% Stockholder means a person who, as of a relevant date, owns or is
deemed to own (by reason of the attribution rules applicable under Section 424(d) of the Code)
stock possessing more than 10% of the total combined voting power of all classes of stock of the
Company or of an Affiliated Company.
ARTICLE 3.
ELIGIBILITY
3.1 Incentive Options.
Only employees of the Company or of an Affiliated Company (including
members of the Board if they are employees of the Company or of an Affiliated Company) are eligible
to receive Incentive Options under the Plan.
3.2 Nonqualified Options, Stock Appreciation Rights, Stock Payments and Restricted Stock
Awards.
Employees of the Company or of an Affiliated Company, members of the Board (whether or not
employed by the Company or an Affiliated Company), and Service Providers are eligible to receive
Nonqualified Options, Stock Appreciation Rights, Stock Payments or Restricted Stock Awards under
the Plan.
3.3
Section 162(m)
Limitation.
In no event shall any Participant be granted Options or Stock
Appreciation Rights in any one calendar year pursuant to which the aggregate number of shares of
Common Stock that may be acquired thereunder exceeds 200,000 shares, subject to adjustment as to
the number and kind of shares pursuant to Section 4.2 hereof. Notwithstanding the foregoing, in
connection with his or her initial service to the Company, the aggregate number of shares of Common
Stock with respect to which Options or Stock Appreciation Rights may be granted to any Participant
shall not exceed 300,000 shares of Common Stock during the calendar year which includes such
individuals initial service to the Company. The foregoing limitations shall be applied on an
aggregate basis taking into account Awards granted to a Participant under the Plan as well as
awards of the same type granted to a Participant under any other equity-based compensation plan of
the Company or any Affiliated Company.
ARTICLE 4.
PLAN SHARES
4.1 Shares Subject to the Plan.
(a)
The number of shares of Common Stock that may be issued pursuant to Awards under the Plan
shall be 5,814,478. The foregoing shall be subject to adjustment as to the number and kind of
shares pursuant to Section 4.2 hereof. In the event that (a) all or any portion of any Option
granted under the Plan can no longer under any circumstances be exercised, or (b) any shares of
Common Stock subject to an Award Agreement are reacquired by the Company, the shares
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of Common Stock allocable to the unexercised portion of such Option or the shares so
reacquired shall again be available for grant or issuance under the Plan.
(b)
The maximum number of shares of Common Stock that may be issued under the Plan as
Incentive Options shall be 5,814,478 shares, subject to adjustment as to the number and kind of
shares pursuant to Section 4.2 hereof.
(c)
The maximum number of shares of Common Stock that may be issued as Restricted Stock, Stock
Payment awards, or subject to Restricted Stock Units shall be 500,000, subject to adjustment as to
the number and kind of shares pursuant to Section 4.2 hereof.
4.2 Changes in Capital Structure.
In the event that the outstanding shares of Common Stock
are hereafter increased or decreased or changed into or exchanged for a different number or kind of
shares or other securities of the Company by reason of a recapitalization, stock split, reverse
stock split, reclassification, stock dividend, or other change in the capital structure of the
Company, then appropriate adjustments shall be made by the Administrator to the aggregate number
and kind of shares subject to this Plan, the number and kind of shares and the price per share
subject to outstanding Award Agreements and the limit on the number of shares under Section 3.3,
all in order to preserve, as nearly as practical, but not to increase, the benefits to
Participants.
ARTICLE 5.
OPTIONS
5.1 Grant of Stock Options.
The Administrator shall have the right to grant, pursuant to this
Plan, Options subject to such terms, restrictions and conditions as the Administrator may determine
at the time of grant. Such conditions may include, but are not limited to, continued employment or
the achievement of specified performance goals or objectives established by the Administrator with
respect to one or more Performance Criteria.
5.2 Option Agreements
. Each Option granted pursuant to this Plan shall be evidenced by an
Option Agreement which shall specify the number of shares subject thereto, vesting provisions
relating to such Option, the Exercise Price per share, and whether the Option is an Incentive
Option or Nonqualified Option. As soon as is practical following the grant of an Option, an Option
Agreement shall be duly executed and delivered by or on behalf of the Company to the Optionee to
whom such Option was granted. Each Option Agreement shall be in such form and contain such
additional terms and conditions, not inconsistent with the provisions of this Plan, as the
Administrator shall, from time to time, deem desirable.
5.3 Exercise Price.
The Exercise Price per share of Common Stock covered by each Option shall
be determined by the Administrator, subject to the following: (a) the Exercise Price of an
Incentive Option shall not be less than 100% of Fair Market Value on the date the Incentive Option
is granted, (b) the Exercise Price of a Nonqualified Option shall not be less than 100% of Fair
Market Value on the date the Nonqualified Option is granted, and (c) if the person to whom an
Incentive Option is granted is a 10% Stockholder on the date of grant, the Exercise Price shall not
be less than 110% of Fair Market Value on the date the Incentive Option is granted. However, an
Option may be granted with an exercise price lower than that set forth in the preceding sentence if
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such Option is granted pursuant to an assumption or substitution for another option in a
manner satisfying the provisions of Section 424 of the Code.
5.4 Payment of Exercise Price.
Payment of the Exercise Price shall be made upon exercise of
an Option and may be made, in the discretion of the Administrator, subject to any legal
restrictions, by: (a) cash; (b) check; (c) the surrender of shares of Common Stock owned by the
Optionee (provided that shares acquired pursuant to the exercise of options granted by the Company
must have been held by the Optionee for the requisite period necessary to avoid a charge to the
Companys earnings for financial reporting purposes), which surrendered shares shall be valued at
Fair Market Value as of the date of such exercise; (d) the cancellation of indebtedness of the
Company to the Optionee; (e) the waiver of compensation due or accrued to the Optionee for services
rendered; (f) provided that a public market for the Common Stock exists, a same day sale
commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise
the Option and to sell a portion of the shares so purchased to pay for the Exercise Price and
whereby the NASD Dealer irrevocably commits upon receipt of such shares to forward the Exercise
Price directly to the Company; (g) provided that a public market for the Common Stock exists, a
margin commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to
exercise the Option and to pledge the shares so purchased to the NASD Dealer in a margin account as
security for a loan from the NASD Dealer in the amount of the Exercise Price, and whereby the NASD
Dealer irrevocably commits upon receipt of such shares to forward the Exercise Price directly to
the Company; or (h) any combination of the foregoing methods of payment or any other consideration
or method of payment as shall be permitted by applicable law.
5.5 Term and Termination of Options.
The term and provisions for termination of each Option
shall be as fixed by the Administrator, but no Option may be exercisable more than ten (10) years
after the date it is granted.
5.6 Vesting and Exercise of Options.
Each Option shall vest and become exercisable in one or
more installments, at such time or times and subject to such conditions, including without
limitation the achievement of specified performance goals or objectives established with respect to
one or more Performance Criteria, as shall be determined by the Administrator.
5.7 Annual Limit on Incentive Options.
To the extent required for incentive stock option
treatment under Section 422 of the Code, the aggregate Fair Market Value (determined as of the time
of grant) of the Common Stock with respect to which Incentive Options granted under this Plan and
any other plan of the Company or any Affiliated Company become exercisable for the first time by an
Optionee during any calendar year shall not exceed $100,000.
5.8 Nontransferability of Options.
Except as otherwise provided in this Section 5.8, Options
shall not be assignable or transferable except by will, the laws of descent and distribution or
pursuant to a DRO entered by a court in settlement of marital property rights, and during the life
of the Optionee, Options shall be exercisable only by the Optionee. At the discretion of the
Administrator and in accordance with rules it establishes from time to time, Optionees may be
permitted to transfer some or all of their Nonqualified Options to one or more family members,
which is not a prohibited transfer for value, provided that (i) the Optionee (or such Optionees
estate or representative) shall remain obligated to satisfy all income or other tax withholding
obligations associated with the exercise of such Nonqualified Option; (ii) the Optionee shall
notify the Company in writing that such transfer has occurred and disclose to the Company the name
and address of the family member or family members and their relationship to the Optionee, and
(iii)
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such transfer shall be effected pursuant to transfer documents in a form approved by the
Administrator. For purposes of the foregoing, the terms family members and prohibited transfer
for value have the meaning ascribed to them in the General Instructions to Form S-8 (or any
successor form) promulgated under the Securities Act of 1933, as amended.
5.9 Repricing Prohibited
. Subject to Section 4.2 hereof, without the prior approval of the
Companys stockholders, evidenced by a majority of votes cast, the Administrator shall not cause
the cancellation, substitution or amendment of an Option Agreement that would have the effect of
reducing the exercise price of such an Option previously granted under the Plan, or otherwise
approve any modification to such an Option that would be treated as a repricing under the then
applicable rules, regulations or listing requirements adopted by the Nasdaq Stock Market.
5.10 Rights as a Stockholder.
An Optionee or permitted transferee of an Option shall have no
rights or privileges as a stockholder with respect to any shares covered by an Option until such
Option has been duly exercised and certificates representing shares purchased upon such exercise
have been issued to such person.
5.11 Unvested Shares.
The Administrator shall have the discretion to grant Options which are
exercisable for unvested shares of Common Stock. Should the Optionee cease being an employee,
officer or director of the Company while owning such unvested shares, the Company shall have the
right to repurchase, at the exercise price paid per share, any or all of those unvested shares.
The terms upon which such repurchase right shall be exercisable (including the period and procedure
for exercise and the appropriate vesting schedule for the purchased shares) shall be established by
the Administrator and set forth in the document evidencing such repurchase right.
5.12 Option Grants to Non-Employee Directors.
(a) Automatic Grants.
Each director of the Company who is not an employee or executive
officer of the Company (a Non-Employee Director) shall automatically be granted (i) a
Nonqualified Option to purchase 50,000 shares of the Common Stock upon commencement of service as a
director of the Company, and (ii) a Nonqualified Option to purchase 40,000 shares of Common Stock
at each annual meeting of the Companys stockholders (provided such individual has served as a
Non-Employee Director for at least six (6) months prior to such meeting); provided, however, that
the Chairman of the Board shall automatically be granted a Nonqualified Option to purchase a
maximum of 50,000 shares of Common Stock at each annual meeting of the Companys stockholders, with
the exact amount determined by the Administrator. All such Non-Qualified Options shall be subject
to the terms and conditions of this Plan, including Section 5.11 above.
(b) Vesting of Options Granted to Non-Employee Directors.
Each initial Nonqualified Option
granted to a newly-elected or appointed Non-Employee Director shall vest, in a series of three (3)
successive equal annual installments over the Non-Employee Directors period of continued service
as a director, with the first such installment to vest upon the Non-Employee Directors completion
of one (1) year of service as a Non-Employee Director measured from the Nonqualified Option grant
date. Each annual Nonqualified Option granted to continuing Non-Employee Directors shall vest,
upon the Non-Employee Directors completion of one (1) year of service as a Non-Employee Director
measured from the Nonqualified Option grant date.
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ARTICLE 6.
RESTRICTED STOCK
6.1 Issuance of Restricted Stock.
The Administrator shall have the right to issue pursuant to
this Plan and at a Purchase Price determined by the Administrator, shares of Common Stock subject
to such terms, restrictions and conditions as the Administrator may determine at the time of grant.
Such conditions may include, but are not limited to, continued employment or the achievement of
specified performance goals or objectives established by the Administrator with respect to one or
more Performance Criteria, which require the Administrator to certify in writing whether and the
extent to which such performance goals were achieved before such restrictions are considered to
have lapsed.
6.2 Restricted Stock Award Agreements.
A Participant shall have no rights with respect to the
shares of Restricted Stock covered by a Restricted Stock Award Agreement until the Participant has
paid the full Purchase Price, if any, to the Company in the manner set forth in Section 6.3(b)
hereof and has executed and delivered to the Company the applicable Restricted Stock Award
Agreement. Each Restricted Stock Award Agreement shall be in such form, and shall set forth the
Purchase Price, if any, and such other terms, conditions and restrictions of the Restricted Stock
Award Agreement, not inconsistent with the provisions of this Plan, as the Administrator shall,
from time to time, deem desirable. Each such Restricted Stock Award Agreement may be different
from each other Restricted Stock Award Agreement.
6.3 Purchase Price.
(a) Amount.
Restricted Stock may be issued to Participants for such consideration as is
determined by the Administrator in its sole discretion, including no consideration or such minimum
consideration as may be required by applicable law.
(b) Payment.
Payment of the Purchase Price, if any, may be made, in the discretion of the
Administrator, subject to any legal restrictions, by: (a) cash; (b) check; (c) the surrender of
shares of Common Stock owned by the Participant (provided that shares acquired pursuant to the
exercise of options granted by the Company shall have been held by the Participant for the
requisite period necessary to avoid a charge to the Companys earnings for financial reporting
purposes), which surrendered shares shall be valued at Fair Market Value as of the date of such
acceptance; (d) the cancellation of indebtedness of the Company to the Participant; (e) the waiver
of compensation due or accrued to the Participant for services rendered; or (f) any combination of
the foregoing methods of payment or any other consideration or method of payment as shall be
permitted by applicable law. If payment for shares of Restricted Stock is made by promissory note,
any cash dividends paid with respect to the Restricted Stock may be applied, in the discretion of
the Administrator, to repayment of such note.
6.4 Vesting of Restricted Stock.
The Restricted Stock Award Agreement shall specify the date
or dates, the performance goals, if any, established by the Administrator with respect to one or
more Performance Criteria that must be achieved, and any other conditions on which the Restricted
Stock may vest.
6.5 Rights as a Stockholder.
Upon complying with the provisions of Sections 6.2 and 6.3
hereof, a Participant shall have the rights of a stockholder with respect to the Restricted Stock
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acquired pursuant to a Restricted Stock Award Agreement, including voting and dividend rights,
subject to the terms, restrictions and conditions as are set forth in such Restricted Stock Award
Agreement. Unless the Administrator shall determine otherwise, certificates evidencing shares of
Restricted Stock shall remain in the possession of the Company until such shares have vested in
accordance with the terms of the Restricted Stock Award Agreement.
6.6 Restrictions.
Shares of Restricted Stock may not be sold, pledged or otherwise encumbered
or disposed of and shall not be assignable or transferable except by will, the laws of descent and
distribution or pursuant to a DRO entered by a court in settlement of marital property rights,
except as specifically provided in the Restricted Stock Award Agreement or as authorized by the
Administrator. In the event of termination of a Participants employment, service as a director of
the Company or Service Provider status for any reason whatsoever (including death or disability),
the Restricted Stock Award Agreement may provide, in the discretion of the Administrator, that the
Company may, at the discretion of the Administrator, exercise a Repurchase Right to repurchase at
the original Purchase Price the shares of Restricted Stock that have not vested as of the date of
termination.
ARTICLE 7.
RESTRICTED STOCK UNITS
7.1 Grants of Restricted Stock Units and Dividend Equivalents
. The Administrator shall have
the right to grant, pursuant to this Plan, Restricted Stock Units and Dividend Equivalents, subject
to such terms, restrictions and conditions as the Administrator may determine at the time of grant.
Such conditions may include, but are not limited to, continued employment or the achievement of
specified performance goals or objectives established by the Administrator with respect to one or
more Performance Criteria, which require the Administrator to certify in writing whether and the
extent to which such performance goals were achieved before such restrictions are considered to
have lapsed.
7.2 Restricted Stock Unit Agreements.
A Participant shall have no rights with respect to the
Restricted Stock Units or Dividend Equivalents covered by a Restricted Stock Award Agreement until
the Participant has executed and delivered to the Company the applicable Restricted Stock Award
Agreement. Each Restricted Stock Award Agreement shall be in such form, and shall set forth the
Purchase Price, if any, and such other terms, conditions and restrictions of the Restricted Stock
Award Agreement, not inconsistent with the provisions of this Plan, as the Administrator shall,
from time to time, deem desirable. Each such Restricted Stock Award Agreement may be different
from each other Restricted Stock Award Agreement.
7.3 Purchase Price
.
(a) Amount.
Restricted Stock Units may be issued to Participants for such consideration as is
determined by the Administrator in its sole discretion, including no consideration or such minimum
consideration as may be required by applicable law.
(b) Payment.
Payment of the Purchase Price, if any, may be made, in the discretion of the
Administrator, subject to any legal restrictions, by: (a) cash; (b) check; (c) the surrender of
shares of Common Stock owned by the Participant (provided that shares acquired pursuant to the
exercise of options granted by the Company shall have been held by the Participant
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for the requisite period necessary to avoid a charge to the Companys earnings for financial
reporting purposes), which surrendered shares shall be valued at Fair Market Value as of the date
of such acceptance; (d) the cancellation of indebtedness of the Company to the Participant; (e) the
waiver of compensation due or accrued to the Participant for services rendered; or (f) any
combination of the foregoing methods of payment or any other consideration or method of payment as
shall be permitted by applicable law.
7.4 Vesting of Restricted Stock Units and Dividend Equivalents
. The Restricted Stock Award
Agreement shall specify the date or dates, the performance goals, if any, established by the
Administrator with respect to one or more Performance Criteria that must be achieved, and any other
conditions on which the Restricted Stock Units and Dividend Equivalents may vest.
7.5 Rights as a Stockholder
. Holders of Restricted Stock Units shall not be entitled to vote
or to receive dividends unless or until they become owners of the shares of Common Stock pursuant
to their Restricted Stock Award Agreement and the terms and conditions of the Plan.
7.6 Restrictions
. Restricted Stock Units and Dividend Equivalents may not be sold, pledged or
otherwise encumbered or disposed of and shall not be assignable or transferable except by will, the
laws of descent and distribution or pursuant to a DRO entered by a court in settlement of marital
property rights, except as specifically provided in the Restricted Stock Award Agreement or as
authorized by the Administrator. In the event of termination of a Participants employment,
service as a director of the Company or Service Provider status for any reason whatsoever
(including death or disability), the Restricted Stock Award Agreement may provide that all
Restricted Stock Units and Dividend Equivalents that have not vested as of such date shall be
automatically forfeited by the Participant. However, if, with respect to such unvested Restricted
Stock Units the Participant paid a Purchase Price, the Administrator shall have the right,
exercisable at the discretion of the Administrator, to exercise a Repurchase Right to cancel such
unvested Restricted Stock Units upon payment to the Participant of the original Purchase Price.
The Participant shall forfeit such unvested Restricted Stock Units upon the Administrators
exercise of such right.
ARTICLE 8.
STOCK APPRECIATION RIGHTS
8.1 Grant of Stock Appreciation Rights
. A Stock Appreciation Right may be granted to any
Participant selected by the Administrator. Stock Appreciation Rights may be granted on a basis
that allows for the exercise of the right by the Participant or that provides for the automatic
payment of the right upon a specified date or event. Stock Appreciation Rights shall be
exercisable or payable at such time or times and upon conditions as may be approved by the
Administrator, provided that the Administrator may accelerate the exercisability or payment of a
Stock Appreciation Right at any time.
8.2 Vesting of Stock Appreciation Rights
. Each Stock Appreciation Right shall vest and become
exercisable in one or more installments at such time or times and subject to such conditions,
including without limitation the achievement of specified performance goals or objectives
established with respect to one or more Performance Criteria, as shall be determined by the
Administrator. A Stock Appreciation Right will be exercisable or payable at such time or times as
determined by the Administrator, provided that the maximum term of a Stock Appreciation Right
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shall be ten (10) years from the date of grant. The base price of a Stock Appreciation Right
shall be determined by the Administrator in its sole discretion; provided, however, that the base
price per share of any Stock Appreciation Right shall not be less than one hundred percent (100%)
of the Fair Market Value of the shares of Common Stock on the date of grant.
8.3 Payment of Stock Appreciation Rights
. A Stock Appreciation Right will entitle the holder,
upon exercise or other payment of the Stock Appreciation Right, as applicable, to receive an amount
determined by multiplying: (i) the excess of the Fair Market Value of a share of Common Stock on
the date of exercise or payment of the Stock Appreciation Right over the base price of such Stock
Appreciation Right, by (ii) the number of shares as to which such Stock Appreciation Right is
exercised or paid. Payment of the amount determined under the foregoing shall be made either in
cash or in shares of Common Stock, as determined by the Administrator in its discretion. If
payment is made in shares of Common Stock, such shares shall be valued at their Fair Market Value
on the date of exercise or payment, subject to applicable tax withholding requirements and to such
conditions, as are set forth in this Plan and the applicable Stock Appreciation Rights Award
Agreement.
8.4 Nontransferability of Stock Appreciation Rights.
Except as otherwise provided in this
Section 8.4, Stock Appreciation Rights shall not be assignable or transferable except by will, the
laws of descent and distribution or pursuant to a DRO entered by a court in settlement of marital
property rights, and during the life of the Stock Appreciation Rights Holder, Stock Appreciation
Rights shall be exercisable only by the Stock Appreciation Rights Holder. At the discretion of the
Administrator and in accordance with rules it establishes from time to time, Stock Appreciation
Rights Holders may be permitted to transfer some or all of their Stock Appreciation Rights to one
or more family members, which is not a prohibited transfer for value, provided that (i) the
Stock Appreciation Rights Holder (or such holders estate or representative) shall remain obligated
to satisfy all income or other tax withholding obligations associated with the exercise of such
Stock Appreciation Right; (ii) the Stock Appreciation Rights Holder shall notify the Company in
writing that such transfer has occurred and disclose to the Company the name and address of the
family member or family members and their relationship to the holder, and (iii) such transfer
shall be effected pursuant to transfer documents in a form approved by the Administrator. For
purposes of the foregoing, the terms family members and prohibited transfer for value have the
meaning ascribed to them in the General Instructions to Form S-8 (or any successor form)
promulgated under the Securities Act of 1933, as amended.
ARTICLE 9.
STOCK PAYMENT AWARDS
9.1 Grant of Stock Payment Awards
. A Stock Payment award may be granted to any Participant
selected by the Administrator. A Stock Payment award may be granted for past services, in lieu of
bonus or other cash compensation, as directors compensation or for any other valid purpose as
determined by the Administrator. A Stock Payment award granted to a Participant represents shares
of Common Stock that are issued without restrictions on transfer and other incidents of ownership
and free of forfeiture conditions, except as otherwise provided in the Plan and the Award
Agreement. The Administrator may, in connection with any Stock Payment award, provide that no
payment is required, or require the payment by the Participant of a specified purchase price.
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9.2 Rights as Stockholder
. Subject to the foregoing provisions of this Article 9 and the
applicable Award Agreement, upon the issuance of the Common Stock under a Stock Payment award the
Participant shall have all rights of a stockholder with respect to the shares of Common Stock,
including the right to vote the shares and receive all dividends and other distributions paid or
made with respect thereto.
ARTICLE 10.
ADMINISTRATION OF THE PLAN
10.1 Administrator.
Authority to control and manage the operation and administration of the
Plan shall be vested in the Board, which may delegate such responsibilities in whole or in part to
a Committee. Members of the Committee may be appointed from time to time by, and shall serve at
the pleasure of, the Board. The Board may limit the composition of the Committee to those persons
necessary to comply with the requirements of Section 162(m) of the Code and Section 16 of the
Exchange Act.
10.2 Powers of the Administrator.
In addition to any other powers or authority conferred upon
the Administrator elsewhere in the Plan or by law, the Administrator shall have full power and
authority: (a) to determine the persons to whom, and the time or times at which, Awards shall be
granted, the number of shares to be represented by each Award, and the consideration to be received
by the Company upon the exercise and/or vesting of such Awards; (b) to interpret the Plan; (c) to
create, amend or rescind rules and regulations relating to the Plan; (d) to determine the terms,
conditions and restrictions contained in, and the form of, Award Agreements; (e) to determine the
identity or capacity of any persons who may be entitled to exercise a Participants rights under
any Award Agreement under the Plan; (f) to correct any defect or supply any omission or reconcile
any inconsistency in the Plan or in any Award Agreement; (g) to accelerate the vesting of any Award
or release or waive any repurchase rights of the Company with respect to Restricted Stock
Awards; (h) to extend the expiration date of any Option; (i) to amend outstanding Award Agreements
to provide for, among other things, any change or modification which the Administrator could have
included in the original Agreement or in furtherance of the powers provided for herein; and (j) to
make all other determinations necessary or advisable for the administration of the Plan, but only
to the extent not contrary to the express provisions of the Plan. Any action, decision,
interpretation or determination made in good faith by the Administrator in the exercise of its
authority conferred upon it under the Plan shall be final and binding on the Company and all
Participants. To the extent permitted by applicable law, the Administrator may from time to time
delegate to one or more members of the Board or one or more officers of the Company the authority
to grant or amend Awards to Participants other than (a) senior executives of the Company who are
subject to Section 16 of the Exchange Act, (b) Covered Employees, or (c) officers of the Company
(or members of the Board) to whom authority to grant or amend Awards has been delegated hereunder.
Any delegation hereunder shall be subject to the restrictions and limits that the Administrator
specifies at the time of such delegation, and the Administrator may at any time rescind the
authority so delegated or appoint a new delegatee.
10.3 Limitation on Liability.
No employee of the Company or member of the Board or
Administrator shall be subject to any liability with respect to duties under the Plan unless the
person acts fraudulently or in bad faith. To the extent permitted by law, the Company shall
indemnify each member of the Board or Administrator, and any employee of the Company with duties
under the Plan, who was or is a party, or is threatened to be made a party, to any threatened,
pending or
14
completed proceeding, whether civil, criminal, administrative or investigative, by reason of
such persons conduct in the performance of duties under the Plan.
ARTICLE 11.
CHANGE IN CONTROL
11.1 Impact of Change in Control on Awards Under Plan.
In order to preserve a Participants
rights in the event of a Change in Control of the Company:
(a)
The Administrator shall have the discretion to provide in each Award Agreement the terms
and conditions that relate to (i) vesting of such Award in the event of a Change in Control, and
(ii) assumption of such Awards or issuance of comparable securities under an incentive program in
the event of a Change in Control. The aforementioned terms and conditions may vary in each Award
Agreement.
(b)
If the terms of an outstanding Option provide for accelerated vesting in the event of a
Change in Control, or to the extent that a Option is vested and not yet exercised, the
Administrator in its discretion may provide, in connection with the Change in Control transaction,
for the purchase or exchange of each Option for an amount of cash or other property having a value
equal to the difference (or spread) between: (x) the value of the cash or other property that the
Participant would have received pursuant to the Change in Control transaction in exchange for the
shares issuable upon exercise of the Option had the Option been exercised immediately prior to the
Change in Control, and (y) the Exercise Price of the Option.
(c)
If the terms of an outstanding Stock Appreciation Right provide for accelerated vesting in
the event of a Change in Control, or to the extent that a Stock Appreciation Right is vested and
not yet exercised, the Administrator in its discretion may provide, in connection with the Change
in Control transaction, for the purchase or exchange of each Stock Appreciation Right for an amount
of cash or other property having a value equal to the value of the cash or other property that the
Participant would have received pursuant to the Change in Control transaction in exchange for the
shares issuable upon exercise of the Stock Appreciation Right had the Stock Appreciation Right been
exercised immediately prior to the Change in Control.
(d)
Outstanding Options and Stock Appreciation Rights shall terminate and cease to be
exercisable upon consummation of a Change in Control except to the extent that the Options or Stock
Appreciation Rights are assumed by the successor entity (or parent thereof) pursuant to the terms
of the Change in Control transaction.
(e)
The Administrator shall cause written notice of a proposed Change in Control transaction
to be given to Participants not less than fifteen (15) days prior to the anticipated effective date
of the proposed transaction.
ARTICLE 12.
AMENDMENT AND TERMINATION OF THE PLAN
12.1 Amendments.
The Board may from time to time alter, amend, suspend or terminate the Plan
in such respects as the Board may deem advisable. No such alteration, amendment,
15
suspension or termination shall be made which shall substantially affect or impair the rights
of any Participant under an outstanding Award Agreement without such Participants consent. The
Board may alter or amend the Plan to comply with requirements under the Code relating to Incentive
Options or other types of options which give Optionees more favorable tax treatment than that
applicable to Options granted under this Plan as of the date of its adoption. Upon any such
alteration or amendment, any outstanding Option granted hereunder may, if the Administrator so
determines and if permitted by applicable law, be subject to the more favorable tax treatment
afforded to an Optionee pursuant to such terms and conditions.
12.2 Plan Termination.
Unless the Plan shall theretofore have been terminated, the Plan shall
terminate on the tenth (10th) anniversary of the Effective Date and no Awards may be granted under
the Plan thereafter, but Awards and Award Agreements then outstanding shall continue in effect in
accordance with their respective terms.
ARTICLE 13.
TAX WITHHOLDING
13.1 Tax Withholding.
The Participant shall be responsible for payment of any taxes or
similar charges required by law to be withheld from an Award or an amount paid in satisfaction of
an Award, which shall be paid by the Participant on or prior to the payment or other event that
results in taxable income in respect of an Award. The Award Agreement may specify the manner in
which the withholding obligation shall be satisfied with respect to the particular type of Award.
ARTICLE 14.
MISCELLANEOUS
14.1 Benefits Not Alienable.
Other than as provided above, benefits under the Plan may not be
assigned or alienated, whether voluntarily or involuntarily. Any unauthorized attempt at
assignment, transfer, pledge or other disposition shall be without effect.
14.2 Awards subject to Code Section 409A.
Any Award that constitutes, or provides for, a
deferral of compensation subject to Section 409A of the Code (a Section 409A Award) shall satisfy
the requirements of Section 409A of the Code, to the extent applicable as determined by the
Administrator. The Award Agreement with respect to a Section 409A Award shall incorporate the
terms and conditions required by Section 409A of the Code. If any deferral of compensation is to
be permitted in connection with a 409A Award, the Administrator shall establish rules and
procedures relating to such deferral in a manner intended to comply with the requirements of
Section 409A of the Code, including, without limitation, the time when an election to defer may be
made, the time period of the deferral and the events that would result in payment of the deferred
amount, the interest or other earnings attributable to the deferral and the method of funding, if
any, attributable to the deferred amount.
14.3 No Enlargement of Employee Rights.
This Plan is strictly a voluntary undertaking on the
part of the Company and shall not be deemed to constitute a contract between the Company and any
Participant to be consideration for, or an inducement to, or a condition of, the employment of any
Participant. Nothing contained in the Plan shall be deemed to give the right to any Participant to
16
be retained as an employee of the Company or any Affiliated Company or to interfere with the
right of the Company or any Affiliated Company to discharge any Participant at any time.
14.4 Application of Funds.
The proceeds received by the Company from the sale of Common Stock
pursuant to Option Agreements and Restricted Stock Award Agreements, except as otherwise provided
herein, will be used for general corporate purposes.
14.5 Unfunded Plan.
The adoption of the Plan and any reservation of shares of Common Stock or
cash amounts by the Company to discharge its obligations hereunder shall not be deemed to create a
trust or other funded arrangement. Except upon the issuance of Common Stock pursuant to an Award,
any rights of a Participant under the Plan shall be those of a general unsecured creditor of the
Company, and neither a Participant nor the Participants permitted transferees or estate shall have
any other interest in any assets of the Company by virtue of the Plan.
14.6 Annual Reports.
During the term of this Plan, the Company will furnish to each
Participant who does not otherwise receive such materials, copies of all reports, proxy statements
and other communications that the Company distributes generally to its stockholders.
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Exhibit 99.2
ENDOLOGIX, INC.
2006 EMPLOYEE STOCK PURCHASE PLAN
(AS AMENDED, BY RESOLUTION ADOPTED BY THE BOARD OF DIRECTORS ON APRIL
9, 2008 AND BY STOCKHOLDER APPROVAL ON MAY 22, 2008)
I. PURPOSE OF THE PLAN
This 2006 Employee Stock Purchase Plan is intended to promote the interests of Endologix, Inc.
by providing eligible employees with the opportunity to acquire a proprietary interest in the
Corporation through participation in a payroll-deduction based employee stock purchase plan
designed to qualify under Section 423 of the Code.
Capitalized terms herein shall have the meanings assigned to such terms in the attached
Appendix.
II. ADMINISTRATION OF THE PLAN
The Plan Administrator shall have full authority to interpret and construe any provision of
the Plan and to adopt such rules and regulations for administering the Plan as it may deem
necessary in order to comply with the requirements of Code Section 423. Decisions of the Plan
Administrator shall be final and binding on all parties having an interest in the Plan.
III. STOCK SUBJECT TO PLAN
A.
The stock purchasable under the Plan shall be shares of authorized but unissued or
reacquired Common Stock, including shares of Common Stock purchased on the open market. The
maximum number of shares of Common Stock which may be issued over the term of the Plan shall not
exceed 558,734.
B.
Should any change be made to the Common Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporations receipt of consideration, appropriate
adjustments shall be made to (i) the maximum number and class of securities issuable under the
Plan, and (ii) the number and class of securities and the price per share in effect under each
outstanding purchase right in order to prevent the dilution or enlargement of benefits thereunder.
IV. OFFERING PERIODS
A.
Shares of Common Stock shall be offered for purchase under the Plan through a series of
successive Offering Periods until such time as (i) the maximum number of shares of Common Stock
available for issuance under the Plan shall have been purchased or (ii) the Plan shall have been
sooner terminated.
B.
The Initial Offering Period shall commence on the first business day in August 2006 and
terminate on the last business day in December 2006. Each Offering Period thereafter shall be a
six-month period from January 1 through June 30 and from July 1 through December 31.
1
C.
The Purchase Date shall be the last day of each Offering Period. The initial Purchase Date
shall be the last business day in December 2006.
V. ELIGIBILITY
Commencing August 1, 2006:
A.
Each individual who is an Eligible Employee on the start date of any Offering Period under
the Plan may enter that Offering Period on such start date, provided he or she remains an Eligible
Employee.
B.
Each individual who first becomes an Eligible Employee after the start date of an Offering
Period may enter on the start date of the Offering Period that commences immediately after the date
such individual first became an Eligible Employee, provided he or she remains an Eligible Employee.
C.
To participate in the Plan for a particular Offering Period, the Eligible Employee must
complete the enrollment forms prescribed by the Plan Administrator (including a stock purchase
agreement and a payroll deduction authorization) and file such forms with the Plan Administrator
(or its designate) on or before the start date of such Offering Period.
VI. PAYROLL DEDUCTIONS
A.
The payroll deduction authorized by the Participant for purposes of acquiring shares of
Common Stock during an Offering Period may be any multiple of one percent (1%) of the Compensation
paid to the Participant during each Offering Period within that Offering Period, up to a maximum of
ten percent (10%). The deduction rate so authorized shall continue in effect throughout the
Offering Period, except to the extent such rate is changed in accordance with the following
guidelines:
1.
The Participant may, at any time during the Offering Period, reduce his or her rate of
payroll deduction to become effective as soon as possible after filing the appropriate form with
the Plan Administrator. The Participant may not, however, effect more than one (1) such reduction
per Offering Period.
2.
The Participant may, at any time during any Offering Period, increase the rate of his or
her payroll deduction by filing the appropriate form with the Plan Administrator. The new rate
(which may not exceed the ten percent (10%) maximum) shall become effective on the start date of
the first Offering Period following the filing of such form.
B.
Payroll deductions shall begin on the first pay day following the start date of the
Offering Period with respect to which an Eligible Employee elects to participate and shall (unless
sooner terminated by the Participant) continue through the pay day ending with or immediately prior
to the last day of that Offering Period. The amounts so collected shall be credited to the
Participants book account under the Plan, but no interest shall be paid on the balance from time
to time outstanding in such account. The amounts collected from the Participant shall not be held
in any segregated account or trust fund and may be commingled with the general assets of the
Corporation and used for general corporate purposes.
2
C.
Payroll deductions shall automatically cease upon the termination of the Participants
purchase right in accordance with the provisions of the Plan.
D.
The Participants acquisition of Common Stock under the Plan on any Purchase Date shall
neither limit nor require the Participants acquisition of Common Stock on any subsequent Purchase
Date, whether within the same or a different Offering Period.
VII. PURCHASE RIGHTS
A. Grant of Purchase Right; Grant Date.
A Participant shall be granted a separate purchase
right for each Offering Period in which he or she participates. The purchase right shall be
granted on the Grant Date and shall provide the Participant with the right to purchase shares of
Common Stock, in a series of successive installments over the remainder of such Offering Period,
upon the terms set forth below. The Participant shall execute a stock purchase agreement embodying
such terms and such other provisions (not inconsistent with the Plan) as the Plan Administrator may
deem advisable.
Under no circumstances shall purchase rights be granted under the Plan to any Eligible
Employee if such individual would, immediately after the grant, own (within the meaning of Code
Section 424(d)) or hold outstanding options or other rights to purchase, stock possessing five
percent (5%) or more of the total combined voting power or value of all classes of stock of the
Corporation or any Corporate Affiliate.
B. Exercise of the Purchase Right
. Each purchase right shall be automatically exercised on
each Purchase Date, and shares of Common Stock shall accordingly be purchased on behalf of each
Participant (other than Participants whose payroll deductions have previously been refunded
pursuant to the Termination of Purchase Right provisions below) on each such Purchase Date. The
purchase shall be effected by applying the Participants payroll deductions for the Offering Period
ending on such Purchase Date to the purchase of whole shares of Common Stock at the purchase price
in effect for the Participant for that Purchase Date.
C. Purchase Price
. The purchase price per share at which Common Stock will be purchased on
the Participants behalf on each Purchase Date shall not be less than eighty-five percent (85%) of
the lower of (i) the Fair Market Value per share of Common Stock on the Grant Date with respect to
that Offering Period or (ii) the Fair Market Value per share of Common Stock on that Purchase Date.
D. Number of Purchasable Shares
. The number of shares of Common Stock purchasable by a
Participant on each Purchase Date shall be the number of whole shares obtained by dividing the
amount collected from the Participant through payroll deductions during the Offering Period ending
with that Purchase Date by the purchase price in effect for the Participant for that Purchase Date.
E. Excess Payroll Deductions
. Any payroll deductions not applied to the purchase of shares of
Common Stock on any Purchase Date because they are not sufficient to purchase a whole share of
Common Stock shall be held for the purchase of Common Stock on the next Purchase Date. However,
any payroll deductions not applied to the purchase of Common Stock by reason of the limitation on
the maximum number of shares purchasable by the Participant on the Purchase Date shall be promptly
refunded.
3
F. Termination of Purchase Right
. The following provisions shall govern the termination of
outstanding purchase rights:
1.
A Participant may, at any time prior to the next scheduled Purchase Date, terminate his or
her outstanding purchase right by filing the appropriate form with the Plan Administrator (or its
designate), and no further payroll deductions shall be collected from the Participant with respect
to the terminated purchase right. Any payroll deductions collected during the Offering Period in
which such termination occurs shall, at the Participants election, be immediately refunded or held
for the purchase of shares on the next Purchase Date. If no such election is made at the time such
purchase right is terminated, then the payroll deductions collected with respect to the terminated
right shall be refunded as soon as possible.
2.
The termination of such purchase right shall be irrevocable, and the Participant may not
subsequently rejoin the Offering Period for which the terminated purchase right was granted. In
order to resume participation in any subsequent Offering Period, such individual must re-enroll in
the Plan (by making a timely filing of the prescribed enrollment forms) on or before the start date
of such Offering Period.
3.
Should the Participant cease to remain an Eligible Employee for any reason (including
death, disability or change in status) while his or her purchase right remains outstanding, then
that purchase right shall immediately terminate, and all of the Participants payroll deductions
for the Offering Period in which the purchase right so terminates shall be immediately refunded.
However, should the Participant cease to remain in active service by reason of an approved unpaid
leave of absence, then the Participant shall have the right, exercisable up until the last business
day of the Offering Period in which such leave commences, to (a) withdraw all the payroll
deductions collected to date on his or her behalf for that Offering Period or (b) have such funds
held for the purchase of shares on his or her behalf on the next scheduled Purchase Date. In no
event, however, shall any further payroll deductions be collected on the Participants behalf
during such leave. Upon the Participants return to active service, his or her payroll deductions
under the Plan shall automatically resume at the rate in effect at the time the leave began, unless
the Participant withdraws from the Plan prior to his or her return.
G. Corporate Transaction
. Each outstanding purchase right shall automatically be exercised,
immediately prior to the effective date of any Corporate Transaction, by applying the payroll
deductions of each Participant for the Offering Period in which such Corporate Transaction occurs
to the purchase of whole shares of Common Stock at a purchase price per share not less than
eighty-five percent (85%) of the lower of (i) the Fair Market Value per share of Common Stock on
the Grant Date of the Offering Period in which such Corporate Transaction occurs or (ii) the Fair
Market Value per share of Common Stock immediately prior to the effective date of such Corporate
Transaction.
The Corporation shall use its best efforts to provide at least ten (10) days prior written
notice of the occurrence of any Corporate Transaction, and Participants shall, following the
receipt of such notice, have the right to terminate their outstanding purchase rights prior to the
effective date of the Corporate Transaction.
H. Proration of Purchase Rights
. Should the total number of shares of Common Stock to be
purchased pursuant to outstanding purchase rights on any particular date exceed the number of
shares then available for issuance under the Plan, the Plan Administrator shall make a pro-rata
4
allocation of the available shares on a uniform and nondiscriminatory basis, and the payroll
deductions of each Participant, to the extent in excess of the aggregate purchase price payable for
the Common Stock pro-rated to such individual, shall be refunded.
I. Assignability
. The purchase right shall be exercisable only by the Participant and shall
not be assignable or transferable by the Participant.
J. Stockholder Rights
. A Participant shall have no stockholder rights with respect to the
shares subject to his or her outstanding purchase right until the shares are purchased on the
Participants behalf in accordance with the provisions of the Plan and the Participant has become a
holder of record of the purchased shares.
VIII. ACCRUAL LIMITATIONS
A.
No Participant shall be entitled to accrue rights to acquire Common Stock pursuant to any
purchase right outstanding under this Plan if and to the extent such accrual, when aggregated with
(i) rights to purchase Common Stock accrued under any other purchase right granted under this Plan
and (ii) similar rights accrued under other employee stock purchase plans (within the meaning of
Code Section 423) of the Corporation or any Corporate Affiliate, would otherwise permit such
Participant to purchase more than Twenty-Five Thousand Dollars ($25,000) worth of stock of the
Corporation or any Corporate Affiliate (determined on the basis of the Fair Market Value per share
on the Grant Date) for each calendar year such rights are at any time outstanding.
B.
For purposes of applying such accrual limitations to the purchase rights granted under the
Plan, the following provisions shall be in effect:
1.
The right to acquire Common Stock under each outstanding purchase right shall accrue in a
series of installments on each successive Purchase Date during the Offering Period on which such
right remains outstanding.
2.
No right to acquire Common Stock under any outstanding purchase right shall accrue to the
extent the Participant has already accrued in the same calendar year the right to acquire Common
Stock under one (1) or more other purchase rights at a rate equal to Twenty-Five Thousand Dollars
($25,000) worth of Common Stock (determined on the basis of the Fair Market Value per share on the
Grant Date) for each calendar year such rights were at any time outstanding.
C.
If by reason of such accrual limitations, any purchase right of a Participant does not
accrue for a particular Offering Period, then the payroll deductions which the Participant made
during that Offering Period with respect to such purchase right shall be promptly refunded.
D.
In the event there is any conflict between the provisions of this Article and one or more
provisions of the Plan or any instrument issued thereunder, the provisions of this Article shall be
controlling.
IX. EFFECTIVE DATE AND TERM OF THE PLAN
A.
The Plan was adopted by the Board on March 31, 2006, provided no purchase rights granted
under the Plan shall be exercised, and no shares of Common Stock shall be issued hereunder, until
(i) the Plan shall have been approved by the stockholders of the Corporation and (ii) the
Corporation shall have complied with all applicable requirements of the 1933 Act (including the
5
registration of the shares of Common Stock issuable under the Plan on a Form S-8 registration
statement filed with the Securities and Exchange Commission), all applicable listing requirements
of any stock exchange (or the Nasdaq National Market, if applicable) on which the Common Stock is
listed for trading and all other applicable requirements established by law or regulation. In the
event such stockholder approval is not obtained, or such compliance is not effected, within twelve
(12) months after the date on which the Plan is adopted by the Board, the Plan shall terminate and
have no further force or effect, and all sums collected from Participants during the initial
Offering Period hereunder shall be refunded.
B.
Unless sooner terminated by the Board, the Plan shall terminate upon the earliest of
(i) the last business day in June 2016, (ii) the date on which all shares available for issuance
under the Plan shall have been sold pursuant to purchase rights exercised under the Plan or
(iii) the date on which all purchase rights are exercised in connection with a Corporate
Transaction. No further purchase rights shall be granted or exercised, and no further payroll
deductions shall be collected, under the PIan following such termination.
X. AMENDMENT OF THE PLAN
The Board may alter, amend, suspend or discontinue the Plan at any time to become effective
immediately following the close of any Offering Period. However, the Board may not, without the
approval of the Corporations stockholders, (i) materially increase the number of shares of Common
Stock issuable under the Plan or the maximum number of shares purchasable per Participant on any
one Purchase Date, except for permissible adjustments in the event of certain changes in the
Corporations capitalization, (ii) alter the purchase price formula so as to reduce the purchase
price payable for the shares of Common Stock purchasable under the Plan or (iii) materially
increase the benefits accruing to Participants under the Plan or materially modify the requirements
for eligibility to participate in the Plan.
XI. GENERAL PROVISIONS
A.
All costs and expenses incurred in the administration of the Plan shall be paid by the
Corporation.
B.
Nothing in the Plan shall confer upon the Participant any right to continue in the employ
of the Corporation or any Corporate Affiliate for any period of specific duration or interfere with
or otherwise restrict in any way the rights of the Corporation (or any Corporate Affiliate
employing such person) or of the Participant, which rights are hereby expressly reserved by each,
to terminate such persons employment at any time for any reason, with or without cause.
C.
The provisions of the Plan shall be governed by the laws of the State of California without
resort to that states conflict-of-laws rules.
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APPENDIX
The following definitions shall be in effect under the Plan:
A. Board
shall mean the Corporations Board of Directors.
B. Code
shall mean the Internal Revenue Code of 1986, as amended.
C. Common Stock
shall mean the Corporations common stock.
D. Compensation
shall mean the total amount required to be reported on a Form W-2, including
any elective deferrals or other payroll deductions with respect to a plan of the Company qualified
under either Section 125 or Section 401(a) of the Code, issued to an employee by the Company.
E. Corporate Affiliate
shall mean any parent or subsidiary corporation of the Corporation (as
determined in accordance with Code Section 424), whether now existing or subsequently established.
F. Corporate Transaction
shall mean either of the following stockholder-approved transactions
to which the Corporation is a party:
1.
a merger or consolidation in which securities possessing more than fifty percent (50%) of
the total combined voting power of the Corporations outstanding securities are transferred to a
person or persons different from the persons holding those securities immediately prior to such
transaction, or
2.
the sale, transfer or other disposition of all or substantially all of the assets of the
Corporation in complete liquidation or dissolution of the Corporation.
G. Corporation
shall mean Endologix, Inc., a Delaware corporation.
H. Eligible Employee
shall mean any person who is employed by the Corporation on a basis under
which he or she is regularly expected to render more than twenty (20) hours of service per week for
more than five (5) months per calendar year for earnings considered wages under Code Section
3401(a).
I. Fair Market Value
per share of Common Stock on any relevant date shall be determined in
accordance with the following provisions:
1.
If the Common Stock is then listed or admitted to trading on the Nasdaq National Market
System or a Stock Exchange which reports closing sale prices, the Fair Market Value shall be the
closing sale price on the date of valuation on the Nasdaq National Market System or principal Stock
Exchange on which the Common Stock is then listed or admitted to trading, or, if no closing sale
price is quoted or no sale takes place on such day, then the Fair Market Value shall be the closing
sale price of the Common Stock on the Nasdaq National Market System or such Stock Exchange on the
next preceding day on which a sale occurred.
2.
If the Common Stock is not then listed or admitted to trading on the Nasdaq National Market
System or a Stock Exchange which reports closing sale prices, the Fair Market
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Value shall be the average of the closing bid and asked prices of the Common Stock in the
over-the-counter market on the date of valuation.
3.
If neither (a) nor (b) is applicable as of the date of valuation, then the Fair Market
Value shall be determined by the Administrator in good faith using any reasonable method of
valuation, which determination shall be conclusive and binding on all interested parties
J. Grant Date
shall mean the start date of each Offering Period. The initial Grant Date shall
be the first business day in August 2006.
K. Initial Offering Period
shall mean the five-month period from August 1, 2006 through
December 31, 2006.
L. 1933 Act
shall mean the Securities Act of 1933, as amended.
M. Offering Period
shall mean a six-month period from January 1 through June 30 and from July
1 through December 31.
N. Participant
shall mean any Eligible Employee of the Corporation who is actively
participating in the Plan.
O. Plan
shall mean the Corporations 2006 Employee Stock Purchase Plan, as set forth in this
document.
P. Plan Administrator
shall mean the Board of Directors or a committee of two (2) or more
Board members appointed by the Board to administer the Plan.
Q. Purchase Date
shall mean the last business day of each Offering Period. The initial
Purchase Date shall be the last business day in December 2006.
R. Stock Exchange
shall mean either the American Stock Exchange or the New York Stock
Exchange.
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