As filed with the Securities and Exchange Commission on February 24, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE MEDICINES COMPANY
(Exact name of Registrant as specified in its charter)
|
|
|
Delaware
|
|
04-3324394
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
8 Sylvan Way
Parsippany, New Jersey 07054
(Address of Principal Executive Offices including Zip Code)
2009 EQUITY INDUCEMENT PLAN
(Full title of the Plan)
Paul M. Antinori
Senior Vice President and General Counsel
The Medicines Company
8 Sylvan Way
Parsippany, New Jersey 07054
(973) 290-6000
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer
þ
|
Accelerated filer
o
|
Non-accelerated filer
o
(Do not check if a smaller reporting company)
|
Smaller reporting company
o
|
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of
|
|
|
Proposed Maximum
|
|
|
Proposed Maximum
|
|
|
|
|
|
Title of Securities to be
|
|
|
Shares to be
|
|
|
Offering Price Per
|
|
|
Aggregate Offering
|
|
|
Amount of
|
|
|
Registered
|
|
|
Registered (1)
|
|
|
Share (2)
|
|
|
Price (2)
|
|
|
Registration Fee
|
|
|
Common Stock, $0.001 par
value per share
|
|
|
|
1,500,000
|
|
|
|
$
|
12.89
|
|
|
|
$
|
19,335,000
|
|
|
|
$
|
759.87
|
|
|
|
|
|
|
(1)
|
|
In accordance with Rule 416 under the Securities Act of 1933, as amended, or the Securities
Act, this registration statement shall be deemed to cover any additional shares of common stock
that may from time to time be offered or issued to prevent dilution resulting from any stock
dividend, stock split, or similar transactions.
|
|
(2)
|
|
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c)
and Rule 457(h) of the Securities Act for the 1,500,000 shares registered hereunder (based on the
average of the high ($13.24) and low ($12.54) prices for our common stock reported by the Nasdaq
Global Select Market on February 20, 2009).
|
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.
Plan Information
.
The information required by Item 1 is included in documents sent or given to participants in
The Medicines Companys 2009 Equity Inducement Plan, or the 2009 Plan, pursuant to Rule 428(b)(1)
of the Securities Act.
Item 2
.
Registrant Information and Employee Plan Annual Information.
The written statement required by Item 2 is included in documents sent or given to
participants in the 2009 Plan, pursuant to Rule 428(b)(1) of the Securities Act.
1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference
.
The following documents filed by the registrant with the Securities and Exchange Commission,
or the SEC, pursuant to the Securities Exchange Act of 1934, as amended, or the Exchange Act, are
incorporated by reference herein and in the Prospectus constituting a part of this Registration
Statement:
|
(a)
|
|
the registrants annual report on Form 10-K for the fiscal year ended
December 31, 2007;
|
|
|
(b)
|
|
the registrants proxy statement for the registrants 2008 annual
meeting of stockholders filed with the Securities and Exchange Commission, or the
SEC, on April 29, 2008;
|
|
|
(c)
|
|
the registrants quarterly report on Form 10-Q for the three months
ended March 31, 2008;
|
|
|
(d)
|
|
the registrants current report on Form 8-K filed with the SEC on
February 13, 2008;
|
|
|
(e)
|
|
the registrants current report on Form 8-K filed with the SEC on
April 23, 2008;
|
|
|
(f)
|
|
the registrants current report on Form 8-K filed with the SEC on May
28, 2008;
|
|
|
(g)
|
|
the registrants current report on Form 8-K filed with the SEC on
June 3, 2008;
|
|
|
(h)
|
|
the registrants current report on Form 8-K filed with the SEC on
June 24, 2008;
|
|
|
(i)
|
|
the registrants current report on Form 8-K filed with the SEC on
July 23, 2008;
|
|
|
(j)
|
|
the registrants current report on Form 8-K filed with the SEC on
August 4, 2008;
|
|
|
(k)
|
|
the registrants current report on Form 8-K filed with the SEC on
August 6, 2008;
|
|
|
(l)
|
|
the registrants quarterly report on Form 10-Q for the three months
ended June 30, 2008;
|
|
|
(m)
|
|
the registrants current report on Form 8-K filed with the SEC on
October 2, 2008;
|
|
|
(n)
|
|
the registrants current report on Form 8-K filed with the SEC on
November 10, 2008;
|
|
|
(o)
|
|
the registrants quarterly report on Form 10-Q for the three months
ended September 30, 2008;
|
|
|
(p)
|
|
the registrants current report on Form 8-K filed with the SEC on
January 4, 2009;
|
|
|
(q)
|
|
the registrants current report on Form 8-K filed with the SEC on
January 30, 2009;
|
|
|
(r)
|
|
the registrants current report on Form 8-K filed with the SEC on
February 18, 2009; and
|
|
(s)
|
|
the description of the registrants common stock contained in our
registration statement on Form 8-A filed with the SEC on July 28, 2000, including
any amendment or report filed for the purpose of updating such description.
|
In addition, all documents we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this registration statement and prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have been sold or that
deregisters all securities then remaining unsold, are incorporated by reference in this
registration statement and are a part hereof from the date of filing such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this registration statement to the extent that
a statement contained herein or in any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded, to constitute a
part of this registration statement.
Item 4.
Description of Securities
.
Not applicable.
Item 5.
Interests of Named Experts and Counsel
.
Not applicable.
Item 6.
Indemnification of Directors and Officers
.
Article SEVENTH of our Third Amended and Restated Certificate of Incorporation, as amended to
date, or the Charter, provides that no director of our company shall be personally liable to us or
our stockholders for monetary damages for any breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability, except to the extent that the General
Corporation Law of the State of Delaware prohibits the elimination or limitation of liability of
directors for breaches of fiduciary duty.
Article EIGHTH of our Charter provides that each of our directors and officers (a) shall be
indemnified by us against all expenses (including attorneys fees), judgments, fines and amounts
paid in settlement incurred in connection with any litigation or other legal proceeding (other than
an action by or in the right of us) threatened or brought against him by virtue of the fact that he
is, or has agreed to serve as, a director or officer of our company or is serving in the position
of director, officer, partner, employee or trustee of another corporation, partnership, joint
venture trust or other enterprise on our behalf, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, our best interests, and, with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful and
(b) shall be indemnified by us against all expenses (including attorneys fees) and amounts paid in
settlement incurred in connection with any action by or in the right of us brought against him by
virtue of the fact that he is, or has agreed to serve as, a director or officer of our company or
is serving in the position of director, officer, partner, employee or trustee of another
corporation, partnership, joint venture trust or other enterprise on our behalf, if he acted in
good faith and in a manner he reasonably believed to be in, or not opposed to, our best interests,
except that no indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to us, unless a court determines that, despite such
adjudication but in view of all of the circumstances, he is entitled to indemnification of such
expenses. Notwithstanding the foregoing, to the extent that a director or officer has been
successful, on the merits or otherwise, including, without limitation, the dismissal of an action
without prejudice, he is required to be indemnified by us against all expenses (including
attorneys fees) incurred in connection therewith. Expenses shall be advanced to a director or
officer at his request, provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification for such expenses.
Indemnification is required to be made unless we determine that the applicable standard of
conduct required for indemnification has not been met. In the event of a determination by us that
the director or officer did not meet the applicable standard of conduct required for
indemnification or if we fail to make an indemnification payment within 60 days after such payment
is claimed by such person, such person is permitted to petition the court to make an independent
determination as to whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give us notice of the action for which
indemnity is sought and we have the right to participate in such action or assume the defense
thereof.
Section 145 of the General Corporation Law of the State of Delaware provides that a
corporation has the power to indemnify a director, officer, employee, or agent of the corporation
and certain other persons serving at the request of the corporation in related capacities against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with any threatened, pending or completed action,
suit or proceeding to which he was or is a party or is threatened to be made a party by reason of
such position, if such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, in any criminal proceeding, if such
person has no reasonable cause to believe his conduct was unlawful. In the case of actions brought
by or in the right of the corporation, however, no indemnification shall be made with respect to
any matter as to which such person shall have been adjudged to be liable to the corporation unless
and only to the extent that the adjudicating court determines that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem
proper.
We maintain a general liability insurance policy which covers certain liabilities of directors
and officers of our corporation arising out of claims based on acts or omissions in their
capacities as directors or officers.
At present, there is no pending litigation or proceeding involving any director, officer,
employee or agent as to which indemnification will be required or permitted under the Charter. We
are not aware of any threatened litigation or proceeding that may result in a claim for such
indemnification.
Item 7.
Exemption From Registration Claimed
.
Not applicable.
Item 8.
Exhibits
.
The following is a list of exhibits filed as part of this registration statement, which are
incorporated herein:
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
|
5.1
|
|
Opinion of Paul M. Antinori, Esq., Senior Vice President and
General Counsel
|
|
|
|
10.1
|
|
The Medicines Company 2009 Equity Inducement Plan
|
|
|
|
23.1
|
|
Consent of Ernst & Young LLP
|
|
|
|
23.2
|
|
Consent of Paul M. Antinori, Esq., Senior Vice President and
General Counsel (contained in Exhibit 5.1)
|
|
|
|
24.1
|
|
Power of Attorney (included in the signature page of this
registration statement)
|
Item 9.
Undertakings
.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or events arising after the effective
date of this registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the information
set forth in this registration statement;
(iii) To include any material information with respect to the plan of distribution
not previously disclosed in this registration statement or any material change to such
information in this registration statement;
provided, however
, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrants annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Parsippany, State of New Jersey, on this 24
th
day of
February, 2009.
|
|
|
|
|
|
THE MEDICINES COMPANY
|
|
|
By:
|
/s/ Clive A. Meanwell
|
|
|
|
Clive A. Meanwell
|
|
|
|
Chairman and Chief Executive Officer
|
|
|
We, the undersigned officers and directors of The Medicines Company, hereby severally
constitute and appoint Clive A. Meanwell, Glenn P. Sblendorio, John P. Kelley, and each of them
singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for
us and in our names in the capacities indicated below, the registration statement on Form S-8 filed
herewith and any and all subsequent amendments to said registration statement, and generally to do
all such things in our names and on our behalf in our capacities as officers and directors to
enable The Medicines Company to comply with the provisions of the Securities Act, and all
requirements of the Securities and Exchange Commission, hereby ratifying and confirming out
signatures as they may be signed by our said attorneys, or any of them, to said registration
statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this registration statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature
|
|
Title(s)
|
|
Date
|
|
|
|
|
|
/s/ Clive A. Meanwell
Clive A. Meanwell
|
|
Chief Executive
Officer and
Chairman of the
Board of Directors
(Principal
Executive Officer)
|
|
February 24, 2009
|
|
|
|
|
|
/s/ Glenn P. Sblendorio
Glenn P. Sblendorio
|
|
Executive Vice
President, Chief
Financial Officer
and Treasurer
(Principal
Financial and
Accounting Officer)
|
|
February 24, 2009
|
|
|
|
|
|
|
|
President, Chief
Operating Officer
and Director
|
|
February 24, 2009
|
John P. Kelley
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009
|
William W. Crouse
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009
|
Robert J. Hugin
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009
|
T. Scott Johnson
|
|
|
|
|
|
|
|
|
|
Signature
|
|
Title(s)
|
|
Date
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009
|
Armin M. Kessler
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009
|
Robert G. Savage
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009
|
Hiroaki Shigeta
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009
|
Melvin K. Spigelman
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009
|
Elizabeth H.S. Wyatt
|
|
|
|
|
Index to Exhibits
|
|
|
Exhibit
|
|
|
Number
|
|
Document
|
|
|
|
5.1
|
|
Opinion of Paul M. Antinori, Esq., Senior Vice President and
General Counsel
|
|
|
|
10.1
|
|
The Medicines Company 2009 Equity Inducement Plan
|
|
|
|
23.1
|
|
Consent of Ernst & Young LLP
|
|
|
|
23.2
|
|
Consent of Paul M. Antinori, Esq., Senior Vice President and
General Counsel (contained in Exhibit 5.1)
|
|
|
|
24.1
|
|
Power of Attorney (included in the signature page of this
registration statement)
|
THE MEDICINES COMPANY
2009 EQUITY INDUCEMENT PLAN
1.
Purpose
The purpose of this 2009 Equity Inducement Plan (the Plan) of The Medicines Company, a
Delaware corporation (the Company), is to advance the interests of the Companys stockholders by
enhancing the Companys ability to attract, retain and motivate persons who are expected to make
important contributions to the Company and by providing such persons with equity ownership
opportunities and performance-based incentives that are intended to better align their interests
with those of the Companys stockholders. Except where the context otherwise requires, the term
Company shall include any of the Companys present or future parent or subsidiary corporations as
defined in Sections 424(e) or (f) of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder (the Code) and any other business venture (including, without
limitation, joint venture or limited liability company) in which the Company has a controlling
interest, as determined by the Board of Directors of the Company (the Board).
2.
Eligibility
Options, restricted stock awards, stock appreciation rights or other stock-based awards (each,
an Award) may be granted under the Plan to any person who (a) was not previously an employee or
director of the Company or (b) is commencing employment with the Company following a bona fide
period of non-employment by the Company, as an inducement material to the individuals entering
into employment with the Company. Each person who has been granted an Award under the Plan shall be
deemed a Participant.
3.
Administration
(a)
Administration by the Compensation Committee of the Board of Directors
. The Plan
will be administered by the Compensation Committee of the Board (the Committee). The
Administrator (as defined below) shall have authority to grant Awards and to adopt, amend and
repeal such administrative rules, guidelines and practices relating to the Plan as it shall deem
advisable. The Administrator may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent it shall deem expedient to
carry the Plan into effect and it shall be the sole and final judge of such expediency. All
decisions by the Administrator shall be made in the Administrators sole discretion and shall be
final and binding on all persons having or claiming any interest in the Plan or in any Award. No
director shall be liable for any action or determination relating to or under the Plan made in
good faith.
(b)
Board Award Granting Authority
. To the extent permitted by applicable law and
Nasdaq regulations, if the Committee is unable to grant an Award under the Plan for any reason, the
Board, with a vote of the majority of independent directors of the Board (as defined under Nasdaq
regulations), shall have the authority to grant such Award. All references in the Plan to
-1-
the
Administrator shall mean the Committee or, when applicable pursuant to this Section 3(b), a
majority of independent directors of the Board.
4.
Stock Available for Awards
(a)
Number of Shares
. Subject to adjustment under Section 9, Awards may be made
under the Plan for up to 1,500,000 shares of common stock, $.001 par value per share, of the
Company (the Common Stock). If any Award expires or is terminated, surrendered or canceled
without having been fully exercised or is forfeited in whole or in part (including as the result
of shares of Common Stock subject to such Award being repurchased by the Company at the original
issuance price pursuant to a contractual repurchase right) or results in any Common Stock not
being issued, the unused Common Stock covered by such Award shall again be available for the grant
of Awards under the Plan. Shares issued under the Plan may consist in whole or in part of
authorized but unissued shares or treasury shares.
5.
Stock Options
(a)
General
. The Administrator may grant options to purchase Common Stock (each, an
Option) and determine the number of shares of Common Stock to be covered by each Option, the
exercise price of each Option and the conditions and limitations applicable to the exercise of
each Option, including conditions relating to applicable federal or state securities laws, as it
considers necessary or advisable. All Options granted under the Plan shall be Nonstatutory Stock
Options (as hereinafter defined). A Nonstatutory Stock Option is an Option which is not
intended to be an Incentive Stock Option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
(b)
Exercise Price
. The Administrator shall establish the exercise price at the time
each Option is granted and specify it in the applicable option agreement; provided, however, that
the exercise price shall be not less than 100% of the fair market value as determined by (or in a
manner approved by) the Administrator at the time the Option is granted.
(c)
Duration of Options
. Each Option shall be exercisable at such times and subject
to such terms and conditions as the Administrator may specify in the applicable option agreement;
provided, however, that no Option will be granted for a term in excess of 10 years.
(d)
Exercise of Option
. Options may be exercised by delivery to the Company of a
written notice of exercise signed by the proper person or by any other form of notice (including
electronic notice) approved by the Administrator together with payment in full as specified in
Section 5(e) for the number of shares for which the Option is exercised.
(e)
Payment Upon Exercise.
Common Stock purchased upon the exercise of an Option
granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Administrator may otherwise provide in an option agreement, by (i) delivery
of an irrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the
Company sufficient funds to pay the exercise price and any
-2-
required tax withholding or (ii)
delivery by the Participant to the Company of a copy of irrevocable and unconditional instructions
to a creditworthy broker to promptly pay to the Company the exercise price and any required tax
withholding;
(3) when the Common Stock is registered under the Exchange Act, by delivery of shares of
Common Stock owned by the Participant valued at their fair market value as determined by (or in a
manner approved by) the Administrator, provided (i) such method of payment is then permitted under
applicable law, (ii) such Common Stock, if acquired directly from the Company, was owned by the
Participant at least six months prior to such delivery and (iii) such Common Stock is not subject
to any repurchase, forfeiture, unfulfilled vesting or other similar requirements;
(4) to the extent permitted by applicable law and by the Administrator, by (i) delivery of a
promissory note of the Participant to the Company on terms determined by the Administrator, or (ii)
payment of such other lawful consideration as the Administrator may determine; or
(5) by any combination of the above permitted forms of payment.
(f)
Substitute Options
. In connection with a merger or consolidation of an entity
with the Company or the acquisition by the Company of property or stock of an entity, the
Administrator may grant Options in substitution for any options or other stock or stock-based
awards granted by such entity or an affiliate thereof prior to such merger, consolidation or
acquisition. Substitute Options may be granted on such terms as the Administrator deems
appropriate in the circumstances, notwithstanding any limitations on Options contained in the
other sections of this Section 5 or in Section 2.
(g)
No Repricing
. Without prior stockholder approval, the Company may not engage in
any repricing with respect to any Option or Options which requires stockholder approval under the
rules of the Nasdaq National Market or the principal market on which the Companys Common Stock is
then traded.
(h)
No Reload Rights
. No Option granted under the Plan shall contain any provision
entitling the optionee to the automatic grant of additional Options in connection with any
exercise of the original Option.
6.
Stock Appreciation Rights
(a)
Nature of Stock Appreciation Rights
. A Stock Appreciation Right is an Award
entitling the holder on exercise to receive an amount in cash or Common Stock or a combination
thereof (such form to be determined by the Administrator) determined in whole or in part by
reference to appreciation, from and after the date of grant, in the fair market value of a share
of Common Stock (an SAR Award). A Stock Appreciation Right may be based solely on appreciation
in the fair market value of Common Stock or on a comparison of such appreciation with some other
measure of market growth such as (but not limited to) appreciation in a recognized market index. The
date as of which such appreciation or other measure is determined shall be the exercise date
unless another date is specified by the Administrator in the SAR Award.
-3-
(b)
Grants
. Stock Appreciation Rights may be granted in tandem with, or
independently of, Options granted under the Plan.
(1)
Rules Applicable to Tandem Awards
.
When Stock Appreciation Rights are expressly
granted in tandem with Options, the Stock Appreciation Right will be exercisable only at such time
or times, and on such conditions, as the Administrator may specify in the SAR Award or the related
Options.
(2)
Exercise of Independent Stock Appreciation Rights
.
A Stock Appreciation Right not
expressly granted in tandem with an Option will become exercisable at such time or times, and on
such conditions, as the Administrator may specify in the SAR Award.
(c)
Exercise
. Any exercise of a Stock Appreciation Right must be in writing, signed
by the proper person and delivered or mailed to the Company, accompanied by any other documents
required by the Administrator.
7.
Restricted Stock
.
(a)
Grants
. The Administrator may grant Awards entitling recipients to acquire shares of Common Stock, subject to the right of the Company to repurchase all or part of such shares at their issue price or other stated or formula price (or to require forfeiture of such shares if issued at no cost) from the recipient in the event that conditions specified by the
Administrator in the applicable Award are not satisfied prior to the end of the applicable restriction period or periods established by the Administrator for such Award (each, a Restricted
Stock Award).
(b)
Terms and Conditions
. The Administrator shall determine the terms and conditions
of a Restricted Stock Award, including the conditions for repurchase (or forfeiture) and the issue
price, if any.
(c)
Limitation on Vesting
. Restricted Stock Awards shall not vest earlier than the
first anniversary of the date of grant. Notwithstanding any other provision of this Plan, the
Administrator may, in its discretion, either at the time a Restricted Stock Award is made or at
any time thereafter, waive its right to repurchase shares of Common Stock (or waive the forfeiture
thereof) or remove or modify any part or all of the restrictions applicable to the Restricted
Stock Award, provided that the Administrator may only exercise such rights in extraordinary
circumstances which shall include, without limitation, death or disability of the Participant; a
merger, consolidation, sale, reorganization, recapitalization, or change in control of the
Company; or any other nonrecurring significant event affecting the Company, a Participant or the
Plan.
(d)
Stock Certificates
. Any stock certificates issued in respect of a Restricted
Stock Award shall be registered in the name of the Participant and, unless otherwise
determined by the Administrator, deposited by the Participant, together with a stock power
endorsed in blank, with the Company (or its designee). At the expiration of the applicable
restriction periods, the Company (or such designee) shall deliver the certificates no longer
subject to such restrictions to the Participant or if the Participant has died, to the beneficiary
designated, in a manner determined by the Administrator, by a Participant to receive amounts due
or exercise rights of
-4-
the Participant in the event of the Participants death (the Designated
Beneficiary). In the absence of an effective designation by a Participant, Designated
Beneficiary shall mean the Participants estate.
8.
Other Stock-Based Awards
.
Other Awards of shares of Common Stock, and other Awards that are valued in whole or in part
by reference to, or are otherwise based on, shares of Common Stock or other property, may be
granted hereunder to Participants (Other Stock Unit Awards), including, without limitation,
Awards entitling recipients to receive shares of Common Stock to be delivered in the future. Such
Other Stock Unit Awards shall also be available as a form of payment in the settlement of other
Awards granted under the Plan or as payment in lieu of compensation to which a Participant is
otherwise entitled. Other Stock Unit Awards may be paid in shares of Common Stock or cash, as the
Administrator shall determine. Subject to the provisions of the Plan, the Administrator shall
determine the conditions of each Other Stock Unit Awards, including any purchase price applicable
thereto. At the time any Award is granted, the Administrator may provide that, at the time Common
Stock would otherwise be delivered pursuant to the Award, the Participant will instead receive an
instrument evidencing the Participants right to future delivery of the Common Stock.
9.
Adjustments for Changes in Common Stock and Certain Other Events
.
(a)
Changes in Capitalization
. In the event of any stock split, reverse stock split,
stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or
other similar change in capitalization or event, or any distribution to holders of Common Stock
other than an ordinary cash dividend, (i) the number and class of securities available under this
Plan, (ii) the limits on Awards set forth in Section 4(a), (iii) the number and class of
securities and exercise price per share subject to each outstanding Option, (iv) the repurchase
price per share subject to each outstanding Restricted Stock Award and (v) the share- and
per-share-related provisions of each outstanding Stock Appreciation Right and Other Stock Unit
Award shall be equitably adjusted by the Company (or substituted Awards may be made, if
applicable) to the extent determined by the Administrator.
(b)
Reorganization and Change in Control Events
(1)
Definitions
|
(a)
|
|
A Reorganization Event shall mean:
|
|
(i)
|
|
any merger or consolidation
of the Company with or into another entity as a result of
which all of the Common Stock of the Company is converted
into or exchanged for the right to receive cash, securities
or other property;
|
|
|
(ii)
|
|
any exchange of all of the
Common Stock of the Company for cash, securities or other
property pursuant to a share exchange transaction; or
|
-5-
|
(iii)
|
|
any liquidation or
dissolution of the Company.
|
|
(b)
|
|
A Change in Control Event shall mean:
|
|
(i)
|
|
any sale or transfer of all
or substantially all of the assets of the Company to another
corporation or entity, any merger, consolidation or
reorganization of the Company into or with another
corporation or entity, with the result that, upon conclusion
of the transaction, the voting securities of the Company
immediately prior thereto do not represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of the
continuing or surviving entity of such consolidation, merger
or reorganization; or
|
|
|
(ii)
|
|
a disclosure that any
person (as the term person is used in Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act), other than (A) the
Company or (B) any corporation owned directly or indirectly
by the stockholders of the Company in substantially the same
proportion as their ownership of stock of the Company,
becomes the beneficial owner as the term beneficial owner
is defined under Rule 13d-3 or any successor rule or
regulation thereto under the Exchange Act) of securities
representing 30% or more of the combined voting power of the
then outstanding voting securities of the Company; or
|
|
|
(iii)
|
|
such time as individuals
who as of the date of the initial adoption of this Plan
constitute the Board of Directors of the Company, and any new
director (other than a director designated by a person who
has entered into an agreement with the Company to effect any
transaction described in clause (i) or (ii) of this section)
whose election by the Board or nomination for election by the
Companys stockholders was approved by a vote of at least
two-thirds of the directors then still in office who were
either directors at the beginning of the period or whose
election or whose nomination for election
was previously so approved, cease for any reason to
constitute a majority of the Board of Directors; or
|
|
|
(iv)
|
|
the liquidation or
dissolution of the Company.
|
(c) Cause shall mean (i) conviction of any felony or any crime involving
moral turpitude or dishonesty; (ii) participation in a fraud or act of
dishonesty against the Company (or, if applicable, a successor
-6-
corporation
to the Company); (iii) willful and material breach of the Companys
policies (or, if applicable, a successor corporation to the Company); (iv)
intentional and material damage to the Companys property (or, if
applicable, a successor corporation to the Company); or (v) material
breach of the Participants confidentiality obligations or duties under
the Participants non-disclosure, non-competition or other similar
agreement with the Company (or, if applicable, a successor corporation to
the Company).
(d) Termination Event shall mean the termination of the Participants
employment (i) by the Company or the acquiring or succeeding corporation
without Cause; (ii) as a result of Participants death or disability
(within the meaning of Section 22(4)(3) of the Code); or (iii) by the
Participant upon written notice given promptly after the Companys or the
acquiring or succeeding corporations taking of any of the following
actions, which actions shall not have been cured within a 30-day period
following such notice: (A) the principal place of the performance of the
Participants responsibilities (the Principal Location) is changed to a
location outside of a 30 mile radius from the Principal Location
immediately prior to the Reorganization Event; (B) there is a material
reduction in the Participants responsibilities without Cause; (C) there
is a material reduction in the Participants salary; or (D) there is a
significant diminution in the scope of the Participants responsibilities
without the Participants agreement (excluding increases in responsibility
and sideways moves to jobs with similar descriptions).
(2)
Effect on Options
|
(a)
|
|
Reorganization Event
. Upon the
occurrence of a Reorganization Event (regardless of whether such
event also constitutes a Change in Control Event), or the execution
by the Company of any agreement with respect to a Reorganization
Event (regardless of whether such event will result in a Change in
Control Event), the Board shall provide that all outstanding Options
shall be assumed, or equivalent options shall be substituted, by the
acquiring or succeeding corporation (or an affiliate thereof); provided that
if such Reorganization Event also constitutes a Change in Control
Event, except to the extent specifically provided to the contrary
in the instrument evidencing any Option or any other agreement
between a Participant and the Company, such assumed or substituted
options shall become immediately exercisable in full if, on or
prior to the first anniversary of the date of the consummation of
the Change in Control Event, a Termination Event occurs. For
purposes hereof, an Option shall be considered to be assumed if,
following consummation of the Reorganization Event, the Option
confers the right to purchase, for each share of Common Stock
subject to the Option immediately prior to the consummation of the
|
-7-
|
|
|
Reorganization Event, the consideration (whether cash, securities
or other property) received as a result of the Reorganization
Event by holders of Common Stock for each share of Common Stock
held immediately prior to the consummation of the Reorganization
Event (and if holders were offered a choice of consideration, the
type of consideration chosen by the holders of a majority of the
outstanding shares of Common Stock); provided, however, that if
the consideration received as a result of the Reorganization Event
includes but does not solely consist of common stock of the
acquiring or succeeding corporation (or an affiliate thereof), the
Company may, with the consent of the acquiring or succeeding
corporation, provide for the consideration to be received upon the
exercise of Options to consist solely of common stock of the
acquiring or succeeding corporation (or an affiliate thereof)
equivalent in fair market value to the per share consideration
received by holders of outstanding shares of Common Stock as a
result of the Reorganization Event.
|
|
|
|
Notwithstanding the foregoing, (i) if the acquiring or
succeeding corporation (or an affiliate thereof) does not agree to
assume, or substitute for, such Options, or in the event of a
liquidation or dissolution of the Company, the Administrator
shall, upon written notice to the Participants, provide that all
then unexercised Options will become exercisable in full as of a
specified time prior to the Reorganization Event and will
terminate immediately prior to the consummation of such
Reorganization Event, except to the extent exercised by the
Participants before the consummation of such Reorganization Event,
and (ii) in the event of a Reorganization Event under the terms of
which holders of Common Stock will receive upon consummation
thereof a cash payment for each share of Common Stock
surrendered pursuant to such Reorganization Event (the
Acquisition Price), the Administrator shall either (A) upon
written notice to the Participants, provide that all then
unexercised Options will become exercisable in full as of a
specified time prior to the Reorganization Event and will
terminate immediately prior to the consummation of such
Reorganization Event, except to the extent exercised by the
Participants before the consummation of such Reorganization Event
or (B) provide that all outstanding Options shall terminate upon
consummation of such Reorganization Event and that each
Participant shall receive, in exchange therefor, a cash payment
equal to the amount (if any) by which (x) the Acquisition Price
multiplied by the number of shares of Common Stock subject to such
outstanding Options (whether or not then exercisable), exceeds (y)
the aggregate exercise price of such Options.
|
-8-
|
(b)
|
|
Change in Control Event that is not a
Reorganization Event
. Upon the occurrence of a Change in Control
Event that does not also constitute a Reorganization Event, except to
the extent specifically provided to the contrary in the instrument
evidencing any Option or any other agreement between a Participant
and the Company, each such Option shall become immediately
exercisable in full if, on or prior to the first anniversary of the
date of the consummation of the Change in Control Event, a
Termination Event occurs.
|
(3)
Effect on Restricted Stock Awards
|
(a)
|
|
Reorganization Event that is not a
Change in Control Event
. Upon the occurrence of a Reorganization
Event that is not a Change in Control Event, the repurchase and other
rights of the Company under each outstanding Restricted Stock Award
shall inure to the benefit of the Companys successor and shall apply
to the cash, securities or other property which the Common Stock was
converted into or exchanged for pursuant to such Reorganization Event
in the same manner and to the same extent as they applied to the
Common Stock subject to such Restricted Stock Award.
|
|
|
(b)
|
|
Change in Control Event
. Upon the
occurrence of a Change in Control Event (regardless of whether such
event also constitutes a Reorganization Event), except to the extent
specifically provided to the contrary in the instrument evidencing
any Restricted Stock Award or any other agreement between a Participant and the Company, each such
Restricted Stock Award shall immediately become free from all
conditions or restrictions if, on or prior to the first
anniversary of the date of the consummation of the Change in
Control Event, a Termination Event occurs.
|
(4)
Effect on Stock Appreciation Rights and Other Stock Unit Awards
The Administrator may specify in an Award at the time of the grant
the effect of a Reorganization Event and Change in Control Event
on any SAR Award and Other Stock Unit Award.
10.
General Provisions Applicable to Awards
(a)
Transferability of Awards
. Except as the Administrator may otherwise determine
or provide in an Award, Awards shall not be sold, assigned, transferred, pledged or otherwise
encumbered by the person to whom they are granted, either voluntarily or by operation of law,
except by will or the laws of descent and distribution or pursuant to a qualified domestic
relations order, and, during the life of the Participant, shall be exercisable only by the
Participant. References to a Participant, to the extent relevant in the context, shall include
references to authorized transferees. Notwithstanding the foregoing, a Participant may transfer
any Award by means of a gift to a family member (as such term is defined in General
-9-
Instruction A
to Form S-8, as may be amended from time to time) of such Participant, provided that prior written
notice of such gift is provided to the Company.
(b)
Documentation
. Each Award shall be evidenced in such form (written, electronic
or otherwise) as the Administrator shall determine. Each Award may contain terms and conditions
in addition to those set forth in the Plan.
(c)
Administrator Discretion
. Except as otherwise provided by the Plan, each Award
may be made alone or in addition or in relation to any other Award. The terms of each Award need
not be identical, and the Administrator need not treat Participants uniformly.
(d)
Termination of Status
. The Administrator shall determine the effect on an Award
of the disability, death, retirement, authorized leave of absence or other change in the
employment or other status of a Participant and the extent to which, and the period during which,
the Participant, or the Participants legal representative, conservator, guardian or Designated
Beneficiary, may exercise rights under the Award.
(e)
Withholding
. Each Participant shall pay to the Company, or make provision
satisfactory to the Company for payment of, any taxes required by law to be withheld in connection
with Awards to such Participant pursuant to such rules and procedures as the Company may adopt.
Except as the Administrator may otherwise provide in an Award, when the Common Stock is registered under the Exchange Act, Participants
may satisfy such tax obligations in whole or in part by delivery of shares of Common Stock,
including shares retained from the Award creating the tax obligation, valued at their fair market
value as determined by (or in a manner approved by) the Administrator; provided, however, that the
total tax withholding where stock is being used to satisfy such tax obligations cannot exceed the
Companys minimum statutory withholding obligations (based on minimum statutory withholding rates
for federal and state tax purposes, including payroll taxes, that are applicable to such
supplemental taxable income). Shares surrendered to satisfy tax withholding requirements cannot
be subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements. The
Company may, to the extent permitted by law, deduct any such tax obligations from any payment of
any kind otherwise due to a Participant.
(f)
Amendment of Award
. Except as prohibited by Section 5(g), the Administrator may
amend, modify or terminate any outstanding Award, including but not limited to, substituting
therefor another Award of the same or a different type and changing the date of exercise or
realization, provided that the Participants consent to such action shall be required unless the
Administrator determines that the action, taking into account any related action, would not
materially and adversely affect the Participant.
(g)
Conditions on Delivery of Stock
. The Company will not be obligated to deliver
any shares of Common Stock pursuant to the Plan or to remove restrictions from shares previously
delivered under the Plan until (i) all conditions of the Award have been met or removed to the
satisfaction of the Company, (ii) in the opinion of the Companys counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied, including any
applicable securities laws and any applicable stock exchange or stock market rules and
regulations, and (iii) the Participant has executed and delivered to the
-10-
Company such
representations or agreements as the Company may consider appropriate to satisfy the requirements
of any applicable laws, rules or regulations.
(h)
Acceleration
. The Administrator may at any time provide that any Award shall
become immediately exercisable in full or in part, free of some or all restrictions or conditions,
or otherwise realizable in full or in part, as the case may be.
(i)
Deferrals
. The Administrator may permit Participants to defer receipt of any
Common Stock issuable upon exercise of an Option or upon the lapse of any restriction applicable
to any Restricted Stock Award, subject to such rules and procedures as it may establish.
11.
Miscellaneous
(a)
No Right To Employment or Other Status
. No person shall have any claim or right
to be granted an Award, and the grant of an Award shall not be construed as giving a Participant
the right to continued employment or any other relationship with the Company. The Company
expressly reserves the right at any time to dismiss or otherwise terminate its relationship with a Participant free from any liability or claim
under the Plan, except as expressly provided in the applicable Award.
(b)
No Rights As Stockholder
. Subject to the provisions of the applicable Award, no
Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any shares of Common Stock to be distributed with respect to an Award until becoming the record holder
of such shares. Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the number of shares
subject to such Option are adjusted as of the date of the distribution of the dividend (rather
than as of the record date for such dividend), then an optionee who exercises an Option between
the record date and the distribution date for such stock dividend shall be entitled to receive, on
the distribution date, the stock dividend with respect to the shares of Common Stock acquired upon
such Option exercise, notwithstanding the fact that such shares were not outstanding as of the
close of business on the record date for such stock dividend.
(c)
Effective Date and Term of Plan
. The Plan shall become effective on the date on
which it is adopted by the Board. No Awards shall be granted under the Plan after May 31, 2010,
provided that Awards granted prior to that date may extend beyond such date.
(d)
Amendment of Plan
. With the approval of the Board, at any time and from time to
time, the Administrator may amend, suspend or terminate the Plan or any portion thereof at any
time; provided that, to the extent determined by the Administrator, no amendment requiring
stockholder approval under any applicable legal, regulatory or listing requirement shall become
effective until such stockholder approval is obtained. No Award shall be made that is conditioned
upon stockholder approval of any amendment to the Plan.
(e)
Provisions for Foreign Participants
. The Administrator may, without amending the
Plan, modify Awards or Options granted to Participants who are foreign nationals or employed
outside the United States or establish subplans under the Plan to recognize
-11-
differences in laws,
rules, regulations or customs of such foreign jurisdictions with respect to tax, securities,
currency, employee benefit or other matters.
(f)
Governing Law
. The provisions of the Plan and all Awards made hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware, without regard
to any applicable conflicts of law.
(g)
Stockholder Approval Not Required
. It is expressly intended that approval of the
Companys stockholders not be required as a condition of the effectiveness of the Plan, and the
Plans provisions shall be interpreted in a manner consistent with such intent for all purposes
and with NASD Rule 4350(i)(1)(A)(iv).
-12-